Document 28
Ref. Ares(2020)587318 - 30/01/2020
EUROPEAN COMMISSION
Brussels, 19.11.2018
C(2018) 7761 final
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under Regulation
(EC) No 1049/2001 - GESTDEM 2018/4747
Dear
,
I refer to your email of 8 October 2018, registered on the next day, in which you lodge a
confirmatory application in accordance with Article 7(2) of Regulation 1049/2001 regarding
public access to European Parliament, Council and Commission documents2 (hereafter
‘Regulation 1049/2001’).
1.
SCOPE OF YOUR APPLICATION
In your initial application of 10 September 2018, addressed to the Directorate-General for
Environment and registered under reference number GESTDEM 2018/4747, you requested
access to ‘all official letters sent by EU ministers to the European Commission in the past five
years on the subject of ship recycling’.
In its initial reply dated 8 October 2018, the Directorate-General for Environment informed
you that it had identified six documents as falling within the scope of your request. It granted
1
Official Journal L 345 of 29.12.2001, p. 94.
2
Official Journal L 145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
full access to five of these documents (i.e. documents 1, 2, 4, 5 and 6 containing letters from
ministers and state secretaries of Belgium, Denmark and the Hellenic Republic). Moreover, it
granted full access to four replies of Commissioner Vella in this context3.
Taking into account the opinion of the authorities of the Republic of Cyprus, which had been
consulted pursuant to Article 4(4) and (5) of Regulation 1049/2001, the Directorate-General
for Environment refused access to document 3. The latter consists of a letter signed by Nicos
Kouyialis, Minister for Agriculture, Rural Development and Environment of the Republic of
Cyprus to Commissioner Karmenu Vella of 19 August 2015 concerning Regulation
1257/20134.
This refusal is based on Article 4(1)(a), third indent (protection of the public interest as
regards international relations) of Regulation 1049/2001.
In your confirmatory application, you request a review of this position and access to the
relevant document.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant to
Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply given by
the Directorate-General concerned at the initial stage.
In accordance with Article 4(4) of Regulation 1049/2001, ‘as regards third-party documents,
the institution shall consult the third party with a view to assessing whether an exception in
paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be
disclosed’. According to Article 4(5) of Regulation 1049/2001, ‘a Member State may request
the institution not to disclose a document originating from that Member State without its prior
agreement’.
Under the provisions of Article 4(4) and (5) of Regulation 1049/2001, a renewed consultation
of the authorities of the Republic of Cyprus was initiated by the Secretariat-General. The
authorities of the Republic of Cyprus did not oppose disclosure of the requested document at
the confirmatory stage.
Taking account of the opinion of the authorities of the Republic of Cyprus, which the
Secretariat-General has sought in the framework of its confirmatory review, I can inform you
that partial access is granted to document 3, subject to the redaction of personal data on the
basis of the exception of Article 4(1)(b) (protection of privacy and the integrity of the
individual) and pursuant to Article 4(1)(a), third indent (protection of the public interest as
regards international relations) of Regulation 1049/2001.
3 Numbered as documents 1.1, 2.1, 4.1 and 5.1 at confirmatory level.
4 Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on
ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC, Official Journal
L330, 12,12,2003, p.1.
2
Please note that, due to an administrative error, personal data including handwritten signatures
contained in the other documents were disclosed at the initial stage.
The European Commission did not intend to make public this data, which must also be
protected in accordance with Article 4(1)(b) (protection of privacy and the integrity of the
individual) of Regulation 1049/2001. This error is corrected in the versions of the documents
that are again enclosed to this decision.
I therefore ask you to disregard the documents in the versions that were provided to you at the
initial level.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation 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 the
Bavarian Lager case, the Court of Justice ruled that when a request is
made for access to documents containing personal data, Regulation (EC) No. 45/2001
(hereafter ‘Data Protection Regulation’) becomes fully applicable.5
Article 2(a) of the Data Protection Regulation6 provides that
personal data ‘shall mean any
information relating to an identified or identifiable person […]; an identifiable person is one
who can be identified, directly or indirectly, in particular by reference to an identification
number or to one or more factors specific to his or her physical, physiological, mental,
economic, cultural or social identity’.
According to the Court of Justice, there is no reason of
principle to justify excluding activities of a professional nature from the notion of private
life.7
Document 3, which falls under the scope of your confirmatory application, as well as the
documents disclosed at initial level, contain personal data such as the names and functions of
individuals who were not main representatives of the respective EU Member States at the
moment the letters concerned were written, as well as email addresses and phone numbers
that are not in the public domain.
Moreover, document 3 contains two handwritten signatures (i.e. the cover page and the letter
itself) and a handwritten salutation (i.e. ‘Dear friend Karmenu’ in the letter).
5 Judgment of 29 June 2010,
Commission v Bavarian Lager, C-28/08P, EU:C:2010:378, paragraph 63.
6 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, Official Journal L 8 of 12 January 2001, page 1.
7 Judgment of 20 May 2003,
Rechnungshof v Österreichischer Rundfunk and Others, C-465/00,
C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
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Finally, the documents disclosed at initial level also contain handwritten signatures8.
The names9 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 2(a) of the Data
Protection Regulation.
