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<< Address removed >> Request Number: 286839 Reply To: <<email address>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ Post Address: << Address removed >> Gabrielle Jeliazkov << Address removed >> << Address removed >> << Address removed >> << Address removed >>

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-----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Wednesday 01 November 2023 11:37 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] 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' (EIB ref: WO1101094). Please pass this on to the relevant person reviewing confirmatory applications. 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/en/request/request-for-documents-related-to-south-africa-s-just-energy-transition-partnership/ On 13 October 2023, the European Investment Bank (EIB) responded to my request refusing to disclose any documents. The refusal was two-part, in the first instance EIB felt that the request was too broad, and did not allow the Bank to clearly identify and process all the documents. Where the EIB felt that the process would ‘result in the Bank being subject to an excessive administrative burden’ under Art. 5.19 and Art. 5.21 of the EIB-TP. The EIB then clarified that it had ‘made an effort to identify certain documents which may be relevant for [the] request and assess them under the EIB-TP’, and that the aforementioned documents related to an EIB loan for South Africa's JETP could not be disclosed due to: - Undermining commercial interests under Art. 5.5, EIB-TP; - Undermining a decision-making process under Art. 5.7 of the EIB-TP, as well as the fact that the documents are covered by a confidentiality agreement; and - Undermining the protection of the public interest as it regards international relations and the financial and economic policy of the Republic of South Africa under Art. 5.4 a., second and third bullet point EIB-TP. For the purpose of this confirmatory application, it is important to reference that the Aarhus Convention extended Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access of environmental information to all EU institutions and bodies, of which EIB is one [see: https://environment.ec.europa.eu/law-and-governance/aarhus_en]. 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 EIB-TP, Regulation No. 1049/2001 and the Aarhus Convention as and when they are relevant. To this extent, I hereby argue: 1. The EIB has not upheld its duty in Art. 5.21 EIB-TP and Article 6(2) of Regulation 1049/2001 Article 5.21 of EIB TP states that, in the event of a large number of documents or complex information, the EIB may ‘confer with the applicant informally, with a view to finding a fair solution.’ Moreover, Article 6(2) of Regulation 1049/2001 states that, if the application is not sufficiently precise, the institution shall ‘assist the applicant’ in clarifying the application. In EIB’s response, it outlined how, should I ‘be interested in particular aspects of the initiative or specific documents, [I] may want to specify further [my] request.’ But it is not possible for me to further specify my request without more information on the documents available and the institution's assistance to determine what documents may contain the information I’m looking for. EIB also stated that it had ‘made an effort to identify certain documents’ which may be relevant to my request and then assessed them under the EIB-TP. My response to this is twofold: - If we are to find a ‘fair solution’ related to the amount of requested information, I will need to see the list of documents in order to understand how to specify my request; and - It is very difficult to argue with the EIB’s assessment of the documents under the EIB-TP when I do not know what the documents are or cover. If the EIB is to hold up its commitment to finding a fair solution, it must provide a list of the identified documents and - if it becomes relevant - assist me in clarifying which documents to request. The documents in question are not currently public, and so I do not know what is requestable. A list could consist of the documents EIB has identified, or a list of the types of documents that fall under the nature of my request - where I can then request the ones I find relevant. 2. The EIB’s application of Art. 5.5 EIB-TP is insufficiently particularised and inconsistent with Article 4(4) of the Aarhus Convention Article 5.5 EIB-TP states that “access to information/documents shall also be refused where disclosure would undermine the protection of commercial interests of a natural or legal person.” In its response, the EIB stated that, “documents that may be related to a potential EIB loan for the JETP cannot be disclosed at this stage as their disclosure would undermine the commercial interests of the parties concerned.” In the first instance, the EIB has failed to provide a list of the documents in question and has, in turn, failed to identify the specific commercial interests that would be jeopardised or provide specific rationale for how this would happen. It is the EIB’s duty to prove the commercial interest would be jeopardised, not the duty of the applicant to prove why they won’t be. This is especially true in a context where the EIB has not provided any description of the documents identified. Additionally, the Aarhus Convention states that a request for environmental information may be refused if the disclosure would adversely affect ‘the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest.’ However, and crucially in this context, Article 4(4) continues on to state that, ‘within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed’. Again, without the list of documents it is difficult for me to know which documents this applies to, but if any of the documents contain information about emissions they must be disclosed under the Aarhus Convention, even if they carry the risk of adversely affecting commercial interests. Moreover, the Aarhus Convention continues on to state that any grounds for refusal (including commercial interests) that don’t directly relate to emissions, shall be interpreted in a ‘restrictive way’, taking into account the public interest served by disclosure. The public interest in disclosing JETP documents is very high, given that decisions made regarding South Africa’s JETP will impact the climate and the future of the energy industry and economy of South Africa for decades to come. 3. The EIB’s application of Art. 5.7 of the EIB-TP (as well as Article 4 (3) first subparagraph of Regulation 1049/2001) is unlawful and contravenes established EU case law. Art. 5.7 of EIB-TP states that, ‘Access to information/documents, drawn up by the EIB for internal use or received by the EIB, which relate to a matter where the decision has not been taken by the relevant body of the EIB, shall be refused if disclosure of the document/information would seriously undermine the EIB’s decision-making process.’ In EIB’s response, it states that ‘Please note in particular that such documents are covered by a confidentiality agreement with the potential counterparty. Furthermore, many of those documents are currently in a draft form and are potentially subject to further negotiations and changes. They therefore constitute information drawn up for internal use or received by the EIB which relates to a matter where a decision has not been taken by the relevant body of the EIB and its disclosure would seriously undermine the EIB’s decision-making process.’ In the first instance, the fact that documents are confidential is not reason enough to deny access. Many documents that are not public are classified as confidential. If that were a reason to refuse access, EU institutions and bodies could simply classify every document as ‘confidential’, and there would be no recourse to access. If a document is deemed requestable under the relevant Regulations and the Aarhus Convention, the confidentiality status of the document must be changed. Additionally, the EIB argued that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’ but the documents in dispute do not relate to “a matter where the decision has not been taken”; they are in fact about an agreement, loan amount and investment plan that are already publicly available. The EIB states its involvement is at a ‘very initial stage’ and that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’. But in the article EIB linked in their response [see: https://www.uxolo.com/articles/7075/COP26-EIB-pledges-1bn-for-South-Africas-energy-transition] the amount of money and aims of the contribution are already clearly laid out. The article says that the JETP will ‘work to identify financing options for innovative technical developments and investments, including electric vehicles and green hydrogen, to help the creation of green jobs,’ which is surely pulled from documents with a more detailed description of priorities and financing options. Without a list of identified documents, it is difficult to be specific, but if some of the documents relate to the reasoning or details of objectives, terms, repayment details, aims and protection for communities as they relate to the committed financing announced by the EIB, then at least portions of those documents must be about decisions already made, otherwise it is unlikely EIB would have announced its contribution amount in the first place. And the fact that in the coming years the documents could be ‘potentially subject to further negotiations and changes’ does not qualify as an ongoing decision-making process in the sense of Article 4 (3) first subparagraph of Regulation 1049/2001. In fact, ‘potentially’ is by definition hypothetical, which contravenes established case law that the risk must be ‘reasonably foreseeable and not purely hypothetical.’ If this were to be the case, every document related to any EU line of work would immediately be subject to an ongoing decision-making process and fall under the exception laid out in Article 4 (3) of Regulation 1049/2001, since every piece of information contained in a document can eventually be subject to changes. This, however, is not the meaning of Article 4 (3) of Regulation 1049/2001, which is rather subject to the principle of widest possible access. In the same vein as commercial interests, it is also 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, taking into account public interest served by disclosure and whether the information requested relates to emissions in the environment. As previously stated, there are numerous ways transparency around JETP documents are in the public interest. The South Africa JETP is the most developed out of all the current JETPs, and will set a precedent for what loan agreements look like with numerous Global South countries moving forward. It is important to the public interest that documents related to EU financing of the South African JETP are publicly available. Even more so from the perspective of the Aarhus Convention if any of the documents include targets, calculations or projections related to emissions in the environment. 