C(2019) 6957 final
Ms Helen Darbishire
Access Info Europe
Calle Cava de San Miguel 8, 4º
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/2752 and
Dear Ms Darbishire,
I refer to your letter of 16 July 2019, registered on the next day, in which you submit a
confirmatory application concerning the two initial applications mentioned above 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 REQUEST
In the initial application of 11 of May 2019 you made on behalf on Access Info Europe,
addressed to the Secretariat-General, you requested, I quote, ‘access to documents that
provide details on expenditure listed as “miscellaneous costs” of Euros 8320 for the
mission by Commission President Jean Claude Juncker to Buenos Aires between 28
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
You requested further ‘that the documents provided contain sufficient details to be able
to identify for each type of miscellaneous cost (what the money was spent on) and the
total amount (in local currency and/or in Euros) for each item.’ This request has been
registered under reference number GESTDEM 2019/2780.
On 10 May 2019, another member of the Access Info Europe team requested ‘access to
documents further detailing the items listed as “miscellaneous costs” for the mission by
Commission President Jean Claude Juncker to Buenos Aires between the 28 November
and 2 December 2018.’ He requested further that, I quote, ‘the information provided
[should] : [a] Be in the form of the documents released in response to request GestDem
2016/6050 [b] Include information in the level of detail made available to commissioners
when submitting mission orders, presented in pages 12-18 of first document released in
response to request GestDem 2015/6011 […] For example, the information presented in
the table contained in the screenshot at the bottom of page 15 of this document, namely
information in the fields of the: Type of Miscellaneous cost, Amount in Euros, and
Comments by the officer introducing the order.’
In its initial reply of 25 June 2019, the Directorate C ‘Transparency, Efficiency &
Resources’ of the Secretariat-General refused access to the documents falling within the
scope of your requests based on the exception of Article 4(1)(b) (protection of privacy
and the integrity of the individual) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
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.
In your confirmatory application, you indicate that ‘the two requests [seek] access to
documents that contain a breakdown of the type or types of miscellaneous costs for
which the spending of € 8320 was incurred’.
Following this review, I can inform you that the European Commission has identified the
following documents as falling under the scope of your request:
Invoice of 3 December 2018 addressed to the Office of the President of
the European Commission, reference Ares(2018)6480913, (hereafter
Invoice of 6 December 2018 addressed to the Office of the President of
the European Commission, reference Ares(2018)6563895, (hereafter
I would like to clarify that there are no documents falling under your request ‘further
detailing the items listed as “miscellaneous costs” […] ‘in the form of the documents
released in response to request GestDem 2016/6050’, as these documents do not contain
any further details of the item ‘miscellaneous costs’ additional to the information which
has been made proactively public3. At the time you received the reply to the request you
refer to, the European Commission did not yet proactively publish the Commissioners’
mission expenses in the ATMOS4 application. The information you request is now
publicly available in the ATMOS application.5 As to the information available in the
MiPS system,6 I confirm that it does not contain details allowing to identify further
subcategories of miscellaneous costs.
I regret to inform you that I have to confirm the initial decision of Directorate C
‘Transparency, Efficiency & Resources’ of the Secretariat-General to refuse access to
documents 1 and 2 based on the exception of Article 4(1)(b) (protection of privacy and
the integrity of the individual) of Regulation (EC) No 1049/2001, for the reasons set out
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘[t]he 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)
7, 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 data8
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
4 Application for Transparent Meetings with Organisations and Self-employed individuals (hereafter
referred to as ‘ATMOS’).
6 Mission Processing System (hereafter referred to as ‘MiPS’).
7 Judgment of the Court of Justice of 29 June 2010, European Commission v The Bavarian Lager Co.
(hereafter referred to as ‘European Commission v The Bavarian Lager
judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
8 Official Journal L 8 of 12.1.2001, page 1.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by 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, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC9 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 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’.10
Article 3(1) of Regulation (EU) 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
In a recent judgment, the General Court confirmed that, in addition to names, information
concerning the professional or occupational activities of a person can also be regarded as
personal data where, first, the information relates to the working conditions of the said
person and, second, the information is capable of indirectly identifying, where it can be
related to a date or a precise calendar period, a physical person within the meaning of the
Data Protection Regulation.12
Documents 1 and 2 contain personal data, namely information relating to the person of
the President Juncker in relation to the type of miscellaneous costs13 incurred during his
mission to Buenos Aires. It is clear that this information is indeed personal data. In
addition, the requested documents contain handwritten annotations as well the signature
of a Commission staff member.
