EUROPEAN COMMISSION
Brussels, 7.9.2020
C(2020) 6214 final
Ms Julia Reda
Gesellschaft für Freiheitsrechte e.V.
Hessische Str. 10
10115 Berlin
Germany
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2020/2472
Dear Ms Reda,
I refer to your e-mail of 17 June 2020, registered on 18 June 2020, in which you
submitted 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 (hereafter ‘Regulation (EC) No 1049/2001’).
Please accept our apologies for the delay in the handling of your request.
1.
SCOPE OF YOUR REQUEST
In your initial application of 28 April 2020, addressed to the European Commission’s
Directorate-General for Trade, you requested access to documents related to a letter sent
on 20 March 2020 by the European Union Ambassador to the Republic of South Africa
to the Director-General in the Office of the South African President, on the subject of
South Africa’s copyright regime.
In your request, you state that you are seeking, I quote, ‘any information the Commission
has in connection with the letter of 20 March 2020, as well as any information related to
the South African Draft Copyright Bill’. You state that your request ‘should therefore
also contain short-lived information such as drafts, inter-agency communication, e-mails,
1 OJ L 345, 29.12.2001, p. 94.
2 OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
text messages, memos, and follow-up communication, including responses to the letter of
20 March 2020’. You add that ‘I am requesting all information, including internal
communication, inter-service consultation, communication with the EEAS, any South
African bodies, or with third parties such as external stakeholders regarding or in
connection with the letter of 20 March 2020 or the South African Draft Copyright Bill’.
As you did not receive the reply from the Directorate-General for Trade within the
statutory time limits, you submitted, on 17 June 2020, a confirmatory application against
the lack of reply.
On 18 June 2020, however, the Directorate-General for Trade provided you with a reply
to your initial request. In its reply, the Directorate-General for Trade identified 52
documents (34 documents plus the respective attachments) as falling within the scope of
your request and granted (full) access to 43 documents with only personal data redacted
on the basis of Article 4(1)(b) of Regulation (EC) No 1049/2001. It redacted parts of
document 30 as falling beyond the scope of your request.
Moreover, upon consultations with the third party concerned, the Directorate-General for
Trade refused to grant access to nine documents, namely:
- ‘IFPI Comments on the Department of Trade and Industry Copyright
Amendment Bill 2015’, 16 September 2015, Ares(2020)2565404 (hereafter
‘document 5’);
- ‘IFPI Comments to the Department of Trade and Industry Copyright Amendment
Bill and initial Comments on the Performers’ Protection Amendment Bill 2017’,
7 July 2017, Ares(2020)2752752 (hereafter ‘document 11’);
- ‘Copyright Alliance Response to the Copyright Amendment Bill’, 7 July 2017,
Ares(2020)2752799 (hereafter ‘document 12’);
- ‘RE: IFPI South Africa updates’, 19 October 2018, Ares(2020)2829480 (hereafter
‘document 18’);
- ‘IFPI - Comments on Performers’ Protection Bill 2016’, 31 October 2018,
Ares(2020)2829607 (hereafter ‘document 19’);
- ‘South Africa copyright bill’, 16 July 2018, Ares(2020)2829637 (hereafter
‘document 20’);
- ‘South Africa - Copyright Amendment Bill 150219 email attachm5’,
Ares(2020)2829764 (hereafter ‘document 23(e)’);
- ‘South Africa’, 26 February 2019, Ares(2020)2829670 (hereafter ‘document 29’);
- ‘South Africa attachment’, 26 February 2019, Ares(2020)2829670 (hereafter
‘document 29(a)’);
on the grounds of the first indent (protection of commercial interests) of Article 4(2) of
Regulation (EC) No 1049/2001.
A full list of the documents identified was attached to the initial reply of 18 June 2020
and is already in your possession.
