EUROPEAN COMMISSION
Brussels, 29.5.2020
C(2020) 3649 final
Mr Samuel Stolton
Euractiv Brussels
International Press Centre,
Boulevard Charlemagne 1,
1049 Brussels, Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/2001 1
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/6277
Dear Mr Stolton,
I refer to your letter of 7 January 2020, registered on the same day, in which you
submitted a confirmatory application in accordance with Article 7(2) of Regulation (EC)
No 1049/2001 regarding public access to European Parliament, Council and Commission
documents 2 (hereafter ‘Regulation (EC) No 1049/2001’).
Please accept our apologies for this late reply.
1.
SCOPE OF YOUR REQUEST
In your initial application of 4 November 2019, addressed to the Directorate-General for
Communications Networks, Content and Technology (hereafter: DG CNECT), you
requested access to, I quote:
- ‘A list of all meetings held between DG CNECT and US Deputy Assistant
Secretary of State for Cyber and International Communications and Information
Policy, Robert Strayer, over the past year. The list should include the dates of the
meetings, the individuals present, as well as the issues discussed.
- Detailed minutes of the above meetings.
1 OJ L 345, 29.12.2001, p. 94.
2 OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- All correspondence (i.e. any emails, correspondence, telephone call notes, and/or
text messages including WhatsApp exchanges) between DG CNECT (including
the Commissioner and the Cabinet) and Mr. Strayer or a representative of his,
over the past year’.
The following documents have been identified as falling under the scope of your request
at initial stage:
- Email correspondence (ranging from 01/02/2019-26/02/2019) with US authorities
concerning a meeting held on 25 February 2019 between the Director-General of
DG CNECT and the US authorities, reference Ares(2020)106777 of 8 January
2020, hereafter ‘document 1’;
- Back to office report prepared for the same meeting, reference Ares(2020)106777
of 8 January 2020, hereafter ‘document 2’;
- Back to office report prepared for a meeting held on 27 September 2019 between
the Director-General of DG CNECT and Mr. Robert Strayer, reference
Ares(2020)106777 of 8 January 2020, hereafter ‘document 3’.
In its initial reply of 16 December 2019, the Directorate-General for Communications
Networks, Content and Technology refused access to these documents based on the
exception of Article 4(1)(a), third indent (protection of the public interest as regards
international relations) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position.
2.
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.
As a preliminary remark, I would like to underline that document 1 contains internal
exchanges between Commission officials and US representatives as regards the
organisation of a meeting. Please note that these exchanges are of a short-lived nature
within the meaning of Article 4 of the Commission Decision of 23 January 20023. Article
4, paragraph 2 of this decision provides as follows: ‘[…] a document drawn up or
received by a Commission department must be registered if it contains important
information which is not short-lived and/or may involve action or follow-up by the
Commission or one of its departments. […]’.
3 Commission Decision 2002/47/EC, ECSC, Euratom of 23 January 2002 amending its Rules of
Procedure, L 21, 23.1.2002, p.23.
2
Emails exchanges regarding logistical arrangements for the organisation of a meeting
normally do not contain important information that may involve a follow-up by the
institution. I note that even if this document was registered at the time by the competent
Commission department, this does not erase its short-lived nature.
Furthermore, I note that this document does not reveal any matter of particular
importance for the topic you are interested in; instead, it simply reveals the way in which
this particular meeting was organised within the institution by the agents involved, in an
informal setting (via emails).
I confirm that these exchanges do not reveal any important information in relation to the
content of the meeting they were intended to prepare, namely information on the issues to
be discussed, lines to take or any other information of substantive nature you might be
interested in. Therefore, I note that the disclosure of this document would not contribute
meaningfully to the public debate and would not guarantee the principle of openness
within the meaning of Recital 2 of Regulation (EC) No 1049/2001, according to which
the latter is a tool to enable citizens to participate more closely in the decision-making
process and to guarantee that the administration enjoys greater legitimacy and is more
effective and more accountable to the citizens in a democratic system. Consequently, I
consider that this document, by not serving this function, does not fall within the scope of
the request pursuant to Regulation (EC) No 1049/2001.
Consequently, the following review will focus on the assessment performed at initial
stage by the Directorate-General for Communications Networks, Content and
Technology as regards documents 2 and 3.
Following this review, performed at confirmatory stage, I regret to inform you that I have
to refuse access to documents 2 and 3, based on the exceptions of Article 4(1)(a) third
indent (protection of the public interest as regards international relations) and Article
4(1)(b) (protection of personal data) of Regulation (EC) No 1049/2001, for the reasons
set out below.
2.1. Protection of the public interest as regards international relations
Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 provides that ʻ[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]ʼ.
