EUROPEAN COMMISSION
Brussels, 17.6.2019
C(2019) 4544 final
63526 Erlensee
Germany
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 2019/152
Dear
,
I refer to your e-mail of 21 February 2019, registered on 22 February 2019, 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 APPLICATION
In your initial application of 11 December 2018 addressed to the Directorate-General for
Research and Innovation you requested ‘full and uncensored access to all emails’
referred to in the reply of that Directorate-General to your previous initial application
Gestdem 2018/5387.
In that application, you requested access to ‘[r]ecords of any possible meetings or
communications between EU special envoy
and the scholarly publisher
Frontiers Media SA, in the years 2017 and 2018’. You underlined that you were
particularly interested in the contacts of
with three ‘Frontiers executives’
whose names you listed in your initial application Gestdem 2018/5387. With regard to
the email exchanges between the above-mentioned ‘Frontiers executives’ and
,
you clarified that ‘[you] understand the contents of
work emails, phone calls
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
http://ec.europa.eu/dgs/secretariat_general/
and meetings might be protected’ Consequently, ‘[you request access to] [j]ust dates and
names of correspondents’.
In its initial reply of 12 November 2018 to Gestdem 2018/5387, the Directorate-General
for Research and Innovation provided you with a list of
e-mail exchanges
with Frontiers representatives during 2018. The list contained the headings of e-mails,
which included details on the requested exchanges3.
On 14 November 2018 you submitted the confirmatory application in accordance with
Article 7(2) of Regulation (EC) No 1049/2001, in which you requested, among others,
access to the content of the emails included in the list provided by the Directorate-
General for Research and Innovation in the initial reply. The Secretariat-General of the
European Commission considered that this exceeds the scope of your initial application
Gestdem 2018/5387 and informed you that you were entitled to submit a new application
for access to the content of the above-mentioned e-mails.
On 11 December 2018, you submitted the new application, which was registered under
reference number Gestdem 2019/152 and attributed on 9 January 2019 to the European
Political Strategy Centre of the European Commission for handling and reply.
The European Commission identified the following documents as falling under the scope
of your application:
16 email exchanges between
and the representatives of Frontiers
Media, covering the period 26 March 2018 – 19 October 2018, numbered 1 – 8 and 11 –
184, reference: Ares(2019)1272493 (hereafter ‘documents requested’).
On 16 February 2019, the European Political Strategy Centre of the European
Commission replied to your initial application. It refused access to the documents
requested based on the exceptions provided for in Article 4(2) of Regulation (EC) No
1049/20015. In its assessment of the case, the European Political Strategy Centre of the
European Commission took into account the position of the originator of the documents,
which it consulted in line with the provisions of Article 4(4) of Regulation
(EC) No 1049/2001.
You submitted your confirmatory application on 21 February 2019, asking for the review
of that position.
3
The disclosed details included the name of the sender, the name of the main representative of
Frontiers, the generic e-mail address of Frontier, the domain of the e-mail addresses of non-senior
Frontier representatives, the name and the domain e-mail addresses of European Commission staff
members holding a senior management position, the domain of e-mail addresses of Commission
officials not holding any senior management position, the date and the time these exchanges took
place, and the subject of the exchange.
4
Exchanges under number 9 and 10 are between the representatives of Frontiers Media SA and third
parties and therefore they fall outside the scope of your application Gestdem 2019/152.
5
The European Political Strategy Centre did not specify which interest provided for in Article 4(2) of
Regulation (EC) No 1049/2001 warrants refusal of access to the documents concerned.
2
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.
The documents identified as falling under the scope of your application include email
messages originating from a third party.
Under the provisions of Article 4(4) of Regulation (EC) No 1049/2001 and with a view
to taking into account the arguments put forward in your confirmatory application,
a renewed consultation of the third party author was initiated by the Secretariat-General
on 12 March 2019 and 8 May 2019, respectively.
The originator of the documents concerned maintained its opposition to the disclosure of
the documents, based on the exception provided for in Article 4(1)(b) and Article 4(2),
first indent, of Regulation (EC) No 1049/2001 (protection of, respectively, privacy and
the integrity of individual and commercial interests of a natural or legal person).
Having carried out a detailed examination of the documents requested, taking into
account the result of the third party consultations at initial and confirmatory levels, I can
inform you that partial access is granted to the documents. The reasons given by
documents’ originator for its objection are indeed not capable of justifying the
application of the above-mentioned exceptions to the entirety of the documents.
