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Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation

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REPLY TO CONFIRMATORY APPLICATION 31/c/01/23
               made by email on 7 September 2023 and registered on 8 September 2023


Following this confirmatory application, the Council has considered the possibility to grant access
to the documents requested thereby, in accordance with Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May 2001 1 and Annex II to the Council’s Rules of
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Procedure 2, and has come to the following conclusion:
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1.   Further to the initial request for public access to thirteen working documents related to the
     export control of dual-use goods, on 3 and 25 August 2023 the General Secretariat of the
     Council (GSC):

     a.        released ten of the thirteen requested documents (WK 2685/2018 REV 2,
               WK 2685/2018 REV 3, WK 3710/2018, WK 5669/2018, WK 5675/2018,
               WK 5689/2018, WK 5753/18, WK 7360/2018, WK 7507/2018 and WK 8577/2018)
               in their entirety;
     b.        refused to grant access to two of the three remaining documents (WK 2690/2018,
               WK 4656/2018 and WK 5498/2018) as they contained information protected on the
               ground of Article 4(1)(a), second and third indent, of Regulation (EC) No. 1049/2001
               (risk of undermining public interest as regards defence and military matters and
               international relations).


2.   On 7 September 2023, the Applicant submitted a confirmatory application asking to review its
     position as regards the three abovementioned documents, arguing that:

     a.        the exception related to defence and military matters is not relevant, since the
               documents that have been refused “were not part of a military strategy meeting or
               alike”;




1    OJ L 145, 31.5.2001, p. 43.
2    Council Decision 2009/937/EU (OJ L 325, 11.12.2009, p. 35).

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b.    if the content of the three documents was of a sensitive nature, they should have been
           assigned a classified marking;
     c.    the Council did not take into consideration the possibility of granting partial access.

4.   The Council has re-assessed, in full consideration of the principle of transparency underlying
     Regulation (EC) No 1049/2001 and in the light of the Applicant’s comments, whether full or
     partial public access can be provided to the requested documents.

THE REQUESTED DOCUMENTS

5.   Document WK 2690/2023 contains a letter from Israel authorities to the European
     Commission DG TRADE requesting to engage in a dialogue concerning Export Controls.

6.   Document WK 4656/2018 contains comments from the French delegation on the European
     Commission’s proposal for a Regulation setting up a Union regime for control of exports,
     transfer, brokering, technical assistance and transit of Dual-Use items.

7.   Document WK 5498/2018 is an information note from the Finnish delegation to the Working
     Party on Dual-Use Goods containing an exchange of letters between the Ministry of Foreign
     Affairs and a third party concerning Export Licenses for Mobile Telecommunications
     Interception Equipment (5A001.f), with focus on IMSI catchers.


ASSESSMENT OF THE REQUESTED DOCUMENTS UNDER REGULATION (EC)
No 1049/2001

8.   As regards document WK 2690/2023, the Council considers that, having consulted the third
     country concerned in line with Article 4(4) of Regulation (EC) No. 1049/2001, the content of
     this working document cannot be disclosed, since its release to the public would cause
     prejudice to the future bilateral discourse between the EU and Israel, thus undermining the
     European Union’s relations with Israel and that third country’s political cooperation with
     other parties to which the information concerns.




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9.    In addition, it should be noted that document WK 2690/2023 was not issued, nor received by
      the Council in the context of a legislative procedure – for which the principle of transparency
      is particularly important – but in the context of the Union’s diplomatic relations with a third
      country. This falls in principle within the domain of the executive which entails a restricted
      level of public participation as well as limited public interest.

10.   The Council recalls that, in accordance with the established case-law of the Court of Justice,
      the public interest exceptions laid down in Article 4(1)(a) of Regulation (EC) No 1049/2001
      are subject to a particular regime as compared to the other exceptions included in Article 4.

11.   On the one hand, “in respect of the public interest exceptions provided for in Article 4(1)(a)”
      of Regulation (EC) No 1049/2001, the Council must be recognised as “enjoying a wide
      discretion for the purpose of determining whether disclosure of a document to the public
      would undermine the interests protected by that provision”. 3              2F




12.   On the other hand, once the Council has come to the conclusion that release would indeed
      undermine the public interest in this area, it has no choice but to refuse access, because "it is
      clear from the wording of Article 4(1)(a) of Regulation No 1049/2001 that, as regards the
      exceptions to the right of access provided for by that provision, refusal of access by the
      institution is mandatory where disclosure of a document to the public would undermine the
      interests which that provision protects, without the need, in such a case and in contrast to the
      provisions, in particular, of Article 4(2), to balance the requirements connected to the
      protection of those interests against those which stem from other interests". 4               3F




13.   Therefore, while the Council enjoys a wide discretion in assessing the impact of the release of
      documents focused on international relations, but it is barred from taking into account other
      legitimate interests that might override the conclusion that giving access to a document or
      parts of a document would harm the abovementioned protected interest.




