EUROPEAN COMMISSION
Brussels, 23.2.2021
C(2021) 1397 final
Ms Belen Balanya
Corporate Europe Observatory
Rue d’Edimbourg 26
1050 Brussels
Belgium
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 2020/4243
Dear Ms Balanya,
I refer to your letter of 24 September 2020, registered on 25 Septemebr 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 this late reply.
1.
SCOPE OF YOUR REQUEST
In your initial application of 12 July 2020, addressed to the Secretariat-General of the
European Commission, you requested access to, I quote:
- ‘all correspondence (including email) between 1 December 2019 and 12 July
2020
between
Commissioner
Simson,
Commissioner
Timmermans,
Commissioner Breton, President van der Leyen, and/or their cabinets and/or
officials from the European Commission on one hand and representatives from
IOGP, Shell, Total, BP, Equinor, ZEP, the Global CCS Institute, Hydrogen
Europe, the Hydrogen Council, Business Europe, the European Roundtable for
Industry, GasNaturally, Eurogás, ENTSO-G, Snam, Enagás, Fluxys, Open Grid
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
Europe, GRTGaz, Teréga, Eurofer, ArcelorMittal, FTI Consulting, Fleishman
Hillard, Alstom, Engie, Air Liquide, Toyota, Gas for Climate consortium, Gas
Infrastructure Europe on the other, in which the Hydrogen strategy was
addressed;
- list of meetings between 1 December 2019 and 12 July 2020 between officials
and representatives of the European Commission on one hand and representatives
from IOGP, Shell, Total, BP, Equinor, ZEP, the Global CCS Institute, Hydrogen
Europe, the Hydrogen Council, Business Europe, the European Roundtable for
Industry, GasNaturally, Eurogás,ENTSO-G, Snam, Enagás, Fluxys, Open Grid
Europe, GRTGaz, Teréga, Eurofer, ArcelorMittal, FTI Consulting, Fleishman
Hillard, Alstom, Engie, Air Liquide, Toyota, Gas for Climate consortium, Gas
Infrastructure Europe on the other, in which the the Hydrogen strategy was
addressed;
- minutes of the meetings mentioned above'.
The documents relating to these meetings and correspondence are held by various
Directorates-General of the European Commission and therefore your application was
split
between
the
Secretariat-General
of
the
European
Commission
(Gestdem 2020/4243), the Directorate-General for Energy (Gestdem 2020/4244),
the Directorate-Genetral for Climate Action (Gestdem 2020/4245) and the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
(Gestdem 2020/4246). Each of the Directorates-General provided the separate reply
relating to the documents in its possession.
In its initial reply of 1 October 2020, Directorate E of the Secretariat-General of the
European Commission (hereafter ‘Directorate E’) identified the following documents as
falling under the scope of your initial application:
- email dated 7 February 2020, from ArcelorMittal to Ms Ilze Juhansone,
Secretary-General
of
the
European
Commission,
Ares(2020)648425
(hereafter ‘document 1’);
- Climate Action Report 1 dated May 2019 of ArcelorMittal, Ares(2020)5162747
(hereafter ‘document 2’).
Directorate E granted (wide) partial access to both documents, subject only to the
redaction of personal data on the basis of Article 4(1)(b) (protection of privacy and the
integrity of the individual) of Regulation (EC) No 1049/2001. Directorate E also
informed you that the search for the other requested documents was still ongoing.
In your confirmatory application, you contest the completeness of the list of documents
identified by Directorate E at the initial stage.
2
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.
As regards documents 1 and 2, partially disclosed at the initial stage, following my
review, I confirm that the position of Directorate E to grant (wide) partial access thereto.
The limited undisclosed information still requires protection under the exception in
Article 4(1)(b) (protection of privacy and the integrity of the individual) of Regulation
(EC) No 1049/2001.
