Ref. Ares(2019)3615421 - 05/06/2019
DIRECTORATE-GENERAL MIGRATION and HOME AFFAIRS
Directorate A: Strategy and General Affairs
Unit A.2: Legal Affairs
The Head of Unit
Ms Gisella A. Rojas
Your application for access to documents-ref. GestDem 2019/2075
Dear Ms Rojas,
We refer to your letter dated 02.04.2019 in which you make a request for access to documents,
registered on 04.04.2019 under the above-mentioned reference number.
You request access to “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 meeting between Alain Paul Lebeaupin, Apostolic
Nuncio, Head of the Mission of the Holy See to the European Union and at the time: Dimitris
Avramopoulos, Migration, Home Affairs and Citizenship, 29 January 2019
We have identified the following document:
The official letter to Commissioner Avramopoulos received from the Nonciature, dated
18 January 2019, with the official message from Pope Francis and its Annex -
Pursuant to Article 4(1)(b) of Regulation (EC) n°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
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 n°1247/2002/EC1
The document to which you request access contains personal data, in particular Mgr Alain Paul
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
1 Official Journal L 205 of 21.11.2018, p. 39.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
any information, which by reason of its content, purpose or effect, is linked to a particular person
is to be considered as personal data.2
In its judgment in Case C-28/08 P (Bavarian Lager
)3, the Court of Justice ruled that when a request
is made for access to documents containing personal data, the Data Protection Regulation becomes
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
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.
As to the signature which is biometric data, there is a risk that its disclosure would prejudice
the legitimate interests of the person concerned.
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 individual concerned would not be prejudiced by disclosure of the personal data concerned.
In case you would disagree with the assessment that the redacted data is 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) n°1049/2001,
to submit a confirmatory application requesting the Commission to review this position.
2 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, ECLI:EU:C:2017:994.
3 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.
4 Whereas this judgment specifically related to Regulation (EC) n°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
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:
Unit C.1. ‘Transparency, Document Management and Access to Documents’
or by email to: firstname.lastname@example.org
Electronically signed on 04/06/2019 17:23 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563