Document 15
Ref. Ares(2020)587318 - 30/01/2020
EUROPEAN COMMISSION
Brussels, 3.12.2018
C(2018) 8365 final
EU Observer
rue Montoyer 18B
1000 Brussels
Belgium
DECISION OF THE EUROPEAN 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 2018/2188
Dear
,
I refer to your email of 14 August 2018, registered on 17 August 2018, in which you
lodge a confirmatory application in accordance with Article 7(2) of Regulation
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter ‘Regulation 1049/2001’).
1.
SCOPE OF YOUR APPLICATION
In your initial application of 17 April 2018, addressed to the Directorate-General for
Internal Market, Industry, Entrepreneurship and SMEs and registered under reference
number GESTDEM 2018/2188, you requested access to ‘[a]ll documents – including but
not limited to emails, presentations, agendas, and minutes of meetings – related to the
As-If Programme Committee for Defence Research (E03524)’.
In its initial reply dated 24 July 2018, the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs informed you that it had identified 42 documents
as falling within the scope of your request. It granted wide partial access to 16
documents, subject to the sole redaction of personal data pursuant to Article 4(1)(b)
(protection of privacy and the integrity of the individual) of Regulation 1049/2001.
1
Official Journal L 345 of 29.12.2001, p. 94.
2
Official Journal L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Furthermore, it refused access to the remaining 26 documents on the basis of Article 4(3)
(protection of the decision-making process) and Article 4(1)(a), second indent (protection
of the public interest as regards defence and military matters) of Regulation 1049/2001.
In your confirmatory application, you request a review of this position.
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.
The European Commission has identified 29 documents as falling (partially) under the
scope of your confirmatory application. Indeed, three further documents have been
identified at confirmatory level. These documents are included as documents 27 – 29 in
the list of documents that is enclosed as an annex to this decision. Please note that, for
reasons of consistency, all the documents concerned have been given a new numbering at
confirmatory level.
Having examined your confirmatory application, I would like to inform you that:
- full access is granted to documents 5, 6, 7, 10, 13, 14, 16, 22, 23, 27 and 28, as
their content does not to fall under any of the exceptions to the right of access
provided in Article 4 of Regulation 1049/2001;
- wide partial access is granted to documents 1, 2, 3, 4, 8, 9, 11, 12, 15, 17, 18, 19,
20, 26 and 29, subject to the redaction of personal data only on the basis of the
exception of Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation 1049/2001;
- partial access is granted to document 21, pursuant to Article 4(3), first
subparagraph (protection of the decision-making process) of Regulation
1049/2001;
and
- partial access is granted to document 25, pursuant to Article 4(2), first indent
(protection of commercial interests of a natural or legal person) of Regulation
1049/2001.
Please find a copy of each of these documents enclosed to this decision.
Moreover, I have to confirm the initial decision of the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs to refuse access to document 24 pursuant
to Article 4(1)(a), second indent (protection of the public interest as regards defence and
military matters) of Regulation 1049/2001.
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Furthermore, I would like to inform you that document 26 has been identified as partially
falling within the scope of your request by the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs.
This document contains two very different elements.
First, document 26 contains an e-mail from a European Commission staff member to
Member States’ representatives concerning the meetings of the working group ‘System-
on-a-Chip’ under the As-If Programme Committee for Defence Research on 20
September 2017 and 2 October 2017. Wide partial access to the invitations to these
meetings was granted at initial level (documents 20 and 413) and full access is being
granted through this confirmatory decision to the draft agendas that were attached to
these invitations (documents 14 and 274). Moreover, document 26 contains the reply of a
representative of the United Kingdom, who is a member of the As-If Programme
Committee for Defence Research.
Second, document 26 contains a further email exchange between the European
Commission staff member and the representative of the United Kingdom. However, this
email exchange refers to matters that have no relation with the As-If Programme
Committee for Defence Research and thus the scope of your request5.
For these reasons, the parts not falling within the scope of your request have been
redacted in document 26.
2.1. Protection of privacy and the 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’.
In its judgment in the
Bavarian Lager case, the Court of Justice ruled that when a request
is made for access to documents containing personal data, Regulation (EC) No. 45/2001
(hereafter ‘Data Protection Regulation’) becomes fully applicable6
Article 2(a) of the Data Protection Regulation7 provides that personal data ‘shall mean
any information relating to an identified or identifiable person […]; an identifiable
person is one who can be identified, directly or indirectly, in particular by reference to an
3 Numbering at initial level.
4 Numbering at confirmatory level, as indicated in the attached list of documents.
5 This email exchange concerns indeed the appointment of evaluators for the evaluation of proposals
following the call for proposals ‘PADR-EDT-02-2018: European high-performance, trustable
(re)configurable system-on-a-chip or system-in-package for defence applications’, that does not fall
within the remit of the As-If Programme Committee for Defence Research.
