Ref. Ares(2020)5931722 - 26/10/2020
EUROPEAN COMMISSION
Brussels, 1.7.2019
C(2019) 5114 final
10672 Athens
Greece
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 2019/287
Dear
,
I refer to your email of 14 March 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’).
1.
SCOPE OF YOUR REQUEST
On 25 October 2018 you sent a letter to the Directorate-General for Communications
Networks, Content and Technology of the European Commission, in which you
requested information regarding the participation of the company
in the
projects co-financed by the EU under Sixth Framework Programme for Research and
Technological Development (hereafter ‘Framework Programme’). In your letter you
underlined that you were the founder of the above-mentioned company and asked
whether
fulfilled the contractual obligations deriving from participation in
the projects in question and in particular, whether it had provided the required
deliverables. In this context, you also provided the list of 25 projects in which the above-
mentioned company was involved.
The Directorate-General for Communications Networks, Content and Technology replied
to you letter on 21 December 2018. It directed you to the information relating to the
projects co-financed from the EU Research Framework Programmes, available on
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
‘Europa’ website3. The Directorate-General for Communications Networks, Content and
Technology explained that, as you are not anymore a legal representative of
,
it is not possible to provide you the requested information. Additionally, the Directorate-
General for Communications Networks, Content and Technology underlined that the
information you requested is commercially sensitive and pointed out at the Court
proceedings4 relating to the issues concerning implementation of the projects in question.
In your letter of 9 January 2019, you provided the detailed explanations concerning the
motives that underpin your request for information. In the same letter you explicitly
requested access to, I quote:
‘1) The cost statements and the dates of their submission to [the European
Commission] of all the cost statements of
for all the 25 projects
mentioned in [the] list [attached to your letter of 25 October 2018] and the
outcome of the related reviews of them by [the European Commission],
2) The letters addressed to the coordinators of each project announcing the result
of the final technical reviews and the reviews of the final cost statements of
for each project.’
You request was recognised as the initial application for public access to documents
under Regulation (EC) No 1049/2001 and attributed to the relevant Directorates-General
of the European Commission for handling and reply. Indeed, as the projects listed in your
application were managed by the Directorate-General for Information Society and
Media5 and the Directorate-General for Research and Innovation, your application was
attributed to both above-mentioned Directorates-General.
The Directorate-General for Information Society and Media managed the following
projects included in your list:
. Consequently, as far as the above-mentioned
projects are concerned, the European Commission has identified the following categories
of documents as falling under the scope of your initial application:
Concerning projects
- Documents containing project review reports (hereafter ‘documents belonging to
category 1’),
- Documents containing financial statements (‘Forms C’) of
(hereafter ‘documents belonging to category 2’),
3
www.cordis.europa.eu.
4
T-483/13.
5
Currently: Directorate-General for Communications Networks, Content and Technology.
6
Or its successors.
2
- Documents containing letters/emails from the European Commission to the
projects’ coordinators concerning financial assessment of the projects (hereafter
‘documents belonging to category 3’),
- Documents containing audit implementation reports and letters/emails related
thereto (hereafter ‘documents belonging to category 4’).
On 28 February 2019, the Directorate-General for Communications Networks, Content
and Technology refused access to all above-mentioned documents. It invoked the
exceptions provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001 and Article
4(2), first and second indents of that regulation, which protect, respectively, privacy and
the integrity of the individual, commercial interest and the court proceedings, as the basis
of the refusal.
The Directorate-General for Communications Networks, Content and Technology also
explained in its reply, that in so far as project
is concerned, it did not
identify any documents falling under the scope of your application, as
had not participated in that project.
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.
As a preliminary comment, I would like to emphasise that documents disclosed under
Regulation (EC) No 1049/2001, legally speaking, become public documents. In line with
the case law of the EU Court8, the institution that disclosed documents under the above-
mentioned regulation may not refuse access thereto if other applicants asked for it.
Following my review, I regret to inform you that I have to confirm the position of the
Directorate-General for Communications Networks, Content and Technology to refuse
access to the documents concerned. The underlying exceptions are provided for in Article
4(1)(b) of Regulation (EC) No 1049/2001, Article 4(2), first and third indents, of that
regulation and Article 4(3), second subparagraph of the said regulation. They protect,
respectively, privacy and the integrity of the individual, commercial interests of a natural
or legal person, the purpose of the investigation and the decision-making process.
