EUROPEAN COMMISSION
Brussels, 2.7.2019
C(2019) 5154 final
Anne Friel
Client Earth
60 Rue du Trone (Box 11)
1050 Brussels
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 2019/768
Dear Ms Friel,
I refer to your email of 2 May 2019, registered on 3 May 2019, in which you submitted 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 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR APPLICATION
In your initial application of 8 February 2019, you requested access to, I quote, ‘[…]
documents related to the total allowable catches (TACs) for fish stocks in the Northeast
Atlantic for 2019’. You explained that your initial application covers, I quote:
‘1. Any records, minutes or notes of meetings/discussions that took place between the
[European]
Commission
and
the
Member
State
representatives
on
the
T[otal]A[llowable]C[atch]s for 2019, including any minutes or notes of Council working
party/ministerial meetings taken by Commission staff, and any internal [European]
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
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/
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
T[otal]A[llowable]C[atch]s 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.
5. […] any documents relating to exemptions from the landing obligation within the
period commencing with the S[cientific], T[echnical] and E[conomic] C[ommittee] for
F[isheries] Expert Working Group 18 of June 2018 and ending with the [European]
Commission’s adoption of the draft discard plans for 2019 in October 2018, including
any correspondence between the [European] Commission and the Member States and any
records, minutes or notes of meetings/discussions that took place between the [European]
Commission and the Member States regarding this matter.’
With regard to point one of your initial application, you clarified that, I quote, ‘[you] do
not seek access to the [European] Commission's legislative proposals for the 2018
T[otal]A[llowable]C[atch]s, unless such documents are annotated and/or contain
negotiation directives. [You] also do not seek access to the documents that are publicly
available in the Council’s document register, filed under interinstitutional code
2018/0380 (NLE) at the date of [your] request’.
Your initial application was attributed to the Directorate-General for Maritime Affairs
and Fisheries for handling and reply. It identified 114 documents as falling under the
scope of your application and in the initial reply, provided on 4 April 2019, granted wide
partial or full access to the majority of them.
Indeed, the Directorate-General for Maritime Affairs and Fisheries granted full or wide
partial access to 108 documents corresponding to points 3, 4 and 5 of your initial
application. In the documents which were not fully disclosed, the Directorate-General for
Maritime Affairs and Fisheries redacted personal data, based on the exception provided
for in Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of privacy and the
integrity of the individual).
With regard to the remaining six documents3, corresponding to points 1 and 5 of your
application, the Directorate-General for Maritime Affairs and Fisheries refused access
thereto. It invoked the exceptions provided for in Article 4(2), first indent, of Regulation
(EC) No 1049/2001 (protection of commercial interests of a natural or legal person) and
Article 4(3), second subparagraph, of the said regulation (protection of the decision-
making process).
3 The list of these documents was included in the initial reply of the Directorate-General for Maritime
Affairs and Fisheries of 4 April 2019.
2
The Directorate-General for Maritime Affairs and Fisheries also informed you that it did
not hold any documents falling under point 2 of your initial application.
On 2 May 2019 you submitted the confirmatory application. In that application, you
contest the statement of the Directorate-General for Maritime Affairs and Fisheries,
according to which it does not hold any documents corresponding to point 2 of your
initial application (documents relating to the quota adjustments).
Furthermore, you also argue that the European Commission holds more documents
relating to point 1 of the initial application, which, in your view, should have been
identified by the Directorate-General for Maritime Affairs and Fisheries and disclosed.
Following your confirmatory application, the European Commission identified one
additional document falling under point 1 of your initial application:
Note to the Members of the European Commission, dated 11 January 2019,
containing the summary record of the meeting of the Council of the European
Union (Agriculture and fisheries) of 17-18 December 2018, reference SI(2019)30
(hereafter ‘the new document’).
With regard to the six documents withheld at the initial stage, I would like to inform you
that document entitled ‘La selectividad del arte de pesca del voraz del Estrecho de
Gibraltar’ is a publically available document4.
Consequently, your confirmatory application is limited to the issue of documents falling
under points 1 and 2 of your initial application and the five documents, to which access
was refused in the initial reply of the Directorate-General for Maritime Affairs and
Fisheries. I note, however, that you do not contest the applicability of the exceptions
invoked at the initial stage by the above-mentioned Directorate-General to refuse access
to the five documents concerned.
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 conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
Following your confirmatory application, the European Commission has carried out a
renewed, thorough search for documents corresponding to points 1 and 2 of your initial
application. Following this renewed search, it identified one new document,
corresponding to point 1 of your application. With regard to the documents mentioned in
point 2 of your initial application, I confirm that the European Commission has not
identified any document falling under the scope of your application.
4 https://rodic.uca.es/xmlui/handle/10498/14855.
