C(2019) 5335 final
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011 ANNULLING AND
REPLACING THE DECISION OF THE EUROPEAN COMMISSION C(2019)4544 FINAL
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/152
Dear Mr Schneider,
I refer to your e-mail of 21 February 2019, registered on 22 February 2019, 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 (EC) No 1049/2001’).
SCOPE OF YOUR APPLICATION
In your initial application of 11 December 2018 addressed to the Directorate-General for
Research and Innovation you requested ‘full and uncensored access to all emails’
referred to in the reply of that Directorate-General to your previous initial application
In that application, you requested access to ‘[r]ecords of any possible meetings or
communications between EU special envoy Robert-Jan Smits and the scholarly publisher
Frontiers Media SA, in the years 2017 and 2018’. You underlined that you were
particularly interested in the contacts of Mr Smits with three ‘Frontiers executives’
whose names you listed in your initial application Gestdem 2018/5387. With regard to
the email exchanges between the above-mentioned ‘Frontiers executives’ and Mr Smits,
you clarified that ‘[you] understand the contents of Mr Smit's work emails, phone calls
Official Journal L 345 of 29.12.2001, p. 94.
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
and meetings might be protected’ Consequently, ‘[you request access to] [j]ust dates and
names of correspondents’.
In its initial reply of 12 November 2018 to Gestdem 2018/5387, the Directorate-General
for Research and Innovation provided you with a list of Mr Smits's e-mail exchanges
with Frontiers representatives during 2018. The list contained the headings of e-mails,
which included details on the requested exchanges3.
On 14 November 2018 you submitted the confirmatory application in accordance with
Article 7(2) of Regulation (EC) No 1049/2001, in which you requested, among others,
access to the content of the emails included in the list provided by the Directorate-
General for Research and Innovation in the initial reply. The Secretariat-General of the
European Commission considered that this exceeds the scope of your initial application
Gestdem 2018/5387 and informed you that you were entitled to submit a new application
for access to the content of the above-mentioned e-mails.
On 11 December 2018, you submitted the new application, which was registered under
reference number Gestdem 2019/152 and attributed on 9 January 2019 to the European
Political Strategy Centre of the European Commission for handling and reply.
The European Commission identified the following documents as falling under the scope
of your application:
16 email exchanges between Robert-Jan Smits and the representatives of Frontiers
Media, covering the period 26 March 2018 – 19 October 2018, numbered 1 – 8 and 11 –
184, reference: Ares(2019)1272493 (hereafter ‘documents requested’).
On 16 February 2019, the European Political Strategy Centre of the European
Commission replied to your initial application. It refused access to the documents
requested based on the exceptions provided for in Article 4(2) of Regulation (EC) No
1049/20015. In its assessment of the case, the European Political Strategy Centre of the
European Commission took into account the position of the originator of the documents,
which it consulted in line with the provisions of Article 4(4) of Regulation
(EC) No 1049/2001.
You submitted your confirmatory application on 21 February 2019, asking for the review
of that position.
The disclosed details included the name of the sender, the name of the main representative of
Frontiers, the generic e-mail address of Frontier, the domain of the e-mail addresses of non-senior
Frontier representatives, the name and the domain e-mail addresses of European Commission staff
members holding a senior management position, the domain of e-mail addresses of Commission
officials not holding any senior management position, the date and the time these exchanges took
place, and the subject of the exchange.
Exchanges under number 9 and 10 are between the representatives of Frontiers Media SA and third
parties and therefore they fall outside the scope of your application Gestdem 2019/152.
The European Political Strategy Centre did not specify which interest provided for in Article 4(2) of
Regulation (EC) No 1049/2001 warrants refusal of access to the documents concerned.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 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 concerned at the initial stage.
The documents identified as falling under the scope of your application include email
messages originating from a third party.
Under the provisions of Article 4(4) of Regulation (EC) No 1049/2001 and with a view
to taking into account the arguments put forward in your confirmatory application,
a renewed consultation of the third party author was initiated by the Secretariat-General
on 12 March 2019 and 8 May 2019, respectively.
Following this consultation, the European Commission adopted the decision
C(2019)4544 containing the reply to your confirmatory application. It granted partial
access to the parts of the requested documents falling within the scope of your initial
application. The withheld parts of the documents were redacted based on the exceptions
provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001 and Article 4(2), first
indent, of that regulation (protection of, respectively, privacy and the integrity of the
individual and commercial interests of a natural or legal person). It informed you,
however, that according to Article 5(6) of the Detailed rules for the application of
Regulation (EC) No 1049/2001, it intended to give partial access to the documents (….)
against the explicit opinion of the author and inform the author of its intention to
disclosure the documents after a ten working day period and draw his attention to the
remedies available to oppose the disclosure.
On 1 July 2019, namely after the confirmatory decision C(2019)4544 final was notified
to you, the third party author withdrew its opposition to the disclosure of the requested
documents, subject to the redaction of personal data. In order to take this into account,
the decision C(2019)4544 final is annulled and replaced by this decision.
Given the withdrawal of the opposition of the third party author, wide partial access is
granted to the requested documents, subject only to redaction of personal data in
accordance with Article 4(1)(b) (protection of privacy and the integrity of the individual)
of Regulation (EC) No 1049/2001 and information falling outside the scope of your
The detailed reasons are set out below.
