Ref. Ares(2020)1951767 - 06/04/2020
Acting Director
Brussels, 06/04/2020
EPSO/05/FK/mr Ares(2020)s. 2139982
Ms Zhivka ANGELOVA
Osogovo 21
Plovdiv 4000
BULGARIA
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your request for access to documents of 25/02/2020
Ref. GestDem 2020/1285
Dear Ms Angelova,
I refer to your message whereby you lodged a request for access to documents pursuant
to Regulation (EC) No 1049/2001
. Your message was registered on 25 February 2020
under the above reference number.
Scope of your request
In your message, you request access to the following documents:
“documents which contain the following information: activities of Cvetelina Cholakova
within Selection Board during Open Competition EPSO/AD/323/16 reported in the cases
T-622/18, T-623/18”. In reply to a letter of request for clarifications, on 11 March 2020 you provided EPSO
with the clarification that
“activities reported in the cases T-622/18, T-623/18” refer to
the job-specific interview of the two candidates, mentioned in the aforementioned court
cases, conducted by Cvetelina Cholakova, Selection Board member in Open Competition
EPSO/AD/323/16.
Identification of documents
Following your request and in light of the clarifications received, I have been able to
identify the following documents as falling within the scope of your request:
Documents
used
by the assessor, Mrs Cvetelina Cholakova, for the Interview in
the field of those specific candidates in Open Competition EPSO/AD/323/16.
The identified documents contain the candidate’s name and candidate number, the name
of the assessor, the questions asked, the anchors used for the marking, the comments of
the assessor and the marks attributed to each question.
I furthermore confirm that EPSO does not know of the existence of any other documents
drafted or received by EPSO which would fall within the scope of your request for
access, other than the ones specified above.
Analysis of your request
Regulation (EC) No 1049/2001 provides that any citizen of the Union, and any natural or
legal person residing or having its registered office in a Member State, has a right of
access to documents of the institutions, subject to the principles, conditions, and limits
defined in the Regulation.
According to Article 2(3), the Regulation "
shall apply to all documents held by an
institution, that is to say, documents drawn up or received by it and in its possession".
According to Article 3 a), a document is "
any content whatever its medium (written on
paper or stored in electronic form or as a sound, visual or audio-visual recording)
concerning a matter relating to the policies, activities and decisions falling within the
institution's sphere of responsibility".
*
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents, I regret to inform you that EPSO cannot
give you access to the requested documents as they are fully covered by the exception laid
down in Article 4(1)(b) of Regulation (EC) No 1049/2001
(Protection of privacy and the
integrity of the individual) and also
by the exception of Article 4(3), first subparagraph of
Regulation (EC) No 1049/2001 (
Protection of decision making process).
i) Protection of privacy and the integrity of the individual Article 4(1)(b) of Regulation (EC) No 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’.
As already mentioned above, the identified documents contain the names, surnames,
candidate numbers and marks of the candidates, who took the job-specific interview at
the Assessment Centre stage in Open Competition EPSO/AD/323/16. They also contain
the handwritten comments and signature of the assessor.
This information undoubtedly constitutes personal data within the meaning of Article 3,
sub (a), of Regulation (EU) 2018/1725,
"‘personal data’ means any information relating
to an identified or identifiable natural (data subject); an identifiable person is one who
can be identified, directly or indirectly, in particular by reference to an identifier such as
a name, an identification number, location data, an online identifier or to one or more
factors specific to the physical, physiological, genetic, mental, economic, cultural or
social identity of that natural person".
Public disclosure of these personal data would consequently constitute processing
(transfer) of personal data within the meaning of Article 9(1) (b) of Regulation (EU
2018/1725.
2
Pursuant to this provision
, ‘personal data shall only be transmitted to recipients
established in the Union other than Union institutions and bodies if […] the 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 (EU) 2018/1725, can the
transmission of personal data occur.
In the
ClientEarth1 judgment, the Court of Justice ruled that the institution does not have
to examine by itself the existence of a need for transferring personal data. This is also
clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient. I also
refer to the
Strack case, where the Court of Justice ruled that the Institution does not have
to examine by itself the existence of a need for transferring personal data2.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, EPSO has to examine the
further conditions for the 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 EPSO
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 have not established the necessity of disclosing the personal data
included in the requested documents.
Therefore, I have to conclude that the transfer of personal data through the public
disclosure of the personal data included in the above-mentioned Documents cannot be
considered as fulfilling the requirements of Regulation (EU) 2018/1725. Consequently, I
conclude that pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access
cannot be granted to the personal data included in the requested documents.
ii) Protection of decision making process EPSO considers the identified Documents to be fully covered by the exception of Article
4(3), first subparagraph of Regulation (EC) No 1049/2001 (Protection of decision
making process).
1 Judgment of 16 July 2015, ClientEarth v European Food Safety Agency, C-615/13 P, EU:C:2015:489,
paragraph 47.
2
Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 106.
3
More specifically, Article 4(3), first subparagraph of Regulation 1049/2001 provide 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.
As already mentioned above, these documents contain also the questions asked, the
anchors used for the marking, the comments of the assessor and the individual marks
attributed to the candidates by the assessor.
