DOC
28
Ref. Ares(2020)4117196 - 05/08/2020
EUROPEAN COMMISSION
Brussels, 6.3.2019
C(2019) 1930 final
Friends of the Earth Europe
Mundo B Building
Rue d’Edimbourg 26
1050 Brussels
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 2018/3460
Dear
,
I refer to your email of 4 December 2018, registered on the same date, 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').
1.
SCOPE OF YOUR REQUEST
On 15 May 2018 you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001, in which you requested access to ‘all correspondence,
including emails, agendas, records of meetings, minutes of meetings, participants lists
and
any
other
reports
of
such
meetings
involving
officials/representatives/Commissioner/[C]abinet member[s] of [the] D[irectorate]
G[eneral] [for Trade] and officials/representatives/Commissioner/[C]abinet member of
the E[uropean] E[xternal] A[ction] S[ervice] about the international legally binding
instrument on transnational corporations and other business enterprises with respect to
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
human rights being currently negotiated in the Human Rights [C]ouncil of the United
Nations’.
Following the initial assessment, it was established that the subject matter of your initial
application fell within in the remit of the Directorate-General for Trade of the European
Commission and the European External Action Service. Consequently, your initial
application was attributed to the above-mentioned Directorate-General and the European
External Action Service, which provided their replies on, respectively, 22 November
2018 and 10 July 2018.
With regard to the reply of the Directorate-General for Trade, the European Commission
identified 29 documents as falling under the scope of your application3. The European
Commission identified two additional documents as falling under the scope of your
application at the confirmatory stage4.
Please note that document 21 identified at the initial stage by the Directorate-General for
Trade is an early version (draft) of document 21.1. It bears the reference number WK
10606/17 INIT, due to an administrative error. Indeed, the authentic version of document
WK 10606/17 INIT is included in document 21.2.
In its reply, the Directorate-General for Trade granted full access to documents 1 to 7 and
12 and wide partial access to document 8, 9 and 11, with personal data reacted, based on
the exception protecting privacy and the integrity of the individual, provided for in
Article 4(1)(b) of Regulation (EC) No 1049/2001. The Directorate-General for Trade
also granted partial access to document 10, with the relevant part redacted, based on the
above-mentioned exceptions in Article 4(1)(b) of Regulation (EC) No 1049/2001 and in
Article 4(1)(a), third indent, of the said regulation (protection of international relations).
With regard to the remaining documents 13 to 29, the Directorate-General for Trade
refused access thereto, based on the exceptions protecting international relations,
provided for in Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001, and the
decision-making process, provided for in Article 4(3) of the said Regulation.
In your confirmatory application, you requested a review of the position of the
Directorate-General for Trade.
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 review of the reply
given by the relevant Directorate-General at the initial stage.
3 A detailed list of documents was enclosed with the initial reply of the Directorate-General for Trade of
22 November 2018.
4 Non-Paper on preparation of the open ended intergovernamental group on transnational corporations
and other business enterprises with respect to human rights, WK 11654/2017 REV 1 and WK
10606/2017 INIT. These newly identified documents are referred to as ‘document 21.1’ and
‘document 21.2’ in this decision.
2
Having carried out a detailed assessment of your request in light of the provisions of
Regulation (EC) No 1049/2001, I wish to inform you that partial access is granted to
documents 13 to 16, 18 to 21, 21.1, 21.2, 23 to 26 and 29, to which access was refused in
entirety at the initial stage. The relevant withheld parts of these documents contain
personal data and were redacted, based on the exception in Article 4(1)(b) of Regulation
(EC) No 1049/2001. The remaining withheld information requires protection under the
exceptions protecting international relations, provided for in Article 4(1)(a), third indent,
of Regulation (EC) No 1049/2001, and the decision-making process, provided for in
Article 4(3), first subparagraph, of the said regulation.
With regard to documents 10, 17, 22, 27 and 28, partially or fully withheld at the initial
stage, I confirm the refusal to grant (further) access thereto. The underlying exceptions
are those protecting privacy and the integrity of the individual, international relations and
the decision-making process, provided for, respectively, in Article 4(1)(b) of Regulation
(EC) No 1049/2001, the third indent of Article 4(1)(a) of the said regulation and Article
4(3), first subparagraph, of the above-mentioned regulation.
