Ref. Ares(2019)2675099 - 17/04/2019
EUROPEAN COMMISSION
SECRETARIAT-GENERAL
Directorate C - Transparency, Efficiency & Resources
The Director
Brussels,
SG.C.1/AF -
By registered mail with AR
Mr Peter Teffer
EUobserver
Rue Montoyer 18B
1000 Brussels
Belgium
Copy by email:
ask+request-6593-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2019/1386
Dear Mr Teffer,
We refer to your e-mail of 11 March 2019 in which you make a request for access to
documents, registered on the same day under the above-mentioned reference number.
You request access to:
- 'all documents - including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations - related to all meetings between first vice-president Frans
Timmermans and BusinessEurope in 2018 and 2019
- all documents - including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations - related to the 06/11/2018 meeting between first vice-president
Frans Timmermans and the Tony Blair Institute for Global Change (TBI)
- all documents - including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations - related to the 30/10/2018 meeting between first vice-president
Frans Timmermans and PA Europe
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: BERL 07/075 ‐ Tel. direct line +32 229 92535
- all documents - including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations - related to the 26/10/2018 meeting between first vice-president
Frans Timmermans and several companies (Discussion about Plastics Strategy,
Circular economy)
- all documents - including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations - related to the 25/10/2018 meeting between first vice-president
Frans Timmermans and Apple'.
The European Commission has identified the following documents as falling within the
scope of your request:
As regards ‘Business Europe’:
-
Invitation of 7 February 2018, reference Ares(2018)743156 (hereafter ‘document
1’);
-
Answer to the invitation of 7 February 2018, reference Ares(2018)2832404
(hereafter ‘document 2’);
-
Invitation of 25 April 2018, reference Ares(2018)2227702 (hereafter ‘document 3’);
-
Answer to the invitation of 25 April 2018, reference Ares(2018)2253592 (hereafter
‘document 4’);
-
Invitation of 11 October 2018, reference Ares(2018)5237321 (hereafter ‘document
5’);
-
Answer to the invitation of 11 October 2018, reference Ares(2018)5631967
(hereafter ‘document 6’);
-
Invitation of 2 October and follow-up, Ares(2018)5633573 (hereafter ‘document
7’);
-
Invitation of 7 December 2018, reference Ares(2018)6618471 (hereafter ‘document
8’);
-
Invitation
of
11
December
2018
and
attached
annexes,
reference
Ares(2018)6463868 (hereafter ‘document 9’).
As regards ‘PA Europe’:
-
Email exchanges of October 2018, reference Ares(2019)2373076 (hereafter
‘document 10).
As regards the part of your request relating to ‘[d]iscussion about Plastics Strategy,
Circular economy’:
-
Invitation from DSM of 2 May 2018 to attend the Chemical Convention in
Amsterdam on 25 and 26 October 2018, reference Ares(2018)2329186 (hereafter
‘document 11’);
-
Answer to DSM’s invitation of 2 May 2018, reference Ares(2018)2557512
(hereafter ‘document 12’).
2
-
Invitation from SABIC of 11 September 2018, reference Ares(2018)4686996
(hereafter ‘document 13’);
-
Invitation from Nouryon of 12 October 2018 and attachments, reference
Ares(2018)5290165 (hereafter ‘document 14’);
-
Thank you letter from CEFIC for attending the Chemical Convention in Amsterdam
of 31 October 2018, reference Ares(2018)5717806 (hereafter ‘document 15’).
As regards ‘Apple’:
-
Invitation for a meeting with Tim Cook of 21 September 2018, reference
Ares(2018)4856712 (hereafter ‘document 16’);
-
Answer to the invitation for a meeting of 21 September 2018, reference
Ares(2018)4893068 (hereafter ‘document 17’);
-
Further email exchanges of October 2018, reference Ares(2018)5117958 (hereafter
‘document 18’);
-
Invitation to a dinner in honor of Apple’s CEO Tim Cook of 27 September 2018,
reference Ares(2018)4987367 (hereafter ‘document 19’);
-
Answer to the invitation of 27 September 2018, reference Ares(2018)5108010
(hereafter ‘document 20’).
