Access Info Europe
Calle Cava de San Miguel 8, 4º centro
28005 Madrid, Spain
European Commission
Secretariat-General
Unit C.l. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels
Madrid, 16 July 2019
Dear Secretariat General Transparency Unit
This is a confirmatory application sent by Helen Darbishire on behalf of Access Info
Europe. The Confirmatory application is submitted as set out in Article 7(2) of Regulation
(EC) No 1049/2001, to challenge the refusal by the Commission to provide access to
documents with details on the mission expenses of the President of the European
Commission Jean-Claude Juncker, with your references GESTDEM 2019/2752 (the
request by our team member Jacob Finlay) and GESTDEM 2019/2780 (the request made
by Helen Darbishire), as per the refusal decision dated 25 June 2019.
In your response you correctly summarise that the request sought documents relating to
the mission of President Juncker to Buenos Aires from 28 November to 2 December 2018.
Specifically, the two requests sought access to documents that contain a breakdown of
the type or types of miscellaneous cost for which the spending of €8320 was incurred.
You have refused access to such documents by asserting that the “documents within the
specific category of ‘miscellaneous costs’ contain personal data and can therefore not be
disclosed as they are protected in their entirety under the exception for the protection of
privacy and the integrity of the individual which is laid down in Article 4(1)(b) of
Regulation (EC) No 1049/2001.”
With this confirmatory application, Access Info respectfully requests that you reconsider
this decision, taking into account the following:
1. Code of Conduct establishes the principle of transparency, and requires
proactive publication, but does not limit further disclosure pursuant to
requests
In its response the Commission refers to the Code of Conduct for the Members of
the European Commission, and notes “Commissioners have the obligation to
“conduct missions in compliance with the rules in the Financial Regulation, the
internal rules of the general budget of the European Union, the Guide to Missions
and the rules set out in Annex 2.”
2
Access Info has previously welcomed the Code of Conduct and the proactive
publication of mission costs that it mandates, out of recognition of the benefits of
transparency. Proactive transparency is the most effective way of ensuring that
the public can obtain information about the activities of public bodies and of
public, and transparency therefore contributes to the Commission’s treaty
obligations to work as openly as possible. It does not, however, remove the
possibility for additional documents to be requested and received.
Similarly, we welcome the confirmation that all spending is done in strict
compliance with the rules. That said, the fact that there cadherence to the rules
does not in any way remove the need for transparency. It should not be only in
cases of suspected wrongdoing that there should be transparency, as open
government has multiple other benefits, delivering an increased understanding of
how the European Union works, improved participation, and higher levels of trust.
The Code of Conduct establishes that mission costs will be published unless a
series of public interest reasons come into play; these reasons include public
security, defence, international relations, and other exceptions to be found in
Article 4.1.a) of Regulation 1049/2001.
Interestingly, the Code of Conduct does not make reference to Article 4.1.b) of
the same regulation, which protects the
privacy and the integrity of the individual.
It might be assumed that this is because the proactive publication of the travel
expenses of Europe’s top officials was not considered to be something coming in
the realm of data protection.
Indeed, the Code itself establishes the public interest in making public some very
limited and specific personal data, namely the names of the Commissioners who
travelled on public business and at the taxpayers’ expense. Quite rightly, the Code
does not require the publication of other personal data that might well cause
damage to the Commissioners, such as, to imagine an example, the numbers of
their personal bank accounts into which any reimbursements might be paid.
Access Info has never sought and does not now seek access to that type of personal
data.
Given that, at least since the adoption of the Code of Conduct, all the
Commissioners are informed in advance of the fact that data on mission expenses
associated with their names will be made public, they have, de facto at least, given
their consent for the association to be made.
2. The Commission failed to identify the documents that fall under the scope of
this request In your response you do not specifically identify which documents the
Commission has determined that it holds and that fall under the scope of this
3
request. This means that, in preparing this confirmatory application, we are
somewhat in the dark as to how to structure some of the arguments. For example,
we do not know if some of the information is held in databases from which it
could be extracted, or whether it comes in the form of a travel claim, invoices,
memos, emails or other material which would provide clarity as to on what the
funds were spent.
We therefore ask you to provide more details in your response to this confirmatory
and a list of the documents that you have identified that fall under the scope of
this request.
