EUROPEAN COMMISSION
Brussels, 23.3.2017
C(2017) 2073 final
Vicky Cann
CEO
Rue d'Edimbourg 26
1050 Brussels
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 – GESTDEM 2017/68
Dear Ms Cann,
I refer to your letter of 8 February 2017, 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 (‘Regulation 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 20 December 2016, addressed to the Directorate-General for
Climate Action (DG CLIMA), you requested access to
all documentation (all invitations,
attendance lists, agendas, background papers, minutes/notes) relating to the High Level
Round Table on Low Carbon Innovation, hosted by the Commission on 9 June 2016.
The Commission has identified 16 documents as falling under the scope of your request:
(1)
12 invitations and the programme of the event, dated 19 April 2016
Ares(2016)1841255;
(2)
Participants' list, dated 9 June 2016, Ares(2017)1365812;
(3)
Speakers' list, dated 9 June 2016, Ares(2017)1365892;
1
Official Journal L 345 of 29.12.2001, p. 94.
2
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail
: xxxxxxxxxx@xx.xxxxxx.xx
(4)
Presentation: ‘Low Carbon Transition – opportunity for Europe or „market
failure“?’, Ares(2017)1365682.
In its initial reply of 20 January 2017, DG CLIMA provided wide partial access to the
documents requested by refusing only to disclose the personal data contained therein,
based on the exception of Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation 1049/2001.
Through your confirmatory application you request a review of this position as regards
documents 2 and 3. You, namely, narrow down the scope of your request to the
full list of
speakers and attendees of the High Level Round Table on Low-Carbon Innovation
(i.e. the
names of those who attended and spoke)
and explicitly exclude the
personal
signatures and personal contact details from the scope of your request.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I am pleased to inform you that full access is granted to the names
of the speakers, moderators and panel members (contained in document 3). This list has
been made publicly available in the Agenda of the event at the following address:
https://ec.europa.eu/clima/sites/clima/files/docs/0110/agenda_en.pdf.
As regards the redacted parts of the Participants' list (document 2), I regret to inform you
that I have to confirm the initial decision of DG CLIMA to refuse access, based on the
exception of Article 4(1)(b) (protection of privacy and the integrity of the individual) of
Regulation 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 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 accordance with the
Bavarian Lager ruling3, when a request is made for access to
documents containing personal data, Regulation 45/20014 becomes fully applicable.
Article 2(a) of Regulation 45/2001 defines personal data as
any information relating to
an identified or identifiable natural person.
3 Judgment of 29 June 2010 in
Commission v
Bavarian Lager, C-28/08 P, EU:C:2010:378.
4 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 data (Official Journal L 8 of 12.1.2001, p. 1) – hereinafter
referred to as ‘Regulation 45/2001’.
2
In this instance, document 2 contains information related to identified individuals, in
particular the names and signatures of the individuals who registered to attend the Round
Table on Low Carbon Innovation, organised by the European Commission on
9 June 2016.
Pursuant to settled case law,
the concept of ‘private life’ must not be interpreted
restrictively and
[…]
there is no reason of principle to justify excluding activities of a
professional […]
nature from the notion of ‘private life’5.
The names and signatures of individuals clearly constitute personal data within the
meaning of Article 2(a) of Regulation 45/2001. Their public disclosure would therefore
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
Pursuant to Article 8(b) of Regulation 45/2001, personal data shall only be transferred to
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced.
Those two conditions are cumulative6 and only the fulfilment of both conditions and the
lawfulness of processing in accordance with the requirements of Article 5 of
Regulation 45/2001 enables one to consider the processing (transfer) of personal data as
compliant with the requirement of Regulation 45/2001.
In the
ClientEarth case, the Court of Justice ruled that the institution does not have to
examine
ex officio the existence of a need for transferring personal data. The Court stated
that if the applicant has not established a need to obtain the personal data requested, the
institution does not have to examine the absence of prejudice to the person's legitimate
interests7.
In that context, whoever requests such a transfer must first establish that it is necessary.
If it is demonstrated to be necessary, it is then for the institution concerned to determine
whether there is reason to assume that that transfer might prejudice the legitimate
interests of the data subjects. If there is no such reason, the transfer requested must be
made, whereas, if there is such a reason, the institution concerned must weigh the various
competing interests in order to decide on the request for access8.
