Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 11.10.2019
C(2019) 7461 final
Friends of the Earth Europe
Rue d’Edimbourg 26
B-1050 Brussels
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/3008
Dear
,
I refer to your e-mail of 19 July 2019, registered on 22 July 2019, in 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 (ʻRegulation (EC) No 1049/2001ʼ).
1.
SCOPE OF YOUR REQUEST
In your initial application of 22 May 2019, addressed to the Directorate-General for Health
and Food Safety, you requested access to, I quote: ʻaudio recording which includes item 7
of the plenary meeting of the Advisory Group on the Food Chain and Animal and Plant
Health held on 26 November 2018 entitled What is next after CJEU ruling on
mutagenesis?ʼ. You stated that you are solely interested in the European Commission’s
interventions on this point and not in the contributions from other stakeholders present at the
meeting.
In its initial reply of 4 July 2019, the Directorate-General for Health and Food Safety
refused access to the requested audio recording. It invoked the exception pertaining to the
protection of privacy and the integrity of the individual, provided for in Article 4(1)(b)
of Regulation (EC) No 1049/2001.
Through your confirmatory application you request a review of this position.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
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 concerned at the initial stage.
Following my review, I regret to inform you that I have to confirm the decision of the
Directorate-General for Health and Food Safety to refuse access to the requested audio
recording, based on the exception protecting privacy and the integrity of the individual
(Article 4(1)(b) of Regulation (EC) No 1049/2001).
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that
ʻaccess to documents is
refused where disclosure would undermine the protection of privacy and integrity of the
individual, in particular in accordance with Community legislation regarding the
protection of personal data.ʼ
In its judgment in Case C-28/08 P
(Bavarian Lager),3 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 data4
(hereafter ‘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) 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/EC5 (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 Protection] Regulation’6.
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
3 Judgment of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd, C-28/08 P,
EU:C:2010:378, paragraph 59.
4 Official Journal L 8 of 12.1.2001, p. 1.
5 Official Journal L 205 of 21.11.2018, p. 39.
6 Cited above, paragraph 59.
2
The purpose of the audio recording is to enable European Commission staff to go back to
the audio recording, in case of need, in order to refine the minutes of the meeting. It is
not available to the general public. On the contrary, it is only available to European
Commission staff.
As you know and according to Article 7 of the Rules of procedure of the Advisory Group on
the Food Chain and Animal and Plant Health, draft minutes summarizing the discussion of
each point on the agenda were drawn up and sent to the Group members, including your
organization7. All comments received from the participants of the meeting concerned were
incorporated in the final version of its minutes. The final minutes are made available to the
general public and are published on the European Commission website.8
The existing audio recording consists of interventions of individuals, for example
representatives of the members of the Advisory Group on the Food Chain and Animal
and Plant Health and European Commission staff, not forming part of senior
management, made during the meeting of this Group which took place on 26 November
2018. The captured information relates to identified or identifiable natural persons
(including their names and biometric data), namely to the intervening participants and to
the positions they expressed, on behalf of the authorities they represented. This
information clearly constitutes personal data in the sense of Article 3(1) 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.
Against this background, the captured information has been collected in the framework
of the discussions in the Advisory Group on the Food Chain and Animal and Plant
Health, with the purpose of allowing
ex-post verification of the positions expressed in the
meeting, in case of need. Article 13(2) of the Standard Rules of Procedure for Standing
Committees stipulate that the Committee's discussions shall be confidential9. These rules
were adopted on the basis of Article 9 of Regulation (EU) No 182/201110.
7 Official Journal L 275 of 25.08.2004, p. 17.
8
https://ec.europa.eu/food/sites/food/files/safety/docs/adv-grp plenary 20181126 sum.pdf
9
Official Journal C 216 of 12.7.2011, p. 11.
10 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by Member States of
the Commission’s exercise of implementing powers, OJ L 55 of 28.2.2011, p.17.
3
Public disclosure of audio recording which was collected for specified explicit and
legitimate purposes in the context of confidential discussions would constitute a further
processing in a way incompatible with those purposes. Such further processing would not
be a fair and lawful processing according to Article 5 of Regulation (EU) 2018/1725.
In the
ClientEarth case, the Court of Justice ruled that the institution does not have to
examine
ex officio the existence of a need for transferring personal data11. In the same
ruling, the Court stated that if the applicant has not established a need to obtain the
personal data requested, the institution does not have to examine the absence of prejudice
to the person's legitimate interests12.
In your confirmatory application, you do not put forward any arguments to establish the
necessity of disclosing the requested personal data contained in the audio recording you
requested. According to Article 9 of Regulation (EU) 2018/1725, the recipient has to
establish ‘that it is necessary to have the data transmitted for a specific purpose in the
public interest’. Such a specific purpose in the public interest cannot be interpreted as
meaning that any general invocation of transparency is sufficient to substantiate it.
Furthermore, there are reasons to assume that the legitimate interests of the individuals
concerned would be prejudiced by disclosure of the personal data captured in the audio
recording, as there is a real and non-hypothetical risk that such public disclosure would
harm their privacy and undermine the confidentiality of the discussions.
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.
Article 4(1)(b) has an absolute character and does not envisage the possibility to
demonstrate the existence of an overriding public interest.
3.
PARTIAL ACCESS
Pursuant to Article 4(6) of Regulation (EC) No 1049/2001, I have examined the
possibility of granting partial access to the audio recording you requested.
In order to ensure the protection of the privacy and the integrity of the persons depicted
and speaking on it, it would be necessary to use different tools in order to extract the
sound from the audio recording and distort the voices. However, this manipulation is not
a standard operation for the European Commission services, which do not currently
dispose of the technical tools necessary for its fulfilment. Moreover, the European
Commission does not hold a transcript of the audio recording. In consequence, these
manipulations would result in the creation of a new document.
11 Judgment of the Court of Justice 16 July 2015
ClientEarth v EFSA, C-615/13 P, EU:C:2015:489,
paragraph 47.
12 Cited above, paragraphs 47 and 48.
4