In the meantime, we note that the Commissions’ Guidance on inputting data into
the Mission Processing System (MiPS) that was provided previously to Access
Info1 contains the following screenshot on entering miscellaneous costs:
I also note that in response to a follow-up request you informed us that “mission
performers” are bound by the enter data in the MiPS system as set out in document
C(2017)5323 final,2 and that in the decision being challenged here you have
confirmed that the guide to missions rules are followed by the Commissioners.
We therefore ask specifically that, in response to this confirmatory and in
identifying the relevant documents, you confirm whether or not the MiPS contains
the data that we are seeking, namely the relevant “type” of miscellaneous expense
incurred.
1 See the response to this request on AsktheEU.org
https://www.asktheeu.org/en/request/database_containing_commissioner#outgoing-6015 2 See the response on AsktheEU.org here
https://www.asktheeu.org/en/request/mission_processing_system_mips#incoming-19736
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3. Regulation 1049/2001 applies and the requested document does not, at least
not in its entirety, contain personal data.
Irrespective of what is established in the Code of Conduct with respect to
proactive publication, that Code in no way establishes a specific regime for access
to documents, and with respect to this request, it is Regulation 1049/2001 that
must be considered. The Code can neither limit nor be the basis for deciding on
whether or not further information be released to the public.
Regulation 1049/2001 is the instrument that sets out the mechanisms for
implementing the right of access to documents as protected, as of 1 December
2009, in Article 15 of the Treaty of the Functioning of the European Union and in
Article 42 of the Charter of Fundamental Rights. These require that “Union
institutions, bodies, offices and agencies shall conduct their work as openly as
possible.”
Hence any documents requested under these rules are to be considered to be,
prima facie, accessible and in the public domain unless an exception applies.
It is indeed the case that Regulation 1049/2001 as currently framed defers to the
Union’s rules on personal data protection when personal data is at issue, with
Article 4.1.b) deferring to the data protection rules.
Nevertheless, we believe that the Commission erred in concluding that the
requested document(s) contain personal data to the extent that they are protected
in their entirety.
First, 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 the
any persons) redacted. We note that we 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.
Second, Access Info did 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.3
Supporting this argument is that document entitled “
ACCESS TO NAMES AND
FUNCTIONS OF COMMISSION STAFF GUIDANCE NOTE” with reference
3 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 and
Psara cases that the Commission cites in its refusal
decision.
5
Ares(2019)4352523, dated 8 July 2019, and provided to Access Info as a result of
access to documents request GESTDEM 2019/3250. This document was developed
with the aim “
to strike a fair balance between the right of access to documents and
the right to personal data protection” in order to determine whether the names of
public officials should be provided or redacted in responses to access to documents
requests. The document concludes 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.4
For these people (in contrast to other officials), it is not necessary to require that
requesters establish, either at the initial and at confirmatory stage, the need for and
public interest in transmitting the personal data (the names). In other words, there
is no need to apply the tests set out in Regulation 2018/1725.
The importance of the approach in this Guidance Note is that it seems, quite
rightly, to consider that the persons holding these high level positions is in any
event known and not relevant. Hence, while everyone knows that Jean-Claude
Juncker is President of the European Commission, that is not relevant here,
because what is relevant is how taxpayers’ funds were used in association with
the public activities of the Commission President.
4. The Commission has failed to consider the specific public interest put forward
in the request, namely the exercise of the right of access to documents
Without prejudice to the arguments set out in Point 3 above, Access Info here sets
out why it believes that the Commission failed to properly and fully apply
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.
You put forward the argument that the data we requested – the name and surname of
the President of the European Commission associated with data on how specific funds
were spent – is personal data in its nature under Article 3(1) of Regulation (EU)
2018/1725.5 You then recall the
Rechnungshof case, which established that “
there is
no reason of principle to justify excluding activities of a professional [...] nature from
the notion of private life.”6
4 This Guidance Note is in line with the type of guidance that can be found at the national level across
Europe. For instance, the UK Information Commissioner has established that the seniority of the people
involved lends itself to a higher level of accountability and responsibility. “Requests for personal data about
public authority employees”
https://ico.org.uk/media/for-
organisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf 5 This personal data, but at no point has the Commission asserted that it is “sensitive” data nor is it a “special
category” of data as per the preamble of Regulation (EU) 2018/1725.
6 Judgment of the Court of Justice of 20 May 2003, C-465/00, C-13 8/01 and C-139/01, Rechnungshof v
Österreichischer Rundfunk and others, EU:C:2003:294, paragraph 73.
