Ref. Ares(2019)4429872 - 10/07/2019
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR INTERNATIONAL COOPERATION AND DEVELOPMENT
Director-General
Brussels,
devco.b.1(2019)4751765
Mr Diego CAYOTA
Calle San Rufo 10
28011 Madrid
SPAIN
By registered letter with
acknowledgment of receipt
Advance copy by e-mail: ask+request-6865-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents –
Ref GestDem No 2019/2595
Dear Mr Cayota,
I refer to your request dated 30 April 2019 in which you ask for access to documents,
registered on 2 May 2019 under the abovementioned reference number. I also refer to the
e-mail of 22 May 2019 by which you were informed of the extension of the time limit to
handle your request by 15 working days.
You request access to “[all] the correspondence between Jan Figel and Commissioner
Neven Mimica (International Cooperation & Development) from 2015.” I consider your
request to cover documents held up to the date of your initial application, i.e. 30 April
2019.
Please note that due to the wide scope of your request, covering also areas falling under
the responsibility of other Services, part of your request has been attributed to the
Secretariat-General (Ref GestDem No 2019/2594). This reply relates only to the
documents held by the Directorate-General for International Cooperation and
Development (DG DEVCO). You have received the reply from the Secretariat-General
on 21 May 2019.1
Based on your application I have identified the documents listed in annex.
Having examined the documents requested under the provisions of Regulation (EC)
No 1049/2001 regarding public access to documents, I have come to the conclusion that
they may be fully or partially disclosed.
1 Ref Ares (2019)3330978 - 21/05/2019.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Documents (1.a), (1.b), (2), are fully disclosed. You may re-use the documents requested
free of charge for non-commercial and commercial purposes provided the source is
acknowledged, and you do not distort the original meaning or message of the documents.
The Commission does not assume liability stemming from the re-use.
Documents (3.a), (3.b), (4), (5.a), (5.b), (5.c), (6), (7.a), (7.b), (7.c) and (7.d) are partially
disclosed. Partial disclosure refers to the parts of the documents which have been redacted
as their disclosure is prevented by exceptions to the right of access pursuant to Article 4 of
Regulation (EC) No 1049/2001.
The detailed reasons for the redactions are set out below.
Ι. Protection of the public interest as regards international relations
Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 provides that “[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]”.
As far as the protection of international relations is concerned, EU Courts have
acknowledged that the institutions enjoy a wide discretion when considering whether
access to a document may undermine that public interest2.
Documents (3.b), (5.b), (7.b), and (7.c) are mission reports drawn out by the Special
Envoy for the promotion of freedom of religion or belief outside the European Union,
Ján Figeľ. To carry out the duties defined by his mandate, the Special Envoy notably
conducts dialogues with governmental and non-governmental actors, including religious
organisations, civil society, religious actors, and academia in various countries. At this
occasion, he meets with stakeholders who often operate in contexts marked by a wide
range of violations and are themselves at risk. It is essential to the fulfilment of the
Special Envoy’s role that his interlocutors may exchange information and share views in
an atmosphere of trust and confidentiality.
The abovementioned documents reflect the discussions between the Special Envoy and
religious communities and civil society on the situation of freedom of religion or belief in
certain geographical areas. Disclosure of this information would render the specific
concerns of these religious communities public and breach expectations of
confidentiality, would result in a less effective implementation of the Special Envoy’s
mandate, and would harm the external relations of the EU in the pursuit of the EU’s
policy objectives.
I therefore conclude that the documents (3.b), (5.b), (7.b), and (7.c) listed above can be
granted only partial access based on Article 4(1)(a) third indent (protection of
international relations) of Regulation (EC) No 1049/2001.
ΙΙ. Protection of privacy and the integrity of the individual
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.
2 Judgment of the Court of First Instance of 25 April 2007, WWF European Policy Programme v Council,
T-264/04, EU:T:2007:114, paragraph 40.
2
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
5/2001 and Decision No 1247/2002/EC3 (‘Regulation 2018/1725’).
Documents (3.a), (3.b), (4), (5.a), (5.b), (5.c), (6), (7.a), (7.b), (7.c) and (7.d) to which
you request access contain personal data, in particular names, (e-mail) addresses, phone
numbers, political opinions and religious beliefs of natural persons.
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 of the European Union 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
data.4
Please note in this respect that the names, functions, telephone numbers and/or initials
pertaining to staff members of an institution are to be considered personal data.5
In its judgment in Case C-28/08 P (Bavarian Lager)6, the Court of Justice of the
European Union ruled that when a request is made for access to documents containing
personal data, the Data Protection Regulation becomes fully applicable.7
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 occur.
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
3 Official Journal L 205 of 21.11.2018, p. 39.
4 Judgment of the Court of Justice of the European Union of 20 December 2017 in Cas
e C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994.
5 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.
6 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.
7 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
Regulation 2018/1725.
3
the 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 arguments to establish the necessity to have the
data transmitted for a specific purpose in the public interest. Therefore, the 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, 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 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 disclosure of the personal data concerned.
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make 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 address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels
or by e-ma
il to: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[e-signed]
Stefano MANSERVISI
4
Electronically signed on 09/07/2019 12:26 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563