In your confirmatory application, you do not contest that the requested documents
contain personal data. You contest, however, that the ‘requested document(s) contain
personal data to the extent that they are protected in their entirety’.
9 Official Journal L 205 of 21.11.2018, p. 39.
10 European Commission v The Bavarian Lager
above, paragraph 59.
11 Judgment of the Court of Justice of 20 May 2003, Rechnungshof and Others v Österreichischer
, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
12 Judgment of the General Court of 27 November 2018, VG v Commission
, Joined Cases T-314/16 and
T-435/16, EU:T:2018:841, paragraph 64 (hereafter referred to as ‘VG v Commission’
13 Miscellaneous costs are expenses incurred for the purpose of the mission, other than travel costs,
accommodation costs and daily allowances.
You explain that ‘this is because the request only seeks a document that contains data on
the type of miscellaneous expenditure incurred. It should be possible to provide that
document-extracted from the MiPS system in an excel sheet or in another format-either
with no personal data included and/or with the personal data (the name and surname of
any persons redacted)’. You note that you ‘have received excel sheets from other
Commission agencies that appear to be extracted from a computer system and that do
indeed itemise miscellaneous costs by type’. You further state that Access Info does ‘not
seek information relating to an individual, but to an institution, in this instance, the
institution of the President of the European Commission. The mere fact that the current
holder of that office is Mr Jean-Claude Juncker is neither here nor there; what matters is
that this is about the transparency and accountability of the institution.’ In your view, ‘in
this sense Access Info’s request for the Commission President’s travel expenses is
materially different from the matters at issue in the Rechnungshof
refer further to the Guidance Note concerning access to names and functions of
Commission Staff, reference Ares(2019)4352523, and conclude that ‘the names of
Commissioners, their Cabinet Members, and staff in senior positions, namely Secretary-
General, Directors-General, Directors, can be provided to the public unless very specific
circumstances apply’. Finally, you refer to the Code of Conduct for the Members of the
European Commission and conclude that the ‘Code of Conduct establishes the principle
of transparency, and requires proactive publication, but does not limit further disclosure
pursuant to requests’.
I would like to clarify that the type or types of miscellaneous costs incurred by President
Juncker are indeed personal data, as this information cannot be disassociated from the
natural person it concerns. In the Nowak
judgment,14 the Court of Justice has
acknowledged that ‘[t]he use of the expression “any information” in the definition of the
concept of “personal data”, within Article 2(a) of Directive 95/46, reflects the aim of the
EU legislature to assign a wide scope to that concept, which is not restricted to
information that is sensitive or private, but potentially encompasses all kinds of
information, not only objective but also subjective, in the form of opinions and
assessments, provided that it “relates” to the data subject.’ As regards the latter condition,
it is satisfied where the information, by reason of its content, purpose or effect, is linked
to a particular person.’ It is obvious that information about costs, including the
miscellaneous costs, incurred by President Juncker during his mission to Buenos Aires is
information which by reason of its content is linked to a particular natural person. In the VG v Commission
judgment, the General Court ruled that even anonymised data should
be considered as personal data, if it would be possible to link them to an identifiable
natural person through additional information.15 It is clear that the information contained
in the requested documents clearly constitutes personal data.
14 Judgment of the Court of Justice of 20 December 2017, Peter Nowak v Data Protection Commissioner
(Request for a preliminary ruling from the Supreme Court), C-434/16, EU:C:2017:994, paragraphs 34-
15 VG v Commission
judgment, cited above, paragraph 74.
Consequently, it is not possible to redact the name or surname of the natural person it
concerns, as you suggest, and only leave the breakdown of the costs, as the whole
information continues to relate to the natural person you indicated in your request,
namely President Juncker.
The fact that the information you request is indeed personal data is not altered by your
argument that you do ‘not seek information relating to an individual, but to an institution,
in this instance, the institution of the President of the European Commission’, because
the President of the European Commission is a natural person. In other words, the
information contained in the documents you seek to obtain, does not cease to be personal
data because it relates to the person who holds the office of the President of the European
Commission. Nor does the Guidance Note concerning access to names and functions of
Commission Staff stipulate that the names of Members of the Commission should be
disclosed in all cases. Your request does not concern a document where the name of
President Juncker is merely mentioned, but documents containing personal data which
are intrinsically connected with his person. In full compliance with Regulation (EC) No
1049/2001, an individual assessment of the requested documents has to be performed
taking into account the data protection parameters stipulated in Regulation (EU)
You indicate that ‘what matters is that this is about the transparency and accountability of
the institution’. In this context, I would like to underline that the European Commission
proactively publishes information about the mission expenses of its members. The Code
of Conduct for the Members of the European Commission provides that ‘[f]or reasons of
transparency, the [European] Commission will publish an overview of mission expenses
per Member every two months covering all missions undertaken unless publication of
this information would undermine the protection of the public interest as regards public
security, defence and military matters, international relations or the financial, monetary
or economic policy of the Union or a Member State.’16
The Code of Conduct for the Members of the European Commission entered into force
on 1 February 2018. Accordingly, since 28 February 2018, information pertaining to the
mission costs of the Members of the Commission, including the President, has been
proactively published every two months.
