EUROPEAN COMMISSION
Brussels, 14.02.2023
C(2023) 1171 final
Mr Pascoe Sabido
Corporate Europe Observatory,
Rue d’Edimbourg 26,
1050 Brussels
Belgium
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 2022/2408
Dear Mr Sabido,
I refer to your email of 11 October 2022, 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’).
Please accept our apologies for the delay in handling of your request.
1.
SCOPE OF YOUR REQUEST
In your initial application of 11 April 2022, addressed to the Directorate-General for
Climate Action, you requested access to, I quote:
‘1- all correspondence (including email, SMS, private twitter and WhatsApp)
since 1st February 2022 between Commissioner Timmermans, and/or his cabinet
and/or officials from DG CLIMA with representatives from Wintershall, Uniper
Fortum, OMV, RWE, TotalEnergies, ExxonMobil, Shell, BP, Equinor, Eni,
Repsol, Galp in which the EU’s response to Ukraine invasion, particularly the
rePower communication was discussed.
2- any briefings prepared for Commissioner Timmermans, and/or his cabinet
and/or officials from DG CLIMA for meetings since 1st February 2022 with
representatives from Wintershall, Uniper Fortum, OMV, RWE, TotalEnergies,
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
ExxonMobil, Shell, BP, Equinor, Eni, Repsol, Galp in which the EU’s response
to Ukraine invasion, particularly the rePower communication was discussed.
3 - list of meetings since since since 1st February 2022 between Commissioner
Timmermans, and/or his cabinet and/or officials from DG CLIMA with
representatives from Wintershall, Uniper Fortum, OMV, RWE, TotalEnergies,
ExxonMobil, Shell, BP, Equinor, Eni, Repsol, Galp in which the EU’s response
to Ukraine invasion, particularly the rePower communication was discussed.
4 - minutes of the meetings mentioned above.’
When an application for access to documents covers topics falling under the
responsibility of different Commission services, such an application is split into separate
requests, whereby each part is attributed to the respective Commission service under a
separate reference number. Each service provides its own, separate reply, which relates
only to the documents held by that service. In this regard, the present confirmatory
decision concerns only the review of the initial reply of the Directorate-General for
Climate Action of 18 July 2022, registered under reference number 2022/2408.
The Directorate-General for Climate Action identified the following documents as falling
under the scope of your request:
- RWE and others, 5 May 2022, registered under reference number
Ares(2022)3460591 (hereafter ‘document 1’);
- RWE and others, 5 May 2022, registered under reference number
Ares(2022)3460591 (hereafter ‘document 2’).
In its initial reply of 18 July 2022, the Directorate-General for Climate Action:
- granted wide partial access to document 1 with the exception of some parts which
were redacted based on the exception laid down in Article 4(1)(b) (protection of
privacy and the integrity of the individual) of Regulation (EC) No 1049/2001;
- granted full access to document 2;
- with regard to point 3 of your initial application, referred you to the respective
website, where you can find information on meetings of the Director-General of
the Directorate-General for Climate Action with organisations and self-employed
individuals, and informed you that the European Commission does not hold any
documents that would correspond to the description given in your application.
In your confirmatory application, you question the absence of further documents.
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 conducts a review of the reply
given by the Directorate-General concerned at the initial stage.
Against the background brought in your confirmatory application, the European
Commission has carried out a renewed, thorough search for the documents requested.
2
Following this renewed search, the Secretariat-General has identified the following
documents as falling under the scope of your request:
- Third joint industry letter on hydrogen & Delegated Act RED II – mail, 24 March
2022, registered under reference number Ares(2022)8767313 (hereafter
‘document 3’);
- Third joint industry letter on hydrogen & Delegated Act RED II – letter, 24
March 2022, registered under reference number Ares(2022)8767313 (hereafter
‘document 4’).
Following this review, I am pleased to inform you that:
- full access is given to document 4,
- wide partial access is given to document 3 with the exception of limited parts
which are redacted based on the exception laid down in Article 4(1)(b)
(protection of privacy and the integrity of the individual) of Regulation (EC) No
1049/2001.
2.1. 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’.
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.
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’5. Likewise, in the
Psara judgment, the General Court added
that Article 4(1)(b) ‘establishes a specific and reinforced system of protection of a person
whose personal data could, in certain cases, be communicated to the public […]’6.
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 Official Journal L 8, 12.1.2001, p. 1.
5
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
6 Judgment of 25 September 2018,
Maria Psara and Others v
European Parliament, T-639/15 to T-
666/15 and T-94/16, EU:T:2018:602, paragraph 65.
3
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/EC7 (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.
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’8.
Document 3 contains personal data such as the names, functions, and contact details of
natural persons external to the European Commission who are not public figures.
The names 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) 2018/17259.
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’.
Only if these conditions are fulfilled 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.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data10. This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
7 OJ L 295, 21.11.2018, p. 39.
8 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.
9
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
10 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v
European Food Safety Authority,
C-615/13 P, EU:C:2015:489, paragraph 47.
4
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the 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 weighed the various competing interests.
In your confirmatory application, 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 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 the disclosure of the personal data
reflected in the document requested, 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, the Secretariat-General concludes that, pursuant to Article 4(1)(b) of
Regulation (EC) No 1049/2001, access cannot be granted to the withheld 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 the disclosure of the personal data concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, partial access has
been granted to document 3. No further partial access can be granted without
undermining the interest protected by Article 4(1)(b) (protection of privacy and the
integrity of the individual) of Regulation (EC) No 1049/2001.
5
5.
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)
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Document Outline