Ref. Ares(2022)5661451 - 09/08/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE AND CONSUMERS
Director-General
Brussels, 4 August 2022
JUST.C.4/AV
Nienke Palstra,
Global Witness
Rue Belliard 53
1000 Bruxelles
Belgium
Sent by e-mail to: ask+request-
xxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject: Your application for access to documents – GESTDEM 2022/3019
Dear Ms. Palstra,
We refer to your request for access to documents of 24 May 2022, registered under the
above-mentioned reference number.
You request access to “All documents—including but not limited to correspondence,
emails, minutes, notes (hand written or electronic), audio or video recordings, verbatim
reports, operational conclusions, lines to take, briefings, and presentations related to the
meeting on 2022-03-30 between Geneviève Tuts and Lucrezia Busa and Meta Platforms
Ireland Limited and its various subsidiaries (f/k/a Facebook Ireland Limited).”.
We have identified the following documents that corresponds to your request:
1. Briefing for meeting with Meta (Ares(2022)5582402);
2. E-mail exchange with Meta (Ares(2022)5600316).
Assessment of identified documents
Following an examination of the documents, I have come to the conclusion that document 1
may be partially disclosed. Full disclosure is prevented by exceptions to the right of access
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË — Tel. +32 22991111
laid down in Article 4 of Regulation (EC) No 1049/20011, notably Article 4(1) third indent,
Article 4(2) second indent and Article 4(3).
First, Article 4(1), third indent, provides that "
the institutions shall refuse access to a
document where disclosure would undermine the protection of [...] the public interest as
regards [...] international relations." Some of the redacted parts concern the ongoing
negotiations with the United States on a successor arrangement to the Privacy Shield. We
consider that making the redacted parts public would seriously prejudice the mutual trust
between the European Union and the United States, both as regards the ongoing talks on
a new transatlantic data transfer framework after the invalidation of the EU-U.S. Privacy
Shield by the Court of Justice of the European Union and other transatlantic files. After
the invalidation of the European Commission’s adequacy decision 2016/1250 regarding
the EU-U.S. Privacy Shield, the European Commission and the U.S. Department of
Commerce are in negotiations on a strengthened transatlantic data transfer framework to
comply with the judgement of the Court of Justice. In light of these ongoing talks, it is
important to protect the credibility of the European Commission as a negotiating partner.
Establishing and protecting an atmosphere of mutual trust is a delicate exercise and any
breach of that trust can have a serious adverse effect on the ongoing talks as well as
future cooperation.
Second, in accordance with Article 4(3), “
access to a document, drawn up by an institution
for internal use […], which relates to a matter where the decision has not been taken by the
institution, shall be refused if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure”. It follows from the case-law of the General Court that the exception in
Article 4(2), third indent, of Regulation 1049/2001 applies if disclosure of the documents
in question may endanger the completion of inspections, investigations or audits
(Judgment of 6 July 2006, Franchet and Byk v Commission, T-391/03 and T-70/04,
paragraphs 109 and 110). The exception may also be invoked with respect to
investigations carried out by national authorities (Judgment of the General Court of 12
May 2005 in case T-623/13, Unión de Almacenistas de Hierros de España v
Commission, paragraph. 44). In this case, some of the redacted parts contain information
about ongoing investigations by national data protection authorities and related
discussions at the level of the European Data Protection Board, which are treated as
confidential by the Board in accordance with Article 76(1) of Regulation (EU) 2016/679
of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement
of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
There is a foreseeable risk that making the information public would interfere with the
task of national data protection authorities to independently and effectively investigate
and enforce compliance with the General Data Protection Regulation, as it would expose
the authorities and the European Data Protection Board to the foreseeable risk of coming
under outside pressures. Moreover, disclosing the information would seriously affect the
climate of mutual trust between the Commission and the European Data Protection
Board. The exception laid down in Article 4(2), third indent of Regulation 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest
must, firstly, be public and, secondly, outweigh the harm caused by disclosure. In your
request, you do not put forward any reasoning pointing to an overriding public interest in
disclosing the document requested. Nor have we been able to identify any public interest
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents
capable of overriding the public and private interests protected by Article 4(2), third
indent, and Article 4(3), second subparagraph, of Regulation 1049/2001.
Finally, Article 4(2), second indent of Regulation 1049/2001 provides that “[
t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of: […] court proceedings and legal advice.” In the case at hand, the refusal of
access to a part in the document concerned is based on a need to protect pending court
proceedings. The information included in this undisclosed part of the document contains
analysis of the Commission regarding key issues in the pending Case T-709/21, in which
the Court is expected to deliver landmark decisions concerning the functioning of the
consistency mechanism under the General Data Protection Regulation. Disclosure of the
redacted part of the document concerned could compromise the position of the
Commission in that case. As recognized by the CJEU, the exception provided for in
Article 4(2), second indent of Regulation 1049/2001 covers not only the interests of the
parties in the context of court proceedings, but more generally the proper conduct of
judicial proceedings. In the case at hand there is a risk that public disclosure of the
redacted part in question would result in undermining the serenity of the proceedings and
the principle of the sound administration of justice.
Protection of personal data
A complete disclosure of the identified documents is prevented by the exception concerning
the protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation (EC) No 1049/2001, because it contains personal data.
Article 9(1)(b) of the Data Protection Regulation2 does not allow the transmission of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data nor do you put
forward any arguments to establish the necessity to have the data transmitted for a specific
purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents, 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 disclosure of the personal data concerned.
In case you would disagree with this position, you are entitled, in accordance with Article
7(2) of Regulation (EC) No 1049/2001, to submit 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’
2 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/EC, OJ L 295, 21.11.2018, p. 39.
BERL 7/076
B-1049 Brussels, or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
We would appreciate if you could confirm receipt of the present e-mail by replying
to:
xxxxxxx@xx.xxxxxx.xx.
Yours faithfully,
(e-signed)
Ana Gallego
Electronically signed on 08/08/2022 11:10 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121