3     Judgments of 11 July 2018, ClientEarth v Commission, T-644/16, EU:T:2018:429, paragraph 25, and of 27 November 2019,
      Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), T-31/18, EU:T:2019:815, paragraph 65.
4     Judgment of 1 February 2007, Sison v. Council, C-266/05 P, ECLI:EU:C:2007:75, paragraph 46; and similarly judgment of
      7 February 2018, Access Info Europe v Commission, T-851/16, ECLI:EU:T:2018:69, paragraph 38.

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14.   Besides, for the purpose of the assessment of a request for access to documents under
      Regulation (EC) No 1049/2001, it is not required to establish the existence of a definite risk of
      undermining the protection of the European Union’s international relations, but merely the
      existence of a reasonably foreseeable and not purely hypothetical risk 5 for which, as    4F




      previously recalled, the institution enjoys a margin of discretion.

15.   It also results from the above that the Council has no choice but to refuse access to a
      document that falls within the scope of the abovementioned exception, the public disclosure
      of which would undermine the public interests protected by them.

16.     In the light of its abovementioned consultations with Israel, and having carefully examined
        the content of document WK 2690/2023, the Council is of the opinion that its release to the
        public would cause prejudice (reasonably foreseeable and not purely hypothetical risk) to
the     public interest as regards international relations. 6         5F




17.   The Council has also examined the possibility of releasing parts of document
      WK 2690/2023 7,     6F         but as the information contained therein forms an inseparable whole,
      no partial disclosure can be granted. The arguments of the applicant regarding the GSC’s
      refusal to grant partial access to this document do not alter this conclusion. Indeed, the
      document contains a relatively short letter which includes several elements that                              cannot be
      disclosed – these sensitive elements make up for the quasi entirety of the letter, therefore, the
      document’s very structure negates the possibility of granting partial access. On this point, it is
      worth recalling that it is settled case-law that the institutions are entitled, under Article 4(6) of
      Regulation (EC) No 1049/2001, “to refuse partial access in cases where examination of the
      documents in question shows that partial access would be meaningless”. 8                       7F




5     Judgment of 25 November 2020, Bronckers v Commission, T-166/19, EU:T:2020:557, paragraph 60.
6     Article 4(1)(a), third indent of Regulation (EC) No 1049/2001.
7     Article 4(6) of Regulation (EC) No 1049/2001.
8     Judgment of the Court of first Instance of 12 July 2001 in case T-204/99, Mattila v Council and Commission,
      ECLI:EU:T:2001:190, paragraph 69.

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18.   Moreover, document WK 4656/2018 can be fully released in line with Article 11 of Annex II
      to the Council’s Rules of Procedures, since it was produced in the context of a legislative
      process that was concluded in 2020 and does not contain elements that, if disclosed at this
      stage, would seriously undermine the institution’s decision-making process.

19.   After consulting its author, the Council considers that document WK 5498/2018 can also be
      fully released.

20.   Finally, as regards the argument raised by the Applicant (see point 2b above), it suffices to
      recall that a document may be deemed to contain sensitive information without being
      necessarily classified. Indeed, the notions of sensitive information and of classified
      information are not identical, and it is perfectly legitimate for an institution to maintain the
      confidential nature of a sensitive information pursuant to certain legal obligations, such as the
      mandatory exceptions provided under Article 4(1)(a) of Regulation (EC) No 1049/2001, but
      also in relation to the potential harm or negative impact that could be generated by its
      unauthorized release to the public. Furthermore, it is clear from the jurisprudence of the Court
      on access to documents the notion of sensitive information is not limited to classified
      document.


CONCLUSION

21.    For the reasons set out above, the Council concludes that:

      a.    public access to document WK 2690/2023 must be refused in its entirety on the ground
            of Article 4(1)(a), third indent of Regulation (EC) No 1049/2001;

      b.    documents WK 4656/2018 and WK 5498/2018 can be fully released to the Applicant at
            this stage.




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