C(2017) 4135 final
Mr Arne SEMSROTT
c/o Open Knowledge Foundation
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2017/308
Dear Mr Semsrott,
I refer to your e-mail of 8 March 2017, by 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 documents ("Regulation
SCOPE OF YOUR REQUEST
In your initial application of 17 January 2017 you requested access to any concept paper
the EU Commission has prepared to counter 'Fake News' in the form of a European
regulation and any correspondence by the EU Commission with Google and Facebook
regarding 'Fake News'.
In its initial reply of 1 March 2017, the Directorate-General for Communications
Networks, Content and Technology (DG CNECT, hereinafter) identified the following
documents as falling under the scope of your request:
1. Background Note on the subject of 'fake news' (Ares(2017)881559);
2. DG CNECT proposal for background note on 'fake news' (Ares(2017)881373);
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
3. Letter from Commissioner Oettinger to the President of the Commission on
online platforms (Ares(2017)123266);
4. Note on online platform policy (Ares(2017)881690);
5. E-mail from Google to the Commission services on the '2016 Bad ads report'
6. E-mail from Google to the Commission services on the issue of 'fake news' and
other issues (Ares(2017)881011);
7. Exchange of e-mails between Facebook and the Commission services
(Ares(2017)880679 and Ares(2017)881934).
Through its initial reply dated 1 March 2017, DG CNECT:
Granted partial access to documents 5, 6 and 7, by redacting only personal data
based on Article 4(1)(b) (protection of privacy and the integrity of the individual)
of Regulation 1049/2001;
Refused access to documents 1, 2, 3 and 4, based on Article 4(3), first
subparagraph (protection of the decision-making process) of Regulation
Through your confirmatory application you request a review of this position and present
several arguments supporting your requests. These will be addressed in the respective
parts of this decision.
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 or service concerned at the initial stage.
Having carried out a detailed assessment of your request in light of the provisions of
Regulation 1049/2001, I am pleased to inform you that wide partial access is granted to
documents 1, 2, 3 and 4. The undisclosed parts of these documents are covered by the
exceptions of Article 4(3), first subparagraph (protection of the decision-making process)
and of Article 4(1)(b) (protection of privacy and the integrity of the individual) of
The detailed explanations are provided below.
2.1. Protection of the decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that:
Access to a document, drawn up by an institution for internal use or received by an
institution, 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
Document 3 is a letter from Commissioner Oettinger, at the time the Member of the
Commission responsible for Digital Economy and Society, addressed to President
Juncker, stressing the importance of the issue, outlining some initial policy options and
seeking his political orientation on the issue of fake news and online misinformation.
Documents 1, 2 and 4 are internal notes including some initial policy options based on a
very preliminary analysis of the issue of online misinformation and fake news and
preliminary assessments addressed to Vice-President Ansip. It is important to note that
draft documents 1 and 2 have been transmitted neither to Cabinet of the President of the
European Commission Jean-Claude Juncker nor to the other Members of the European
Commission. These purely internal preliminary considerations reflect only the opinions
of the Commission staff members on challenges, possible strategies and ways forward to
address concerns regarding 'fake news' and online misinformation. These opinions were
expressed for internal use and at that stage were not drafted in order to be transmitted to
the public, at least while the Commission's decision-making process is ongoing and the
Commission has not yet taken any decision whether, and if so, what action should be
The Commission is treating the issue with the utmost care. In addition, due to the
sensitivity of the topic and the attention that has and may arise in the media and among
groups of stakeholders and the public, premature disclosure of the documents would
seriously undermine the Commission's decision-making process as a full release of the
documents at this stage would disseminate preliminary, internal considerations into the
public domain. Indeed, it would trigger external pressure by the above-mentioned groups,
which could misinterpret the content of the document and draw premature conclusions.
In addition, some parts of these documents reflect internal considerations, as well as
references to views and positions expressed by Member States and external stakeholders.
The engagement with different stakeholders is based on a relationship of mutual trust
among all stakeholders involved which would be undermined by their disclosure.