2
On 19 June 2020, in an e-mail sent to the European Commission, you stated that you
wanted ‘to amend [your] confirmatory application by adding the following points, after
having consulted the documents released [in the initial decision of the Directorate-
General for Trade of 18 June 2020]’. The arguments that you put forward can be
summarised as follows:
- Firstly, you argue that there is an overriding public interest in the disclosure of
the nine documents that were refused by the Directorate-General for Trade at the
initial stage (identified as documents 5, 11, 12, 18, 19, 20, 23(e), 29 and 29(a)
above).
Among other issues, you state that ‘entertainment industry stakeholders have been
actively participating in this public debate, including by making claims about
their licensing and revenue sharing practices, when arguing against the
introduction of provisions in the South African copyright bill that would
strengthen the bargaining position of individual authors or performers. Disclosure
of the documents in question is in the public interest, among other reasons,
because these documents would shed light on the public controversy surrounding
these stakeholders’ interventions in the South African legislative process’.
In addition, you request the European Commission to grant partial access to the
documents ‘[s]hould the Commission come to the conclusion that despite these
reasons, full disclosure of the aforementioned documents is not possible’.
- Secondly, you challenge the list of documents identified at the initial stage. In
particular, you argue that the initial reply ‘does not appear to include any
information that the Commission deems “short-lived” or “not important” despite
my explicit request to include such information’. You refer to the European
Ombudsman’s decision in Case 2134/2018/FP3, and you stress, among other
issues, that ‘the European Ombudsman has concluded that “failure of the
Commission to retain in its possession copies of [...] material after the
complainant had exercised his [or her] fundamental right of access to documents,
but
before
the
appeal
process
had
been
completed,
constituted
maladministration”’.
Moreover, you argue that the initial reply does not identify documents concerning
consultations with stakeholders other than ‘rightholders’ organisations’. You add
that ‘[t]he correspondence between the EEAS and the European Commission of
21 May 2018 (document 17) appears to be incomplete’.
Furthermore, you refer to document 32 and you ask the European Commission to
provide ‘any documents relating to the meeting or phone call of 24 February
2020’.
3 Available
at: https://www.ombudsman.europa.eu/en/decision/en/120381.
3
You also request ‘any documents, such as emails, sent to the recipient of the
email of 28 February 2020 or any other recipient within DG Trade by the sender
of the email of 28 February 2020, or any follow-up communication received from
other stakeholders on the topic of the South African copyright bill received after
the email of 28 February 2020’.
Finally, you argue that the initial reply ‘does not include any documents after the
letter of EU Ambassador to the Republic of South Africa […] to […] [the]
Director-General in the Office of the South African President, of 20 March 2020’,
although your request ‘explicitly included eventual responses to the letter or any
other follow-up communication, including responses to the letter of 20 March
2020’.
In your e-mail, you also request a copy of ‘the up-to-date version’ of the European
Commission’s guidelines on document management and access to documents. Please
note however, that this request falls beyond the scope of your application of 28 April
2020, which concerns ‘information the Commission has in connection with the letter of
20 March 2020, as well as any information related to the South African Draft Copyright
Bill’.
The arguments that you put forward in your application have been taken into account in
the assessment set out in the sections below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 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 carried out a renewed search for documents falling under
the scope of your application. Following this renewed search, the following documents
have been identified at the confirmatory stage:
E-mail exchanges between the Directorate-General for Trade and
Evartists, 10 August 2015, Ares(2020)2552609 (hereafter ‘document 35’);
e-mail exchange between the Directorate-General for Trade and the
Delegation of the European Union to South Africa, 10-19 August 2015,
reference Ares(2020)2552779 (hereafter ‘document 36’);
e-mail from Motion Pictures Association to the Directorate-General for
Trade entitled ‘RE: SA Evidence’, 2 April 2020, reference
Ares(2020)3265944 (hereafter ‘document 37’), which contains the
following annexes:
o
letter from a third party to the President of South Africa, 8 July
2019 (hereafter ‘document 37.1’);
4
o
draft letter from a third party to the President of South Africa
(hereafter ‘document 37.2’);
o
letter from a third party, 22 February 2019 (hereafter ‘document
37.3’);
o
letter from a third party to the President of South Africa, 4 April
2019 (hereafter ‘document 37.4’);
o
comments on the copyright amendment bill and performers
protection amendment bill, 22 February 2019 (hereafter ‘document
37.5’);
o
letter to the National Council of Provinces, 22 February 2019
(hereafter ‘document 37.6’).
