Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels, 5.9.2019
C(2019) 6501 final
36203 Vigo
Spain
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION NO (EC) 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/3887
Dear
I refer to your letter of 3 September 2018, registered on 17 July 2019, following your
complaint to the European Ombudsman, 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 20 July 2018, addressed to the Service for Foreign Policy
Instruments, you requested access to the contract PI/2016/380-146 concluded between
the
European
Commission
and
‘Deutsche Gesellschaft für Internationale
Zusammenarbeit’ (GIZ) GmbH, on International Urban Cooperation Sustainable and
innovative cities and Regions (IUC-LAC).
The European Commission has identified the following documents as falling under the
scope of your request:
- Contract and special conditions PI/2016/380-146 146 of 15 January 2016
concluded between the European Commission and GIZ, (hereafter ‘document 1’);
o Annex I – ‘General Conditions’, (hereafter ‘document 2’);
o Annex II – ‘Terms of Reference’, (hereafter ‘document 3’);
o Annex III – ‘Organisation and Methodology’, (hereafter ‘document 4’);
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
o Annex IV – ‘Key experts’, (hereafter ‘document 5’);
o Annex V – ‘Financial proposal’, (hereafter ‘document 6’);
o Annex VI – ‘Legal entity’, (hereafter ‘document 7’);
o Annex VI – ‘Financial identification’, (hereafter ‘document 8’);
o Annex VII – ‘Terms of Reference for an Expenditure Verification’,
(hereafter ‘document 9’).
In its initial reply of 7 September 2018, the European Commission’s Service for Foreign
Policy Instruments granted full access to documents 2, 3 and 9 and wide partial access to
document 1, subject to the redaction of personal data on the basis of Article 4(1)(b)
(protection of privacy and the integrity of the individual) of Regulation (EC) No
1049/2001.
It fully refused access to documents 4-8 on the basis of Article 4(2) first indent
(protection of commercial interests) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You argue the
following, I quote, ‘[o]nce I have talk today with my Secretary General, he asked me to
insist on having access to the complete information about this contract, as he do not
understand why any public document should have any reserved information. In fact, he
insist on the idea that the situations that we have detected, as well as the continuous
refusal to give us the complete document and the empty explanations received suggest
him a reasonable doubt about whether we are dealing with a situation similar to which
occurred during the Santer Commission and that ended up forcing its fall for the
irregularities that took place during the management of the Mediterranean program, in
which the management of the program by a consultancy group and the contract it had
with the Commission played a decisive role'.
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/Service concerned at the initial stage.
Following this review, I can inform you that partial access is now granted to documents
6-8. The withheld parts of the documents need to be protected against the risks related to
public disclosure on the basis of Article 4(1)(b) (protection of privacy and the integrity of
the individual) and Article 4(2), first indent (protection of commercial interests) of
Regulation (EC) No 1049/2001.
As regards document 1, I would like to inform you that no further access to the personal
data contained in the document can be awarded.
As regards documents 4 and 5, I regret to inform you that I have to confirm the initial
decision of the Service for Foreign Policy Instruments to refuse fully access to the
documents in question, on the basis of, respectively, the exceptions provided for in
Article 4(2), first indent (protection of commercial interests) and Article 4(1)(b)
2
(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 personal data
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘access to a document is
refused 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.
Please note that Regulation (EC) No 45/2001, as from 11 December 2018, was 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 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation 2018/1725.
In the above-mentioned judgment, the Court of Justice 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 (EC) 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.
3 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd, 378 (hereinafter ‘judgment in C-28/08 P’), C-28/08 P, EU:C:2010, paragraph 59.
4 Official Journal L 8 of 12.1.2001, p. 1.
5 Official Journal L 205 of 21.11.2018, p. 39.
6 Judgment in C-28/08 P, cited above, paragraph 59.
7 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.
3
Please note that the entire document 5 consists of the personal data of key experts who
were involved in the tender contract, such as names and surnames, educational and
professional backgrounds, years of experiences, and all kind of personal information
related to the aptitude of those people to perform the required tasks provided for in the
contract.
Furthermore, the withheld parts of documents 1, 6, 7 and 8 also contain the personal data
of individuals involved in the contract, such as names, surnames, contact details and
handwritten notes and signatures.
I consider that the disclosure of the names, surnames, contact details, handwritten notes
and signatures and of any other information which can lead to the identification of the
individuals concerned, is deemed to undermine the protection of their privacy and
integrity, according to Article 3(1) of Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation 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 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.8
This is also clear from Article 9(1)(b) of Regulation 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 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
subjects’ legitimate interests might be prejudiced.
8 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
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 documents 1, 5, 6, 7 and 8 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.
2.2. Protection of the commercial interests
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’.
First, I note that Article 4(2), first indent of Regulation (EC) No 1049/2001 must be
interpreted consistently with Article 339 of the Treaty on the Functioning of the
European Union (TFEU), which requires staff members of the EU institutions to refrain
from disclosing ‘information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components’. Applying Regulation (EC) No 1049/2001 cannot have the effect of
rendering the Article 339 of TFEU, over which it does not have precedence, ineffective.
Secondly, Article 4(2), first indent of Regulation (EC) No 1049/2001 must be interpreted
consistently with the provisions of the Financial Regulation9 and its Rules of
Application10 relating to access to information and confidentiality, which were applicable
at the time of the signature of the documents in question. Those provisions contain
guarantees of confidentiality and limit the information to be provided in respect to public
tenders. Furthermore, as neither Regulation (EC) No 1049/2001 nor the Financial
Regulation contain any provision expressly giving one regulation primacy over the other,
the right to disclosure of documents under Regulation (EC) No 1049/2001 cannot apply
in contradiction with the specific confidentiality provisions laid down in the Financial
Regulation and its Rules of Application, as this would result in these provisions being
deprived of their meaningful effect.
9
Regulation (EU, Euratom) No. 966/2012 of the European Parliament and the Council of 25 October
2012 on the financial rules applicable to the general budget of the Union and repealing Council
Regulation (EC, Euratom) No. 1605/2002, Official Journal L 298 of 26.10.2012, p.1, as amended.
10 Commission Delegated Regulation (EU) No. 1268/2012 of 29 October 2012 on the rules of application
of Regulation (EU, Euratom) No. 966/2012 of the European Parliament and the Council on the
financial rules applicable to the general budget of the Union, Official Journal 362 of 31.12.2012, p. 1,
as amended.
5
Furthermore, the General Court in its
Cosepuri11
judgement confirmed that Regulation
(EC) No 1049/2001 and the Financial Regulation have different objectives and do not
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 their coherent application.
Thirdly, in its judgment in Case T-439/08, the General Court ruled that ‘methodology
and expertise […] highlighted as part of the grant application, […] relate to the specific
know-how […] and contribute to the uniqueness and attractiveness of applications in the
context of calls for proposals such as that at issue, which was intended to select one or
more applications, following in particular a comparative review of proposed projects’.12
The same principles applies to tender procedures. In its judgment in Case T-339/10, the
General Court ruled that ‘EFSA did not err in considering, in essence, that there was a
general presumption that access to the bids submitted by the other tenderers would, in
principle, undermine the interest protected. The applicant has not put forward any
evidence to justify the conclusion that, in the present case, that presumption did not apply
to the documents disclosure of which was requested.’13
Furthermore, the General Court held that ‘the transparent conduct of public tenders
procedures, which aims to make possible the monitoring of compliance with the relevant
rules and principles does not require the publication of documents or information relating
to the know-how, methodology or business relationships of the tenderers’14. The General
Court also stressed that ‘in principle, precise information relating to the cost structure of
an undertaking constitutes business secrets, the disclosure of which to third parties is
likely to undermine its commercial interests.’15
Please note that document 4 (‘Organisation and Methodology’) corresponds to the tender
submitted by the Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ) GmbH
which led to the awarding of the contract to the latter.
It describes in detail the proposed actions to be conducted through the contract,
methodologies, internal organisation, particular know-how, strategy and other specific
information with competitive value, such as the scope and description of actions, their
timetable and funding perspectives. This includes, for example, the descriptions of the
planned activities, the elaboration of specific approaches to the problems described,
pricing and reasoning how resources (including equipment, logistics, accommodation,
catering, transportation and assistance services) will be spent etc. Such information
undoubtedly constitutes inside knowledge, experience and specific know-how belonging
to the institution that submitted the bid. This know-how was taken into account by the
11 Judgment of the General Court of 29 January 2013,
Cosepuri Soc. Coop. pA v European Food Safety
Agency (EFSA), T-339/10, EU:T:2013:38, paragraph 85.
