EUROPEAN COMMISSION
Brussels, 26.1.2021
C(2021) 537 final
Ms Vicky Cann
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Brussels
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory application for access to documents – GESTDEM
2020/4017
Dear Ms Cann,
I am writing in reference to your email of 30 September 2020, registered on 8 October 2020,
by which you lodge 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 (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
Through your initial application of 2 July 2020, you requested access to, I quote, ‘[…] a list
of all lobby meetings (including phone calls, conference calls etc) since 1 January 2019
where the EU’s Digital Services Tax proposal, or the [Organisation for Economic Co-
operation and Development]’s negotiations on a similar tax, were discussed. The list should
include the names of the individuals and organisations participating; the date; the agenda;
and any minutes / notes produced’. In your initial application, you explained that it covers
also, I quote, ‘[…] any emails or other correspondence related to proposals for a Digital
Services Tax received or sent since 1 January 2019’.
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Your application was addressed to the Directorate-General for Communications Networks,
Content and Technology. The above-mentioned application was one of the series of similar
initial applications addressed to other Directorates-General and services of the European
Commission3, which provided you the separate replies.
With regard to application Gestdem 2020/4017, the Directorate-General for
Communications Networks, Content and Technology provided its initial reply on 25
September 2020, in which it informed you that it does not hold any documents that would
correspond to the description given in your application.
Indeed, the Directorate-General for Communications Networks, Content and Technology
explained that its initial reply, I quote, ‘[…] concerns only the area for which [the
Directorate-General for Communications Networks, Content and Technology] was lead
service within the [European] Commission’.
You asked for the review of that position by submitting the confirmatory application on 30
September 2020. In the confirmatory application, you underlined that, I quote, ‘[…] the
scope of [your] initial query was about any lobby contacts that [the Directorate-General for
Communications Networks, Content and Technology] had had regarding the Digital
Services Tax. The remit of [the Directorate-General for Communications Networks, Content
and Technology] is not relevant and [you are] concerned that [the] interpretation of [your]
request could end up excluding some documents relevant to [your] request’.
Consequently, you requested that European Commission could, I quote ‘[…] clarify whether
there are some documents which indicate lobbying of [the Directorate-General for
Communications Networks, Content and Technology] on the digital services tax but which
have been excluded from the scope of [the initial] answer?’.
2.
ASSESSMENT AND CONCLUSION UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant to
Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
The Secretariat-General together with the Directorate-General for Communications
Networks, Content and Technology carried out the renewed, thorough search for the
documents falling under the scope of your initial application 2020/4017. Following this
search, it identified the following (new) documents:
- email dated 4 December 2019, from Interactive Advertising Bureau to the European
Commission, reference: Ares(2019)7460015 (hereafter: document 1),
- reply of the European Commission to the above-mentioned email, dated 20
December 2019, reference: Ares(2019)7856274. (hereafter: document 2).
3 Directorate-General for Taxation and Customs Union (Gestdem 2020/4014), Secretariat-General of the
European Commission (Gestdem 2020/4018), Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs (Gestdem 2020/4021), Directorate-General for Budget (Gestdem 2020/4027),
Directorate-General for Economic and Financial Affairs (Gestdem 2020/4187) and the Directorate-
General for Competition (Gestdem 2020/4272).
2
Having examined the above-mentioned documents, I inform you that (wide) partial access is
granted thereto. The limited undisclosed parts of the documents contain personal data,
redacted based on the exception in Article 4(1)(b) of Regulation (EC) No 1049/2001
(protection of privacy and the integrity of the individual). In the assessment, I took into
account the position of the third party originator, consulted in line with Article 4(4) of the
said regulation.
The detailed reasons are set out below.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘the 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)4, 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 data5 (‘Regulation (EC) No
45/2001’) becomes fully applicable.
As from 11 December 2018, Regulation (EC) No 45/2001 has been repealed by Regulation
(EU) 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 (EU)
No 2018/1725’).
However, the case-law issued with regard to Regulation (EC) No 45/2001 remains relevant
for the interpretation of Regulation (EU) No 2018/1725.
In the above-mentioned judgment the Court stated that Article 4(1)(b) of Regulation (EC)
No 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
concerning the protection of personal data, and in particular with […] [the Data Protection]
Regulation’.7
Article 3(1) of Regulation (EU) No 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
4
Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd
(hereafter referred to as
‘European Commission v
The Bavarian Lager judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
5
Official Journal L 8 of 12.1.2001, p. 1.
6
Official Journal L 205 of 21.11.2018, p. 39.
7
European Commission v
The Bavarian Lager judgment quoted above, paragraph 59.
3
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’.8
The relevant undisclosed parts of the documents concerned contain the name and function
of the staff member of the European Commission, not holding any senior management
positions. They also contain the name and contact details (email address and telephone
number) pertaining to the representative of third party (Interactive Advertising Bureau).
The names9 of the persons concerned as well as other data from which their identity can be
deduced constitute personal data in the meaning of Article 2(a) of Regulation (EU) No
2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) No 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 (EU) No 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 of its own motion the existence of a need for transferring personal data.10
This is also clear from Article 9(1)(b) of Regulation (EU) No 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 (EU) No 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
proportionality of the transmission of the personal data for that specific purpose after having
demonstrably weighted the various competing interests.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the above-mentioned personal data.
8
Judgment of the Court of Justice of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
9
European Commission v The Bavarian Lager judgment quoted above, paragraph 68.
10 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v
European Food Safety Agency,
C-615/13 P,
EU:C:2015:489, paragraph 47.
4
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in the document concerned has not been established. 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 disclosure of the personal data reflected in
the document, 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation (EC) No 1049/2001 does not need
to be balanced against the overriding public interest.
4.
PARTIAL ACCESS
(Wide) partial access is hereby granted to the documents concerned.
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
Ilze JUHANSONE
Secretary-General
5
Document Outline