EUROPEAN COMMISSION
Brussels, 24.3.2020
C(2020) 1946 final
Mr Olivier Hoedeman
Corporate Europe Observatory
Rue d’Edimbourg 26
1050 Brussels
Belgium
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 2019/7298
Dear Mr Hoedeman,
I refer to your email of 4 February 2020, registered on 5 February 2020, 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: ‘Regulation (EC) No 1049/2001’).
Please accept our apologies for this late reply.
1.
SCOPE OF YOUR REQUEST
In your initial application of 17 December 2019, addressed to the Directorate-General for
Competition, you requested access to the following documents:
- ʻall reports (and other notes) from meetings between the European Commission
and representatives of the tobacco industry (producers, distributors, importers
etc., as well as organisations and individuals that are funded by and/or work to
further the interests of the tobacco industry) during 2019;
- all correspondence (including e-mails) between the European Commission and
representatives of the tobacco industry (producers, distributors, importers etc., as
1 OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
well as organisations and individuals that are funded by and/or work to further the
interests of the tobacco industry) during 2019;
- a list of all the above-mentioned documents (including dates, names of
participants/senders/recipients
and
their
affiliation,
subject
of
meetings/correspondence).’
In your request you asked to exclude all documents you have already received as a result
of your access to documents request of 11 December 2018 registered under reference
number GESTDEM 2018/6667. It was replied to you on 22 January 2019.
In its initial reply of 16 January 2020, the Directorate-General for Competition
mentioned that your request includes documents forming part of the case file in a
pending antitrust case concerning an investigation under Article 102 of the Treaty on the
Functioning of the EU, in which the procedure has not been finalised yet.
Therefore, the Directorate-General for Competition refused access to the requested
documents, based on the exceptions protecting the purpose of inspections, investigations
and audits provided for in the third indent of Article 4(2) of Regulation (EC) No
1049/2001 and the exception protecting commercial interests provided for in the first
indent of Article 4(2) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You put forward
a number of arguments to support your request. These have been taken into account in
our assessment, of which the results are described below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 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 this review, I regret to inform you that the refusal to grant access to the
documents requested has to be confirmed based on the exceptions relating to,
respectively, the first and third indents of Article 4(2) (protection of the commercial
interests and of the purpose of inspections, investigations and audits) of Regulation (EC)
No 1049/2001. In addition, the access to the requested documents is refused based on the
exception of Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of privacy and
the integrity of the individual).
2.1. Protection of the purpose of investigations and of commercial interests
In accordance with the case-law of the Court of Justice, the European Commission,
‘when assessing a request for access to documents held by it, may take into account more
than one of the grounds for refusal provided for in Article 4 of Regulation (EC)
2
No 1049/2001’ and two different exceptions can, as in the present case, be ‘closely
connected’3.
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’.
Article 4(2), third indent of Regulation (EC) No 1049/2001 provides that the
‘[i]nstitutions shall refuse access to a document where disclosure would undermine the
protection of […] the purpose of inspections, investigations and audits’.
In its initial reply of 16 January 2020, the Directorate-General for Competition explained
that the requested documents falling under the scope of your request are part of the
ongoing antitrust investigation.
All the documents in the currently closed4 case AT.40681 ʻExcessive pricing of UID
feesʼ are covered by a general presumption of non-accessibility based on the exceptions
of the first and third indents of Article 4(2) of Regulation (EC) No 1049/2001. This
means that the institution is not required to carry out a specific and individual assessment
of the content of the requested documents.
In its judgment in
Commission v
TGI5, which concerned a request for documents in two
State aid cases, the Court of Justice held that there exists, with regard to the exception
related to the protection of the purpose of investigations, a general presumption that
disclosure of documents in the file would undermine the purpose of State aid
investigations. This reasoning was further confirmed in the
Sea Handling judgment6.
This presumption applies regardless of whether an application for access to documents
concerns an investigation which has already been closed or an investigation which is
pending7.
In the
Deutsche Telekom AG v
Commission judgement, which concerned procedures for
the application of Article 102 of the Treaty on the Functioning of the EU, the General
Court expressly acknowledged the existence of a general presumption of non-disclosure,
concerning the right to consult documents in the European Commission’s file relating to
those procedures, without there being any need to distinguish between internal
3 Judgment of the General Court of 13 September 2013,
Netherlands v
European Commission,
T-380/08, EU:T:2013:480, paragraph 34.
4 It needs to be noted that on 6 February 2020 the complainant, namely the British-American Tobacco
Company, withdrew its complaint.
