EUROPEAN COMMISSION
Brussels, 28.3.2019
C(2019) 2616 final
Mr Alexander Fanta
Netzpolitik.org
Schönhauser Allee 6-7
10119 Berlin
Germany
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/6207
Dear Mr Fanta,
I refer to your email of 9 March 2019, registered on 13 March 2019, 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
documents2 (hereafter 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
On 8 November 2018, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001, in which you requested access to ‘documents which
contain the following information:
- All correspondence and minutes pertaining to the meeting with Apple on May 15
2018 on the issue of the common charger. […]
- The impact assessment study and all documents and correspondence pertaining to
the study on common chargers. […]’
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
The European Commission attributed the above-mentioned application to the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, for
handling and reply.
The European Commission has identified 18 documents as falling under the scope of
your application3.
On 8 February 2019, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs granted:
- full access to documents 2, 104, 11 and 16;
- wide partial access to documents 1, 3, 4, 5, 6, 7, 8, 9, 13 and 15, with the parts
containing personal data redacted, based on the exception protecting privacy and
the integrity of the individual, provided for in Article 4(1)(b) of Regulation (EC)
No 1049/2001. Additionally, the relevant parts of documents 1, 4, 5, 6, 7, 8, 13
and 15 were redacted as falling outside the scope of your initial application;
- partial access to documents 12, 14, 17 and 18, with the relevant parts redacted on
the basis of the exception protecting commercial interests, provided for in Article
4(2), first indent, of Regulation (EC) No 1049/2001. Additionally, personal data
was redacted from documents 14, 17 and 18, on the basis of the above-mentioned
exception in Article 4(1)(b) of Regulation (EC) No 1049/2001. Documents 12,
14, 17 and 18 contain also information unrelated to your initial application, which
was consequently redacted as falling outside its scope.
Through your confirmatory application, you request a review of this position.
In particular you ‘[…] ask for full disclosure of the blackened parts of the documents
[…]’, however, your reasoning underlying that request is concentrated on the undisclosed
parts of documents 13 and 14. You point out at a potential conflict of interest in the
context of the contract, under which the European Commission procured the study
‘Impact Assessment on Common Chargers of Portable Devices’. In this context, you
argue that ‘[i]t would be helpful to know who signed the Conflict of interest declaration
(„[document]13”) and who conducted the evaluation report on behalf of the [European]
Commission [included in document]„14”.’
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General or service concerned at the initial stage.
3 Detailed list of documents was enclosed to the initial reply of the Directorate-General for Internal
Market, industry, Entrepreneurship and SMEs of 8 February 2019.
4 The European Commission made available document 10 through the Better Regulation Portal:
https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-6427186_en#plan-2018-3079.
2
Following that review, I regret to inform you that I have to confirm the position of the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs to refuse
access to the undisclosed parts of documents 1, 3 - 9, 12 - 15, 17 and 18, withheld on the
basis of the exceptions protecting privacy and the integrity of the individual, laid down in
Article 4(1)(b) of Regulation (EC) No 1049/2001 (relevant parts of documents 1, 3, 4, 5,
6, 7, 8, 9, 13, 14, 15, 17 and 18) and commercial interests, laid down in Article 4(2), first
indent, of the above-mentioned regulation (relevant parts of documents 12, 14, 17 and
18).
I also note that due to an administrative error, the names and surnames of the staff
members of the European Commission, who do not hold any senior management
position, were not redacted from document 14 which was partially disclosed at the initial
stage.
The correct version of document 14 is enclosed to this decision. I would like to ask you
to delete the previous version of that document from your records.
The detailed reasons are set out below.
2.1 Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 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’.
Although, as mentioned in point 1 of this decision, the reasoning included in your
confirmatory application concentrates only on personal data redacted from documents 13
and 14 on the basis of the exception quoted above, I would like to explain applicability of
that exception to all documents falling under the scope of your application that contain
that type of information (that is documents 1, 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 17 and 18).
In this context, please note that in its judgment in Case C-28/08 P
(Bavarian Lager)5, the
Court of Justice ruled that when an application is made for access to documents
containing personal data, 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 data6 (‘Regulation (EC) No 45/2001’) becomes fully applicable.
As from 11 December 2018, Regulation (EC) No 45/2001 has been repealed by
Regulation (EU) 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
5 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v The Bavarian Lager judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
6 Official Journal L 8 of 12.1.2001, p. 1.
3
movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC7 (‘Regulation (EU) No 2018/1725’).
