EUROPEAN COMMISSION
Brussels, 13.12.2017
C(2017) 8845 final
Abdul HAI
119 Back Church Lane
London E1 1LT
United Kingdom
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 2017/5586
Dear Mr Hai,
I refer to your email registered on 8 November 2017, 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
On 26 September 2017 you submitted the following query to the Commission:
Can you publish the travel expenses for Martin Selmayr since he was appointed to his
current job with President Juncker?
Your query was considered as an application for access to documents containing the
above-mentioned information and attributed to the Office for the Administration and
Payment of Individual Entitlements (PMO) for handling and reply.
By letter of 19 October 2017, PMO informed you that the information requested is
included in the cost statements relating to the official assignments (business trips) of the
Head of Cabinet of the Commission President. It refused access to the above-mentioned
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
cost statements on the basis of the exception protecting privacy and the integrity of the
individual, provided for in Article 4(1)(b) of Regulation 1049/2001.
Through your confirmatory application, you request a review of the position of PMO.
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 concerned at the initial stage.
Following that review, I regret to inform you that I have to confirm the refusal of access
to the information included in the documents concerned (i.e. the cost statements). The
applicable exception is provided for in Article 4(1)(b) of Regulation 1049/2001
(protection of privacy and the integrity of the individual).
The detailed reasons are set out below.
2.1
Protection of the privacy and integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that [
The 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].
I note that in your confirmatory application, you argue that [you]
do not see it [i.e.
information requested]
as personal data, as [you are]
only asking for [the Head of
Cabinet of the Commission President’s]
travel expenses and nothing more. You also refer in your confirmatory application to information similar to that requested in
your application, which has been released by the Commission's Task Force for the
Preparation and Conduct of the Negotiations with the United Kingdom under Article 50
of the TEU (TF50), with regard to the Commission's Chief Negotiator3. Consequently, in
your view, the Commission should ensure the same level of transparency with regard to
the Head of Cabinet of the Commission President.
According to the definition provided for in Article 2(a) of Regulation 45/2001, personal
data is
any information relating to an identified or identifiable natural person (…); an
identifiable 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. Consequently, the
information requested, contrary to what you argue in your confirmatory application, by
its very nature constitutes personal data within the meaning quoted above. Indeed, it is
not possible to
anonymise that information, as the scope of your application is limited to
a concrete and clearly identified natural person.
3
Gestdem 2017/4904.
2
With regard to the travel expenditure of the Chief Negotiator, I would like to underline
that the information concerned was provided in the form of a general description
indicating the global cost of business trips and their number. Such information also
constitutes personal data within the meaning of the definition quoted above, as it relates
to a concrete individual (the Chief Negotiator).
Nonetheless, in that particular case, the Commission decided to disclose the information
concerned, given the political importance of the issues covered by the Chief Negotiator
and the engagements taken in that area, as well as taking into account his level of
seniority in the Commission's hierarchy. It needs to be underlined, however, that the
information was provided outside Regulation 1049/2001. Indeed, in its reply, TF50
explained that the request for access to information relating to the Chef Negotiator was
erroneously registered as an access-to-documents request under Regulation 1049/2001.
As far as your request forming the subject of this decision is concerned, as explained by
PMO in its initial reply, the information requested is included in the cost statements
relating to the official assignments (business trips) of the Head of Cabinet of the
Commission President. These cost statements contain information directly related to the
concrete individual (i.e. the Head of Cabinet of the Commission President) and therefore
constitute personal data.
Public disclosure of the above-mentioned personal data, through the release of the
documents (i.e. the cost statements) containing it, or through disclosure of a general
description (as in case of the request relating to the Chief Negotiator), would constitute
processing (transfer) of personal data within the meaning of Article 8(b) of Regulation
45/2001.
In accordance with the
Bavarian Lager ruling4, 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 cumulative5.
