EUROPEAN COMMISSION
LEGAL SERVICE
The Director General
Brussels, 12 April 2021
By email
Mr Oliver Fennelly
31 Albert road,
Twickenham
London TW1 4HU
xxxxxxxxxxxxxx
ask+request-9174-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Request for access to documents
Ref.:
Your request of 8 March 2021 registered under reference GestDem 2021/1332
Dear Mr Fennelly,
I refer to your above-referenced request for access to documents under Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents,1 by which you request the following written observations in Case C-62/14 -
Gauweiler.
1.
European Commission;
2.
European Parliament;
3.
European Central Bank;
4.
France;
5.
Germany.
1.
WRITTEN OBSERVATIONS SUBMITTED BY THE COMMISSION (DOCUMENT 1)
The Commission’s written observations have already been made public following a previous
request for access under Regulation (EC) No 1049/2001. This document is publicly available
on the Legal Service’s website, following the link:
http://ec.europa.eu/dgs/legal_service/submissions_cour_en.htm.
You may reuse the document disclosed free of charge provided that the source is acknowledged
and that you do not distort the original meaning or message of it. Please note that the Commission
does not assume liability stemming from the reuse.
1 OJ L 145, 31.05.2001, page 43.
European Commission, B-1049 Brussels / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
Office: BERL 1/080. Telephone: direct line (32-2) 296 13 86.
E-mail: xxxxxx.xxxxxxxxxxxxxx@xx.xxxxxx.xx
2.
WRITTEN OBSERVATIONS SUBMITTED BY OTHER PARTIES (DOCUMENTS 2 TO 5)
As far as the written observations of the other parties are concerned, the Commission has
consulted the authors of the respective documents on their disclosure, in accordance with
Article 4(4) of Regulation (EC) No 1049/2001.
Following these consultations, I would like to inform you that:
the European Parliament, the European Central Bank and the Government of Germany
have agreed to the disclosure of their written observations (documents 2, 3 and 5);
the Government of France (document 4) refuses access to its written observations,
considering that they are covered by the exceptions provided for in Article 4(1)(a),
fourth indent and Article 4(2), second and third indents and of Regulation (EC) No
1049/2001 (“
protection of the financial, monetary or economic policy of the Community
or a Member State”, “
protection of court proceedings” and “
protection of the purpose
of investigations”), as will be explained in
points 3.1, 3.2 and
3.3.
Please note that some personal data has been deleted in documents 3 and 5, in accordance with
Article 4 (l)(b) of Regulation (EC) No 1049/2001, as explained in
point 4 below.
Accordingly, you will find enclosed a copy of the expunged versions of documents 3 and 5, as
well as the original version of document 2 in German, the language of the proceedings. Please
note that English versions are not available.
The disclosed documents were transmitted by the Court of Justice to the Commission in its
capacity as participant in the court proceedings. Access to them is granted for information only
and they cannot be re-used without the agreement of the originators, who may hold the
copyright on them. They do not reflect the position of the Commission and cannot be quoted as
such.
3.
REFUSAL OF THE WRITTEN OBSERVATIONS SUBMITTED BY FRANCE (DOCUMENT 4)
3.1. Protection of the financial, monetary or economic policy of the Community or a
Member State
Article 4(1)(a), fourth indent, of Regulation (EC) No 1049/2001 states by way of exception that
"
[t]he institutions shall refuse access to a document where disclosure would undermine the
protection of : […] – the financial, monetary or economic policy of the Community or a
Member State.”
In this regard, the French authorities mention that the Member States have a wide margin of
appreciation for the purposes of determining whether the disclosure of documents falling within
the fields covered by this exception is liable to harm the public interest.2
In its response to the Commission’s consultation, the French Government indicates that the
disclosure of their written observations risks undermining European monetary policy because
they discuss the existence of an internal audit of the Eurosystem and the absence of the
purchase of certain securities by the Banque de France.
Accordingly, the French Government concludes that the document requested is covered by the
abovementioned exception and cannot be disclosed, even partially.
2 Judgment of the General Court of 13 January 2011, Case T-362/08,
IFAW Internationaler Tierschutz-Fonds v
Commission, ECLI:EU:T:2011:6, paragraphs 104 and 105.
2
3.2. Protection of court proceedings
Article 4(2) second indent of Regulation (EC) No 1049/2001 states by way of exception that
"[t]he institutions shall refuse access to a document where disclosure would undermine the
protection of court proceedings [...] unless there is an overriding public interest in disclosure".
The purpose of the above-mentioned exception is to protect the integrity of court proceedings
and to ensure the proper course of justice. In this regard, the Court has admitted in Joined Cases
C-514/07P, C-528/07P and C-532/07P (
API judgment), the possibility that disclosure of
pleadings relating to court proceedings, which are closed but connected to other proceedings
which remain pending, may create a risk that the later proceedings might be undermined
3.
In this specific case, the French authorities indicate that, although Case C-62/14 and the
national court proceedings which gave rise to the reference for a preliminary ruling in the
context of this case are now closed, two related proceedings are still pending before the
German Constitutional Court.
On the one hand, following the judgment of 5 May 2020, the applicant Peter Gauweiler
considers that the Bundestag and the Federal Government are still required to act with the ECB
so that the Governing Council meets the requirements of the judgment of the Federal
Constitutional Court of Karlsruhe, in connection with the monitoring of compliance with the
principle of proportionality. On the other hand, the Alternative für Deutschland (AfD) group in
the Bundestag announced in a press release on 28 August 2020 that it had filed a complaint
relating to the “Pandemic Emergency Purchase Program”, the monetary policy program
launched by the ECB in March 2020 in order to combat the economic crisis linked to the
Covid-19 pandemic.
