Ref. Ares(2019)4553102 - 15/07/2019
EUROPEAN COMMISSION
Secretariat-General
Unit C1 – Transparency, Access to Documents and Document Registration
Brussels,
ACCESS TO NAMES AND FUNCTIONS OF COMMISSION STAFF
GUIDANCE NOTE
1. BACKGROUND
Commission services receive a large number of requests each year, under Regulation 1049/2001,
for access to documents (e.g. e-mails1, copies of correspondence, meeting minutes) which include
the names and functions of Commission staff.
This note sets out the approach to follow in such cases.
It aims to strike a fair balance between the right of access to documents2 and the right to personal
data protection3. It also takes into account the fact that, in most cases, requestors are interested in
the substance of the documents rather than in the personal data appearing therein.
This approach consists of granting, in principle, access to the names and functions of
Commissioners and their Cabinet members and staff in senior management positions4. This access
is exceptionally extended to the names and functions of staff not occupying any senior
management position, if:
the applicant has substantiated the need for such transmission for a specific purpose in the
public interest5;
there are no reasons to assume that the legitimate rights of the individuals concerned
might be prejudiced; and
the institution considers the transmission proportionate for the specific purpose brought
1 These are only considered documents to the extent that they are registered or should have been registered in Ares
in accordance with the document management rules.
2 As defined in Article 15(3) of the Treaty on the Functioning of the European Union (TFEU) and Regulation 1049/2001
of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.
3 As defined in Article 16(1) of the TFEU and Regulation (EU) 2018/1725 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. The
Court of Justice has confirmed that
there is no reason of principle to justify excluding activities of a professional
[...] nature from the notion of “private life: judgment of the Court of 20 May 2003 in joined cases C-465/00,
C-138/01 and C-139/01, preliminary rulings in proceedings between
Rechnungshof and Österreichischer
Rundfunk, paragraph 73.
4 Secretary-General, Directors-General, Directors.
5 As specified in recital 28 of Regulation 2018/1725, [t]
he specific purpose in the public interest could relate
to the transparency of Union institutions and bodies.
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forward by the applicant, after having demonstrably weighed the various competing
interests6
2. B
ASIC PRINCIPLE:
REFUSAL FOR STAFF NOT OCCUPYING ANY SENIOR MANAGEMENT
POSITION
Both at the initial and at confirmatory stage, no access should, in principle, be granted to the
names and functions7 of staff which do not form part of senior management, unless a
need thereto
is established, there are no reasons to assume that the
legitimate interests of the individuals
concerned might be prejudiced, and the transfer is proportionate for the purpose put forward by the
applicant, after having demonstrably weighed the various competing interests.
2.1. How to assess the need for the data transfer
The need to obtain the personal data must be clearly demonstrated by the applicant. It should be
distinguished from a mere interest in obtaining these data8.
For instance, some applicants request access to the names of members of a tender or project
evaluation committee to verify whether there have been any conflicts of interests. However, save
specific circumstances, this will rarely constitute a ‘need’ to obtain the personal data concerned,
given that the Financial Regulation and its Rules of Application already establish the necessary
procedural guarantees to avoid such conflicts of interests.
The necessity of the data transfer must be demonstrated by express and legitimate justifications or
convincing arguments9, and there must be no less invasive measures available, taking into account
the principle of proportionality10.
2.2. How to assess the absence of any risks to the data subjects’ rights
As regards the possible risks to the legitimate rights of the data subjects concerned, and hence to
the privacy and integrity of these individuals in the meaning of Article 4(1)(b) of Regulation
1049/2001, these can in a limited number of cases be established without a need to consult the
staff members concerned, in particular:
-
for members of tender or project evaluation committees, for whom there is a real and
non-hypothetical risk of being the subject of unsolicited contacts by unsuccessful, current
or future tenderers or project promoters;
-
for staff members tasked with investigative functions (e.g. investigative staff working on
antidumping or competition files, auditors, OLAF investigators, etc.).
-
for staff members forming part of an administrative entity which has been the subject of
targeted physical or verbal attacks or defamatory actions by outside parties.
6.
As required by Article 9(1)(b) of Regulation 2018/1725.
7 To the extent that they enable the individual staff members to be identified. If this is not the case, these
functions are not to be considered “personal data”, and access can in principle be granted if no other
exceptions of Article 4 of Regulation 1049/2001 are applicable.
8 Judgment of the Court of Justice of 25 September 2018 on Joined Cases T-639/15 to T-666/15 and T-94/16,
Psara et al. v European, Parliament, paragraphs 73-76; Judgment of the General Court of 19 September 2018
in Case T-39/17, Port de Brest v Commission, paragraphs 37-43.
9 Judgment of the Court of Justice of 29 June 2010, Case C-28/08P,
European Commission v The Bavarian
Lager Co. Ltd, European Court reports 2010, paragraphs 77-78.
10 Judgment of the General Court of 23 November 2011 in case T-82/09, Gert-Jan Dennekamp v European
Parliament, paragraphs 30-34.
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In those cases, access should normally be denied.
In all other cases, the risks to the privacy and the integrity of the individuals can normally be better
identified with the requisite degree of certainty with the data subjects themselves. Therefore,
if it
appears that there is a need to disclose the names and functions of staff not forming part of senior
management, those staff members should normally be consulted before disclosure takes place,
unless this is practically impossible.
If consultations are not possible for lack of time or other practical constraints11, the institution has
to assess the possible prejudice and weigh the various competing interests based on the
information available. In case of doubt, it is advisable to err on the side of caution, so as to avoid
potentially adverse consequences for the data subject concerned of which it has not been possible
to assess the likelihood and magnitude set off against the purpose of the transfer.
2.3. Practical implications
The applicant should be invited, if he/she wishes to receive the names and/or functions of
Commission staff members who do not occupy any senior management position, to demonstrate
the need for having these personal data transferred.
Unless it is clearly evident, based on the assessment described above, that the conditions of Article
9(1)(b) of Regulation 2018/1725 are fulfilled, services are invited to redact the names and
functions12 appearing in the documents to which (full or partial) access is granted, with reference
to Article 4(1)(b) of Regulation 1049/2001 read in conjunction with the above-mentioned
provision of Regulation 2018/1725.
The detailed reasoning should indicate that, based on the information available, the necessity of
disclosing the personal data has not been established, there are reasons to assume that such
disclosure would prejudice the legitimate rights of the persons concerned, and/or the weighing of
the various interests involved led to the conclusion that the transmission of the personal data
would not be proportionate.
As the possible release of staff names and functions of Commission staff members not occupying
any senior management position is conditional upon the prior indication, by the applicant, of a
need thereto, the number of cases where a specific risk assessment has to be made, and hence the
resulting administrative burden and the risk of errors, is expected to remain limited.
11 For instance, if the individuals concerned no longer work for the Commission.
12 To the extent that these enable the individuals concerned to be identified.
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