EUROPEAN COMMISSION
Brussels, 15.6.2020
C(2020) 4109 final
Ms Vicky Cann
Corporate European Observatory
Rue d’Edimbourg 26
Brussels 1050 Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2020/490
Dear Ms Cann,
I refer to your email of 7 April 2020, registered on the same day, by 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
documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
On 27 January 2020 you submitted an initial application for access to, I quote, ‘[…] a list
of all lobby meetings held with [the Directorate-General for Communications Networks,
Content and Technology of the European Commission] since 1 January 2019, where the
proposed ePrivacy regulation was discussed’. You clarified that, I quote, ‘[t]he list should
include the names of the individuals and organisations attending; the date; and any
agendas / minutes / notes produced’. You also explained that your application covers, I
quote, ‘[…] any position papers, emails, or other correspondence which relates to the
proposed ePrivacy regulation’.
1
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
http://ec.europa.eu/dgs/secretariat_general/
E-mail
: xxxxxxxxxx@xx.xxxxxx.xx
On 20 February 2020, the Directorate-General for Communications Networks, Content
and Technology informed you that your application covers potentially a large number of
documents and proposed, based on Article 6(3) Regulation (EC) No 1049/2001, to limit its
scope, so that it would be possible to handle it within the statutory time limits.
On 24 February 2020, you informed the Directorate-General for Communications
Networks, Content and Technology that you would like to limit the scope of your
application to, I quote, ‘[…] papers to/from lobbyists, rather than [the Members of the
European Parliament], inter-institutional correspondence, etc…’.
The European Commission identified the following documents as falling under the
(restricted) scope of your application:
- Joint position paper, dated 2 April 2019, received from the Association of
Commercial Television in Europe (ACT) and the Association of television and
radio sales houses (EGTA), reference: Ares(2020)1304233 (hereafter ‘document
1’),
- Position paper received, dated 13 March 2019, from Digital Europe, reference:
Ares(2020)1304288 (hereafter ‘document 2’),
- Annex I to Document 2, reference: Ares(2020)1304324 (hereafter ‘document 3’),
- Annex II to Document 2, reference: Ares(2020)1304349 (hereafter ‘document 4’),
- Position paper received, dated 22 March 2019, from European Broadcaster
Exchange, reference: Ares(2020)1304423 (hereafter ‘document 5’),
- Executive Summary for the position paper received from the European Smart
Energy Solutions Providers (ESMIG), reference: Ares(2020)1304454 (hereafter
‘document 6’),
- Position paper received from the European Smart Energy Solutions Providers
ESMIG – Suggested amendments, reference: Ares(2020)1304609 (hereafter
‘document 7’),
- Position paper from GSMA, the European Telecommunications Network
Operators’
Association
(ETNO)
and
Cable
Europe,
reference:
Ares(2020)1304666 (hereafter ‘document 8’),
- Position paper, dated 6 March 2019, received from Information Technology
Industry (ITI), reference: Ares(2020)1304713 (hereafter ‘document 9’),
- Position paper received from News Media Europe in September 2019, reference:
Ares(2020)1304738 (hereafter ‘document 10’),
- Position paper received from Search and Information Industry Association
(SIINDA) in July 2019, reference: Ares(2020)1304773 (hereafter ‘document 11’),
- Position paper received from SIINDA – update from July 2019, reference:
Ares(2020)1304801 (hereafter ‘document 12’),
- Industry wide position paper received on 12 December 2019, reference:
Ares(2019)7780538 (hereafter ‘document 13’).
On 11 March 2020, the Directorate-General for Communications Networks, Content and
Technology:
2
-
granted full access to documents 3, 4, 6-9, 12 and 133,
- granted (wide) partial access to documents 1, 2 and 11, with personal data
redacted based on the exception in Article 4(1)(b) of Regulation (EC) No
1049/2001 (protection of privacy and the integrity of the individual),
- refused access to the remaining documents (documents 5 and 10), based on the
exception in Article 4(2), first indent, of Regulation (EC) No 1049/2001
(protection of commercial interests of a natural or legal person).
Through 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 or service concerned at the initial stage.
Following this review I inform you that (wide) partial access is confirmed to documents
1, 2 and 11. The undisclosed information included therein requires protection under the
above-mentioned exception in Article 4(1)(b) of Regulation (EC) No 1049/2001.
Documents 5 and 10 originate from the third parties. In the context of the above-
mentioned review, the European Commission consulted them in line with the provisions
of Article 4(4) of Regulation (EC) No 1049/2001.