The detailed reasons are set out below. In my assessment, I took into account the position
of the European External Action Service, as far as the documents originating therefrom
are concerned.
2.1. 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)5, 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 data6
(‘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) 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/EC7 (‘Regulation (EU) No 2018/1725’).
5 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.
6 Official Journal L 8 of 12.12001, p. 1.
7 Official Journal L 205 of 21.11.2018, p. 39.
3
However, the case law issued with regard to Regulation 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
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’.8
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’.9
Documents 10, 13 to 16, 20, 23, 25 and 26 contain personal data such as the names,
surnames and contact details (telephone and office numbers) of staff members of the
European Commission who do not hold any senior management position.
The names10 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 2(a) of
Regulation (EU) No 2018/1725.
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.11 This is also clear from Article 9(1)(b) of Regulation (EC) No 2018/1725, which
requires that the necessity to have the personal data transmitted must be established by
the recipient.
8
European Commission v The Bavarian Lager judgment, quoted above, paragraph 59.
9 Judgment of the Court of Justice of 20 May 2003, preliminary ruling in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joint Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
10
European Commission v The Bavarian Lager judgment, quoted above, paragraph 68.
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.
4
According to Article 9(1)(b) of Regulation (EU) No 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 of having 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, 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.
2.2 Protection of the public interest as regards international relations and of the
decision-making process
Article 4(1)(a), 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 public interest as regards […] international relations […]’.
Article 4(3), first subparagraph of Regulation 1049/2001 provides that ‘access 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’.
In the case at hand, the two above-mentioned exceptions are interlinked and therefore the
corresponding reasons justifying their applicability are closely related.
As far as the protection of international relations is concerned, the EU Court has
acknowledged that the institutions enjoy wide discretion when considering whether
access to a document may undermine that public interest12.
12 Judgment of the Court of First Instance of 25 April 2007,
WWF European Policy Programme v
Council, T-264/04, EU:T:2007:114, paragraph 40.
5
The relevant undisclosed parts of document 10 contains the opinions of the
representatives of third parties and EU Member States concerning various aspects of an
international legally binding instrument on transnational corporations and other business
enterprises with respect to human rights.
The relevant undisclosed parts of documents 13 to 16, 25 and 26 are the reports prepared
by the delegation of the EU to the United Nations Office in Geneva. The undisclosed
parts thereof include the reproduction of the positions of the representatives of various
Members States of the United Nations, provided in the context of the negotiations
regarding the above-mentioned international instrument on transnational corporations.
They also include the comments of the various Member States concerning their
expectations regarding the involvement of the EU in the negotiations. The documents in
question also include assessments of the authors of the reports of these positions or
comments or anticipations regarding the further stages of the process of negotiating the
instrument.
Documents 18, 19, 20, 21, 21.1, 21.2, 22, 23, 24 and 29 are position papers, non-papers
and internal notes regarding discussions on business and human rights. The undisclosed
parts of these documents contain the reproduction of the positions of the representatives
of various Members States of the United Nations and the assessment thereof by the
services of the European Commission.
Documents 1713, 27 and 28 contain the proposals of the positions of the EU on a legally
binding instrument on business and human rights, as well as the outline of the next steps
of the actions for the EU in this context.
As explained by the Directorate-General for Trade in the initial reply, the public
disclosure of documents 17, 22, 27 and 28 and the information included in the withheld
parts of documents 10, 13 to 16, 18 to 26 and 29 would undermine the ongoing
negotiations in the Council of Human Rights of the United Nations concerning an
international legally binding instrument on transnational corporations.
In your confirmatory application, you contest this position and underline that ‘[…]
anybody who has been following this process [negotiations concerning the international
instrument on transnational corporations] can attest that the EU is hardly negotiating’.
Furthermore, in your view, ‘[…] the EU has been blocking the process, even attempting
to stop it altogether’.
Nonetheless, contrary to what you argue in your confirmatory application, the EU,
represented by the European External Action Service, does participate in the negotiating
process within its current remits. Furthermore, regardless of the EU’s involvement, the
negotiation process as such is still fully ongoing. The public disclosure of the positions of
13 Document 17 contains also the series of emails concerning organisational aspects of the planned
meeting, exchanged between the staff members of the European Commission and the European
External Action Service. These exchanges fall outside the scope of your initial and confirmatory
applications.
