Ref. Ares(2020)4117196 - 05/08/2020
C(2019) 1704 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 2018/6387
I refer to your letter of 4 January 2019, registered on 7 January 2019, 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
documents2 (hereafter 'Regulation (EC) No 1049/2001').
SCOPE OF YOUR REQUEST
In your initial application of 3 December 2018, addressed to the Directorate-General for
Budget, you requested access to ‘a document sent by [the] European Commission […] to
[C]zech representatives in relation to a possible conflict of interests of [P]rime [M]inister
Babiš, which [Commissioner Oettinger] […] mentioned during [the] hearing of the
European Parliament’s Committee on Budgetary Control [on 3 December 2018]’.
In its initial reply of 21 December 2018, the Directorate-General for Budget identified
one document, registered under the reference number Ares(2018)6120850, as falling
within the scope of your request. It refused access to this document on the basis of the
exception of Article 4(2), third indent of Regulation (EC) No 1049/2001 (protection of
the purpose of inspections, investigations and audits).
Official Journal L 345 of 29.12.2001, p. 94.
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In your confirmatory application, you requested a review of this position and you put
forward a series of arguments in support of your request. I have taken your arguments
into account in my assessment, the results of which are set out below.
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 review of the reply
given by the relevant Directorate-General at the initial stage.
Following this review, I wish to inform you that I confirm the initial decision of the
Directorate-General for Budget to refuse access to the requested document on the basis of
the exceptions of Article 4(2), third indent (protection of the purpose of inspections,
investigations and audits), Article 4(3), first subparagraph, (protection of the decision-
making process) and Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation (EC) No 1049/2001, for the reasons set out below.
2.1. Protection of the purpose of inspections, investigations and audits
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.’
The document requested is a letter sent by Commissioner Oettinger to the Czech
authorities on 29 November 2018 and relates to an ongoing audit co-ordinated by
different departments of the European Commission. The main purpose of the audit is to
verify the appropriateness of the control mechanisms implemented by the Czech
Republic to avoid conflict of interests. The audit covers the management and control
systems in place before the entry into force of Regulation (EU, Euratom) 2018/1046 of
the European Parliament and of the Council of 18 July 2018 on the financial rules
applicable to the general budget of the Union, amending Regulations (EU) No
1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No
1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision
No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (hereafter
‘Regulation (EU, Euratom) 2018/1046’)3. It also covers operations approved after the
entry into force of Regulation (EU, Euratom) 2018/1046.
The document requested cannot be dissociated from the audit investigation, which is
currently ongoing. Indeed, a common announcement letter on the co-ordinated audit was
sent by the relevant European Commission services on 7 December 2018. The audit in
question started on 8 January 2019 and has not yet been finalised. In particular, the
relevant services of the European Commission are currently conducting on-the-spot
checks at national level, which may involve additional on-the-spot audit visits.
3 Official Journal L 193 of 30.7.2018, p. 1–222.
Hence, the document to which you seek to obtain access concerns audits proceedings that
are fully ongoing.
The General Court acknowledged that the exception of Article 4(2), third indent of
Regulation (EC) No 1049/2001 applies if the disclosure of the documents under the
request may endanger the completion of inspections, investigations or audits. It stated
that ‘[t]he interest protected by that exception is the interest in allowing audits to be
conducted independently and free of pressures, whether these come from the body being
audited, from other interested bodies or from the general public’.4
The public disclosure of the requested document, at least at this stage, would negatively
influence the outcome of the above-mentioned audits, which are still in progress. It
would expose the relevant European Commission departments to the foreseeable risk of
coming under outside pressure, which would be detrimental to the proper conduct of the
audit and undermine its effectiveness. It could also affect the European Commission’s
capacity to carry out appropriate follow-up measures, if deemed necessary.
Moreover, public access to the requested document would compromise the smooth
cooperation between the European Commission and the Czech authorities, which is an
essential precondition for the effective fulfilment of the duties of the relevant European
Commission services. Indeed, it would lead to a reduced willingness, by the authorities
of the Member State concerned, to participate constructively in ongoing and future
Against this background, there is a foreseeable and non-hypothetical risk that the public
release of the document requested would undermine the purpose of the ongoing audit,
which is, in this instance, to obtain reasonable assurance that the management and control
systems implemented by the Member State under investigation are functioning
effectively and, ultimately, to protect the Union’s financial interests.
I conclude, therefore, that access to the requested document must be denied on the basis
of the exception of Article 4(2), third indent of Regulation (EC) No 1049/2001, at least as
long as the audit procedure is ongoing.
2.2. Protection of the decision-making process
Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that:‘[a]ccess
to a document, drawn up by an institution for internal use or received by an institution,
which relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
The document to which you request access contains sensitive preliminary conclusions
regarding an alleged conflict of interests on which the European Commission has not yet
taken a final position. These preliminary considerations might be subject to further
4 Judgment of the General Court of 12 May 2015, Technion v European Commission
EU:T:2015:272, paragraph 63.
discussions between the relevant services of the European Commission, as the co-
ordinated audit is still ongoing.
Hence, public access to the requested document would place in the public domain
preliminary conclusions that have not yet been confirmed. This might create confusion in
the public opinion.
Against this background, there is a risk that the release of the requested document would
seriously undermine the ongoing decision-making process of the European Commission
with regard to the pending assessment of a possible conflict of interests, by prejudicing
its outcome. Given the particular circumstances in this case, I consider this risk as
reasonably foreseeable and not purely hypothetical. Please note that the General Court
has confirmed that the above-referred exception can be applied to documents sent to third
Consequently, I consider that the requested document is also covered by the exception
seeking to protect the decision-making process (Article 4(3), first subparagraph, of
Regulation (EC) No 1049/2001) and that access must therefore be refused on that basis.
2.3. 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)
6, 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 data7
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
replaced 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/EC8 (hereafter ‘Regulation (EU) 2018/1725’).
5 Judgment of the General Court of 26 April 2016, Strack v European Commission
EU:T:2016:242, paragraph 165.
6 Judgment of the Court of Justice of 29 June 2010, European Commission v The Bavarian Lager Co.
(hereafter referred to as ‘European Commission v The Bavarian Lager
judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
7 Official Journal L 8 of 12.1.2001, p. 1.
8 Official Journal L 205 of 21.11.2018, p. 39.
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 Protection] Regulation’.9
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
The document to which you requested access contains biometric data from
Commissioner Oettinger, in particular his signature and handwritten comments.
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
), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.11 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 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 subject’s legitimate interests might be prejudiced and, in the affirmative,
9 European Commission v The Bavarian Lager
above, paragraph 59.
10 Judgment of the Court of Justice of 20 May 2003, Rechnungshof and Others v Österreichischer
, Joint Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
11 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.
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 personal 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 is a risk that the disclosure of the
handwritten text reflected in the document would prejudice the legitimate interests of the
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the document
requested, 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
individual concerned would not be prejudiced by the disclosure of the personal data in
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Articles 4(2), third indent, and 4(3), first subparagraph 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 the disclosure.
In your confirmatory application, you argue that ‘there is a clear public interest in
disclosure of [the document requested] since the publication of all documents relating to
this case […] was demanded by the European Parliament in its resolution of 13
December 2018 on conflict of interest and the protection of [the European Union] budget
in the Czech Republic’.
Whilst I understand that there is a certain interest in the subject-matter at hand, I consider
that this interest would not override the public interest in ensuring that the ongoing audits
are properly conducted, free from external pressure, and that the decision-making process
of the European Commission takes place in conditions that cannot seriously undermine
In addition, in your confirmatory application, you refer to several General Court rulings,
including the Toland v Parliament12
, MasterCard and Others v Commission13
Europe v Commission14
judgments and you argue that ‘the administrative activity of the
12 Judgment of the General Court of 7 June 2011, Ciarán Toland v European Parliament
13 Judgment of the General Court of 9 September 2014, MasterCard v European Commission
14 Judgment of the General Court of 11 March 2009, Borax Europe Ltd v European Commission
institutions does not escape in any way from the scope of [Regulation (EC) No
In this regard, I would like to draw your attention to the judgement of the Court of Justice
in Case C-139/07 (TGI)
15, in which the Court confirmed that administrative activities are
to be clearly distinguished from legislative procedures, for which the Court has
acknowledged the existence of wider openness. The General Court confirmed this
jurisprudence in Case T-476/12 (Saint-Gobain)
16, stressing the need to preserve the
serenity of administrative proceedings and to protect administrative procedures from
In these circumstances, I consider that the public interest is better served by protecting
the purpose of the ongoing audits, in accordance with Article 4(2), third indent and
Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001.
Please also note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include
the possibility for the exception defined therein to be set aside by the existence of an
overriding public interest.
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered
whether partial access could be granted to the document identified under your request.
However, I consider that no meaningful partial access is possible without undermining
the interests described above. Therefore, I conclude that the document under the request
is covered in its entirety by the invoked exceptions to the right of public access.
15 Judgment of the Court of Justice of 29 June 2010, European Commission v Technische Glaswerke
, C-139/07 P, EU:C:2010:376, paragraph 60.
16 Judgment of 11 December 2014, Saint-Gobain Glass Deutschland GmbH v European Commission
476/12, EU:T:2014:1059, paragraph 82.
17 Ibid, paragraph 81.
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