You state that ‘Access Info’s request for the Commission President’s travel expenses is
materially different from the matters at issue in the Rechnungshof
cases’. I do
not share your views. In the first case, which concerned the disclosure of data on the
income of employees of bodies subject to control by the Rechnungshof, the Court of
Justice stated that ‘the data […], which relate both to the monies paid by certain bodies
and the recipients, constitute personal data within the meaning of Article 2(a) of
Directive 95/46, being information relating to an identified or identifiable natural
Commission Decision of 31.1.2018, C(2018)700 final, Article 6(2).
17 Judgment of the Court of Justice of 20 May 2003, Rechnungshof (C-465/00) v Österreichischer
Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (C-139/01) v
This finding is applicable also in the present case; thus the requested information on the
miscellaneous expenses of President Juncker during his mission to Buenos Aires being
information relating to an identified natural person constitutes indeed personal data. As to
the second case, which concerned the expenditure incurred by Members of the European
Parliament, in particular disclosure of documents showing details regarding how and
when […] MEPs’ from each Member State ‘spent’, during various periods, the General
Court concluded that ‘it is apparent […] [that] all the requested documents contain
personal data, so that the provisions of Regulation No 45/2001 are applicable in their
entirety to the present case.’ 18 This case, as the case at hand, concerned members of a
European institution and details on the expenditure they incurred. I, therefore, consider
the findings of the General Court as directly relevant to the present case. The General
Court did not only conclude that the requested documents obviously contained personal
data, but also confirmed the decision of the European Parliament to refuse access to these
documents. In this same judgment, the General Court stated that ‘the fact that data
concerning the [MEPs] in question are closely linked to public data on those persons,
inter alia as they are listed on the Parliament's internet site, and are, in particular, MEPs’
names does not mean at all that those data can no longer be characterised as personal
data, within the meaning of Article 2(a) of Regulation No 45/2001.’19 This is exactly the
case for the breakdown of the mission expenses you request.
The names20 of the persons contained in the requested documents, their handwritten
comments and signatures, as well as the information regarding the break-down of the
miscellaneous expenses of President Juncker are indeed data from which their identity
can be deduced, consequently they undoubtedly constitute personal data in the meaning
of Article 3(1) of Regulation (EU) 2018/1725.
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 the 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.
, (References for a preliminary ruling: Verfassungsgerichtshof (C-465/00)
and Oberster Gerichtshof (C-138/01 and C-139/01) – Austria), Joined Cases C-465/00, C-138/01 and
C-139/01, EU:C:2003:294, paragraph 64.
18 Judgment of the General Court of 25 September 2018, Maria Psara and Others v European
(hereafter referred to as ‘Psara v European Parliament
judgment’), Joined Cases T-639/15
to T-666/15 and T-94/16, EU:T:2018:602, paragraph 52.
, paragraph 52.
20 European Commission v The Bavarian Lager
judgment, cited above, paragraph 68.
In Case C-615/13 P
), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.21 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 confirmatory application, you put forward several arguments to justify why a
transmission of the personal data should take place. Firstly, you refer to Article 5 of
Regulation (EU) 2018/1725 and argue that the requested processing is lawful. In your
view, it ‘could well be determined to constitute either (a) performance of a task carried
out in the public interest or in the exercise of official authority vested in the Union
institution or body, or (b) processing is necessary for compliance with a legal obligation
to which the controller is subject.’ Although I agree that the processing of the data
relating to mission expenses by the European Commission is a lawful activity, this does
not prove that the transmission of the collected personal data to you fulfils the
requirements of Article 9 of Regulation (EU) 2018/1725. Moreover, as you acknowledge
yourself, the Code of Conduct for the Members of the European Commission only refers
to the publication of an ‘overview’ of the mission expenses and does not contain any
legal obligation to publish the ‘break-down’ of the miscellaneous costs you request.
