EUROPEAN COMMISSION
Secretariat-General
The Secretary-General
Brussels, 4.2.2018
C(2018) 722 final
Mr Mathias Schindler
Bundestagsbüro Julia Reda, MdEP
Unter den Linden 50
11011 Berlin
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 2016/4441-Part II
Dear Mr Schindler,
I refer to your e-mail of 14 September 2016, registered on 15 September 2016, by 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 documents ("Regulation 1049/2001").
1.
SCOPE OF YOUR REQUEST
In your initial application of 1 August 2016 you requested access to:
[a]
ny document that relates to an ancillary copyright (Leistungsschutzrecht für
Presseverleger), both referring to existing or proposed laws in EU Member states as well
as any information relating to the introduction of such right into EU legislation. You specified that you were
especially but not exclusively looking for information in the
form of proposals, memos, studies, notes, meeting records, letters to Commissioner
Oettinger and Cabinet staff members dealing with EU copyright and the protection of
press publishers by application or amendment of EU copyright law.
1
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
In its initial reply of 28 September 2016, the Directorate-General for Communications
Networks, Content and Technology (DG CNECT, hereinafter) listed the documents
falling under the scope of your request in four Annexes. DG CNECT:
granted full access to documents contained in Annex 1 and 2 subject to protection
of personal data;
refused access to documents contained in Annex 4, based on Article 4(1)(b)
(protection of privacy and integrity of the individual), Article 4(2), first indent
(protection of commercial interests), and on Article 4(3) (protection of the
decision-making process) of Regulation 1049/2001;
informed you that Annex III contained documents and letters that originate from
third parties and that the third-party consultations, in accordance with Article 4(4)
of Regulation 1049/2001, were ongoing.
Through your confirmatory application you contest the absence of a reply within the
deadlines by DG CNECT and request a review of this position, according to which
access was
finally rejected.
Following your agreement to a fair solution, you received, on 16 February 2017, a first
confirmatory reply concerning the documents falling under Annexes 2 and 4 of the initial
reply. The present confirmatory decision covers the documents falling under Annex 3 of
the initial reply, i.e. documents and letters that originate from third parties. These are the
following 20 documents:
1. Letter from Asociacion Espanola de Editoriales de Publicaciones Periodicas
(AEEPP), 4/12/2015, (Ref. Ares(2015)5638085);
2. Letter from the Newspaper Association of America to President Juncker,
29/04/2016 (Ref. Ares (2016)2078724);
3. Letter from Börsenverein des Deutschen Buchhandels to Commissioner
Oettinger, 15/06/2016 (Ref. Ares(2016)2801095);
4. Letter from University of Cambridge, CIPIL and Cardiff University to President
Juncker, Vice-President Ansip, Commissioner Oettinger, 25/07/2016 (Ref.
Ares(2016)3906509);
5. EPC, Draft Position Paper: Presenting the Case for a Publishers' Exclusive Right,
31/08/2015 (Ref. Ares(2016)5575203);
6. KANTAR MEDIA, Media Monitoring and Copyright: The main models in
Europe, 30/11/2015 (Ref.Ares(2016)5575203);
7. VG Media, Presentation (Ppt) on the collecting society of private media
enterprise, 11/02/2016 (Ref. Ares(2016)5575203);
8. ENPA and EMMA, Position paper for the European Council, Press Publishers'
key priorities and concerns regarding the Digital Single Market Strategy,
22/02/2016, (Ref. Ares(2016)5668918);
9. ENPA and EMMA, response to the European Commission Green Paper,
Preparing for a Fully Converged Audiovisual World: Growth, Creation and
Values, 22/02/2016, (Ref. Ares(2016)5668918);
2
10. Updated Joint Response to Commissioner Oettinger on Publisher's Right
(EMMA), 09/03/2016 (Ref. Ares(2016)2875393);
11. CCIA, Study benefits online service to news publishers - methodology,
04/04/2016 (Ref. Ares(2016)5575203);
