Ref. Ares(2019)5393614 - 26/08/2019
EUROPEAN COMMISSION
Directorate-General for Communications Networks, Content and Technology
Director General
Brussels, 26th August 2019
CONNECT/R4
Mr. Alexander Fanta
Netz.politik.org
Rue de la Loi 155
1000 Brussels
Belgium
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GestDem 2019/4113
Dear Mr. Fanta,
We refer to your access to documents application submitted under Article 2(1) of
Regulation 1049/2001 on public access to documents (hereinafter, ‘Regulation 1049/2001’)
received on 16/07/2019 and registered on the same date under the above mentioned
reference number. We also refer to our holding reply dated 06/08/2019, our reference
Ares(2019)5106442, whereby we informed you that the time-limit for handling your
application was extended by 15 working days pursuant to Article 7(3) of Regulation
1049/2001.
1. SCOPE OF YOUR APPLICATION
By means of your application you requested access to the following documents:
“
…[i]nvitations to Commission officials and all other documents relating to an event
called “Internet of Things: fast forward to the future” organized by Vodafone on April
29 in Brussels”
2. DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
We have identified 21 documents as falling within the scope of your application:
1. Email: ‘Keynote speaking invitation’ from Nove dated 13 March 2019;
2. Email: ‘Keynote speaking invitation’ from Nove dated 13 March 2019;
3. Vodafone Presentation: ‘A new European policy approach to IoT’ of March 2019;
4. Email: ‘Follow-up to a meeting’, from Nove on 5 April 2019;
5. Attachment 1 to document 4: ‘Vodafone IoT Barometer 2018 final report’;
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
6. Attachment 2 to document 4: ‘Vodafone Business 2019 IoT Barometer Main
Report’;
7. Attachment 3 to document 4: ‘Analysys Mason Report for Vodafone on 5G and
Net neutrality v4’;
8. Attachment 4 to document 4: ‘Hogan-Lovells - A comparison of IoT regulatory
uncertainty in the EU, China and the United States’;
9. Email: ‘Invitation to Vodafone’s IoT Conference’ from Nove dated 11 April
2019;
10. Attachment 1 to document 9: ‘Vodafone IoT Conference – Agenda 29th April’;
11. Attachment 2 to document 9: ‘Future EU IoT policy framework April 2019’;
12. Email: ‘Invitation – Internet of Things: fast forward to the future – More speakers
confirmed’ from Vodafone dated 10 April 2019;
13. Email: ‘Follow-up to our meeting’ from Nove dated 15 April 2019;
14. Attachment to document 13: ‘Vodafone IoT Barometer follow-up – the European
story – Final (9th April)’;
15. Email: ‘Vodafone IoT event – April 29’ from Nove dated 15 April 20191;
16. Attachment 2 to document 15: ‘Realising the potential of IoT data – report for
Vodafone-min’;
17. Email: ‘Vodafone – EU Future IoT Framework event – Useful Information for
POD’ from Nove dated 25 April 2019;
18. Attachment to document 17: ‘Vodafone IoT Conference: Useful information’;
19. Internal briefing prepared for Vodafone IoT event of 29 April 2019;
20. Back to office report prepared following the Vodafone IoT event of 29 April
2019;
21. Email: ‘Internet of Things: Fast Forward to the Future’ from Vodafone dated 1
May 2019.
3. ASSESSMENT UNDER REGULATION 1049/2001
Having examined the documents falling within the scope of your request under the
provisions of Regulation 1049/2001, we have arrived at the conclusion that
full disclosure can be given for
3 documents and that partial disclosure can be given for
eighteen
documents on the basis of applicable exceptions under Article 4 of Regulation 1049/2001.
A) Full disclosure:
Documents 8,
14 and
16 are fully disclosed.
Please note that these documents
originate from a third party. They are disclosed for
information only and cannot be re-used without the agreement of the originator, who holds a
copyright on them. They do not reflect the position of the Commission and cannot be
quoted as such.
B) Partial disclosure:
(i)
Protection of personal data
1 This email has three attachments. Attachment 1 is the same document enclosed for document 8 and
Attachment 3 is the same document enclosed for document 14.
2
Some documents for which you have requested access contain personal data, in particular
names, functions, contact details and signatures.
