EUROPEAN COMMISSION
Brussels, 23.3.2022
C(2022) 1946 final
Ms Margarida Da Silva
Rue d'Edimbourg 26,
1050 Brussels
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION NO (EC) 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2021/5927
Dear Ms Da Silva,
I refer to your email of 12 December 2021, registered on the same day, 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 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 7 October 2021, addressed to the Directorate-General for
Human Resources and Security, you requested access to, I quote: ‘documents which
relate to any article 16, article 12B and article 40 (staff regulations) applications made by
X3.’ In particular, you requested ‘a note of all X's job titles at the Commission including
dates held; copies of any application(s) that he has made under article 12b, 16 and 40 to
undertake a new professional activity; and all documents(correspondence, emails,
meeting notes etc) related to the authorisation of the new role or role.’
1
Official Journal L 345, 29.12.2001, p. 94.
2 Official Journal L 145, 31.5.2001, p. 43.
3 In your initial application, you refer to the identified individual (a staff member of the European
Commission not holding any senior management position). The name of that individual has been
replaced by ‘X’ in this decision.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
On 22 November 2021, the Directorate-General for Human Resources and Security sent
you a negative initial reply based on the exception of Article 4(1)(b) (protection of
privacy and the integrity of the individual) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
below.
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 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 Human Resources and Security as the European Commission
is not in a position to identify the documents falling within the scope of your application
without interfering with the right to privacy and data protection based on the exception
laid down in Article 4(1)(b) 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 ‘[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)4, 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 data5 (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/EC6 (hereafter ‘Regulation (EU) 2018/1725’).
4 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.
5 Official Journal L 8, 12.1.2001, p. 1.
6 Official Journal L 295, 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’7.
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’8.
In the
VG v Commission judgment, the General Court ruled that even anonymised data
should be considered as personal data, if it would be possible to link them to an
identifiable natural person through additional information9.
In the present case, a clear link to an identifiable person remains, since your request
focuses on an identified natural person. Therefore, it is clear that even the mere
identification of the documents requested implies the processing of personal data and the
information about the existence of documents would constitute processing of personal
data, as this information cannot be disassociated from the natural person it concerns.
The identified natural person mentioned in your request does not form part of the senior
management of the European Commission in the context of your request.
In your confirmatory request, you challenge this by saying that ‘European Commission
considers senior officials to include Directors-General or Deputy Directors-General, Hors
Classe Advisors, Directors, Principal Advisers and Heads of Cabinet. This includes
officials that were ‘called upon to occupy temporarily such posts in accordance with
Article 7(2) of the Staff Regulations and having exercised either of these functions at any
time during the last 3 years before leaving the service. In May 2021 X had reportedly
become the acting director of directorate C (Markets and cases II Information,
Communication and Media). X must then be understood to fall in the senior official
category and thus any application for post-public office employment made by him must
be subject to extra layers of transparency as per article 16 of the EU Staff Regulations.’
7
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
8 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.
9 Judgment of the General Court of 27 November 2018,
VG v Commission, Joined Cases T‑314/16 and
T‑435/16, EU:T:2018:841, paragraph 74.
3
I would like to point out that, before leaving the Commission, X was deputising the role
of the Director (‘acting’ Director)10 and was not acting as an ‘ad interim’ Director.
Acting or deputising Director is not a senior management position, unlike ‘ad interim’
Director.
Deputising function is based on Article 27 of the Commission Decision of 24 February
2010 amending Rules of Procedure11. It can be automatic and it does not imply any
financial advantage. On the other hand, the legal basis for the ad interim figure is Article
7(2) of the Staff Regulations12 and it always requires a decision of the Appointing
Authority. The granting of the interim may lead to the payment of a differential
allowance.
This is the reason why X’s request for post service employment did not figure in the
annual Report that the Commission publishes under Article 16(4) of the Staff Regulation,
which includes all activities from former senior managers13. The report includes a
definition of the categories concerned and the definition of Directors states: ‘Directors
(including officials that have been called upon to occupy temporarily such post in
accordance with Article 7(2) of the Staff Regulations) and Principal Advisers, having
exercised either of these functions at any time during the last 3 years before leaving the
service’.
In the Nowak judgment14, the Court of Justice has acknowledged that ‘[t]he use of the
expression “any information” in the definition of the concept of “personal data”, within
Article 2(a) of Directive 95/46, reflects the aim of the EU legislature to assign a wide
scope to that concept, which is not restricted to information that is sensitive or private,
but potentially encompasses all kinds of information, not only objective but also
subjective, in the form of opinions and assessments, provided that it “relates” to the data
subject’. As regards the latter condition, it is satisfied where the information, by reason of
its content, purpose or effect, is linked to a particular person (emphasis added).
In your confirmatory request, you ask for the partial access to the requested documents
by stating that ‘it should be completely feasible for the European Commission to protect
special categories of personal data while also releasing parts of the documents covered
within the scope of my request’.
