Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 25.10.2019
C(2019) 7860 final
Barnsley Street
HU8 7TF Hull
United Kingdom
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 2019/4664
Dear
,
I refer to your e-mail of 25 September 2019, registered on 26 September 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 ʻRegulation (EC) No 1049/2001ʼ).
1.
SCOPE OF YOUR REQUEST
In your initial application of 11 August 2019, addressed to the Directorate-General for
Justice and Consumers, you requested access to ʻthe letter of Italian authorities dated 14
February 2019 sent in the context of EU Pilot 8529/16/JUSTʼ.
The European Commission has identified the following document as falling under the
scope of your request:
Letter of 14 February 2019 from the Italian Ministry of Foreign Affairs replying
to an information request by the European Commission regarding EU Pilot
procedure 8525/16/JUST, reference Ares(2019)5446572.
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
In its initial reply of 25 September 2019, the Directorate-General for Justice and
Consumers informed you that, it had consulted the Italian authorities, from whom the
document originated, in accordance with Article 4(4) and 4(5) of Regulation (EC) No
1049/2001. The Italian authorities objected to disclosure of the requested document
based on Article 4(3), first indent (protection of the decision-making process) of
Regulation (EC) No 1049/2001. Taking into account the reply from the Italian
authorities, the Directorate-General for Justice and Consumers refused access to the
document on the same basis.
In your confirmatory application, you request a review of this position.
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.
Following this review, I regret to inform you that I have to confirm the initial decision of
the Directorate-General for Justice and Consumers to refuse access to the requested
document, based on the exceptions of Article 4(3), first subparagraph (protection of the
decision-making process) and in addition of Article 4(1)(b) (protection of privacy and the
integrity of the individual) and Article 4(2), third indent (protection of the purpose of the
investigations) of Regulation (EC) No 1049/2001, for the reasons 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 ‘access to a document is
refused 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 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
Community institutions and bodies and on the free movement of such data4
(‘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’).
3 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd, C-28/08 P, EU:C:2010:378, paragraph 59.
4 OJ L 8, 12.1.2001, p. 1.
5 OJ L 205, 21.11.2018, p. 39.
2
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 document includes the name, the function and the contact details of the
natural person of the Italian national authority. It also contains biometric data, namely its
handwritten signature.
This information clearly constitutes personal data in the sense 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 on its own motion the existence of a need for transferring personal data.8
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 a 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.
6
Bavarian Lager, cited above, paragraph 59.
7 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Österreichischer Rundfunk,
Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
8 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.
3
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 refer in any way to the personal data
included in the requested document, nor do you put forward any arguments to establish
the necessity to have the personal data included in the document 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, there are reasons to assume that the legitimate interests of the
data subject concerned would be prejudiced by disclosure of the personal data reflected
in the document, as there is a real and non-hypothetical risk that such public disclosure
would harm its privacy and subject it 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 individual concerned would not be
prejudiced by disclosure of the personal data concerned.
2.2. Protection of the purpose of investigations and of the decision-making process
Article 4(2), third indent of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the purpose of inspections, investigations and audits.’
Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that '[a]ccess
to a document, drawn up by an institution for internal use or received by an institution,
which relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure'.
Without prejudice to the question whether an overriding public interest in releasing the
document can be identified (which is the subject of point 3 below), I would like to
underline that the investigative activities in EU Pilot procedure 8525/16/JUST, in the
context of which the requested document was sent to the European Commission, are still
ongoing and could lead to the opening of infringement proceedings under Article 258
Treaty on the Functioning of the European Union.
Under these circumstances, there is a real and non-hypothetical risk that early disclosure
of the document pertaining to the administrative file of on-going case would adversely
affect the ongoing investigation and its follow-up. In order for the European Commission
to be able to carry out its tasks, the confidentiality of the exchanges with the Member
State concerned throughout the different stages of the procedure shall be guaranteed until
the case has been definitively closed.
4
For this reason, the European Commission must refuse access to the requested document,
which is relevant for the ongoing EU Pilot procedure based on the third indent of Article
4(2) of Regulation (EC) No 1049/2001.
In Case T-306/12 (
Spirlea), the General Court recognised the importance of ‘an
atmosphere of mutual trust between the Commission and the Member State concerned in
order to enable them to start a process of negotiation and compromise with a view to an
amicable settlement of the dispute, without it being necessary to initiate an infringement
procedure under Article 258 TFEU, which would be likely to lead to the dispute being
brought before the Court’9.
Public disclosure of the requested document, while the EU Pilot procedure is still
ongoing, would, indeed jeopardise the atmosphere of mutual trust between the European
Commission and the Italian authorities and the chances of an amicable settlement of the
dispute. In this sense, public disclosure would also jeopardise the decision-making
process of the European Commission.
I conclude, therefore, that further access to the requested document must be denied based
on the exception laid down in the third indent of Article 4(2) and in the first
subparagraph of Article 4(3) of Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) No 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest,
firstly, has to be public and, secondly, has to outweigh the damage caused by the release,
namely it must in this case outweigh the interest protected by virtue of the third indent of
Article 4(2) and of the first subparagraph of Article 4(3) of Regulation (EC) No
1049/2001.
In your confirmatory application, you do not invoke any overriding public interest that
would warrant the public disclosure of the document concerned. Consequently, I carried
out my own assessment as regards the possible existence of such public interest.
Following that assessment, I have not been able to identify any elements capable of
demonstrating the existence of any possible overriding public interest in disclosing the
refused elements that would outweigh the interests protected by the third indent of
Article 4(2) and the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001.
To the contrary, I consider that in this specific case, the public interest is better served by
protecting the purpose of the ongoing investigation and the decision-making process with
the aim to reach conformity with EU law of the legal framework in the Member State
concerned, as this constitutes the ultimate purpose of the European Commission's
investigations.
9 Judgment of the General Court of 25 September 2014,
Darius Nicolai and Mihaela Spirlea v
European Commission, T-306/12, EU:T:2014:816, paragraph 57, confirmed by the Judgment of the
Court of Justice of 11 May 2017 in Case C-562/14 P,
Kingdom of Sweden v European Commission,
EU:C:2017:356.
5