In your confirmatory application, you argue that the Commission has disclosed three
other documents that demonstrate it actively sought input into its preliminary discussion
on 'fake news' from a limited number of private stakeholders.
As regards contacts with third parties, it is necessary to underline that the Commission
followed the scope of the initial request where only any correspondence by the EU
Commission with Google and Facebook regarding 'Fake News'
was requested and
subsequently wide partial access to these documents was granted.
In addition, it is apparent from the correspondence disclosed to you at the initial stage
that, contrary to what you argue, the Commission services did not consult Facebook and
Google on any policy strategy. To the contrary, the correspondence between the
Commission and these two companies concerns purely factual information, regarding inter alia
the action taken by Google and Facebook.
Furthermore, such premature disclosure would also lead to a risk of self-censorship as
these internal documents contain opinions, points of views and critical remarks that will
help building the steps to follow. The Commission staff concerned would be hesitant to
freely exchange views, both internally and with third parties, were that information to be
made public.2 Public disclosure of the whole documents requested would also seriously
undermine the serenity of the ongoing discussions within the Commission services and
their Cabinets. Indeed, the Commission and its staff members would not be able to
explore all possible options free from external pressure.
This, in turn, would seriously undermine the decision-making process protected by
Article 4(3), first subparagraph (protection of the decision-making process) of Regulation
The Court of Justice, in the ClientEarth3
acknowledged that there may be a need for the Commission to protect internal reflections
on the possible policy options available to the institutions in the phase preceding the
(inter-institutional) legislative procedure. There is a concrete risk that disclosing the
information at this stage will affect the Commission's ability to defend its future
proposals. Furthermore, as established in the Turco
the Court of Justice
distinguished this preliminary assessment of the institution from the presumption of
wider openness for the institutions when acting in their legislative capacity.
The sensitive nature of the matters at stake, such as cases of medical or scientific
misinformation, fake news about national and EU institutions and EU policies, cases of
defamation and disinformation propagated as part of a cyber-attack, provides further
support to the conclusion that certain preliminary assessments and positions must be
protected in order to shield the institutions' internal assessment against any outside
pressure and premature conclusions, by the public, until the final decisions are taken6.
In light of the foregoing, access to the documents requested is refused based on the
exception of Article 4(3), first subparagraph (protection of the decision-making process)
of Regulation 1049/2001.
2.2. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that the 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.
2 Judgment of 18 December 2008, Muñiz v Commission
, case T-144/05 P, EU:T:2008:596, paragraph
3 Judgment of 13 November 2015, ClientEarth v Commission
, Joined Cases T-424/14 and T-425/14,
EU:T:2015:848, paragraph 95.
4 Judgment of 17 October 2013, Council v Access Info Europe,
case C-280/11 P, EU:C:2013:671.
5 Judgment of 1 July 2008, Sweden & Turco v Council,
case C-39/05 P and C-52/05 P, EU:C:2008:374.
Judgments of 1 July 2008, Sweden & Turco v Council,
case C-39/05 P and C-52/05 P,
paragraph 69 and judgment of 15 September 2016, Philip Morris v Commission,
T-796/14 and T-800/14, EU:T:2016:487.
The documents requested also contain personal data, such as names, e-mail addresses,
Pursuant to the Commission's administrative practice, access is granted to the names of
individuals who hold a senior management position. However, access must be refused to
the names and contact details of individuals of the Commission or third parties who do
not hold a senior management position, for the reasons explained below.
In this respect, Article 4(1)(b) of Regulation 1049/2001 provides that access to
documents is refused where disclosure would undermine the protection of privacy and
integrity of the individual, in particular in accordance with Community legislation
regarding the protection of personal data.
In its judgment in the Bavarian Lager
case, the Court of Justice ruled that when a request
is made for access to documents containing personal data, Regulation (EC) No. 45/20017
(hereafter 'Data Protection Regulation') becomes fully applicable8 .
Article 2(a) of the Data Protection Regulation provides that 'personal data' shall mean
any information relating to an identified or identifiable person […], an identifiable
person is one who can be identified, directly or indirectly, in particular by reference to
an identification number or to one or more factors specific to his or her physical,
physiological, mental, economic, cultural or social identity. According to the Court of
Justice, there is no reason of principle to justify excluding activities of a professional
[…] nature from the notion of 'private life'9
. The names10 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 2(a) of the Data Protection Regulation.
It follows that public disclosure of the above-mentioned information would constitute
processing (transfer) of personal data within the meaning of Article 8(b) of Regulation
45/2001. According to Article 8(b) of that Regulation, 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 cumulative11. Only if both conditions are
fulfilled and the processing constitutes lawful processing in accordance with the
requirements of Article 5 of Regulation 45/2001, can the processing (transfer) of
personal data occur.
In its recent judgment in the ClientEarth
case, the Court of Justice ruled that 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 that there is no reason to
assume that that transfer might prejudice the legitimate interests of the data subject. 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
7 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 January
2001, page 1.
8 Judgment of 29 June 2010, Commission v Bavarian Lager
, C-28/08P, EU:C:2010:378, paragraph 63.
9 Judgment of 20 May 2003, Rechnungshof v Österreichischer Rundfunk and Others
, C-465/00, C-
138/01 and C-139/01, EU:C:2003:294, paragraph 73.
10 Judgment in Commission v Bavarian Lager
, cited above, EU:C:2010:378, paragraph 68.
11 Ibid, paragraphs 77 and 78.
decide on the request for access12. I refer also to the Strack
case, where the Court of
Justice ruled that the Institution does not have to examine by itself the existence of a need
for transferring personal data13.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the abovementioned personal data.
Therefore, I have to conclude that the transfer of personal data through the disclosure of
the redacted parts of the requested documents cannot be considered as fulfilling the
requirement of lawfulness provided for in Article 5 of Regulation 45/2001 and in
consequence, the use of the exception under Article 4(1)(b) of Regulation 1049/2001 is
justified, as there is no need to publicly disclose the personal date included therein, and it
cannot be assumed that the legitimate rights of the data concerned would not be
prejudiced by such disclosure.
Finally, the exception in Article 4(1)(b) of Regulation 1049/2001 is an absolute exception
which does not require the institution to balance the exception defined therein against a
possible public interest in disclosure, only reinforces this conclusion.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(3), first subparagraph, 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 confirmatory application, you argue that there is an overriding public interest in
disclosure of the four documents about 'fake news' because the issue deals directly with
Article 11 of the Charter of fundamental Rights of the European Union on freedom of
expression and information.
I agree that the issue of fake news, online misinformation and its role in shaping public
opinion has generated considerable political and media attention. The European Union
has already established policies on Media Freedom and Media Pluralism, based on
Article 11 of the Charter of Fundamental Rights. These include addressing violations of
media freedom and pluralism within the EU competences, facilitating independent
monitoring and practical solutions to address media freedom violations, and promotion of
media freedom in enlargement policy and external action.
To the contrary, since the decision-making process is ongoing and full disclosure of the
internal documents would affect the Commission's ability to act freely from external
pressure in exploring all possible options at the current preparatory stage, I consider that
such disclosure would be contrary to the public interest, as it would have the effect of
undermining the quality of the results of the Commission's deliberations.
12 Judgment of 16 July 2015, ClientEarth v EFSA
, C-615/13P, EU:C:2015:489, paragraph 47.
13 Judgment of 2 October 2014, Strack v Commission
, C-127/13 P, EU:C:2014:2250, paragraph 106.
Furthermore, I assure you that the Commission interpreted and applied the exception of
Article 4 of Regulation 1049/2001 strictly, which resulted in wide partial access to
requested documents 1-4.
In consequence, I consider that in this case there is no overriding public interest that
would outweigh the interests in safeguarding the protection of decision-making process,
based on Article 4(3), first subparagraph of Regulation 1049/2001.
According to Article 4(6) of Regulation 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.
Pursuant to Article 4(6) of Regulation 1049/2001, wide partial access is granted to those
parts of documents 1, 2, 3 and 4 which are not covered by any of the exceptions of
Article 4 of the Regulation 1049/2001.
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.
For the Commission