Ref. Ares(2020)1488156 - 11/03/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
Directorate D - Sustainable Development; Economic Partnership Agreements - African, Caribbean and
Pacific; Agri-food and Fisheries
Agriculture, Fisheries, Sanitary and Phytosanitary Market Access, Biotechnology
Brussels, 9 March 2020
TRADE.DGA2/BMU/lv (2020) 1130423
By registered letter with
acknowledgment of receipt
Mr Olivier Hoedeman
Corporate Europe Observatory
(CEO)
Rue d'Edimbourg 26
1050 Brussels
Advance copy by email:
ask+request-7509-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents - Ref GestDem 2019/7297
Dear Sir,
I refer to your e-mail dated 13 December 2019 in which you make a request for access to
documents, in accordance with Regulation (EC) No 1049/20011 (“Regulation
1049/2001”), registered on the same date and split among the following Directorates
General SANTE, GROW, AGRI, SG, TAXUD, TRADE, COMP and ECFIN. This
communication provides reply to the file 2019/7297 and concerns only DG TRADE.
1.
SCOPE OF YOUR REQUEST
You request access to the following documents:
- all reports (and other notes) from meetings between the European Commission and
representatives of the tobacco industry (producers, distributors, importers etc., as well
as organisations and individuals that are funded by and/or work to further the
interests of the tobacco industry), during 2019;
1
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents, OJ L 145,
31.5.2001, p. 43.
1
- all correspondence (including emails) between the European Commission and
representatives of the tobacco industry (producers, distributors, importers etc. as well
as organisations and individuals that are funded by and/or work to further the
interests of the tobacco industry), during 2019;
- a list of all the above-mentioned documents (including dates, names of
participants/senders/recipients
and
their
affiliation,
subject
of
meeting/correspondence).
You have asked us to exclude all documents that you have already received as a result of
your previous access-to-document request tabled on 11 December 2018 (GestDem
2018/6666).
We have identified
4 documents falling within the scope of your request. For ease of
reference, we enclose a list of these documents, with reference numbers, in Annex 1. For
each of them, the list provides a description and indicates whether parts are withheld and,
if so, under which ground pursuant to Regulation 1049/2001. Please note that documents
1 and 2 are sub-divided into different sections (a, b and c for item 1; a-d in case of item
2).
2.
ASSESSMENT AND CONCLUSION UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document, it
must assess, in each individual case, whether that document falls within the exceptions to
the right of public access to documents set out in Article 4 of Regulation 1049/2001. Such
assessment is carried out in a multi-step approach. First, the institution must satisfy itself
that the document relates to one of the exceptions, and if so, decide which parts of it are
covered by that exception. Second, it must examine whether disclosure of the parts of the
document in question poses a “
reasonably foreseeable and not purely hypothetical” risk of
undermining the protection of the interest covered by the exception. Third, if it takes the
view that disclosure would undermine the protection of any of the interests defined under
Articles 4.2 and 4.3 of Regulation 1049/2001, the institution is required “
to ascertain
whether there is any overriding public interest justifying disclosure”3.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest possible right of access to documents4,
“the exceptions to that right […] must be
interpreted and applied strictly”5.
2
Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
4
Regulation (EC) No 1049/2001, recital (4).
5
Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
2
Having examined the requested documents under the applicable legal framework,
full
access is granted to document 1.b, 1.c as well as to document 2c and 2d. In the case of
document 1.c, full release is granted as the document is publicly available online. The
documents 1a, 2a, 2b, 3 and 4 are partially release but only some personal data have been
redacted in these documents in accordance with Art. 4 (1)(b) of Regulation 1049/2001.
The reasons justifying the application of this exception are set out below.
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”.
The applicable legislation in this field is Regulation (EC) No 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/EC6 (‘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 data.7 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 data.8
In its judgment in Case C-28/08 P (
Bavarian Lager)9, the Court of Justice ruled that
when a request is made for access to documents containing personal data, the Data
Protection Regulation becomes fully applicable.10
Some part of documents 1 and 2 as well as documents 3 and 4 contain personal
information such as names, e-mail addresses or telephone numbers that allows the
identification of natural persons. In line with the Commission’s commitment to ensure
6
Official Journal L 205 of 21.11.2018, p. 39.
7
Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Novak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:T:2018:560.
8
Judgment of the General Court of 19 September 2018 in c
ase T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
9
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.
10 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
transparency and accountability, the names of the senior management of the Commission
(at Director level and above) are disclosed.
In principle, the names of organisations and companies as such do not constitute personal
data within the meaning of Article 2(a) of Regulation 45/2001. For this reason, the names
of organisations and companies are disclosed. In addition, transparency register numbers,
which do not allow the identification of an individual staff member of these companies,
are disclosed.
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 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 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.
***
4
You may re-use the Commission documents disclosed free of charge, for non-
commercial and commercial purposes provided that the source is acknowledged and that
you do not distort the original meaning or message of the documents. Please note that the
Commission does not assume liability stemming from the re-use.
***
In case you would disagree with the assessment provided in this reply, you are entitled, in
accordance with Article 7(2) of Regulation 1049/2001, 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 Secretary-General of the Commission at the following address:
European Commission
Secretary-General
Transparency, Document Management & Access to Documents unit SG-C-1
BERL 7/076
1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Flavio COTURNI
Enclosures:
List of documents & disclosed documents
5
Electronically signed on 09/03/2020 17:55 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
Document Outline