Gestdem 1586 reply letter vA4 03 06 2020 E 1 clean.pdf

Ref. Ares(2020)3785397 - 17/07/2020

EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MOBILITY AND TRANSPORT

   The Director-General


Brussels,
MOVE

By e-mail:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx

Subject:
Your application for access to documents – Ref GestDem No 1586

Dear Ms. Holder,

We refer to your request dated 13 March 2020 in which you make a request for access to documents,
registered on 18/03/2020 under the above-mentioned reference number.

In particular, you request access to: “All documentation, including but not limited to attendance lists,
agendas,  background  papers,  minutes/notes  and  email  correspondence  about  or  summarising,  the
following meetings:
1.  Between  International  Air  Transport  (IATA)  and  Commissioner  Adina-Iona  Valean  on
16/03/2020.
2.  BetweenAirlines  International  Representation in  Europe  (AIRE)    and  Commissioner  Adina-
Iona Valean on 04/02/2020.
3. Between Airlines for Europe (WEF) and Commissioner Adina-Iona Valean on 10/12/2019 on
the subject of Aviation”.

In our holding reply, dated 07/04/2020, we asked an extension of time to reply to your request since
defined documents are held by different Commission services, who must have been consulted.  Also in
our  letter,  dated  05/05/2020,  we  explained  that  under  these  extraordinary  circumstances  related  to
COVID’19  crisis  management  in  the  Commission  services,  the  handling  of  your  request  will  be
delayed.

Having examined your application, please find enclosed documents corresponding to your request.
Having  examined  the  documents  requested  under  the  provisions  of  Regulation  (EC)  No  1049/2001
regarding  public  access  to  European  Parliament,  Council  and  Commission  documents1  (hereinafter
‘Regulation (EC) No 1049/2001’), I have come to the conclusion that they may be partially disclosed.
Some parts of the documents have been blanked out as their disclosure is prevented by exception to
the right of access laid down in Article 4 of this Regulation.
First,  pursuant  to  Article  4(1)(b)  of  Regulation  (EC)  No  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 European Union legislation regarding the protection of personal data.

1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents, OJ L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

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  (‘Regulation
2018/1725’).
Some  of  the  documents  to  which  you  request  access  contain  personal  data,  in  particular  the  names,
signatures,  functions,  telephone  numbers  and/or  initials  pertaining  to  staff  members  of  an  institution
are to be considered personal data3.
In particular, 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 data4.
In its judgment in Case C-28/08 P (Bavarian Lager)5, the Court of Justice ruled that when a request is
made for access to documents containing personal data, the Data Protection Regulation becomes fully
applicable6.
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.
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
documents,  as  there  is  a  real  and  non-hypothetical  risk  that  such  public  disclosure  would  harm  their
privacy and subject them to unsolicited external contacts.

2 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/EC,  OC  L  205  of
21.11.2018, p. 39.
3 Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission, paragraphs 43-44,
ECLI:EU:T:2018:560.
4  Judgment  of  the  Court  of  Justice  of  the  European  Union  of  20  December  2017  in  Case  C-434/16,  Peter  Nowak  v  Data
Protection Commissioner, ECLI:EU:C:2017:994, paragraphs 33-35.
5  Judgment  of  29  June  2010  in  Case  C-28/08 P,  European  Commission  v  The  Bavarian  Lager  Co.  Ltd,  EU:C:2010:378,
paragraph 59
6 Whereas this judgment specifically related to 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, the principles set out therein are also applicable under the new
data protection regime established by Regulation 2018/1725.

Consequently,  I  conclude that, pursuant  to  Article  4(1)(b)  of  Regulation  (EC) No  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.
Second,  some  parts  of  the  document  are  blanked  out  since  those  parts  are  covered  by  the  exception
provided for in Article 4(3) first paragraph of Regulation (EC) No 1049/2001 under which "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.”
Regarding  the  European  Commission’s  implementation  of  the  obligation  set  out  in  Article  28(b)  of
Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing
a  system  for  greenhouse  gas  emission  allowance  trading  within  the  Union  and  amending  Council
Directive 96/61/EC, an impact assessment of a broad range of options will be carried out in 2020 and
nothing is decided until that impact assessment delivers.
This  part  of  the  document,  relates  to  a  preliminary  ideas  of  the  Commission  services  that  could  or
could  not  be  further  developed  in  the  above  mentioned  impact  assessment.  In  order  to  ensure  the
future analysis is carried out in an objective manner, it is essential that the circumstances under which
relevant  data  and  information  is  exchanged  guarantee  the  necessary  level  of  impartiality,
independence,  and  protection,  without  which  the  proper  conduct  of  the  assessment  and  subsequent
deliberations would be jeopardized.
These  deliberations  form  an  integral  part  of  the  European  Commission’s  decision-making  process,
which has not been finalised at the time of this decision. The assessment and subsequent deliberations
must  be  pursued  without  any  outside  influence  or  pressure.  Disclosure  of  this  part  of  the  document
would  undermine  the  protection  of  the  decision-making  process  of  the  Commission,  as  it  would
indicate preliminary views and policy options. The Commission's services must be able to explore all
possible options in preparation of a decision free from external pressure.
We have examined whether there is an overriding public interest in the disclosure of this document,
but we have identified none.
In  case  you  would  disagree  with  this  position,  you  are  entitled,  in  accordance  with  Article  7(2)  of
Regulation  (EC)  No  1049/2001,  to  submit  a  confirmatory  application  requesting  the  Commission  to
review this position.
Such a confirmatory application should be addressed within 15 working days upon receipt of this letter
to the Secretariat-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
B-1049 Bruxelles
or by email to: xxxxxxxxxx@xx.xxxxxx.xx

Yours sincerely,

Henrik HOLOLEI
e-signed

Enclosed:
1.  The  briefing  regarding  the  meeting  between  the  International  Air  Transport  Association
(IATA) and Commissioner Adina-Iona Valean on 16/03/2020

2.  The phone call regarding the meeting between the International Air Transport Association
(IATA) and Commissioner Adina-Iona Valean on 16/03/2020
3.   The  briefing  regarding  the  meeting  between  Airlines  International  Representation  in
Europe (AIRE) and Commissioner Adina-Iona Valean on 04/02/2020
4.  The briefing regarding the meeting between Airlines for Europe (A4E) and Commissioner
Adina-Iona Valean on 10/12/2019
5.  Flash  report  regarding  the meeting  between  Airlines  for  Europe (A4E)  and  Commissioner
Adina-Iona Valean on 10/12/2019

Electronically signed on 08/07/2020 11:03 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563