6
And you support this line of thinking with reference to the
Psara judgment, in which
the General Court affirmed that no automatic priority can be conferred on the
objective of transparency over the right to protection of personal data, and that
“[t]he
fact that data concerning the persons in question are closely linked to public data on
those persons […] 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.”7
Following its conclusion that all the requested documents fall under the scope of
Article 4.1.b) of Regulation 1049/2001, the Commission then conducts an
analysis using Regulation 2018/1725.
With respect to Article 5 Regulation 2018/1725, which establishes the principles
relating to the lawfulness of processing, Access Info believes that it is clear that
both the collection of the data at issue and its potential transfer is lawful in the
sense that the data was collected to fulfil various tasks established by law. These
include the financial management, control, and auditing of the expenses, and also
the proactive publication of the expenses as required by the Code of Conduct with
the aim of ensuring transparency and accountability to the European public.8
Responding to access to documents requests 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.
Another 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.” 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 their consent in writing. Access Info is not informed as to
whether the Commissioners, in their contracts, in other documents, or in agreeing
to abide by the Code of Conduct, have to sign a document, but it is possible that
in doing so they might have signed declarations related to the processing of their
personal data. We note that this is increasingly common in employment contracts
across Europe following entry into force on 25 May 2018 of the General Data
Protection Regulation.
The Commission then considers Article 9 on Transmissions of personal data to
recipients established in the Union other than Union institutions and bodies.
7 Judgment of 25 September 2018, Maria Psara and Others v European Parliament, T-639/15 to T-666/15
and T-94/16, EU:T:2018:602, paragraphs 91 and 52.
8 It is noted that, while the Code of Conduct refers to publication of an “overview” of the mission expenses,
it does not specify what such an overview might contain. There is nothing to prevent the breakdown of
miscellaneous costs by type being part of such an overview.
7
In its examination of Article 9(1)(b) of Regulation 2018/1725, the Commission
concludes that Access Info did not convincingly assert, or indeed even omitted to
put forward, arguments to establish the necessity to have the data transmitted for
a specific purpose in the public interest.
It is here that Access Info argues a failure to apply Regulation 2018/1725
correctly. It is clear from Paragraph 28 of the Preamble to Regulation 2018/1725
that “
The specific purpose in the public interest could relate to the transparency
of Union institutions and bodies.”
Therefore, a request for access to information, which would result in greater
transparency of a Union institution – the Commission in this case – is in and of
itself a specific purpose in the public interest.
Access Info made requests that clearly stated that they were presented in exercise
of “the right of access to documents in the EU treaties.” As such we in no way
failed to put forward one of the most relevant arguments possible: the public’s
right of access to Union documents and the multiple benefits in the public interest
that flow from transparency. The Commission, rather, has failed in its decision to
consider this compelling and specific purpose for processing of personal data.
We believe 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 and
Psara which established that mere invocation of the principle of transparency is not
sufficient in and of itself to justify the disclosure of a document.
And even if, with the new legal framework, it might be possible to require
requesters seeking some types of documents that contain personal data to
demonstrate the specific purpose, we argue that this should not apply with respect
to requests relating to the spending of public funds. The treaties, the case law of
the Court of Justice of the European Union, and the decisions of the European
Ombudsman clearly point to the principle of maximum possible transparency in
the spending of public funds. This includes transparency about details of the use
of public funds, which is what the request at issue is about. Hence these provisions
establish a
prima facie necessity to process and transfer this data.
This has been confirmed by the European Ombudsman in specific reference to the
transparency of the Commissioners’ mission expenses, where she stated in her
decision on cases 562/2017/THH and 1069/2017/THH that : “
the Ombudsman
considers that there is a public interest in public access to information on
Commissioners’ travel expenses.”9
9 See Decision in cases 562/2017/THH and 1069/2017/THH on the Commission’s handling of a large
number of requests for access to documents concerning Commissioners’ travel expenses
https://www.ombudsman.europa.eu/en/decision/en/106536
8
Hence, when it comes to a request of the nature of the one at issue here, which
seeks access to information about the spending of public funds, exercise of the
right of access to documents should be considered as a specific purpose in the
public interest. There should then be a consideration of the prejudice to legitimate
interests. Wherever such prejudices cannot be identified, or where the public
interest in transparency outweighs them, then the documents should be disclosed.
