Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 16.10.2019
C(2019) 7541 final
B-1190 Bruxelles
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 2019/3410
Dear
,
I refer to your e-mail of 19 August 2019, registered on 20 August 2019, in which you
submit 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’).
1.
SCOPE OF YOUR APPLICATION
On 14 June 2019 you submitted two initial applications for access to documents
addressed relating to the meetings of the staff members of the European Commission
with the consulting company Fleishman-Hillard. Indeed, in your initial applications,
which were addressed to the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs3 and the Directorate-General for Energy4, you asked for
access to, I quote, ‘[…]
les documents contenant ces informations: Contacts, rendez-
vous, compte-rendus de réunions avec Fleishman-Hillard en 2018 – 2019’.
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145 31.5.2001, p. 43.
3
Registered as Gestdem 2019/3630 and 2019/3660.
4
Registered as Gestdem 2019/3410
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
As your initial application was considered as not sufficiently clear, the Directorate-
General for Internal Market, Industry, Entrepreneurship and SMEs contacted you in order
to clarify its scope. In the emails of 17 and 19 June 2019, you replied that you were
interested in documents concerning, I quote, ‘[c]ontacts about [the Registration,
Evaluation, Authorisation and Restriction of Chemicals5], chemicals and about gas
industry’.
You also clarified that with regard to the issue of the Registration, Evaluation,
Authorisation and Restriction of Chemicals, you were interested in documents
concerning contacts between Fleishman-Hillard and the staff of the European
Commission at all hierarchical levels. As regards the ‘gas topic’, you explained that your
application covers documents concerning contacts between the above-mentioned
company and the staff of the European Commission at the level from the Commissioner
to the head of unit.
The above-mentioned clarifications were taken into account also by the Directorate-
General for Energy in its assessment of your application Gestdem 2019/3410. In its reply
of 31 July 2019, the Directorate-General for Energy informed you that it did not hold any
documents falling under the scope of your application.
You submitted your confirmatory application on 19 August 2019, asking for the review
of that position6.
Following your confirmatory application, the European Commission has carried out a
renewed search for the documents concerned and identified the following ones:
Email from Fleishman-Hillard of 22 May 2018 to the European Commission,
with the attachment, reference Ares(2019) 5938518, (hereafter ‘document 1’);
Email from Fleishman-Hillard of 30 May 2018 to the European Commission
and the reply of the European Commission of 31 May 2018, with the
attachment, reference Ares(2019) 5938792, (hereafter ‘document 2’);
Email from Fleishman-Hillard of 6 June 2018 to the European Commission
and the follow-up email of 8 June with the attachment, reference Ares(2019),
5962021 (hereafter ‘document 3’).
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.
5
REACH.
6
I note that you did not contest the position of the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs included in its replies to your initial applications Gestdem 2019/3630 and
2019/3660, provided on, respectively, 10 July 2019 and 1 August 2019.
2
As mentioned in point 1 of this decision, following your confirmatory application, the
European Commission identified the above-mentioned documents 1-3 and assessed them
from the point of view of the applicability of the exceptions in Article 4 of Regulation
(EC) No 1049/2001.
Following this assessment, I can inform you that (wide) partial access is granted to the
documents concerned.
The relevant undisclosed parts of the documents require protection under the exception in
Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of privacy and the integrity
of the individual).
In the assessment, the European Commission took into account the position of the third
party originator, consulted in line with Article 4(4) of Regulation (EC) No 1049/2001,
which did not object to the (partial) disclosure of the documents concerned.
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)7, 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 data8
(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/EC9 (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.
7
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.
8
OJ L 8 12.1.2001, p. 1.
9
OJ L 205 21.11.2018, p. 39.
3
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’.10
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’.11
Documents 1-3 include the names and contact details of staff members of the European
Commission not holding any senior management position. They include also the names
and contact details of third parties (representatives of Fleishman-Hillard).
The names12 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 data.13 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.
10
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
11 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.
12
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
13 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.
4
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, included in the relevant
undisclosed parts of documents 1-3, 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
The exception in 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
Partial access is hereby granted to documents 1-3.
5