Ref. Ares(2021)5245063 - 24/08/2021
EUROPEAN COMMISSION
Secretariat-General
Directorate C – Transparency, Efficiency & Resources
The Director
Brussels
SG.C.1/ED
By registered mail with AR
Mr Le Louarn Adrien
Parlement européen
Bât. Altiero Spinelli 07H357
60, rue Wiertz
B-1047 Brussels
Belgium
Copy by email:
ask+request-9726-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2021/4286
Dear Mr Le Louarn,
I refer to your request of 28 June 2021, registered on 29 June 2021 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:
‘1. Letters, email and documents sent by civil society actors (NGOs, companies,
business associations, chambers of commerce, etc.) to Commissioner Jourova and her
cabinet in relation with the sustainable corporate governance and the corporate due
diligence legislative process.
2. Minutes and notes from meetings (including phone call and videoconferences) held
between Commissioner Jourova, her cabinet and civil society actors (NGOs, companies,
business associations, chambers of commerce, etc.) in relation with the sustainable
corporate governance and the corporate due diligence legislative process. Those include
the meetings already registered in the Transparency Register and Commissioner
Jourova's webpage (05/05/2021 with BusinessEurope ; 29/04/2021 with Hospodářská
komora České republiky (HK ČR) ; etc.)’.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
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:
- Meeting request from NGOs - Exchange on EU Sustainable Corporate
Governance & Corporate Due Diligence - Ares(2021)1981468 (hereafter
‘document 1’)
- Report from the meeting of Cabinet Jourova with representatives of NGOs on
Sustainable Corporate Governance on 7 April 2021, Ares(2021)4862432
(hereafter ‘document 2’)
- Email on Responsibility in Supply Chains, SWP Comment 2021/C 21
Ares(2021)2074289 (hereafter ‘document 3’)
- Meeting request between Ms Jourova and BusinessEurope, Ares(2021)2104751
(hereafter ‘document 4’)
- Reply to the meeting request between Ms Jourova and BusinessEurope,
Ares(2021)2173520 (hereafter ‘document 5’)
- Report from the meeting between Ms Jourova and BusinessEurope,
Ares(2021)3017937, (hereafter ‘document 6’)
- Report from CAB Jourova and CAB PRES meeting with Business Europe on
Sustainable Corporate Governance Ares(2021)2765192 (hereafter ‘document 7’)
- Report from CAB Jourova meeting with Deutsche Post DHL Group on
sustainable corporate governance on 22/04/2021, Ares(2021)2765262 (hereafter
‘document 8’)
- DPDHL Sustainability Roadmap, Ares(2021)2765262, (hereafter ‘document 9’)
- Request for a video call with Ms Jourova - recent resolution of the European
Parliament on Corporate due dilligence and corporate responsibility matters -
Ares(2021)2044559 (hereafter ‘document 10’)
- Reply to the request for a video call with Ms Jourova - recent resolution of the
European Parliament on Corporate due dilligence and corporate responsibility
matters, Ares(2021)2173472 (hereafter ‘document 11’)
- Report meeting of Vice-President Jourova with Vladimir Dlouhy, President of the
Czech Chamber of Commerce and Deputy-President of Eurochambres on
Sustainable Corporate Governance, 29/04/2021, Ares(2021)2871290, cover page
and report (hereafter ‘documents 12 and 13)
- Email on ECCJ materials on the upcoming EU directive on sustainable corporate
governance (due diligence) & civil liability, Ares(2021)3008490 (hereafter
‘document 14’)
- FAQ Civil liability in the Sustainable Corporate Governance Directive,
Ares(2021)3008490 (hereafter ‘document 15’)
- Reply to email on ECCJ materials on the upcoming EU directive on sustainable
corporate governance (due diligence) & civil liability, Ares(2021)3011406
(hereafter ‘document 16’)
- Report from the meeting with representatives of civil society organizations on the
Sustainable Corporate Governance - 26/05/2021, Ares(2021)3485198
(hereafter ‘document17’)
2
- Call for a Redirection of EU Sustainable Corporate Governance Reform
Proposals, endorsed by 50 academics from Nordic Business Schools,
Ares(2021)3291754, cover email and call for redirection signed (hereafter
‘documents 18 and 19’)
- Email from Confederation of Swedish Enterprise on the initiative on Corporate
