EUROPEAN COMMISSION
Brussels, 28.4.2016
C(2016) 2730 final
Mr Olivier Hoedeman
Corporate Europe Observatory
Rue d'Edimbourg 26
Bruxelles
1050
Belgique
Copy by email:
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DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2016/348
Dear Mr Hoedeman,
I refer to your e-mail of 21 March 2016, registered on 22 March 2016, in which you
submit a confirmatory application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 ('Regulation 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 27 January 2016, you requested access to:
1.
minutes and other reports of meetings between European Commission officials
and representatives of Volkswagen, Renault, Volvo, Fiat, Ford, ACEA and other
car companies and car industry lobby groups, in which CARS21 and/or Better
Regulation was discussed (between January 2004 and June 2006 as well as
between January 2010 and December 2012);
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail: xxxxxxxxxx@xx.xxxxxx.xx
2.
all correspondence (including emails) between European Commission officials
and representatives of Volkswagen, Renault, Volvo, Fiat, Ford, ACEA and other
car companies and car industry lobby groups, in which CARS21 and/or Better
Regulation was discussed (between January 2004 and June 2006 as well as
between January 2010 and December 2012).
In its initial reply of 9 March 2016, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs (DG GROW):
− granted wide partial access to six documents falling under part 2 of your request,
subject only to the redaction of personal data, based on the exception of Article
4(1)(b) (protection of the privacy and the integrity of the individual) of
Regulation 1049/2001;
− did not identify any document as falling under part 1 of your request.
DG GROW based its initial reply on the following interpretation of the scope of your
request:
− as regards part 1, it
understood 'European Commission officials' to exclude the
Commissioner for DG Enterprise and Industry;
− as regards part 2, it
understood 'meetings between European Commission officials
and representatives of' to mean 'bilateral meetings'.
Through your confirmatory application you request a review of this position. In
particular, you contest:
− the redaction of
names of both Commission officials and car industry
representatives, as [t]
he disclosure of the names is necessary in order to assess
whether these Commission officials and car industry representatives since went
through the revolving door into roles that might involve conflicts of interest;
− the interpretation
of 'European Commission officials' as excluding the
Commissioner for DG Enterprise and Industry, as
it is common sense to include
everyone in the Commission in the category 'European Commission officials';
− the interpretation of
'meetings between European Commission officials and
representatives of' as
bilateral meetings, as [t]
here is nothing in [the applicant's
initial]
request that indicates that it should not cover meetings with several or
many car companies and lobby groups present.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General or service concerned at the initial stage.
Following this review, I am pleased to inform you that limited wider partial access is
granted to documents nr. 1 – 43, including the
name of a (high-level)
car industry
3 The numbering of documents was taken over from the list of documents of the initial reply.
2
representative4 requested by you. None of the exceptions of Article 4 of Regulation
1049/2001 is applicable to these parts of the documents. Please find a copy of the four
documents attached.
As regards documents 5 and 6, and the refused parts of documents nr. 1 – 4, I regret to
inform you that the decision taken by DG GROW at the initial level has to be confirmed,
for the reasons set out below.
Regarding the two interpretations made by DG GROW of the scope of your initial
application, and following your specifications in your confirmatory application, please
note that:
− your inclusion of the Member of the Commission responsible for Internal Market,
Industry, Entrepreneurship and SMEs, in the scope of part 1 of your request was
registered as a new initial application5 and is being dealt with by DG GROW.
Indeed, the term 'European Commission officials' does not cover Members of the
Commission, in accordance with the Staff Regulations;
− as regards part 2 of your request, the reply of DG GROW indeed covered
meetings with several or many car companies and lobby groups present, as
specified by your confirmatory application. Solely the meetings of the CARS 216
Sherpa and Working Groups were excluded from the scope, as these were formal
high-level group meetings attended by a variety of different authorities and
representatives, including from the European Parliament, Member States, car
companies, trade unions, NGO’s, users.7
Consequently, this decision relates to the refused parts of documents nr. 1 – 6, based on
the exception of Article 4(1)(b) (protection of the privacy and the integrity of the
individual) of Regulation 1049/2001.
Article 4(1)(b) of Regulation 1049/2001 provides that [t]
he institutions shall refuse
access to a document where disclosure would undermine the protection of […]
privacy
and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data.
Documents nr. 1 – 6 contain names and initials of Commission officials (not forming part
of senior management), as well as names, positions, signatures, telephone and fax
numbers of third-party representatives. These data constitute personal data within the
meaning of Article 2(a) of Regulation 45/20018, which defines personal data as
any
information relating to an identified or identifiable natural person […]
; an identifiable
4 Name of main representative of an external entity.
5 Registered under number GESTDEM 2016/348.
6 High level group for a Competitive Automotive Regulatory System for the 21st Century. For more
inform
ation please see: http://europa.eu/rapid/press-release_SPEECH-05-11_en.htm and Official
Journal C 280, 16.10.2010, p. 32–34.
7 Should you be interested in receiving access to their meeting documents, please let us know and your
request will be handled by DG GROW at the initial stage.
8 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on
the protection of individuals with regard to the processing of personal data by the Community
institutions and bodies and on the free movement of such data.
3
person is one who can be identified, directly or indirectly, in particular by reference to
an identification number or to one or more factors specific to his or her physical,
physiological, mental, economic, cultural or social identity.
In consequence, the public disclosure of this data in the requested documents would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
In accordance with the
Bavarian Lager ruling9, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
According to Article 8(b) of that Regulation, personal data shall only be transferred to
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced. Those two conditions are cumulative.10 Only fulfilment of both conditions
enables one to consider the processing (transfer) of personal data as compliant with the
requirement of lawfulness provided for in Article 5 of Regulation 45/2001.
I would also like to bring to your attention the recent judgment in the
ClientEarth case,
where the Court of Justice ruled that the Institution does not have to examine
ex officio the existence of a need for transferring personal data11. In the same ruling, the Court
stated that if the applicant has not established a need, the institution does not have to
examine the absence of prejudice to the person's legitimate interests12.
In your confirmatory application you argue that [t]
he disclosure of the names is
necessary in order to assess whether these Commission officials and car industry
representatives since went through the revolving door into roles that might involve
conflicts of interest.
Please note that with regard to Commission staff members, a sound framework has been
established within the Commission to prevent any conflict of interests arising at any time
during their employment13. Likewise, there are clear rules to be followed in case a
Commission staff member leaves the service and plans to engage in a new occupational
activity within two years of leaving14. I consider that sufficient rules are in place to
prevent conflicts of interests during and after the service of Commission staff members.
Furthermore, I note that you do not provide any specific reasons which would underpin
any possible suspicion of the existence of conflict of interests regarding the individuals
9
Judgment of the Court (Grand Chamber) of 29 June 2010,
European Commission v the Bavarian
Lager Co. Ltd.
10 Judgment of the Court (Grand Chamber) of 29 June 2010,
European Commission v the Bavarian
Lager Co. Ltd., paragraphs 77-78.
11 Case C-615/13P, Judgment of the Court of Justice 16 July 2015
ClientEarth v EFSA, paragraph 47.
12 Ibid.
, paragraphs 47-48.
13 For example, these rules foresee already at recruitment an assessment of the existence or not of a
conflict of interests. Please find further information on relevant rules and standards of the Commission
on the following webs
ite: http://ec.europa.eu/civil_service/admin/ethic/index_en.htm#3.
14 E.g., if that activity is related to the work carried out during the last three years of service and might
conflict with the legitimate interests of the Commission, the Commission can refuse permission to
engage in that activity, or allow it subject to a number of conditions, Ibid.
4
mentioned in the requested documents. Instead, you merely refer to the necessity of the
names of the individuals being disclosed in order to make an assessment of the existence
of conflict of interests. An argument of such a general nature, without further
specifications, could virtually be brought forward in any situation where the names of
individuals are withheld following a request for access-to-documents.
Based on the above, I consider that you do not provide the required
express and
legitimate justifications or convincing arguments for the necessity of the data transfer.15
Therefore, I have to conclude that the transfer of personal data through the disclosure of
the requested documents cannot be considered as fulfilling the requirement of lawfulness
provided for in Article 5 of Regulation 45/2001. Consequently, the use of the exception
under Article 4(1)(b) of Regulation 1049/2001 is justified, as there is no need to publicly
disclose the personal data included therein and it cannot be assumed that the legitimate
rights of the data subjects concerned would not be prejudiced by such disclosure.
Please note also that Article 4(1)(b) of Regulation 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
3.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting further partial access to the documents requested. However, for the
reasons explained above, no meaningful further partial access is possible without
undermining the interests described above.
Consequently, I have come to the conclusion that the withheld parts are covered in their
entirety by the invoked exception to the right of public access.
4.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
15 Judgment of the Court (Grand Chamber) of 29 June 2010,
European Commission v the Bavarian
Lager Co. Ltd., paragraph 78.
5
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the Functioning of the European
Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
Enclosures (4):
− Document 1: From JAMA to Mr Reichenbach (Ref. A-4744);
− Document 2: From ACEA to Ms Lalis (Ref. A-8650);
− Document 3: From JAMA to Mr Zourek (Ref. A-6375);
− Document 4: From Anfac to Mr Calleja (Ref. Ares(2012)1005839).
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Document Outline