C(2018) 8060 final
Mr Bram Vranken
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 –Gestdem 2018/2431
Dear Mr Vranken,
I refer to your email of 26 July 2018, registered on 27 July 2018, in which you submit, on
behalf of Vredesactie
, 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').
SCOPE OF YOUR REQUEST
On 23 April 2018 you submitted an initial application in which you requested access to:
- ‘the list of members appointed to the Advisory Group and the Declaration of
Interests submitted by these members;
- [a]ll documents – including but not limited to emails, presentations, agendas and
minutes related to the Advisory Group for the Preparatory Action on Defence
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/
On 24 July 2018, the Directorate-General for Internal Market, Industry, Entrepreneurship
and SMEs identified 13 documents, listed in an annex to its reply, as falling under the
scope of the request.
In its reply, the Directorate-General for Internal Market, Industry, Entrepreneurship and
- granted access to document 9, subject only to the redaction of personal data;
- refused access to the remaining 12 documents on the basis of the exceptions for,
respectively, the protection of the public interest as regards defence and military
matters provided for in the second indent of Article 4(1)(a) of Regulation 1049/2001;
the protection of privacy and integrity of the individual provided for in Article 4(1)(b)
of Regulation 1049/2001; as well as the exception protecting the decision-making
process laid down in Article 4(3), first subparagraph of Regulation 1049/2001.
In your confirmatory application, you request a review of this position. In particular, you
argue that the reply of the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs does not provide a list of members appointed to the advisory
group and the declaration of interests submitted by these members. You also argue that
the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs did
not provide any of the presentations, agendas, minutes or any other relevant documents
referred to in the call for applications for the selection of members of the Advisory Group
for the Preparatory Action on Defence Research.
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.
Concerning your request for access to the list of members of the advisory group and the
corresponding declarations of interests, as well as presentations, agendas, minutes and
other documents related to this group, please note that the Advisory Group for the
Preparatory Action has not yet been established by the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs. There is indeed an announcement of this
group made in the register of expert groups, but for the time being, no members have
been appointed and no meetings have taken place.
It follows that there are no documents that could fall under the scope of the request
related to the activities of the group. In light of the above, given that the European
Commission does not hold any of the documents to which you refer in your application,
it is not possible to handle your application in so far as point 1 and the relevant parts of
point 2 thereof are concerned.
However, the Commission has identified 13 internal documents, including the call for
applications relating to the launching of the group which, as explained above, has not yet
been set up.
With regard to documents identified at the initial stage, I can inform you that full access
is granted to documents 6 and 8 and wide partial access is granted to documents 1, 2, 3,
4, 5, 7, 10, 11 and 12. The limited redactions are based on the exception protecting
privacy and the integrity of the individual, provided for in Article 4(1)(b) of Regulation
With regard to documents 1 and 13, certain parts thereof fall out of the scope of your
request, as they concern a different subject matter.
As regards the part of document 13 containing information relevant for your request,
access is partially granted. The redacted part is covered by the exception provided for in
Article 4(3), first subparagraph, of Regulation 1049/2001 (protection of the decision-
The detailed reasons are set out below. 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 undisclosed parts of documents 1, 2, 3, 4, 5, 7, 10, 11 and 12 contain the names,
surnames, contact details (email and office addresses and telephone numbers) of staff
members of the European Commission who do not hold any senior management position.
The undisclosed parts of document 12 also contain names, surnames and contact details
(email addresses and telephone numbers) of a third party representative to whom the call
Furthermore, the relevant undisclosed parts of the documents contain the biometric data
(handwritten signatures of the staff members of the European Commission or third party
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
It follows that public disclosure of all of the 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
ruling3, 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 cumulative4.
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 subject5. Indeed, in its 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 access’6. 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 data7.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing the personal data included in documents.
Therefore, I conclude that the transfer of personal data through the public disclosure of
the personal data included in the above-mentioned documents cannot be considered as
fulfilling the requirements of Regulation 45/2001. Consequently, the use of the exception
under Article 4(1)(b) of Regulation 1049/2001 is justified, as there is no need to disclose
publicly 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.
Furthermore, as regards the handwritten signatures of staff members of the European
Commission and third party representatives, which are biometric data, there is a risk that
their disclosure would prejudice the legitimate interests of the persons concerned.
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.
Ibid, paragraphs 77-78.
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.
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.
2.2. Protection of the decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that ‘access to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
As already explained, documents 1 and 13 are minutes of Commission internal meetings.
Most parts of these documents are out of scope as they do not concern the establishment
of the Advisory Group for Preparatory Research. Two paragraphs contain positions
regarding the establishment of the Advisory Group for the Preparatory Action on
As the future of the group has not yet been decided, any possible disclosure at this stage
would seriously harm the ongoing decision-making process on this matter. The topic
discussed could affect the orientations and strategic thinking about the actions on defence
research and the decision-making initiatives of the European Defence Fund, which is in
its implementation (project selection) phase, based on the preparatory action for defence
Public disclosure of the above-mentioned parts of document 13 would reveal information
concerning the European Commission’s possible actions in the defence domain.
Indeed, the defence domain is particularly sensitive due to its very nature and its intrinsic
link with the security of the Member States and the European Union. This is particularly
true given the unstable international context and the fact that the European Union is
facing a complex and challenging environment in which new threats, such as hybrid and
cyber-attacks, are emerging, and more conventional challenges are returning.
The undisclosed parts of the documents include a description of policy options for the
future shape of the above-mentioned programmes. Publically revealing these policy
options would seriously undermine the margin for manoeuvre of the European
Commission in exploring, in the framework of the ongoing negotiations with the
Member States, all possible policy options free from external pressure. The release of
these policy options (as reflected in document 13) would reveal steps and approaches to
be taken and would therefore seriously undermine the current decision-making process.
Having regard to the above, I consider that the use of the exception under Article 4(3),
first subparagraph, of Regulation 1049/2001 is justified concerning parts of document 13
and that access thereto must be refused on that basis.
As explained above, wide partial access is granted to documents 1, 2, 3, 4, 5, 7, 10, 11
and 12, subject to redaction of personal data.
With regard to remaining document 13, which was withheld entirely at initial stage,
partial access is granted in accordance with Article 4(6) of Regulation 1049/2001.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(1)(b) of Regulation 1049/2001 does not need to be
balanced against overriding public interest in disclosure.
The exception laid down in Article 4(3) 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 confirmatory request, you do not put forward any arguments relating to an
overriding public interest in disclosure. In this context, I would like to refer to the
judgment in the Strack
case8, where the Court of Justice ruled that in order to establish
the existence of an overriding public interest in transparency, it is not sufficient merely to
rely on that principle and its importance. Instead, an applicant has to show why in the
specific situation the principle of transparency is in some sense especially pressing and
capable, therefore, of prevailing over the reasons justifying non-disclosure9.
Based on my own analysis, I have not been able to identify any other elements capable of
demonstrating the existence of a public interest that would override the need to protect
ongoing decision-making process concerning the establishment of an advisory group
under the preparatory action on defence research, grounded in the first subparagraph of
Article 4(3) of Regulation 1049/2001.
8 Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P, Strack v European
, (ECLI:EU:C:2014:2250), paragraph 128.
9 Ibid, paragraph 129.
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 a complaint to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
For the Commission