EUROPEAN COMMISSION
Brussels, 12.10.2021
C(2021) 7479 final
Mr Diogo Augusto
6/4 Silvermills
EH3 5BF Edinburgh
The 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 2021/1737
Dear Mr Augusto,
I refer to your letter of 4 May 2021, registered on the same day, 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’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 20 March 2021, attributed to the Secretariat-General of the
European Commission, you requested access to ‘all documents - including but not
limited to minutes, (hand-written) notes, audio recordings, verbatim reports, operational
conclusions, lines to take, briefings, e-mails, and presentations - related to all meetings
between member of the Commission and representatives of BusinessEurope from July
2020 to the present’.
Due to its wide scope, your request has been split between different services of the
Commission. The case registered under 2021/1737 concerns the documents linked to a
meeting between Executive Vice-President Dombrovskis and representatives of
BusinessEurope that took place on 20 November 2020.
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
This case was handled by the Secretariat-General of the European Commission, which
identified the following documents:
Minutes of the meeting with BusinessEurope held on 20 November 2020,
registered under reference Ares(2021)2506110 (hereafter ‘document 1’);
Briefing for the meeting with BusinessEurope held on 20 November 2020,
registered under reference Ares(2021)2760479 (hereafter ‘document 2’).
In its reply of 5 May 2021, the Secretariat-General granted full access to document 1 and
partial access to document 2 based on the exceptions laid down in the third indent of
Article 4(1) (protection of international relations) and Article 4(1)(b) (protection of
personal data) of Regulation EC (No) 1049/2001.
In your confirmatory application, you request a review of this position concerning
document 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.
Following this review, I can inform you that a wider partial access is given to document
2. The remaining redacted parts need to be withheld based on the exceptions laid down in
the third indent of Article 4(1) (protection of international relations) and Article 4(1)(b)
(protection of personal data) of Regulation EC (No) 1049/2001.
The reasons are explained below.
2.1. Protection of the public interest as regards international relations
The third indent of Article 4(1)(a) of Regulation (EC) No 1049/2001 provides that ʻ[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]ʼ.
As far as the interests protected by virtue of Article 4(1)(a) of Regulation (EC) No
1049/2001 are concerned, the Court of Justice has confirmed that it ‘is clear from the
wording of Article 4(1)(a) [of Regulation (EC) No 1049/2001] that, as regards the
exceptions to the right of access provided for by that provision, refusal of access by the
institution is mandatory where disclosure of a document to the public would undermine
the interests which that provision protects, without the need, in such a case and in
contrast to the provisions, in particular, of Article 4(2), to balance the requirements
2
connected to the protection of those interests against those which stem from other
interests’3.
The Court of Justice stressed in the
In ‘t Veld ruling that the institutions ‘must be
recognised as enjoying a wide discretion for the purpose of determining whether the
disclosure of documents relating to the fields covered by [the exceptions provided for in
Article 4(1)(a) of Regulation 1049/2001] could undermine the public interest’4.
Consequently, ‘the Court’s review of the legality of the institutions’ decisions refusing
access to documents on the basis of the mandatory exception […] relating to the public
interest must be limited to verifying whether the procedural rules and the duty to state
reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’5.
Moreover, the General Court ruled that, as regards the interests protected by the above-
mentioned Article, ‘it must be accepted that the particularly sensitive and fundamental
nature of those interests, combined with the fact that access must, under that provision,
be refused by the institution if disclosure of a document to the public would undermine
those interests, confers on the decision which must thus be adopted by the institution a
complexity and delicacy that call for the exercise of particular care.
Such a decision requires, therefore, a margin of appreciation’6. This was further
confirmed by the Court of Justice7.
Document 2 contains the Commission’s and EU lines to take and defensive points on a
number of cross-cutting issues currently under discussion with a wide range of
international partners. This includes, for example EU-US trade relations (e.g. Civil
aircraft dispute, Digital services taxes investigations etc.), EU-China and EU-Mercosur
trade relations, EU’s digital trade agenda etc. In addition, this document also contains the
Commission’s internal assessment of the policies and positions likely to be held by its
negotiating partners concerning these issues.
