Document 4
Ref. Ares(2020)587318 - 30/01/2020
EUROPEAN COMMISSION
Brussels, 20.12.2018
C(2018) 9193 final
DECISION OF THE EUROPEAN 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 2018/5788
Dear
,
I refer to your email of 22 November 2018, registered on the same date, 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 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 5 November 2018, addressed to the Directorate-General for
Taxation and Customs Union, you requested access to ‘the position paper of the
European Commission on the Digital Services Tax dated to October 26 […]’.
The European Commission has identified the following document as falling under the
scope of your application:
Note to the attention of the Members of the Inter-institutional Relations Group
(
Groupe des Relations Interinstitutionnelles), dated 26 October 2018, reference
SI(2018) 571/2.
In its initial reply of 19 November 2018, the Directorate-General for Taxation and
Customs Union refused access to the above-mentioned document, based on the exception
in Article 4(3), first subparagraph, of Regulation 1049/2001 (protection of the decision-
making process).
1
Official Journal L 345 of 29.12.2001, page 94.
2
Official Journal L 145 of 31.5.2001, page 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In your confirmatory application, you request a review of this position.
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 concerned at the initial stage.
Following my review, I can inform you that partial access is granted to the requested
document. The redacted parts of the document fall under the exceptions protecting
privacy and the integrity of the individual (Article 4(1)(b) of Regulation 1049/2001) and
the decision-making process (Article 4(3), first subparagraph, of Regulation 1049/2001).
The reasons for these redactions are set out below.
2.1. Protection of 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 its judgment in Case C-28/08 P
(Bavarian Lager)3, the Court of Justice ruled that
when an application 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 data4
(‘Regulation 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation 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/EC5
(‘Regulation 2018/1725’).
However, the case law issued with regard to Regulation 45/2001 remains relevant for the
interpretation of Regulation 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
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
3 Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
(ECLI: EU:C:2010:378), paragraph 59.
4 Official Journal L 8 of 12 January 2001, page 1.
5 Official Journal L 205 of 21 November 2018, page 39.
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concerning the protection of personal data, and in particular with […] [the Data
Protection] Regulation’.6
Article 3(1) of Regulation 2018/1725 provides that
personal data ‘means any information
relating to an identified or identifiable natural person […]’.
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’.7
The document in question contains personal data such as the names, surnames and
contact details (telephone numbers) of staff members of the European Commission who
do not hold any senior management position.
The names8 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 2(a) of the
Data Protection Regulation.
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.
In Case C-615/13 P
(ClientEarth), the Court of Justice ruled that the institution does not
have to examine itself the existence of a need for transferring personal data.9 This is also
clear from Article 9(1)(b) of Regulation 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 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 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
6 Quoted above, paragraph 59.
7 Judgment of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and
Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01EU:C:2003:294,
paragraph 73.
8 Judgment in
Commission v The Bavarian Lager, cited above, EU:C:2010:378, paragraph 68.
9 Judgment of 16 July 2015 in Case C-615/13 P,
ClientEarth v European Food Safety Agency, (ECLI:
EU:C:2015:489), paragraph 47.
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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 of having 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, 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 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.
2.3 Protection of the decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that ‘[a]ccess to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
The document in question has been prepared by the services of the European
Commission in the context of the revision of the rules on the taxation of digital business
activities.
The decision-making process leading up to the revision is composed of two consecutive
stages that are concluded, respectively, by:
1) the adoption by the European Commission of the proposal for the legislative act
and the submission of the proposal to the legislator (the Council with consultation
of the European Parliament);
2) the interinstitutional decision-making process aiming at the actual adoption of the
legislative act by the Council, following the opinion of the European Parliament.
On 21 March 2018, the European Commission adopted a proposal for a Council
Directive on the common system of a digital services tax on revenues resulting from the
provision of certain digital services10, thus concluding the first stage of the process. The
decision-making process, however, cannot be considered to have been completed, insofar
as the European Commission is fully involved in the subsequent, inter-institutional stage
10 COM (2018)148 final.
4
of the process, which is still ongoing. This involvement encompasses explaining and
defending the proposal at working level at the Council (the Working Party on Tax
Questions and High Level Working Party) and in the relevant committees of the
European Parliament. The European Commission can also alter its proposal at any time
during the legislative procedure, as long as the Council has not acted (Article 293(2) of
the Treaty on Functioning of the EU).
