EUROPEAN COMMISSION
Brussels, 25.8.2016
C(2016) 5552 final
Mr Arun Dohle
Viktoriastr. 46
D-52066 Aachen
Germany
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE 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 2016/3277
Dear Mr Dohle,
I refer to your letter of 19 July 2016, registered on 25 July 2016, 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 ('Regulation 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 12 June 2016, addressed to the Directorate-General for
Employment, Social Affairs and Inclusion (DG EMPL), you requested access to:
−
All correspondence, documents, training material including audiovisuals and list
of participants related to training provided to EU Staff by the European Expert
Group on Transition from Institutional to Community-based care (EEG) on
Deinstitutionalisation (years 2015 and 2016).
DG EMPL did not provide an initial reply to your request.
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail: xxxxxxxxxx@xx.xxxxxx.xx
Through your confirmatory application you contest the implicit refusal resulting from an
absence of an initial reply to your application.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General or service concerned at the initial stage.
Given the absence of an initial reply to your application, the Commission, at
confirmatory stage, conducted a search for the documents requested in your initial
application of 12 June 2016. The following documents are falling under the scope of your
request:
Training of 2 October 2015:
1. Invitation letter expert I (including two annexes), 28/09/2015 (Ref.
Ares(2015)3986817);
2. Invitation letter expert II, 28/09/2015 (Ref. Ares(2015)3986882);
3. PowerPoint presentation by the President of Eurochild and the Secretary
General of EASPD (Ref. Ares(2016)4358736 );
4. Conclusions of the training for Commission officials 02/10/2015 (Ref.
Ares(2016)4358691);
5. Participants list (Ref. Ares(2016)4358603);
Training of 23 October 2015:
6. Invitation letter experts (including one annex), 14/10/2015 (Ref.
Ares(2015)4279391);
7. PowerPoint presentation by the Commission (Ref. Ares(2016)4358530);
8. PowerPoint presentation by the President of EPSA (Ref. Ares
(2016)4357805);
9. PowerPoint presentation by ENIL (Ref. Ares(2016)4358441);
10. Conclusions of the training for Commission officials 23/10/2015 (Ref. Ares
(2016)4358298);
11. Participants list (Ref. Ares(2016)4358244);
2
Training of 10-11 May 2016:
12. Expert convocation for training on community-based care at the Commission
(including agenda in annex), 02/05/2016 (Ref. Ares (2016) 2078113);
13. Participants list for 10 May 2016 (Ref. Ares(2016)4358195);
14. Participants list for 11 May 2016(2016)4358095;
15. PowerPoint presentations (Ref. Ares(2016)4358028);
16. Report EEG trainings 2016 (Ref. Ares(2016)4357914).
I am pleased to inform you that full access is granted to documents nr. 3, 4, 8 and 10.
Wide partial access is granted to documents nr. 1, 2, 5, 6, 7, 9, 11, 12, 14, 15 and 16,
based on Article 4(1)(b) (protection of the privacy and the integrity of the individual) of
Regulation 1049/2001, for the reasons set out below.
Access is refused to document nr. 13, as granting partial access would be meaningless
following the redactions to be conducted based on Article 4(1)(b) (protection of the
privacy and the integrity of the individual) of Regulation 1049/2001, for the reasons set
out below.
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.
Documents nr. 1, 2, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 contain names, positions, e-mail
addresses, telephone numbers, offices numbers, signatures and photos of Commission
officials (not forming part of senior management) and/or of third-party representatives
and experts (not being their main representatives). These data constitute personal data
within the meaning of Article 2(a) of Regulation 45/20013, which defines personal data
as
any information relating to an identified or identifiable natural person […]
; an
identifiable person is one who can be identified, directly or indirectly, in particular by
reference to an identification number or to one or more factors specific to his or her
physical, physiological, mental, economic, cultural or social identity.
In consequence, the public disclosure of these data in the requested documents would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
3 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 data.
3
In accordance with the
Bavarian Lager ruling4, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
According to Article 8(b) of that Regulation, personal data shall only be transferred to
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced. Those two conditions are cumulative.5 Only if both conditions are fulfilled
and the processing is lawful in accordance with the requirements of Article 5 of
Regulation 45/2001, can the processing (transfer) of personal data occur.
I would also like to bring to your attention the recent judgment in the
ClientEarth case,
where the Court of Justice ruled that
whoever requests such a transfer must first establish
that it is necessary. If it is demonstrated to be necessary, it is then for the institution
concerned to determine that there is no reason to assume that that transfer might
prejudice the legitimate interests of the data subject. If there is no such reason, the
transfer requested must be made, whereas, if there is such a reason, the institution
concerned must weigh the various competing interests in order to decide on the request
for access.6 I refer also to the
Strack case, where the Court of Justice ruled that the
Institution does not have to examine by itself the existence of a need for transferring
personal data7.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the above-mentioned personal data. Therefore, I have to
conclude that the transfer of personal data through the (full) disclosure of the requested
documents cannot be considered as fulfilling the requirement of Regulation 45/2001.
Consequently, the use of the exception under Article 4(1)(b) of Regulation 1049/2001 is
justified, as there is no need to publicly disclose the personal data included therein and it
cannot be assumed that the legitimate rights of the data subjects concerned would not be
prejudiced by such disclosure.
Please note that Article 4(1)(b) of Regulation 1049/2001 does not include the possibility
for the exception defined therein to be set aside by an overriding public interest.
3.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested. However, for
the reasons explained above, no meaningful (further) partial access is possible without
undermining the interests described above.
Consequently, I have come to the conclusion that the (withheld parts of the) documents
requested are covered in their entirety by the invoked exceptions to the right of public
access.
4
Judgment in
Commission v Bavarian Lager, case C-28/08 P, EU:C:2010:378
.
5 Ibid., paragraphs 77 to 78.
6 Judgment in
ClientEarth and PAN Europe v EFSA, case C-615/13 P, EU:C:2015:489
, paragraph 47.
7 Judgment in
Strack v Commission, case C-127/13 P, EU:C:2014:2250, paragraph 106.
4
4.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
Enclosures:
− Documents nr. 1, 2, 5, 6, 7, 9, 11, 12, 14, 15 and 16 (including annexes where
applicable).
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Document Outline