Ref. Ares(2022)6210161 - 08/09/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MOBILITY AND TRANSPORT
The Director General
Brussels
MOVE.DDG1.B.4/
move.ddg1.b.4(2022)6116573
Kalina Dmitriew,
1 Long Ln
London
United Kingdom
By registered email with
acknowledgment of receipt:
ask+request-11650-
xxxxxxxx@xxxxxxxx.xxx
Dear Ms. Dmitriew,
Subject:
Your application for access to documents – GESTDEM 2022/4335
We refer to your e-mail dated 28 July 2022 in which you make a request for access to
documents, registered on the same date under the above mentioned reference number, as
well as to our holding reply dated 19 August 2022.
You request access to the following documents:
“All documentation, including, but not limited to, attendance lists, agendas, background
papers, minutes/notes and email correspondence about or summarising, the following
meetings of Director-General Henrik Hololei and DG MOVE and their cabinet with
multiple organisations:
1. Meeting with Verband der Automobilindustrie (VDA) on 15/06/2022 about the
situation of automotive industry and Fit for 55.
(…)”.
Please note that due to the wide scope of your request, covering also areas falling under
the responsibility of different units of the Directorate-General for Mobility and Transport
(DG MOVE), your request has been attributed to multiple units1. This reply relates only
to the documents concerning the meeting listed above. You will receive the replies from
the other units of DG MOVE in due course.
1 In particular, the request registered under the reference number GESTDEM 2022/4336, which concerns
the “
Meeting with Airbus on 14/06/2022 about SAF” and the “
Meeting with Lufthansa Group (LHG)
on 25/05/2022 about Fit for 55”.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
I consider your request to cover documents held up to the date of your initial application,
i.e. 28 July 2022.
We have identified the following documents as falling within the scope of your application:
Annex 1: Briefing for the meeting between the Director-General of DG MOVE and
the German Association of the Automotive Industry (VDA), to be held on 15 June
2022;
Annex 2: Report of the meeting between the Director-General of DG MOVE and
the German Association of the Automotive Industry (VDA), held on 15 June 2022.
Concerning the documents listed above,
we have come to the conclusion that they may be
partially disclosed. First, 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 regarding public access to
European Parliament, Council and Commission documents2 (hereinafter ‘Regulation
(EC) No 1049/2001’), because they contain the following personal data:
– the names and contact information of Commission staff members not pertaining to the
senior management;
– the names and contact details of other natural persons;
– other information relating to identified or identifiable natural persons, in particular
references to their functions, to the extent that these would enable their identification.
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/EC3 (hereinafter ‘Regulation (EU) 2018/1725’, or
‘Data Protection Regulation’).
In particular, 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 data4.
2 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents, OJ L 145, 31.05.2001, p. 43.
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
(OC L 205 of 21.11.2018, p. 39).
4 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16,
Peter Nowak v Data
Protection Commissioner, ECLI:EU:C:2017:994, paragraphs 33-35.
2
In its judgment in Case C-28/08 P (Bavarian Lager)5, the Court of Justice ruled that when
a request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable6.
In your application, you indicate that your address is in the United Kingdom. Transfers of
personal data from the Commission to countries that are not members of the European
Economic Area (EEA) are regulated under Chapter V of the Data Protection Regulation.
According to Article 47(1) of this Regulation, a transfer of personal data to a third
country or an international organisation may take place where the Commission has
decided that the third country, a territory or one or more specified sectors within that
country, or the international organisation in question ensures an adequate level of
protection and where the personal data are transferred solely to allow tasks within the
competence of the controller to be carried out.
Based on the information available, the country of your residence is recognised by the
Commission as ensuring an adequate level of protection. However, we would further like
to inform you that 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 handling, in
accordance with the requirements of Article 5 of Regulation (EU) 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of the 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 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. 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 subjects concerned would be prejudiced by disclosure of
the personal data reflected in the documents, as there is a real and non-hypothetical risk
5 Judgment of 29 June 2010 in Case C-28/08 P,
Commission v Bavarian Lager, ECLI:EU:C:2010:378, paragraph 63.
6 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 (EU) 2018/1725.
3
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 contained in the requested
documents, as the need to obtain access therefore 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.
As regards
Annex 1, a complete disclosure is also prevented by the exceptions to the
right of access laid down in the first indent of Article 4(2) and in the second
subparagraph of Article 4(3) of Regulation (EC) No 1049/2001.
First, Article 4(2), first indent of Regulation (EC) No 1049/2001 provides that “
The
institutions shall refuse access to a document where 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”.
Indeed, a redacted part of this document contains commercially sensitive information on
the deployment of electric vehicles which, if made public, could affect the commercial
position of certain car manufacturers in the market, being therefore liable to undermine
the achievement of their commercial purposes and objectives.
Therefore, the exception laid down in Article 4(2), first indent of Regulation (EC) No
1049/2001 applies to a redacted part of
Annex 1.
Second, the second subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 sets
out that
“
Access to a document containing opinions for internal use as part of
deliberations and preliminary consultations within the institution concerned shall be
refused even after the decision has been taken if disclosure of the document would
seriously undermine the institution's decision-making process, unless there is an
overriding public interest in disclosure”.
Indeed, the disclosure of certain redacted parts of the document at this moment in time
would seriously jeopardise the decision-making process of the Commission even after the
adoption of the decisions, as they contain preliminary views and opinions for internal use
as part of consultations within the Commission; as the legislative procedures concerning
these proposals are still ongoing, the Union institutions must be free to explore all
possible options in preparation of their decisions free from external pressure. In addition,
the disclosure of such opinions could deter staff from formulating them independently,
and without being unduly influenced by the prospect of wide disclosure exposing the
institution of which they are part. It is to be noted that the possibility of expressing views
independently within the institution is necessary to encourage internal discussions with a
view to improving the functioning of the Commission, as well as to contribute to the
smooth running of its decision-making process7.
Therefore, the exception laid down in the second subparagraph of Article 4(3) of
Regulation (EC) No 1049/2001 applies to redacted parts of
Annex 1 as well.
7
Judgment of the General Court of 15 September 2016, Case T-18/15 -
Philip Morris v Commission,
ECLI:EU:T:2016:487, paragraph 87.
4
The exceptions laid down in Article 4(2) and (3) of Regulation (EC) No 1049/2001 apply
unless there is an overriding public interest in the disclosure of the documents. We have
examined whether there could be overriding public interests in the disclosure of the
redacted parts of the document in question. However, we have not been able to identify
such interests.
Please note that the disclosed briefing and meeting report were drawn up for internal use
under the responsibility of the relevant services of the Directorate-General for Mobility
and Transport. They solely reflect the authors’ interpretation of the interventions made,
and do not set out any official position of the third parties to which the documents refer.
They also do not reflect the position of the Commission, and cannot be quoted as such.
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled 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
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels,
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Finally, we kindly ask you to confirm receipt of this email.
Yours Sincerely,
Henrik HOLOLEI
Enclosure: 2 Annexes
5
Electronically signed on 07/09/2022 15:50 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121