Nonetheless, I consider that the argumentation provided does apply to the withheld parts
of the documents, which were redacted based on the above-mentioned exceptions
provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001 and Article 4(2), first
indent, of that regulation.
The detailed reasons are set out below.
As mentioned in part 1 of the decision, the relevant parts of the above-mentioned
documents include the exchanges between the representatives of Frontiers Media SA and
third parties. They do not fall within the scope of your application Gestdem 2019/152
and were redacted as such.
Please note, however, that the actual transmission of the documents is subject to the
absence of a request by the third party originator for interim measures, as it will be
explained below in paragraph 2.3.
You may reuse the European Commission documents requested free of charge for non-
commercial and commercial purposes provided that the source is acknowledged, that you
do not distort the original meaning or message of the document/documents. Please note
that the Commission does not assume liability stemming from the reuse.
Please also note that the documents requested include the email messages originating
from Frontiers Media SA. They are disclosed for information only and their original
3
meaning or message should not be distorted. Please note that the Commission does not
assume liability stemming from the reuse.
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),6 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 data7
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by Regulation (EU) 2018/17258.
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
The 16 email exchanges in question are email messages sent or received by
and the representatives of Frontiers Media SA from their individual email
addresses. Consequently, their contents is associated to and linked with the concrete
individuals who the authors of the relevant email messages.
As mentioned in part 1 of this decision, on 12 November 2018 the Directorate-General
for Research and Innovation provided you the list containing information on exchanges
between
and Frontiers Media SA. Therefore it would be possible to identify the
authors of the given email exchange, by comparing the list provided on 12 November
2018 and the document released in this decision. Those specific circumstances have been
taken into account in processing your request for access to documents.
In particular, a certain number of information contained in those 16 email exchanges , in
the present circumstances, allow identifying the data subject concerned and consequently
6 Judgment of the Court of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, paragraph 59 (hereafter ‘
Bavarian Lager’).
7 Official Journal L 8 of 12.1.2001, p. 1.
8 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. Official Journal L 205 of
21.11.2018, p. 39.
4
constitute personal data within the meaning of Article 3(1) of Regulation
(EU) 2018/1725 mentioned above.
Indeed, in all emails exchanges, except for the exchange marked as ‘15’, the heading of
the exchange constitutes personal data (including the name, surname, email address of
the sender, recipient, as well as the date and subject of the of the email) since this
information can be compared with the list of emails provided following your former
application.
With regard to the actual content of the 16 email exchanges in question, the following
information constitute personal data: the exchanges marked as ‘12’, ‘13’ and ‘14’ contain
comments containing personal appreciations of the identified individual (
). In the exchanges marked as ‘4’, ‘5’, ‘7’, ‘8’, ‘16’, ‘17’ and ‘18’, the redacted
parts of the document requested include information about participation of the
and the representatives of Frontiers Media SA in various public events. This
includes the name of the event, its exact dates and venue that, in the present
circumstances, contain information which enable to identify the data subject.
The relevant undisclosed parts of the document requested includes also the names,
surnames, contact details (email addresses and telephone numbers), as well as the names,
surnames and contact details (email and office addresses, telephone numbers) of the staff
members of the European Commission not holding any senior management position.
The above-mentioned information clearly constitutes personal data in the sense of
Article 3(1) of Regulation (EU) 2018/1725 and in the sense of the
Bavarian Lager judgment9.
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.
Furthermore, 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.10
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.
9
Bavarian Lager, cited above, paragraph 70.
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.
5
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 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
subject’s legitimate interests might be prejudiced.
In this context, I would like to point out that the right to the protection of the privacy is
recognised as one of the fundamental rights in the Charter of Fundamental Rights, as is
the transparency of the processes within the Institutions of the EU. The legislator has not
given any of these two rights primacy over each other, as confirmed by the
Bavarian
Lager case-law referred to above11.
Based on the information at my disposal, I note that there is a risk that the disclosure of
the information appearing in the requested document, such as information relating to certain
aspects of their professional activities (agendas and travelling arrangements) or
comments of personal nature would prejudice the legitimate interests of the data subjects
concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation
(EC) No 1049/2001 and Article 9(1)(b) of Regulation (EU) 2018/1725, 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.
With regard to the information that does not fall under the definition of personal data,
such as the relevant redacted parts of the exchanges marked as ‘4’, ‘5’, ‘7’, ‘8’ and ‘15’,
containing the personal comments of the representatives of Frontiers Media SA, I
consider that their public disclosure would undermine the privacy of the persons
concerned. Indeed, it is still possible to associate the above-mentioned comments of
strictly personal character, with one of only three individuals, given that the scope of
your application for access to documents, encompasses the exchanges between
and three, named ‘Frontiers executives’. Consequently, the public disclosure of
the personal comments would have impact on the privacy of the three individuals in
question and therefore Article 4(1)(b) of Regulation (EC) No 1049/2001 applies thereto.
11
Bavarian Lager, cited above, paragraph 56.
6
2.2 Protection of commercial interests of a natural or legal person
Article 4(2), first indent, of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of commercial interests of a natural or legal person, including intellectual
property, […] unless there is an overriding public interest in disclosure’.
The relevant parts of the requested documents include the detailed position of Frontiers
Media SA on various policy options and its assessment of their impact on its business
model.
The above-mentioned information has to be considered as commercially sensitive
business information of the economic operator in question (Frontiers Media SA).
Its disclosure, through the public release of the relevant parts of the requested documents
under Regulation (EC) No 1049/2001, would clearly undermine the commercial interests
of the above-mentioned economic operator. The latter provided the commercially
sensitive information contained in the documents under the legitimate expectation that it
would not be publically released.
In the light of the above, it is evident that there is a reasonably foreseeable risk that
public disclosure of the relevant undisclosed parts of 16 email exchanges concerned and
in particular, the parts containing commercially sensitive business information would
harm the interest protected by Article 4(2), first indent of Regulation (EC) No 1049/2001.
2.3
Disclosure against the explicit opinion of the author
According to Article 5(5) and (6) of the detailed rules of application of Regulation
(EC) No 1049/200112, ‘[t]he third-party author consulted shall have a deadline for reply
which shall be no shorter than five working days but must enable the Commission to
abide by its own deadlines for reply. In the absence of an answer within the prescribed
period, or if the third party is untraceable or not identifiable, the Commission shall decide
in accordance with the rules on exceptions in Article 4 of Regulation (EC) No
1049/2001, taking into account the legitimate interests of the third party on the basis of
the information at its disposal. If the Commission intends to give access to a document
against the explicit opinion of the author, it shall inform the author of its intention to
disclose the document after a ten-working day period and shall draw his attention to the
remedies available to him to oppose disclosure.’
Since the decision to grant partial access is taken against the objection of the third-
party author expressed at initial and confirmatory levels, the European
Commission will inform Frontiers Media SA of its decision to give partial access to
the documents requested. The European Commission will not grant such disclosure
until a period of ten working days has elapsed from the formal notification of this
12 Commission Decision of 5 December 2001 amending its rules of procedure (notified under document
number C(2001) 3714), Official Journal L 345 of 29.12.2001, p. 94.
7
decision to the third party author, in accordance with the provisions mentioned
above.
This time period will allow the third party author to inform the European Commission
whether it intends to object to the disclosure using the remedies available to it, i.e. an
application for annulment and an application for interim measures before the General
Court. Once this period has elapsed, and if the third-party author has not signalled its
intention to avail itself of the remedies at its disposal, the European Commission will
forward the redacted documents to you.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
The exceptions laid down in Article 4(2) of Regulation (EC) No 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 argue that ‘[…] EU scientists and general public
have the right to know who and why influences European research policies […].
Please note however that, even if members of the public have indeed expressed an
interest in the subject matter covered by the documents requested and have pointed to a
general need for public transparency related thereto, the Court of Justice, in the
Strack
case, ruled that in order to establish the existence of an overriding public interest in
transparency, it is not sufficient to merely rely on that principle and its importance13.
Instead, an applicant has to show why in the specific situation the principle of
transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying non-disclosure14.
In your confirmatory application, you do not refer to any specific overriding public
interest that would warrant public disclosure of the specific type of information included
in the document in question.
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 commercial inserts of the economic operator concerned, grounded in Article 4(2),
first indent, of Regulation (EC) No 1049/2001.
13 Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2104:2250), paragraph 128.
14 Ibid, paragraph 129.
8
4.
PARTIAL ACCESS
Partial access is hereby granted to the document requested.
5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the 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)
9