EUROPEAN COMMISSION
Brussels, 2.7.2019
C(2019) 5157 final
Ms Laura Kayali
POLITICO
Rue de la Loi 62
1040 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 2019/1357
Dear Ms Kayali,
I refer to your email of 3 May 2019, registered on the same day, 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’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 8 March 2019, addressed to the Directorate-General for
Employment, Social Affairs and Inclusion, you requested access to:
- ‘List of lobby meetings held with your DG, with Microsoft or its intermediaries.
The list should include: date, individuals attending and organisational affiliation,
the issues discussed;
- Minutes and other reports of these meetings;
- All correspondence including attachments (i.e. any emails, correspondence or
telephone call notes) between […] DG (including the Commissioner and the
Cabinet) and Microsoft or any intermediaries representing its interests;
- All documents prepared for the meetings and exchanged in the course of the
meetings between both parties’.
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
These documents should cover the period between November 2014 and March 2019.
Since you made 25 simultaneous requests for access to documents concerning several
Directorates-General of the European Commission and Amazon, Google, Microsoft or
Facebook, the Secretariat-General sent you a fair solution proposal on 26 March 2019.
On 2 April 2019, you replied to the proposal by agreeing to limit the intermediaries of
Amazon to law firms and/or consultants directly representing Amazon in meetings.
As a preliminary remark, I would like to clarify that the term ‘lobby meeting’ is defined
in Article 2 the Commission Decision of 25 November 2014 on the publication of
information on meetings held between Directors-General of the Commission and
organisations or self-employed individuals (2014/838/EU, Euratom)3 and Commission
Decision of 25 November 2014 on the publication of information on meetings held
between Members of the Commission and organisations or self-employed individuals
(2014/839/EU, Euratom)4.
By letter of 26 April 2019, the Directorate-General for Employment, Social Affairs and
Inclusion informed you that it was not able to identify any documents as falling within
the scope of your request.
In your confirmatory application, you request a review of this position. More specifically,
you do not believe that the answer you received covers your request. You take that view
in light of the meeting listed in the Transparency Register between Microsoft and a
member of the Cabinet of Commissioner Thyssen on 25 May 2018.
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.
As part of this review, the European Commission has carried out a renewed, thorough
search for possible documents falling under the scope of your request.
Based on this renewed search, the European Commission has identified the following
documents:
- Email of 16 May 2018 addressed to the Cabinet of Commissioner Thyssen and its
reply to Microsoft, reference Ares(2019)3454053 (hereafter ‘document 1’);
Following this review, I can inform you that wide partial access is granted to document 1,
subject only to the redaction of personal data, based on the exception of Article 4(1)(b) of
Regulation (EC) No 1049/2001 (protection of privacy and the integrity of the individual).
3 Official Journal L 343 of 28.11.2004, p. 19.
4 Official Journal L 343 of 28.11.2004, p. 22.
2
Concerning the remaining documents to which you refer in your confirmatory
application, I confirm that the Commission does not hold any other documents than the
ones identified. According to Article 2(3) of Regulation (EC) No 1049/2001, the right of
access applies only to existing documents in the possession of the institution.
2.1. 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’.
In its judgment in Case C-28/08 P
(Bavarian Lager)5, 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 data6
(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/EC7 (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’.8
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
5 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.
6 Official Journal L 8 of 12.1.2001, page 1.
7 Official Journal L 205 of 21.11.2018, p. 39.
8
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
3
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’.9
Document 1 contains personal data such as the names and initials of persons who do not
form part of the senior management of the European Commission as well as names,
email addresses and phone numbers of representatives of third parties.
The names10 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
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.11 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.
9 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.
10
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
11 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
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 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that 4(1)(b) 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.
For the reasons explained above, wider partial access is now granted to the requested
document without undermining the interests described above.
5.
MEANS OF REDRESS
Finally, I 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 Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
Enclosure: (1)
5
Document Outline