Ref. Ares(2019)2387732 - 04/04/2019
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MARITIME AFFAIRS AND FISHERIES
Director-General
Brussels,
MARE.E.4/MLC/ae
Ms. Anne Friel
Client Earth
36 Avenue de Tervuren
1040 Brussels
BELGIUM
By registered letter with acknowledgment of receipt
Advance copy by email: xxxxxx@xxxxxxxxxxx.xxx
Subject:
Your application for access to documents – Ref GestDem No
2019/768
Dear Madam,
We refer to your e-mail dated 8 February 2019 in which you make a request for access to
documents, registered on 11 February 2019 under the above-mentioned reference
number.
You request access to the following documents related to the total allowable catches
(TACs) for fish stocks in the Northeast Atlantic for 2019:
1.
Any records, minutes or notes of meetings/discussions that took place between
the Commission and the Member State representatives on the TACs for 2019,
including any minutes or notes of Council working party/ministerial meetings
taken by Commission staff, and any internal Commission briefings on the
subject.
2.
A full table of all proposed and agreed quota adjustments (such as those
previously referred to as quota top-ups or any deductions) to account for a)
catches that could be discarded before the introduction of the landing
obligation, but now will have to be landed and b) exemptions from the landing
obligation (in tonnes and %), and TACs before the adjustments (top-ups or
deductions) were applied;
3.
A detailed description of the methodology used to calculate quota adjustments
(top-ups or deductions);
4.
The calculations that the proposed and agreed quota adjustments (top-ups or
deductions) were based on, ideally in Excel spreadsheet format.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: J-99 05/14 ‐ Tel. direct line +32 229 96310
5.
Any documents relating to exemptions from the landing obligation within the
period commencing with the STECF’s Expert Working Group 18-06 of June
2018 and ending with the Commission’s adoption of the draft discard plans for
2019 in October 2018, including any correspondence between the Commission
and the Member States and any records, minutes or notes of
meetings/discussions that took place between the Commission and the
Member States regarding this matter.
We understood that you do not seek access to documents that you can search for in the
Council register. Therefore, these documents are not included in our assessment.
My services have examined the documents requested under the provisions of Regulation
(EC) No 1049/2001 regarding public access to documents and concluded that access can be
fully or partially granted to some of them.
1. Documents not existing
I regret to inform you that the Commission does not hold any documents that would
correspond to the description given in your application under
category 2, as the
Commission did not produce any table that matches the features requested in your
application.
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as defined
in that regulation applies only to existing documents in the possession of the institution.
Given that no such documents, corresponding to the description given in your application
under category 2, are held by the Commission, the Commission is not in a position to fulfil
your request.
2. Documents for which access is fully or partially granted
We enclose a copy of the documents requested under
categories 3, 4 and 5. You may reuse
them free of charge for non-commercial and commercial purposes provided that the source
is acknowledged, and that you do not distort the original meaning or message of the
document. Please note that the Commission does not assume liability stemming from the
reuse.
Please note that some of the documents under category 3 and 5 to which you request
access contain personal data, in particular names, functions and handwritten signatures.
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) No 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/EC1 (‘Regulation 2018/1725’). Indeed, Article 3(1) of
Regulation 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
1Official Journal L 205 of 21.11.2018, p. 39.
2
information, which by reason of its content, purpose or effect, is linked to a particular
person is to be considered as personal data.2
Please note in this respect that the names, signatures, functions, telephone numbers and/or
initials pertaining to staff members of an institution are to be considered personal data3.
In its judgment in Case C-28/08 P (
Bavarian Lager)4, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable.5
Pursuant to Article 9(1)(b) of Regulation 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 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 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 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
2Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994.
3Judgment of the General Court of 19 September 2018 in cas
e T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
4Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
5Whereas 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 2018/1725.
3
data reflected in the documents, 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, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, 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.
As to the handwritten signatures contained in some documents under category 5, which are
biometric data, there is a risk that their disclosure would prejudice the legitimate interests of
the persons concerned.
3. Documents to which access is not granted
Your request concerns also the following documents:
-
Under
category 5:
o Flash report of 31-10-2018 – North Western Waters Member States
Technical Group, 31-10-18 (Ares(2018)5577984),
o Flash report of 29.06.2018 - Scheveningen Technical Group, 27-28 June
2018 (Ares(2018)3467351),
o Flash report of 13.09.2018 - Scheveningen Technical Group, 12 September
2018 (Ares(2018)4704823),
o Annex to document No Ares(2018)3460993 of 29-06-2018 - “La
selectividad del arte de pesca del voraz del Estrecho de Gibraltar”,
o Flash report of 19-10-2018 - Scheveningen Technical Group, 18 October
2018 (Ares(2018)5375035);
-
Under
category 1:
o Flash report of 26.09.2018 - meeting Mr. Aguiar Machado/Secretary
General of Fisheries of Spain, 7 September 2018 (Ares(2018)4943657).
As regards all of these documents, I regret to inform you that access cannot be granted, as
disclosure is prevented by the exception to the right of access laid down in the second
subparagraph of Article 4(3) and the second subparagraph of Article 4(2) first indent of this
Regulation.
In particular, the annex to document No Ares(2018)3460993 mentioned above is a doctoral
thesis, which, as such, is protected by intellectual property rights. Its disclosure is then
prevented by the exception to the right of access laid down in the second subparagraph of
Article 4(2) first indent of Regulation 1049/2001. All the other documents you seek to
obtain are flash reports of meetings with groups of Member States. They contain opinions of
Commission staff regarding the other Institution’s and Member States negotiating stance,
which were drafted in the legitimate expectation that they would not be made public. The
opinions were expressed for internal use, in preparation of preliminary deliberations and
negotiations during the inter-institutional process. For the negotiations to have a successful
outcome, it is essential that representatives’ and delegations room for manoeuver is not
restricted by the disclosure of positions which the delegations had expressed freely and in
the legitimate expectation that these would not be made public. The fixing of fishing
opportunities is an ongoing process, which goes throughout the year, in particular through
various amendments and the fixing of fishing opportunities for the next year. Moreover, the
issues discussed and agreed are very similar from one year to another. Therefore, disclosure
4
of the documents requested would seriously undermine the decision-making process
protected by Article 4(3), second paragraph of Regulation (EC) No 1049/2001. For an
official record of the exchanges between Member States and the Commission on this topic,
you may want to address yourself to the Council, which has produced a comprehensive
report of the Council proceedings.
We have considered whether partial access could be granted to the documents requested.
However, no meaningful partial access is possible, as the whole content of the documents in
question is covered by the exception relating to the protection of the decision-making
process of the Commission, provided for in Article 4(3), second subparagraph and by the
exception relating to the protection of commercial interests, provided for in the first indent
of Article 4(2), second subparagraph of Regulation (EC) No 1049/2001.
The exceptions laid down in 4(3) and 4(2) of Regulation (EC) No 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. I note that you do not
put forward any elements to demonstrate the existence of an overriding public interest in
disclosure of the documents requested. Nor have I, based on my own analysis, been able to
identify any elements capable of demonstrating the existence of a public interest that would
override the need to protect the independence of the Commission's decision-making process
grounded in Article 4(3) of Regulation (EC) No 1049/2001 and the need to protect the
commercial interest of the natural person concerned grounded in Article 4(2) of this
Regulation.
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to make
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
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
João AGUIAR MACHADO
(e-signed)
5
Electronically signed on 03/04/2019 17:27 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563