12 Judgment of 21 October 2010,.Kalliope
Agapiou Joséphidès v European Commission and Education,
Audiovisual and Culture Executive Agency (EACEA), T-439/08, EU:T:2010:442, paragraph 127.
13
Cosepuri Soc. Coop. pA v European Food Safety Authority (EFSA), cited above, paragraph 101.
14 Judgment of 22 May 2012,
Sviluppo Globale v Commission, T-6/10, EU:T:2012:245, paragraph 88.
15 Judgment of 30 January 2008,
Terezakis v Commission, T-380/04, EU:T:2008:19, paragraph 95.
6
European Commission when evaluating the application and, therefore, had a major
impact on the selection of the bids. The public disclosure of such information would
undermine the commercial interests of the tenderer, as it would give other potential
applicants in future calls the possibility to copy from the winning bid and use it to
support their own application. This would constitute an unfair competitive advantage for
competitors that would undermine the smooth functioning of the internal market, and,
ultimately, the experience of the European consumers.
The Commission also has an interest in not revealing the applicants' know-how in order
not to distort the fair competition in subsequent calls for proposals or call for tenders, and
therefore as a funding entity or contracting authority, to ensure that the projects selected
or contracts awarded in future calls win on their own merits, and not on the basis of the
methodology developed by others.
Thus, I consider that the general presumption of non-disclosure applies to document 4.
Please note that, since the tender applications are covered by the general presumption of
non-disclosure, the European Commission does not need to consider a partial access in
such cases.
Regarding the withheld parts of documents 6-8, please note that document 6 constitutes
the budget breakdown, explaining in details the allocation of sums required for the
performance of the contract. Moreover, document 7 is the legal entity and document 8
constitutes the financial identification, which contain the banking details of the company
in question.
The documents have been partially redacted, as far as the parts related to the detailed
budget estimates, banking details and stamps of the parties to the contract are concerned,
as they constitute commercially sensitive information.
I note in this context that the exception relating to commercial interests can be applied to
non-commercial entities, such as public bodies in the Member States. Please see in this
regard the judgment of the General Court in Case T-439/0816.
Against this background, it results clearly that the above-mentioned confidential
information qualifies as commercially sensitive business information.
Consequently, I conclude that, pursuant to Article 4(2), first indent of Regulation (EC)
No 1049/2001 (protection of commercial interests), access to the entire document 4 and
to parts of documents 6-8 cannot be granted as this would pose a real and non-
hypothetical risk for the commercial interests of the grant applicant.
16
Kalliope Agapiou Joséphidès v European Commission and Education, Audiovisual and Culture
Executive Agency (EACEA), cited above, paragraphs 127-128.
7
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent 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 do not refer to any particular overriding public
interest that would warrant public disclosure of the documents in question and that would
outweigh the need to protect it in light of the exceptions of Regulation (EC) No
1049/2001. I would also like to refer you to the judgment in the
Strack case17, where the
Court of Justice 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
importance, but that 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-disclosure.
Furthermore, I have not been able, based on my own analysis, to establish the existence
of any overriding public interest in disclosure of the document in question.
In
consequence, I consider that in this case there is no overriding public interest that would
outweigh the public interest in safeguarding the protection of commercial interests
protected by the first indent of Article 4(2) 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
openness,18 provides further support to this conclusion.
Please also 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
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.
As stated by the Court of Justice, where the document requested is covered by a general
presumption of non-disclosure, such document does not fall within an obligation of
disclosure, in full, or in part.19 Therefore, no partial access has been considered for
document 4 (‘Annex III Organisation and methodology’). Furthermore, no partial access
is possible for document 5 (‘Annex IV key experts’), as this document is entirely covered
17 Judgment of the Court of Justice of 2 October 2014,
Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraphs 128-131.
18 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.
19 Judgment of the Court of Justice of 28 June 2012,
European Commission v Éditions Odile Jacob, C-
404/10 P, EU:C:2012:393, paragraph 133.
8