Ref. Ares(2020)5074900 - 28/09/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL
HUMAN RESOURCES AND SECURITY
The Director-General
Brussels, 28th September 2020
HR/GI
Ms Margarida DA SILVA
CEO
Rue d'Edimbourg 26
1050 Brussels
By email:
ask+request-8393-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref /GestDem No 2020/4876
Dear Ms Da Silva,
I refer to your e-mail, dated 23 July 2020 and registered on 17 August 2020 under
reference number 2020/4876, in which you make a request for access to documents.
Your request concerns
"[…] documents which relate to any article 16, article 12B and
article 40 (staff regulations) applications made by Reinald Krueger, Deputy Director-
General at DG CNECT since August 2018. This request is a follow up to the request
lodged under Ref/GestDem No 2018/4258. In particular, I request a note of all Mr.
Krueger's job titles at the Commission including dates held; copies of any application(s)
that he has made under article 12b, 16 and 40 to undertake a new professional activity;
and all documents (correspondence, emails, meeting notes etc) related to the
authorisation of the new role or roles; the appointing authority's opinion and assessment
of the role." I have examined your request under the provisions of 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.
I understand that as a follow-up to your previous request registered under reference
number 2018/4258 on 6 August 2018, to which you received a reply from Ms Irene
SOUKA (ref. Ares(2018)4782775 - 18/09/2018), your present request refers to
documents since August 2018 relating to the new role and new professional activity of
Mr Krueger while on leave on personal grounds.
In this context, the documents identified in the framework of your request are:
a document extracted from the relevant staff database listing the job titles of Mr
Krueger;
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: SC11 09/012 - Tel. direct line +32 229-90515
xxxxxxx.xxxxxxxx@xx.xxxxxx.xx
a request for outside activity while on leave on personal grounds submitted by Mr
Krueger on 28 July 2019 in the framework of Article 40 of the Staff Regulations,
read in conjunction with Article 12b thereof; (hereafter “ the first request”)
the related decision from the Appointing Authority adopted on 7 August 2019;
a request for outside activity while on leave on personal grounds submitted by Mr
Krueger on 15 July 2020 in the framework of Article 40 of the Staff Regulations,
read in conjunction with Article 12b thereof; (hereafter “the second request”);
e-mail exchanges within Commission services and between Commission services and
Mr Krueger pertaining to the underlying internal procedures concerning this type of
requests for authorisation.
In accordance with Article 4(1)(b) of Regulation (EC) No 1049/2001, it is the
Commission's obligation to ensure that the privacy and the integrity of the EU staff
member concerned, including in his professional capacity, are correctly protected. The
documents you requested contain personal data relating to the past and present
occupational activities of Mr Krueger, the disclosure of which would entail a
transmission of personal data falling under the provisions of Regulation (EU) 2018/17251.
In the case
EC v Bavarian Lager2, the Court of Justice ruled that when a request is made
for access to documents containing personal data, Regulation (EU) 2018/1725 becomes
fully applicable3. Pursuant to Article 9(1)(b) of that Regulation, personal data shall only be
transferred to recipients if they established the necessity of having the data transferred to
them and if there is no reason to assume that the legitimate rights of the persons
concerned might be prejudiced.
In your request you did not establish the necessity of having the data transferred and I
consider that the legitimate interests of the individual concerned would be prejudiced by
the disclosure of his personal data. Consequently, I consider that the exception provided
for in Article 4(1)(b) of Regulation (EC) No 1049/2001 applies to all the identified
documents.
As for the correspondence between the Commission services and Mr Krueger, in addition
to the protection of personal data, the second subparagraph of Article 4(3) of Regulation
(EC) No 1049/2001 applies. That exception is related to the protection of the
Commission's decision-making process even after the decision of the Appointing
Authority has been taken. As no overriding public interest in disclosure has been
identified in the present case, that exception to the right of access cannot be waived.
While I have also considered the possibility of granting partial access on the basis of
Article 4(6) of Regulation (EC) No 1049/2001, I have concluded that this would equally
undermine the protection of personal data.
1 Regulation (EU) No 2018/1725 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 (OJ L 295, 21.11.2018, p. 39).
2 Judgment of 29 June 2010, Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
ECLI:EU:C:2010:378, paragraph 59.
3 This judgment specifically cited Regulation (EC) No 45/2001, which was repealed by Regulation (EU)
2018/1725. In accordance with Article 99 of that latter Regulation, references to Regulation (EC) No 45/2001
should be construed as references to Regulation (EU) 2018/1725.
2
Against this background, in order to address your query to the extent possible, and after
having consulted and with the agreement of Mr Krueger, I can nevertheless provide you
with the following general information on the process to which your request relates.
Since 1 October 2018, Mr Krueger is not in active employment and has submitted two
requests on the basis of Articles 40 and 12b of the Staff Regulations.
The first request that Mr Krueger submitted on 28 July 2019 to engage in an outside
activity relates to a remunerated occupational activity for a period of one year as of 1
October 2019 to 30 September 2020, as Group Public Policy Development Director for
Vodafone Group Limited in London.
Following the consultation process required for this type of request, the Appointing
Authority gave its approval to carry out this activity, under certain limited conditions
aimed at preventing any potential conflict of interest.
Mr Krueger was reminded of the statutory provisions which require him:
- to follow the duty to behave with integrity and discretion as regards the acceptance of
certain appointments or benefit;
- to refrain from any unauthorised disclosure of information received in the line of duty
during his work at the Commission, unless that information has already been made public
or is accessible to the public (Article 17 of the Staff Regulations), and, in this context, to
refrain from exploiting insights of confidential nature in policy, strategy or internal
processes that he may have acquired in the line of service and that have not yet been
public or are not commonly available in the public domain;
- in accordance with Article 40 of the Staff Regulations, to refrain from engaging in any
activity or role which involves lobbying or advocacy vis-à-vis staff of the European
Commission and which could lead to the existence or possibility of a conflict with the
legitimate interests of the Institution.
Mr Krueger was further submitted to specific restrictions aiming at preventing any actual,
potential or perceived conflict of interests that may rise in the framework of the
authorized activity.
The second request that Mr Krueger submitted on 15 July 2020 to engage in an outside
activity relates to a remunerated occupational activity for a period of one year as of 1
October 2020 to 30 September 2021, as Group Public Policy Development Director for
Vodafone Group Limited in London, and is currently under consideration.
Furthermore, I can provide you with the information on the last post held by Mr Krueger
during the reference period, which was the position of a Senior Expert in DG CNECT
(from 16 April 2018 till 30 September 2018). Please note that Mr Krueger, in contrast to
what you state in your request, has been never Deputy Director-General at DG CNECT.
I would like to remind you that CEO remains subject to the provisions of Regulation
(EU) 2016/679 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data (General Data Protection
3
Regulation4) according to which personal data must,
inter alia, be processed fairly and
lawfully and subject to the unambiguous consent of the data subject concerned.
Finally, please be informed that a copy of this letter will be sent to the person concerned.
In accordance with Article 7(2) of Regulation (EC) No 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:
European Commission
Secretary-General
Transparency,
Document
Management
&
Access
to
Documents
(SG.C.1)
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
(e-signed)
Gertrud INGESTAD
4 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement
of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119,
4.5.2016, p. 1.
4
Electronically signed on 28/09/2020 13:19 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482