EUROPEAN COMMISSION
Brussels, 29.3.2019
C(2019) 2640 final
Ms Josefina Martí
Calle de Juan Bravo 62
28006 Madrid
Spain
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 2019/0758
Dear Ms Martí,
I refer to your e-mail of 28 February 2019, registered on 1 March 2019, 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
documents (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 2 February 2019, addressed to the Directorate-General for
Justice and Consumers, you requested access to the following documents:
- ‘1) all the agendas/ minutes/ notes/ documents/ presentations/ videos (and any
other information) produced and exchanged in the meeting between Daniel
Braun, Cabinet member of Věra Jourová, and the European Jewish Congress in
Brussels on 24 June 2015.
- 2) a list of all the people present at the meeting and their roles’.
At initial stage, the Directorate-General for Justice and Consumers replied that, as for
point 1) of your request, the European Commission does not hold any documents that
would correspond to the description given in your application.
As for point 2), the Directorate-General for Justice and Consumers identified the
following document as falling within the scope of your request:
1
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- e- Pass document granting access to the Berlyamont building of 18 June 2015,
reference Ares(2019) 1459954.
This document was prepared to grant access to the Berlaymont building and lists the
external visitors participating in the meeting, referred to in your request. The Directorate-
General for Justice and Consumers refused access to the personal data contained in this
document based on the exception protecting the privacy and the integrity of the
individual provided for in Article 4(1)(b) of Regulation (EC) No 1041/2001.
In your confirmatory application, you request a review of this position, as regards point
2). Consequently, this review will focus on the refusal of the Directorate-General for
Justice and Consumers to disclose the personal data present in the document granting
access to the Berlyamont building, namely the names of external visitors taking part in
the meeting you refer to in your request.
You provide different arguments to support your request, which have been taken into
account in our assessment, the results of which are described below.
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 of the European Commission
conducts a fresh review of the reply given by the relevant Directorate-General at the
initial stage.
Following this review, I regret to inform you that I have to confirm the position of the
Directorate-General for Justice and Consumers and refuse access to the requested
document based on the protection of the privacy and integrity of the individual provided
for in Article 4(1)(b) of Regulation (EC) No 1041/2001.
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 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),2 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 data3
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
2 Judgment of the Court of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, paragraph 59.
3 Official Journal L 8 of 12.1.2001, p. 1.
2
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.4
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
Article 3(1) of Regulation (EU) No 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
Please note that the requested document includes the names and surnames of the meeting
participants. This information clearly constitutes personal data in the sense of Article 3(1)
of Regulation (EU) No 2018/1725 and in the sense of the
Bavarian Lager judgment5.
Pursuant to Article 9(1)(b) of Regulation (EU) No 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) No 2018/1725, can the
transmission of personal data occur.
Furthermore, 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 data.6
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.
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.
4
Official Journal L 205 of 21.11.2018, p. 39.
5
Bavarian Lager, cited above, paragraph 70.
6 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v European Food Safety Agency,
C-615/13 P, EU:C:2015:489, paragraph 47.
3
In your 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
subject’s legitimate interests might be prejudiced.
You argue that ‘[…] lobbyists have an obligation to be registered in the transparency
register (each lobby organization has accredited people). For this reason, and without
asking for personal data, I ask again for the names of the participants in the meeting’.
In this context, I would like to point out that the right to the protection of the privacy is
recognised as one of the fundamental rights in the Charter of Fundamental Rights, as is
the transparency of the processes within the Institutions of the EU. The legislator has not
given any of these two rights primacy over each other, as confirmed by the
Bavarian
Lager case-law referred to above7.
The European Commission has undertaken initiatives aimed at making its decision-
making processes more transparent, also from the point of view of accountability of its
staff members. Such initiatives include the pro-active publication of the names, surnames
and positions of staff members holding senior management positions within the
European Commission.
Nevertheless, I consider that with regard to third parties, in particular lobbyists, an
important distinction has to be made. Indeed, it is one thing to shed light on the interest
represented and another thing to disclose the personal data of the person representing the
interest. Whereas, the name of the organisation would in principle be disclosed, the
identities of members of this organisation deserve, in the view of the European
Commission, protection as their public disclosure would undermine the equilibrium
between the fundamental right to privacy and the obligation to ensure the transparency
and openness in order to enable the citizens to participate more closely in the decision-
making process.
Based on the information at my disposal, I note that there is a risk that the disclosure of
the names of the individuals appearing in the requested document would prejudice the
legitimate interests of the third-parties concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001 and Article 9(1)(b) of Regulation (EU) 2018/1725, access cannot be granted
to the 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 disclosure of the
personal data concerned.
7
Bavarian Lager, cited above, paragraph 56.
4
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
Please note that granting partial access to the document would be meaningless in this
case, since the document consists of the names and surnames of the third parties
concerned, to which the access is refused based on article 4(1)(b) of Regulation (EC) No
1049/2001.
5.
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 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
Martin SELMAYR
Secretary-General
5
Document Outline