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Dear Sir or Madam, My Freedom of Information request "Request for documents related to South Africa's Just Energy Transition Partnership" (08/24/2023, #286843) was not answered in the time defined by law and is now 6 days late. Please update me on the status of my request as soon as possible. Sincerely yours, << Address removed >>

Dear Ms Jeliazkov, Please accept our apologies for the delay in handling your request. Since some of the documents falling under your request were drafted outside the Commission, we are in the phase of consulting third parties at the moment. Thank you for your patience while we provide you our utmost best final reply. Best regards, CLIMA Access to documents Team

Dear Sir or Madam, I am filing this confirmatory application in relation to my access to documents request ‘Request for documents related to South Africa's Just Energy Transition Partnership' (Case No. EASE 2023/5022). Please pass this on to the relevant person reviewing confirmatory applications, including to the email address <<email address>>. Please confirm receipt of this email. On 24 August 2023 I submitted an access to documents request for: - Any and all documents related to the intended use of the grant and loans related to objectives in South Africa’s Just Energy Transition Partnership Investment Plan or otherwise throughout the South African economy and energy transition; - Any and all documents related to the terms and conditions of the grant and loans, including any and all terms and conditions that have been confirmed, offered or are under negotiation, related to grant and loans’ desired use, repayment or consequences for defaulting; - Any and all documents pertaining to the ambitions, stated aims or including any references to access to energy supply for South Africa’s residents; - Any and all documents that reference the intention to and/or steps outlining how workers, communities, women and youth affected by the move away from coal will be impacted and/or protected; - Any and all documents referencing the participation of South Africa’s civil society as it is related to the purpose of the grant and loans; and - Any and all documents that reference what constitutes an ‘enabling environment’ for private finance in South Africa. As they relate to the US$35 million in grant facilities and US$1 billion in two loans of US$500 million each the European Union has offered via the European Investment Bank in the context of South Africa’s Just Energy Transition Partnership [see: https://ec.europa.eu/commission/presscorner/detail/en/statement_22_6664]. My initial request as well as all subsequent correspondence can be found here: https://fragdenstaat.de/anfrage/request-for-documents-related-to-south-africa-s-just-energy-transition-partnership-4/#nachricht-830285 On 15 November 2023, DG CLIMA responded to my request identifying four documents that fall within the scope of my application: 1. South Africa’s NDC targets for 2025 and 2030 2. Market Barriers Paper of the Just Energy Transition_email_Redacted 3. Barriers to Investment Paper for South Africa_18.07.2022 4. South Africa s Just Energy Transition Investment Plan (JET IP) 2023-2027 FINAL DG CLIMA provided documents 1 and 4. With regards to documents 2 and 3, DG CLIMA claimed that a full disclosure of the identified documents is prevented by the following exceptions: 1. The protection of privacy and the integrity of the individual, because they contain the names, initials and contact information of Commission staff members not pertaining to the senior management and third parties; 2. The protection of international relations where, o The authors of documents 2 and 3 have objected to the disclosure of the documents since they are ‘non-papers’ (preliminary drafts) and do not reflect the position of the Commission or the third parties, where disclosure would be harmful to the ‘trustworthy atmosphere’ of the international process if these unofficial and outdated non-papers were published and o The disclosure could have negative repercussions for international dialogue and limit the possibilities to come to a final agreement that preserves the EU interest; 3. The protection of an ongoing decision making process, where the information is ‘short-lived and not reflecting the final outcomes of discussions’ and so could give rise to misinterpretation and early disclosure could potentially adversely affect the dialogue between different actors. For the purpose of this confirmatory application, it is important to reference that the EU signed onto the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters in 1998 [see: https://unece.org/environment-policy/public-participation/aarhus-convention/text] As per the Para. 10 of the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003, ‘environmental information’ should be ‘clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.’ [see: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32003L0004]. Therefore, in my following arguments I will refer to the Regulation No. 1049/2001 and the Aarhus Convention as and when they are relevant. To this extent, I hereby argue: 1. DG CLIMA’s reference to the author’s objection to disclosure is inconsistent with case law and the intended meaning of Regulation 1049/2001. DG CLIMA outlined that “the authors of documents 2 and 3 have objected to the disclosure of the documents that they sent to the Commission, since the said documents are ‘non-papers’, namely preliminary drafts not reflecting the position of the Commission or the third parties”. Under Article 3(b) of the regulation, 'third party' is to mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries. If the authors of the documents originate from outside of the Commission as third parties, including Member States, they do not have the power to veto disclosure of a document originating from outside of the Commission according to their own national laws or otherwise. According to case law C-64/05 P - Sweden v Commission (see: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-64/05), “as provided by Article 2(3) of the regulation, the right of access to documents held by the Parliament, the Council and the Commission extends not only to documents drawn