Ref. Ares(2022)987750 - 10/02/2022
EUROPEAN COMMISSION
SECRETARIAT-GENERAL
Directorate C - Transparency, Efficiency & Resources
The Director
Brussels
SG.C.1
Mr. Peter Teffer
Ekko Voorkamer
Bemuurde Weerd WZ 3
3513 BH Utrecht
The Netherlands
by email: ask+request-10563-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2022/0490
Dear Sir,
We refer to your e-mail of 19 January 2022 in which you make a request for access to
documents, registered on 21 January 2022 under the above-mentioned reference number.
1.
SCOPE OF YOUR REQUEST
You request access to, I quote: ‘All documents related to the drafting of
Commission Decision (EU) 2021/2121 of 6 July 2020 on records management and
archives (C/2020/4482), including but not limited to:
– Any document containing an evaluation or assessment of the implementation of
Decision 2002/47/EC, ECSC, Euratom (including but not limited to REFIT or
other Better Regulation tool)
– Any document containing an evaluation or assessment of the implementation of
Decision 2004/563/EC, Euratom (including but not limited to REFIT or other
Better Regulation tool)
– The European Data Protection Supervisor opinion with recommendations from 3
March 2020 (as mentioned in recital 26 of Decision (EU) 2021/2121)
– Any assessment of the draft version(s) of Decision (EU) 2021/2121 by the
Regulatory Scrutiny Board
– Any impact assessment of the draft version(s) of Decision (EU) 2021/2121
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
– Any internal consultations concerning draft versions of Commission Decision
(EU) 2021/2121
– Any e-mails, minutes, progress reports, and other documents concerning draft
versions of Commission Decision (EU) 2021/2121’.
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:
(1)
email Ares(2020)159783 ‘Draft Decision on records management and
archives’ sent on 10 January 2020 by the Director SG.C to the Deputy
Secretary-General and the other Directors of the Secretariat-General;
(2)
draft Decision attached to the note Ares(2020)159783;
(3)
note Ares(2020)830488 ‘Interservice consultation on the draft Decision and
Implementing Rules on Records Management and Archives’ sent on
10 February 2020 by the Secretary-General to the Head of Cabinet of the
President;
(4)
note Ares(2020)961770 ‘Interservice consultation on the draft Decision and
Implementing Rules on Records Management and Archives’ sent on
14 February 2020 by the Secretary-General to the Directors-General and
Heads of Service;
(5)
note Ares(2020)1041505 ‘Consultation on the draft Decision and
Implementing Rules on Records Management and Archives’ sent on
18 February 2020 by the Commission to the European Data Protection
Supervisor;
(6)
letter Ares(2020)1361756 ‘EDPS comments on the draft European
Commission's Decision and Implementing Rules on Records Management
and Archives’ sent on 3 March 2020 by the European Data Protection
Supervisor to the Commission;
(7)
enclosure of the letter Ares(2020)1361756;
(8)
email Ares(2020)1411738 ‘FW: ISC/2020/00857 - Records management and
archives’ sent on 6 March 2020 by Commission’s Data Protection Officer;
(9)
email Ares(2020)2531349 ‘RE: Ares(2020)1411738 - FW: ISC/2020/00857
- Records management and archives’ sent on 13 March 2020 to
Commission’s Data Protection Officer;
(10)
draft Decision (version of 13 May 2020) attached to Ares(2020)2531349;
(11)
document ‘Derogations from the Rights of data subjects for archiving in the
public interest. Feasibility assessment regarding pseudonymisation, necessity
assessment and proportionality assessment’ attached to Ares(2020)2531349;
2
(12)
document ‘Modifications following EDPS recommendations of 3 March
2020, and DPO comments of 6 March 2020, on the draft Commission
Decision on Records Management and Archiving’ attached to
Ares(2020)2531349;
(13)
resume of the Interservice Consultation ISC/2020/00857, extracted from
DECIDE;
(14)
Excel sheet resuming all the answers by consulted directorates-general to the
Interservice Consultation ISC/2020/00857, extracted from DECIDE;
(15)
document attached to the answer to the Interservice Consultation sent by DG
AGRI, extracted from DECIDE;
(16)
document attached to the answer to the Interservice Consultation sent by DG
CNECT, extracted from DECIDE;
(17)
another document attached to the answer to the Interservice Consultation
sent by DG CNECT, extracted from DECIDE;
(18)
document attached to the answer to the Interservice Consultation sent by DG
AGRI, extracted from DECIDE;
(19)
note Ares(2020)1286999 ‘Interservice consultation on the draft Decision and
Implementing Rules on Records Management and Archives – DG COMP
comments’ sent on 2 March 2020 by the Director ‘Horizontal Management’
of DG COMP to the Secretary-General;
