Ref. Ares(2020)4638020 - 07/09/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
Directorate R - Resources, Information and Policy Coordination
Transparency, Civil Society and Communication
Brussels
TRADE.R.3/MM
By registered letter with
acknowledgment of receipt
Ms
Melissa Heikkilä
POLITICO
Rue de la Loi 62
1040 Brussels
Belgium
Advance copy by email: ask+request-8262-
xxxxxxxx@xxxxxxxx.xxx
Dear Madam,
I refer to your email of 29 June 2020 in which you make a request for access to
documents under Regulation (EC) No 1049/20011 ("Regulation 1049/2001"), and which
was registered on the 30 June under the reference GestDem No 2020/3942.
1. SCOPE OF YOUR REQUEST
In your request, you asked for access to
All documentation (including but not limited to all email correspondence, attendance
lists, agendas, background papers, and minutes/notes) relating to the meetings listed
below, up to the current date of 29 June 2020.
1. 24/01/2020 between Commissioner Paolo Gentiloni and Facebook Ireland Limited
2. 23/01/2020 between Commissioner Paolo Gentiloni and Booking.com B.V.
3. 23/01/2020 between Commissioners Paolo Gentiloni, Phil Hogan and Apple Inc.
4. 07/05/2020 video conference between Commissioner Phil Hogan and Bundesverband
Informationswirtschaft, Telekommunikation und neue Medien e. V.
5. 29/04/2020 video conference between Commissioner Phil Hogan and American
Chamber of Commerce to the European Union
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents, OJ L 145,
31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: CHAR 07/003 - Tel. direct line +32 229-55360
xxxxxxxxxxxx.xxxxxxxxxx@xx.xxxxxx.xx
6. 05/03/2020 between Commissioner Phil Hogan and ITI - The Information Technology
Industry Council
7. 05/03/2020 between Commissioner Phil Hogan and American Chamber of Commerce
to the European Union
8. 04/02/2020 between Commissioner Phil Hogan and DIGITALEUROPE
As your request concerns the meetings of 2 Commissioners it was split between DG
TAXUD (1-3) and DG TRADE (4-8). This reply answers your application as regards
meetings quoted under numbers from 4 to 8 of the above list. The part of your request
related to meetings quoted under point 1-3 will be handled by DG TAXUD.
2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document,
it must assess, in each individual case, whether that document falls within the exceptions
to the right of public access to documents set out in Article 4 of Regulation 1049/2001.
Such assessment is carried out in a multi-step approach:
- first, the institution must satisfy itself that the document relates to one of the
exceptions, and if so, decide which parts of it are covered by that exception;
- second, it must examine whether disclosure of the parts of the document in
question pose a "
reasonably foreseeable and not purely hypothetical" risk of
undermining the protection of the interest covered by the exception;
- third, if it takes the view that disclosure would undermine the protection of any of
the interests defined under Article 4(2) and Article 4(3) of Regulation 1049/2001,
the institution is required "
to ascertain whether there is any overriding public
interest justifying disclosure"3.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public
the widest possible right of access to documents4, ’
the exceptions to that right […] must
be interpreted and applied strictly’5.
In reply to your request, I can inform you that we have identified
5 documents that fall
within the scope of your request.
1. Report from videoconference with Bitcom on 7 May 2020 - Ares(2020)3551841
2. Commissioner P. Hogan speech at video conference with American Chamber of
Commerce to the European Union on 29/04/2020 - Ares(2020)4222852
3. Report from the meeting between Commissioner P. Hogan and ITI -
Ares(2020)3512215
4. Commissioner P. Hogan speech at the Transatlantic Conference of the American
Chamber of Commerce to Ireland on 5 March 2020 - Ares(2020)3918890
2 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in ‘t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52-64.
4 See Regulation 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
2
5. Commissioner P. Hogan Video Message for DigitalEurope Event “Masters of
Digital 2020 - A Digitally Transformed European Society”- Ares(2020)3918996
As regards document 4, we understand this is the document you are requesting under
point 5, noting that the speech was given to the American Chamber of Commerce
Ireland, not the American Chamber of Commerce to the EU. Having examined the
identified documents under the applicable legal framework, I am pleased to grant you full
access do
document 2, 4 and 5 and partial access to
documents 1 and 3 where only
names and other personal data have been redacted pursuant to article 4(1)(b) of
Regulation 1049/2001 and in accordance with Regulation (EC) No 2018/1725. Hence,
the main content of these documents relevant to your request is accessible.
Copies of the accessible documents are enclosed to this letter.
The reasons justifying the application of the exception concerning personal data are set
out below.
Protection of the privacy and integrity of the individual
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 European Union legislation regarding the
protection of personal data.6
Document 1 and 3 contain personal information, such as names, e-mail addresses,
telephone numbers that allow the identification of natural persons, as well as other
personal information.
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.7 Please note in this
respect that the names, signatures, functions, telephone numbers and/or initials pertaining to
staff members of an institution are to be considered personal data.8
6 The applicable legislation is Regulation (EC) No 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 (‘Regulation
2018/1725’).
7 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16,
Peter Novak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:T:2018:560.
8 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
In its judgment in Case C-28/08 P (
Bavarian Lager)9, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable10
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 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
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.
Consequently, I 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.
However, in line with the Commission’s commitment to ensure transparency and
accountability, the names of the Members of Cabinet and the names of the senior
management of the Commission are disclosed.
9 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.
10 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.
4
3. MEANS OF REDRESS
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make 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 Secretary-General of the Commission at the following address:
Secretary-General
European Commission
Transparency, Document Management & Access to Documents
Rue de la Loi 200/Wetstraat 200
BERL 7/76
1049 Brussels
Belgium
or by email to: xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
(e-signed)
Michelangelo MARGHERITA
Head of Unit
Enclosure:
Disclosed documents
5
Electronically signed on 27/08/2020 11:58 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563