Governance, Ares(2021)3448568 (hereafter ‘document 20’)
- Two-page overview from Confederation of Swedish Enterprise on the initiative
on Corporate Governance, Ares(2021)3448568 (hereafter ‘document 21’)
- Reply to the email from Confederation of Swedish Enterprise on the initiative on
Corporate Governance, Ares(2021)3450323 (hereafter ‘document 22’)
- Report from the meeting with the Confederation of Swedish Enterprise on
Sustainable Corporate Governance, 07/06/2021, Ares(2021)3824992 (hereafter
‘document 23’)
- Email on NGO briefing on sustainable corporate governance and board
obligations Ares(2021)4028341 (hereafter ‘document 24’)
- NGO policy briefing on sustainable corporate governance and board obligations
Ares(2021)4028341 (hereafter ‘document 25’)
- Report from the meeting of Cabinet Jourova with Global Witness on the
Sustainable Corporate Governance Initiative – 27/07/2021, Ares(2021)4808957
(hereafter ‘document 26’)
- Reply to the email on NGO briefing on sustainable corporate governance and
board obligations, dated 9 July 2021, (hereafter ‘document 27’)
- NGO briefing on sustainable corporate governance and board obligations plus
reply, Ares(2021)4808064 (hereafter ‘document 28’)
- NGO concerns on the Sustainable Corporate Governance proposal - request for
possible call, Ares(2021)4034628 (hereafter ‘document 29’)
- NGO concerns on the Sustainable Corporate Governance proposal plus Ms
Constantin reply to the NGO coalition representative - Ares(2021)4054853
(hereafter ‘document 30’)
- Email on meeting request to Ms Jourova: role of industry schemes & industry
initiatives in EU mandatory due diligence legislation (SGC), Ares(2021)4315089
(hereafter ‘document 31’)
- Letter to Ms Jourova: meeting request - role of industry schemes & industry
initiatives in EU mandatory due diligence legislation (SGC), Ares(2021)4315089
(hereafter ‘document 32’)
- Reply to email on meeting request to Ms Jourova: role of industry schemes &
industry initiatives in EU mandatory due diligence legislation (SGC),
Ares(2021)4556103 (hereafter ‘document 33’)
- Report from the meeting of Cabinet Jourova with the Responsible Business
Alliance (RBA) on Sustainable Corporate Governance – 28/07/2021,
Ares(2021)4837661 (hereafter ‘document 34’)
3
- Letter on behalf of the German civil society, Initiative Lieferkettengesetz (Supply
Chain Law), representing 128 NGOs, trade unions, churches regarding the
European Commission’s forthcoming proposal for an EU directive on Sustainable
Corporate Governance, cover email and letter, Ares(2021)4366429 (hereafter
‘documents 35 and 36’)
- Danish Committee on Corporate Governance: Joint letter on the European
Commission’s upcoming initiative on sustainable corporate governance, cover
email and letter, Ares(2021)4368707 (hereafter ‘documents 37 and 38’)
- BusinessEurope letter on upcoming Sustainable Corporate Governance package:
impact assessment concerns, cover email and letter, Ares(2021)2900189
(hereafter ‘documents 39 and 40’)
- Reply to BusinessEurope letter on upcoming Sustainable Corporate Governance
package: impact assessment concerns, cover email and letter, Ares(2021)4776850
(hereafter ‘documents 41 and 42’)
- Joint statement from group of stakeholders on sustainable corporate governance,
Ares(2021)4862461, cover email and letter (hereafter ‘documents 43 and 44’)
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.
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.
4
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 […]’.
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 (addresses, email addresses, phone numbers), handwritten signatures,
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.
3
OJ L 295, 21.11.2018, p. 39.
4
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
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.
5
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.
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.
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.
6
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,
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana Verrier
Director
Enclosures: 44 documents
7
Electronically signed on 23/08/2021 17:46 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline