C(2017) 4635 final
Ms Anna Mazgal
Fundacja “Centrum Cyfrowe”
PL - Andersa St. 29 Warsaw, 00-159
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 2017/861
Dear Ms Mazgal,
I refer to your e-mail of 21 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 13 February 2017 you requested access to:
The European Commission's legal service opinion(s) on the drafts of the Proposal
for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on copyright in the Digital Single Market COM/2016/0593 final
- 2016/0280 (COD)
In its initial reply of 6 March 2017, the Legal Service identified the following documents
as falling within the scope your request:
1) Note of the Legal Service to the Head of Cabinet of the Vice-President of the
Commission of 21 June 2016: Legal concerns with "clarifying" the notion of
communication to the public [registered under Ref. Ares(2016)2882089];
Official Journal L 345 of 29.12.2001, p. 94.
2) Note from the Legal Service to the Director-General of DG CONNECT of 30
August 2016: Copyright Reform - Fast-Track Consultation ĪSC/2016/04250 from
DG CNECT [registered under Ref. Ares(2016)4876233];
3) Legal Service comments of 21 June 2016 on the Draft Proposal for a Directive of
the European Parliament and of the Council on copyright in the Digital Single
Market (Annex 1 to document 2).
Access was refused to document 1 and to parts of documents 2 and 3, based on the
exceptions provided for in Article 4(2), second indent (protection of court proceedings
and legal advice), Article 4(3), first and second subparagraphs (protection of the
decision-making process) and Article 4(l)(b) (protection of personal data)
Through your confirmatory application you ask for a review of the initial position.
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 wider access is granted to
document 2. Please find a copy annexed. The refusal is confirmed for document 1 and
no further disclosure is granted to document 3.
The withheld (parts of the) documents fall under the exceptions of Article 4(3), first and
second subparagraphs (protection of the decision-making process), Article 4(2), second
indent (protection of the legal advice) and 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 the legal advice and of the decision-making process
Article 4(2), second indent of Regulation (EC) No 1049/2001 provides that: The institutions shall refuse access to a document where disclosure would undermine the
protection of: [...] legal advice [...] unless there is an overriding public interest in
Article 4(3) 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 disclosure.
Access to a document containing opinions for internal use as part of deliberations
and preliminary consultations within the institution concerned shall be refused
even after the decision has been taken if disclosure of the document would
seriously undermine the institution's decision-making process, unless there is an
overriding public interest in disclosure.
Full disclosure of the requested documents would prejudice the capacity of the Legal
Service to assist the Commission, depriving, thereby, the institution of an essential
element in the process of taking sound decisions. It would also harm the ongoing
decision-making process regarding the adoption of the Commission's proposed Directive
for the modernisation of EU copyright rules, more specifically by revealing the different
preliminary assessments considered before tabling the legislative proposal.
Document 1 is a Note of the Legal Service containing a legal opinion on the notion of
'communication to the public' within the meaning of Article 3(1) of Directive
2001/29/EC. More specifically, the note contains an analysis of legal issues arising from
the relationship between copyright holders and online platforms, in view of the pending
proposal, thereby revealing the position of the Legal Service on the relevant suggested
provision. The notion of communication is extremely delicate, having been formed
through international agreements and extensive case law. In view of the suggested
provision concerning the notion of communication, the Legal Service has assessed the
possible consequences of that specific provision, an analysis which will have to be taken
into account in the course of the pending discussions.
Document 2 is a Note of the Legal Service which contains a concrete assessment by the
Legal Service of various aspects of the draft Directive, in the light of the possible legal
basis of the Directive and taking also into account the established principles on the Union
copyright law. More specifically, several provisions are analysed in detail as to their
possible meaning and consequences within the framework of European Union copyright
law, and suggestions are made for consideration when deciding on the adoption of the
Document 3 is an attachment to document 2, reflecting Legal Service comments in the
form of track changes on the Draft Proposal for a Directive.
The Digital Single Market Strategy2, adopted by the Commission on 6 May 2015, sets
out the main elements of the modernisation of the EU copyright rules. The
Communication on copyright adopted on 9 December 2015 details the next steps in this
regard, including on possible legislative proposals and timelines. Further to the proposed
Regulation on cross-border portability of online content services, adopted the same day
as the Communication, the Commission adopted on 14 September 2016 a set of
legislative measures, called the 'copyright second legislative package'.
As the Council and the European Parliament still have to take a position on the
Commission's proposals, the decision-making process on these proposals of copyright
reform refer to preliminary legal assessments for which the decision-making process is
fully ongoing. Depending on the negotiations on this particular issue, the Commission
may indeed have to adapt its position taking into account the elements contained in the
above-mentioned documents. The finalisation of the above-mentioned negotiations is not
envisaged before the end of 2017.
The European Court, in its 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 would affect the Commission's ability to defend its proposals
during the ongoing negotiations with the Council and the Parliament.
In the alternative
, even if one were to consider that Article 4(3), first subparagraph of
Regulation 1049/2001 no longer applies as the Commission put forward its proposals (quod non)
, I take the view that for the reasons explained below, the opinions which are
reflected in the documents requested are covered by the exception of Article 4(3), second
subparagraph of Regulation 1049/2001, as their disclosure would seriously harm the
decision-making process of the Commission even after its proposals have been adopted.
Furthermore, the above-mentioned documents contain purely internal legal opinions in
matters of a sensitive nature, drafted under the responsibility of the Legal Service.
Disclosure of (the redacted parts of) the requested documents would undermine the
protection of legal advice provided for under article 4(2), second indent, of Regulation
(EC) No 1049/2001. As recognised by the Court of Justice, the latter exception must be
construed as aiming to protect an institution's interest in seeking legal advice and
receiving frank, objective and comprehensive advice5.
