C(2018) 7682 final
Mr Peter Teffer
Rue Montoyer 18B
DECISION OF THE EUROPEAN 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 2018/2193
Dear Mr Teffer,
I am writing with reference to your email of 14 August 2018, registered on 17 August 2018,
in which you lodge a confirmatory application in accordance with Article 7(2) of Regulation
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter ‘Regulation 1049/2001’).
SCOPE OF YOUR APPLICATION
In your initial application of 18 April 2018, addressed to the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs and registered under reference number
GESTDEM 2018/2193, you requested access to ‘[a]ll documents – including but not limited
to emails, presentations, agendas, and minutes of meetings – related to the Consultation
Forum with industry set up in relation to the European Defence Fund’. You also stressed that
1 Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
the ‘Consultation Forum was set up, according to the [C]ommission, “with the European
defence industry to best align the supply and demand sides” ’.
In its initial reply dated 24 July 2018, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs informed you that it had identified 13 documents as falling
within the scope of your request. It granted wide partial access to one document, subject to the
sole redaction of personal data pursuant to Article 4(1)(b) (protection of privacy and the
integrity of the individual) of Regulation 1049/2001. Furthermore, it refused access to the
remaining 12 documents on the basis of Article 4(3) (protection of the institution’s decision-
making process) and Article 4(1)(a), second indent (protection of the public interest as regards
defence and military matters) of Regulation 1049/2001.
In your confirmatory application, you request a review of this 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 concerned at the initial stage.
In this context, it has been found that the documents identified by the Directorate-General for
Internal Market, Industry, Entrepreneurship and SMEs do not relate to the Consultation
Forum with the European defence industry, but rather to the Advisory Group for the
Preparatory Action on Defence Research3. Therefore, these documents do not fall within the
scope of your confirmatory application as described above and were thus erroneously
identified as such at the initial phase.
For these reasons, the European Commission has carried out a new search for documents
falling within the scope of your confirmatory application.
In the framework of this renewed search, the following seven documents relating to two
meetings of the Consultation Forum with the European defence industry, and thus
corresponding to the description given in your application, have been identified:
- invitation to the meeting of the Consultation Forum on 19 April 2017 dated
24 March 2017, Ares(2017)1589962 (hereafter ‘document 1’);
- agenda of the meeting of the Consultation Forum on 19 April 2017,
Ares(2017)1589962 (hereafter ‘document 2’);
- letter of the Secretary-General of the Aero Space and Defence Industries Association
of Europe to the Directorate-General for Internal Market, Industry, Entrepreneurship
and SMEs dated 24 March, Ares(2017)1687498 (hereafter ‘document 3’);
- invitation to the meeting of the Consultation Forum on 27 September 2017 dated
4 August 2017, Ares (2018)772824 (hereafter ‘document 4’);
- agenda of the meeting of the Consultation Forum on 27 September 2017.
Ares(2018)772824 (hereafter ‘document 5’);
- letter of the Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs to the Secretary-General of the Aero Space and Defence Indutries Association
of Europe dated 7 September 2017, Ares(2017)4371775 (hereafter ‘document 6’);
- flash report of the meeting the Consultation Forum on 27 September 2017,
Ares(2018)5248988 (hereafter ‘document 7’).
Please note that the Consultation Forum with the European defence industry, the
establishment of which had indeed been announced in a press release of the European
Commission relating to the European Defence Action Plan4, has not yet been set up as a
permanent forum. Only two ad-hoc meetings took place in 2017, to which the seven
documents listed above relate.
I would also like to point out that the European Commission is not obliged to draw up a
summary record of every meeting with interest representatives. In accordance with the
European Commission’s current administrative practice, a written record should only be
ensured of those meetings that contain important information or may involve action by the
Having examined your confirmatory application, I can inform you that:
- full access is granted to documents 1, 2, 5 and 7, as their content does not to fall under
any of the exceptions to the right of access provided for in Article 4 of Regulation
- wide partial access is granted to documents 3, 4 and 6, subject to the redaction of
personal data only on the basis of the exception of Article 4(1)(b) of Regulation
1049/2001 (protection of privacy and the integrity of the individual).
The detailed reasons are set out below.
4 See point 15 of the fact sheet to be found under the following link: http://europa.eu/rapid/press-
2.1. 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’.
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. 45/2001
(hereafter ‘Data Protection Regulation’) becomes fully applicable.5
Article 2(a) of the Data Protection Regulation6 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
Documents 4 and 6 contain personal data such as the names, e-mail addresses and phone
numbers of persons who do not form part of the senior management of the European
Commission. Document 3 contains the name and function of an individual who is not the
main representative of the Aero Space and Defence Industries Association of Europe.
Moreover, these three documents contain handwritten signatures.
The names8 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
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 cumulative.9 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 transfer of personal data occur.
5 Judgment of 29 June 2010, Commission v Bavarian Lager
, C-28/08P, EU:C:2010:378, paragraph 63.
6 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.
7 Judgment of 20 May 2003, Rechnungshof v Österreichischer Rundfunk and Others,
C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
8 Judgment in Commission v Bavarian Lager
, cited above, EU:C:2010:378, paragraph 68.
9 Idem, paragraphs 77-78.
In its 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
decide on the request for access.’10
I also refer 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 data.11
In your confirmatory request you do not establish the necessity of having the data in question
transferred to you.
Furthermore, there are reasons to assume that the legitimate interests of the individuals
concerned would be prejudiced by disclosure of the personal data reflected in the documents
concerned, as there is a real and non-hypothetical risk that such public disclosure would harm
their privacy and subject them to unsolicited external contacts.
As to the handwritten signatures appearing in the documents, which constitute biometric data,
there is a risk that their disclosure would prejudice the legitimate interests of the persons
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001, access
cannot be granted to the personal data that have been redacted from the documents concerned,
as the need to obtain access thereto 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.
As indicated above, wide partial access is herewith granted to documents 3, 4 and 5, subject to
the redaction of personal data only on the basis of the exception of Article 4(1)(b) of
Regulation 1049/2001 (protection of privacy and the integrity of the individual).
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) of Regulation 1049/2001 is an absolute exception which does
not require the institution to balance it against a possible public interest in disclosure.
10 Judgment of 16 July 2015, ClientEarth v EFSA
, C-615/13P, EU:C:2015:489, paragraph 47.
11 Judgment of 2 October 2014, Strack v Commission
, C-127/13 P, EU:C:2014:2250, paragraph 106.
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 European Commission