Ref. Ares(2021)3762010 - 08/06/2021
HUMAN RESOURCES AND SECURITY
Brussels, 8 June 2021
Margarida da Silva
Rue d'edimbourg 26
Your application for access to documents – Ref /GestDem No 2021/2672
Dear Ms da Silva,
I refer to your e-mail, dated 23 April 2021 under reference number GestDem 2021/2672,
in which you make a request for access to documents.
You request “documents which relate to any article 16, article 12B and article 40 (staff
regulations) applications made by Paolo Cesarini, former Head of Unit at DG CNECT.
[you] request a note of all Mr. Cesarini's job titles at the Commission
including dates held; copies of any application(s) that he has made under article 12b, 16
and 40 to undertake a new professional activity; and all documents (correspondence,
emails, meeting notes etc) related to the authorisation of the new role or roles”.
I understand that your request refers to documents relating, firstly, to the new role and
new professional activity of Mr Paolo CESARINI after leaving the service in line with
Article 16 of the Staff Regulations1 (SR). And, secondly, I understand that you refer to
the requests submitted by Mr Cesarini in the context of Article 12b SR in relation with
Article 40 SR, that means a request to perform an outside activity (Article 12b SR) while
on leave on personal ground (Article 40 SR).
Following your request, the following documents have been identified:
A document extracted from the relevant staff database listing the job titles of Mr
Cesarini (hereafter “document 1”);
1 Consolidated text: Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials
and the Conditions of Employment of Other Servants of the European Economic Community and the
European Atomic Energy Community
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: SC11 09/012 - Tel. direct line +32 229-90515
The declaration form submitted by Mr Cesarini registered under reference Ares
(2021) 1489188 in the framework of Article 16 SR (hereafter “document 2”);
Opinion of DG CNECT (hereafter “document 3”);
Opinion of the Secretariat General registered under reference Ares(2021)2169450
(hereafter “document 4”);
Opinion of the Legal Service registered under reference Ares(2021)2202222
(hereafter “document 5”);
Opinion of COPAR (hereafter “document 6”);
The decision of the Appointing Authority of 25 April 2021 concerning the
declaration of the intention to engage in an occupational activity submitted by Mr
Cesarini, registered under reference Ares(2021)2551730 in the framework of Article
16 SR (hereafter “document 7”);
I have examined your request under the provisions of Regulation (EC) No 1049/2001 of
the European Parliament and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents2 (hereafter “Regulation
1. ASSESSMENT AND CONCLUSIONS
Regulation 1049/2001 provides that any citizen of the Union, and any natural or legal
person residing or having its registered office in a Member State, has a right of access to
documents of the institutions, subject to the principles, conditions, and limits defined in
According to its Article 2(3), the Regulation "shall apply to all documents held by an
institution, that is to say, documents drawn up or received by it and in its possession"
According to its Article 3(a), a document is "any content whatever its medium (written on
paper or stored in electronic form or as a sound, visual or audio-visual recording)
concerning a matter relating to the policies, activities and decisions falling within the
institution's sphere of responsibility”.
I regret to inform you that I have to refuse access to the requested documents, based on
the exceptions laid down in the Article 4(1)(b) (protection of privacy and the integrity of
the individual) and the second subparagraph of Article 4(3) (protection of the decision-
making process) of Regulation 1049/2001.
The detailed reasons underpinning my assessment are set out below.
Protection of privacy and the integrity of the individual and transmission of
Article 4(1)(b) of Regulation 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”.
2 OJ L 145, 31.5.2001, p. 43.
In accordance with paragraph 1 of Article 26 SR, which aims inter alia
to safeguard the
privacy and integrity of present and former Commission staff, the 'personal file' of an
a) all documents concerning his administrative status and all reports relating to
his ability, efficiency and conduct;
b) any comments by the official on such documents.
As is obvious from the titles of the requested documents, they form part of the personal
file of the official concerned, which contains the documents concerning his
administrative status or are inextricably linked with it. In particular, document 1 reflects
his career history, while documents 2 and 7 form part of the personal file of the staff
member concerned. Documents 3, 4, 5, and 6 are inextricably linked with his
administrative status and are internal opinions of the services that were taken into
account by the Appointing Authority for its decision of 25 April 2021 concerning the
declaration of the intention to engage in an occupational activity submitted by Mr
In accordance with paragraph 8 of Article 26 SR, “[t[he personal file shall be
confidential and may be consulted only in the offices of the administration or on a secure
It is clear from this provision, that the European Commission is
bound to protect the content of its staff member’s personal file in an enhanced way.
I also note that the case-law of the EU Courts on public access to documents holds that in
the absence of express provisions in Regulation 1049/2001, which would provide for its
primacy over other regulations relating to a particular area of Union law (such as, e.g.,
the Staff Regulations), it is necessary to ensure such an application of each of the two set
of rules, which is compatible with that of the other3.
In the light of the above, I consider that the requested documents as a whole fall under
the scope of the exception provided in Article 4(1)(b) of Regulation 1049/2001, which
must be interpreted taking into account the principle of confidentiality of the personal
files of members of the staff provided under Article 26 SR. Consequently, I consider that
the disclosure to the public of the eight documents falling under the scope of your request
would seriously undermine the privacy of the individual concerned within the meaning of
Article 4(1)(b) of Regulation 1049/2001.
Moreover, I consider that public disclosure of the requested documents would infringe
the legislation regarding the protection of personal data under the provisions of
Regulation 2018/1725 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 (“Regulation 2018/1725”).
In case C-28/08 P (EC v Bavarian Lager)4, the Court of Justice ruled that when a request
is made for access to documents containing personal data, Regulation 2018/1725
becomes fully applicable5.
3 See judgment of 12 November 2015 in joined cases T-515/14 and T-516/14, Alexandrou v
ECLI: EU:T:2015:844, paragraphs 69, with further references.
4 Judgment of 29 June 2010, C-28/08 P, European Commission v The Bavarian Lager Co. Ltd
ECLI:EU:C:2010:378, paragraph 59.
Article 3(1) of Regulation 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)6, “there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
The notion of personal data covers both the factual elements concerning the
professional activity of the staff member concerned as well as the internal assessment and the
final decision concerning his declaration of intention to engage in an occupational activity. In
addition, the names of the person 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 2018/1725.
Therefore, all the requested documents (1 to 7) as a whole fall under the scope of the
exception provided in Article 4(1)(b) of Regulation 1049/2001, which must be
interpreted taking into account Regulation 2018/1725.
Pursuant to Article 9(1)(b) of Regulation 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 2018/1725, can the
transmission of personal data occur.
In case C-615/13 P (ClientEarth)7, the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data. This is
also clear from Article 9(1)(b) of Regulation 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 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
5 This judgment specifically cited Regulation 45/2001, which was repealed by Regulation 2018/1725. In
accordance with Article 99 of that latter Regulation, references to Regulation 45/2001 should be
construed as references to Regulation 2018/1725. However, please note that the case law issued with
regard to Regulation 45/2001 remains relevant for the interpretation of Regulation 2018/1725.
6 Judgment of 20 May 2003 in joined cases C-465/00,
C-138/01 and C-139/01, Rechnungshof v
Österreichischer Rundfunk and Others
, and, Lauermann v Österreichischer Rundfunk
ECLI:EU:C:2003:294, paragraph 73.
7 Judgment of 16 July 2015, C-615/13P, ClientEarth and Pesticide Action Network Europe (PAN Europe) v
European Food Safety Authority
, ECLI:EU:C:2015:489, paragraph 47.
proportionality of the transmission of the personal data for that specific purpose after
having demonstrably weighed the various competing interests.
In your request you did not establish the necessity of having the data transferred and I
consider that the legitimate interests of the individual concerned would be prejudiced by
the disclosure of his personal data. Consequently, I conclude that, pursuant to Article
9(1)(b) of Regulation 2018/1725, 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 in your request.
1.2. Protection of the decision-making process
The second subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess
to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution 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
As for the opinions of the DG CNECT, the Secretariat General, the Legal Service and
COPAR, (documents 3, 4, 5 and 6) in addition to the protection of personal data, the
second subparagraph of Article 4(3) of Regulation 1049/2001 applies.