5. There is a strong and specific public interest in Access Info receiving the
requested document(s).
In the event that would be held not to be sufficient to invoke the principle of
transparency and the fundamental right of access to European Union documents
in a case such as this, Access Info’s request establishes an even more specific
purpose, which we set out here.
Access Info’s pursuance of transparency of travel expenses 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 are exercising public
power and spending public funds in a responsible and appropriate manner.
Even more specifically, our request is designed to permit us and others, including
anti-corruption civil society organisations and investigative journalists, to act as
public watchdogs. This is something that Access Info has pursued and has an
acknowledged as having achieved over the course of the past five years of work
on EU-level travel expenses, in addition to our wider track record during well over
13 years promoting transparency as a tool for defending human rights, fighting
corruption, and promoting participation.10
Furthermore, when Access Info Europe makes requests such as this one via the
AsktheEU.org website, the data becomes available to all members of the
European (and indeed the global) public for them to exercise their rights to
participation, to engage in public debate, and to hold public bodies accountable.
Such transparency is particularly in the public interest at the present time, in a
political context of rising Euroscepticism and with it an ongoing debate about the
role and functions of Commissioners, as well as more broadly about the salaries
and expenses payments made by European taxpayers to public officials in
Brussels. Basic 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. Access Info Europe aims with
this request to contribute directly and specifically to that public debate, sharing,
as we have done in the past, such information in order to broaden and deepen
10 Access Info Europe was established on 2 October 2006 as a human rights organisation, registered as an
association with the Ministry of Interior in Spain, with the mission to promote transparency, in particular
to defend other human rights, to permit public participation, and to promote accountability, and to support
the fight against corruption.
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understanding of the use of public funds in Brussels, and hence to provide greater
legitimacy to the work of the European Commission.
As a civil society organisation, Access Info Europe plays a watchdog role akin to
that of journalists in line with the European Court of Human Rights jurisprudence
on access to information.11 We therefore have a legitimate interest in obtaining
information about the use of public funds – this request forms part of that line of
enquiry – and we warrant similar protections as the press.12
The denial of this request would adversely affect our ability to exercise our 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 our right to freedom of expression and
information in Article 11 of the Charter of Fundamental Rights of the EU, which
is analogous to Article 10 of the European Convention on Human Rights.
The European Court of Human Rights has established, through a series of
judgments, that the right of access to information is particularly strong for public
watchdogs such as journalists and civil society human rights organisations.
Denying us this information is impeding us in carrying out this important
watchdog function, something that the European Court of Human Rights has
established is an interference with freedom of expression and information.
“As the applicant was obviously involved in the legitimate gathering of
information of public interest with the intention of imparting that
information to the public and thereby contributing to the public debate,
there has been an interference with its right to freedom of expression”13
The Strasbourg Court has stated that public bodies cannot “
allow arbitrary
restrictions which may become a form of indirect censorship”.14 Given that the
data that we are requesting warrants no special protection, and that there is a public
interest to disclosure, in denying us access to this information, the Commission is
creating barriers to the exercise of freedom of expression and information. The
European Court of Human Rights has made clear that there is a positive obligation
to eliminate such obstacles:
“
The State’s obligations in matters of freedom of the press include the
elimination of barriers to the exercise of press functions where, in issues
11 See, inter alia, the case of Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14
April 2009
12 Youth Initiative for Human Rights v. Serbia, App. No. 48135/06, ECHR , 25 June 2013, para 20
13 Youth Initiative for Human Rights v. Serbia, App. No. 48135/06, ECHR , 25 June 2013, para 24
14 Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 27
10
of public interest, such barriers exist solely because of an information
monopoly held by the authorities”. 15
In conclusion, given that transparency is needed for us to carry out our watchdog
activities, to contribute to public debate, and be able to make informed decisions
on our elected representatives, there is a strong and specific purpose to
transparency of the spending by public officials of public funds.
6. The Commission failed to establish that any data subject’s legitimate
interests might be prejudiced
Once the public interest has been established, the Commission will be obliged to
apply the balancing test ensuring that the principle of proportionality is taken into
account, to determine whether release of the data would indeed prejudice
legitimate interest.
There is nothing in the refusal decision to demonstrate that the Commission did
indeed carry out such balancing. Nor is there any evidence in your decision that
you have examined in detail the nature or scale of the harm that would be caused
to the person whose private personal data you assert that you are protecting
(President Juncker in this case).