Public access to this information would reveal strategic objectives of the Commission
and the EU relevant in the framework of current trade and political relations with a
number of third countries and in a number of ongoing and future trade negotiations.
Disclosing the redacted passages would put in the public domain evolving and
preparatory Commission internal policy considerations on strategic directions to address
3 Judgement of the Court of Justice of 1 February 2007, C-266/05 P,
Sison v
Council, EU:C:2007:75,
paragraph 46.
4 Judgment of the Court of Justice of 3 July 2014,
Council v
In ‘t Veld, C-350/12, EU:C:2014:2039,
paragraph 63.
5 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v
Council,
T-264/04, EU:T:2007:114, paragraph 40.
6 Judgment of the General Court of 11 July 2018,
ClientEarth v
European Commission, T-644/16,
EU:T:2018:429, paragraph 23. See also Judgment of the Court of Justice of 3 July 2014,
Council v
In ‘t Veld, C-350/12, EU:C:2014:2039, paragraph 63.
7 Judgment of the Court of Justice of 19 March 2020
, ClientEarth v
European Commission,
C-612/18 P,
EU:C:2020:223, paragraphs 68 and 83.
3
the open issues currently under discussion, thus jeopardising the successful outcome of
the related ongoing exchanges. Moreover, this information could also be used by third
countries to bring undue pressure on the Commission in support of their own interests,
unduly limit the room for manoeuvre of the EU on the international stage, and jeopardise
the EU’s international position.
Public disclosure of this information would also risk undermining the relations between
the EU and those countries as it would affect the atmosphere of mutual trust between the
EU and the countries concerned. This would also, in turn, risk undermining EU’s
negotiating position on the international stage.
In this regard, the General Court found that ‘it is possible that the disclosure of European
Union positions in international negotiations could damage the protection of the public
interest as regards international relations’ and ‘have a negative effect on the negotiating
position of the European Union’ as well as ‘reveal, indirectly, those of other parties to the
negotiations’8. Moreover, ‘the positions taken by the Union are, by definition, subject to
change depending on the course of those negotiations and on concessions and
compromises made in that context by the various stakeholders. The formulation of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators, including the Union itself. In that context, it cannot be precluded that
disclosure by the Union, to the public, of its own negotiating positions, when the
negotiating positions of the other parties remain secret, could, in practice, have a negative
effect on the negotiating capacity of the Union’9.
There is therefore a reasonably foreseeable and not purely hypothetical risk that the
disclosure of the parts redacted under this exception would undermine the international
relations between the EU and a number of third countries. In this context, I would like to
remind you that the documents released under Regulation (EC) No 1049/2001 become
available to the public at large (‘erga omnes’), and not only to the applicant who had
requested them.
Consequently, I must conclude that the redacted parts of document 2 need to be redacted
under the exception laid down in the third indent of Article 4(1)(a) of Regulation (EC)
No 1049/2001 and that access must be therefore refused on that basis.
2.2. 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’.
8 Judgment in
Sophie in’t Veld v
Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
9 Id., paragraph 125.
4
In its judgment in Case C-28/08 P (
Bavarian Lager)10, 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 data11
(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/EC12 (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’13.
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’14.
Document 2 contains personal data such as the names and photos of persons who do not
form part of the senior management of the European Commission. The names15 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
10 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.
11 OJ L 8, 12.1.2001, p. 1.
12 OJ L 295, 21.11.2018, p. 39.
13
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
14 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.
15.
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
5
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 data16. 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.
16 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.
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3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Articles 4(1)(a) and 4(1)(b) of Regulation (EC) No 1049/2001 do not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting further partial access to the documents requested.
As explained above, wider partial access was granted to document 2. The remaining
redacted parts cannot be disclosed as their disclosure would undermine the interests
protected by the exceptions laid down in the third indent of Article 4(1) (protection of
international relations) and Article 4(1)(b) (protection of personal data) of Regulation EC
(No) 1049/2001, for the reasons explained above.
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: 1
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Document Outline