Only if both conditions are fulfilled and the transfer constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 45/2001, can the processing
(transfer) of personal data occur.
In that context, whoever requests such a transfer must first establish that it is necessary. If
it is demonstrated to be necessary, it is then for the Institution concerned to determine
4
Judgment of the Court (Grand Chamber) of 29 June 2010 in case C-28/08 P,
European Commission v
the Bavarian Lager Co. Ltd. (ECLI:EU:C:2010:378), paragraph 63
.
5 Ibid, paragraphs 77-78.
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that there is no reason to assume that that transfer might prejudice the legitimate interests
of the data subject6.
Indeed, in the recent judgment in the
ClientEarth case, the Court of Justice ruled that
“
whoever requests such a transfer must first establish that it is necessary. If it is
demonstrated to be necessary, it is then for the institution concerned to determine that
there is no reason to assume that that transfer might prejudice the legitimate interests of
the data subject. If there is no such reason, the transfer requested must be made,
whereas, if there is such a reason, the institution concerned must weigh the various
competing interests in order to decide on the request for access”7. I refer also to the
Strack case, where the Court of Justice ruled that the Institution does not have to examine
by itself the existence of a need for transferring personal data8.
The EU Court has also confirmed that a mere
interest of members of the public in
obtaining certain personal data cannot be equated with a
necessity to obtain the said data
in the meaning of Regulation 45/20019. Furthermore, according to the
Dennekamp
judgement, if the condition of necessity laid down by Article 8(b) of Regulation
No 45/2001, which is to be interpreted strictly, is to be fulfilled, it must be established
that the transfer of personal data is the most appropriate means for attaining the
applicant's objective, and that it is proportionate to that objective10.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing the personal data concerned.
In any case, I do not consider that the disclosure (outside Regulation 1049/2001) of
personal information regarding the Commission's Chief Negotiator may be regarded as
an argument justifying disclosure of the same information concerning Commission staff
members, such as the Head of Cabinet of the Commission President. The travel costs of
Commission staff members are regulated by Articles 11 - 13 of Annex VII to the Staff
Regulations11 and are subject to the audit and control procedures. Furthermore, the Head
of Cabinet is not a public office holder, but supports the Commission President in his
official duties.
Furthermore, I would like to underline that the College of the Commissioners adopted, in
its meeting on 12 September 2017, a draft decision amending the Code of Conduct for
Members of the European Commission. The draft envisages, amongst others, the
proactive publication of certain information relating to Commissioners' expenses. I
consider that through the above-mentioned initiative, the appropriate level of public
6 Ibid.
7
Judgment of the Court of Justice of 16 July 2015 in case C-615/13 P,
ClientEarth v EFSA,
(ECLI:EU:C:2015:219), paragraph 47.
8 Judgment of the Court of Justice of 2 October 2014 in case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 106.
9 Ibid, paragraphs 107 and 108.
10 Judgment of the General Court of 15 July 2015 in case T-115/13,
Dennekamp v European
Parliament, (ECLI:EU:T:2015:497), paragraph 77.
11 Staff Regulations of Officials and conditions of employment for other Servants of the EU.
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transparency with regard to the travel expenditure of Commission's top policy makers
will be ensured and public disclosure of the cost statements relating to the Head of
Cabinet of the Commission's President, would not add anything in this context.
In the light of the above, I have to conclude that the transfer of personal data through the
public disclosure of the personal data included in the relevant costs statements cannot be
considered as fulfilling the requirements of Regulation 45/2001. In consequence, 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.
3. PARTIAL ACCESS
No meaningful partial access to the cost statements concerned is possible, as the entirety
of the information falling under the scope of your application and included therein is
covered by the exception in Article 4(1)(b) of Regulation1049/2001.
4. NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation 1049/2001 is an absolute
exception, i.e. its applicability does not need to be balanced against any possible
overriding public interest in disclosure.
5. MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in 263 and 228 of the
Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
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