EUROPEAN COMMISSION
LEGAL SERVICE
The Director-General
Brussels, 5th May 2021
By email
Mr. Patryck Wachowiec
Forum Obywatelskiego Rozwoju
ul. Ignacego Krasickiego 9A
02-628 Warszawa
Poland
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Request for access to documents
Ref.:
Your request of 5 March 2021 registered on 8 March 2021 under reference
GestDem 2021/1302
Dear Mr. Wachowiec,
I refer to your request for access to documents under Regulation (EC) No 1049/2001 regarding
public access to European Parliament, Council and Commission documents,1 by which you
request “
all written submissions of the parties filled in Case C-824/18, A.B. and Others”.2
1.
IDENTIFICATION OF THE DOCUMENTS
After examination of the files of the Legal Service, the written pleadings submitted by the
following parties have been identified as matching the terms of your request:
1. Commission’s observations;
2. Commission’s addendum;
3. Poland’s observations of 18 May 2019;
4. Poland’s observations of 31 October 2019;
5. Krajova Rada’s observations;
6. Rzecznik Praw’s observations of 21 May 2019;
7. Rzecznik Praw’s observations of 18 October 2019;
8. C.D’s observations;
9. I.J’s observations;
10. A.B’s observations;
11. E.F’s observations;
12. Prokurator Generalny’s observations of 30 May 2019;
13. Prokurator Generalny’s observations of 24 October 2019.
1 Official Journal L 145, 31.05.2001, page 43.
2 Judgment of the Court of Justice of 2 March 2021, Case C-824/18,
A.B. and Others v Krajowa Rada
Sądownictwa and Others, ECLI:EU:C:2021:153.
European Commission, B-1049 Brussels / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
Office: BERL 1/080. Telephone: direct line (32-2) 296 13 86.
E-mail: xxxxxx.xxxxxxxxxxxxxx@xx.xxxxxx.xx
2.
WRITTEN PLEADINGS SUBMITTED BY THE EUROPEAN COMMISSION (DOCUMENTS 1 AND
2)
After a concrete assessment of the Commission’s written pleadings, I am pleased to inform you
that access can be granted to them, under Regulation (EC) No 1049/2001. Accordingly, please
find enclosed a copy of documents 1 and 2 in Polish, the language of the proceedings.
You may reuse the disclosed documents free of charge provided that the source is acknowledged
and that you do not distort the original meaning or message of them. Please note that the
Commission does not assume liability stemming from the reuse.
3.
WRITTEN PLEADINGS SUBMITTED BY THIRD PARTIES (DOCUMENTS 3 TO 13)
As far as the written observations of the other parties are concerned, the Commission has
consulted the authors of the respective documents on their disclosure, in accordance with
Article 4(4) of Regulation (EC) No 1049/2001.
Concerning A.B’s written observations (documents 10), I regret to inform you that the
Commission has been unable to contact the authors of the document. Therefore, since there is
no means to inform them about the request and the possible disclosure of their document to the
public, the European Commission is not in position to treat this part of your request.
With reference to the remaining written submissions requested (documents 3 to 9 and 11 to 13),
where consultations in accordance with Regulation (EC) No 1049/2001 were launched, I would
like to inform you that:
– the Government of Poland, as well as the lawyers acting on behalf of Krajova Rada,
Rzecznik Praw, C.D, I.J, E.F and Prokurator Generalny (documents 3 to 9 and 11 to 13)
agreed to the disclosure of their written observations.
Please note that some personal data contained in documents 5 to 9 and 11 to 13 have been
deleted, in accordance with Article 4 (l)(b) of Regulation (EC) No 1049/2001, as explained in
point 4 below.
Accordingly, you will find enclosed a copy of the original version of documents 3 and 4, as
well as the redacted version of documents 5 to 9 and 11 to 13 in Polish, the language of the
proceedings.
The disclosed documents were transmitted by the Court of Justice to the Commission in its
capacity as participant in the Court proceedings. Access to them is granted for information only
and they cannot be re-used without the agreement of the originators, who may hold the
copyright on them. They do not reflect the position of the Commission and cannot be quoted as
such.
4.
PROTECTION OF PERSONAL DATA
As stated above, some personal data has been redacted in the disclosed documents
i.e.:
the name and handwritten signature of the Court’s official in documents 5, 6, 8, 9 and 11 to
13;
the handwritten signatures of the lawyers representing the parties in documents 5 to 9 and
11 to 13;
the handwritten initials of the lawyers representing Rzecznik Praw and the contact details of
the party in documents 6 and 7;
the name and handwritten signature of the secretary in document 6;
the name and handwritten signature of the Referent in document 13.
2
According to Article 4(1)(b) of Regulation (EC) No 1049/2001
"[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: [...](b) privacy and
the integrity of the individual, in particular in accordance with Community legislation
regarding the protection of personal data".
As the Court of Justice has ruled, when access to documents is requested containing personal
data, the Data Protection Regulation, i.e. Regulation (EU) 2018/1725,3 becomes fully
applicable.4
Article 3(1) of Regulation (EU) 2018/1725 provides that personal data
"means any information
relating to an identified or identifiable natural person [...]". The Court of Justice has specified
that any information, which by reason of its content, purpose or effect, is linked to a particular
person is to be considered as personal data.5
With regard to the personal data such as names, signatures, functions, telephone numbers and
other information relating to the institutions officials, the General Court has recognised in its
judgment in Case T-39/17 that they fall within the notion of "private life" regardless of whether
this data is registered in the context of a professional activity6 and, therefore, they constitute
personal data in the meaning of Article 3(1) of Regulation (EU) 2018/1725. Consequently, the
name and handwritten signature of the Court’s official in documents 5, 6, 8, 9 and 11 to 13,
have been redacted.
Furthermore, in its judgment in Joined Cases C-465/00, C-138/01 and C-139/01 the Court has
confirmed that
“there is no reason of principle to justify excluding activities of a professional
nature […] from the notion of private life”.7 On this basis, the handwritten signatures of the
lawyers representing the parties (documents 5 to 9 and 11 to 13), the initials of the lawyers and
the contact details of the party (documents 6 and 7), the name and handwritten signature of the
secretary (document 6), as well as the name and handwritten signature of the Referent
(document 13) have been deleted, since it constitutes 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".
3 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/EC (OJ L 205 of 21.11.2018, page 39).
4 Judgment of the Court of Justice of 29 June 2010, Case C-28/08P,
European Commission v
The Bavarian
Lager Co. Ltd, ECLI:EU:C:2010:378, paragraphs 59 and 63. Whereas this judgment specifically related to
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 data, the principles set out therein are also applicable under the new
data protection regime established by Regulation (EC) 2018/1725.
5 Judgment of the Court of Justice of 20 December 2017, Case C-434/16,
Peter Nowak v Data Protection
Commissioner, ECLI:EU:C:2017:994, paragraphs 33-35.
6 Judgment of the General Court of 19 September 2018, Case T-39/17,
Chambre de commerce et d’industrie
métropolitaine Bretagne-Ouest (port de Brest) v Commission, ECLI:EU:T.2018:560, paragraphs 37, 38 and 43.
7 Judgment of the Court of Justice of 20 May 2003, Joined Cases C-465/00, C-138/01 and C-139/01,
Rechnungshof and Others v Österreichischer Rundfunk, ECLI:EU:C:2003:294, paragraph 73.
3
Only if these conditions are met 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.
According to Article 9(l)(b) of Regulation (EU) 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established 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 request, 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.
Notwithstanding the above, please note that there are reasons to assume that the legitimate
interests of the data subject concerned would be prejudiced by 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.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001,
access cannot be granted to the above-mentioned 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.
Please note that the exception of Article 4(1)(b) has an absolute character and does not
envisage the possibility of demonstrating the existence of an overriding public interest.
5.
MEANS OF REDRESS
Should you wish the position regarding the refusal of personal data to be reconsidered, you
should present in writing, within fifteen working days from receipt of this letter, a confirmatory
application to the Commission's Secretariat-General at the address below:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[
signed electronically]
Daniel CALLEJA CRESPO
Attachments: 12
4