C(2019) 5606 final
Mr Alvaro Merino
Calle Ricardo Ortiz 61, 1B
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory applications for access to documents under Regulation
(EC) No 1049/2001 – GESTDEM 2018/1680
Dear Mr Merino,
I refer to your email of 1 April 2019, registered on 3 April 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 documents2
(hereafter ʻRegulation (EC) No 1049/2001ʼ). Please accept our apologies for the late reply,
due to the consultations with the author of most of the documents at issue.
SCOPE OF YOUR APPLICATION
On 14 March 2019, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001 to the Directorate-General for Environment, in which you
requested access to ʻa list of all lobby meetings held by the commissioner in charge of
Environment, Karmenu Vella, or any other member of its Cabinet with any organisations
representing churches and/or religious communities since 2014 onwards, including all
e-mails, minutes, reports or any other briefing papers related to all those meetings.’
This application was registered under reference number GESTDEM 2019/1680.
In its initial reply dated 1 April 2019, the Directorate-General for Environment provided
you a list of meetings of Commissioner Vella with organisations representing churches and
religious communities since 1 November 2014 when Commissioner Vella took his function.
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. +32 229 91111
Furthermore, the Directorate-General for Environment identified the following documents
as falling within the scope of your request:
1. Invitation from Archbishop Bartholomew (Archbishop of Constantinople - New
Rome and Ecumenical Patriarch) for Green Attica Symposium - international
(Ares(2017)44464029, document 1);
2. Invitation from Boda Chistel (European Union office of the Church of Jesus Christ
of Latter-Day Saints) for VIP reception and concert of the Mormon Tabernacle
Choir and Orchestra on 11 July 2016 in Brussels, (Ares(2016)2397560, document
In your confirmatory application, you question the absence of any other documents.
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.
Against this background, the European Commission has carried out a renewed, thorough
search for the documents requested. Following this renewed search, eight additional
documents were identified as falling under the scope of your application:
1. Letter of 12 August 2015 from the Ministry of Sustainable Development and
Infrastructure to commissioners (document 3);
2. Briefing of 16 September 2015 for Commissioner Vella relating to Papal Audience
with EU Ministers for Environment and Commissioners on ‘Laudato Si’ with 2
Annexes (document 4);
3. Briefing of 7 December 2015 for Commissioner Vella relating to the meeting with
His Excellency Monsignor Lebeaupin, Apostolic Nuncio to the EU (document 5);
4. Letter of 1 September 2016 from Mr Lebeaupin, Apostolic Nuncio to the EU, to
Commissioner Vella with 3 annexes (document 6, annexes 6a, 6b, 6c);
5. Letter of 30 September 2016 from Commissioners Vella and Arias Cañete to His
(Ares(2016)4918592, document 7);
6. Briefing of 17 March 2017 for Commissioner Vella relating to the meeting with
Archbishop Lebeaupin (disclosed by DG MARE on 20/05/2019 in the framework of
access to documents request Gestdem 2019/1985 subject only to the redactions of
personal data) (Ares(2019)3282868, document 8);
7. Letter of 17 March 2017 from Vice-President Mogherini and Commissioner Vella to
His Holiness Francis (Ares(2017)1491757, document 9);
8. Video message (paper version) of 4 October 2017 from Commissioner Vella relating
to public seminar ‘Laudato Si’ (document 10).
Having carried out a detailed examination of the documents requested, I am pleased to
inform you that wide partial access is granted to all the identified documents, 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
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’.
In its judgment in Case C-28/08 P (Bavarian Lager),
3 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 data4 (hereafter
‘Regulation (EC) No 45/2001’) becomes fully applicable.
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.5
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 […]’.
The requested document includes the names, surnames, contact details (direct telephone
numbers, office and email addresses), functions and handwritten signatures of staff
members of the European Commission not holding any senior management position. They
include also the names and surnames of third parties who are not considered as public
figures (members of organisations representing churches and religious communities). 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
3 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 (hereafter ‘Bavarian Lager
4 Official Journal L 8 of 12.1.2001, p. 1.
Official Journal L 205 of 21.11.2018, p. 39.
, cited above, paragraph 70.
On the contrary, the names and surnames of public figures, such as Members of the
European Commission, Members of Cabinets, His Holiness Pope Francis, the Apostolic
Nuncio to the EU and ministers present in some of the requested documents, can be
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.7 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 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.
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 above8.
7 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.
, cited above, paragraph 56.
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.
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.
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have examined the
possibility of granting partial access to the documents concerned.
Wide partial access is granted to all the identified documents, subject only to the redaction
of personal data. For the reasons explained above, no meaningful further partial access to
the remaining partially disclosed documents is possible without undermining the interests
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
For the Commission