Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 18.9.2019
C(2019) 6850 final
Luther Rechtsanwaltsgesellschaft
mbH Gänsemarkt 45
20354 Hamburg
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 2018/6114
Dear
,
I refer to your letter of 4 March 2019, registered on the next day, 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
documents (hereafter ʻRegulation (EC) No 1049/2001ʼ).
1.
SCOPE OF YOUR REQUEST
In your initial application of 29 October 2018, addressed to the Directorate-General for
Energy, you requested access to to ʻall information available at the European
Commission in relation to Article 12 of the proposal for a Regulation of the European
Parliament and of the Council on the internal market for electricity -
Recast-COM(2016)861)ʼ.
At the initial stage, the Directorate-General for Energy identified the following
documents, as falling under the scope of your request:
1
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne, 1049 Bruxelles, BELGIQUE - Tél. +32 22991111
1) Regulation of the European Parliament and of the Council on the internal market
for electricity as submitted for Inter-service consultation in November 2016
(Ares(2019)981370, document 1);
2) Flash report on Energy Working Party of 25 June 2018 (document 2);
3) Flash report on Technical Trilogue of 5 November 2018 (document 3);
4) E-mail exchange between the Federal Ministry of Economy and Energy and the
Directorate-General
for
Energy
of
October
and
November
2017
(ener.b2(2018)6674645, document 4);
5) Stellungnahme der deutschen Bundesregierung zur Mitteilung KOM(2015)340
ʻEinleitung des Prozesses der Konsultation zur Umgestaltung des Energimarktsʼ
of 23 October 2015 (Ares(2019)981370, document 5);
6) Konsultationsbeitrag des Ministeriums für Umwelt, Klima und Energiewirtschaft
des Landes Baden-Württemberg zur Einleitung des Prozesses der öffentlichen
Konsultation zur Umgestaltung des Energiemarkts of 4 October 2015
(Ares(2019)981370, document 6).
In accordance with Article 4(4) of Regulation (EC) No 1049/2001, as regards documents
originating from a third party, the institution shall consult the latter with a view to
assessing whether an exception in paragraphs 1 to 3 (if the third party is a Member State)
is applicable, unless it is clear that the documents shall or shall not be disclosed.
According to Article 4(5) of Regulation (EC) No 1049/2001, a Member State may
request the institution not to disclose a document originating from that Member State
without its prior agreement.
In accordance with Article 4(4) and (5) of Regulation (EC) No 1049/2001, the
Directorate-General for Energy consulted the German authorities on the disclosure of the
documents originating from them, namely document 4, 5 and 6.
In its initial reply of 14 February 2019, taking into account the position of the German
authorities, the Directorate-General for Energy:
granted access to documents 1, 5 and 6;
refused access to documents 2, 3 and 4 invoking the exception of Article
4(3), first subparagraph of Regulation (EC) No 1049/2001 (protection of the
decision-making process).
The refusal to document 4 was based on the objections to disclosure expressed by the
German authorities in the light of Article 4(3), first subparagraph of Regulation (EC) No
1049/2001 (protection of the decision-making process).
Through your confirmatory application, you request a review of this position.
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 of the European Commission
2
conducts a fresh review of the reply given by the relevant Directorate-General at the
initial stage.
Having carried out a detailed assessment of documents 2 and 3 originating from the
European Commission, I am pleased to inform you that I can grant access to both
documents requested.
As regards document 4 and in order to give the German authorities the possibility to
reconsider their position in the light of the arguments presented in your confirmatory
application, the Secretariat-General re-consulted those authorities.
The German authorities agreed to disclosure of document 4, subject only to the redaction
of personal data in accordance with Article 4(1)(b) (protection of privacy and the
integrity of the individual).
3.
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 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),2 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 data3
(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/EC4 (hereafter ‘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
2 Judgment of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd, C-28/08 P,
EU:C:2010:378, paragraph 59.
3 Official Journal L 8 of 12.1.2001, p. 1.
4 Official Journal L 205 of 21.11.2018, p. 39.
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the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’5.
Article 3(1) of Regulation (EU) No 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
The requested document 4 includes the names and personal details (e-mail address,
telephone numbers) of staff members of the European Commission not holding senior
management positions and the names, surnames, contact details of Member States
representatives. This information clearly constitutes personal data in the sense of Article
3(1) 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.
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.
5 Cited above, paragraph 59.
4