6
the EU, as well as the assessment of the positions of the Member States of the United
Nations by the EU services, which are included in the documents in question, would
undermine the position of the EU in the negotiations. Indeed, revealing the information
regarding the EU assessment of the further stages of the negotiations would weaken that
position by making the negotiating tactics known to the partners and the public at large.
As confirmed by the case law of the EU Court, ensuring the room for negotiation needed
by the EU and other partners represented in the Council of Human Rights of the United
Nations is an interest that qualifies for protection under the exception in Article 4(1)(a),
third indent, of Regulation (EC) No 1049/2001, as it is necessary in order to bring those
negotiations to a conclusion14.
Given that the positions of the Member States of the United Nations involved in the
negotiations and the positions of the EU involved in the same negotiations are part of the
same discussion concerning the ongoing negotiations and that the positions of the former
have certainly a direct impact on the position and tactics employed in these negotiations
by the latter, their public disclosure would also undermine the internal decision-making
process within the EU linked to the shaping of that position.
I consider this risk as reasonably foreseeable and not purely hypothetical.
Having regard to the above, I consider that the use of the exceptions under Article
4(1)(a), third indent (protection of the public interest as regards international relations),
of Regulation (EC) No 1049/2001 and Article 4(3), first subparagraph, of the said
Regulation, is justified concerning (parts of) the documents in question and that access
thereto must be refused on that basis.
3.
PARTIAL ACCESS
Partial access is granted to documents 10, 13 to 16, 18 to 21, 21.1, 21.2, 23 to 26 and 29.
With regard to documents 17, 22, 27 and 28, no meaningful partial access is possible,
given that the entire content of the documents concerned is covered in its entirety by the
exceptions provided for in Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001
and Article 4(3), first subparagraph, of that regulation.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(1)(a) and Article 4(1)(b) of Regulation (EC) No
1049/2001 do not need to be balanced against any possible overriding public interest in
disclosure.
The exception laid down in Article 4(3) 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.
14 Judgment of the Court of First Instance of 25 April 2007,
European Policy Programme v Council,
T-264/04, EU:T:2007:114, paragraph 41.
7
In your confirmatory application, you argue that such overriding public interest exists in
the case at hand. You base your reasoning on two aspects.
Firstly, you underline that ‘[…] the international legally binding instrument […] aims to
protect citizens worldwide against corporate human rights violations’. In this context you
point out that, ‘[i]n 2017, 207 activists around the world were killed opposing projects
that would damage their communities, environment and land. More often than not, these
projects are being developed by European transnational companies’. Consequently, in
your view, ‘[d]iscussions at EU level about U[nited] N[ations] negotiations on a treaty
that would hold these companies accountable has an overriding general interest […]’.
Secondly, you argue that, taking into account that ‘[…] a future binding EU treaty will
need to be implemented in the EU and Member States as legislation’, the involvement of
the EU in the negotiation process in question falls under ‘legislative capacity of the EU’.
In conclusion, you emphasise that ‘[c]itizens have right to know how the European
Union […] established its negotiating position before entering the negotiations at the
Human Rights [C]council of the United Nations’.
However, without prejudice to the question of whether there could indeed be a public
interest in the subject matter and a general need for public transparency related thereto, I
would like to refer to the judgment in the
Strack case15, wherein the Court of Justice
ruled that in order to establish the existence of an overriding public interest in
transparency, it is not sufficient to rely merely on that principle and its importance.
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-disclosure16.
Nor have I, based on my own analysis, been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the independence of the Commission's decision-making process, grounded in Article 4(3)
of Regulation (EC) No 1049/2001.
The fact that the document requested was not drafted in the framework of the legislative
activities of the European Commission, for which the Court of Justice has acknowledged
the existence of wider openness17, provides further support to this conclusion.
15 Judgment of the Court of Justice of 2 October 2014,
Strack v Commission (hereafter referred to as
‘Strack v Commission judgment’), C-127/13 P, EU:C:2014:2250, paragraph 128.
16
Strack v Commission judgment, quoted above, paragraph 129.
17 Judgment of the Court of Justice of 29 June 2010,
Commission v Technische Glaswerke Ilmenau,
C-139/07 P, EU:C:2010:376, paragraph 60.
8
5.
MEANS OF REDRESS
I would like to draw your attention to the means of redress that are available against this
decision, that is, judicial proceedings and complaints to the 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
Martin SELMAYR
Secretary-General
9