Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 25.11.2019
C(2019) 8665 final
Freshfields Bruckhaus Deringer LLP
Bastion Tower
Place du Champ de Mars 5
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 2019/4820
Dear
,
I refer to your letter of 18 September 2019, registered on the following day, 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 (hereafter 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 14 August 2019, addressed to the Directorate-General for
Internal Market, Industry, Entrepreneurship and SMEs, you requested access to ‘[…]
preparatory documents in relation to Directive 2001/27/EC’.
In its initial reply of 16 September 2019, the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs informed you that it held the following documents
corresponding to your application:
Summary record of the 63rd meeting of the Motor Vehicle Committee,
held in Brussels, on 13 October 2000, reference Ares(2019)5877663
(hereafter 'document 1');
1
OJ L 345 29.12.2001, p. 94.
2 OJ L 145 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Summary record of the 64rd meeting of the Motor Vehicle Committee,
held in Brussels, on 17 November 2000, reference Ares(2019)5877730
(hereafter 'document 2');
The Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
refused access to documents 1-2, based on the exception in Article 4(3), second
subparagraph, of Regulation (EC) No 1049/2001 (protection of Institution’s decision-
making process) and the confidentiality provisions of the Standard Rules of procedure for
Committees, adopted by the European Commission pursuant to Article 9 of Regulation
(EU) No 182/20113.
You asked for the review of that position by submitting the confirmatory application on
18 September 2019. In that application you contest the completeness of the list of
documents identified by the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs. Indeed, you argue that ‘[i]t seems strange that the only
documents produced in the run up to Directive 2001/27/EC were the summary records of
the Motor Vehicles Committee for October and November 2000’. You also question the
applicability of the exception in Article 4(3) of Regulation (EC) No 1049/2001 to two
documents identified by the above-mentioned Directorate-General.
Following your confirmatory application, the European Commission identified the
following, additional documents as falling under the scope of your initial application:
Adoption '
fiche' relating to Directive of the European Commission
adapting to technical progress Directive 88/77/EEC relating to measures to
be taken against the emission of gaseous and particulate pollutants from
compression-ignition engines for use in vehicles, and the emission of
gaseous pollutants from positive-ignition engines fuelled with natural gas
or liquefied petroleum gas for use in vehicles
, reference: PE(2001)415
(hereafter 'document 3');
Intermediate version (version '0') of Directive of the European
Commission adapting to technical progress Directive 88/77/EEC relating
to measures to be taken against the emission of gaseous and particulate
pollutants from compression-ignition engines for use in vehicles, and the
emission of gaseous pollutants from positive-ignition engines fuelled with
natural gas or liquefied petroleum gas for use in vehicles, reference
ENTR/F/5-6316-2000 REV0 (hereafter 'document 4');
Intermediate version (version '1') of Directive of the European
Commission adapting to technical progress Directive 88/77/EEC relating
to measures to be taken against the emission of gaseous and particulate
pollutants from compression-ignition engines for use in vehicles, and the
3
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. 13–18.
2
emission of gaseous pollutants from positive-ignition engines fuelled with
natural gas or liquefied petroleum gas for use in vehicles, reference
ENTR/F/5-6316-2000 REV1 (hereafter 'document 5');
Intermediate version (version '2') of Directive of the European
Commission adapting to technical progress Directive 88/77/EEC relating
to measures to be taken against the emission of gaseous and particulate
pollutants from compression-ignition engines for use in vehicles, and the
emission of gaseous pollutants from positive-ignition engines fuelled with
natural gas or liquefied petroleum gas for use in vehicles, reference
ENTR/F/5-6316-2000 REV2 (hereafter 'document 6');
Intermediate version (version '3') of Directive of the European
Commission adapting to technical progress Directive 88/77/EEC relating
to measures to be taken against the emission of gaseous and particulate
pollutants from compression-ignition engines for use in vehicles, and the
emission of gaseous pollutants from positive-ignition engines fuelled with
natural gas or liquefied petroleum gas for use in vehicles, reference
ENTR/F/5-6316-2000 REV3 (hereafter 'document 7');
Intermediate version (version '4') of Directive of the European
Commission adapting to technical progress Directive 88/77/EEC relating
to measures to be taken against the emission of gaseous and particulate
pollutants from compression-ignition engines for use in vehicles, and the
emission of gaseous pollutants from positive-ignition engines fuelled with
natural gas or liquefied petroleum gas for use in vehicles, reference
ENTR/F/5-6316-2000 REV4 (hereafter 'document 8');
Memorandum to the European Commission concerning the above-
mentioned directive, reference ENTR F/5 - 6316/00 (hereafter 'document
9').
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.
In the context of this review, the European Commission has carried out a renewed,
thorough search and, as mentioned in part 1 of this decision, identified documents 3-9
and assessed them from the point of view of the applicability of the exceptions in Article
4 of Regulation (EC) No 1049/2001.
Following this assessment, I can inform you that (wide) partial access is granted to
document 3 and full access is granted to documents 4-9.
3
With regard to documents 1 and 2 identified at the initial stage, I can inform you that
(wide) partial access thereto is granted. The relevant undisclosed parts of the documents
require protection under the exceptions in Article 4(1)(b) of Regulation (EC) No
1049/2001 (protection of privacy and the integrity of the individual).
Please also note that the relevant parts of documents 1-2 contain information unrelated to
Directive 2001/27/EC4 and therefore, they fall 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 ‘[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 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 data6
(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/EC7 (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
4
Commission Directive 2001/27/EC of 10 April 2001 adapting to technical progress Council Directive
88/77/EEC on the approximation of the laws of the Member States relating to measures to be taken
against the emission of gaseous and particulate pollutants from compression-ignition engines for use
in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural
gas or liquefied petroleum gas for use in vehicles. OJ L 107 of 18.4.2001, p. 10–23.
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
OJ L 8 12.1.2001, p. 1.
7
OJ L 205 21.11.2018, p. 39.
4
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.8
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’.9
Documents 1-3 include the names and contact details of staff members of the European
Commission not holding any senior management position. They include also names and
surnames of third parties (representatives of the Member States ministries and Permanent
Representations).
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 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.
In Case C-615/13 P
(
ClientEarth), 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 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,
8
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
9 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v Österreichischer
Rundfunk, Joined 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, cited 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.
5