1.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
Following our assessment, I hereby inform you that wide partial access is granted to all the
documents, with the exception of document 13, subject only to the redactions of personal
data, in accordance with Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation (EC) No 1049/2001, for the reasons set out below.
Access to the redacted parts of document 13 must also be refused based on the exception
protecting the commercial interests provided for in Article 4(2) first indent of Regulation
(EC) No 1049/2001.
As regards the part of your request relating to ‘all documents - including but not limited to
minutes, (hand-written) notes, audio recordings, verbatim reports, operational
conclusions, lines to take, e-mails, and presentations - related to the 06/11/2018 meeting
between first vice-president Frans Timmermans and the Tony Blair Institute for Global
Change (TBI)’, we regret to inform you that the European Commission does not hold any
documents that would correspond to the description given in your application.
1.1. 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 the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data’.
3
The applicable legislation in this field is 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, and repealing Regulation (EC) No 45/2001
and Decision No 1247/2002/EC (hereafter ‘Regulation (EU) 2018/1725’).1
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, the Data Protection
Regulation becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by Regulation (EU) 2018/1725. However, the case law issued with regard to
Regulation (EC) No 45/2001 remains relevant for the interpretation of Regulation (EU)
2018/1725.
Article 3(1) of Regulation (EU) 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’.3
Please note that the documents, to which you request access, contain the names,
surnames, contact details (email addresses, telephone and office numbers) and
professional activities of people who are not considered as public figures, and of staff
members of the European Commission not holding any senior management positions.
They contain also biometric data, which is redacted by default. The names, surnames and
contact details of the persons concerned as well as other data from which their identity
can be deduced, undoubtedly constitute personal data in the meaning of Article 3(1) of
Regulation (EU) 2018/1725.
Please note that according to our established administrative practice, the names of people
holding senior management positions in the European Commission such as Cabinet
members, of public figures and of the main representatives of organisations/companies,
are in principle disclosed.
Pursuant to Article 9(1)(b) of Regulation (EU) 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’.
1
Official Journal L 205 of 21.11.2018, p. 39.
2
Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd, Case C-28/08 P, EU:C:2010:378, paragraph 59.
3 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
4
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation (EU) 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 by itself the existence of a need for transferring personal data.4 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.
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
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 withheld 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 in question.
2.2 Protection of commercial interests of a natural or legal person
Article 4(2), first indent, of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of commercial interests of a natural or legal person, including intellectual
property, […] unless there is an overriding public interest in disclosure’.
4 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.
5
Document 13 consists of the electronic correspondence exchanged between members of
the Cabinet of the First Vice-President of the European Commission and a staff member
of SABIC. This correspondence contains practical arrangements to organise a future
meeting between the First Vice-President and SABIC’s CEO, but also relevels details
regarding the topics that would be discussed if such a meeting takes place.
This information reveals details about SABIC’s strategy and future plans for the
development of the company.
Therefore, public disclosure of the redacted parts of the above-mentioned document
would allow revealing strategic choices of SABIC for the future. That in turn, would
undermine the competitive position of the economic operator in question, as its
competitors would receive an insight into the company’s future strategy.
Consequently, there is a real and non-hypothetical risk that public access to the above-
mentioned information would undermine the commercial interests of the economic
operator in question. I conclude, therefore, that access to the undisclosed parts of
document 13 must be denied on the basis of the exception laid down in the first indent of
Article 4(2) of Regulation (EC) No 1049/2001.
2.
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 exceptions laid down in Article 4(2) 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.
However, you do not refer in your application to any particular public interest that would
warrant public disclosure of the relevant redacted parts of document 13.
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 commercial interests of the economic operator grounded in the first indent of Article
4(2) of Regulation (EC) No 1049/2001.
3.
PARTIAL ACCESS
Please note that partial access is granted to the documents, including to document 13.
4.
MEANS OF REDRESS
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the European Commission to review this
position.
6
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,
Tatjana VERRIER
Enclosures:
(20)
7
Electronically signed on 16/04/2019 17:54 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
Document Outline