However, the case-law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
In the above-mentioned judgment the Court stated that Article 4(1)(b) of Regulation (EC)
No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.8
Article 3(1) of Regulation (EU) No 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’.9
Documents 1, 3, 4, 5, 6, 7, 8, 9, 15, 17 and 18 contain the names, surnames and contact
details (telephone number, office location) of the staff members of the European
Commission who do not hold any senior management position. They contain also
biometric data (handwritten signatures of, for example, Commissioner Bieńkowska
included in document 3, or the staff member of the European Commission included in
document 9).
With regard to documents 13 and 14, on which you concentrate in your confirmatory
application, please note that document 13 contains three declarations of absence of
conflict of interests and of confidentiality submitted by the staff members of the
European Commission who do not hold any senior management position. The redacted
parts of the document contain their names, surnames and the biometric data pertaining to
them (their handwritten signatures).
Document 14 contains the evaluation report prepared in the context of the call for tender
organised under the above-mentioned framework contract 575/PP/2016/FC. The relevant
undisclosed parts of this document cover names and surnames of the three staff members
mentioned above, as well as the biometric data pertaining to them (their handwritten
signatures and handwritten initials).
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
Regulation (EU) No 2018/1725.
7 Official Journal L 205 of 21.11.2018, p. 39.
8
European Commission v The Bavarian Lager judgment quoted above, paragraph 59.
9 Judgment of the Court of Justice of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
4
Pursuant to Article 9(1)(b) of Regulation (EU) No 2018/1725, ‘personal data shall only
be transmitted to recipients established in the Union other than Union institutions and
bodies 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 (EU) No 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(ClientEarth), the Court of Justice ruled that the institution does not
have to examine of its own motion the existence of a need for transferring personal
data.11 This is also clear from Article 9(1)(b) of Regulation (EU) No 2018/1725, which
requires that the necessity to have the personal data transmitted must be established by
the recipient.
According to Article 9(1)(b) of Regulation (EU) No 2018/1725, the European
Commission has to examine the further conditions for a lawful processing of personal
data only if the first condition is fulfilled, namely if the recipient establishes 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 weighted the various competing interests.
As explained in point 1 of this decision, in the confirmatory application you point out
that ‘[your] reading of the documents [disclosed at the initial stage] suggests a potential
conflict of interest on behalf of the Centre for European Policy Studies, which is part of
the specific contract [under which the study Impact Assessment on Common Chargers of
Portable Devices’ was procured], but also counts Apple, which indirectly is subject of the
study, among its corporate members’. Therefore, in your view, ‘[i]t would be helpful to
know who signed the Conflict of interest declaration („[document]13”) and who
conducted the evaluation report on behalf of the [European] Commission [included in
document]„14”.’
Consequently, public disclosure of personal data included in documents 1, 3, 4, 5, 6, 7, 8,
9, 13, 14, 15, 17 and 18 would help you (and the public in general) to verify whether
there potentially was a conflict of interest regarding the subject matter of the Impact
Assessment study and the economic operators involved in its preparation.
10
European Commission v The Bavarian Lager judgment quoted above, paragraph 68.
11 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v European Food Safety Agency,
C-615/13 P,
EU:C:2015:489, paragraph 47.
5
As a preliminary comment, I would like to clarify that the study ‘Impact Assessment on
Common Chargers of Portable Devices’ was prepared under framework contract
575/PP/2016/FC. The framework contract is an umbrella agreement, which sets out
general principles applicable to specific contracts signed under that agreement in order to
implement the later. The consortia composed of the lead contractor and its partners enter
into the contractual relationship with the European Commission under the framework
contract. The specific contracts can cover a very broad range of subjects and may be
delegated by the lead contractor to any third parties (subcontractors) competent in the
field of the specific contract. It is important to note that not all partners in the consortium
which signed the framework contract are always involved in carrying out the tasks under
every specific contract. The partners of the consortium provide a ‘pool’ of entities which
can be in charge of specific contracts.