Following your confirmatory request, the European Commission carried out a search of
the documents in its possession and it has identified an additional 28 documents falling
within the scope of your request, namely:
Letter of 3 February 2020 from Eurogas to the College of Commissioners,
Are(2020)672226 (hereafter ‘document 3’);
E-mail of 3 February 2020 from Eurogas to President von der Leyen,
Are(2020)672226 (hereafter ‘document 4’);
Letter of 11 February 2020 from the European Green Deal Adviser to Eurogas,
Ares(2020)672226 (hereafter ‘document 5’);
E-mail of 21 February 2020 from Eurofer to President von der Leyen,
Ares(2020)1148390 (hereafter ‘document 6’);
Discussion paper entitled ‘A Green Deal on Steel’ from Eurofer, dated February
2020, Ares(2020)1148390 (hereafter ‘document 7’);
E-mail of 21 February 2020 from Eurofer to President von der Leyen,
Ares(2020)1148390 (hereafter ‘document 8’);
Discussion paper entitled ‘A Green Deal on Steel’ from Eurofer, dated February
2020, Ares(2020)1700597 (hereafter ‘document 9’);
E-mail of 20 March 2020 from Eurofer to President von der Leyen,
Ares(2020)1700597 (hereafter ‘document 10’);
Letter of 20 March 2020 from Eurofer to President von der Leyen,
Ares(2020)1700597 (hereafter ‘document 10a’);
Invitation e-mail of 19 June 2020 fromHydrogen Europe to Mr Flosdorff and his
reply, Ares(2020)3202972 (hereafter ‘document 11’);
E-mail of 24 June 2020 from the European Industry sector to the European
Commission and the European Parliament on ‘Wide industry coalition call for a
Hydrogen Strategy’, Ares(2021)426490 (hereafter ‘document 12’);
3
Letter of 24 June 2020 from European Industry sector on ‘Wide industry coalition
call for a Hydrogen Strategy’, Ares(2021)426181 (hereafter ‘document 12a’);
E-mail of 1 July 2020 from Equinor to the European Commission on ‘Advancing
Hydrogen in Europe’, Ares (2020)3577103 (hereafter ‘document 13);
Document of 1 July 2020 from Equinor entitled ‘Plan for worl-leading clean
hydrogen plant in the UK’, Ares(2020)3577103 (hereafter ‘document 13a’);
Document entitled ‘Key Facts’, Ares(2020)3577103 (hereafter ‘document 13b’);
E-mail of 16 June 2020 from Hydrogen Europe to Mr Vandenberghe (Cabinet
President) on ‘The EU Hydrogen Strategy’, Ares(2020)4308800 (hereafter
‘document 14’);
Document entitled ‘The EU Hydrogen Strategy: Hydrogen Europe’s Top 10 Key
Recommendations’, Ares(2020)4308800 (hereafter ‘document 14a’);
E-mail of 30 January 2020 from Mr Vandenberghe to other cabinets concerning
meeting with International Oil and Gas Producers, Ares(2020)5233171 (hereafter
‘document 15’);
Email of 26 June 2020 from Equinor to the European Commission on European
Hydrigen Strategy, Ares(2020)5233379 (hereafter ‘document 16’);
Document from ThyssenKrupp, Equinor and OGE entitled ‘Clean hydrogen for a
market ramp-up and for climate-neutral steel, Ares(2020)5233379 (hereafter
‘document 16a’);
Email of 18 May 2020 from Equinor to Mr Vandenberghe, Ares(2020)5233507
(hereafter ‘document 17’);
Document from Northern Lights of May 2020 entitled ‘CCS and the EU
COVID-19 Recovery Plan’, Ares(2020)5233507 (hereafter ‘document 17a’);
E-mail of 23 June 2020 from Hydrogen Europe to Mr Vandenberghe on
H2 startegy non-paper, Ares(2020)5233700 (hereafter ‘document 18);
Non-Paper from Hydrogen Europe entitled ‘Input to the EC Communication on
‘Building a hydrogen economy for a climate-neutral Europe. A strategic
roadmap’, Ares(2020)5233507 (hereafter ‘document 18a’);
E-mail of 29 May 2020 from Hydrogen Europe to Mr Vandenberghe on Green
Hydrogen Investment Plan, Ares(2020)5233922 (hereafter ‘document 19);
Document entitled ‘Green Hydrogen Investment and Support Report’,
Ares(2020)5233922 (hereafter ‘document 19a’);
4
Letter of 29 May 2020 sent from Hydrogen Europe to the First Vice-president
Timmermans, Commissioner Simson and Commissioner Breton on ‘Hydrogen
Europe CEOs ready to support Clean Hydrogen Alliance’, Ares(2021)427370
(hereafter ‘document 20’);
Meeting report on meeting between the European Commission and Eurofer on
Carbon Border Adhustment held on 6 March 2020, Ares(2020)5234185
(hereafter ‘document 21’).
I am pleased to inform you that full access is granted to documents 7, 9, 12a, 13b, 14a,
16a, 17a, 18a, 19a and 20.
Furthermore, wide partial access is granted to documents 3-6, 8, 10, 10a, 11-13, 13a,
14-19 and 21, subject to the redaction of personal data on the basis of Article 4(1)(b)
(protection of privacy and the integrity of the individual) of Regulation (EC) No
1049/2001, for the reasons explained in Section 2.1 below.
I would like to draw your attention to Article 16 of Regulation (EC) No 1049/2001,
which provides that ‘this Regulation shall be without prejudice to any existing rules on
copyright which may limit a third party’s right to reproduce or exploit released
documents’. Hence, as regards the European Commission documents, you may reuse
them free of charge for non-commercial and commercial purposes provided that the
source is acknowledged and that you do not distort the original meaning or message of
the documents. The European Commission does not assume liability stemming from the
reuse.
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.
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)3, 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
3 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
Community institutions and bodies and on the free movement of such data4
(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/EC5 (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’6.
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
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’7.
The requested documents contain personal data such as the names, surnames, functions,
contact details and handwritten signatures of persons who are not public figures acting in
their public capacity, and of Commission staff members not forming part of the senior
management of the institution.
The names8 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’.
4 OJ L 8, 12.1.2001, p. 1.
5 OJ L 295, 21.11.2018, p. 39.
6
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
7 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.
8.
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
6
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 data9. 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.
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 exceptions defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
As mentioned above, (wide partial) access is hereby granted to the documents concerned.
9 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
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
Enclosure: (28)
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Document Outline