Therefore, I consider that the decision-making prerogatives of the European Commission
have not been exhausted at this stage and that the decision-making process has not yet
been finalised.
The document concerned was prepared in the context of the meeting of the
Commission’s
Interinstitutional
Relations
Group
(
Groupe
de
Relations
Interinstitutionnelles) on 26 October 2018 and contains the summary of the proposal of
the European Commission for the Directive mentioned above, together with the
description of the state of play (at the time of preparation of the document) of the
legislative process within the Council.
In your confirmatory application, you refer to the judgment of the General Court in the
De Capitani case11 and underline that, in the light of that judgement, the risk of the
ongoing negotiations being undermined, through the disclosure of the document, is ‘[…]
no longer sufficient ground […] for refusal’.
Please note, however, that the case to which you refer relates to the possibility of
granting public access to ‘four-column’ tables that are prepared in the context of the
interinstitutional
trilogue meetings. In the view of the European Commission, the
document requested, which is an internal document prepared for the Interinstitutional
Relations Group (
Groupe des Relations Interinstitutionnelles)
cannot be compared to
‘four column’ documents, as it contains a different type of information.
Indeed, ‘four column documents’ do not contain detailed positions of particular Member
States concerning particular aspects of a proposal. They also do not include information
regarding various alternative policy options under discussion and, more importantly, they
do not contain the mandate given to the representatives of the European Commission in
order to reach an agreement with the other institutions. Consequently, the European
Commission considers that it is not possible to apply all the conclusions of the
De
Capitani case by direct analogy to the document requested in the case at hand.
Furthermore, with reference to relevant previous case law12, the General Court confirmed
in the
De Capitani case
that the risk of external pressure can constitute a legitimate
ground for restricting access to documents related to the decision-making process13.
11 Judgment of the General Court of 22 March 2018 in Case T-540/15,
De Capitani v Parliament,
(ECLI:EU:T:2018:167), paragraph 98.
12 Judgment of the General Court of 22 March 2018 in Case T-540/15,
De Capitani v Parliament,
(ECLI:EU:T:2018:167), paragraph 98.
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In the view of the European Commission, such a risk exists in the case at hand. Indeed,
the relevant undisclosed parts of the document include information regarding the
positions of the Members States represented in the Working Party on Tax Questions and
the High Level Working Group concerning various aspects of the proposal. They also
contain a description of some specific issues that are still the subject of the discussions
between the Member States and the European Commission. This includes policy options
taken into account and a detailed description of the position of particular Member States
and the European Commission thereon.
In this context, premature disclosure of these (policy) options and of Member States’
positions would seriously undermine the margin for manoeuvre of the European
Commission in exploring, in the framework of the ongoing decision-making process, all
possible (policy) options free from external pressure. As such, it would also seriously
undermine its capacity to propose and promote compromises between the Member States
and the legislator. The European Commission cannot disclose to the public its
negotiation positions. Such an approach would put the Commission in a weak position
vis-à-vis the Member States and the other EU institutions.
The fact that the issue under discussion (the taxation of the digital services) is highly
sensitive and attracts a lot of public attention, and that the undisclosed parts of the
document includes information concerning policy options that the European Commission
still uses in the ongoing exchanges with the Council, only reinforces this conclusion.
Based on the above, I conclude that the relevant undisclosed parts of the document
requested cannot be disclosed pursuant to Article 4(3), first subparagraph, of Regulation
1049/2001, as disclosure thereof would specifically and actually result in serious harm to
the ongoing decision-making process protected by that provision.
3.
PARTIAL ACCESS
Partial access is hereby granted to the document requested.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(3) 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 refer to any particular overriding public
interest that would warrant the public disclosure of the withheld parts of the document
requested.
13 Judgment of the General Court of 18 December 2008 in Case T-144/05
Muniz v Commission,
(ECLI:EU:T:2008:596), paragraph 86.
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Nor have I, based on my own analysis, been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the decision-making process in Article 4(3) of the said Regulation.
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
Enclosures: (1)
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