12. Letter from EMMA with Aggregated Data on publishers' right, 24/05/2016, (Ref.
Ares(2016)5575203);
13. STM, Position on the role of publishers in the copyright value chain and
recognizing publishers' related rights, 01/06/2016 (Ref. Ares(2016)5662823);
14. GOOGLE, Paper Ancillary Copyright in Germany, submitted in a meeting with
the Commission, 8/06/2016, (Ref. Ares(2016)5575203);
15. GOOGLE, Paper Digital News Initiative, submitted in a meeting with the
Commission, 8/06/2016, (Ref. Ares(2016)5575203);
16. Dr Richard Danbury, Is an EU publishers' right a good idea? - Final report on the
AHRC project: evaluating potential legal responses to threats to the production of
news in a digital era, CIPIL, 15/06/2016, (Ref. Ares(2016)5575203);
17. EURIMAG, A Neighbouring Right for Publishers is not Conform with
International
Legal
Obligations
and
EU
law,
15/06/2016,
(Ref.
Ares(2016)5575203);
18. GOOGLE, Paper Further input to response to the European Commission’s Public
consultation on the role of publishers in the copyright value chain and on the
'panorama exception', 15/06/2016, (Ref. Ares(2016)5575203);
19. SPQN, réforme européenne du droit d'auteur: les enjeux d'un "droit voisin" pour
les éditeurs de presse, 20/06/2016 (Ref. Ares(2016)2891812);
20. EPC, Annex: Methodology applied in the Belgian study 'Vers un modèle
économique durable pour les éditeurs belges de journaux et de magazines: aperçu
de l'importance de licences', published in February 2014, to estimate loss of
revenues, 15/07/2016, (Ref. Ares(2016)5575203)
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.
Concerning the documents contained in Annex 3 of the initial reply, having carried out a
detailed assessment of your request in light of the provisions of Regulation 1049/2001, I
am pleased to inform you that:
full access is granted to eight documents, i.e. documents 7, 11, 13, 14, 15, 16, 18
and 20;
wide partial access, subject only to the redaction of personal data, is granted to
ten documents, i.e. documents 1, 2, 3, 4, 5, 6, 8, 9, 10 and 17;
wide partial access is granted to documents 12 and 19, subject to the redaction of
personal data and of parts falling under Article 4(2), first indent (protection of
commercial interests) of Regulation 1049/2001.
3
Those parts of the documents which fall outside the scope of your request, i.e. parts of
documents 12, 17 and 19, have been redacted with a written indication
[out of scope] at
the beginning of the corresponding passage.
Please find a copy of the documents to which full and partial access has been granted
attached to the present decision. Please note that these documents were received by the
Commission from third parties. They are disclosed for information only and cannot be re-
used without the agreement of the originator, who holds a copyright on them. They do
not reflect the position of the Commission and cannot be quoted as such.
The reasons for the refusal of access to the withheld parts of the documents are set out
below.
2.1. Protection of commercial interests
Article 4(2), first indent of Regulation 1049/2001
provides that [t]
he institutions shall
refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property, […]
,
unless there is an overriding public interest in disclosure.
A limited part of document 19, i.e. certain parts of its last two pages, contain non-public
positions of SPQN, a French Press Publishers Association, regarding the publisher's right
issue, proposing specific provisions for the Commission's legislative proposal.
Knowledge of their detailed, non-public position on the publisher rights issue, including
specific legislative options, would allow for conclusions on strategic preferences and
choices of business models which, if made public, would undermine SPQN's and their
member companies' commercial interests in their relationship, inter alia, with business
partners, including online actors. Disclosure of this non-public position on the above
mentioned sensitive subject matter, at this stage, would undermine, in particular, their
negotiating position.
Indeed, in the present case of SPQN, French press publishers have negotiated and
reached a global agreement with online search engines/aggregators for the online
exploitation of their press publication. The disclosure of their position, including
strategic preferences, would jeopardise the application of the agreement and undermine
their negotiation position in possible future negotiations with them. Moreover, the
position of SPQN contained in the withheld parts has evolved since then and its
disclosure would risk creating confusion among its stakeholders and business partners, as
well as vis-à-vis the public authorities. It would also reveal information on SPQN's
negotiation strategy.