3
Indeed, as regards the documents corresponding to point 2 of your initial application,
concerning the quota adjustments (on the Total Allowable Catch for 2019), the European
Commission would like to underline that it disclosed at the initial stage the working
document distributed to the Member States in November 2018, which contains the
calculations applied to the deductions. I note that points 2, 3 and 4 of your initial
application, are closely connected, as they all relate to the issue of the Total Allowable
Catch quotas adjustments. Consequently, the above-mentioned document was understood
by the Directorate-General for Maritime Affairs and Fisheries as corresponding to point 4
of your initial application, although it contains information allowing to consider that it
relates also to point 2.
With regard to the actual content of the above-mentioned document, please note that the
discrepancies observed between the initial proposal of the European Commission and the
final adopted Total Allowable Catch is the result of political negotiations carried out
during the Council ministerial meeting. Consequently, no Commission documents exist
that corresponds to point 2 of your initial application. If any such documents were indeed
held by the Council, you are invited to contact the Council Secretariat for access to such
documents.
In line with the provisions of Article 2(3) and Article 10 of Regulation (EC) No
1049/2001, the right of access guaranteed by that Regulation applies only to existing
documents in possession of the institution concerned.
Article 2(3) of Regulation (EC) No 1049/2001 provides that ‘[t]his Regulation shall
apply to all documents held by an institution, that is to say, documents drawn up or
received by it and in its possession, in all areas of activity of the European Union’.
Article 10(3) of the above-mentioned regulation provides that ‘[d]ocuments shall be
supplied in an existing version and format […]’.
In the light of the above, given that the European Commission holds no documents
corresponding to point 2 of your initial application, it is not possible to handle this part of
your confirmatory application.
As regards the new document identified following your confirmatory application, I
would like to inform you that partial access is granted thereto. The undisclosed parts of
the document concerned require protection under the exceptions in Article 4(1)(b) of
Regulation (EC) No 1049/2001 and Article 4(3), first subparagraph, of that regulation.
Please note that the relevant parts of the document concerned contain information
unrelated to total allowable catches (for example, relating to the issues of the Common
Agricultural Policy). This information falls outside the scope of your application
Gestdem 2019/768 and was redacted as such.
With regard to the remaining five documents, I have to confirm the positon of the
Directorate-General for Maritime Affairs and Fisheries refusing access thereto. The
exceptions applicable are those provided for in Article 4(1)(b) of Regulation (EC) No
4
1049/2001 (protection of privacy and the integrity of individual) and Article 4(3), first
subparagraph, of that regulation (protection of the decision-making process).
The detailed reasons are set out below.
The assessment is based on a restrictive interpretation of the exceptions of Regulation
(EC) No 1049/2001, in accordance with Article 6 of Regulation (EC) No 1367/20065.
2.1 Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘the 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’.
I note that in your confirmatory application, you do not contest the applicability of the
exception quoted above to the relevant parts of the documents disclosed partially at the
initial stage. I would like, however, to provide additional explanations concerning the
impact, which their public disclosure would have on the interest protected by that
exception.
In this context, please note that in its judgment in Case C-28/08 P
(Bavarian Lager)6, the
Court of Justice ruled that when an application 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 data7 (‘Regulation (EC) No 45/2001’) becomes fully applicable.
As from 11 December 2018, Regulation (EC) No 45/2001 has been repealed by
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/EC8 (‘Regulation (EU) No 2018/1725’).
However, the case-law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
In the above-mentioned judgment the Court stated that Article 4(1)(b) of Regulation (EC)
No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
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. 13–19.
6 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v The Bavarian Lager judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
7 Official Journal L 8 of 12.1.2001, p. 1.
8 Official Journal L 205 of 21.11.2018, p. 39.
5
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.9
Article 3(1) of Regulation (EU) No 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’.10
The relevant parts of 108 documents (partially) disclosed at the initial stage, as explained
by the Directorate-General for Maritime Affairs and Fisheries in its initial reply, contain
the names, functions and handwritten signatures of the staff members of the European
Commission who do not hold any senior management position. They also include the
names and contact details of third party representatives (representatives of the authorities
of the Member States).
The same information is included in five documents to which access was fully refused at
the initial stage and in the new document identified following your confirmatory
application.
The names11 of the persons concerned as well as other data from which their identity can
be deduced constitute personal data in the meaning of Article 2(a) of Regulation (EU) No
2018/1725.
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.
In Case C-615/13 P
(ClientEarth), the Court of Justice ruled that the institution does not
have to examine of its own motion the existence of a need for transferring personal
data.12 This is also clear from Article 9(1)(b) of Regulation (EU) No 2018/1725, which
9
European Commission v The Bavarian Lager judgment quoted above, paragraph 59.
10 Judgment of the Court of Justice of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
11
European Commission v The Bavarian Lager judgment quoted above, paragraph 68.
12 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.
6
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) No 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 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 weighted the various competing interests.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the above-mentioned personal data.
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in the documents concerned has not been established.
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, 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 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.
