Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 26.11.2019
C(2019) 8680 final
Corporate Europe Observatory
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 2019/4312
Dear
,
I refer to your e-mail of 18 September 2019, registered on 19 September 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 (hereafter ‘Regulation (EC) No 1049/2001’).
I apologise for the delay in the handling of your application.
1.
SCOPE OF YOUR REQUEST
In your initial application of 22 July 2019, registered under reference GESTDEM
2019/4312 and addressed to the Directorate-General for Health and Food Safety, you
requested access to, I quote: ‘a list of lobby meetings held by the French Government
was discussed. The list should include the names of the individuals and organisations
attending; the date, and any agendas, minutes, notes produced. I would additionally like
to receive any third party position papers, e-mails, or other correspondence which relates
to discussions around the French Government’s ban on E171. This should include all
meetings of SCOPAFF.’
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
The European Commission has identified 27 documents as falling under the scope of
your request3.
In its initial reply of 4 September 2019, the Directorate-General for Health and Food
Safety:
Granted full access to documents 25, 26 and 27;
Granted partial access to documents 1 to 22 and 24, subject only to the redactions
of personal data in accordance with Article 4(1)(b) of Regulation (EC) No
1049/2001;
Refused access to document 23 based on the exceptions of
Article 4(1)(a), third indent (protection of the public interest as regards
international relations) and Article 4(1)(b) (protection of privacy and the
integrity of the individual) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request, I quote: ʻto review the decision not to
release document 23 which originated from the United States Mission to the EU. The
decision on E171 is of great public interest as it involves a chemical used in many
day-to-day food products. It is in the public interests to know the details of how all third
parties are seeking to influence that decision-making.ʼ
You do not contest the partial refusal of access to documents 1 to 22 and 24.
Consequently, the partial refusal of access to documents 1 to 22 and 24 does not fall
within the scope of this confirmatory review.
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.
The document 23 is the letter from the United States Mission to the EU of 8 May 2019
addressed to
of the Directorate-General for Health
and Food Safety, concerning French Decree suspending the placing on the market of
foodstuffs containing E171 additive (reference Ares(2019)3167764).
Under the provision of Article 4(4) of Regulation (EC) No 1049/2001,
the Secretariat-General of the European Commission re-consulted the authorities of the
United States at the confirmatory stage. The authorities of the United States maintained
their opposition to the disclosure of document 23, based on the exception invoked
already at the initial stage, namely the exception protecting the public interest as regards
international relations provided for in Article 4(1)(a), third indent of Regulation (EC) No
1049/2001.
3 The full list of these documents was enclosed to the reply of the Directorate-General for Health and
Food Safety of 4 September 2019 (Ares(2019)5557496).
2
In their reply to the above-referred consultation, the authorities of the United States
argued that a full disclosure of document 23 would effectively undermine the public
interest as regards the protection of international relations. According to the authorities of
the United States, granting public access to the document concerned which has been
transmitted through its official diplomatic channels (the United States Mission to the
European Union) carries out the concrete risk of undermining the interests of both the EU
and the United States. Disclosure of this document would inhibit the free exchange of
views between the United States and the EU institutions.
I have carried out a detailed examination of the document requested, taking into account
the result of the third party consultations at initial and confirmatory levels, and I have
come to the conclusion that their arguments justify the non-disclosure of the requested
document on the basis of the exception provided for in Article 4(1)(a), third indent
(protection of the public interest as regards international relations) of Regulation (EC) No
1049/2001.
In addition, I have concluded that the requested document contains personal data that
must be withheld based on Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation (EC) No 1049/2001.
2.2.1 Protection of the public interest as regards international relations
Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 provides that ʻ[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]ʼ.
As far as the protection of international relations is concerned, the General Court has
acknowledged that ‘the institutions enjoy a wide discretion when considering whether
access to a document may undermine the public interest and, consequently, […] the
Court’s review of the legality of the institutions’ decisions refusing access to documents
on the basis of the mandatory exceptions relating to the public interest must be limited to
verifying whether the procedural rules and the duty to state reasons have been complied
with, the facts have been accurately stated, and whether there has been a manifest error of
assessment of the facts or a misuse of powers’.4
Moreover, the General Court ruled that, as regards the interests protected by Article
4(1)(a) of Regulation (EC) No 1049/2001, ‘it must be accepted that the particularly
sensitive and fundamental nature of those interests, combined with the fact that access
must, under that provision, be refused by the institution if disclosure of a document to the
public would undermine those interests, confers on the decision which must thus be
4 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v
Council of the
EU, T-264/04, EU:T:2007:114, paragraph 40.
3
adopted by the institution a complexity and delicacy that call for the exercise of
particular care. Such a decision requires, therefore, a margin of appreciation’.5
The document requested in your confirmatory application presents considerations made
by the United States government representatives to the EU staff concerning regulatory
measures that could have as an effect, in the opinion of the United States authorities, an
impact on international trade relations between the EU and the United States. The
document reflects the position of the United States in respect of the French Order
(ECOC1911549A) of 17 April 2019 suspending the placing on the market of foodstuffs
containing the food additive titanium dioxide (E 171) as of 1 January 2020, which was
notified to the European Commission on 26 April 2019. This document sets out the
concerns of the United States about this measure, in particular about its risk assessment,
food safety basis, and the potential disruptions it would have on the internal market as
well as on trade for third countries.
Revealing the details of this communication would jeopardise the possibility of frank and
sincere exchanges between the European Commission and the United States, by making
the United States representatives naturally more guarded about sharing information and
positions with EU staff in the future.
Furthermore, the requested document contains sensitive information, which is not public
and which the European Commission received from the third country on a confidential
basis. Disclosure of this information, against express statements of the providing party,
would undermine the relation of trust with the parties thus negatively affecting the
international relations of the EU.
I came to the conclusion that public access to the requested document would pose a risk
to the public interest as regards the protection of the international relations. Given the
importance of the subject matter, the potential involvement of third countries and media
attention to the file, I consider this risk as reasonably foreseeable and not purely
hypothetical.
In light of the above, I must conclude that the use of the exception under Article 4(1)(a),
third indent (protection of the public interest as regards international relations) of
Regulation (EC) No 1049/2001 is justified, and that access to the document must be
refused on that basis.
2.2.2 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’.
5 Judgment of the General Court of 11 July 2018,
ClientEarth v
European Commission, T-644/16,
EU:T:2018:429, paragraph 23. See also Judgment of the Court of Justice of 3 July 2014,
Council v
In ‘t Veld, C-350/12, EU:C:2014:2039, paragraph 63.
4
In its judgment in Case C-28/08 P
(Bavarian Lager)6, 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 data7
(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/EC8 (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’.9
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’.10
The requested document contains personal data such as the name and surname, telephone
numbers, position of the natural person who is an official of the United States national
authorities. The names11 of the person concerned as well as other data from which its
identity can be deduced undoubtedly constitute personal data in the meaning of Article
3(1) of Regulation (EU) 2018/1725. In addition, it also contains biometric data, namely a
handwritten signature.
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
6 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.
7 OJ L 8, 12.1.2001, p. 1.
8 OJ L 205, 21.11.2018, p. 39.
9
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
10 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.
11
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
5
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.12 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,
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 to have 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 subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subject concerned would be prejudiced by the disclosure of the personal data
reflected in the document, as there is a real and non-hypothetical risk that such public
disclosure would harm its privacy and subject it 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please be informed that the exceptions laid down in Article 4(1)(a) and (b) of Regulation
(EC) No 1049/2001 do not include the possibility for the exceptions defined therein to be
set aside by an overriding public interest.
12 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.
6