5 Judgment of the Court of Justice of 29 June 2010,
European Commission v
Technische Glaswerke
Ilmenau, C-139/07, (hereafter
Commission v
Technische Glaswerke Ilmenau), EU:C:2010:376,
paragraphs 52 to 61.
6 Judgment of the Court of Justice of 14 July 2016,
Sea Handling v
Commission, C-271/15 P, (hereafter
Sea Handling v
Commission) EU:C:2016:557, paragraphs 36 to 47.
7 Judgment of the General Court of 7 October 2014,
Schenker v
Commission, T-534/11, EU:T:2014:854,
paragraphs 57 and 58.
3
documents and documents exchanged with third parties, since the general presumption
applies to the whole case file in the administrative procedure8.
The Court of Justice has upheld this reasoning in relation to documents in cases
regarding the application of Articles 101 and 102 of the Treaty on the Functioning of the
EU (i.e. antitrust cases), which are governed by the procedural rules set out in Regulation
(EC) No 1/20039.
Furthermore, in its
EnBW judgment
, the Court of Justice held that ʻthere is, with regard
to the exception related to the protection of the purpose of investigations, a general
presumption that disclosure of documents in cases regarding the application of Articles
101 and 102 TFEU would undermine the purpose of the privileged access rules
introduced by Regulations 1/2003 and 773/2004ʼ10. This presumption applies regardless
of whether an application for access to documents concerns a proceeding which has
already been closed or a proceeding which is pending11.
Natural and legal persons submitting information under Regulation (EC) No 1/2003 have
a legitimate right to expect that - apart from the publication of the final decision with any
business secrets and other confidential information removed from it - the information
they supply to the European Commission on an obligatory or voluntary basis will not be
disclosed to the public. This legitimate right arises from the specific provisions
concerning the professional secrecy obligation - which provide for documents to be used
only for the purposes for which they have been gathered - and the special conditions
governing access to the European Commission's file. Indeed, Article 28 of Regulation
(EC) No 1/200312 and Article 15 of Regulation (EC) No 773/200413 stipulate that such
information may only be used for the purpose for which it was acquired. These articles
also require that the European Commission respects the obligation of professional
secrecy enshrined in Art 339 of the Treaty on the Functioning of the EU 14.
Therefore, there is also a general presumption that the disclosure of documents that are
part of antitrust investigation files (as is the case for the documents requested) would
undermine the commercial interests of the company concerned. In this regard, the
General Court held in the
Bitumen case that publication of sensitive information
concerning the economic activities of the undertakings involved is likely to harm their
commercial interests, regardless of whether the proceedings are still pending15.
8 Judgment of the General Court of 28 March 2017,
Deutsche Telekom AG, T-210/15, EU:T:2017:224,
paragraph 43.
9 Judgment of the General Court of 27 February 2014,
European Commission v
EnBW Energie baden-
Württemberg, C-365/12 P, EU:C:2014:112, paragraphs 81-88 and 114.
10 Idem, paragraph 88.
11 Judgment of the General Court of 7 October 2014,
Schenker v
Commission, T-534/11, EU:T:2014:854,
paragraphs 57 and 58.
12 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1-25.
13 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by
the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004. p. 18-24.
14 Judgment in
Netherlands v
Commission, cited above, EU:T:2013:480, paragraphs 49 and 50.
15 Idem, paragraph 43.
4
The general presumption can apply up to 30 years and possibly beyond16.
I note that for the specific cases where a general presumption of non-accessibility
applies, all documents in the file are covered by that presumption. In the
AlzChem v
European Commission judgment, the Court of Justice held that the general presumption
continues to apply regardless of whether the documents targeted by the application for
access were specifically identified and few in number17.
According to the judgment of the General Court in
Agrofert, ‘[…] documents exchanged,
on the one hand, between the Commission and the notifying parties and, on the other,
between the Commission and third parties are likely to concern, amongst others,
commercial strategies, turnover, market shares and business relations, and thus
commercially sensitive information relating to the parties at issue’18.
In line with the
Deutsche Telekom AG v
Commission judgment of the General Court, the
general presumption of non-disclosure ‘[…] applies regardless of whether the request for
access concerns an investigation which has already been closed or one which is pending.