The detailed reasons are set out below.
Additionally, please note that the relevant parts of documents belonging to category 3
contain information unrelated to
(for example the financial assessment of
7
Or its legal successors such as
8 Judgment of the General Court of 21 October 2010,
Agapiou Joséphidès v Commission and EACEA,
T-439/08, EU:T:2010:442, paragraph 116.
3
the cost statement submitted by other members of the consortium participating in the
projects in question). This information falls outside the scope of your application.
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’.
In this context, please note that in its judgment in Case C-28/08 P
(Bavarian Lager)9, 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 data10 (‘Regulation (EC) No 45/2001’) becomes fully applicable.
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/EC11
(‘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 Protection] Regulation’.12
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
private life’.13
9 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.
10 Official Journal L 8 of 12.1.2001, p. 1.
11 Official Journal L 205 of 21.11.2018, p. 39.
12
European Commission v The Bavarian Lager judgment quoted above, paragraph 59.
13 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.
4
Documents belonging to categories 1, 2 and 3 contain the names, surnames, initials,
shortened names and contact details (telephone number, office location, email addresses)
of the staff members of the European Commission who do not hold any senior
management position and of the third parties
or other members of the
consortium). They contain also biometric data (handwritten signatures of the staff
member of the European Commission or the third parties).
The names14 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)
2018/1725.
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
(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.15 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 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.
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in documents belonging to categories 1, 2 and 3 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.
14
European Commission v The Bavarian Lager judgment quoted above, paragraph 68.
15 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
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.
Furthermore, as the handwritten signatures, are biometric data, there is a risk that their
disclosure would prejudice the legitimate interests of the persons concerned.
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 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’.
Documents belonging to category 1 contain the projects’ review reports. They include
detailed information relating to the technical aspects of the implementation of the
projects that reflects and complements the description of work included in the project
proposal. That includes, for instance, the description of the particular tasks under
responsibility of a given consortium member, together with the information about the
resources involved. The undisclosed parts of the documents also contain the information
about the difficulties encountered in the execution of particular tasks.
Documents belonging to category 2 contain the financial statements (‘Forms C’)
submitted by
in the course of the projects in question. The relevant parts of
the documents contain detailed financial information relating to the categories and
amounts of costs incurred in the execution of the project.
Documents belonging to category 3 include the financial assessment of the projects
carried out by the European Commission following the examination of the participants’
costs statements. This include the individual ‘participant’s finance sheets’ and the
‘summary reports’ containing payment calculation for the entire consortium, broken
down to the individual consortium members. Information included in the undisclosed
parts of documents is similar to that included in documents belonging to category 2.
Additionally, the information relating to the payment calculation to other consortium
members, as explained in part 2 of this decision, falls outside the scope of your
application.
Documents belonging to category 4 contain the information concerning the outcome of
the financial audit. The information is presented in the same form as in the ‘participant’s
finance sheet’, in which the relevant position of costs are adjusted in line with the result
6
of the audit. The documents also include the letter from the European Commission to the
outlining the result of the audit.
That above-mentioned information has to be considered as commercially sensitive
business information.
Its public disclosure, through the release of the above-mentioned documents under
Regulation (EC) No 1049/2001, would clearly undermine the commercial interests of the
entities (including
) participating in the projects in question. Disclosing the
information concerning details of the implementation of the project (reflecting the
description of work included in the proposal of the project), or financial data included in
the financial statements (and reflected in the assessment carried out by the European
Commission) would give potential competitors an unfair advantage. Given the
competitive environment in which the applicants for grants operate, it is necessary to
consider that information as sensitive business information.
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 in question. I conclude, therefore, that access to the relevant parts of documents
belonging to categories 1, 2 and 3 and to the entirety of documents belonging to category
4 must be denied on the basis of the exception laid down in the first indent of Article 4(2)
of Regulation (EC) No 1049/2001.
2.3 Protection of the purpose of inspection, investigation and audit and the
decision-making process
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 […] investigations […] unless there is an overriding
public interest in disclosure.’