Therefore, your arguments, including the reference to the Code of Conduct for the
Members of the European Commission, are not sufficient to establish that the conditions
of Article 9 and Article 5 of Regulation (EU) 2018/1725 are fulfilled.
Secondly, you argue that ‘[a]nother lawful basis for processing established in Article
5(1)(d) is that ‘the data subject has given consent to the processing of his or her personal
data for one or more specific purposes’. You add that ‘it seems correct to sustain that the
Commissioners are not only aware of the processing expenses data, given that they are
surely aware of the Code of Conduct and the proactive publication of the travel expenses,
– but that they have given they consent in writing.’ You do not substantiate your
argument in relation to the breakdown of the miscellaneous expenses. Even if the
Commissioners are aware of the proactive publication of an ‘overview’ of their mission
expenses, this does not establish in any way that they have given their consent for the
public disclosure of their detailed breakdown.
21 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.
Thirdly, you refer to the recital 28 of Regulation (EU) 2018/1725 and underline that
‘[t]he specific purpose in the public interest could relate to the transparency of Union
institutions and bodies’. The recital 28 of Regulation (EU) 2018/172522 refers to the
elements that the recipients established in the Union other than Union institutions and
bodies would have to demonstrate when requesting to have personal data transmitted to
them. This recital has to be read in conjunction with Article 9 of Regulation (EU)
2018/1725. According to this article, the recipient has to establish first ‘that it is
necessary to have the data transmitted for a specific purpose in the public interest’. You
argue, that ‘the new legal framework established by Regulation 2018/1725 means that the
Commission should no longer rely heavily on previous case law, such as Volker und
Markus Schecke and Eifert, ClientEarth v EFSA
which established that mere
invocation of the principle of transparency is not sufficient in and of itself to justify the
disclosure of a document’. I do not share your view. The wording of the recital 28
referring to ‘[t]he specific purpose in the public interest could relate to the transparency
of Union institutions and bodies’ cannot be interpreted as meaning that any general
invocation of transparency is sufficient to substantiate it. A ‘specific purpose in the
public interest’ is not any general purpose. Contrary to your allegations, as it is clear
from the wording of both recital 28 and Article 9 of Regulation (EU) 2018/1725, the
need to demonstrate a ‘specific purpose in the public interest’ exists also ‘with respect to
requests relating to the spending of public funds’. In this context, I would like to
underline that the European Commission does indeed publish overviews of the mission
expenses of all its members. You have to take into account this publication and
substantiate in detail the specific purpose in the public interest which justifies the
transmission of any information which goes beyond what is already proactively
Fourthly, you refer to the European Ombudsman’s finding on cases 562/2017/THH and
1069/2017/THH stating that ‘the Ombudsman considers that there is a public interest in
public access to information on Commissioners’ travel expenses.’ In this particular case,
the European Ombudsman concluded that ‘[i]n light of the positive commitment of the
Commission to publish regularly and routinely information about each Commissioner's
travel expenses every two months, the Ombudsman finds that there are no grounds for
further inquiry into the issue.’
22 The recital 28 of Regulation 2018/1725 states: ‘When recipients established in the Union other than
Union institutions and bodies would like to have personal data transmitted to them by Union
institutions and bodies, those recipients should demonstrate that it is necessary to have the data
transmitted to these recipients either for the performance of their task carried out in the public interest
or in the exercise of official authority vested in them. Alternatively, those recipients should
demonstrate that the transmission is necessary for a specific purpose in the public interest and the
controller should establish whether there is any reason to assume that the data subject’s legitimate
interests might be prejudiced. In such cases, the controller should demonstrably weigh the various
competing interests in order to assess the proportionality of the requested transmission of personal
data. The specific purpose in the public interest could relate to the transparency of Union institutions
and bodies. Furthermore, Union institutions and bodies should demonstrate such necessity when they
themselves initiate a transmission, in compliance with the principle of transparency and good
administration. The requirements laid down in this Regulation for transmissions to recipients
established in the Union other than Union institutions and bodies should be understood as
supplementary to the conditions for lawful processing.’
The European Ombudsman never concluded that the breakdown of the travel expenses of
Commissioners, which is what you request, should be made public.