The Court of Justice has ruled that the assessment of harm to a protected interest
should be done so as to demonstrate how the protected interest would be actually
and specifically undermined by release of the documents.
The Court of Justice has also established that, given the need for accountability
and transparency of public authorities, there exists some expectation of disclosure
of personal data among public officials:
public figures have generally already accepted that some of their personal
data will be disclosed to the public, and may even have encouraged or
made such disclosure themselves. It is necessary therefore to take that
environment into account when assessing the risk of the legitimate
interests of public figures being prejudiced in the context of the application
of Article 8(b) of Regulation No 45/2001, and in weighing those interests
against the necessity of transferring the personal data requested.16
The Court has furthermore made a distinction between the “public sphere” of a
political or public person and his or her “private sphere”:
in weighing up the interests engaged, the legitimate interests of the MEPs
who are members of the additional pension scheme, which fall into the
public sphere of those MEPs, must be subject to a lesser degree of
15 Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 36
16 Case T-115/13 Dennekamp v European Parliament (Dennekamp II) EU:T:2015:497, para 119
11
protection than that which, following the logic of Regulation No 45/2001,
would be enjoyed by the interests falling into their private sphere.17
As previously noted, given the Code of Conduct and multiple other transparency
initiatives by the Commission (such as publicity of information about meetings
between senior officials and interest groups), the Commissioners will have a high
expectation that their personal data (meaning in this case only their names, no
more) will be made public associated with their public activities.
The Court has further made clear that even in the old regime or Regulation
45/2001, and without full balancing being given to the right of access to
documents, it is not permissible to operate on a presumption in favour of
protection of personal data:
While Regulation No 1049/2001 does indeed provide for an exception to
the right of access to documents where disclosure would risk undermining
the privacy or the integrity of the individual, thus making Regulation No
45/2001 applicable, that does not have the effect of creating a presumption
in favour of the legitimate interests of persons whose personal data are
protected by the latter regulation.
Furthermore, as argued in Point 3 above, the information being sought here is
even less about the individual, and more about the institution of the President of
the European Commission, which significantly minimises any potential that harm
could be caused to an individual by revealing information of this nature, and is,
we would argue, not sufficient to override the public interest in receiving this data.
7. The Commission failed to apply Article 9(3) of Regulation 2018/1725
Article 9(3) of Regulation 2018/1725 requires that “Union institutions and bodies
shall reconcile the right to the protection of personal data with the right of access
to documents in accordance with Union law.”
This is an important provision which goes somewhat to redressing the balance
between the right of access to information and the right to personal data
protection. It should be recalled that Regulation 1049/2001 on access to
documents was adopted in 2001, some years before the Lisbon treaty came into
force, and hence prior to the full recognition of a right of access to European
Union documents, as set out in Article 15 of the Treaty on the Functioning of the
European Union (TFEU) and Article 42 of the Charter of the Fundamental Rights
of the European Union (the Charter).
Article 15 of the TFEU establishes a legally binding obligation on the Union
bodies to conduct their work as “openly as possible” and be transparent in order
to promote “good governance and ensure the participation of civil society”. This
17 Case T-115/13 Dennekamp v European Parliament (Dennekamp II) EU:T:2015:497, para 124
12
Article also establishes that European citizens and residents “shall have a right of
access to documents of the Union's institutions, bodies, offices and agencies.”
Regulation 1049/2001, adopted as it was in 2001, defers to privacy and data
protection which, at the time, were seen as stronger rights. Since 2001 all the
international human rights bodies, including the European Court of Human Rights
(from 2009 onwards), the UN Human Rights Committee (in 2011), the Inter-
American Court of Human Rights (in 2006) as well as an increasing number of
constitutions around European and globally, recognise the right of access to
information as a fundamental right – not an absolute right, but a fundamental one.
The Commission should therefore have taken Article 9(3) of Regulation
2018/1725 into consideration, including when assessing the legitimacy of
processing and the public interest in its consideration of Article 5 and 9(1)(b), as
we set out above. We now respectfully urge the Commission to give due
consideration to Article 9(3).
In conclusion, Access Info Europe calls on the Commission thoroughly to review the
refusal to provide the requested documents, full and adequately taking the above
arguments and reasoning into account.
Please do not hesitate to contact me should you require any clarifications on this
confirmatory application.
Yours sincerely
Helen Darbishire
Access Info Europe