ΣΥΜΒΟΥΛΙΟ ΤΗΣ ΕΥΡΩΠΑΪΚΗΣ ΕΝΩΣΗΣ. Βρυξέλλες, 26 Οκτωβρίου 2010 (27.10) (OR. en) 14488/10 INF 133 API 81 JUR 420

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1 ΣΥΜΒΟΥΛΙΟ ΤΗΣ ΕΥΡΩΠΑΪΚΗΣ ΕΝΩΣΗΣ Βρυξέλλες, 26 Οκτωβρίου 2010 (27.10) (OR. en) 14488/10 INF 133 API 81 JUR 420 ΣΗΜΕΙΩΜΑ ΣΗΜΕΙΟΥ «I/A» της : Ομάδας εργασίας «Πληροφόρηση» προς : την ΕΜΑ (2ο τμήμα)/το Συμβούλιο αριθ. προηγ. εγγρ. : 14487/10 Θέμα : Πρόσβαση του κοινού σε έγγραφα - Επιβεβαιωτική αίτηση αριθ. 22/c/02/10 Επισυνάπτεται για τις αντιπροσωπίες σχέδιο απάντησης του Συμβουλίου στην επιβεβαιωτική αίτηση αριθ. 22/c/02/10, όπως προέκυψε από την εξέταση στην οποία προέβη η Ομάδα εργασίας «Πληροφόρηση» κατά τη συνεδρίασή της στις 19 Οκτωβρίου Η Επιτροπή των Μόνιμων Αντιπροσώπων καλείται επομένως να εισηγηθεί στο Συμβούλιο, να σημειώσει τη συμφωνία του για το συνημμένο σχέδιο απάντησης στα σημεία «Α», στην προσεχή σύνοδό του.. Το παράρτημα είναι διαθέσιμο μόνο στην αγγλική /10 ΑΓΚ/γομ 1 DG F2A EL

2 ΠΑΡΑΡΤΗΜΑ DRAFT REPLY ADOPTED BY THE COUNCIL ON... TO CONFIRMATORY APPLICATION No 22/c/02/10, made by on 4 October 2010, pursuant to Article 7(2) of Regulation (EC) No 1049/2001, for public access to documents 10379/10, 11295/10 and 12408/10 The Council has considered this confirmatory application under Regulation (EC) No 1049/2001 (OJ L 145 of , p. 43) and Annex II to the Council s Rules of Procedure (Council Decision 2009/937/EU, Official Journal L 325, , p. 35) and has come to the following conclusion: 1. The applicant refers to documents 10379/10, 11295/10 and 12408/10, all of which concern a recommendation from the Commission to the Council to authorise the opening of negotiations for an agreement between the European Union and the United States of America on protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters. 2. In its reply dated 27 September 2010, the General Secretariat granted the applicant access to the partially declassified versions of the above-mentioned documents. The applicant was thus granted access to documents 10379/10 EXT 1, 11295/10 EXT 1 and 12408/10 EXT 1. Public access to those parts of the documents which were not declassified was refused pursuant to the third indent of Article 4(1)(a) (protection of the public interest with regard to international relations) and to the first subparagraph of Article 4(3) (protection of the decision-making process of the Council) of Regulation 1049/2001 on public access to documents. 3. In the confirmatory request made on 4 October 2010, the applicant claims that no additional danger of interfering with the future negotiation exists, as the recommendation from the Commission has already been published on the internet. Furthermore, the applicant considers that the exemption used does not apply to negotiations that have not even been started /10 ΑΓΚ/γομ 2

