EUROPEAN COMMISSION
Brussels, 22.1.2019
C(2019) 640 final
Mr Peter Teffer
EUobserver
Rue Montoyer 18B
1000 Brussels
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation No 1049/2001 - GESTDEM 2018/4613
Dear Mr Teffer,
I refer to your e-mail of 30 October 2018, 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 (hereafter, Regulation No 1049/2001).
1.
SCOPE OF YOUR REQUEST
In your initial application of 29 August 2018, registered under the reference number
GestDem 2018/4613 and dealt with by the Directorate-General for Communications
Networks, Content and Technology, you requested access to the following documents:
- ‘[a]ll documents related to the meeting [held on 20 January 2016] between
[C]ommissioner Günther Oettinger and the Boston Consulting Group GmbH,
including but not limited to minutes (hand-written) notes, audio recordings,
verbatim reports, e-mails, and presentations;
- all documents related to the meeting [held on 19 October 2017] between Alina-
Stefania Ujupan and 5G Automotive Association, including but not limited to
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
minutes, (hand-written) notes, audio recordings, verbatim reports, e-mails, and
presentations
;
- all documents related to the meeting [held on 8 December 2017] between Alina-
Stefania Ujupan and Mobivia, including but not limited to minutes, (hand-
written) notes, audio recordings, verbatim reports, e-mails, and presentations;
- all documents related to the meeting [held on 24 January 2018] between
Maximilian Strotmann and Scania, including but not limited to minutes, (hand-
written) notes, audio recordings, verbatim reports, e-mails, and presentations;
- all documents related to the meeting [held on 20 February 2018] between Alina-
Stefania Ujupan and Scania, including but not limited to minutes, (hand-written)
notes, audio recordings, verbatim reports, e-mails, and presentations;
- all documents related to the meeting [held on 20 March 2018] between Carl-
Christian Buhr and Qualcomm, including but not limited to minutes, (hand-
written) notes, audio recordings, verbatim reports, e-mails, and presentations.’
In its initial reply dated 23 October 2018, the Directorate-General for Communications
Networks, Content and Technology identified 17 documents as falling under the scope of
your request.3 After examining these documents and following consultations with the
third parties concerned, it grouped them into four sections, as follows:
- A) documents to which full access was granted (Documents 2, 3, 9 and 10);
- B) documents to which partial access was granted, subject only to the redaction of
personal data based on Article 4(1)(b) of Regulation No 1049/2001 (protection of
privacy and the integrity of the individual) (Documents 1, 7, 11, 12, 13 and 16);
- C) documents that were partially disclosed on the grounds of Article 4(2), first
indent, of Regulation No 1049/2001 (protection of commercial interests) and
Article 4(3), second subparagraph, of the same Regulation (protection of the
decision-making process) (Documents 4, 6, 14 and 17). Certain parts of these
documents were also redacted as they contained personal data.
- D) documents that were not disclosed, pursuant to Article 4(1)(b) and 4(2), first
indent, of Regulation No 1049/2001 (Documents 5, 8 and 15).
In your confirmatory application, you request a review of the position of the Directorate-
General for Communications Networks, Content and Technology only with regard to the
documents listed in sections C and D. The scope of this confirmatory decision is
therefore limited to documents 4 to 6, 8, 14, 15 and 17.
3 See pages 2 and 3 of the initial decision.
2
The arguments that you put forward in support of your request have been taken into
account in the assessment and are addressed below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation No 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the relevant Directorate-General at the initial stage.
During the confirmatory stage, the Secretariat-General of the European Commission re-
consulted relevant third parties on this request.
Following this review and taking into account the outcome of the consultations, I can
inform you that wider partial access is granted to the following documents:
- Document 4 (‘Mail dated 2/10/2017’, reference Ares(2017)4788484), subject
only to the redaction of personal data in accordance with Article 4(1)(b) of
Regulation No 1049/2001;
- Document 6 (‘BTO Meeting the 5GAA’, reference Ares(2018)4604437). The
undisclosed parts of this document are covered by the exception relating to the
protection of privacy and the integrity of the individual, provided for in Article
4(1)(b) of Regulation No 1049/2001;
- Document
14
(‘CAB Gabriel meeting Scania Board’, reference
Ares(2018)4607322), subject only to the redaction of personal data in accordance
with Article 4(1)(b) of Regulation No 1049/2001;
- Document 17 (‘BTO Carl-Christian Buhr meeting with Qualcomm’, reference
Ares(2018)1623567). The undisclosed parts of this document are covered by the
exceptions protecting commercial interests and privacy and the integrity of the
individual, provided for respectively in the first indent of Article 4(2) and in
Article 4(1)(b) of Regulation No 1049/2001.
