Ref. Ares(2020)4117196 - 05/08/2020
C(2019) 1457 final
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/5310
I refer to your e-mail of 19 November 2018, registered on the next day, in which you lodged
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’).
SCOPE OF YOUR APPLICATION
In your initial application dated 9 October 2018, addressed to the Directorate-General for
Taxation and Customs Union and registered under the reference number GESTDEM
2018/5310, you requested access to ‘documents containing the following information:
1) a list of meetings and correspondences that Commissioner Moscovici, members of his
Cabinet or representatives of DG TAXUD had between March 2013 and today with
business representatives insofar as these [m]eetings/correspondences related to the
rules of origin verification procedures (ARTICLE 3.21 on “Rules of origin and origin
procedures”) in the EU-Japan trade agreement3;
2) minutes and other reports of these [m]eetings’.
Official Journal L 345, 29.12.2001, p. 94.
Official Journal L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
In its initial reply dated 15 November 2018, the Directorate-General for Taxation and
Customs Union informed you that the European Commission did not hold any documents
that would correspond to the description given in your application.
In your confirmatory application, you question the absence of the requested documents and
you refer, in particular, to a presentation given by a representative of the Directorate-
General for Trade at the conference ‘27. Deutscher Zollrechtstag’ in June 2015, where
‘Japan was mentioned’. You also highlight that ‘this topic caused some discussions among
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 relevant Directorate-General at the initial stage.
Against this background, the European Commission has carried out a renewed, thorough
search for documents that would fall under the scope of your confirmatory application, as
With regard to the requested documents relating to meetings between Commissioner
Moscovici and/or Members of his Cabinet, I would like to inform that, as Mr Moscovici took
up his duties as Commissioner for Economic and Financial Affairs, Taxation and Customs on
1 November 2014, a renewed search for such documents could be carried out only from that
Following this renewed search, the European Commission has identified the following two
documents that correspond to the description given in your confirmatory application:
- minutes of a meeting held on 16 July 2018 between representatives of the
Directorate-General for Taxation and Customs Union and of the Directorate-General
for Trade and representatives of the chemical industry (hereafter ‘document 1’);
- a document entitled ‘Cefic’s proposal for an alternative wording on Origin
verification and origin statement in EU FTAs’ originating from the European
Chemical Industry Council (hereafter ‘document 2’). This document had been
handed over to the representatives of the European Commission in the context of this
meeting and was attached to the meeting minutes.
Both documents are registered under reference Ares(2018)3994193.
Taking account of the opinion of the consulted third party, I can inform you that:
- wide partial access is granted to document 1, subject only to the redaction of
personal data on the basis of the exception of Article 4(1)(b) (protection of privacy
and the integrity of the individual) of Regulation (EC) No 1049/2001;
- full access is granted to document 2.
With regard to document 1 containing meeting minutes, I would like to stress that these
minutes, which were originally drawn up for exclusively internal use under the
responsibility of the relevant service of the European Commission (i.e. the relevant unit in
the Directorate-General for Trade, a representative of which drafted these minutes), reflect
solely the author's interpretation of the interventions made at a specific moment in time and
do not set out any official position of the European Commission. Moreover, I would like to
specify that the staff member of the company BASF who participated in the meeting did so
in the capacity of a member of the European Chemical Industry Council and not as a
representative of the company concerned.
Please find copies of the above-mentioned documents enclosed with this decision.
With regard to the requested documents relating to meetings between Commissioner
Moscovici and/or Members of his Cabinet and business representatives as well as the list of
meetings, I confirm the initial reply of the Directorate-General for Taxation and Customs
Union, according to which no such documents exist.
There are actually no documents relating to meetings between Commissioner Moscovici
and/or Members of his Cabinet with business representatives on issues related to Article
3.21 of the EU-Japan Economic Partnership agreement. The requested list of meetings does
not exist either.
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as defined
in that regulation applies only to existing documents in the possession of the institution.
Given that the European Commission does not hold any documents other than documents 1
and 2 falling within the scope of your request, it is not in a position to handle your
confirmatory application in this regard.
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)
4, 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 data5
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
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, page 1.
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/EC6 (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.
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
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
Document 1 contains personal data such as the names, e-mail addresses and phone numbers
of persons who do not form part of the senior management of the European Commission as
well as of individuals who are representatives of third parties.
The names9 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
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’.
6 Official Journal L 205 of 21.11.2018, p. 39.
7 European Commission v The Bavarian Lager judgment,
above, paragraph 59.
8 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.
9 European Commission v The Bavarian Lager
judgment, cited above, paragraph 68.
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
), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.10 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.
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.
Please note that Article 4(1)(b) (protection of privacy and the integrity of the individual) of
Regulation (EC) No 1049/2001 is an absolute exception and does not need to be balanced
against any possible overriding public interest in disclosure.
Wide partial access is hereby granted to document 1, as set out above.
10 Judgment of the Court of Justice of 16 July 2015, ClientEarth v European Food Safety Agency,
P, EU:C:2015:489, paragraph 47.
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.
For the Commission