Article 4(3), second subparagraph of Regulation (EC) No 1049/2001 provides that
‘[a]ccess to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institutions concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure’.
The documents belonging to categories 1-4 relate to the ongoing proceedings by the
Greek authorities concerning the participation of
in the projects funded by
the EU. Indeed, the proceedings opened by the Greek authorities are the result of the
enquiry launched in 2009 by the European Anti-Fraud Office. That enquiry related to a
series of projects funded under the EU Framework Programme, in which
participated.
Documents belonging to categories 2, 3 and 4 are part of the administrative file of the
above-mentioned enquiry launched in 2009 by the European Anti-Fraud Office.
7
In order to ensure the effectiveness of enquiries led by the European Anti-Fraud Office
into cases of possible fraud, it is essential to preserve a climate of mutual trust between
all parties involved in the enquiry, and hence the confidentiality of these enquiries is of
high importance. The enquiries led by the European Anti-Fraud Office – and the
underlying evidence and information sources – therefore require strict protection from
the public, even after the European Anti-Fraud Office enquiry (as in the case at hand) has
been closed.
The fact that, as you point out in your confirmatory application, you had access to the
documents concerned in your capacity of the member of
management, may
not warrant their public disclosure under Regulation (EC) No 1049/2001. Indeed, as
mentioned in point 2 of this decision, documents disclosed under that regulation become,
legally speaking, public documents. Consequently, they would not be disclosed only to
you, but also to anyone who would ask for such access, thus undermining the above-
mentioned confidentiality of the enquiry.
The activities of the European Anti-Fraud Office in the above-mentioned case were
finalised, with the recommendation to the Greek authorities to initiate proceedings in the
matter. Subsequently, the Greek authorities launched the proceedings, which are
therefore the direct result of the inquiry by the European Anti-Fraud Office.
The General Court, in its Judgment in Case T-221/08, confirmed the existence of a
general presumption of non-disclosure as regards documents concerning the European
Anti-Fraud Office enquiries, conducted on the basis of Regulation (EC) No 1073/199916,
in particular, but not limited to, those documents which contain opinions for internal use
as part of deliberations and preliminary consultations. The General Court also ruled that,
in such a case, it is irrelevant whether the request for public access concerns ongoing or
already closed enquiries17.
Furthermore, the General Court, in the same Case, outlined that, in order to determine the
scope of Regulation (EC) No 1049/2001, account must be taken of the relevant sectoral
rules governing the administrative procedure under which the documents requested under
Regulation (EC) No 1049/2001 were gathered18. In the present case, the administrative
procedures are regulated by Regulation (EU, Euratom) No 833/2013 concerning
investigations conducted by the European Anti-Fraud Office19, which provides for the
obligation of confidentiality with regard to all information gathered during enquiries.
16 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999
concerning investigations conducted by the European Anti-Fraud Office (OLAF), Official Journal L
136, 31.5.1999, p. 1 to 7.
17 Judgment of the General Court of 26 April 2016,
Strack v Commission (hereafter referred to as
‘
Strack v Commission judgment’), T-221/08, EU:T:2016:242, paragraphs 159 to 164.
18
Strack v Commission judgment quoted above, paragraph 154.
19 Regulation (EU, Euratom) No 833/2013 of the European Parliament and of the Council of 11
September 2013, Official Journal and repealing Regulation (EC) No 1073/1999 of the European
Parliament and of the Council and Council Regulation (Euratom) concerning investigations
conducted by the European Anti-Fraud Office (OLAF) and No 1074/1999, Official Journal L 248 of
18.9. 2013, p. 1.
8
Consequently, the European Anti-Fraud Office are legally bound to treat the information
it obtains during an investigation as confidential and subject to professional secrecy. As
stipulated by Article 10 of Regulation (EU, Euratom) No 883/2013, the need for
protection extends not only to individual interests but also to the purpose of
investigations conducted by the European Anti-Fraud Office20. The same principle
applies to the documents held by the European Commission, but which are, as in the case
at hand, the part of the administrative file of the European Anti-Fraud Office enquiry.
The context and purpose of the confidentiality rules applicable to the European Anti-
Fraud Office enquiries – as set out above – imply that confidentiality must also be
ensured after the closure of the relevant enquiry. Therefore documents concerned come
under the general presumption that disclosure would be harmful to the purpose of the
investigation.