Partial access is granted to document 5, with the relevant information redacted based on
the exception in Article 4(2), first indent, of Regulation (EC) No 1049/2001.
(Wide) partial access is granted to document 10 with the personal data redacted. The
underlying exception is provided for in exception in Article 4(1)(b) of Regulation (EC)
No 1049/2001.
The detailed reasons are set out below.
2.1 Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘the 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’.
3 In the initial reply, the Directorate-General for Communications Networks, Content and Technology
provided hyperlinks to documents 8, 9 and 13, which are publically available.
3
In its judgment in Case C-28/08 P
(Bavarian Lager)4, the Court of Justice ruled that
when an application 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 data5
(‘Regulation (EC) No 45/2001’) becomes fully applicable.
As from 11 December 2018, Regulation (EC) No 45/2001 has been repealed by
Regulation (EU) No 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/EC6 (‘Regulation (EU) No 2018/1725’).
However, the case-law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 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’.7
Article 3(1) of Regulation (EU) No 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’.8
The relevant parts of documents 1, 2, 10 and 11, contain the names, functions, contact
details (telephone numbers and email addresses) and handwritten signatures of staff
members of the European Commission who do not hold any senior management position.
They also include the names of third parties (News Media).
The names9 of the persons concerned as well as other data from which their identity can
be deduced constitute personal data in the meaning of Article 2(a) of Regulation (EU) No
2018/1725.
4 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.
5 Official Journal L 8 of 12.1.2001, p. 1.
6 Official Journal L 205 of 21.11.2018, p. 39.
7
European Commission v
The Bavarian Lager judgment quoted above, paragraph 59.
8 Judgment of the Court of Justice of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
9
European Commission v
The Bavarian Lager judgment quoted above, paragraph 68.
4
Pursuant to Article 9(1)(b) of Regulation (EU) No 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) No 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 of its own motion the existence of a need for transferring personal
data.10 This is also clear from Article 9(1)(b) of Regulation (EU) No 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) No 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 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 weighted the various competing interests.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the above-mentioned personal data.
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in the documents concerned has not been established.
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, 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
10 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.
5
reason to think that the legitimate interests of the individuals concerned would not be
prejudiced by disclosure of the personal data concerned.
2.2 Protection of commercial interests of a natural or legal person
Article 4(2), first 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 commercial interests of a natural or legal person, including intellectual
property, […] unless there is an overriding public interest in disclosure’.
The limited, undisclosed part of document 5 contains financial information pertaining to
explicitly named economic operators. Public disclosure of this information, would
undermine the interests of the economic operators concerned, as it would provide insight
into the data relating to their business operation and internal strategies.
Consequently, there is a real and non-hypothetical risk that public access to the above-
mentioned information would undermine the commercial interests of the economic
operators concerned.
I conclude, therefore, that access to the undisclosed part of document 5 must be denied
based on the exception laid down in the first indent of Article 4(2) of Regulation (EC) No
1049/2001.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation (EC) No 1049/2001 does not
need to be balanced against overriding public interest in disclosure.
The exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001 must be
waived if there is an overriding public interest in disclosure. Such an interest must,
firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application you argue that, I quote, ‘[t]here should be no place for
lobbying of the [European] Commission that is kept entirely secret, especially when it is
by those with commercial interests in a proposed EU regulation. […]. There is a good
public interest rationale for the [European] Commission to be fully open with the public
about the lobbying that it receives, especially on such a hotly-contested topic as
ePrivacy’.
Please note, however, that the Court of Justice, in the
Strack case, ruled that in order to
establish the existence of an overriding public interest in transparency, it is not sufficient
to merely rely on that principle and its importance11.
Instead, an applicant has to show why in the specific situation the principle of
transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying non-disclosure12.
11 Judgment of the Court of Justice of 2 October 2014,
Strack v
Commission, C-127/13 P,
EU:C:2104:2250, paragraph 128 (hereafter
Strack v
Commission).
6
With regard to the information included in the undisclosed part of document 5, such a
pressing need has not been substantiated. While I appreciate that there is public interest
in the subject matter in question, I consider that the need for full transparency does not
outweigh in this case the need to protect the withheld information, pursuant to the
exception relating the protection of commercial interests. This is supported by the full or
(wide) partial access to the remaining documents falling under the scope of your
application.
4.
PARTIAL ACCESS
(Wide) partial access is granted to documents 5 and 10, withheld in full at the initial
stage.
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
12
Strack v
Commission, cited above, paragraph 129.
7
Document Outline