I would like to underline that documents 6, 14 and 17 were drawn up by the European
Commission services for internal use only and they reflect solely the interpretation of
their author(s) regarding the views and positions expressed during the meetings. These
documents do not therefore set out any official position of the third parties concerned.
In addition, full access is granted to document 5 (‘5GAA Presentation’, reference
Ares(2018)4604307). Please note that this document was received from a third party and
cannot be re-used without the agreement of its author.
Please find the above-referred documents attached.
With regard to documents 8 and 15, I wish to inform you that I confirm the position of
the Directorate-General for Communications Networks, Content and Technology, for the
reasons set out below.
3
2.1. Protection of commercial interests of a natural or legal person
Article 4(2), first indent, of Regulation No 1049/2001 provides that ‘[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property, […]
unless there is an overriding public interest in disclosure’.
Document 17 concerns a meeting between the services of the European Commission and
a representative of a telecommunications company, which took place on 20 March 2018.
Parts of this document have been redacted as they contain sensitive business information
about a third party, such as its joint commercial strategy with other private entities, its
business activity and information on competition files. Please note that the undisclosed
parts of the document reflect the outcome of the consultation with the third party in
question.
If publicly released, the above-mentioned information would seriously undermine the
commercial interests of the private entity concerned, as it would place in the public
domain sensitive information that could be used by competitors, thereby harming its
position in the market. Other parties would gain access to confidential information about
its business and commercial activities, thereby gaining an unfair competitive advantage
that could undermine the competitiveness of this private entity.
Therefore, there is a real and non-hypothetical risk that the public release of the relevant
withheld parts of the above-mentioned documents would undermine the commercial
interests of a third party.
Please note that, given the limited volume of the redacted parts, it is not possible to give
more detailed reasons justifying the need for confidentiality without disclosing their
content and, thereby, depriving the exception of its very purpose.4
In light of the above, I consider that the use of the exception under Article 4(2), first
indent, of Regulation No 1049/2001 on the grounds of protecting commercial interests of
a natural or legal person is justified, and that access to the relevant undisclosed parts of
document 17 must be refused on that basis.
2.2. Protection of privacy and the integrity of the individual
Pursuant to Article 4(1)(b) of Regulation No 1049/2001, access to a document has to be
refused if its disclosure would undermine the protection of privacy and the integrity of
the individual, in particular in accordance with European Union legislation regarding the
protection of personal data.
4 Please see in this respect: Judgment of 24 May 2011,
NLG v Commision, T-109/05 and T-444/05,
EU:T:2011:235, paragraph 82. See also Judgment of 8 February 2018, T-74/16,
Pagkyprios
organismos ageladotrofon v Commission, EU:T:2018:75, paragraph 71.
4
The applicable legislation in this field is Regulation (EC) No 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/EC5 (hereafter, Regulation No 2018/1725).
In your confirmatory application, you point out that you are not requesting access to
personal data such as ‘names
, [signatures] and contact details’. However, you ask the
European Commission to review specifically the decision of the Directorate-General for
Communications Networks, Content and Technology not to give access to documents 8
and 15 on the grounds of Article 4(1)(b) of Regulation No 1049/2001.
Hence, I understand that you do not contest the decision of the Directorate-General
concerned to redact the names, handwritten signatures and contact details of the
European Commission staff or external staff in documents 4, 6, 14 and 17. With regard to
document 17, please note, however, that the name of the representative of the
telecommunication company is herewith disclosed, as the person concerned was
consulted on this matter and agreed that this data be publicly released.
I now address your arguments regarding the remaining documents that were withheld
pursuant to the above-mentioned exception, namely documents 8 and 15.
Documents 8 and 15 are handwritten notes of meetings held by the European
Commission services with representatives of 5GAA and Scania, respectively. Both
documents were drawn up during the meetings by staff members of the European
Commission and contain biometric data of the persons concerned. They thus constitute
personal data in the sense of Article 3(1) of Regulation No 2018/1725, which defines it
as ‘any information relating to an identified or identifiable natural person […]’.
Indeed, the Court of Justice has specified that
any information, which by reason of its
content, purpose or effect is linked to a particular person, is to be considered as personal
data.6
In its judgment in Case C-28/08 P
(
Bavarian Lager)7, the Court of Justice ruled that
when a request is made for access to documents containing personal data, the Data
Protection Regulation becomes fully applicable.8
Pursuant to Article 9(1)(b) of Regulation No 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
5 Official Journal L 205 of 21.11.2018, p. 39.
6 Judgment of 20 December 2017,
Peter Novak v Data Protection Commissioner, C-434/16, request for
a preliminary ruling, EU:T:2018:560, paragraphs 33-35.
7 Judgment of 29 June 2010,
Commission v the Bavarian Lager Co. Ltd, C-28/08 P, EU:C:2010:378.
