EUROPEAN COMMISSION
Brussels, 21.7.2021
C(2021) 5592 final
Mr Alexander Fanta
netzpolitik.org
Rue de la Loi 155
1040 Bruxelles
Belgique
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 – GESTDEM
2021/2908
Dear Mr Fanta,
I am writing in reference to your email of 28 May 2021, registered on the same day, by
which you lodge 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’).
In your initial application of 4 May 2021, you requested access to, I quote
- Text messages and other documents relating to the exchange between President Ursula
von der Leyen and Albert Bourla, the chief executive of Pfizer, since January 1, 2021. The
exchange was reported in the New York Times on April 28 in the story "How Europe
Sealed
a
Pfizer
Vaccine
Deal
With
Texts
and
Calls".
See
here:
https://urldefense.com/v3/__https://www.nytimes.com/2021/04/28/world/europe/european-
union-pfizer-von-der-leyen-coronavirus-
vaccine.html__;!!DOxrgLBm!X6q_vfg2EvLrDSEbEDNrbQ7tFq-
FTzBgdtfzYNnm2y49WHlYa2McBzAJYd4Te59A_7XxUw$’
- An internal European Commission assessment of the EU’s vaccine needs over the next
two years, as referenced in the same story.’
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
By letter of 26 May 2021, unit E.4 ‘Health, Education & Culture’ of the Secretariat-General
of the European Commission identified three documents as falling within the scope of your
request, namely:
- Email from Pfizer to the President of the European Commission of 28 March 2021,
reference Ares(2021)3474551, hereafter document 1;
o Letter from Pfizer to the President of the European Commission of 27 March
2021 (attachment to the email), hereafter document 1.1;
- Press release, Read-out of the videoconference between President von der Leyen and
CEOs
of
pharmaceutical
companies
of
31
January
2021,
reference
Ares(2021)3474551, hereafter document 2.
Unit E.4 ‘Health, Education & Culture’ of the Secretariat-General granted full access to
document 2 and wide partial access, subject only to the redaction of personal data to
document 1 and document 1.1.
In your confirmatory application, you question the absence of more documents, in particular
text messages, falling within the scope of your request. Furthermore, you contest the fact
that the initial reply lacked customary features, such as ‘Assessment and Conclusion under
Regulation (EC) No 1049/2001’, as well as a ‘Means to Redress’. In this respect, please
accept our apologies for the absence of certain customary features of the Commission’s
initial replies to access to documents requests.
1.
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 service or Directorate-General concerned at the initial stage.
Following this review, I would like to confirm the initial position of Unit E.4 ‘Health,
Education & Culture’ of the Secretariat-General to refuse access to the personal data
contained in the documents.
Furthermore, the European Commission has carried out a renewed, thorough search for the
documents requested. Following this renewed search, I confirm that the Commission does
not hold any more documents that would correspond to the description given in your
application at the date you submitted your confirmatory request.
1.1. 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’.
2
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, 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/EC5 (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’6.
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’7.
The requested documents contain the names and surnames of staff members of the European
Commission not holding any senior management positions, as well as names, surnames,
email addresses, and a handwritten signature of Pfizer’s representatives.
Please note that, whereas the endings of email addresses (for instance ‘[...]@pfizer.com’)
were not disclosed at the initial stage, they are disclosed for the purposes of this decision, as
they do not constitute personal data.
The names8 of the persons 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.
3 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.
4 OJ L 8, 12.1.2001, p. 1.
5 OJ L 295, 21.11.2018, p. 39.
6
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
7 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.
3
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.
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 data9.
This is also clear from Article 9(1)(b) of Regulation (EU) No 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) No 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 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 weighted the various competing interests.
In your confirmatory application you have not established the necessity of disclosing any of
the above-mentioned personal data.
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in the documents concerned has not been established. 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 subjects 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 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
8
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
9 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
to think that the legitimate interests of the individuals concerned would not be prejudiced by
disclosure of the personal data concerned.
In this light, I consider that its public disclosure under Regulation (EC) No 1049/2001, is
prevented by the above-mention exception in Article 4(1)(b) of that regulation.
1.2. No further documents held
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as defined
in that regulation applies only to existing documents in the possession of the institution. I
would like to refer in this respect to the judgment of the Court of Justice in Case C-127/13 P
(
Strack v European Commission), according to which ‘[n]either Article 11 of Regulation
1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige an institution
to create a document for which it has been asked to grant access but which does not exist’10.
The above-mentioned conclusion has been confirmed in Case C-491/15 P (
Typke v
European Commission), where the Court of Justice held that ‘the right of access to
documents of the institutions applies only to existing documents in the possession of the
institution concerned and […] Regulation No 1049/2001 may not be relied upon to oblige
an institution to create a document which does not exist. It follows that, […], an application
for access that would require the Commission to create a new document, even if that
document were based on information already appearing in existing documents held by it,
falls outside the framework of Regulation No 1049/2001’11.
Against this background, the European Commission has carried out a thorough search for
the documents requested. Following this search, I confirm that the European Commission
does not hold any documents that would correspond to the description given in your
application.
Regarding your request to have access to text messages, I confirm that that according to
Article 3(a) of Regulation 1049/2001, a ‘document’ shall mean any content whatever its
medium concerning a matter relating to the policies, activities and decisions falling within
the institution's sphere of responsibility.
However, the institution is not obliged to preserve each and every document.
In accordance with Article 7(1) of Commission Decision of 6.7.2020 on records
management and archives12, ‘[d]ocuments shall be registered if they contain important
information which is not short-lived or if they may involve action or follow-up by the
Commission or one of its departments’.
A text message or another type of instant messaging is by its nature a short-lived document
which does not contain in principle important information concerning matters relating to
10 Judgment of the Court of Justice of 2 October 2014,
Strack v European Commission, C-127/13 P,
EU:C:2014:2250, paragraph 46.
11 Judgment of the Court of Justice of 11 January 2017,
Typke v European Commission, C-491/15 P,
EU:C:2017:5, paragraph 31.
12
https://ec.europa.eu/info/sites/info/files/c_2020_4482_en.pdf.
5
policies, activities and decisions of the Commission and therefore it does not normally
qualify as a document fulfilling the registration criteria. In this respect, the Commission
record-keeping policy would in principle exclude instant messaging.
No documents falling within the scope of your request could be identified.
Given that the European Commission does not hold any such documents corresponding to
the description given in your application, it is not in a position to fulfil your request.
2.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation (EC) No 1049/2001 does not need
to be balanced against any possible overriding public interest in disclosure.
3.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, partial access is granted
to the documents in question.
4.
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
Enclosures: [2]
6
Document Outline