The publication of sensitive information concerning the economic activities of the
undertakings involved is likely to harm their commercial interests, regardless of whether
an investigation is pending. […]’.19 In this regard, the Court held in the
European
Commission v
Agrofert Holding judgment that the exceptions concerning commercial
interests or sensitive documents may apply for a period of 30 years and possibly
beyond.20 Finally, in the recent
Arca Capital Bohemia judgment, the General Court
underlined the importance of the exception relating to the protection of commercial
interest of third parties, in the context of closed State aid investigation procedures.21
Against this background, I confirm that the documents falling under the scope of your
application need to be protected against the risks associated with their public disclosure
under the exceptions provided for in the first and third indents of Article 4(2) of
Regulation (EC) No 1049/2001.
Having regard to the above, I consider that the use of the exceptions under the third
indent of Article 4(2) (protection of the purpose of investigations) and the first indent of
Article 4(2) (protection of commercial interests) of Regulation (EC) No 1049/2001 is
justified, and that access to the documents in question must be refused on that basis.
16 Judgment of the Court of 28 June 2012,
Commission v
Agrofert Holding, C-477/10 P, EU:C:2012:394,
paragraph 67.
17
Ibid, paragraphs 31-32.
18 Judgment of the General Court of 7 July 2010,
European Commission v Agrofert Holding, T-111/07,
(hereafter
Commission v Agrofert Holding) EU:T:2010:285, paragraphs 54, 56 and 62.
19
Deutsche Telekom AG v European Commission, paragraph 45.
20
Commission v Agrofert Holding, C-477/10 P, paragraph 67.
21 Judgment of the General Court of 11 December 2018, T-440/17,
Arca Capital Bohemia v European
Commission, T-440/17, EU:T:2018:898, paragraphs 58-59.
5
2.2. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that ʻthe 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 dataʼ.
In its judgment in Case C-28/08 P
(Bavarian Lager),22 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 data23 (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 the above-mentioned 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 data24.
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 documents include the names, surnames, contact details (direct telephone
numbers, office and email addresses) of staff members of the European Commission not
holding any senior management position. They include also the names and surnames of
third parties. 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 judgment25.
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’.
22 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’).
23 Official Journal L 8 of 12.1.2001, p. 1.
24 Official Journal L 205 of 21.11.2018, p. 39.
25
Bavarian Lager, cited above, paragraph 70.
6
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.26
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 above27.
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 documents 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.
26 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.
27
Bavarian Lager, cited above, paragraph 56.
7
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
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 (as opposed to any possible private interests of the applicant) and,
secondly, overriding, it must outweigh the harm caused by 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 this context, I would like to point out that the effects of disclosure of a document
under Regulation (EC) No 1049/2001 apply towards all
(i.e. if disclosed to one requester,
the document becomes accessible to any citizen).
In your application, you argue that the public interest in transparency in the interactions
with representatives of tobacco companies may override the public interest protected by
the exceptions invoked in the initial decision. Furthermore you state that the motivation
behind your request for access is also ʻmonitoring of the role of tobacco lobbying in EU
decision-making.ʼ
Please note however that the Court of Justice, in the
Strack case, 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 importance28. Instead, 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-
disclosure29. I consider that this interest constitutes a private and not a public one30.
In the
Port de Brest v
European Commission judgment31, the General Court confirmed
once again that the applicant must rely on specific circumstances to show that there is an
overriding public interest, which is able to justify the disclosure of the documents.
Moreover, in this judgment, the General Court held that among the limits with regard to
the right of access to documents held by the European Commission, is the exception
referred to in the third indent of Article 4(2) of Regulation (EC) No 1049/2001,
protecting the purpose of inspections, investigations and audits of the institutions32.
In addition, I have not been able to identify any public interest that would outweigh the
interests protected in the first and third indents of Article 4(2) of Regulation (EC) No
1049/2001.
28 Judgment of the Court of Justice of 2 October 2014,
Strack v
European Commission, C-127/13 P,
EU:C:2104:2250, paragraph 128 (hereafter
Strack v
Commission).
29
Strack v
European Commission, cited above, paragraph 129.
30
AlzChem AG v
European Commission, cited above, paragraph 56.
31
Port de Brest v
European Commission, T-39/17, cited above, paragraph 104.
32
Ibid, paragraph 112.
8
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting partial access to the document requested. However, as pronounced
by the Court of Justice,33 where the documents requested are covered by a general
presumption of non-disclosure, such documents do not fall within an obligation of
disclosure, in full, or in part.
5.
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 263 and 228 of the
Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Ilze Juhansone
Secretary-General
33
Commission v Éditions Odile Jacob, paragraph 133.
9
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