Ref. Ares(2021)6007010 - 03/10/2021
EUROPEAN COMMISSION
Secretariat-General
Directorate C – Transparency, Efficiency & Resources
The Director
Brussels
SG.C.1/ED
By registered mail with AR
Mr Arun Dohle
Against Child Trafficking
Keizersgracht 482
1017EG Amsterdam
Netherlandss
Copy by email:
ask+request-9874-
xxxxxxxx@xxxxxxxx.xxx
ask+request-9875-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your applications for access to documents – GESTDEM 2021/5166 and
5167
Dear Mr Dohle,
I refer to your requests of 22 August 2021, registered on 23 August 2021, in which you
make a request for access to documents, under the above-mentioned reference numbers.
1.
SCOPE OF YOUR REQUEST
You request access to, I quote:
‘The Ares registration fiche of the letters which MEP Ana Gomes sent to FVP
Timmermans in July 2015, and in 2017 related to Mrs. Roelie Post, including all related
correspondence in whatever form.’ (GESTDEM 2021/5166)
‘Ares Registration fiches and related correspondence related to the letters to
Commissioners Oettinger and Timmermans sent per registered mail by Mrs. Roelie Post
in August 2018.’ (GESTDEM 2021/5167)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
As regards the part of your request on ‘Ares Registration fiches and related
correspondence related to the letters to Commissioners Oettinger sent per registered mail
by Mrs. Roelie Post in August 2018’, this was registered under a separate reference,
GESTDEM 2021/5327 and attributed to the Directorate-general for DG Human
Resources and Security.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001, I regret to inform you that your application cannot be granted, as disclosure is
prevented by the exception to the right of access laid down in Article 4(1)b of this
Regulation, concerning the protection of personal data.
The reasons are set out below.
2.1. Protection of the 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)1, 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 data2 (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/EC3 (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
1
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.
2
OJ L 8, 12.1.2001, p. 1.
3
OJ L 295, 21.11.2018, p. 39.
2
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.4
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’.5
All the documents specifically requested by you relate to a certain person and the
information included in the requested documents is personal data, as this information
cannot be disassociated from the natural person it concerns.
These data are not in the public domain, and no consent has been given for their
disclosure. They are therefore covered by the exception provided for in Article 4(1)b of
Regulation (EC) No 1049/2001, and may not be rendered public.
In the Nowak judgment6, the Court of Justice has acknowledged that ‘[t]he use of the
expression “any information” in the definition of the concept of “personal data”, within
Article 2(a) of Directive 95/46, reflects the aim of the EU legislature to assign a wide
scope to that concept, which is not restricted to information that is sensitive or private,
but potentially encompasses all kinds of information, not only objective but also
subjective, in the form of opinions and assessments, provided that it “relates” to the data
subject’(emphasis added). As regards the latter condition, it is satisfied where the
information, by reason of its content, purpose or effect, is linked to a particular person.
The requested documents contain in addition personal data such as the names, functions,
contact details of persons (addresses, email addresses, phone numbers), including those
who do not form part of the senior management of the European Commission.
The names7 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
4
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
5
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.
6 Judgment of the Court of Justice of 20 December 2017,
Peter Nowak v
Data Protection Commissioner
(Request for a preliminary ruling from the Supreme Court), C-434/16, EU:C:2017:994, paragraphs 34-
35.
7
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
3
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.8 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 email of 14 September 2021 in relation to your request for access to documents,
you argue that your request concerns ‘whistle-blower protection’ and there would be a
‘personal interest of a civil servant’, ‘but also […] the public interest of this case’.
However, you do not identify this public interest nor do you put forward any arguments
to establish the necessity to have the data transmitted for a specific purpose in the public
interest. Therefore, your arguments are not sufficient to establish the necessity of the
transmission of the requested personal data.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the requested 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.
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.
8
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.
4
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that point (b) of Article 4(1) of Regulation (EC) No 1049/2001 does not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
However, for the reasons explained above, no partial access is possible without
undermining the interests described above.
5.
MEANS OF REDRESS
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels,
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana Verrier
Director
5
Electronically signed on 01/10/2021 14:18 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline