EUROPEAN COMMISSION
Brussels, 21.10.2020
C(2020) 7409 final
Ms Margarida Da Silva
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Bruxelles
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 2020/3792
Dear Ms Da Silva,
I refer to your letter of 24 July 2020, registered on 27 July 2020, by which you submitted
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’).
1.
SCOPE OF YOUR REQUEST
On 18 May 2020 you submitted an initial application, in which, I quote, ‘[you requested
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 the meetings Commissioner Breton and members of his
Cabinet have held with interest representatives since 1 March 2020;
1
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 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail
: xxxxxxxxxx@xx.xxxxxx.xx
- All correspondence (i.e. any emails, correspondence, telephone call notes, and/or
text messages including WhatsApp exchanges) between Commissioner Breton
and members of his Cabinet have held with interest representatives since 1 March
2020.
Your application was attributed to the Directorate-General for Communications
Networks, Content and Technology (Gestdem 2020/2996). It informed you on 12 June
2020 that your application covers a large number of documents and referred to Article
6(3) of Regulation (EC) No 1049/2001, which provides for a possibility to confer with an
applicant informally with a view to finding a fair solution. Indeed, the Directorate-
General for Communications Networks, Content and Technology proposed that the scope
of your initial application be reduced, so that it can be handled with in the statutory time
limits.
On 19 June 2020 you agreed that the scope of your initial application is limited to
documents concerning 20 meetings of your choice. In this context, you provided the list
of the meetings. The documents relating to these meetings are held by various
Directorates-General of the European Commission and therefore your application was
split between the Directorate-General for Communications Networks, Content and
Technology (Gestdem 2020/2996), the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs (Gestdem 2020/3792) and the Directorate-General for
Defence Industry and Space (Gestdem 2020/3793). Each of the Directorates-General
provided the separate reply relating to the documents in its possession.
The Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
identified 38 documents falling under the scope of you initial application3 and on 15 July
2020 provided you the reply in which it:
- granted wide partial access to 33 documents, with only personal data redacted
based on the exception in Article 4(1)(b) of Regulation (EC) no 1049/2001
(protection of privacy and the integrity of the individual),
- granted partial access to three documents (documents 2, 3 and 15), with the
relevant parts redacted on the basis of the exceptions in Article 4(1)(b) of
Regulation (EC) No 1049/2001 and in Article 4(2), first indent, of the said
regulation (protection of the commercial interests),
- refused access to two documents (documents 10 and 29), based on the above-
mentioned exception in Article 4(2), first indent, of Regulation (EC) No
1049/2001 and in Article 4(3) of the said regulation (protection of the decision-
making process).
Through your confirmatory application, you request a review of this position. Indeed,
you ask for further access to partially disclosed documents 2, 3 and 15 and access to
documents 10 and 29 refused at the initial stage.
3
The list of the documents was annexed to the initial reply of the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs.
2
Please note that this decision concerns only the documents falling under the part of your
application registered as Gestdem 2020/3792. Therefore, it covers the documents
identified and to which public access was denied by the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs.
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 conducts a fresh review of the
reply given by the Directorate-General or service concerned at the initial stage.
As a preliminary comment, I note that in your confirmatory application, you point out
that, I quote, ‘[…] document no. 10 is not listed in the table of documents’.
Consequently, you ask if, I quote, ‘[the European Commission] could […] confirm if
there is an extra document that is not listed in the table or if the document is simply miss-
numbered in the table as no. 9.1’.
Replying to that question, I confirm that there was indeed a mistake in numbering the
annexes. Indeed, instead of Annex 9.1, the correct number of the annex was meant to be
10.
With regard to the substance, following this review I inform you that:
- further partial access is granted to document 2, partially disclosed at the initial
stage. The undisclosed parts of that document still require protection under the
exceptions in Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of
privacy and the integrity of the individual) and Article 4(2), first indent, of the
said regulation (protection of the commercial interests),
- partial access is granted to documents 10 and 29, to which access was refused at
the initial stage. The withheld parts of the documents are covered by the above-
mentioned exceptions in Article 4(1)(b) and Article 4(2), first indent, of
Regulation (EC) No 1049/2001,
- no further access is granted to 33 documents, to which (wide) partial access was
granted at the initial stage. The undisclosed parts of these documents require
protection under Article 4(1)(b) of Regulation (EC) No 1049/2001,
- no further access is granted to documents 3 and 15, partially disclosed at the
initial stage. The underlying exception are provided for in Article 4(1)(b) of
Regulation (EC) No 1049/2001 and Article 4(2), first indent, of the said
regulation.
The detailed reasons are set out below.
3
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)4, the Court of Justice ruled that
when an application 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 data5
(‘Regulation (EC) No 45/2001’) becomes fully applicable.
As from 11 December 2018, Regulation (EC) No 45/2001 has been repealed by
Regulation (EU) No 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/EC6 (‘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’7.
Article 3(1) of Regulation (EU) No 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’8.
4
Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v
The Bavarian Lager judgment’), C-28/08 P,
EU:C:2010:378, paragraph 59.
5
Official Journal L 8 of 12.1.2001, p. 1.
6
Official Journal L 205 of 21.11.2018, p. 39.
7
European Commission v
The Bavarian Lager judgment quoted above, paragraph 59.