8 Whereas this judgment specifically related to Regulation 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, the
principles set out therein are also applicable under the new data protection regime established by
Regulation No 2018/1725.
5
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a
specific purpose in the public interest and the controller, where there is any reason to
assume that the data subject’s legitimate interests might be prejudiced, establishes that it
is proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation No 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation No 2018/1725, the European Commission has
to examine the further conditions for the lawful processing of personal data only if the
first condition is fulfilled, namely if the recipient has established that it is necessary to
have the data transmitted for a specific purpose in the public interest. It is only in this
case that the European Commission has to examine whether there is a reason to assume
that the data subject’s legitimate interests might be prejudiced and, in the affirmative,
establish the proportionality of the transmission of the personal data for that specific
purpose after having demonstrably weighed the various competing interests.
In your confirmatory application, you argue that the non-disclosure of the handwritten
notes ‘can set a dangerous precedent towards opacity’, as the European Commission
could prevent disclosure of other documents in the future by ensuring that they ‘exist
only as handwritten documents’. You also state that the risk that disclosure of the notes
would harm the legitimate interest of the persons concerned is negligible in view of the
large number of staff employed by the Directorate-General concerned.
Following an examination of documents 8 and 15, and having regard to your above-
referred arguments, I conclude that the need to have the personal data transferred is not
justified in this case.
As the Directorate-General for Communications Networks, Content and Technology
outlined in its initial reply, the content of the handwritten notes (documents 8 and 15)
corresponds to the content of the relevant meeting minutes (documents 6 and 14,
respectively). The information contained therein is short-lived and has a merely
transitory value as it is essentially reflected in the minutes that were prepared following
the meetings.
Moreover, I note that the Directorate-General for Communications Networks, Content
and Technology gave partial access to documents 6 and 14. I would like to underline that,
in addition, further partial access is herewith granted to these documents, with only
limited parts redacted on the grounds of the protection of privacy and the integrity of the
individual.
Hence, the content of the handwritten notes is reflected in other (non-handwritten)
documents to which wide (partial) access has been granted.
6
In light of the above, I consider that the public release of documents 8 and 15 would go
beyond what is necessary for attaining the objective of transparency in relations between
interest representatives and policymakers and would therefore be disproportionate to that
purpose.
Since the conditions laid down in Article 9(1)(b) of Regulation No 2018/1725 are
cumulative, there is no need to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced if the personal data were to be
disclosed.
Nevertheless, please note that it cannot be assumed that such disclosure would not
prejudice the legitimate rights of the persons concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation No 1049/2001,
access cannot be granted to the personal data that you seek to obtain, as the need to
obtain access thereto for a purpose in the public interest has not been determined and it
cannot be assumed that the legitimate rights of the individuals concerned would not be
prejudiced by the disclosure.
Consequently, access to documents 8 and 15 must be refused on this basis.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) 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 the European Commission should
balance the interest protected under the exceptions against the ‘public interest to know
how corporate lobbyists attempt to influence [European Union] legislation and
policymaking about connected cars and autonomous vehicles’. You also state that ‘since
autonomous vehicles can bring both opportunities as well as risks for the health of
citizens, the public interest is great’.
While I agree that there can be a public interest in knowing how interest groups and other
stakeholders interact with public representatives, this public interest has, in my view,
been fulfilled by the wide access to the documents that is herewith granted.
Concerning the undisclosed parts of document 17, I consider that, in this case, such an
interest does not outweigh the public interest in safeguarding the commercial interests
that, as explained in section 2.1, warrant protection under Article 4(2), first indent, of
Regulation No 1049/2001.
Please also be informed that the applicability of the exception in Article 4(1)(b) of
Regulation No 1049/2001 does not need to be weighed against any possible overriding
public interest in disclosure.
7
4.
PARTIAL ACCESS
As indicated above, further partial access is herewith granted to documents 4, 6 and 14,
with only the personal data redacted. Document 5 is herewith fully released.
With regard to document 17, no meaningful further partial access is possible as virtually
all parts of this document are herewith disclosed. As explained in section 2.1 above, the
redacted parts are protected by Article 4(2), first indent, (protection of commercial
interests).
With regard to the remaining documents falling under your confirmatory request, I have
considered the possibility of granting partial access in accordance with Article 4(6) of
Regulation No 1049/2001. As explained under section 2.2, documents 8 and 15 contain
biometric data pertaining to staff members of the European Commission. Taking into
account the considerations included under that section, no partial access to these
documents is possible, as they are covered in their entirety by the exception laid down in
Article 4(1)(b) of Regulation No 1049/2001. Access must therefore be fully refused on
this basis.
5.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European 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 European Commission
Martin SELMAYR
Secretary-General
Enclosures: (5)
8
Document Outline