That exception is related to the protection of the Commission's decision-making process
even after the decision of the Appointing Authority has been taken. The abovementioned
documents contain opinions for internal use. Their disclosure would reveal individual
preliminary views of different services concerning the declaration of the intention to
engage in an occupational activity submitted by Mr. Cesarini and which were taken into
account by the Appointing Authority in its decisions. Consequently, the disclosure of
these documents would seriously undermine the institution’s decision-making process. In
particular in a case where the decision-making process at stake relates to the
confidentiality of the personal files of staff members in the meaning of Article 26 SR.
The Commission’s services must be able to explore all possible options in preparation of
their final decision free from external pressure. The staff in different Directorates-
General should not be exposed in their individual opinions on specific decisions to be
adopted by the Appointing Authority. If individual preliminary opinions by EU staff in
different Directorates-General were disclosed, it would make them more hesitant to
express their opinions freely for fear of public disclosure or pressure. Therefore, public
disclosure of the requested documents would seriously undermine the effectiveness of the
Commission’ decision-making process, also for future similar cases. The capacity of EU
staff to express their opinions freely must be preserved, to avoid the risk that disclosure
would lead to future self-censorship, which would ultimately affect the quality of the
internal decision-making of the Commission.
It follows that the European Commission cannot grant public access under Regulation
1049/2001 to the documents containing preliminary opinions for internal use, even after
the decision of the Appointing Authority was taken.
The exception laid down in Article 4(3) of Regulation 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 request, you do not invoke any overriding public interest, nor have I been able,
based on the elements at my disposal, to establish the existence of any possible
overriding public interest in disclosure of the requested documents. In consequence, I
consider that in this case there is no overriding public interest that would outweigh the
interest in safeguarding the protection of Article 4(3) (protection of the decision-making
process) of Regulation 1049/2001.
The fact that the documents do not relate to any legislative act, for which the Court of
Justice has acknowledged the existence of wider openness, provides further support to
Therefore, I conclude that the refusal of access to the abovementioned documents 3, 4, 5
and 6 is justified also on the basis of the exception laid down in the second subparagraph
of Article 4(3) of Regulation 1049/2001.
2. PARTIAL ACCESS
While I have also considered the possibility of granting partial access on the basis of
Article 4(6) of Regulation 1049/2001, I have concluded that this would equally
undermine the protection of personal data. It follows from the assessment made above
that the documents which fall within the scope of your request are manifestly and entirely
covered by the exceptions laid down in Article 4(1)(b) (protection of privacy and the
integrity of the individual) and the second subparagraph of Article 4(3) (protection of the
closed decision-making process) of Regulation 1049/2001. Also, no meaningful partial
access could be granted since you requested documents concerning a clearly identified
3. TRANSMISSION OF INFORMATION ON PERSONAL DATA
Against this background, in order to try address your query to the extent possible, I have
also considered the possibility of sharing with you some additional general information
on the process to which your request relates. However, as explained above, information
on the Article 16 SR declaration submitted by Mr Cesarini and the corresponding
Decision by the Appointing Authority are considered personal data, therefore the sharing
of them has to respect the provisions for the transmission of personal data pursuant to
In your request, you did not establish the necessity of having the data transferred for a
specific purpose in the public interest, which constitutes the first condition to be met
pursuant to Article 9(1)(b) of Regulation 2018/1725. As per established case law (Case
C-615/13 P ClientEarth), the Commission does not have to examine by itself the
existence of a need for transferring personal data. As the necessity has not been
established in your request, the Commission does not have to examine the second
condition foreseen in Article 9(1)(b) of Regulation 2018/1725, whether the data subject’s
legitimate interests might be prejudiced and the proportionality of such transmission.
Consequently, I conclude that, pursuant to Article 9(1)(b) of Regulation 2018/1725 no
information regarding the requested occupational activity by Mr Cesarini can be
provided, as any such information constitutes personal data and the need to obtain access
thereto for a purpose in the public interest has not been substantiated in your request.
4. MEANS OF REDRESS.
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the European Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretary-General of the Commission at the following address:
Transparency, Document Management & Access to Documents (SG.C.1)
or by email to: firstname.lastname@example.org
Electronically signed on 08/06/2021 09:17 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482