6 Judgment of 29 June 2010,
Commission v Bavarian Lager, C-28/08P, EU:C:2010:378, paragraph 63.
7 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, Official Journal L 8 of 12 January
2001, page 1.
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identification number or to one or more factors specific to his or her physical,
physiological, mental, economic, cultural or social identity’. According to the Court of
Justice, there is no reason of principle to justify excluding activities of a professional
nature from the notion of private life.8
Documents 1, 2, 3, 4, 8, 9, 11, 12, 15, 17, 18, 19, 20, 26 and 29 contain personal data
such as the names and functions of persons who do not form part of the senior
management of the European Commission and national institutions as well as e-mail
addresses, office addresses and phone numbers. In addition, documents 3, 9 and 29
contain handwritten signatures.
The names9 of the persons concerned as well as other data from which their identity can
be deduced undoubtedly constitute personal data in the meaning of Article 2(a) of the
Data Protection Regulation.
It follows that public disclosure of the above-mentioned information would constitute
processing (transfer) of personal data within the meaning of Article 8(b) of Regulation
45/2001. 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 if both conditions are
fulfilled and the processing constitutes lawful processing in accordance with the
requirements of Article 5 of Regulation 45/2001, can the transfer of personal data occur.
In its 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.11
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 data.12
In your confirmatory request, you do not establish the necessity of having the data in
question transferred to you.
Furthermore, there are reasons to assume that the legitimate interests of the individuals
concerned would be prejudiced by disclosure of the personal data reflected in the
documents concerned, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
8 Judgment of 20 May 2003,
Rechnungshof v Österreichischer Rundfunk and Others, C-465/00,
C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
9 Judgment in
Commission v Bavarian Lager, cited above, EU:C:2010:378, paragraph 68.
10 Idem, paragraphs 77-78.
11 Judgment of 16 July 2015,
ClientEarth v EFSA, C-615/13P, EU:C:2015:489, paragraph 47.
12 Judgment of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250, paragraph 106.
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As to the handwritten signatures appearing in documents 3, 9 and 29, which constitute
biometric data, there is a risk that their disclosure would prejudice the legitimate interests
of the persons concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001,
access cannot be granted to the personal data that have been redacted from the documents
concerned, as the need to obtain access thereto 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.
2.2. Protection of the public interest as regards defence and military matters
Article 4(1)(a), second indent of Regulation 1049/2001 provides that [t]he institutions
shall refuse access to a document where disclosure would undermine the protection of
[…] the public interest as regards […] defence and military matters […].
Document 24 concerning critical defence technologies originates from the European
Defence Agency and has been provided to the European Commission as input for
discussions in the framework of the As-If-Committee for Defence Research.
I would like to stress that a part of this document does not fall within the scope of your
confirmatory application, as it refers to topics that had not been subject to the discussions
in the As-If Programme Committee for Defence Research or in one of its subgroups.
Indeed, the Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs has received this document from the European Defence Agency in a version where
the part concerned is redacted.
The part falling within the scope of your request contains background information on
specific defence technologies, their state of the art, current capabilities and challenges
and future needs.
The public disclosure of this part of document 24 would reveal sensitive information
forming part of the defence policy of the EU and its Member States and their possible
actions in this field. This, in turn, would undermine the protection of the public interest
as regards defence and military matters, as provided for in the second indent of Article
4(1)(a) of Regulation 1049/2001.
Indeed, the defence domain is particularly sensitive due to its very nature and its intrinsic
link with the security of EU Member States and the EU as a whole. This is particularly
true given the unstable international context and the fact that the EU faces a complex and
challenging environment in which new threats, such as hybrid and cyber-attacks, are
emerging, and more conventional challenges are returning.
Moreover, the defence domain is relatively recent in the EU context and requires the
exchange of sensitive information with Member States, which enables the European
Commission to prepare properly work on EU defence policy (translated, among other
things, into the work programme concerning the preparatory action on defence research).
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Having regard to the above, I consider that the use of the exception under Article 4(1)(a),
second indent (protection of the public interest as regards defence and military matters)
of Regulation 1049/2001 is justified concerning document 24 and that access thereto
must be refused on that basis.