3 4. The Council has examined the above-mentioned documents in the light of the applicant s arguments and has come to the following conclusion: 5. In order to improve mutual knowledge of the rules on personal data protection and privacy in the context of transatlantic police and judicial cooperation in criminal matters, an EU-US expert group called the High-Level Contact Group on Information-Sharing and Privacy and Personal Data Protection (HLCG) was established by the EU-US Justice and Home Affairs Ministerial Troika on 6 November This group presented a final report on 28 May 2008 followed by an addendum on 28 October These reports identified a set of core privacy and data protection principles along with related issues pertinent to the EU-US relationship. 6. In the Stockholm Programme the European Council invited the Commission to propose a "recommendation for the negotiation of a data protection and, where necessary, data-sharing agreement for law enforcement purposes with the US, building on the work carried out by the EU-US High-Level Contact Group on data protection". The European Parliament has, in turn, called for an EU-US agreement ensuring adequate protection of civil liberties and personal data. On 28 May 2010, the Commission submitted a recommendation for the opening of negotiations of an EU-US data protection agreement to the Council. 7. Documents 11295/10 and 12408/10 discuss in detail the contents of the draft negotiating directives in the future negotiations with the US. Document 10379/10 contains the opinion of the European Data Protection Supervisor on the proposal, examining the draft negotiating directives in question. 8. The Council considers that, given the sensitive content of documents 10379/10, 11295/10 and 12408/10, full release to the public of the documents would reveal the EU s strategic objectives to be achieved in the forthcoming negotiations with the US and would thereby enable the latter to assess the measure of the EU s willingness to compromise. It also needs to be pointed out that preparatory documents discussing the EU s negotiating directives in international negotiations such as those in question contain information relating to the EU s approach to the negotiations which is not shared with the EU's negotiating partners. In the 14488/10 ΑΓΚ/γομ 3

4 case at hand, public access to the requested documents would reveal to anyone, including to the EU's negotiating partners, information regarding aims which the EU seeks to attain in the negotiations. Releasing this information to the public would weaken the EU s negotiating position and would also damage the climate of confidence in the negotiations. This might, in turn, harm the EU s capacity to draw the negotiations to a successful conclusion. 9. Regarding the applicant's argument that the recommendation by the Commission to which the requested documents relate has already been disclosed on the internet, the Council would point out that this consideration does not constitute a sufficient ground to conclude that the Commission's recommendation was officially released by the Council or by the Commission. In fact, the document mentioned by the applicant has not been released to the public in application of Regulation 1049/2001 by those institutions. Accordingly, the Council's decision-making process for processing applications for public access to documents, as provided for in Articles 7 and following of Regulation 1049/2001 and in Annex II to the Council s Rules of Procedure, could not be prejudiced by any unauthorised disclosure of the content of such documents. 10. The Council cannot share the applicant's interpretation of Article 4(1)(a), third indent of Regulation 1049/2001 according to which the exception relating to the protection of international relations does not apply to cases where the negotiations have not even started. To hold such a view would have the effect of removing the effet utile of the exception under Article 4(1)(a), third indent of the Regulation. 11. For the above-mentioned reasons, the Council concluded that full public access to documents 10379/10, 11295/10 and 12408/10 has to be refused pursuant to Article 4(1)(a), third indent, of Regulation 1049/2001 (protection of the public interest with regard to international relations) /10 ΑΓΚ/γομ 4

5 12. The Council has also examined, pursuant to Article 4(6) of the Regulation 1049/2001, the possibility of granting extended partial access to the documents under scrutiny. It has decided that, over and beyond the parts that have been released to the public in reply to the applicant's initial request, partial access may be given to the following additional parts of documents 11295/10 and 12408/10 which are not covered by any exception under the Regulation: - document 11295/10: third paragraph on page 3 ("Questions submitted to CATS"); and - document 12408/10: first paragraph on page 3 ("Conclusion of JAIEX meeting on 02 July 2010"). Partially declassified versions of documents 11295/10 and 12408/10 which include the additional parts listed above are set out in documents 11295/10 EXT 2 and 12408/10 EXT 2. As regards document 10379/10 of which certain parts were released following the applicant's initial application, no further access can be granted. On the basis of its examination of document 10379/10, the Council has concluded that the yet non-disclosed parts of this document remain fully covered by the above-mentioned exception /10 ΑΓΚ/γομ 5