Given the sensitivity of the subject matter and the various interests involved (e.g. those of
right holders and information society service providers), if these documents were to be
released, the Commission would be deprived of its ability to defend its proposal
throughout the legislative procedure. The Commission might indeed be called upon to
adapt certain aspect of its proposals in the current legislative
negotiations and take into
account options which were considered but not retained in its proposals.
Premature disclosure, at this stage, of the documents forming part of the ongoing
decision-making process would prejudice the institution's margin of manoeuvre and
severely reduce its capacity to foster compromises, which is essential in an area by
which several important Commission policies and competences are affected (e.g.
information and communication policies, internal market, competition policy, etc.).
3 Judgment of General Court, 13 November 2015 in joined cases T-424/14 and T-425/14, ClientEarth v
paragraphs 100 to 105.
4 Judgment of Court of Justice, 17 October 2013 in case C-280/11 P, Council v Access Info Europe
5 Judgment of 1 July 2008, Kingdom of Sweden and Maurizio Turco
v Council of the European Union,
C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 42.
Furthermore, the dissemination of preliminary and obsolete positions of the Commission
preceding the inter-institutional decision-making process would risk confusing the public
and stakeholders rather than providing clarity on the options available. Such preliminary
options which were not retained in the Commission's proposals might indeed be subject
to further inter-institutional negotiations.
The Commission would also be exposed to undue external pressure in case of premature
disclosure. A complete release of the documents at this stage would indeed disseminate
preliminary, internal conclusions into the public domain. The risk of such external
pressure is real and non-hypothetical, given the specific and fundamental interest of right
holders associations of the different content sectors as well as information society service
providers involved in the issue to obtain an outcome which is favourable to them. This
could create unjustified and disproportionate reactions which would render the
negotiations more difficult.
The sensitive nature of the matters at stake, such as the introduction measures for the use
of protected content by information society service providers, 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 taken on the copyright
legislative package, including the adoption of the Directive6.
In light of the foregoing, access to the redacted (parts of the) requested documents is
refused based on the exception of Article 4(3), first and second subparagraphs (protection
of the decision-making process) and of Article 4(2), second indent (protection of legal
advice) of Regulation 1049/2001.
2.2. Protection of personal data
According to Article 4(1 )(b) of Regulation (EC) No 1049/2001: The institutions shall
refuse access to a document where disclosure would undermine the protection of: [...] (b)
privacy and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data.
In accordance with the exception regarding the protection of personal data, the names
and personal details of the Commission's officials not having the function of senior
management staff, as well as all handwritten signatures have been expunged from
documents 1 and 2.
6 Judgments of Court of Justice, 1 July 2008 in case C-39/05 P and C-52/05 P, Sweden & Turco v
paragraph 69 and of General Court, 15 September 2016 in cases T-796/14 and T-800/14, Philip
Morris v Commission
These data undoubtedly constitute personal data within the meaning of Article 2(a) of
Regulation 45/20017, which defines personal data as any information relating to an
identified or identifiable natural 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
In consequence, the public disclosure of these data in the requested documents would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
In accordance with the Bavarian Lager
ruling8, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
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 cumulative.9 Only if both conditions are fulfilled
and the processing is lawful in accordance with the requirements of Article 5 of
Regulation 45/2001, can the processing (transfer) of personal data occur.
I would also like to bring to your attention the recent judgment in the ClientEarth
where 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 decide on the request
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 data11.
In this regard, I would like to stress that neither in your initial, nor in your confirmatory
application, have you established the necessity of disclosing any of the above-mentioned
Therefore, I have to conclude that the transfer of personal data through the wider
disclosure of the requested documents cannot be considered as fulfilling the requirement
of lawfulness provided for in Article 5 of Regulation 45/2001.
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.
Judgment in Commission v Bavarian Lager
, case C-28/08 P, EU:C:2010:378.
9 Ibid., paragraphs 77 to 78.
10 Judgment in ClientEarth and PAN Europe v EFSA
, case C-615/13 P, EU:C:2015:489,
11 Judgment in Strack v Commission
, case C-127/13 P, EU:C:2014:2250, paragraph 106.
Consequently, 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 data included therein and it
cannot be assumed that the legitimate rights of the data subjects concerned would not be
prejudiced by such disclosure.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2), second indent and 4(3), first and second
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 do not put forward any reasoning pointing to an
overriding public interest in disclosing the requested documents. Nor have I been able to
identify any elements capable of demonstrating the existence of any possible overriding
public interest in disclosing the refused elements that would outweigh the interests
protected by the first and second subparagraphs of Article 4(3) (protection of the
decision-making process) and Article 4(2), second indent of Regulation 1049/2001.
To the contrary, as explained above the inter-institutional decision-making process is
ongoing. Full disclosure of the briefing documents would affect the Commission's ability
to act freely from external pressure in effectively defending the Commission's proposal
for Directive on a Digital Single Market. I therefore consider that such disclosure would
be contrary to the public interest in protecting the Commission decision-making process.
Furthermore, I assure you that the Commission interpreted and applied the exceptions of
Article 4 of Regulation 1049/2001 strictly, which results in partial access to the requested
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
and legal advice, based on Article 4(3), first and second subparagraphs of Regulation
1049/2001 and Article 4(2), second indent of Regulation 1049/2001
Please note that the exception of Article 4(1)(b) of Regulation (EC) No 1049/2001 has an
absolute character and does not envisage the possibility of demonstrating the existence of
an overriding public interest.
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting wider access to the documents requested. However, for the reasons
explained above, no meaningful wider access is possible without undermining the
interests described above.
Consequently, I have come to the conclusion that (parts of) the documents requested are
covered by the invoked exceptions to the right of public access.
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
Enclosures: redacted document (1)