EUROPEAN COMMISSION
Brussels, 5.6.2019
C(2019) 4291 final
1080 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 under
Regulation (EC) No 1049/2001 - GESTDEM 2019/0978
Dear
,
I refer to your email of 1 April 2019, registered on 2 April 2016, 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 (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 19 February 2019, addressed to the Directorate-General for
Communication, you requested access to ‘all communications (including email, drafts,
notes and logs/notes of phone calls), by European Commission staff on February 14, 15,
16, 17 and 18, 2019 related to the blog post '
The Copyright Directive: how the mob was
told to save the dragon and slay the knight', which it posted on medium.com.’
The European Commission has identified the following document as falling under the
scope of your request:
Email exchanges in relation to the subject-matter ‘Myth of the Month:
Copyright’,
between
8
and
14
February
2019,
reference
Ares(2019)2295049 (hereafter 'requested document').
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In its initial reply of 1 April 2019, the Directorate-General for Communication partially
refused access to the requested document based on the exceptions of point (b) of Article
4(1) (protection of privacy and the integrity of the individual) of Regulation (EC)
No 1049/2001.
In your confirmatory application, you request a review of this position to the extent that
you request access to those sections of the redacted email addresses that follow the “@”
sign. In addition, you request a confirmation ‘that there were no e-mails or other written
communications sent by any commission services on the subject of [your] request in the
time-period covered by [your] request’.
2.
ASSESSMENT AND CONCLUSIONS 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.
Following this review, I can inform you that further partial access is granted to the
requested document by disclosing the parts of the email addresses you requested.
As regards the personal data in the requested document, I have to confirm the initial
decision of Directorate-General for Communication to refuse access, based on the
exception of point (b) of Article 4(1) (protection of privacy and the integrity of the
individual) of Regulation (EC) No 1049/2001, for the reasons 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 ‘[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 a request 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
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
3 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.
4 Official Journal L 8 of 12.1.2001, page 1.
2
Please note that, as from 11 December 2018, Regulation (EC) No 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 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 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’.6
Article 3(1) of Regulation (EU) 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 requested document contains personal data such as the names and email addresses of
persons who do not form part of the senior management of the European Commission.
However, from the domain part of the email addresses, in itself, the persons’ identity
cannot be deduced. Therefore, this part of the email addresses is now disclosed.
The names8 of the persons concerned as well as other data from which their identity can
be deduced (such as office or telephone numbers) undoubtedly constitute personal data in
the meaning of Article 3(1) of Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) 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) 2018/1725, can the
transmission of personal data occur.
5 Official Journal L 205 of 21.11.2018, p. 39.
6
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
7 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
8
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
3
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.9 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.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
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 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 confirmatory application, 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 subjects’ 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 (EC) No
1049/2001, access cannot be granted to the personal data included in the requested
document, 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.
2.2. The existence of further relevant documents
Concerning your request to receive a confirmation that there were no e-mails or other
written communications sent by any services on the subject, I inform you that the
European Commission has carried out a renewed, thorough search for any additional
documents relating to the article in question. Following this renewed search, I confirm
that the European Commission has not kept any additional document falling under the
defined scope of your application.
Earlier versions of the article in question, if any, which might have contained text
different from the final version, were either not retained or overwritten.
9 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
Therefore, earlier versions of the article have not been kept as they were short-lived
documents in the meaning of Article 4 of European Commission’s Provisions on
Document Management.10 As the Court of Justice confirmed in its case-law, Regulation
(EC) No 1049/2001 cannot oblige an institution to give access to a document that is no
longer in its possession.11
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(a) and 4(1)(b) of Regulation (EC) No 1049/2001 do not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
For the reasons explained above, wider partial access is now granted to the requested
document without undermining the interests described above.
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
Enclosure: 1
10 Annex to Commission Decision 2002/47/EC, ECSC, Euratom of 23 January 2002 amending its Rules
of Procedure, Official Journal L 21 of 24.1.2002, p. 23.
11 Judgment of the General Court of 26 April 2016,
Strack v Commission, T-221/08, EU:T:2016:242,
paragraph 66.
5