Fifthly, you argue that ‘there is a strong and specific public interest in Access Info
receiving the requested documents’. You indicate that your organisation has the ‘specific
goal to ensure that there is public scrutiny of the spending of public funds, that there can
be a fully-informed, evidence-based public debate about how such funds are used, and
that the public can be confident that public bodies exercising power and spending public
funds in a responsible and appropriate manner.’ Furthermore, you state that ‘[your]
request is designed to permit [you] and others, including anti-corruption civil society
organisations and investigative journalists, to act as public watchdogs.’ You refer to the
mission of Access Info, the fact that your make the data available ‘to all members of the
European (and indeed the global) public’ and conclude that ‘[b]asic information such as
how the Commissioners spend funds, with details on how the funds are used, is essential
to ensure an informed and accurate debate about the way in which Brussels functions.’
Finally, you state that ‘the denial of this request would adversely affect [your] role as a
public watchdog, subsequently breaching not only the right of access to documents
(Article 15 of the TFEU and Article 42 of the Charter of Fundamental Rights of the
European Union) but also [your] right to freedom of expression and information in
Article 11 of the Charter of Fundamental Rights of the EU.’
As a preliminary remark, I would like to draw attention to Article 2(1) of Regulation
(EC) No 1049/2001, which states that ‘[a]ny citizen of the Union, and any natural or
legal person residing or having its registered office in a Member State, has a right of
access to documents of the institutions, subject to the principles, conditions and limits
defined in this Regulation’ (emphasis added). It is clear from this provision that the right
of access is neither unconditional nor unlimited.
Your arguments on transparency stipulated above, do not establish that it is necessary to
have the date transmitted to you for a specific purpose in the public interest. Neither do
you demonstrate the existence of a ‘specific’ purpose nor demonstrate that the transfer of
personal data you request is the most appropriate of the possible measures for attaining
your objective and that it is proportionate to that objective, by providing express and
legitimate reasons to that effect and taking into account the data which are proactively
published by the European Commission.23 The General Court has rejected very similar
arguments put forward in the Psara v European Parliament
judgment, where the
applicants stated various objectives pursued by their requests for access to documents,
namely, on the one hand, to enable the public to verify the appropriateness of the
expenses incurred by MEPs in the exercise of their mandate and, on the other, to
guarantee the public right to information and transparency. The General Court stated that
‘because of their excessively broad and general wording, those objectives cannot, in
themselves, establish the need for the transfer of the personal data in question.’24
23 Judgment of the General Court of 15 July 2015, Gert-Jan Dennekamp v European Parliament
(hereafter referred to as ‘Dennekamp v European Parliament
paragraphs 54 and 59.
24 Psara v European Parliament
judgment, cited above, paragraph 74.
It also concluded that ‘the wish to institute public debate cannot suffice to show the need
for the transfer of personal data, since such an argument is connected solely with the
purpose of the request for access to the documents’.25 The General Court concluded that
‘the need for the transfer of personal data may be based on a general objective, such as
the public’s right to information concerning the conduct of MEPs in the exercise of their
duties, […] [however] only demonstration by the applicants of the appropriateness and
proportionality to the objectives pursued by the request for disclosure of personal data
would allow the Court to verify the need for that disclosure within the meaning of Article
8(b) of Regulation No 45/2001.’ These findings are applicable to the case at hand, as the
new Regulation (EU) 2018/1725 does indeed put the burden of proof on the recipient
who has to demonstrate the existence of the necessity of the transmission of the data for a
specific purpose in the public interest.
You argue further that ‘the Commission failed to establish that any data subject’s
legitimate interest might be prejudiced’. As explained above, as you have not
demonstrated that the transfer you request can be considered as a lawful processing nor
have you established the necessity to have the data transmitted for a specific purpose in
the public interest the European Commission does not have to examine whether there is a
reason to assume that the data subjects’ 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 the disclosure of the personal data
reflected in the documents, as there is a real and non-hypothetical risk that public
disclosure would harm the privacy of President Juncker by revealing security relevant
information, which can lead to a risk of his personal integrity during his missions.
Moreover, it public disclosure of the personal data of the non-senior Commission staff
included in the documents would undermine their privacy and subject them to unsolicited
As to the handwritten signatures appearing in documents, which constitute biometric data,
there is a risk that their disclosure would prejudice the legitimate interest of the person
Please note also that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include
the possibility for the exceptions defined therein to be set aside by an overriding public
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the requested documents 1 and 2, 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 the disclosure of the personal data concerned.
, paragraph 90.
The fact that an overview of the mission costs of President Juncker has already been made
publicly available in an proactive manner only reinforces this conclusion. It also proves that
the European Commission did indeed balance the right to the protection of personal data
with the right of access to documents in accordance with Union law.
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 protection of privacy and the integrity of the individual.
Consequently, I have come to the conclusion that the documents requested are covered
in their entirety by the invoked exceptions to the right of public access.
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.
For the Commission