2.2 Protection of the decision-making process
Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that ‘[a]ccess
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 explained in point 1 of this decision, in your confirmatory application you do not
contest the applicability of the above-mentioned exception to five documents,
undisclosed by the Directorate-General for Maritime Affairs and Fisheries at the initial
stage. I would like, however, to provide additional explanations concerning the impact,
which their public disclosure would have on the interest protected by that exception.
As explained by the Directorate-General for Maritime Affairs and Fisheries in its initial
reply, all five documents withheld at the initial stage and the relevant undisclosed parts of
the new document identified following your confirmatory application, contain
7
description of the positions of the Member States, as well as the opinions thereon of the
representatives of the European Commission, expressed during the negotiating phase,
preceding the adoption of the decision on total allowable catch on 18 December 2018.
They were drafted for internal purposes and as part of the preliminary consultations
within the European Commission. The opinions included in these documents only reflect
the understanding of the authors of the positions of the Members states expressed during
the early stages of the negotiations and they were drafted under the legitimate expectation
that they would not be made public. For the negotiations to have a successful outcome, it
is essential that there is an atmosphere of mutual trust between the negotiating parties and
that the frank exchange of views in a preparatory phase of Commission officials can be
protected from public disclosure.
Although the decision regarding total allowable catch for 2019 has been adopted by the
Council on 18 December 2018, the process of fixing of fishing opportunities is still
ongoing throughout the year, in particular through various amendments and the fixing of
fishing opportunities for the next year. Therefore, disclosure of the documents requested
would seriously undermine the decision-making process protected by Article 4(3), first
subparagraph of Regulation (EC) No 1049/2001.
With regard to the official record of the exchanges between Member States and the
Commission on this topic, such exchanges are always taking place during Council
meetings. Therefore, you may want to consult the comprehensive report of the Council
proceedings, which is now publicly available.
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.
The exception laid down in Article 4(3) of Regulation (EC) No 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 application, you underline the importance of the subject matter to
which the requested documents relate and refer in this context to the provisions of
Regulation (EC) No 1367/2006. Indeed, you point out in this context that, quote, ‘[…]
records of the deliberations on T[otal] A[llowable] C[atch]s at the Agricultural and
Fisheries Council and relevant meetings of the Council’s preparatory bodies constitute
“environmental information” and , as such, the obligations contained in Regulation [(EC)
No] 1367/2006 must […] be upheld’.
Consequently, in your view, an overriding public interest warrants the disclosure of the
relevant parts of the five documents and the undisclosed parts of the new document,
which reflect such deliberations. This interest is based on a general need for public
transparency linked to the importance of the subject matter, reinforced by the fact that the
8
undisclosed information constitute environmental information within the meaning of
Regulation (EC) No 1367/2006.
Please note, however, that no overriding public interest in disclosure can automatically
be derived from the provisions of Article 6 of Regulation (EC) No 1367/2006 as regards
the exception set out in Article 4(3) of Regulation (EC) No 1049/2001. In case of the
latter exception, Article 6 merely requires interpreting the grounds for refusal
restrictively whenever the information requested relates to emissions into the
environment, taking into account the public interest served by disclosure and whether the
information requested relates to emissions to the environment.
The information included in the five documents and undisclosed parts of the new
document, as explained in point 2.2 of this decision, are the positions of the Member
States, as well as the opinions thereon of the representatives of the European
Commission. It follows that it may not be considered as information relating to emissions
to the environment in the sense of Article 6 of Regulation (EC) No 1367/2006.
As regards your general reference to the alleged existence of a general need for public
transparency in this case, I would like to refer to the judgment in the
Strack case13, where
the Court of Justice ruled that in order to establish the existence of an overriding public
interest in transparency, it is not sufficient to merely rely on that principle and its
importance, but that 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-disclosure14.
In my view, such a pressing need has not been substantiated in this case. Whilst I
understand that there can be a public interest in obtaining access to the undisclosed
information included in the documents in question, I consider in this case that any
possible public interest in transparency cannot outweigh the public interest in protecting
the decision-making process falling under the exception provided for in the first
subparagraph of Article 4(3) of Regulation (EC) No 1049/2001.
In consequence, I consider that in this case there is no overriding public interest that
would outweigh the interest in safeguarding the commercial interests of the car
manufacturers concerned and the decision-making process falling under the exceptions
provided for in the first indent of Article 4(2) and the first subparagraph of Article 4(3) of
Regulation 1049/2001.
4.
PARTIAL ACCESS
Partial access is hereby granted to the new document identified following your
confirmatory application.
13 Judgment of the Court of Justice of 2 October 2014,
Strack v Commission (hereafter referred to as
‘Strack v Commission judgment’), C-127/13 P, EU:C:2014:2250, paragraph 128.
14 S
track v Commission judgment quoted above, paragraph 129.
9
With regard to the five documents to which access is refused, no meaningful partial
access is possible, as their entire content is covered by the exceptions provided for in
Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of privacy and the integrity
of individual) and Article 4(3), first subparagraph, of that regulation (protection of the
decision-making process).
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 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
10
Document Outline