I take note on your comments regarding the identification of documents and the above-
referred inquiry of the European Ombudsman. In this respect, I would like to note that
your request covers a large number of documents (37) and their respective attachments,
leading to a total of 61 files, which have been duly identified and analysed by the
European Commission. The European Commission could not identify any documents
that would correspond to the description detailed in your application in addition to the
above-referred documents and their annexes.
As regards your request for documents related to the letter of the European Union
Ambassador, dated 20 March 2020 and addressed to the authorities of the Republic of
South Africa, please note that there was no follow-up communication with the Office of
the South African President.
Please also note that the search for documents drawn up or received by the institution on
the topic of your request was made with reference to the period until 28 April 2020,
which is the date of your initial application.
In the context of the confirmatory review, the European Commission (re)consulted, in
accordance with Article 4(4) of Regulation (EC) No 1049/2001, the third parties from
which documents 5, 11, 12, 18, 19, 20, 23(e), 29, 29(a), and 37 (including documents
37.1 to 37.6) originate.
In response to these consultations, the International Federation of the Phonographic
Industry (IFPI) agreed with the disclosure of the documents that were refused at the
initial stage (documents 5, 11, 12, 18, 19, 20, 23(e), 29 and 29(a)). The third party from
which document 35 partially originates (Evartists) agreed with the disclosure of the
document in question. Motion Pictures Association, which submitted document 37 and
its attachments, agreed with the disclosure of these documents, subject to the redaction of
personal data.
Against this background, I can inform you that:
– full access is granted to document 37.2;
5
– access is granted to documents 5, 11, 12, 18, 19, 20, 23(e), 29, 29(a), 35, 36, 37,
37.1, 37.3, 37.4, 37.5, 37.6, with only personal data redacted on the basis of Article
4(1)(b) of Regulation (EC) No 1049/2001.
The detailed reasons underpinning the assessment are set out below.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 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’.
In its judgment in Case C-28/08 P (
Bavarian Lager)4, the Court of Justice ruled that
when a request is made for access to documents containing personal data, 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 data5
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by 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/EC6 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
(EC) No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’7.
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
4 Judgment of the Court of Justice of 29 June 2010,
European Commission v
The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v
The Bavarian Lager judgment’) C-28/08 P,
EU:C:2010:378, paragraph 59.
5 OJ L 8, 12.1.2001, p. 1.
6 OJ L 295, 21.11.2018, p. 39.
7
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
6
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’8.
Documents 5, 11, 12, 18, 19, 20, 23(e), 29, 29(a), 35, 36, 37, 37.1, 37.3, 37.4, 37.5, and
37.6 contain personal data such as the names, surnames and contact details of persons
who do not form part of the senior management of the European Commission. The
documents also contain personal data such as names and surnames, phone numbers, job
positions and e-mails from third party representatives. Several documents contain
handwritten signatures of the persons concerned. In addition, document 37.5 contains the
curriculum vitae of an identified person.
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 3(1) of
Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) 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 (EU) 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data10. This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the lawful processing of personal data only if
the first condition is fulfilled, namely if the recipient establishes 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.
8 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v
Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
9
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
10 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v
European Food Safety Agency,
C-615/13 P, EU:C:2015:489, paragraph 47.
7
In your confirmatory application, 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 subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the 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.
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 the disclosure of the personal data concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 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 interest described above.
Consequently, I have come to the conclusion that the redacted parts of the documents are
covered in their entirety by the invoked exception to the right of public access.
Finally, please note that documents originating from third parties are disclosed to you
based on Regulation (EC) No 1049/2001. However, this disclosure is without prejudice
to the rules on intellectual property, which may limit your right to reproduce or exploit
the released documents without the agreement of the originator, who may hold an
intellectual property right on them. The European Commission does not assume any
responsibility from their reuse.
8
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 Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
Enclosures: (18)
9
Document Outline