Ref. Ares(2020)5931722 - 26/10/2020
EUROPEAN COMMISSION
.
Brussels, 22.7.2019
C(2019) 5605 final
1290 Grosuplje
Slovenia
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 – GESTDEM
2019/1579
Dear
I am writing in reference to your email of 6 June 2019, registered on the same date, by
which you submit 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’).
In your initial application of 12 February 2019, you requested access to:
‘the copies of [the] following documents produced by the European Commission:
1. Note to the file on the case EUP 7185/14/ MARK;
2. Complete correspondence with other [European] Commission's D[irectorates-]
G[eneral] related to the case EUP 7185/14/ MARK and CHAP (2014)03386 (if such
correspondence exists);
3. Complete correspondence with other [European] Commission's D[irectorates-]
G[eneral] related to the cases CHAP (2017)01860 and CHAP (2018)989 (if such
correspondence exists);
4. Correspondence sent to Slovene authorities related to the cases CHAP (2017)01860
and CHAP (2018)989 (if such correspondence exists).’
1 Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
By letter of 16 May 2019, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs informed you that it was not able to identify any documents as
falling within the scope of your request.
More specifically, as regards the note to the file on case EUP 7185/14/MARK requested
under point 1 of your application, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs explained that the reasons for closing the case in question were
only articulated in the two letters closing the complaint registered under reference number
CHAP(2014)03386.
As regards the correspondence requested under the remaining parts of your request, the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs clarified that
(i) the interservices exchanges were conducted informally over the phone and (ii) no
correspondence took place between the European Commission and the Slovenian authorities
in relation to the cases CHAP (2017)01860 and CHAP(2018)989.
In the framework of your confirmatory application you request to receive the confirmation
of the lack of any existing document ‘such as [any] Note to the file or any similar document
which contains information such as the background of the case, correspondence history with
the complainant, communication with [the] Slovene authorities, or legal assessment of the
case’.
Against this background, the European Commission has carried out a renewed, thorough
search for the documents requested.
Following this review, the European Commission has identified the following document as
falling within the scope of your request:
-
Minutes of the meeting of 26 October 2017, reference Ares(2019)3903744.
I can inform you that wide partial access is granted to the minutes taken following a meeting
held on 26 October 2017 between some staff members of the Directorate-General for internal
Market, Industry, Entrepreneurship and SMEs and yourself, concerning case EU Pilot
7185/14/MARK, subject to the redaction of the former’s personal data in accordance with
Article 4(1)(b) of Regulation (EC) No 1049/2001, for the reasons set out below.
Moreover, I would like to confirm hereby that the institution does not hold any other
documents that would correspond to the description given in your application in respect to the
complaint CHAP(2014) 03386 and the procedure EU Pilot 7185/14/MARK. There is neither
a note to the file nor any other similar document, which contains information about the
background of the case, the correspondence history with the complainant or communication
with Slovene authorities.
Article 2(3) of Regulation (EC) No 1049/2001 provides that the right of access within the
meaning of this instrument applies only to existing documents in the possession of the
institution.
2
In this instance, the legal assessment of case related to complaint CHAP(2014) 03386 and the
ensuing procedure EU Pilot 7185/14/MARK is set forth in the two letters sent to the
complainant (namely the pre-closure letter of 13 September 2016 and the confirmatory closing
letter of 3 April 2018). These two documents reflect the result of numerous internal discussions
regarding the very extensive legal analysis of the case. No other documents were drafted in that
respect.
Consequently, the European Commission is not in a position to fulfil this part of your
request.
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.’
The applicable legislation in this field is 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.3
In the
Psara case, the General Court reiterated that Article 4(1)(b) ‘is an indivisible
provision [which] 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, in particular with Regulation 45/2001’
and that ‘[it] establishes a specific and reinforced system of protection of a person whose
personal data could, in certain cases, be communicated to the public […].4’
Notwithstanding the fact that this judgment referred to Regulation (EC) No 45/2001, it
applies by analogy to Regulation (EU) 2018/1725, as, in principle, the rest of the case law
pertaining to the former.
Article 3(1) of Regulation (EU) 2018/1725 provides that personal data ‘means any
information relating to an identified or identifiable natural person […]’. The Court of Justice
ruled that
any information, which due to its content, purpose or effect, is linked to a particular
person, qualifies as personal data5.
In the
Rechnungshof case law, the Court of Justice further confirmed that ‘there is no reason of
principle to justify excluding activities of a professional […] nature from the notion of private
life’6.
3 Official Journal L 205 of 21.11.2018, p. 39, hereafter ‘Regulation (EU) 2018/1725’.
4 Judgment of the General Court of 25 September 2018,
Maria Psara and Others v
European Parliament,
T-639/15 to T-666/15 and T-94/16, (hereafter ‘the
Psara judgment’), EU:T:2018:602, paragraph 65.
5 Judgment of the Court of Justice of 20 December 2017,
Peter Novak v
Data Protection Commissioner,
C-434/16, EU:T:2018:560, paragraphs 33-35
Judgment of the Court of Justice of 20 May 2003,
Rechnungshof v
Österreichischer Rundfunk and others,
C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph
73.
3
The General Court also stressed that ‘[t]he Court previously held that derogations from the
protection of personal data must be interpreted strictly’7.
In this instance, the document falling under the scope of your request contains personal data
of some members of the non-senior staff of the Directorate-General for internal Market,
Industry, Entrepreneurship and SMEs, including their names and surnames.
Public disclosure of these personal data would consequently constitute processing (transfer)
of personal data within the meaning of Article 9(1) (b) of Regulation (EU) 2018/1725.
Pursuant to this provision, ‘personal data shall only be transmitted to recipients established in
the Union other than Union institutions and bodies if […] the 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 both 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.
According to settled case-law, the condition of necessity laid down in Article 9(1)(b) of
Regulation (EU) 2018/1725 requires the demonstration by the applicant that the transfer of
personal data is the most appropriate of the possible measures for attaining his/her objective,
and that it is proportionate to that objective.’8
In your application, you do not refer to the necessity of disclosing any of the above-
mentioned personal data.
Therefore, I conclude that the transfer of the personal data of the staff members of the
Directorate-General for internal Market, Industry, Entrepreneurship and SMEs through the full
disclosure of the requested minutes does not fulfil the requirement of lawfulness provided
for in Article 5 of Regulation (EU) 2018/1725.
Consequently, the personal data included in the minutes must be withheld under the
exception which is provided by Article 4(1)(b) of Regulation (EC) No 1049/2001, as there is
no need to publicly disclose them and it cannot be assumed that the legitimate rights of the
data subjects concerned would not be prejudiced by such disclosure.
7 The
Psara judgment,
op. cit., paragraph 68.
8 Judgment of the General Court of 15 July 2015,
Dennekamp v
Parliament, T-115/13,
EU:T:2015:497, paragraph 77.
4