8
Judgment of the Court of Justice of 20 May 2003, preliminary rulings in proceedings between
Rechnungshof and Österreichischer Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
4
The relevant parts of document 2 contain the name of staff member of the European
Commission not holding any senior management positions. Also, documents 10, 15 and
29 contain the names, functions and biographic information (document 15) of the
representatives and staff members of the third parties (economic operators, companies
and industry associations). Documents 2 and 3 contain also the names and functions of
the representatives and staff members of third parties (economic operators, companies
and industry associations). I note, however, that in the redacted versions of these
documents disclosed at the initial stage, the functions of the individuals representing the
third parties were not redacted. Instead, the names of the companies they represent were
withheld. Although the names of the companies, as such, do not constitute the personal
data, however, their public disclosure would allow for the identification of the
individuals representing them, as their functions, as mentioned above, were disclosed.
The names9 of the persons concerned as well as other data from which their identity can
be deduced constitute personal data in the meaning of Article 2(a) 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 Case C-615/13 P
(ClientEarth), the Court of Justice ruled that the institution does not
have to examine of its own motion the existence of a need for transferring personal
data10.
This is also clear from Article 9(1)(b) of Regulation (EU) No 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) No 2018/1725, the European
Commission has to examine the further conditions for a 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.
9
European Commission v The Bavarian Lager judgment quoted above, paragraph 68.
10 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
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 weighted the various competing interests.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing any of the above-mentioned personal data.
Consequently, I consider that the necessity for the transfer of personal data (through its
public disclosure) included in the document concerned has not been established.
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, 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 document, 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 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.
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’.
The undisclosed parts of document 2, contain information concerning current volume of
production and the details of the supply chain of certain economic operators. These parts
also include the information regarding the products on which these operators are
currently working. The information is put in the context of the planned measures these
operators intend to implement in order to increase the production, or in the context of
their general business plans. In certain parts of this document, the type and level of detail
of that information does not allow for its disclosure in the anonymised form, with only
the names of the economic operators redacted. Indeed, this information, even in the
anonymised form, would allow for the identification of the economic operators
concerned.
Document 3 contains similar information; however, its level of detail is much lower, or is
presented as a general comment relating mainly to groups of operators, rather than to the
individual companies. Consequently, the information was anonymised by redacting the
names of the economic operators concerned.
6
The relevant undisclosed part of document 15 contains information regarding actions and
measures taken by certain economic operators in order to address the issue of access to
the market in certain Member States, revealing their business strategies
The redacted parts of documents 10 and 29 contain the information concerning the
assessment of their market situation in the context of that situation and the measures
required, or taken in this context of the pandemic situation.
The information mentioned above has to be considered as commercially sensitive
business information. Moreover, that information, provided in confidence by the
economic operators consulted, only reflects the understanding of the subject matter by
the staff members of the European Commission who drafted the requested internal
documents.
Its public disclosure would undermine the interests of the economic operators concerned,
as it would reveal the information related to their planned business activities. In this way,
the competitors would receive insight into aspects of the business strategies of these
operators. Furthermore, revealing the information regarding the situation of the economic
operators concerned would have impact on their position on the market.
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
operators concerned. I conclude, therefore, that access to the relevant undisclosed parts of
documents 2, 3, 10, 15 and 29 must be denied based on the exception laid down in the
first indent of Article 4(2) of Regulation (EC) No 1049/2001.
3.
NO 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 and, secondly, outweigh the harm caused by disclosure.
As a preliminary remark, it must be noted that the General Court recently confirmed
again that the right of access to documents does not depend on the nature of the particular
interest that the applicant for access may or may not have in obtaining the information
requested11. Please also note that Article 4(1)(b) of Regulation (EC) No 1049/2001 does
not include the possibility for the exceptions defined therein to be set aside by an
overriding public interest.
In your confirmatory application, I quote, ‘[you] argue that there is an overriding public
interest in accessing information that relates to the interactions between the [European]
Commission and commercial lobbies, especially considering that these interactions
concerned the EU’s response to the health crisis’.
11 Judgment of the General Court of 27 November 2018,
VG v
Commission, joined Cases T-314/16 and
T-435/16, EU:T:2018:841, paragraph 55.
7
Consequently, the importance of the subject matter to which information included in the
(undisclosed parts of the) documents relates (health crisis) requires, in your view, more
transparency and thus warrants public disclosure of the documents.
Nonetheless, I note that these considerations are rather of a general nature and would not
outweigh the interests protected under Article 4(2) of Regulation (EC) No 1049/2001.
Furthermore, I would like to underline that the access was refused only to limited parts of
five documents and (wide) partial access was granted to the majority of the documents
falling under the (restricted) scope of your initial application.
Please also note, 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 importance12. 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-
disclosure13.
4.
PARTIAL ACCESS
(Further) partial access is hereby granted to documents 2, 10 and 29. No further partial
access is possible to documents 3 and 15, as their relevant undisclosed parts still require
protection under the exceptions in Article 4(1)(b) and Article 4(2), first indent of
Regulation (EC) No 1049/2001.
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 Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
12 Judgment of the Court of Justice of 2 October 2014,
Strack v
Commission, C-127/13 P,
EU:C:2104:2250, paragraph 128 (hereafter
Strack v
Commission).
13
Strack v
Commission, cited above, paragraph 129.
8
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