Dear European Economic and Social Committee,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

List of companies that applied for the tender: EESC/DL/7/2018 Analysis and proposal for improvements of the current projection system concerning cost reimbursement of EEC members, delegates and experts.

Documents explaining why VJ Soft Ltd won the tender and why the contract has been extended.

Yours faithfully,

Nikolaj Nielsen

EUobserver
Rue Montoyer / Montoyerstraat 18B
1000 Brussels
Belgium

CourrierArchivesCESE, Comité Económico y Social Europeo

Dear Mr Nielsen,

Thank you for your request sent on 10 September of which we hereby acknowledge receipt.

In accordance with the decision of the European Economic and Social Committee of 1 July 2003 on public access to European Economic and Social Committee documents (2003/603/EC), your request will be handled within 15 working days. The time limit will expire on 02/10/2019. In case this time limit needs to be extended, you will be informed in due course.

Best regards,

Mail & Archives Sector

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CourrierArchivesCESE, Comité Económico y Social Europeo

Dear Mr Nielsen,

Thank you for your request sent on 10 September 2019 of which we hereby acknowledge receipt. It is being processed now.

Best regards,

Mail & Archives Sector

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CourrierArchivesCESE, Comité Económico y Social Europeo

Dear Sir,

 

We refer to the four access to documents requests which you sent on 10
September 2019.

 

Each of your requests is currently being handled. However, due to the
complexity of the subject matters and the number of files involved, we are
not in a position to finalize the processing of your applications within
the time limit.

 

Therefore, we are obliged to extend the deadline by a further 15 working
days in accordance with Article 7(3) of Regulation (EC) No. 1049/2001
regarding public access to documents.

 

We apologize for this delay and for any inconvenience this may cause.

 

Yours faithfully,

 

Mail & Archives Sector

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Dans ce cas, vous êtes prié de le détruire et d'en informer l'émetteur.

The information in this message and/or attachments is intended solely for
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In such a case, please delete this message and kindly notify the sender
accordingly.

Dear European Economic and Social Committee,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Tender'.

By law, under all circumstances, the EESC should have responded by now.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/tender

Yours faithfully,

Nikolaj Nielsen

CourrierArchivesCESE, Comité Económico y Social Europeo

4 Adjuntos

Dear Mr Nielsen,

In our email of 2 October 2019 we informed you about the need to extend the deadline of our reply by a further 15 working days, due to the fact that the internal consultation process for the relevant documents and the detailed analysis of all legal aspects linked to the possible disclosure of these documents was particularly time consuming.

In this respect, as a reply to your request for information dated 10 September 2019, in which you make a request for access to documents, please note the following:

Context

Your request concerns the tender procedure EESC/DL/7/2018 and you request the following documents:

*List of companies that applied for the tender: EESC/DL/7/2018 Analysis and proposal for improvements of the current projection system concerning cost reimbursement of EEC members, delegates and experts.
*Documents explaining why VJ Soft Ltd won the tender and why the contract has been extended.

I. Documents disclosed

The documents pertaining to your request are the following:

1. the opening record for the tender procedure  EESC-DL-07-2018;
2. the evaluation report for the tender procedure  EESC-DL-07-2018;
3. the award decision for the tender procedure  EESC-DL-07-2018;
4. the amendment to the contract signed for the tender procedure EESC-DL-07-2018.

Please note these documents may refer to other documents (photocopies, memos, etc.) which are not listed above. These documents are not being disclosed as they do not contain any information that is relevant to your request.

Having examined the documents requested under the provisions of Regulation (EC) No 1049/2001 regarding public access to documents, it has been decided that they may be partially disclosed.

Some parts of the documents have been blanked out as their disclosure is prevented by exceptions to the right of access laid down in Article 4 of this Regulation.

II. Legal framework

A) Exception related to the protection of personal data

Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document has to be refused if its disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with European Union legislation regarding the protection of personal data.

The applicable legislation in this field is 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[1] (‘Regulation 2018/1725’).

Indeed, Article 3(1) of Regulation 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.[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, the Data Protection Regulation becomes fully applicable[4].

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.

According to Article 9(1)(b) of Regulation 2018/1725, the EESC 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 EESC 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.

B) Exception related to the protection of commercial interests

Pursuant to Article 4(2), first indent, of Regulation (EC) No 1049/2001, access to a document also has to be refused if its 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.

Legal entities usually possess corporate numbers, VAT numbers and other commercial/business information. This type of data specifically falls under the scope of the above provision, even more so when this information does not showcase any relevance to the access to documents request.

III. Exceptions in the present case

In the present case, the documents to which you request access contain personal data and/or commercial data, in particular:

• Document 1, 2, 3 and 4 contain names, signatures, functions and/or initials pertaining to EESC staff members;
• Document 2 also contains the name of a candidate to the tender procedure;
• Document 4 contains the name, signature, initials and stamp of the contractor's representative as well as the VAT number of VJ SOFT Ltd.

It is reminded that any information pertaining to the staff of an EU institution are to be considered personal data. Signatures and initials constitute biometric data whose disclosure could also prejudice the legitimate interests of the persons concerned.
Names, signatures and initials of third parties also constitute protected private personal data. Last but not least, VAT numbers of private entities constitute commercial data that is protected under Regulation (EC) No 1049/2001.

IV. Conclusion

Consequently, it has been concluded that, pursuant to Article 4(1)(b) and Article 4(2), first indent, of Regulation (EC) No 1049/2001, access cannot be granted to the personal and commercial data, as the need to obtain access thereto for a purpose in the public interest has not been substantiated and there are reasons to assume that the legitimate interests of the data subjects concerned would be prejudiced by disclosure of the personal and commercial data reflected in the documents, as there is a real and non-hypothetical risk that such public disclosure would harm their privacy/commercial interests and subject them to unsolicited external contacts.

Please note that this is the reply to your initial request. As it was already under approval when you introduced a confirmatory request earlier today, we do not take this confirmatory into account. We apologize for any inconvenience this may have caused.

In case you would disagree with the assessment that the redacted data are personal/commercial data which can only be disclosed if such disclosure is legitimate under the applicable rules on the protection of personal/commercial data, you are entitled, in accordance with Article 7(2) of Regulation (EC) No 1049/2001, to submit a confirmatory application requesting the EESC to review this position. Such a confirmatory application should be addressed within 15 working days upon receipt of this letter to the Secretariat-General of the EESC at the following address:

European Economic and Social Committee
Secretary-General
Rue Belliard 99-101
1000 Bruxelles, or by email to: [email address]

Yours faithfully,

The EESC Mail/Archives Sector

1 Official Journal L 205 of 21.11.2018, p. 39.
2 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case http://curia.europa.eu/juris/document/do..., Peter Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35, http://curia.europa.eu/juris/document/do....    
3 Judgment of 29 June 2010 in Case C28/08 P, European Commission v The Bavarian Lager Co. Ltd, EU:C:2010:378, paragraph 59.
4 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 2018/1725.

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