As mentioned in part 1 of the decision, the relevant parts of the above-mentioned
documents include the exchanges between the representatives of Frontiers Media SA and
third parties. They do not fall within the scope of your application Gestdem 2019/152
and were redacted as such.
You may reuse the European Commission documents requested free of charge for non-
commercial and commercial purposes provided that the source is acknowledged, that you
do not distort the original meaning or message of the document/documents. Please note
that the Commission does not assume liability stemming from the reuse.
Please also note that the documents requested include the email messages originating
from Frontiers Media SA. These third party messages are disclosed for information only
and their original meaning or message should not be distorted. Please note that the
Commission does not assume liability stemming from the reuse.
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’.
In its judgment in Case C-28/08 P (Bavarian Lager),
6 the Court of Justice ruled that
when a request 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 data7
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by Regulation (EU) 2018/17258.
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
The 16 email exchanges in question are email messages sent or received by Robert-Jan
Smits and the representatives of Frontiers Media SA from their individual email
addresses. Consequently, their contents is associated to and linked with the concrete
individuals who the authors of the relevant email messages.
As mentioned in part 1 of this decision, on 12 November 2018 the Directorate-General
for Research and Innovation provided you the list containing information on exchanges
between Mr Smits and Frontiers Media SA. Therefore it would be possible to identify the
authors of the given email exchange, by comparing the list provided on 12 November
6 Judgment of the Court of 29 June 2010, European Commission v The Bavarian Lager Co. Ltd
C-28/08 P, EU:C:2010:378, paragraph 59 (hereafter ‘Bavarian Lager
7 Official Journal L 8 of 12.1.2001, p. 1.
8 Regulation (EU) 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. Official Journal L 205 of
21.11.2018, p. 39.
2018 and the document released in this decision. Those specific circumstances have been
taken into account in processing your request for access to documents.
In particular, a certain number of information contained in those 16 email exchanges , in
the present circumstances, allow identifying the data subject concerned and consequently
constitute personal data within the meaning of Article 3(1) of Regulation
(EU) 2018/1725 mentioned above.
Indeed, in all emails exchanges, except for the exchange marked as ‘15’, the heading of
the exchange constitutes personal data (including the name, surname, email address of
the sender, recipient, as well as the date and subject of the of the email) since this
information can be compared with the list of emails provided following your former
With regard to the actual content of the 16 email exchanges in question, the following
information constitute personal data: the exchanges marked as ‘12’, ‘13’ and ‘14’ contain
comments containing personal appreciations of the identified individual (Robert-Jan
Smits). In the exchanges marked as ‘4’, ‘5’, ‘7’, ‘8’, ‘16’, ‘17’ and ‘18’, the redacted
parts of the document requested include information about participation of the Robert-Jan
Smits and the representatives of Frontiers Media SA in various public events. This
includes the name of the event, its exact dates and venue that, in the present
circumstances, contain information which enable to identify the data subject.
The relevant undisclosed parts of the document requested includes also the names,
surnames, contact details (email addresses and telephone numbers), as well as the names,
surnames and contact details (email and office addresses, telephone numbers) of the staff
members of the European Commission not holding any senior management position.
The above-mentioned information clearly constitutes personal data in the sense of
Article 3(1) of Regulation (EU) 2018/1725 and in the sense of the Bavarian Lager
Pursuant to Article 9(1)(b) of Regulation (EU) 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) 2018/1725, can the
transmission of personal data occur.
, cited above, paragraph 70.
Furthermore, in Case C-615/13 P (ClientEarth
), the Court of Justice ruled that the institution
does not have to examine by itself the existence of a need for transferring personal data.10
This is also clear from Article 9(1)(b) of Regulation (EU) 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) 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 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 weighed the various competing interests.
In your application, you do not put forward any arguments to establish the necessity to have
the data transmitted for a specific purpose in the public interest. 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.
In this context, I would like to point out that the right to the protection of the privacy is
recognised as one of the fundamental rights in the Charter of Fundamental Rights, as is
the transparency of the processes within the Institutions of the EU. The legislator has not
given any of these two rights primacy over each other, as confirmed by the Bavarian
case-law referred to above11.
Based on the information at my disposal, I note that there is a risk that the disclosure of
the information appearing in the requested document, such as information relating to certain
aspects of their professional activities (agendas and travelling arrangements) or
comments of personal nature would prejudice the legitimate interests of the data subjects
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation
(EC) No 1049/2001 and Article 9(1)(b) of Regulation (EU) 2018/1725, access cannot be
granted to the personal data contained in the requested documents, as the need to obtain
access 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.
With regard to the information that does not fall under the definition of personal data,
such as the relevant redacted parts of the exchanges marked as ‘4’, ‘5’, ‘7’, ‘8’ and ‘15’,
containing the personal comments of the representatives of Frontiers Media SA, I
consider that their public disclosure would undermine the privacy of the persons
10 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.
11 Bavarian Lager
, cited above, paragraph 56.
concerned. Indeed, it is still possible to associate the above-mentioned comments of
strictly personal character, with one of only three individuals, given that the scope of
your application for access to documents, encompasses the exchanges between Robert-
Jan Smits and three, named ‘Frontiers executives’. Consequently, the public disclosure of
the personal comments would have impact on the privacy of the three individuals in
question and therefore Article 4(1)(b) of Regulation (EC) No 1049/2001 applies thereto.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
Wide partial access is hereby granted to the document requested.
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