EUROPEAN COMMISSION
Brussels, 20.3.2018
C(2018) 1829 final
Mr Kieran FITZPATRICK
Anbally 17
H54 Ax90 Galway
Ireland
DECISION OF THE SECRETARY-GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - Gestdem 2018/629
Dear Mr FITZPATRICK,
I refer to your email of 19 February 2018, registered on 20 February 2018, in which you
submit 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 ('Regulation 1049/2001').
1. SCOPE OF YOUR REQUEST
In your initial application of 30 January 2018, you requested access to [d]
ocumentation
which helps to identify those member states of the EU which have not been supportive of
the EU's (former) efforts to bring into effect the access to justice (ATJ) Directive related
to the Aarhus Convention, namely COM 2003/0624 (Proposal for a Directive of the
European Parliament and of the Council on access to justice in environmental matters /*
COM/2003/0624 final - COD 2003/0246 *, i.e." the Directive".).
In your application, you clarified that you are particularly interested in:
1 Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail: xxxxxxxxxx@xx.xxxxxx.xx
1. (…)
any documentation which indicates any member state's reluctance (or any
reluctance as expressed by any official of a member state) to implement the specified
proposed EU Directive,
2.
If there is documentation available as requested in question 1, but which fails to
identify all member states which have failed to support the Directive, then [you]
would
seek (…)
any documentation which outlines support for the Directive by any or all
members states (or by officials thereof),
3.
If and when the above documentation (questions 1/2) is made available, it fails to
clarify the attitude of each member state to the proposed Directive, or no such
documentation is obtainable, then, [you]
seek (…)
all documentation between the
Commission (including any commissioner and/or any EU official) to any member state
(or any ministry or emanation or official of a member state), which sought to gain
information on the attitude of any member state towards implementation of the Directive.
You also underlined that [w]
here there are multiple documents which outline the attitude
of a particular member state to the Directive, then [you]
seek only the most recent
documentation which clarifies such an attitude.
Your initial application was attributed to the Directorate-General for Environment, which
provided its reply on 19 February 2018.
In its reply, the Directorate-General for Environment informed you that in 2014, the
Commission decided to withdraw the proposal for the Directive in question and provided
you additional background information concerning that withdrawal. The Directorate-
General for Environment also referred you to publically available information (by
providing hyperlinks to the relevant pages on the
Europa website).
The Directorate-General for Environment also disclosed the Working Document on
possible options for a new Commission initiative on access to justice3, prepared in 2013
by the Commission in the context of the discussions on the proposal of the above-
mentioned Directive in the relevant Working Group in the Council.
Finally, the Directorate-General for Environment underlined that due to a high turnover
of officials in charge of the above-mentioned file, it was not able to identify any other
documents (other than those mentioned above), such as minutes of the respective Council
Working Group.
Through your confirmatory application, you request a review of this position and present
arguments supporting your request. You point out that certain hyperlinks included in
Directorate-General for Environment initial reply lead to pages that are not functional
anymore.
3 Ares(2018)941159.
2
In particular, the
link [to]
the questionnaire/consultation results is not functional, nor is
your letter link to a ‘short summary’. Further, you request access to that questionnaire,
which, in your view, falls under the category of documents described in point (3) of your
initial application, and raise a series of questions regarding the public consultations in
which the above-mentioned questionnaire was used. The questions relate to the various
procedural aspects of the consultations, and consequently, they will be assessed in point 3
of this decision.
With regard to the
short summary outlining the activities of the Commission's expert
group on Aarhus Implementation (group’s reference: E00390), it can be found in the
Commission Register on Expert Groups4.
As regards the minutes of the Council Working Group meeting of 13 May 2013, which,
according to the reply of Directorate-General for Environment, the latter does not hold,
you argue that Directorate-General for Environment
did not clarify if such minutes are
held by other EU entities. In this context, you refer to Article 7 of Regulation 1367/20065
and the obligations6 provided for therein.
Against this background, the Commission has carried out a renewed, thorough search for
the documents falling under the scope of your application. The scope thereof is
interpreted to cover the documents containing information regarding the Member State(s)
that were (i)
reluctant to support the draft Directive 2003/062 and those which (ii) did
support that Directive, as well as (iii) the communications (from the Commission) aimed
at gaining
information on the attitude of any member state towards implementation of the
[above-mentioned]
Directive. Following this renewed search, the Commission has
identified the following documents (in addition to the ones identified and referred to by
Directorate-General for Environment in its initial reply) as falling under the scope of
your application:
−
Statistics of responses provided through the questionnaire in the public
consultations on
Access to justice in environmental matters – options for
improving access to justice at Member State level (hereafter 'document 1'),
The document was generated by means of results/search page of the
Internal Policy Making tool7. The document contains the list of multiple-
4
http://ec.europa.eu/transparency/regexpert/index.cfm. It is not possible to provide the direct hyperlink
to the page containing the summary. It is necessary to enter the keyword
Aarhus or the number of the
group (E00390) in the browser field available on the above-mentioned webpage.
5 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006
on the application of the provisions of the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters to Community
institutions and bodies. Official Journal L 264 of 25.9.2006, p. 13.
6 Where a Community institution or body receives a request for access to environmental information
and where this information is not held by that Community institution or body, it shall (…) inform the
applicant of the Community institution or body or the public authority within the meaning of Directive
2003/4/EC to which it believes it is possible to apply for the information requested or transfer the
request to the relevant Community institution or body or the public authority and inform the applicant
accordingly.
7 The tool used by the Commission for public consultations.
3
choice questions, forming part of the public consultation in 2013. The
questionnaire is not available on-line any more, given the closure of the
related consultation.
It includes also the statistics for the replies received from public
authorities (national/regional/local authorities or national judges) to the
consultation,
−
Summary of the Council Group meeting of 21 November 2003, ref.:
Ares(2018)1100116 (hereafter: ‘document 2’),
−
Summary of the Council Group meeting of 16 December 2003, ref.:
Ares(2018)1100178, (hereafter: ‘document 3’),
−
Report from Council Environment Group’s meeting of 3 March 2005, ref.:
Ares(2018)1100231, (Hereafter: ‘document 4’),
−
Summary outlining the issues discussed during the meeting of the
Working party on International Environment Issues on 13 May 2013, ref.:
Ares(2018)11002648, (hereafter: ‘document 5’).
With regard to the minutes of the Council Working Group meeting of 13 May 2013, as
the Commission does not hold this document, in line with the provisions of Article 7 of
Regulation 1367/2006, your application was transmitted to the Council for handling and
follow-up.
2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I am pleased to inform you that full access is granted to document
1. Wide partial access is granted to documents 2 – 5, with only personal data redacted on
the basis of the exception in Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation 1049/2001, as explained in point 2.1 of this decision. Please
find copies of these documents enclosed.
Please note that only some parts of documents 2 – 5 concern positions of the Members
States to implement the draft Directive in question. The remaining content concerns
different aspects of the process and does not reflect such positions. This information falls
outside the scope of your application. Consequently and therefore, it has been removed
from the documents released.
8 This document does not contain the
minutes of that meeting. The Commission staff prepared it solely
for internal purposes.
4
2.1
Protection of the privacy and integrity of the individual
Article 4(1)(b) of Regulation 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.
The relevant undisclosed parts of documents 2 – 5 contain the names and surnames and
contact details (email address) of Commission staff members not holding any senior
management position.
These undoubtedly constitute personal data within the meaning of Article 2(a) of
Regulation 45/2001, which defines it as
any information relating to an identified or
identifiable natural person (…); an identifiable person is one who can be identified,
directly or indirectly, in particular by reference to an identification number or to one or
more factors specific to his or her physical, physiological, mental, economic, cultural or
social identity.
It follows that public disclosure of all above-mentioned personal information, would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
In accordance with the
Bavarian Lager ruling9, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
According to Article 8(b) of that Regulation, personal data shall only be transferred to
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced. Those two conditions are cumulative10.
Only if both conditions are fulfilled and the transfer constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 45/2001, can the processing
(transfer) of personal data occur.
In that context, whoever requests such a transfer must first establish that it is necessary. If
it is demonstrated to be necessary, it is then for the Institution concerned to determine
that there is no reason to assume that that transfer might prejudice the legitimate interests
of the data subject11.
9
Judgment of the Court (Grand Chamber) of 29 June 2010 in Case C-28/08 P,
European Commission v
the Bavarian Lager Co. Ltd. (ECLI:EU:C:2010:378), paragraph 63
.
10 Ibid,
paragraphs
77-78.
11 Ibid.
5
Indeed, in the recent judgment in the
ClientEarth case, the Court of Justice ruled that
whoever requests such a transfer must first establish that it is necessary. If it is
demonstrated to be necessary, it is then for the institution concerned to determine that
there is no reason to assume that that transfer might prejudice the legitimate interests of
the data subject. If there is no such reason, the transfer requested must be made,
whereas, if there is such a reason, the institution concerned must weigh the various
competing interests in order to decide on the request for access12. I refer also to the
Strack case, where the Court of Justice ruled that the Institution does not have to examine
by itself the existence of a need for transferring personal data13.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing the personal data included in documents 2 – 5.
Therefore, I have to conclude that the transfer of personal data through the public
disclosure of the personal data included in documents 2 – 5 cannot be considered as
fulfilling the requirements of Regulation 45/2001. In consequence, the use of the
exception under Article 4(1)(b) of Regulation 1049/2001 is justified, as there is no need
to publicly disclose the personal data included therein, and it cannot be assumed that the
legitimate rights of the data subjects concerned would not be prejudiced by such
disclosure.
3. ISSUES FALLING OUTSIDE THE SCOPE OF THE ASSESSMENT UNDER
REGULATION1049/2001
In your confirmatory application, you argue that the initial reply of Directorate-General
for Environment,
fail[s]
to clarify, if the questionnaire was sent to all 28 member states […]. In this context, you suggest that
the Commission could provide [you with]
a copy of
the questionnaire as sent to each member state Environment-Ministry, or provide one
such questionnaire in English, clarifying the dates that it was sent to each state.
You also ask to clarify
if any particular state failed to respond to the questionnaire, was
a reminder letter/email sent?
I would like to clarify that the questionnaire, containing the same questions as those
included in document 1, was made available to the general public in the context of the
public consultations held from 28 June until 23 September 2013. Consequently, no
questionnaire was
sent specifically to the authorities of any Member State.
The participation in the consultations was voluntary and open to the general public.
Authorities in the Member States were also entitled to take part in the consultations and
some of them effectively did so. Due to the voluntary character of the consultations no
reminders were sent to the authorities of the Members States, which decided not to
participate in the consultations.
12 Judgment of the Court of Justice of 16 July 2015 in Case C-615/13 P,
ClientEarth v EFSA,
(ECLI:EU:C:2015:219), paragraph 47.
13
Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 106.
6
4. MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the 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
Martin SELMAYR
Secretary-General
7
Document Outline