Ref. Ares(2019)5438258 - 28/08/2019
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MARITIME AFFAIRS AND FISHERIES
The Director-General
Brussels,
MARE/C2/KVE/Ares (2019)
Mr Thomas Spekschoor
155, Rue de la Loi
1040 Brussels
Belgium
By registered letter with
acknowledgment of receipt
Subject:
Your application for access to documents – Ref GestDem No 2019/4062
Dear Sir,
We refer to your e-mail dated 12 July 2019 in which you make a request for access to
documents, registered on 15 July 2019 under reference number Ares(2019)4548564. You
request access to the communication between the Netherlands and the European
Commission on the European Fisheries Fund (EFF) and the European Maritime and
Fisheries Fund (EMFF) between 2014 and the date of your request.
Following the letter from DG MARE’s legal unit dated 19 July 2019, looking for your
agreement on a fair solution in order to reduce the scope of the request, you replied on 25
July 2019 by asking for “
all documents on 'deficiencies detected in the EFF and EMFF
management and control system in the Netherlands' between 2010 and now. “
With the-mail of 2 August 2019 (Ares (2019) 5058074), DG MARE’s legal unit
informed you of the remaining practical problems to fulfil this amended request and
therefore proposed to narrow down the scope of your request.
You have not replied to this proposal. We have therefore, as announced in our e-mail of 2
August, taking into account the specific interest you have indicated and considering that
your original request concerned the period from 2014 onwards, decided to narrow down
the scope of your request and to answer to you only on the communication concerning
the EMFF.
Since some of the documents concerned originate from a third party, the originator of the
documents has been consulted.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: J-99 05/014 - Tel. direct line +32 229 96310
The Netherlands, author of one of the documents sent to the Commission (on the issue of
interruption of payments), has objected to disclosure of this document and has motivated as
follows:
Article 4(2), third indent, of Regulation (EC) No 1049/2001 provides that
"[t]he
Institutions shall refuse access to a document where disclosure would undermine the
protection of […] the purpose of inspections, investigations and audits […] unless there
is an overriding public interest in disclosure".
Release of this document would clearly undermine the protection of the ongoing
procedure covering the partial interruption of the payment deadline for the EMFF, as
such a release would pose a real and reasonable foreseeable risk to the serenity and
neutrality of this procedure and might subject them to undue possible external pressure.
Having examined the other documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents and taking into account the opinion of the
third party, I regret to inform you that access cannot be granted, as disclosure is prevented by
an exception to the right of access laid down in Article 4 of this Regulation.
Following the Dutch letter mentioned above, the European Commission has sent a follow-up
letter to the Dutch Authorities. Since the Commission letter refers mainly to the content of
the Dutch letter, which should not be disclosed, and the investigation on the subject-matter is
still on-going, the Commission considers that disclosure of its follow-up letter would
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.
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, 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
Commission document, no meaningful partial access is possible without undermining the
interests described above. Thus, I have concluded that the Commission document is covered
in its entirety by the invoked exception to the right of public access.
Therefore your application concerns the following documents:
-
Ares(2016) 7165715, Ares(2017) 615973, Ares(2017) 1995339,
Ares(2017) 3785603, Ares(2017) 5968281, Ares(2019) 714886,
Ares(2018) 5935666, Ares(2018) 6421835, Ares(2018) 773868,
Ares(2019) 268131, Ares(2019) 919993.
You will find enclosed a redacted copy of the documents requested. You may reuse the
documents produced by the Commission 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 reuse. Documents received by the Commission from
third parties are disclosed for information only. They do not reflect the position of the
Commission and cannot be quoted as such.
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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 data1.
Indeed, Article 3(1) of Regulation (EU) 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.2
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 data3.
In its judgment in Case C-28/08 P (
Bavarian Lager)4, 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.5
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
2018/1725, can the transmission of personal data occur.
According to Article 9(1)(b) of Regulation (EU) 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
1 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/EC (OJ L 205 of 21.11.2018, p. 39).
2 Judgment of the Court of Justice of the European Union of 20 December 2017 in Cas
e C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994.
3 Judgment of the General Court of 19 September 2018 in
case T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
4 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.
5 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
Regulation 2018/1725.
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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.
In case you would disagree with the assessment that the redacted data are personal data
which can only be disclosed if such disclosure is legitimate under the applicable rules on
the protection of personal data, or if you would disagree with the above mentioned
reduction of the scope, you are entitled, in accordance with Article 7(2) of Regulation
(EC) No 1049/2001, to submit 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 Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1) BERL 7/076
B-1049 Bruxelles
or by emai
l to: xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
(e-signed)
João AGUIAR MACHADO
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Electronically signed on 28/08/2019 09:52 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563