Based on the above considerations, I conclude that the documents belonging to categories
2, 3 and 4 fall under the exceptions of Article 4(2), third indent (protection of
investigations), and Article 4(3), second subparagraph (protection of the decision-making
process), of Regulation (EC) No 1049/2001, and that access has to be refused on that
basis.
Documents belonging to category 1 are relevant for the proceedings launched by the
Greek authorities, which are, in the light of the judgment of the EU Court in Case C-
331/15 P21, an investigation within the meaning of Article 4(2), third indent of
Regulation (EC) No 1049/2001. Although that judgment relates to the activities of the
European Commission, I consider that it applies by analogy to the activities of the
national authorities. Indeed, the process pending before the Greek authorities, is a
structured and formalised process that has the purpose of collecting and analysing
information in order to enable the Greek authorities to take further steps provided in the
national legislation.
As already mentioned, the fact that you had access to the above-mentioned documents in
your capacity of the member of
management, may not warrant their public
disclosure under Regulation (EC) No 1049/2001. Taking into account the (early) stage of
the investigation by the Greek authorities, there is a real and non-hypothetical risk that,
the public disclosure of the information included in the documents, would not only
undermine the interests protected by the exceptions invoked in point 2.1 and 2.2 of this
decision, but would also undermine the purpose of the above-mentioned investigation.
Indeed, there is close and direct link between the subject matter of that investigation and
the information included in the documents concerned. It would not be possible to ensure
or apply the confidentiality provisions applicable to the investigations, if the information
concerned would have been already publically disclosed by the European Commission.
Consequently, the effective use of that information by the Greek authorities would be
20 In this context, 'investigation' is to be understood in a broad sense comprising all information collected
during the process.
21 Judgment of the Court of Justice of 7 September 2017,
Schlyter v Commission, C-331/15 P,
EU:C:2017:639, paragraph 46.
9
compromised. Therefore, in order for the Greek authorities to be able to carry out its
tasks in the context of the pending proceedings, there has to be a protected space
throughout the whole duration of the procedures until the case has been definitively
closed. For this reason, the European Commission must refuse public access to the
documents in question, which are relevant for the ongoing proceedings, based on the
third 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]he documents […] concern
research projects of the company
during the period 2005-2007, during
which [you were] chairman of the board of directors’. In this context you underline that, I
quote, [i]t is self-evident that the documents in question were available to [you] and
could still be if [you] had kept copies […].
You also explain that, I quote, ‘[t]he reasons why [you are] requesting the documents
concerned is to defend [your]self in the investigation concerning accusations against
[you] contained in the reports sent to Greek judicial authorities by [European Anti-Fraud
Office] and [Directorate-General for Communications Networks, Content and
Technology]’.
Please also note in this respect, however, that the above-mentioned motives constitute a
private interest and can therefore not be considered as an overriding public interest in
disclosure. Indeed, as confirmed by the Court of First Instance in its
Sison22 and
Franchet
and Byk23 judgments, ‘the purpose of the Regulation is to guarantee access for everyone
to public documents and not only access for the requesting party to documents
concerning him and it follows that the applicants’ application must be examined in the
same way as an application from any other person’.
Furthermore, the individual interest that a party may invoke when requesting access to
documents cannot be taken into account for the purpose of assessing the possible
existence of an overriding public interest.24
22 Judgment of the Court of First Instance of 26 April 2005,
Sison v Council, Joined Cases T-110/03, T-
150/03 and T-405/03, EU:T:2005:143, paragraphs 50-55, Judgment of the Court of Justice of 1
February 2007,
Sison v Council, C-266/05 P, EU:C:2007:75, paragraphs 43-48 and Judgment of the
Court of First Instance of 9 September 2008,
MyTravel v Commission, T-403/05, EU:T:2008:316,
paragraph 66.
23 Judgment of the Court of First Instance of 6 July 2006,
Yves Franchet and Daniel Byk v Commission,
Joined Cases T-391/03 and T-70/04, EU:T:2006:190, paragraph 82.
24 Judgment of the General Court of 20 March 2014,
Reagens v Commission, T-181/10, EU:T:2014:139,
paragraph 144.
10