Pursuant to Article 4(1)(b) of Regulation 1049/2001, access to a document has to be refused
if its 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. The applicable legislation in this field is Regulation (EU) 2018/1725 of
the European Parliament and of the Council of 23 October 2018 on the protection of
natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing
Regulation (EC) No 45/2001 and Decision No 1247/2002/EC2 (hereinafter, ‘Regulation
2018/1725’).
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data “
means any
information relating to an identified or identifiable natural person […]”. The Court of
Justice has specified that
any information, which by reason of its content, purpose or effect,
is linked to a particular person is to be considered as personal data.3 Please note in this
respect that the names, signatures, functions, telephone numbers and/or initials pertaining to
staff
numbers
of
an
institution
are
to
be
considered
personal
data4.
Pursuant to Article 9(1)(b) of Regulation 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies if
“[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests”. Only if these conditions are
fulfilled and the processing constitutes lawful processing in accordance with the
requirements of Article 5 of Regulation 2018/1725, can the transmission of personal data
occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have the
data transmitted for a specific purpose in the public interest. It is only in this case that the
European Commission has to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced and, in the affirmative, establish the
proportionality of the transmission of the personal data for that specific purpose after having
demonstrably weighed the various competing interests.
In your request, you do not put forward any arguments to establish the necessity to have the
data transmitted for a specific purpose in the public interest. Therefore, the European
Commission does not have to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced.
2 Official Journal L 205 of 21.11.2018, p. 39.
3 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994. 4 Judgment of the General Court of 19 September 2018 in cas
e T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
3
Notwithstanding the above, please note that there are reasons to assume that the legitimate
interests of the data subjects concerned would be prejudiced by disclosure of the personal
data reflected in the document, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
Consequently, we conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001,
access cannot be granted to the personal data, as the need to obtain access thereto for a
purpose in the public interest has not been substantiated and there is no reason to think that
the legitimate interests of the individuals concerned would not be prejudiced by disclosure
of the personal data concerned. As to the signatures, which are biometric data, there is a risk
that their disclosure would prejudice the legitimate interests of the persons concerned. In
light of the foregoing, we are disclosing a version of the document requested in which this
data has been redacted and marked as personal data.
In light of this exception we are disclosing a version of
documents 1-7,
9-13,
15 and
17-21 in which this data has been redacted and marked as personal data.
With regard to
document 19, further redactions are made in view of another applicable
exception which will be explained hereunder. Also,
documents 2,
4,
12 and
13 contain
some parts which fall outside the scope of your application and therefore we are disclosing a
version of these documents in which this data has been redacted and marked as out of scope.
Please note that
documents 1-7,
9-13,
15,
17,
18 and
21 originate from a third party. They
are disclosed for information only and cannot be re-used without the agreement of the
originator, who holds a copyright on them. They do not reflect the position of the
Commission and cannot be quoted as such.
Document 19 is a document produced by the Commission. You may reuse the document
requested free of charge for non-commercial and commercial purposes provided that the
source is acknowledged, that you do not distort the original meaning or message of the
document. Please note that the Commission does not assume liability stemming from the
reuse.
(ii)
Protection of commercial interests
Article 4(2), first indent of Regulation 1049/2001 stipulates that “[t
]he institutions shall
refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property, […]
unless there is an overriding public interest in disclosure.”
This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which requires staff members of the EU institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
Following an examination of
Document 19, we have come to the conclusion that this
contains commercially sensitive information of Vodafone which is protected by the
aforementioned exception under Article 4(2), first indent of Regulation 1049/2001. In
particular, this information relates to statistics belonging to Vodafone concerning ‘internet
of things’ which are not publically available. We consider that there is a real and non-
hypothetical risk that public access to this part of the document would undermine the
commercial interests of the third party concerned.
4
We are therefore disclosing a version of
document 19 in which this data has been redacted
and marked as commercially sensitive information.
The exceptions laid down under Article 4(2) of Regulation 1049/2001 apply unless there is
an overriding public interest in disclosure of the documents. Such an interest must, firstly,
be a public interest and, secondly outweigh the harm caused by disclosure. We have
examined whether there could be an overriding public interest in disclosure but we have not
been able to identify such an interest.
4. POSSIBILITY OF CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review the above positions.
Such a confirmatory application should be addressed within 15 working days upon receipt
of this letter to the Secretary-General of the Commission at the following address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
(e-signed)
Roberto Viola
Enclosures: 21
5
Electronically signed on 23/08/2019 17:27 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563