(20)
document attached to the answer to the Interservice Consultation sent by
DG-EDIT, extracted from DECIDE;
(21)
document attached to the answer to the Interservice Consultation sent by DG
DIGIT, extracted from DECIDE;
(22)
document attached to the answer to the Interservice Consultation sent by DG
EAC, extracted from DECIDE;
(23)
document attached to the answer to the Interservice Consultation sent by DG
ECFIN, extracted from DECIDE;
(24)
document attached to the answer to the Interservice Consultation sent by DG
ENER, extracted from DECIDE;
(25)
email attached to the answer to the Interservice Consultation sent by DG HR,
extracted from DECIDE;
(26)
document attached to the answer to the Interservice Consultation sent by DG
HR, extracted from DECIDE;
(27)
draft decision with comments attached to the answer to the Interservice
Consultation sent by DG HR, extracted from DECIDE;
(28)
draft decision with other comments attached to the answer to the Interservice
Consultation sent by DG HR, extracted from DECIDE;
3
(29)
document attached to the answer to the Interservice Consultation sent by the
JRC, extracted from DECIDE;
(30)
draft decision with comments attached to the answer to the Interservice
Consultation sent by the JRC, extracted from DECIDE;
(31)
document attached to the answer to the Interservice Consultation sent by DG
MARE, extracted from DECIDE;
(32)
document attached to the answer to the Interservice Consultation sent by DG
MOVE, extracted from DECIDE;
(33)
document attached to the answer to the Interservice Consultation sent by the
OP, extracted from DECIDE;
(34)
another document attached to the answer to the Interservice Consultation
sent by the OP, extracted from DECIDE;
(35)
document attached to the answer to the Interservice Consultation sent by DG
REGIO, extracted from DECIDE;
(36)
document attached to the answer to the Interservice Consultation sent by DG
SANTE, extracted from DECIDE;
(37)
another document attached to the answer to the Interservice Consultation
sent by DG SANTE, extracted from DECIDE;
(38)
document attached to the answer to the Interservice Consultation sent by the
SJ, extracted from DECIDE;
(39)
draft Decision with comments attached to the answer to the Interservice
Consultation sent by the SJ, extracted from DECIDE;
(40)
note Ares(2020)2923153 ‘Interservice consultation on the draft Decision and
Implementing Rules on Records Management and Archives’ sent on
5 June 2020 by the Secretary-General to the Directors-General and Heads of
Service;
(41)
draft Decision attached to the note Ares(2020)2923153;
(42)
adoption sheet Ares(2020)3313327 signed on 25 June 2020 by the
Secretary-General;
(43)
draft Decision attached to the adoption sheet Ares(2020)3313327.
Please be informed that there are no documents on ‘evaluation or assessment of the
implementation of Decision 2002/47/EC, ECSC, Euratom’ or Decision
2004/563/EC, Euratom’. There are no documents either on ‘assessment of the draft
version(s) of Decision (EU) 2021/2121 by the Regulatory Scrutiny Board or impact
assessment’. No such evaluation/assessment took place and an impact assessment
was not required.
4
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.
Please note that most of these documents are preliminary drafts, which do not reflect
the position of the Commission and cannot be quoted as such.
Please note that a document originating from a third party (the European Data
Protection Supervisor) is disclosed to you based on Regulation (EC) No 1049/2001.
However, this disclosure is without prejudice to the rules on intellectual property,
which may limit your right to reproduce or exploit the released
document/documents without the agreement of the originator, who may hold an
intellectual property right on it. The European Commission does not assume any
responsibility from their reuse.
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 […]’.
As the Court
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.
5
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/initials and contact information of Commission staff members
not pertaining to the senior management;
– the names/initials and contact details of other natural persons;
– handwritten signatures of natural persons;
– indication of administrative entity allowing identification of natural
persons.
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.
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.
6
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.
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,
7
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana VERRIER
8
Electronically signed on 10/02/2022 15:38 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline