Ref. Ares(2022)292194 - 14/01/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE AND CONSUMERS
Director-General
Brussels,
JUST.01.002/Ares(2022)208361
Ms Naomi HIRST
By e-mail:
ask+request-10325-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2021/7966
Dear Ms HIRST,
We refer to your e-mail of 03/12/2021 in which you make a request for access to
documents, registered on 07/12/2021 under the above mentioned reference number.
You request access to:
“
All documents—including but not limited to correspondence, emails, minutes, notes
(hand written or electronic), audio or video recordings, verbatim reports, operational
conclusions, lines to take, briefings, and presentations—related to the meeting on 2021-
12-01 between Didier Reynders and Google.”
Your application concerns the following documents:
- Minutes of the meeting with Google and Commissioner Reynders 01/12/2021
(reference number Ares(2021)7588752);
- briefing for the meeting between Google and Commissioner Reynders which took
place on 01/12/2021.
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents, we regret to inform you that full
disclosure of the identified documents is prevented by exceptions to the right of access laid
down in Article 4 of this Regulation.
Protection of privacy and the integrity of the individual
A complete disclosure of the identified documents is prevented by the exception concerning
the protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation (EC) No 1049/2001, because they contain the following personal data:
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË
-
the names/initials and contact information of Commission staff members not
pertaining to the senior management;
-
the names/initials and contact details of other natural persons.
Article 9(1)(b) of the Data Protection Regulation does not allow the transmission of these
personal data, except if you prove that it is necessary to have the data transmitted to you
for a specific purpose in the public interest and where there is no reason to assume that
the legitimate interests of the data subject might be prejudiced. In your request, you do not
express any particular interest to have access to these personal data nor do you put forward
any arguments to establish the necessity to have the data transmitted for a specific purpose
in the public interest.
Consequently, we conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents, 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.
Protection of the public interest as regards international relations (page 20 of the
briefing)
Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001 provides that the
'institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]'.
We consider that making the redacted parts public would seriously prejudice the mutual
trust between the European Union and the United States, both as regards the ongoing
talks on a new transatlantic data transfer framework after the invalidation of the EU-U.S.
Privacy Shield by the Court of Justice of the European Union and other transatlantic files.
After the invalidation of the European Commission’s adequacy decision 2016/1250
regarding the EU-U.S. Privacy Shield, the European Commission and the U.S.
Department of Commerce are in negotiations on a strengthened transatlantic data transfer
framework to comply with the judgement of the Court of Justice. In light of these
ongoing talks, it is important to protect the credibility of the European Commission as a
negotiating partner. Establishing and protecting an atmosphere of mutual trust is a
delicate exercise and any breach of that trust can have a serious adverse effect on the
ongoing talks as well as future cooperation.
Protection of the commercial interests of a natural or legal person
With regard to the
page 26 of the briefing we would like to note that it contains
commercially sensitive business information of the company that submitted it. Disclosure of
the content would undermine the protection of the commercial interests of the company that
submitted it, as putting this information in the public domain would affect its competitive
position on the market. Therefore the exception laid down in Article 4(2) first indent of
Regulation (EC) No 1049/2001 applies to this document.
2
Protection of the purpose of inspections, investigations or audits (pages 1, 4 of the
briefing)
It follows from the case-law of the General Court that the exception in Article 4(2), third
indent, of Regulation 1049/2001 applies if disclosure of the documents in question may
endanger the completion of inspections, investigations or audits (
Judgment of 6 July
2006, Franchet and Byk v Commission, T-391/03 and T-70/04, paragraphs 109 and 110).
The exception may also be invoked with respect to investigations carried out by national
authorities (
Judgment of the General Court of 12 May 2005 in case T-623/13, Unión de
Almacenistas de Hierros de España v Commission, paragraph. 44). In this case, some of
the redacted parts contain information about ongoing investigations by national data
protection authorities and related discussions at the level of the European Data Protection
Board, which are treated as confidential by the Board in accordance with Article 76(1) of
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal data
and on the free movement of such data, and repealing Directive 95/46/EC (General Data
Protection Regulation). There is a foreseeable risk that making the information public
would interfere with the task of national data protection authorities to independently and
effectively investigate and enforce compliance with the General Data Protection
Regulation, as it would expose the authorities and the European Data Protection Board to
the foreseeable risk of coming under outside pressures. Moreover, disclosing the
information would seriously affect the climate of mutual trust between the Commission
and the European Data Protection Board.
The exceptions laid down in Article 4(2) of Regulation 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 request, you do
not put forward any reasoning pointing to an overriding public interest in disclosing the
document request, nor have we been able to identify any public interest capable of
overriding the public and private interests protected by Article 4(2) of Regulation
1049/2001.
These documents were drawn up for internal use under the responsibility of the DG
JUST. It solely reflects DG JUST interpretation of the interventions made and does not
set out any official position of the third parties to which the document refers, which was
not consulted on its content. It does not reflect the position of the Commission and
cannot be quoted as such
In case you would disagree with this position, you are entitled, in accordance with Article
7(2) of Regulation (EC) No 1049/2001, to submit a confirmatory application requesting the
Commission 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 Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
3
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
According to standard operational procedure, the reply to a request for access to documents
is usually sent by registered post. Please note, however, that due to the extraordinary health
and security measures currently in force during the COVID-19 pandemic, which include the
requirement for all Commission non-critical staff to telework, we are unfortunately not in a
position to follow this procedure until further notice.
We would therefore appreciate if you could confirm receipt of the present e-mail by
replying to
xxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx. Yours faithfully,
(e-signed)
Ana GALLEGO TORRES
4
Electronically signed on 14/01/2022 15:15 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482