In the above-mentioned
Bavarian Lager ruling, the Court of Justice has clarified that the
necessity of transfer must be demonstrated
by express and
legitimate justifications or
convincing arguments9.
5 See,
inter alia, judgment of 20 May 2003 in
Österreichischer Rundfunk, C-465/00, EU:C:2003:294,
paragraph 73.
6 Judgment in
Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraphs 77-78.
7 Judgment of 16 July 2015 in
ClientEarth v EFSA, C-615/13P, EU:C:2015:489, paragraph 47-48.
8 Judgments in
Bavarian Lager, EU:C:2010:378, paragraphs 77-78;
Strack, C-127/13 P, EU:C:2014:2250,
paragraphs 107 -108; and also
Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, paragraph 85.
9 Judgment in
Bavarian Lager, EU:C:2010:378, paragraph 78.
3
As regards the names of speakers and attendees, you argue that
the event was
webstreamed live (implying a huge potential external audience) and it was attended by
over 100 people. In those circumstances, there is no logic in refusing to release the
names of those who attended and spoke.
The event was, indeed, webstreamed live and the video recordings of it are publicly
available online10. Nevertheless, only the names of the speakers, moderators and panel
members were indicated in writing at the event and are clearly legible in these videos. As
indicated in Section 2 above, the list of speakers, moderators and panel members of the
event is publicly available online.
As regards
those who attended the event, on the other hand, please note that not all of the
individuals, who registered to attend the event (and who are listed on the Participants' list
(document 2)), have actually attended the event. In consequence, the Participants' list,
identified as document 2, contains the names of both the individuals who registered for,
but did not actually attend, the event, and the names and signatures of the individuals
who attended the event. As you narrow down the scope of your request only to the names
of those who attended the event, I consider the names of the individuals who registered
for, but did not attend, the event as falling outside the scope of your request.
As regards the individuals who attended the event, not all of them are actually visible on
the video recordings. In addition, even for the attendees, who are visible on the video
recordings, their names are indicated only on their badges, which are not clearly legible
in these video recordings. Whereas a few of the attendees did, indeed, introduce
themselves by name during the Questions & Answers sections (as visible and audible on
the video recordings), most of the attendees did not publicly disclose their names.
The Commission has also not established a list of attendees who spoke and/or are visible
on the video recordings, by transcribing the video recordings of the event. I would like to
draw your attention to the fact that, for the purpose of Regulation 1049/2001, the
Commission is not obliged to create such document.
Article 10(3) of Regulation 1049/2001, namely, stipulates that the
[d]ocuments shall be
supplied in an existing version and format (in this case the video recordings).
Furthermore, the EU Court of Justice, in its
Typke judgment11, confirmed that
an
application for access that would require the Commission to create a new document,
even if that document were based on information already appearing in existing
documents held by it, falls outside the framework of Regulation No 1049/2001.
In light of the above, I consider that your argument does not substantiate the necessity of
transferring the personal data contained in document 2. Neither have you, in your initial
or confirmatory application, stated any other grounds to substantiate this necessity.
10 The video recordings are available at:
https://europa.eu/newsroom/events/high-level-roundtable-low-
carbon-innovation_en. 11 Judgment of 11 January 2017 in
Typke v
Commission, C-491/15 P, EU:C:2017:5, paragraph 31.
4
In light of this, the personal data in document 2 may not be disclosed as the need to
obtain those personal data has not been substantiated, and there is reason to assume that
the data subjects' legitimate interests might be prejudiced.
Against this background, I must conclude that the transfer of personal data contained in
document 2 cannot be considered as fulfilling the requirement of Regulation 45/2001 and
that such a transfer is consequently also prohibited under Article 4(1)(b) of
Regulation 1049/2001.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) of Regulation 1049/2001 does not include the possibility
for the exception defined therein to be set aside by an overriding public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting partial access to the names of the speakers and the participants of
the High Level Round Table on Low-Carbon Innovation.
As indicated above, the names of the speakers (contained in document 3) are publicly
available online. As regards the names of the participants (contained in document 2),
however, for the reasons explained in Section 2.1, no further partial access is possible
without undermining the interests described therein.
5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the 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
Alexander ITALIANER
Secretary-General
5
Document Outline