4. The EIB’s application of Art. 5.4 a., second and third bullet point EIB-TP (and 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. In its response letter, the EIB alleges that disclosure of some of the third-party documents held by the Bank could “at this stage, undermine the protection of the public interest as regards international relations and the financial and economic policy of the Republic of South Africa”. The EIB’s reliance upon the alleged risk posed to international relations and the financial and economic policy of South Africa as a result of disclosure of ‘some’ of these documents is misleading. Firstly, it is clear from the use of the word ‘some’ in the EIB’s response that this exception does not cover all the documents identified. This illustrates again the need for the EIB to provide a list of the identified documents so I am able to specify my request. As well as the need for the EIB to assist in identifying relevant documents and suggestions for which documents to request. Secondly, simply stating that releasing the documents in question would ‘undermine the protection of the public interest’ is vague and insufficient. EIB fails to explain why the contents of the documents would harm international relations and the financial and economic policy of South Africa. In accordance with the established case law of the CJEU, the EIB 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”. It is very important, particularly with information related to climate finance that will impact national economies and emissions for decades to come, that the EIB 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 doesn’t automatically mean there is any danger through disclosure, the EIB must be specific about what is at risk. 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. Alongside previously mentioned reasons why it is in the public interest, it is worth addressing that transparency around future climate plans 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, presuming of course that the plans are ‘just’, as the public will be able to participate more clearly - as is one of the goals of the Aarhus Convention. 5. The EIB’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. The EIB makes no mention of partial disclosure in its response. As such, a reconsideration of the initial refusal by the EIB should deliver at the very least partial - if not full - access to the identified documents. For these reasons, I consider that the EIB is legally obligated to provide a list of the identified documents and eventually, the requested documents themselves. Please do not hesitate to contact me in case you would have any doubts or questions with regards to this confirmatory application. Sincerely, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag

-----Original Message----- From: InfoDesk Sent: Thursday 02 November 2023 10:44 To: <<E-Mail-Adresse>> Subject: FW: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Ms. Jeliazkov, Thank you for your e-mail to the European Investment Bank (EIB), the long-term financing institution of the European Union. We hereby confirm receipt of your query, which is being handled in line with the provisions of the EIB Group Transparency Policy. We will revert to you as soon as possible. Many thanks for your understanding. Yours faithfully, Infodesk Team European Investment Bank <<E-Mail-Adresse>> _____________________________________ For more details concerning EIB procedures for handling information requests, please refer to the EIB Group "Transparency Policy": (https://www.eib.org/en/publications/eib-group-transparency-policy-2021 ). If you have any questions, do not hesitate to contact us. -----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Wednesday 01 November 2023 11:37 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] 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' (EIB ref: WO1101094). Please pass this on to the relevant person reviewing confirmatory applications. 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/en/request/request-for-documents-related-to-south-africa-s-just-energy-transition-partnership/ On 13 October 2023, the European Investment Bank (EIB) responded to my request refusing to disclose any documents. The refusal was two-part, in the first instance EIB felt that the request was too broad, and did not allow the Bank to clearly identify and process all the documents. Where the EIB felt that the process would ‘result in the Bank being subject to an excessive administrative burden’ under Art. 5.19 and Art. 5.21 of the EIB-TP. The EIB then clarified that it had ‘made an effort to identify certain documents which may be relevant for [the] request and assess them under the EIB-TP’, and that the aforementioned documents related to an EIB loan for South Africa's JETP could not be disclosed due to: - Undermining commercial interests under Art. 5.5, EIB-TP; - Undermining a decision-making process under Art. 5.7 of the EIB-TP, as well as the fact that the documents are covered by a confidentiality agreement; and - Undermining the protection of the public interest as it regards international relations and the financial and economic policy of the Republic of South Africa under Art. 5.4 a., second and third bullet point EIB-TP. For the purpose of this confirmatory application, it is important to reference that the Aarhus Convention extended Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access of environmental information to all EU institutions and bodies, of which EIB is one [see: https://environment.ec.europa.eu/law-and-governance/aarhus_en]. 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 EIB-TP, Regulation No. 1049/2001 and the Aarhus Convention as and when they are relevant. To this extent, I hereby argue: 1. The EIB has not upheld its duty in Art. 5.21 EIB-TP and Article 6(2) of Regulation 1049/2001 Article 5.21 of EIB TP states that, in the event of a large number of documents or complex information, the EIB may ‘confer with the applicant informally, with a view to finding a fair solution.’ Moreover, Article 6(2) of Regulation 1049/2001 states that, if the application is not sufficiently precise, the institution shall ‘assist the applicant’ in clarifying the application. In EIB’s response, it outlined how, should I ‘be interested in particular aspects of the initiative or specific documents, [I] may want to specify further [my] request.’ But it is not possible for me to further specify my request without more information on the documents available and the institution's assistance to determine what documents may contain the information I’m looking for. EIB also stated that it had ‘made an effort to identify certain documents’ which may be relevant to my request and then assessed them under the EIB-TP. My response to this is twofold: - If we are to find a ‘fair solution’ related to the amount of requested information, I will need to see the list of documents in order to understand how to specify my request; and - It is very difficult to argue with the EIB’s assessment of the documents under the EIB-TP when I do not know what the documents are or cover. If the EIB is to hold up its commitment to finding a fair solution, it must provide a list of the identified documents and - if it becomes relevant - assist me in clarifying which documents to request. The documents in question are not currently public, and so I do not know what is requestable. A list could consist of the documents EIB has identified, or a list of the types of documents that fall under the nature of my request - where I can then request the ones I find relevant. 2. The EIB’s application of Art. 5.5 EIB-TP is insufficiently particularised and inconsistent with Article 4(4) of the Aarhus Convention Article 5.5 EIB-TP states that “access to information/documents shall also be refused where disclosure would undermine the protection of commercial interests of a natural or legal person.” In its response, the EIB stated that, “documents that may be related to a potential EIB loan for the JETP cannot be disclosed at this stage as their disclosure would undermine the commercial interests of the parties concerned.” In the first instance, the EIB has failed to provide a list of the documents in question and has, in turn, failed to identify the specific commercial interests that would be jeopardised or provide specific rationale for how this would happen. It is the EIB’s duty to prove the commercial interest would be jeopardised, not the duty of the applicant to prove why they won’t be. This is especially true in a context where the EIB has not provided any description of the documents identified. Additionally, the Aarhus Convention states that a request for environmental information may be refused if the disclosure would adversely affect ‘the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest.’ However, and crucially in this context, Article 4(4) continues on to state that, ‘within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed’. Again, without the list of documents it is difficult for me to know which documents this applies to, but if any of the documents contain information about emissions they must be disclosed under the Aarhus Convention, even if they carry the risk of adversely affecting commercial interests. Moreover, the Aarhus Convention continues on to state that any grounds for refusal (including commercial interests) that don’t directly relate to emissions, shall be interpreted in a ‘restrictive way’, taking into account the public interest served by disclosure. The public interest in disclosing JETP documents is very high, given that decisions made regarding South Africa’s JETP will impact the climate and the future of the energy industry and economy of South Africa for decades to come. 3. The EIB’s application of Art. 5.7 of the EIB-TP (as well as Article 4 (3) first subparagraph of Regulation 1049/2001) is unlawful and contravenes established EU case law. Art. 5.7 of EIB-TP states that, ‘Access to information/documents, drawn up by the EIB for internal use or received by the EIB, which relate to a matter where the decision has not been taken by the relevant body of the EIB, shall be refused if disclosure of the document/information would seriously undermine the EIB’s decision-making process.’ In EIB’s response, it states that ‘Please note in particular that such documents are covered by a confidentiality agreement with the potential counterparty. Furthermore, many of those documents are currently in a draft form and are potentially subject to further negotiations and changes. They therefore constitute information drawn up for internal use or received by the EIB which relates to a matter where a decision has not been taken by the relevant body of the EIB and its disclosure would seriously undermine the EIB’s decision-making process.’ In the first instance, the fact that documents are confidential is not reason enough to deny access. Many documents that are not public are classified as confidential. If that were a reason to refuse access, EU institutions and bodies could simply classify every document as ‘confidential’, and there would be no recourse to access. If a document is deemed requestable under the relevant Regulations and the Aarhus Convention, the confidentiality status of the document must be changed. Additionally, the EIB argued that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’ but the documents in dispute do not relate to “a matter where the decision has not been taken”; they are in fact about an agreement, loan amount and investment plan that are already publicly available. The EIB states its involvement is at a ‘very initial stage’ and that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’. But in the article EIB linked in their response [see: https://www.uxolo.com/articles/7075/COP26-EIB-pledges-1bn-for-South-Africas-energy-transition] the amount of money and aims of the contribution are already clearly laid out. The article says that the JETP will ‘work to identify financing options for innovative technical developments and investments, including electric vehicles and green hydrogen, to