2.3. Protection of the decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that ‘access to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
The redacted parts of document 21 contain information on the content of the discussions
on the first draft of the work programme 2019 concerning the preparatory action on
defence research, in particular on the content of future calls for proposals (point 3.3 of
the document concerned). This work programme has not been adopted, and the
information concerned relates to issues where no final decision has yet been taken. Its
public disclosure would provide insight into the ongoing discussions between the
European Commission and the Member States on the content and procedures linked to
the future calls for proposal to be included in this work programme. The public
disclosure of the parts concerned would seriously undermine the margin for manoeuvre
of the European Commission in exploring, in the framework of the ongoing discussions
with the Member States on the work programme, all possible options free from external
pressure. However, it is essential to prevent any external interference and pressure, as
such interference would jeopardise the efficiency and integrity of the decision-making
process with regard to future calls for proposals and could also have impacts on the
implementation of these calls at a later stage. In this instance, the European Commission
has to preserve a certain room for manoeuvre and ‘space to think’ in the framework of its
corresponding decision-making processes.
Against this background, I consider that the undisclosed parts of documents 21 need to
be protected against the risks associated with public disclosure under the exception
provided for under Article 4(3), first subparagraph of Regulation 1049/200113.
2.4. Protection of commercial interests, including intellectual property
Article 4(2), first indent of Regulation 1049/2001 provides 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’.
Document 25 contains the names of the consortia that have submitted their proposals in
response to the call for proposals entitled ‘Force protection and advanced soldier systems
13 Please note that the meeting in April 2018 as announced in document 21 did however not take place.
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beyond current programmes’14, launched by the European Defence Agency in
implementation of the work programme concerning the preparatory action on defence
research for the year 2017. Those proposals had to undergo a security scrutiny carried out
by the subgroup ‘Security Scrutiny’ under the As-If Programme Committee for Defence
Research.
The names of the three consortia the proposals of which were finally not selected for
funding have to be withheld on the basis of Article 4(2), first indent of Regulation
1049/2001, as their public disclosure could cause reputational damage to both the
organisations concerned and the individuals linked with them.
Indeed, public disclosure would adversely affect the competitive position of these
organisations on the market and, in turn, seriously undermine their commercial interests.
Therefore, I conclude that access to the relevant parts in document 25 has to be refused
on the basis of the exception laid down in the first indent of Article 4(2) of Regulation
1049/2001.
3.
PARTIAL ACCESS
As indicated above, partial access is granted to documents 1, 2, 3, 4, 8, 9, 11, 12, 15, 17,
18, 19, 20, 26 and 29, subject to the redaction of personal data only on the basis of the
exception of Article 4(1)(b) (protection of privacy and the integrity of the individual) and
to document 21 pursuant to Article 4(3), first subparagraph (protection of the decision-
making process) as well as to document 25 pursuant to Article 4(2), first indent
(protection of the commercial interests of a natural or legal person) of Regulation
1049/2001.
No meaningful partial access can be granted to document 24 without undermining the
interest protected as described in point 2.2.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(a), second indent and 4(1)(b) of Regulation 1049/2001 are
absolute exceptions which do not require the institution to balance them against a
possible public interest in disclosure.
The exceptions laid down in Article 4(2), first indent and Article 4(3), first subparagraph
of Regulation 1049/2001 must be waived if there is an overriding public interest in
disclosure. Such an interest must, firstly, be public and, secondly, outweigh the harm
caused by disclosure.
14 https://ec.europa.eu/research/participants/portal/desktop/en/opportunities/pppa/calls/padr-fpss-
2017.html#c,topics=callIdentifier/t/PADR-FPSS-2017/1/1/1/default-
group&callStatus/t/Forthcoming/1/1/0/default-group&callStatus/t/Open/1/1/0/default-
group&callStatus/t/Closed/1/1/0/default-group&+identifier/desc:.
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In your confirmatory request, you do not put forward any arguments that would point to
an overriding public interest. Based on the elements at my disposal, I have not been able
to establish the existence of such an overriding public interest either.
Consequently, I consider that in this case there is no overriding public interest that would
outweigh the interests protected by Article 4(2), first indent and Article 4(3), first
subparagraph of Regulation 1049/2001.
5.
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
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
For the European Commission
Martin SELMAYR
Secretary-General
Enclosures: (29 – list of documents and 28 documents)
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