up by those institutions but also to documents received from third parties, including the Member States, as expressly stated by Article 3(b) of the regulation.” Sweden v Commission’s judgment states that it would be an incorrect interpretation of Article 4(5) of Regulation No. 1049/2001 to assume that a “Member State is entitled under that provision unconditionally and in a discretionary manner to object to the disclosure of a document originating from it, without being required to base its objection on the grounds of exception set out in Article 4(1) to (3) of Regulation No 1049/2001 and to state reasons for its objection.” In practice, this means that the exercise of the power conferred by Article 4(5) on the third party concerned is “delimited by the substantive exceptions set out in Article 4(1) to (3), with the Member State merely being given in this respect a power to take part in the Community decision. Seen in that way, the prior agreement of the Member State referred to in Article 4(5) resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present.” As such, as the person requesting the documents, third party intervention should not affect DG CLIMA’s decision addressed to me, as the decision to disclose is based purely on the substantive exceptions set out in Article 4(1) to (3). Any discussion with the third party in question should be limited exclusively to assessing the content of these exceptions, not asking their opinion on disclosing the document in a more general sense. If the documents do not meet the substantive exceptions, it does not matter if third parties oppose their publication for any other reasons. Moreover, the idea that the documents do not reflect the current position of the Commission or third parties, or that the opinions expressed in the documents are outdated, is not a substantive exception to refuse disclosure. If that reasoning were held up, any and all documents that are not expressing the current opinion of the Commission or third parties would be allowed to be refused, which is in no way foreseeable and not purely hypothetical risk, and would do untold damage to access to documents from previous Commission decisions or early drafts and information used by the Commission. Regulation 1049/2001 does not only apply to up to date information and current opinions held by the Commission and other Community bodies, it applies to all documents held by them. 2. DG CLIMA’s use of Article 4(1)(a), third indent Resolution 1049/2001 is insufficiently particularised and inconsistent with case law and Article 4(4) of the Aarhus Convention. Article 4(1)(a), third indent Resolution 1049/2001 states that the institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards to international relations. DG CLIMA claims that the documents in question would undermine the protection of international relations because publishing ‘unofficial and outdated non-papers’ would be harmful to the trustworthy atmosphere of the international process and that disclosing the information at this moment in time could have negative repercussions for the international dialogue with other third countries and limit the possibility of coming to a final agreement that preserves EU interest. DG CLIMA’s reliance upon the alleged risk posed to international relations as a result of disclosure of documents 2 and 3 is misleading. DG CLIMA’s explanation for why outdated non-papers would undermine the public interest is vague and insufficient. Simply stating the ‘atmosphere of the international process’ is not in accordance with the established case law of the CJEU, where DG CLIMA must explain how the purported risk to international relations is “foreseeable and not purely hypothetical”. It has failed even to particularise the nature of the purported risk, much less to establish that it reaches the threshold of “foreseeable and not purely hypothetical”, particularly in the context of the documents being outdated, unofficial and no longer reflecting the position of the Commission. It is very important, particularly with information related to climate finance that will impact national economies and emissions for decades to come, that DG CLIMA does not quote ‘international relations’ as an exemption simply because the document is about more than one country. The fact that another country is involved does not automatically mean there is any danger through disclosure, DG CLIMA must be specific about what is at risk. Moreover, the fact that these documents are unofficial and outdated suggest they are not actively relevant to whatever international dialogue around the South African JETP is currently underway. It is not justifiable, under the pretense of widest possible access, to refuse documents that are no longer relevant to negotiations because they pertain to the expansive and long term ongoing conversation about South Africa’s JETP. Under that logic, no documents would be able to be disclosed until after the JETP has finished, at minimum in 2027 if it is not extended, which is clearly not in the public interest since the documents would no longer be relevant at all. This purported danger must also be assessed through the lens of Article 4(4), subparagraph 10 of the Aarhus Convention, which is in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. The public interest in disclosing JETP documents is very high, given that decisions made regarding South Africa’s JETP will impact the global climate and the future of the energy transition and economy of South Africa for decades to come. Transparency around future climate-related agreements is not a risk to the public interest, but actually increases the likelihood that the JETP will have a positive impact on international relations and the financial and economic policy of South Africa, as the public will be able to participate more clearly - as is one of the goals of the Aarhus Convention. 