The framework contract 575/PP/2016/FC was indeed signed between the European
Commission and (among others) a consortium consisting of ‘Economisti Associati’ as
the lead contractor and the Centre for Social and Economic Research, the Centre for
European Policy Studies, Coffey International Development Ltd and Technopolis
Limited as the partners. However, the specific contract for the study ‘Impact Assessment
on Common Chargers of Portable Devices’ has been carried out jointly by the lead
contractor (‘Economisti Associati’) and its three subcontractors (Ipsos Market and
Opinion Research International, Trinomics BV and Fraunhofer FOKUS)12. The Centre
for European Policy Studies was not involved in the implementation of this specific
contract and therefore there may not be any conflict of interest regarding the subject
matter of the study ‘Impact Assessment on Common Chargers of Portable Devices’ and
the entities involved in its preparation.
Consequently, in the absence, as explained above, of any alleged conflict of interest, such
as that referred to in your confirmatory application, I consider that the necessity for the
transfer of personal data (through its public disclosure) included in documents 1, 3, 4, 5,
6, 7, 8, 9, 13, 14, 15, 17 and 18 has not been established. Therefore, the European
Commission does not have to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by disclosure of the personal data reflected
in the documents, as there is a real and non-hypothetical risk that such public disclosure
would harm their privacy and subject them to unsolicited external contacts.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data, as the need to obtain access
12
Please note that point 5 of the evaluation report included in document 14, erroneously contains the
list of the members of the consortium that signed the framework contract 575/PP/2016/FC, rather
than the name of the operator to which the specific contract for preparation of the study ‘Impact
Assessment on Common Chargers of Portable Devices’ was awarded.
6
thereto for a purpose in the public interest 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.
Furthermore, as the handwritten signatures included in documents 3, 9, 13 and 14 and
handwritten initials included in document 14, which are biometric data, there is a risk
that their disclosure would prejudice the legitimate interests of the persons concerned.
2.2 Protection of commercial interests of a natural or legal person
Article 4(2), first indent, of Regulation 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’.
Although in your confirmatory application you do not seem to question the applicability
of the above-mentioned exception to the relevant undisclosed parts of documents 12, 14,
17 and 18, I would like to provide additional explanations on how their public disclosure
would undermine the interests protected by this exception.
As explained by the Directorate-General for Internal Market, Industry, Entrepreneurship
and SMEs in its initial reply, the above-mentioned parts of documents 12, 14, 17 and 18
contain information which public disclosure would undermine the competitive position
of economic operators referred to in these documents.
The relevant undisclosed parts of document 12 contain the list of economic operators
invited to submit their offers under framework contract 575/PP/2016/FC, but which did
not provide the offers.
Document 14, as described in point 2.1 of this decision, contains the evaluation report
prepared in the context of the call for tender organised under the above-mentioned
framework contract 575/PP/2016/FC. The report contains the results of the qualitative
evaluation of submitted offers, concluded with the score given to each offer. The version
of this document disclosed at the initial stage contained the descriptive part of the
evaluation, however, the names of the economic operators were redacted. In this way, it
is not possible to associate the description of the offer with the given operator. For the
same reason, the information concerning particular experience of a given economic
operator in the field cover by the call for tender, was redacted from document 14.
The names of the economic operators were removed also from documents 17 and 18.
Public disclosure of that redacted parts of the above-mentioned documents would allow
to compare the relative merits and advantages of each economic operator and the offers
submitted by them. That in turn, would undermine the competitive position of the
economic operators in question, as their competitors (for instance in the future tenders)
would receive the insight into the information included in their offers.
Consequently, there is a real and non-hypothetical risk that public access to the above-
mentioned information would undermine the commercial interests of the economic
operators in question. I conclude, therefore, that access to the undisclosed parts of
7
documents 12, 14, 17 and 18 must be denied on the basis of the exception laid down in
the first indent of Article 4(2) of Regulation (EC) No 1049/2001.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation (EC) No 1049/2001 does not
need to be balanced against overriding public interest in disclosure.
The exceptions laid down in Article 4(2) of Regulation (EC) No 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.
Except for the issue of the potential conflict of interest in the context of the framework
contract 575/PP/2016/FC (which was addressed in point 2.1 of this decision), you do not
refer in your confirmatory to any particular public interest that would warrant public
disclosure of the relevant redacted parts of documents 12, 14, 17 and 18
Nor have I, based on my own analysis, been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the commercial interests of the economic operators grounded in the first indent of Article
4(2) of Regulation (EC) No 1049/2001.
4.
NO FURTHER PARTIAL ACCESS
(Wide) partial access has been granted to documents 13 and 14 at the initial stage.
Further (partial) access to the documents concerned is not possible for the reasons
described in point 2 of this decision.
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 Commission
Martin SELMAYR
Secretary-General
8
Document Outline