I consider that their disclosure would undoubtedly and severely undermine the decision-
making process of selection boards in open competitions concerning ongoing and future
competitions. In addition, such a disclosure would be a breach of the protection of the
secrecy of selection board proceedings required by the Staff Regulations. Article 6 of
Annex III states that
"[t]he proceedings of the Selection Board shall be secret". The case-law of the EU Courts has confirmed that
"… that secrecy was introduced with a
view to guaranteeing the independence of Selection Boards and the objectivity of their
proceedings, by protecting them from all external interference and pressures whether
these come from the Community administration itself or the candidates concerned or
third parties." and that
"observance of that secrecy runs counter to divulging the
attitudes adopted by individual members of Selection Boards and also to revealing all the
factors relating to individual or comparative assessment of candidates" (T-371/03,
Le
Voci v Council, paragraph 123 with further references).
In the
Le Voci judgment, the General Court held that
the applicant cannot validly rely on
the concept of transparency in order to call into question the applicability of Article 6 of
Annex III to the Staff Regulations3. The General Court further confirmed that […]
secrecy was introduced with a view to guaranteeing the independence of the Selection
Boards and the objectivity of their proceedings, by protecting them from all external
interference and pressures whether these come from the Community administration itself
or the candidates concerned or third parties and
observance of that secrecy runs counter
to divulging the attitudes adopted by individual member of Selection Boards and also to
revealing all the factors relating to individual or comparative assessment of candidates4.
In its Judgment in the
Alexandrou case, the General Court reaffirmed that the general
principle of transparency resulting from article 15(3) of the TFEU and article 42 of the
Charter of Fundamental Rights could not be validly invoked in order to justify a
circumvention of Article 6 of Annex III of the Staff Regulations5. Indeed, neither
Regulation 1049/2001 nor the Staff Regulations contain any provision expressly giving
one regulation primacy over the other. Therefore, it is appropriate to ensure that each of
those Regulations is applied in a manner which is compatible with the other, and which
enables the consistent application of each of them6.
3 Case T-371/03, ECLI:EU:T:2005:290, paragraph 124.
4 Ibid, paragraph 123.
5 Judgment of 12 November 2015 in case T-515/14 and T-516/14, ECLI:EU:T:2015:844, paragraph 71.
6
Ibid, paragraph 69.
4
The confidentiality of the selection board proceedings is inextricably linked to the
protection of the internal decision-making process of the selection boards within the
meaning of Article 4(3) of Regulation 1049/2001. Indeed, disclosure of the marking
details would seriously undermine the decision-making process even after the decision
has been taken, since it would expose Selection Board members, markers, and EPSO
staff to the risk of undue external pressure.
Moreover, disclosure of the correction methods and scoring criteria relevant to test
material or methodology intended for repeated use (such as the Assessment Centre tests)
would provide a competitive advantage to candidates who could obtain access to them,
thereby seriously undermining the equal treatment of candidates and compromising the
fairness of future selection procedures.
With regard to the questions asked, they are also covered by the protection of decision-
making process. As they may be used in future competitions, they cannot be disclosed to
candidates or the public.
Last but not least, it should be pointed out that such a disclosure would deprive the tests
used in ongoing and future selection procedures of any efficiency, as it would mean that
the methodology of the test used for staff selection would be made public. This would
render all budget, human and logistic resources dedicated to staff selection pointless and
ultimately, would mean that it would be impossible for EPSO to carry out its duties.
Therefore, disclosure is refused in order to safeguard the methodology and contents of
tests to be used in future selection procedures and to prevent any external interference
and pressure to be exercised on Selection Board members, markers, or EPSO staff.
*
The exception laid down in Article 4(3) of Regulation (EC) No 1049/2001 must be
waived if there is an overriding public interest in disclosure. Such an interest must,
firstly, be in the public interest and secondly, outweigh the harm caused by disclosure.
You do not however put forward any reasons pointing to an overriding public interest in
disclosing the documents requested. Nor have I been able to identify any elements which
indicate the existence of an overriding public interest in the sense of the Regulation (EC)
No 1049/2001 which would justify disregarding any harm caused to the institutions'
decision-making process in the area of selection and recruitment by disclosing the
document requested, and which would outweigh the interests in protecting the secrecy of
testing methodology and the selection boards' deliberations in general.
Consequently, I hereby inform you that said documents are covered by the exception
provided for in Article 4(3) of Regulation (EC) No 1049/2001, and that access thereto
must be refused on that basis.
*
In light of the above, EPSO cannot give you access
to the Documents
identified
above.
*
5
In accordance with Regulation (EC) No 1049/2001, should you wish this decision to be
reviewed, you may make a request in writing to the Secretary-General of the
Commission at the address below, confirming your initial request. You have 15 days,
following receipt of this letter, in which to do so, after which your initial request will be
deemed to have been withdrawn.
The Secretary-General will inform you of the result of this review within 15 working
days from the registration of your request, either by granting you access to the documents
in respect of which access has been refused by the present decision, or by confirming the
refusal. In the latter case, you will be informed of how you can take further action.
All correspondence should be sent to the following address:
The Secretary-General
xxxxxxxxxx@xx.xxxxxx.xx
European Commission
B-1049 Brussels
Yours sincerely,
Sari LEHKONEN
6
Electronically signed on 06/04/2020 08:04 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563