Ref. Ares(2019)2955901 - 03/05/2019
DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP
Strategic Planning and Delivery
By registered letter with
acknowledgment of receipt
Advance copy by email:
Dear Ms Rojas,
Your application for access to documents – Ref GestDem No 2019/2073
We refer to your e-mail dated 02/04/2019 in which you make a request for access to
documents, registered on 03/04/2019 under the above-mentioned reference number.
Your application concerns the following documents:
“All documents - including but not limited to minutes, notes, audio recordings, verbatim
reports, operational conclusions, e-mails, and presentations – produced, exchanged and
related to the following meetings between Alain Paul Lebeaupin, Apostolic Nuncio, Head
of the Mission of the Holy See to the European Union and at the time: […] Elżbieta
Bieńkowska, Internal Market, Industry, Entrepreneurship and SMEs […]”.
Having examined your request under the provision of Regulation (EC) No 1049/2001
regarding public access to documents, we have identified 1 document falling in the scope
of your request (see attached enclosures).
This document contains personal data, in particular the names of Commission staff
members, which have been withdrawn.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: BREY 08/098 ‐ Tel. direct line +32 229 60075
Please note in this respect that the names, signatures, functions, telephone numbers
and/or initials pertaining to staff members of an institution are to be considered personal
Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document has
to be refused if its disclosure would undermine the protection of privacy and the integrity
of the individual, in particular in accordance with European Union legislation regarding
the protection of personal data.
The applicable legislation in this field is 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/EC2 (‘Regulation 2018/1725’).
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data ‘means any
information relating to an identified or identifiable natural person […]’. The Court of
Justice has specified that any information, which by reason of its content, purpose or
effect, is linked to a particular person is to be considered as personal data3.
In its judgment in Case C-28/08 P (Bavarian Lager
)4, the Court of Justice ruled that
when a request is made for access to documents containing personal data, the Data
Protection Regulation becomes fully applicable5
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
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.
1 Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission,
paragraphs 43-44, ECLI:EU:T:2018:560.
2 Official Journal L 205 of 21.11.2018, p. 39.
3 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
4 Judgment of 29 June 2010 in Case C-28/08 P, European Commission v The Bavarian Lager Co. Ltd
EU:C:2010:378, paragraph 59.
5 Whereas this judgment specifically related to 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, the
principles set out therein are also applicable under the new data protection regime established by
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established 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 request, 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
subject’s legitimate interests might be prejudiced.
Notwithstanding the above, please note that there are reasons to assume that the
legitimate interests of the data subjects concerned would be prejudiced by 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
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 disclosure of the personal data concerned.
As to the hand-written signatures, which are biometric data, there is a risk that their
disclosure would prejudice the legitimate interests of the persons concerned.
In case you would disagree with the assessment that the redacted data are personal data
which can only be disclosed if such disclosure is legitimate under the applicable rules on
the protection of personal data, you are entitled, in accordance with Article 7(2) of
Regulation (EC) No 1049/2001, to submit 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
Unit C.1. ‘Transparency, Document Management and Access to Documents’
B-1049 Bruxelles, or by email to: email@example.com
Matthias SCHMIDT‐ GERDTS
Head of Unit
- 1 document partially disclosed
Electronically signed on 02/05/2019 16:02 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563