Ref. Ares(2019)3869183 - 18/06/2019
DIRECTORATE-GENERAL FOR MARITIME AFFAIRS AND FISHERIES
By registered letter with
acknowledgment of receipt
Mr. Peter Ryder
Bryn a Wel Clun Road
SY7 9QS Craven Arms
Advance copy by email:
Your applications for access to documents – Ref GestDem No
2019/2539 and 2086
We refer to your e-mails dated 2 and 27 April 2019 in which you make a request for access
to documents, registered respectively on 29 and 27 April 2019 under the above mentioned
You request access to the following documents, in reference to pulse or electric shock
trawling for fish:
1 - description of the research design and research design documents that the researchers
have no doubt produced to DG MARE
2 - full details of the research already carried out along with whatever preliminary results
which have been obtained
3 - how long it is anticipated the research will continue
4 - to what use DG MARE expects to be able to put the results of the research once
5 - the identity or identities of the researchers and the academic bodies with which they
are connected or, if there is good reason not to disclose that or those identities, explain
what steps DG MARE has taken to satisfy itself that the researchers are qualified to
conduct the research
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: J-99 05/014 - Tel. direct line +32 229 96310
6 - all communications between DG MARE and the Dutch fishing industry in connection
with this method of fishing over the period since 1 January 2012.
I consider your request to cover documents held up to the date of your initial application, i.e.
2 April 2019.
Your application concerns the following documents:
Ares(2013)2530660, Ares(2012)1397481, Ares(2019)242232, Ares(2019)221400,
documents belonging to an EU Pilot file1
documents belonging to a complaint file2.
1. Documents to which access is fully or partially granted
You will find enclosed a redacted copy of the documents requested under category 6. You
may reuse them free of charge for non-commercial and commercial purposes provided that
the source is acknowledged and that you do not distort the original meaning or message of
the document. Please note that the Commission does not assume liability stemming from the
Please note that some of the documents to which you request access contain personal
data, in particular names, functions and handwritten signatures.
Pursuant to Article 4(1)(b) of Regulation (EC) 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 data3.
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data ‘means any
information relating to an identified or identifiable natural person […]’. 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.4
Please note in this respect that the names, signatures, functions, telephone numbers and/or
initials pertaining to staff members of an institution are to be considered personal data5.
1 EU Pilot is a procedure for cooperation between the Commission and the Member State concerned on
issues related to potential non-compliance with EU law.
2 Procedure allowing any citizen to introduce a complaint to the Commission about a breach of Union law
by authorities in an EU country.
3 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 movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC (OJ L 205 of 21.11.2018, p. 39).
4 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Nowak v Data Protection Commissioner
, request for a preliminary ruling, paragraphs 33-35, ECLI:EU:C:2017:994.
5 Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission
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, the Data Protection
Regulation becomes fully applicable.7
Pursuant to Article 9(1)(b) of Regulation 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
2018/1725, can the transmission of personal data occur.
According to Article 9(1)(b) of Regulation 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 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 request, 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.
Notwithstanding the above, please note that 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
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. As to the handwritten signatures contained in
some documents, which are biometric data, there is a risk that their disclosure would
prejudice the legitimate interests of the persons concerned.
2. Documents to which access is refused
Having examined the other documents requested under the provisions of Regulation (EC)
No 1049/2001 regarding public access to documents, I regret to inform you that your
6 Judgment of 29 June 2010 in Case C-28/08 P, European Commission v The Bavarian Lager Co. Ltd
EU:C:2010:378, paragraph 59.
7 Whereas this judgment specifically related to 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, the
principles set out therein are also applicable under the new data protection regime established by
application cannot be granted, as disclosure is prevented by an exception to the right of
access laid down in Article 4 of this Regulation.
Although both the EU Pilot and the complaint files are closed, at this stage, the European
Commission’s internal investigation process is on-going in order to decide whether or not
an infringement procedure should be launched in the subject-matter concerned. Therefore,
the European Commission considers that the investigation on the subject-matter is still on-
going, irrespective of the finalisation of the EU Pilot and the complaint.
Disclosure of the documents requested would then undermine the protection of the purpose
of the ongoing investigation. Indeed, disclosure of the document now would affect the
climate of mutual trust between the authorities of the Member State and the Commission,
which is required to enable them to resolve the case without having to refer it to the Court of
Justice. Therefore, the exception laid down in Article 4(2) third indent of Regulation (EC)
No 1049/2001 applies to this document.
The exception laid down in this Article applies unless there is an overriding public interest
in the disclosure of the document. However, you have not shown how there could be a need
for the public to obtain access to the requested documents, or how this public interest would
override the public interest in achieving compliance of the Member State concerned with
the relevant EU rules as soon as possible. We have also not been able to identify any other
public interest that could override the public interest protected.
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting partial access to the documents requested. However, for the reasons
explained above, no meaningful partial access is possible without undermining the interests
described above. Thus, I have concluded that the documents requested are covered in their
entirety by the invoked exception to the right of public access.
3. Documents for which the Commission is consulting the author
As regards documents Ares(2013)543131 and the annex to document Ares(2013)1206466,
the Commission is consulting the authors of the document, in accordance with Article 4(4)
of Regulation (EC)1049/2001. We will inform you as soon as we have their answer.
Furthermore, please be informed that the European Commission does not issue fisheries
authorisations nor does it issue derogations from the Technical Measures Regulation8.
According to Article 43 of this Regulation, only Member States grant fishing authorisations
and derogations that would permit the use of pulse for scientific reasons. For its part, the
Commission is informed that derogations under Article 43 have been issued. Therefore, the
Commission holds no such documents, corresponding to the description given in your
application, other than the documents mentioned above. In view of this, we suggest you
contact the Member States fisheries authorities that issue these fishing authorisations and
request them to disclose the relevant research documents you are interested in. Furthermore,
we would like to draw your attention to the fact that all scientific research undertaken by
ICES and STECF, including on pulse fishing, are available online.9
8 Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through
technical measures for the protection of juveniles of marine organisms (O.J. L 125/1 27.4.98)
9 E.g. www.ices.dk/community/groups/Pages/WGELECTRA.aspx;
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to make
a confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon receipt
of this letter to the Secretary-General of the Commission at the following address:
or by email to: firstname.lastname@example.org
João AGUIAR MACHADO
Electronically signed on 17/06/2019 17:17 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563