3. DG CLIMA’s use of Article 4(3) of Regulation (EC) No 1049/2001 is inapplicable and overridden by the public interest in disclosure of environmental information under the Aarhus Convention. Article 4(3) states that, “Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.” DG CLIMA claims that the disclosure of information in the documents requested might undermine international relations in a reasonably foreseeable manner, as the information in the documents is short lived and not reflecting the final outcomes of discussions, thus risking misinterpretation. DG CLIMA also claims that early disclosure of the documents – before the process has been definitively closed - may adversely affect the dialogue between different actors. In the first instance, DG CLIMA has not specified how the particular documents in question relate to the ongoing discussion about South Africa’s JETP. While it may be true that discussions about the JETP are ongoing, the financial commitments by the EU and other International Partners Group members have been announced, the priorities for funding have been announced, and South Africa’s Investment Plan has been agreed and published. If the documents are unofficial, outdated non-papers, they are clearly not involved in current negotiations with third parties. While the broader discussion around the JETP might be ongoing, the way DG CLIMA has described the documents in question clearly suggests they were part of a stage of discussion or decision-making that is now over. Otherwise, they would not have described the documents as ‘preliminary drafts’, ‘outdated’, ‘unofficial’ and ‘non-papers’, nor would they have said themselves that the documents are ‘not reflecting the final outcomes of discussions’, and so were clearly about discussions that are now final. Additionally, Article 4(3) is meant to pertain to “a matter where the decision has not been taken by the institution”, not where the information disclosed “could give rise to misinterpretation”. In the first instance, the fact that documents do not reflect the final outcome of discussions is not in and of itself reason enough to refuse disclosure. If that were true, it could be applied broadly and without cause to essentially any draft document or document pertaining to an issue where the institution in question has since changed its view. Clearly, this would violate Regulation No. 1049/2001’s principle of widest possible access. The Regulation is not intended to apply exclusively to the polished, final draft of documents or decisions. Moreover, the idea that a document ‘could give rise to misinterpretation’ is a purely hypothetical statement, which contravenes established case law that the risk must be ‘reasonably foreseeable and not purely hypothetical.’ With partnerships like the South African JETP that are set to last multiple years, with this round of funding committing the EU’s involvement until at least 2027, it becomes even more important to consider the public interest in disclosure against the exception of an ongoing decision-making process. The JETP is set to determine South Africa’s energy transition in major ways over the next decade. The focus on the electricity sector, new energy vehicles sector, and green hydrogen is important for both South African public interest and EU public interest, as both electric vehicles and green hydrogen are predominantly export economies. Additionally, and most importantly, South Africa’s JETP impacts all of us, as the consequences of decisions related to fossil fuel phase out, the energy transition, and emissions impact the pace of climate change and South Africa’s contribution to the global effort to stay under 1.5 degrees warming. As such, it is important to note that the Aarhus Convention states that “material in the course of completion” or “internal communications” are still subject to a restrictive interpretation, prioritizing public interest served by disclosure of environmental information. Even if the documents pertain to the confidentially of commercial and industrial information in order to protect a legitimate economic interest, if the document includes “information on emissions which is relevant for the protection of the environment [it] shall be disclosed”. On top of the impact on global climate change, the South Africa JETP is also the most developed out of all the current JETPs, and will set a precedent or at least influence what JETP agreements look like with numerous Global South countries moving forward. This increases the public interest in disclosure, as the environmental impact of all the JETPs combined will be massive, and it is in the public interest to release documents, so civil society can understand what these Partnerships will look like before more are confirmed, so they are able to participate more clearly in shaping them – as is an objective of the Aarhus Convention. 4. DG CLIMA’s failure to provide partial disclosure is unlawful Article 4 (6) of Regulation 1049/2001 states that: “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.” Partial disclosure must therefore be considered, consistent with the provisions and the principle of widest possible access. If DG CLIMA reviews this confirmatory application and decides it is still necessary to redact the names, initials and contact information of Commission staff members not pertaining to the senior management and third parties, then their reconsideration should still deliver at the very least partial – if not full – access to the documents. For these reasons, I consider that DG CLIMA is legally obligated to provide documents 2 and 3. Please do not hesitate to contact me in case you would have any doubts or questions with regards to this confirmatory application. Sincerely, << Address removed >> Request Number: 286843 Reply To: <<email address>> Upload large files for this request here: https://fragdenstaat.de/en/request/286843/upload/ad6bde4ac7873a0e77714ff1949244193d6ce631/

Dear Sir or Madam, I'm writing in reference to my confirmatory application in relation to my access to documents request ‘Request for documents related to South Africa's Just Energy Transition Partnership' (Case No. EASE 2023/5022). Your last correspondence on January 10 2024 indicated I should receive a response by January 31 2024. I have still not received a response. Do you have a time frame in which I can expect to receive one? Thank you for your help. All the best, << Address removed >> Request Number: 286843 Reply To: <<email address>> Upload large files for this request here: https://fragdenstaat.de/en/request/286843/upload/ad6bde4ac7873a0e77714ff1949244193d6ce631/