10 Or deputising or ‘faisant fonction’ in French.
11
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0138&from=en 12
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:01962R0031-20140501&from=EN 13 The annual reports on the occupational activities of senior official after leaving the service are publicly
available
on
https://ec.europa.eu/info/publications/occupational-activities-former-senior-officials-
annual-report_en
14 Judgment of the Court of Justice of 20 December 2017,
Peter Nowak v
Data Protection Commissioner
(Request for a preliminary ruling from the Supreme Court), C-434/16, EU:C:2017:994, paragraphs 34-
35.
4
However, as mentioned, even the mere identification of the documents requested would
lead to the identification of the individual person. Establishing a list of requested
documents would constitute processing of personal data, thus undermining the protection
of privacy and the integrity of the data subject concerned. The stage where the
Commission could eventually consider granting partially access to identified documents
is therefore not even reached in this case.
The names 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) 2018/172515. Applications under Article 12b and authorisations under
Article 16 are part of the personal file of the staff member and are accordingly covered
by the confidentiality under Article 26 of the Staff regulations.
In this regard, the Secretariat-General would like to emphasise that your request targets
personal data that go beyond the data subject’s name, surname and function as you
requested documents that relate to ‘all X's job titles at the Commission including dates
held; copies of any application(s) that he has made under article 12b, 16 and 40 to
undertake a new professional activity; and all documents(correspondence, emails,
meeting notes etc) related to the authorisation of the new role or role.’
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 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,
15
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
16 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v
European Food Safety Authority, C-
615/13 P, EU:C:2015:489, paragraph 47.
5
establish the proportionality of the transmission of the personal data for that specific
purpose after having demonstrably weighed the various competing interests.
To establish the necessity to have the data transmitted, you argue that, I quote: ‘there is a
public interest in understanding how the EU Commission assessed and handled an
employment request for such a high level official. This is especially true in a case that
involves such a high level official taking up employment in a private company that is
active on matters for which the official had been responsible. Citizens have a right to
know how the Institutions handle such cases, that transparency and accountability are
crucial for the proper implementation of these rules.’
That argument cannot justify the transmission of the personal data at stake, which may
fall within the notion of ‘private life’ regardless of whether this data is registered in the
context of a professional activity17. Following your reasoning, when requesting access to
documents concerning personal data, all applicants invoking the principle of transparency
in certain sphere of the European Commission’s political competence would gain access
to said personal data.
Moreover, the General Court confirmed in the
Psara judgment that general
considerations relating to the public interest in the disclosure of personal data regarding
parliamentary mandate holders in order to guarantee the public right to information and
transparency do not establish the need for the transfer of the personal data18. This
conclusion applicable to parliamentary mandate holders is all the more relevant in
relation to natural persons who do not form part of the senior management of the
European Commission.
You also mentioned that the case has drawn media attention as well as criticism on the
part of the European Parliament MEPs, highlighting the data subject’s seniority.
First, as explained above, the data subject did not form part of the senior management of
the Commission. In the
Psara judgment, the General Court has ruled that ‘the
classification of the data at issue as personal data cannot be ruled out merely because
those data are related to other data which are public, which is the case irrespective of
whether disclosure of those data would undermine the legitimate interests of the persons
concerned’19. Similarly, in this case, the fact that information is already publicly
available does not mean that identification of requested documents would not constitute
processing of personal data.
17 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.
18 Judgment of the General Court of 25 September 2018,
Psara et al. v
European Parliament, T-639/15
to T-666/15 and T-94/16, EU:T:2018:602, paragraphs 73-76.
19 Judgment of the General Court of 25 September 2018,
Psara et al. v
European Parliament, T-639/15
to T-666/15 and T-94/16, EU:T:2018:602, paragraph 53.
6
Secondly, while the General Court has indeed accepted in
Evropaïki Dynamiki
judgment20 that disclosure of certain documents cannot be withheld if similar information
is also contained in the public domain, the situation is not comparable. The information
concerned by your request has not been made public either by the European Commission
or by the data subject concerned.
Against this background, the Secretariat-General emphasises that the mere identification
of documents in the context of your request entails the processing of personal data, which
constitutes an interference with the right to privacy and data protection and is not
proportionate and necessary in the public interest.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subject concerned would be prejudiced by the processing of the requested personal
data, as there is a real and non-hypothetical risk that the mere identification of documents
in the context of your request would harm the privacy and subject the natural person
concerned to unsolicited external contacts.
Consequently, the Secretariat-General concludes that, pursuant to Article 4(1)(b) of
Regulation (EC) No 1049/2001, the European Commission is not in a position to identify
the documents requested, as the need to obtain access to the personal data of the data
subject concerned 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 the disclosure of the personal data concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
Pursuant to Article 4(6) of Regulation (EC) No 1049/2001, ‘If only parts of the requested
document are covered by any of the exceptions, the remaining parts of the document
shall be released.’
However, as the Secretariat-General is not in a position to identify the documents that fall
within the scope of your confirmatory application without undermining the interests
described above, it is neither in a position to consider the possibility of granting partial
access to the documents requested.
20 Judgment of the General Court of 6 December 2012,
Evropaïki Dynamiki v
Commission, T-167/10,
EU:T:2012:651, paragraphs 87-88.
7
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
8
Document Outline