help the creation of green jobs,’ which is surely pulled from documents with a more detailed description of priorities and financing options. Without a list of identified documents, it is difficult to be specific, but if some of the documents relate to the reasoning or details of objectives, terms, repayment details, aims and protection for communities as they relate to the committed financing announced by the EIB, then at least portions of those documents must be about decisions already made, otherwise it is unlikely EIB would have announced its contribution amount in the first place. And the fact that in the coming years the documents could be ‘potentially subject to further negotiations and changes’ does not qualify as an ongoing decision-making process in the sense of Article 4 (3) first subparagraph of Regulation 1049/2001. In fact, ‘potentially’ is by definition hypothetical, which contravenes established case law that the risk must be ‘reasonably foreseeable and not purely hypothetical.’ If this were to be the case, every document related to any EU line of work would immediately be subject to an ongoing decision-making process and fall under the exception laid out in Article 4 (3) of Regulation 1049/2001, since every piece of information contained in a document can eventually be subject to changes. This, however, is not the meaning of Article 4 (3) of Regulation 1049/2001, which is rather subject to the principle of widest possible access. In the same vein as commercial interests, it is also 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, taking into account public interest served by disclosure and whether the information requested relates to emissions in the environment. As previously stated, there are numerous ways transparency around JETP documents are in the public interest. The South Africa JETP is the most developed out of all the current JETPs, and will set a precedent for what loan agreements look like with numerous Global South countries moving forward. It is important to the public interest that documents related to EU financing of the South African JETP are publicly available. Even more so from the perspective of the Aarhus Convention if any of the documents include targets, calculations or projections related to emissions in the environment. 4. The EIB’s application of Art. 5.4 a., second and third bullet point EIB-TP (and 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. In its response letter, the EIB alleges that disclosure of some of the third-party documents held by the Bank could “at this stage, undermine the protection of the public interest as regards international relations and the financial and economic policy of the Republic of South Africa”. The EIB’s reliance upon the alleged risk posed to international relations and the financial and economic policy of South Africa as a result of disclosure of ‘some’ of these documents is misleading. Firstly, it is clear from the use of the word ‘some’ in the EIB’s response that this exception does not cover all the documents identified. This illustrates again the need for the EIB to provide a list of the identified documents so I am able to specify my request. As well as the need for the EIB to assist in identifying relevant documents and suggestions for which documents to request. Secondly, simply stating that releasing the documents in question would ‘undermine the protection of the public interest’ is vague and insufficient. EIB fails to explain why the contents of the documents would harm international relations and the financial and economic policy of South Africa. In accordance with the established case law of the CJEU, the EIB 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”. It is very important, particularly with information related to climate finance that will impact national economies and emissions for decades to come, that the EIB 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 doesn’t automatically mean there is any danger through disclosure, the EIB must be specific about what is at risk. 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. Alongside previously mentioned reasons why it is in the public interest, it is worth addressing that transparency around future climate plans 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, presuming of course that the plans are ‘just’, as the public will be able to participate more clearly - as is one of the goals of the Aarhus Convention. 5. The EIB’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. The EIB makes no mention of partial disclosure in its response. As such, a reconsideration of the initial refusal by the EIB should deliver at the very least partial - if not full - access to the identified documents. For these reasons, I consider that the EIB is legally obligated to provide a list of the identified documents and eventually, the requested documents themselves. Please do not hesitate to contact me in case you would have any doubts or questions with regards to this confirmatory application. Sincerely, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag

-----Original Message----- From: InfoDesk Sent: Tuesday 21 November 2023 09:31 To: '<<E-Mail-Adresse>>' <<Name und E-Mail-Adresse>> Subject: RE: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Ms. Jeliazkov, We refer to your confirmatory application of 01 November 2023, addressed to the European Investment Bank (EIB), the long-term financing institution of the European Union. We would like to inform you that your confirmatory application is still being handled by the EIB in accordance with the provisions of the EIB Group Transparency Policy (https://www.eib.org/en/publications/eib-group-transparency-policy-2021). Given the complexity of your request, and in line with Articles 5.23 and 5.24 of the EIB Group Transparency Policy, we have extended the time limit to respond. The Bank will endeavour to provide a reply to such complex requests no later than 30 working days following receipt. Many thanks for your understanding. Yours sincerely, Infodesk Team European Investment Bank <<E-Mail-Adresse>> _____________________________________ For more details concerning EIB procedures for handling information requests, please refer to the EIB Group "Transparency Policy": (https://www.eib.org/en/publications/eib-group-transparency-policy-2021). If you have any questions, do not hesitate to contact us. -----Original Message----- From: InfoDesk Sent: Thursday 02 November 2023 10:44 To: <<E-Mail-Adresse>> Subject: FW: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Ms. Jeliazkov, Thank you for your e-mail to the European Investment Bank (EIB), the long-term financing institution of the European Union. We hereby confirm receipt of your query, which is being handled in line with the provisions of the EIB Group Transparency Policy. We will revert to you as soon as possible. Many thanks for your understanding. Yours faithfully, Infodesk Team European Investment Bank <<E-Mail-Adresse>> _____________________________________ For more details concerning EIB procedures for handling information requests, please refer to the EIB Group "Transparency Policy": (https://www.eib.org/en/publications/eib-group-transparency-policy-2021 ). If you have any questions, do not hesitate to contact us. -----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Wednesday 01 November 2023 11:37 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] 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' (EIB ref: WO1101094). Please pass this on to the relevant person reviewing confirmatory applications. 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/en/request/request-for-documents-related-to-south-africa-s-just-energy-transition-partnership/ On 13 October 2023, the European Investment Bank (EIB) responded to my request refusing to disclose any documents. The refusal was two-part, in the first instance EIB felt that the request was too broad, and did not allow the Bank to clearly identify and process all the documents. Where the EIB felt that the process would ‘result in the Bank being subject to an excessive administrative burden’ under Art. 5.19 and Art. 5.21 of the EIB-TP. The EIB then clarified that it had ‘made an effort to identify certain documents which may be relevant for [the] request and assess them under the EIB-TP’, and that the aforementioned documents related to an EIB loan for South Africa's JETP could not be disclosed due to: - Undermining commercial interests under Art. 5.5, EIB-TP; - Undermining a decision-making process under Art. 5.7 of the EIB-TP, as well as the fact that the documents are covered by a confidentiality agreement; and - Undermining the protection of the public interest as it regards international relations and the financial and economic policy of the Republic of South Africa under Art. 5.4 a., second and third bullet point EIB-TP. For the purpose of this confirmatory application, it is important to reference that the Aarhus Convention extended Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access of environmental information to all EU institutions and bodies, of which EIB is one [see: https://environment.ec.europa.eu/law-and-governance/aarhus_en]. 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 EIB-TP, Regulation No. 1049/2001 and the Aarhus Convention as and when they are relevant. To this extent, I hereby argue: 1. The EIB has not upheld its duty in Art. 5.21 EIB-TP and Article 6(2) of Regulation 1049/2001 Article 5.21 of EIB TP states that, in the event of a large number of documents or complex information, the EIB may ‘confer with the applicant informally, with a view to finding a fair solution.’ Moreover, Article 6(2) of Regulation 1049/2001 states that, if the application is not sufficiently precise, the institution shall ‘assist the applicant’ in clarifying the application. In EIB’s response, it outlined how, should I ‘be interested in particular aspects of the initiative or specific documents, [I] may want to specify further [my] request.’ But it is not possible for me to further specify my request without more information on the documents available and the institution's assistance to determine what documents may contain the information I’m looking for. EIB also stated that it had ‘made an effort to identify certain documents’ which may be relevant to my request and then assessed them under the EIB-TP. My response to this is twofold: - If we are to find a ‘fair solution’ related to the amount of requested information, I will need to see the list of documents in order to understand how to specify my request; and - It is very difficult to argue with the EIB’s assessment of the documents under the EIB-TP when I do not know what the documents are or cover. If the EIB is to hold up its commitment to finding a fair solution, it must provide a list of the identified documents and - if it becomes relevant - assist me in clarifying which documents to request. The documents in question are not currently public, and so I do not know what is requestable. A list could consist of the documents EIB has identified, or a list of the types of documents that fall under the nature of my request - where I can then request the ones I find relevant. 