In the light of the above, access to the observations submitted by the Government of France
must be refused.
3.3. Protection of the purpose of investigations
The French authorities consider that their written observations are also covered by the
exception provided for in Article 4(2), third indent, of Regulation (EC) No 1049/2001, which
states by way of exception that ”
[t]he institutions shall refuse access to a document where
disclosure would undermine the protection of [...] ̶ the purpose court proceedings [...] unless
there is an overriding public interest in disclosure".
In this respect, they argue that it is reasonable to envisage that, having regard to the judgment
delivered by the German Federal Constitutional Court, the Commission is likely to open an
infringement procedure against Germany. The French authorities consider that such a
procedure should, in the present context, be assimilated to an investigation procedure within the
meaning of that article. In their view, the pre-litigation procedure would have an obvious
connection with the judicial proceedings relating to the
Gauweiler case.
In the light of this, the French authorities consider that it is justified, at present, to refuse to
disclose the written observations submitted by the French Government in the context of Case
C-62/14, based on the exception for the protection of investigations laid down in Article 4(2),
third indent, of Regulation (EC) N0 1049/2001.
3 Judgment of the Court of Justice of 21 September 2010, Joined Cases C-514/07P, C-528/07P and
C-532/07P,
Sweden a.o. v API and Commission, ECLI:EU:C:2010:541.
3
4.
PROTECTION OF PERSONAL DATA (DOCUMENTS 3 AND 5)
As stated above, some personal data has been redacted in the disclosed documents
i.e. the
handwritten signatures of the lawyers acting on behalf of the European Central Bank in
document 3, as well as the contact details and handwritten signatures of the lawyers
representing the Government of Germany in document 5.
Article 4(1)(b) of Regulation (EC) No 1049/2001 states by way of exception that
“the
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”.
As the Court of Justice has ruled, when access to documents is requested containing personal
data, the Data Protection Regulation, i.e. Regulation (EU) No 2018/1725,4 becomes fully
applicable.5
Article 3(1) of Regulation (EU) No 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.6
With regard to the personal data such as names, signatures, functions, telephone numbers and
other information relating to the institution's officials, the General Court has recognised in its
judgment in Case T-39/17 that they fall within the notion of "private life" regardless of whether
this data is registered in the context of a professional activity7 and, therefore, it constitutes
personal data in the meaning of Article 3(1) of Regulation (EU) No 2018/1725. Consequently,
the handwritten signatures of the lawyers acting on behalf of the European Central Bank in
document 3 have been redacted.
Furthermore, in its judgment in Joined Cases C-465/00, C-138/01 and C-139/01 the Court has
confirmed that
“there is no reason of principle to justify excluding activities of a professional
nature […] from the notion of private life”.8
On this basis, the contact details and handwritten signatures of the lawyers representing the
Government of Germany in document 5 have been deleted, since it constitutes personal data in
the meaning of Article 3(1) of Regulation (EU) No 2018/1725.
4 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/EC (OJ L 205 of 21.11.2018, page 39).
5 Judgment of the Court of Justice of 29 June 2010, Case C-28/08P,
European Commission v
The Bavarian
Lager Co. Ltd, ECLI:EU:C:2010:378, paragraphs 59 and 63. 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 (EC) 2018/1725.
6 Judgment of the Court of Justice of 20 December 2017, Case C-434/16,
Peter Nowak v Data Protection
Commissioner, ECLI:EU:C:2017:994, paragraphs 33-35.
7 Judgment of the General Court of 19 September 2018, Case T-39/17,
Chambre de commerce et d’industrie
métropolitaine Bretagne-Ouest (port de Brest) v Commission, ECLI:EU:T.2018:560, paragraphs 37, 38 and 43.
8 Judgment of the Court of Justice of 20 May 2003, Joined Cases C-465/00, C-138/01 and C-139/01,
Rechnungschof and Others v Österreichischer rundfund, ECLI:EU:C:2003:294, paragraph 73.
4
Pursuant to Article 9(1)(b) of Regulation (EU) No 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 met and the processing constitutes lawful processing in accordance
with the requirements of Article 5 of Regulation (EU) No 2018/1725, can the transmission of
personal data occur.
According to Article 9(l)(b) of Regulation (EU) No 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 request, 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 subject 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 (EC) No 1049/2001,
access cannot be granted to the above-mentioned 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Pursuant to Article 4(2) of Regulation (EC) No 1049/2001, the exception to the right of access
must be waived if there is an overriding public interest in disclosing the requested document. In
order for an overriding public interest in disclosure to exist, this interest, firstly, has to be
public and, secondly, overriding, i.e. in this case it must outweigh the interests protected under
Article 4(2) first indent and second indents. In the present case, I see no elements capable of
showing the existence of an overriding public interest in disclosure of the refused document
that would outweigh the public interest in the protection of the ongoing national proceedings
and a possible infringement procedure against a Member State.
Please note that the exceptions of Article 4(1)(a), first indent (
“protection of the financial,
monetary or economic policy”) and Article 4(1)(b) (
“protection of personal data”) have an
absolute character and do not envisage the possibility of demonstrating the existence of an
overriding public interest.
5
4.
MEANS OF REDRESS
Should you wish this position to be reconsidered, you should present in writing, within fifteen
working days from receipt of this letter, a confirmatory application to the Commission's
Secretariat-General at the address below:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[signed electronically]
Daniel CALLEJA CRESPO
Attachments: 3
6