It follows that public disclosure of the above-mentioned information would constitute
processing (transfer) of personal data within the meaning of Article 8(b) of Regulation
45/2001. According to Article 8(b) of that Regulation, personal data shall only be transferred
to recipients if the recipient establishes the necessity of having the data transferred and if there
is no reason to assume that the data subject's legitimate interests might be prejudiced. Those
two conditions are cumulative.10 Only if both conditions are fulfilled and the processing
constitutes lawful processing in accordance with the requirements of Article 5 of Regulation
45/2001, can the transfer of personal data occur.
In its judgment in the
ClientEarth case, the Court of Justice ruled that whoever requests such
a transfer must first establish that it is necessary. If it is demonstrated to be necessary, it is
then for the institution concerned to determine that there is no reason to assume that that
transfer might prejudice the legitimate interests of the data subject.
If there is no such reason, the transfer requested must be made, whereas, if there is such a
reason, the institution concerned must weigh the various competing interests in order to
decide on the request for access.11
I refer also to the
Strack case, where the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.12
In your confirmatory request, you do not establish the necessity of having the data in question
transferred to you.
Furthermore, there are reasons to assume that the legitimate interests of the individuals
concerned would be prejudiced by disclosure of the personal data reflected in the documents
concerned, as there is a real and non-hypothetical risk that such public disclosure would harm
their privacy and subject them to unsolicited external contacts.
As to the handwritten signatures appearing in all the documents and the handwritten salutation
contained in document 3, which constitute biometric data, there is a risk that their disclosure
would prejudice the legitimate interests of the persons concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001, access
cannot be granted to the personal data that have been redacted from document 3 falling under
8 On the need to protect signatures as an element of personal data: judgment of 19 September 2018,
Port
autonome de Brest v Commission, T-39/17, T:2018:560, paragraph 43.
9 Judgment in
Commission v Bavarian Lager, cited above, EU:C:2010:378, paragraph 68.
10 Idem, paragraphs 77-78.
11 Judgment of 16 July 2015,
ClientEarth v EFSA, C-615/13P, EU:C:2015:489, paragraph 47.
12 Judgment of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250, paragraph 106.
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the scope of your confirmatory application as well as from the documents disclosed at initial
level, as the need to obtain access thereto 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 public interest as regards international relations
Article 4(1)(a), third indent of Regulation 1049/2001 provides that ‘[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of […] the
public interest as regards […] international relations’.
The General Court has acknowledged that ‘the institutions enjoy a wide discretion when
considering whether access to a document may undermine the public interest and,
consequently, […] the Courts review of the legality of the institutions' decisions refusing
access to documents on the basis of the mandatory exceptions relating to the public interest
must be limited to verifying whether the procedural rules and the duty to state reasons have
been complied with, the facts have been accurately stated, and whether there has been a
manifest error of assessment of the facts or a misuse of powers’ .
Moreover, the General Court recently ruled that, as regards the interests protected by Article
4(1)(a) of Regulation No 1049/2001, ‘it must be accepted that the particularly sensitive and
fundamental nature of those interests, combined with the fact that access must, under that
provision, be refused by the institution if disclosure of a document to the public would
undermine those interests, confers on the decision which must thus be adopted by the
institution a complexity and delicacy that call for the exercise of particular care. Such a
decision requires, therefore, a margin of appreciation’13.
Document 3 has been examined in light of the above-mentioned case law. The part redacted
on page 2 of the letter of the minister of the Republic of Cyprus refers to informal discussions
between the European Commission and the responsible Turkish authorities on how
Regulation 1257/2013 would apply to Turkish facilities. The issues at stake are still relevant
in view of the upcoming adoption of the fourth list of European ship recycling facilities,
which is expected to include for the first time Turkish yards. This is also a sensitive issue
against the background of ongoing accession negotiations between Turkey and the EU14.
Disclosure of the content of these informal discussions would therefore undermine the climate
of mutual trust that is necessary for the ongoing accession negotiations in general and the
proper implementation of Regulation 1257/2013 in particular.
Consequently, I conclude that the redacted part of document 3 is protected against public
disclosure, pursuant to the exception provided for in Article 4(1)(a), third indent of Regulation
1049/2001.
13 Judgment of 11 July 2018 in Case T-644/16,
Client Earth v Commission, EU:T:2018:429, paragraph 23.
14 https://ec.europa.eu/neighbourhood-enlargement/countries/detailed-country-information/turkey en.
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3.
PARTIAL ACCESS
As indicated above, partial access is herewith granted to document 3 falling under the scope
of your confirmatory application pursuant to Article 4(1)(b) (protection of privacy and the
integrity of the individual) and Article 4(1)(a), third indent (protection the public interest as
regards international relations) as well as wide partial access to the documents disclosed at
initial level, subject to the redaction of personal data only on the basis of Article 4(1)(b) of
Regulation 1049/2001.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(b) and Article 4(1)(a), third indent of Regulation 1049/2001 are
absolute exceptions, which do not require the institution to balance them against a possible
public interest in disclosure.
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 European Commission
Martin SELMAYR
Secretary-General
Enclosures (10: 1 document falling under the scope of your confirmatory application and
corrected versions of the 9 documents disclosed at initial level)
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