Document 19
Ref. Ares(2020)3092549 - 15/06/2020
EUROPEAN COMMISSION
Brussels, 28.1.2019
C(2019) 739 final
OUT OF SCOPE
CEO
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 2018/5806
Dear
,
I refer to your e-mail of 27 November 2018, registered on the next day, 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
documents (hereafter 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 6 November 2018, addressed to the Directorate-General for
Communications Networks, Content and Technology, you requested access to to the
following document:
Mission letter with the subject ‘Request for an interview for DIGITALEUROPE’s
Study on the Digitalisation of Europe.[…]’ sent as an annex by
PricewaterhouseCooper to Roberto Viola on 08 August 2017 related to Digital
Europe – Towards an EU trusted digital framework – contribution for the first EU
digital summit – Tallinn, 29 September 2017.
1
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne, 1049 Bruxelles, BELGIQUE - Tél. +32 22991111
At the initial stage, the Directorate-General for Communications Networks, Content and
Technology identified the document requested, originating from a third party, as falling
under the scope of your request.
In accordance with Article 4(4) of Regulation (EC) No 1049/2001, with regard to 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. In accordance with this provision, the
Directorate-General for Communications Networks, Content and Technology consulted
the third party author of the document (DIGITALEUROPE), who objected to the
disclosure. In its initial reply of 27 November 2018, taking into account the position of
the author, the Directorate-General for Communications Networks, Content and
Technology refused access to the documents on the basis of Article 4, paragraph 2, third
indent of Regulation (EC) No 1049/2001 (protection of commercial interests, including
intellectual property).
Through your confirmatory application, you request a review of this position.
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 of the European Commission
conducts a fresh review of the reply given by the relevant Directorate-General at the
initial stage.
The document identified as falling under the scope of your request originates from a third
party, PricewaterhouseCoopers, which is not the author of the said document.
As indicated above, the third party author objected to disclosure at the initial stage in the
light of Article 4(2) of Regulation (EC) No 1049/2001. It indicated that disclosure could
potentially undermine commercial interests and intellectual property, more specifically
alleging that their ‘contractor’s (PricewaterhouseCoopers) prime tool for executing the
study mentioned in the letter would be exposed to public scrutiny’.
Under the provisions of Article 4(4) of Regulation (EC) No 1049/2001 and with a view
to taking into account the arguments put forward in your confirmatory application, a
renewed consultation of the third party author and of the originator was initiated by the
Secretariat-General on 4 December 2018 and 21 December 2018, respectively.
The third party author maintained its opposition to the disclosure of the document, based
on the exception invoked already at the initial stage, adding that the mission letter was
meant to reach out to other industry leaders, and not to be sent to Roberto Viola. They
also argue that the applicant may have illegitimate interests in using the information in
the mission statement in an attempt to undermine and damage DIGITALEUROPE’s
reputation. The third party originator, PricewaterhouseCoopers, stated that ‘the
[d]ocument under the scope of the [a]pplication originated from and is signed by
DIGITALEUROPE. Also, the [d]ocument was sent by […] firm to the [r]ecipient but on
2
behalf of DIGITALEUROPE. […] firm is therefore not able to take position and to
decide on the disclosure of the [d]ocument to a third party. The decision remains of the
sphere of competence of DIGITALEUROPE’.
Having carried out a detailed examination of the document requested, taking into account
the result of the third party consultations at initial and confirmatory levels, I can inform
you that partial access is granted to this document after the redaction of personal data, as
explained below. Please note, however, that the actual transmission of the document is
subject to the absence of a request by the third party originator for interim measures, as
referred to in paragraph 4.
3.
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 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),2 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 data3
(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, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC4 (hereafter ‘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
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’5.
2
Judgment of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd, C-28/08 P,
EU:C:2010:378, paragraph 59.
3
Official Journal L 8 of 12.1.2001, p. 1.
4
Official Journal L 205 of 21.11.2018, p. 39.
5
Cited above, paragraph 59.
3
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 name and surname of the sender, as well as a
handwritten signature, which constitutes biometric data. This information clearly
constitutes personal data in the sense of Article 3(1) 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 your confirmatory request, you state that you do not need to have the personal data
transferred to you. In addition, based on the information at my disposal, there is a risk
that the disclosure of the handwritten signature appearing in the requested document would
prejudice the legitimate interests of the person concerned.
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.
4.
DISCLOSURE AGAINST THE EXPLICIT OPINION OF THE AUTHOR
According to Article 5(5) and (6) of the detailed rules of application of Regulation (EC)
No 1049/20016, ‘[t]he third-party author consulted shall have a deadline for reply which
shall be no shorter than five working days but must enable the Commission to abide by
its own deadlines for reply. In the absence of an answer within the prescribed period, or
if the third party is untraceable or not identifiable, the Commission shall decide in
accordance with the rules on exceptions in Article 4 of Regulation (EC) No 1049/2001,
taking into account the legitimate interests of the third party on the basis of the
information at its disposal. If the Commission intends to give access to a document
against the explicit opinion of the author, it shall inform the author of its intention to
disclose the document after a ten-working day period and shall draw his attention to the
remedies available to him to oppose disclosure.’
6
Commission Decision of 5 December 2001 amending its rules of procedure (notified under document
number C(2001) 3714), Official Journal L 345 of 29.12.2001, p. 94.
4
At confirmatory level, PricewaterhouseCooper stated that ‘[t]he decision remains of the
sphere of competence of DIGITALEUROPE’, and at initial and confirmatory level
DIGITALEUROPE objected on the grounds that it would undermine the protection of
commercial interests, including intellectual property.
Since the decision to grant partial access is taken against the objection of the third party
author expressed at initial and confirmatory levels, the Commission will inform the third
party originator and the author of its decision to give partial access to the document
requested. The Commission will not grant such partial disclosure until a period of ten
working days has elapsed from the formal notification of this decision to the third party
author, in accordance with the provisions mentioned above.
This time period will allow the third party author to inform the Commission whether it
intends to object to the partial disclosure using the remedies available to it, i.e. an
application for annulment and an application for interim measures before the General
Court. Once this period has elapsed, and if the third party author has not signalled its
intention to avail itself of the remedies at its disposal, the Commission will forward the
redacted document to you.
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
Enclosures: 1
5