Ref. Ares(2021)3761835 - 08/06/2021
EUROPEAN COMMISSION
Secretariat-General
Directorate C – Transparency, Efficiency & Resources
The Director
Brussels
SG.C.1/ED
By registered mail with AR
Ms Lili Bayer
POLITICO Europe
Rue de la Loi 62
Brussels 1040
Belgium
Copy by email:
ask+request-9470-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2021/3096
Dear Ms Bayer,
I refer to your request of 11 May 2021, registered on the same day, in which you make a
request for access to documents, under the above-mentioned reference number.
1.
SCOPE OF YOUR REQUEST
You request access to, I quote:
‘Any correspondence between the cabinet of Commission President Ursula von der
Leyen and Doctors Without Borders (MSF) in the period between November 2020 and
May 2021. Any internal cabinet notes, memos or correspondence among cabinet staff
which mention MSF in the period between November 2020 and May 2021.’
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
The Secretariat-General of the European Commission has identified the following
documents as falling under the scope of your request:
- Letter from MSF to the Presidents of the European Commission and the European
Council on COVID-19 health technologies – IP, dated 22 February 2021 –
reference Ares(2021)1409308 (letter and cover email, hereafter ‘documents 1 and
2’);
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- Reply from President von der Leyen, dated 20 April 2021, reference
Ares(2021)2639064 (hereafter ‘document 3’).
I can inform you that wide partial access is granted to the requested documents only
subject to redactions due to the protection of personal data as per point (b) of Article 4(1)
of Regulation (EC) No 1049/2001 for the reasons set out below.
2.1. Protection of the 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)1, 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 data2 (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/EC3 (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’.4
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
1
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.
2
OJ L 8, 12.1.2001, p. 1.
3
OJ L 295, 21.11.2018, p. 39.
4
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
2
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’.5
The requested documents contain personal data such as the names, functions, contact
details of persons, including those who do not form part of the senior management of the
European Commission.
The names6 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.7 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 request for access to documents, 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.
5
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.
6
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
7
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
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 requested 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that point (b) of Article 4(1) 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
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.
However, for the reasons explained above, no wider partial access is possible without
undermining the interests described above.
5.
MEANS OF REDRESS
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 Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels,
4
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana Verrier
Director
Enclosures: 3 documents
5
Electronically signed on 08/06/2021 15:30 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline