EUROPEAN COMMISSION
Brussels,1.2.2021
C(2021) 733 final
Ms Belén Balanyá
Corporate Europe Observatory
Rue d'Edimbourg 26
Bruxelles 1050
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 2020/6446
Dear Ms Balanyá,
I refer to your letter of 11 December 2020, registered on 21 December 2020, in which
you submitted 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 26 October 2020, addressed to the Directorate-General for
Human Resources and Security, you requested access to documents that, I quote, ‘relate
to any article 16, article 12B and article 40 (staff regulations) applications made by
Klaus-Dieter Borchardt, former deputy Director General of DG Energy. In particular, I
request a note of all Mr. Borchardt's job titles at the Commission including dates held;
copies of any application(s) that he has made under article 12b, 16 and 40 to undertake a
new professional activity; and all documents (correspondence, emails, meeting notes etc)
related to the authorisation of the new role or roles’.
The European Commission has identified the following documents as falling within the
scope of your request:
1 OJ L 345, 29.12.2001, p. 94.
2 OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- Document extracted from the relevant staff database (‘SYSPER’) listing the job
titles of Mr Borchardt, registered under reference Ares(2021)131750 (hereafter
‘document 1’);
- Declaration of the intention to engage in an occupational activity submitted by Mr
Borchardt on 28 August 2020 in the framework of Article 16 of the Staff
Regulations, registered under reference Ares(2020)4476057 (hereafter ‘document
2’);
- The decision of the Appointing Authority of 7 October 2020 concerning
declaration of the intention to engage in an occupational activity submitted by Mr
Borchardt, registered under reference Ares(2020)5302556 (hereafter ‘document
3’);
- Opinion of the Directorate-General for Energy and Cabinet Breton concerning the
declaration of the intention to engage in an occupational activity submitted by Mr
Borchardt, registered under reference Ares(2021)144074 (hereafter ‘document
4’);
- Opinion of the Secretariat-General concerning the declaration of the intention to
engage in an occupational activity submitted by Mr Borchardt, registered under
reference Ares(2021)144148 (hereafter ‘document 5’);
- Opinion of COPAR3 concerning the declaration of the intention to engage in an
occupational activity submitted by Mr Borchardt, registered under reference
Ares(2021)144238 (hereafter ‘document 6’);
- Opinion of the Legal Service concerning the declaration of the intention to
engage in an occupational activity submitted by Mr Borchardt, registered under
reference Ares(2021)148013 (hereafter ‘document 7’).
Please note that documents 4, 5, 6 and 7 were not identified individually in the initial
reply but were referred to as one group of documents (‘e-mail exchanges within
Commission services pertaining to the underlying internal procedures concerning this
type of requests for authorisation’).
In its initial reply of 8 December 2020, the Directorate-General for Human Resources
and Security refused access to these documents based on the exceptions laid out in
Article 4(1)(b) (protection of privacy and the integrity of the individual) and Article 4(3)
(protection of the decision-making process) of Regulation (EC) No 1049/2001.
I also note that, in its initial reply, the Directorate-General for Human Resources and
Security provided abundant information concerning Mr Borchardt’s declaration to
engage in a remunerated occupational activity after leaving the Commission, pursuant to
Article 16 as well as the approval of the Appointing Authority to carry out this
occupational activity. It also explained the conditions aimed at preventing any potential
conflict of interest to which such approval is subject.
In your confirmatory application, you request a review of this position concerning the
documents identified above.
3 Stands for ‘Commission paritaire’ in French.
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.
Following this review, I regret to inform you that I have to confirm the initial decision of
the Directorate-General for Human Resources to refuse access to the requested
documents, based on the exceptions laid down in the Article 4(1)(b) (protection of
privacy and the integrity of the individual) and the second subparagraph of Article 4(3)
(protection of the closed decision-making process) of Regulation (EC) No 1049/2001.
The detailed reasons underpinning my assessment 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 ‘[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 is obvious from the titles of the requested documents, they form part of the personal
file of the concerned official, which contains the documents concerning his
administrative status or are inextricably linked with it.
In particular, documents 2 and 3 form part of the personal file of the staff member
concerned. Documents 1, 4, 5, 6 and 7 are inextricably linked with the administrative
status of the person concerned since they reflect the career history or are internal
opinions of the services that were taken into account by the Appointing Authority for its
decision of 7 October 2020 concerning the declaration of the intention to engage in an
occupational activity submitted by Mr Borchardt.
Since all the information contained in the seven documents falling under the scope of
your request constitute personal data forming part of, or being inextricably linked to, the
personal file falling under Article 26 of the Staff Regulations, their disclosure would, in
principle, seriously undermine the privacy of the individual concerned within the
meaning of Article 4(1)(b) of Regulation 1049/20014.
In accordance with Article 26 of the Staff Regulations, which aims
inter alia to safeguard
the privacy and integrity of present and former Commission staff, the personal file of
Commission officials and other Commission staff shall be confidential. Article 26 of the
Staff Regulations also clarifies that the 'personal file' of an individual includes:
a) all documents concerning his administrative status and all reports relating to
his ability, efficiency and conduct;
b) any comments by the official on such documents.
4
See by analogy,
Alexandrou, judgment of 12 November 2015 in joined cases T-515/14 and T-516/14,
EU:T:2015:844, paragraphs 69 and following.
3
Therefore, the requested documents as a whole fall under the scope of the exception
provided in Article 4(1)(b) of Regulation (EC) No 1049/2001, which must be interpreted
taking into account the principle of confidentiality of the personal files of members of the
staff provided under Article 26 of the Staff Regulations.
Moreover, I consider that public disclosure of the requested documents would infringe
the legislation regarding the protection of personal data.
In its judgment in Case C-28/08 P5, 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 data6
(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) 2018/1725 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/EC7 (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’8.
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’9.
5 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.
6 OJ L 8, 12.1.2001, p. 1.
7 OJ L 295, 21.11.2018, p. 39.
8
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
9 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.
4
The notion of personal data covers both the factual elements concerning the professional
activity of the staff member concerned as well as the internal assessment and the final
decision concerning his declaration of intention to engage in an occupational activity.
In addition to the fact that the documents requested constitute, as a whole and for the
reasons explained above, personal data in the meaning of Article 3(1) of Regulation (EU)
2018/1725, please note that the documents requested also contain names, job titles and
contact details of staff not forming part of the senior management of the European
Commission. The names10 of the person concerned, as well as other data from which
their identity can be deduced, 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.
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 data11. 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 argue that there is a strong public interest to
disclose the requested documents in order ‘to boost the monitoring and enforcement of
the restrictions, and to be able to confirm that the Commission has done what is
necessary to prevent conflict of interests’. I do not consider that your arguments are
sufficient to establish the necessity of the transmission of the requested personal data.
10.
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
11 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
As regards the objective to ensure that the rules governing the process are observed and
applied, it must be noted that, when deciding on the official’s intention to engage in an
occupational activity after leaving the Commission (Article 16 of the Staff Regulations),
the competent Appointing Authority evaluates carefully whether the new functions risk
posing any inherent or structural conflicts of interest or appearance of conflicts of interest
or any other risk of breach of his obligations by the official concerned. The Appointing
Authority gave its approval to carry out this occupational activity, subject to strict
compliance with certain conditions aimed at preventing any actual, potential or perceived
conflicts of interest that may arise in the framework of the authorised activity imposed by
the Appointing Authority decision (which were explained in detail in the initial reply).
Consequently, an appropriate control system is in place at the European Commission.
Moreover, as explained above, in accordance with Article 26 of the Staff Regulation, the
documents forming part of the personal files are strictly confidential, which in turn
explains the high sensitivity of the documents being inextricably linked to the personal
file.
In this context, by relying on general considerations, you have not established a need for
members of the public to obtain access to documents of a personal nature for the purpose
of performing additional external controls.
Moreover, you have not established that the scope of the data transfer requested is
proportionate in relation to the objective pursued. I do not consider that the requested
transmission would constitute the most appropriate measure with regard to your objective
of ascertaining that the procedure provided by Article 16 of the Staff Regulations was
properly implemented in this file.
This conclusion is further supported by the fact that, to achieve the necessary balance
with Regulation (EU) 2018/1725, the Staff Regulations provide for the annual
publication of specific information pertaining to the implementation of the said Article
16 concerning former senior managers engaging in activities which could entail lobbying
or advocacy towards the Commission. Article 16, fourth paragraph, of the Staff
Regulations states that ‘each institution shall publish annually information on the
implementation of the third paragraph, including a list of the cases assessed’.
That
provision only envisages the annual publication of summary information, as opposed to
the public disclosure of the underlying correspondence between the former official
concerned and the Commission and the details of the evaluation of each request. In the
case of Mr Borchardt, the annual report on the activities assessed in 2020 will be
published in 202112.
12 The 2020 annual report, once available, will be published on the following link
https://ec.europa.eu/info/publications/occupational-activities-former-senior-officials-annual-report_en
6
Finally, the legitimate interests of the data subject concerned would be prejudiced by the
disclosure of the personal data reflected in the requested documents, as there is a real and
non-hypothetical risk that such public disclosure would harm his privacy and subject
them to unsolicited external contacts. Concerning the other personal data contained in the
documents, such as names, job titles and contact details of staff not forming part of the
senior management of the European Commission, I also note that, 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 subject 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 her privacy.
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 the disclosure of the personal data concerned.
2.2. Protection of the decision-making process
The second subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess
to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution’s decision-making process, unless there is an overriding public interest in
disclosure’.
I consider that access to documents 4, 5, 6 and 7 needs to be refused also on the basis of
this exception, in addition to the exception laid down in Article 4(1)(b) of Regulation
(EC) No 1049/2001 (protection of privacy and the integrity of the individual).
These four documents contain opinions for internal use. Their disclosure would reveal
individual preliminary views of different services concerning the declaration of the
intention to engage in an occupational activity submitted by Mr Borchardt and which
were taken into account by the Appointing Authority in its decision of 7 October 2020.
Disclosure of the opinions contained in the requested documents would affect the
working methods of the Commission. Indeed, the Commission’s services must be able to
explore all possible options in preparation of the final decision free from external
pressure, in particular in cases where the decision-making process at stake relates to the
confidential administrative status of staff members in the meaning of Article 26 of the
Staff Regulations.
The staff in different Directorates-General should not be exposed in their individual
opinions on specific decisions to be adopted by the Appointing Authority. If individual
7
preliminary opinions by EU staff in different Directorates-General were disclosed, it
would make them more hesitant to express their opinions freely for fear of public
disclosure or pressure. Such a development would be unfortunate, since it would greatly
reduce the usefulness of the required opinions. Moreover, the publication of the opinions,
which are inextricably linked with the personal file of staff members, could affect the
confidentiality of the personal files and have a chilling effect on staff members applying
for authorisations, who could censor themselves.
Therefore, public disclosure of the requested documents would seriously undermine the
effectiveness of the Commission’s decision-making process, also for future similar cases.
The capacity of EU staff to express their opinions freely must be preserved to avoid the
risk that disclosure would lead to future self-censorship, which would ultimately affect
the quality of the internal decision-making of the Commission.
It follows that the European Commission cannot grant public access under Regulation
(EC) No 1049/2001 to the documents containing preliminary opinions for internal use,
even after the decision of the Appointing Authority was taken.
Therefore, I conclude that the refusal of access to documents 4, 5, 6 and 7 is justified also
on the basis of the exception laid down in the second subparagraph of Article 4(3) of
Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
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 public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you argue that there is a strong public interest to
disclose the requested documents in order ‘to boost the monitoring and enforcement of
the restrictions, and to be able to confirm that the Commission has done what is
necessary to prevent conflict of interests’.
I have already addressed this argument in the section 2.1. above, where I explained why
this argument does not justify the requested transfer of personal data. I consider this
explanation to be equally valid for rejecting your claim that the argument quoted above
represents an overriding public interest that would outweigh the harm caused to the
Commissions decision-making process by the disclosure of documents 4, 5, 6 and 7.
8
In addition, please note that general considerations, such as mentioned in your
confirmatory application, cannot provide an appropriate basis for establishing that the
principle of transparency was in this case especially pressing and capable, therefore, of
prevailing over the reasons justifying the refusal to disclose the documents in question13.
Nor have I been able to identify on my side any public interest capable of overriding the
public and private interests protected by Article 4(3) of Regulation (EC) No 1049/2001.
The fact that the documents relate to an administrative procedure and not to any
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness14, provides further support to this conclusion.
Please note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exceptions defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
I have examined the possibility of granting partial access to the documents concerned, in
accordance with Article 4(6) of Regulation 1049/2001. However, it follows from the
assessment made above that the documents which fall within the scope of your request
are manifestly and entirely covered by the exceptions laid down in Article 4(1)(b)
(protection of privacy and the integrity of the individual) and the second subparagraph of
Article 4(3) (protection of the closed decision-making process) of Regulation (EC) No
1049/2001. Also, no meaningful partial access could be granted since you requested
documents concerning a clearly identified natural person.
13 Judgment of the Court of Justice of 14 November 2013,
Liga para a Protecção da Natureza (LPN)
and Republic of Finland v
European Commission, Joined Cases C-514/11 P and C-605/11 P,
EU:C:2013:738, paragraph 93.
14 Judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke Ilmenau
Gmbh, C-139/07 P, EU:C:2010:376, paragraphs 53-55 and 60;
Commission v
Bavarian Lager
judgment, cited above, paragraphs 56-57 and 63.
9
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
10
Document Outline