2. The EIB’s application of Art. 5.5 EIB-TP is insufficiently particularised and inconsistent with Article 4(4) of the Aarhus Convention Article 5.5 EIB-TP states that “access to information/documents shall also be refused where disclosure would undermine the protection of commercial interests of a natural or legal person.” In its response, the EIB stated that, “documents that may be related to a potential EIB loan for the JETP cannot be disclosed at this stage as their disclosure would undermine the commercial interests of the parties concerned.” In the first instance, the EIB has failed to provide a list of the documents in question and has, in turn, failed to identify the specific commercial interests that would be jeopardised or provide specific rationale for how this would happen. It is the EIB’s duty to prove the commercial interest would be jeopardised, not the duty of the applicant to prove why they won’t be. This is especially true in a context where the EIB has not provided any description of the documents identified. Additionally, the Aarhus Convention states that a request for environmental information may be refused if the disclosure would adversely affect ‘the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest.’ However, and crucially in this context, Article 4(4) continues on to state that, ‘within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed’. Again, without the list of documents it is difficult for me to know which documents this applies to, but if any of the documents contain information about emissions they must be disclosed under the Aarhus Convention, even if they carry the risk of adversely affecting commercial interests. Moreover, the Aarhus Convention continues on to state that any grounds for refusal (including commercial interests) that don’t directly relate to emissions, shall be interpreted in a ‘restrictive way’, taking into account the public interest served by disclosure. The public interest in disclosing JETP documents is very high, given that decisions made regarding South Africa’s JETP will impact the climate and the future of the energy industry and economy of South Africa for decades to come. 3. The EIB’s application of Art. 5.7 of the EIB-TP (as well as Article 4 (3) first subparagraph of Regulation 1049/2001) is unlawful and contravenes established EU case law. Art. 5.7 of EIB-TP states that, ‘Access to information/documents, drawn up by the EIB for internal use or received by the EIB, which relate to a matter where the decision has not been taken by the relevant body of the EIB, shall be refused if disclosure of the document/information would seriously undermine the EIB’s decision-making process.’ In EIB’s response, it states that ‘Please note in particular that such documents are covered by a confidentiality agreement with the potential counterparty. Furthermore, many of those documents are currently in a draft form and are potentially subject to further negotiations and changes. They therefore constitute information drawn up for internal use or received by the EIB which relates to a matter where a decision has not been taken by the relevant body of the EIB and its disclosure would seriously undermine the EIB’s decision-making process.’ In the first instance, the fact that documents are confidential is not reason enough to deny access. Many documents that are not public are classified as confidential. If that were a reason to refuse access, EU institutions and bodies could simply classify every document as ‘confidential’, and there would be no recourse to access. If a document is deemed requestable under the relevant Regulations and the Aarhus Convention, the confidentiality status of the document must be changed. Additionally, the EIB argued that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’ but the documents in dispute do not relate to “a matter where the decision has not been taken”; they are in fact about an agreement, loan amount and investment plan that are already publicly available. The EIB states its involvement is at a ‘very initial stage’ and that ‘discussions regarding the EIB’s potential support to South Africa’s JETP are currently ongoing and a decision on the EIB’s concrete contribution has yet to be taken by the Bank’s governing bodies’. But in the article EIB linked in their response [see: https://www.uxolo.com/articles/7075/COP26-EIB-pledges-1bn-for-South-Africas-energy-transition] the amount of money and aims of the contribution are already clearly laid out. The article says that the JETP will ‘work to identify financing options for innovative technical developments and investments, including electric vehicles and green hydrogen, to help the creation of green jobs,’ which is surely pulled from documents with a more detailed description of priorities and financing options. Without a list of identified documents, it is difficult to be specific, but if some of the documents relate to the reasoning or details of objectives, terms, repayment details, aims and protection for communities as they relate to the committed financing announced by the EIB, then at least portions of those documents must be about decisions already made, otherwise it is unlikely EIB would have announced its contribution amount in the first place. And the fact that in the coming years the documents could be ‘potentially subject to further negotiations and changes’ does not qualify as an ongoing decision-making process in the sense of Article 4 (3) first subparagraph of Regulation 1049/2001. In fact, ‘potentially’ is by definition hypothetical, which contravenes established case law that the risk must be ‘reasonably foreseeable and not purely hypothetical.’ If this were to be the case, every document related to any EU line of work would immediately be subject to an ongoing decision-making process and fall under the exception laid out in Article 4 (3) of Regulation 1049/2001, since every piece of information contained in a document can eventually be subject to changes. This, however, is not the meaning of Article 4 (3) of Regulation 1049/2001, which is rather subject to the principle of widest possible access. In the same vein as commercial interests, it is also 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, taking into account public interest served by disclosure and whether the information requested relates to emissions in the environment. As previously stated, there are numerous ways transparency around JETP documents are in the public interest. The South Africa JETP is the most developed out of all the current JETPs, and will set a precedent for what loan agreements look like with numerous Global South countries moving forward. It is important to the public interest that documents related to EU financing of the South African JETP are publicly available. Even more so from the perspective of the Aarhus Convention if any of the documents include targets, calculations or projections related to emissions in the environment. 4. The EIB’s application of Art. 5.4 a., second and third bullet point EIB-TP (and 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. In its response letter, the EIB alleges that disclosure of some of the third-party documents held by the Bank could “at this stage, undermine the protection of the public interest as regards international relations and the financial and economic policy of the Republic of South Africa”. The EIB’s reliance upon the alleged risk posed to international relations and the financial and economic policy of South Africa as a result of disclosure of ‘some’ of these documents is misleading. Firstly, it is clear from the use of the word ‘some’ in the EIB’s response that this exception does not cover all the documents identified. This illustrates again the need for the EIB to provide a list of the identified documents so I am able to specify my request. As well as the need for the EIB to assist in identifying relevant documents and suggestions for which documents to request. Secondly, simply stating that releasing the documents in question would ‘undermine the protection of the public interest’ is vague and insufficient. EIB fails to explain why the contents of the documents would harm international relations and the financial and economic policy of South Africa. In accordance with the established case law of the CJEU, the EIB 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”. It is very important, particularly with information related to climate finance that will impact national economies and emissions for decades to come, that the EIB 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 doesn’t automatically mean there is any danger through disclosure, the EIB must be specific about what is at risk. 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. Alongside previously mentioned reasons why it is in the public interest, it is worth addressing that transparency around future climate plans 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, presuming of course that the plans are ‘just’, as the public will be able to participate more clearly - as is one of the goals of the Aarhus Convention. 5. The EIB’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. The EIB makes no mention of partial disclosure in its response. As such, a reconsideration of the initial refusal by the EIB should deliver at the very least partial - if not full - access to the identified documents. For these reasons, I consider that the EIB is legally obligated to provide a list of the identified documents and eventually, the requested documents themselves. Please do not hesitate to contact me in case you would have any doubts or questions with regards to this confirmatory application. Sincerely, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag

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-----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Monday 22 January 2024 12:43 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: RE: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Sir or Madam, I'm writing in reference to my confirmatory application of 01 November 2023. It has now been 82 since I submitted the application. Do you have an update on when I will be receiving a reply? Thank you for your help. Sincerely yours, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag

-- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag der Antragstellenden auf dem Internet-Portal veröffentlicht. Falls Sie Fragen dazu haben oder eine Idee, was für eine Anfrage bei Ihnen im Haus notwendig wäre, besuchen Sie: https://fragdenstaat.de/fuer-behoerden/

-----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Thursday 22 February 2024 17:14 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: RE: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Sir or Madam, I'm writing in reference to my confirmatory application of 01 November 2023. Thank you for the update on January 22. Since it has now been another month, I wanted to check in on the request's status. Do you have a timeframe where you expect a response to be ready? Thank you for your help. All the best, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag

-----Original Message----- From: << Adresse entfernt >> [#286839] <<Name und E-Mail-Adresse>> Sent: Thursday 22 February 2024 17:14 To: InfoDesk <<Name und E-Mail-Adresse>> Subject: Re: Confirmatory application in response to documents request WO1101094 / #286839 [#286839] Dear Sir or Madam, I'm writing in reference to my confirmatory application of 01 November 2023. Thank you for the update on January 22. Since it has now been another month, I wanted to check in on the request's status. Do you have a timeframe where you expect a response to be ready? Thank you for your help. All the best, << Adresse entfernt >> Request Number: 286839 Reply To: <<E-Mail-Adresse>> Upload large files for this request here: https://fragdenstaat.de/en/request/286839/upload/a7391dbfcdd55f12fbada361c22677cac20d01b8/ -- Rechtshinweis: Diese E-Mail wurde über den Webservice fragdenstaat.de versendet. Antworten werden ggf. im Auftrag