Based on the foregoing, I consider the information contained in the limited withheld parts
as being commercially sensitive. In consequence, there is a real and non-hypothetical risk
that public access to the above-mentioned information would undermine the commercial
interests of above mentioned parties.
4
Concerning document 12, one paragraph on page 21 (corresponding to page 19 of the
page numbering at the pages' bottom) has to be withheld as it reflects a non-public
position of the Polish press publishers on their advertising pricing structure. Its content is
of a strategic nature and, if disclosed, would undermine their negotiation position in
possible future negotiations on the conclusion of commercial agreements with search
engine companies or news aggregators. The express refusal of the third party from which
the document originates, to withhold that particular paragraph from within a document of
22 pages otherwise disclosed, reinforces this conclusion.
I conclude, therefore, that access to (very) limited parts of documents 12 and 19 must be
denied on the basis of the exception laid down in the first indent of Article 4(2)
(protection of commercial interests) of Regulation 1049/2001.
2.2. Protection of the privacy and the integrity of the individual
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].
In your confirmatory application you do not question the applicability of the above-
mentioned exception to the requested documents. Nevertheless, I would like to provide
additional explanations of how the disclosure of certain parts of the documents requested
would undermine the interests protected by this exception.
Documents 1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 17 and 19 contain names, email addresses, phone
numbers, office numbers, positions and handwritten signatures of Commission staff
members2 and third-party representatives. These 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 this data in the requested documents would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
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.
2 Not forming part of senior management.
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.
4
Judgment of the Court (Grand Chamber) of 29 June 2010 in case C-28/08 P,
European Commission v
the Bavarian Lager Co. Ltd. (ECLI:EU:C:2010:378).
5
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 fulfilment of both conditions
enables one to consider the processing (transfer) of personal data as compliant with the
requirement of lawfulness provided for in Article 5 of Regulation 45/2001.
I would also like to bring to your attention the recent judgment in the
ClientEarth case,
where the Court of Justice ruled that the Institution does not have to examine
ex officio the existence of a need for transferring personal data6. In the same ruling, the Court stated
that if the applicant has not established a need, the institution does not have to examine
the absence of prejudice to the person's legitimate interests7.
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 disclosure of the requested
documents cannot be considered as fulfilling the requirement of lawfulness provided for
in Article 5 of Regulation 45/2001. In consequence, 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 the exception of Article 4(1)(b) has an absolute character and does not
envisage the possibility to demonstrate the existence of an overriding public interest.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent 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 confirmatory application, you do not put forward any reasoning pointing to an
overriding public interest in disclosing the requested documents. Nor have I been able to
identify any elements capable of demonstrating the existence of any possible overriding
public interest in disclosing the refused elements that would outweigh the interests
protected by the first indent of Article 4(2) (protection of commercial interests) of
Regulation 1049/2001.
Furthermore, I assure you that the Commission interpreted and applied the exceptions of
Article 4 of Regulation 1049/2001 strictly, which results in granting full access to eight
documents and (wide) partial access to 12 documents.
5
Ibid, paragraphs 77-78.
6 Judgment of the Court of Justice of 16 July 2015 in case C-615/13 P,
ClientEarth v EFSA,
(ECLI:EU:C:2015:219), paragraph 47.
7 Ibid
, paragraphs 47-48.
6
In consequence, I consider that in this case there is no overriding public interest that
would outweigh the interests in safeguarding the protection of commercial interests,
based on Article 4(2), first indent of Regulation 1049/2001.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting wider partial access to documents 12 and 19. However, for the
reasons explained above, no meaningful wider partial access is possible without
undermining the interests described above.
Consequently, I have come to the conclusion that limited parts of documents 12 and 19
are covered by the invoked exception to the right of public access.
5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress available against this
decision. You may either bring proceedings before the General Court or file a complaint
with the European Ombudsman under the conditions specified respectively in 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
Enclosures (20).
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Document Outline