The Court of Justice stressed in the
In ‘t Veld ruling that the institutions ‘must be
recognised as enjoying a wide discretion for the purpose of determining whether the
disclosure of documents relating to the fields covered by [the exceptions provided for in
Article 4(1)(a) of Regulation 1049/2001] could undermine the public interest’4.
4 Judgment of the Court of Justice of 3 July 2014,
Council v
In ‘t Veld, C-350/12, EU:C:2014:2039,
paragraph 63.
3
Consequently, ‘the Court’s review of the legality of the institutions’ decisions refusing
access to documents on the basis of the mandatory exception […] relating to the public
interest must be limited to verifying whether the procedural rules and the duty to state
reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’.5
Furthermore, it has been recognised that Article 4(1)(a) third indent can be invoked if it
is clear that disclosure would harm the EU's international relations with third countries6
or if it would complicate or undermine the EU's negotiating position in international
negotiations7.
Documents 2 and 3 contain internal comments and information shared in confidentiality
by representatives of the Government of the United States, which were not meant for
public disclosure. Document 2 contains remarks made by Mr Roberto Viola and by
representatives of the United States to the EU staff concerning the topic of 5G
deployment and the security of 5G networks. It contains explanations by the Federal
Communications Commission on 5G deployment in the US and presents some of the
concerns of the United States concerning the topic of the security of 5G networks.
Document 3 also contains information on cybersecurity and reflects positions about
coordinated action of the EU and the United States vis-à-vis third countries.
Please note that it is not possible to give more details about the documents justifying the
need for confidentiality, without disclosing their content and, thereby, depriving the
exception of its very purpose.
Currently, all of the world’s leading economies, i.e. including the USA and the EU, are
advancing in 5G deployment. This involves significant investments from market players
but also significant efforts from governments, in order to ensure the security of 5G
networks and to avoid cyber-attacks.
The EU plays a particularly important role in ensuring high standards of security of 5G
networks across the EU and coordinated approaches among Member States.
In this context, it is of crucial importance that the EU maintains good relations with third
countries and its partners implicated in the secure deployment of 5G infrastructures.
Establishing and protecting a sphere of mutual trust in the context of international
relations relating to the deployment of 5G is a very delicate exercise.
5 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v
Council, T-
264/04, EU:T:2007:114, paragraph 40.
6
Judgment of the Court of First Instance of 7 February 2002,
Kuijer v
Council, T-211/00,
EU:T:2002:30 paragraphs 62-65.
7 Judgment of the Court of first Instance of 25 April 2007,
WWF European Policy Programme v
Council, case T-264/04, EU:T:2007:114, paragraph 41.
4
I note that revealing the details of documents 2 and 3, would jeopardise the possibility of
frank and sincere exchanges between the European Commission and the United States, in
the framework of ongoing discussions8 on the topic, by making the United States
representatives naturally more guarded about sharing information and positions with EU
staff in the future.
Furthermore, these documents contain information, which is not public and which the
European Commission received from the third country on a confidential basis. Disclosure
of this information, against express statements of the providing party, would undermine
the relation of trust with the parties thus negatively affecting the international relations of
the EU.
Therefore, I came to the conclusion that public access to documents 2 and 3 would pose a
risk to the public interest as regards the protection of the international relations. Given
the importance of the subject matter, the potential involvement of third countries and
media attention to the file, I consider this risk as reasonably foreseeable and not purely
hypothetical.
2.2. 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) 9, 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 data 10
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
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/EC 11 (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.
8 Notably following the meeting between the President of the European Commission and the President
of the United States in Davos of 21 January 2020.
9 Judgment of the Court of Justice of 29 June 2010,
European Commission v
The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v
The Bavarian Lager judgment’) C-28/08 P,
EU:C:2010:378, paragraph 59.
10 OJ L 8, 12.1.2001, p. 1.
11 OJ L 295, 21.11.2018, p. 39.
5
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’ 12.
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
private life’ 13.
Documents 2 and 3 contain personal data such as the names and initials of persons who
do not form part of the senior management of the European Commission. Moreover, they
contain the personal data of third parties, who are not considered as public figures, acting
in their public capacity.
The names 14 of the persons concerned as well as other data from which their identity can
be deduced 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 ‘[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 (EU) 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data 15. 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.
12
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
13 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v
Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
14.
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
15 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.
6
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 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 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 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 the disclosure of the personal data concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note also that Article 4(1)(a) and 4(1)(b) of Regulation (EC) No 1049/2001 do not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
However, no meaningful partial access is possible, as the whole content of documents 2
and 3 is covered by the exceptions protecting international relations and personal data,
provided for, respectively, in Article 4(1)(a), third indent and Article 4(1)(b) of
Regulation (EC) No 1049/2001, for the reasons set out in the corresponding sections
above.
Consequently, partial access is not possible considering that the documents requested are
covered in their entirety by the invoked exceptions to the right of public access.
7
5.
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.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
8
Document Outline