Ref. Ares(2020)5931722 - 26/10/2020
EUROPEAN COMMISSION
Brussels, 24.7.2019
C(2019) 5653 final
00156 Roma
Italy
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 2019/1822
Dear
I refer to your email of 29 April 2019, registered on 3 May 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 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 25 March 2019, addressed to the Directorate-General for
Environment, you requested access to all the documents related to the infringement
procedures launched by the European Commission against Italy in respect of Directive
2010/63/EU3 .
In particular, you expressed your interest for the reasons, status to date, communications,
possible fines and the part of the procedures in question which were triggered by non-
governmental organisations such as the European Animal Research Association and
Research4Life.
1 Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
3 Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the
protection of animals used for scientific purposes, Official Journal L 276 of 20.10.2010, p. 33–79
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
The European Commission has identified the following two files as falling under the
scope of your request:
infringement procedure 2016/2013; and
infringement procedure 2013/0042.
In its initial reply of 9 April 2019 concerning the part of your request related to
infringement procedure 2016/2013, the Directorate-General for Environment refused
access to the documents pertaining to that investigation, pursuant to Article 4(2), third
indent of Regulation (EC) No 1049/2001, on the ground that it was pending at the stage
of the Reasoned Opinion.
In its complementary initial reply of 25 April 2019 in relation to the part of your request
concerning the currently archived infringement procedure 2013/0042, the Directorate-
General for Environment:
granted full access to the Letter of Formal Notice, the related replies of the
Italian authorities of 21 August 2013, 10 December 2013 and 6 March 2014, and
the extract from the Italian Official Journal no 61 of 14 March 20144; and
refused partial access to the Reasoned Opinion and full access to the replies of
the Italian authorities of 12 February 20135 and 26 May 20146, on the basis of
the exception of Article 4(2), third indent of Regulation (EC) 1049/2001
concerning the protection of the purpose of investigations, after consultation of
the Italian authorities in accordance with Article 4(4) and (5) of the said
regulation.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
below.
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 concerned at the initial stage.
Following this review, I regret to inform you that I have to confirm the initial decision of
Directorate-General for Environment to refuse access to the
requested documents
pertaining to infringement procedure 2016/2013 based on the exception concerning the
protection of the purpose of investigations, provided under Article 4(2), third indent of
Regulation (EC) No 1049/2001, for the reasons set out below.
4 Containing the publication of the Legislative Decree of 4 March 2014, together with a correlation table.
5 To the Letter of Formal Notice.
6 To the Reasoned Opinion.
2
However, I am pleased to release the
reply of the Italian authorities of 26 May 2014,
the
the Reasoned Opinion (including its withheld third paragraph)
as well as
the Reply of the
Italian authorities of 12 February 2013, subject to the sole redaction of personal data, in
accordance with the exception laid down in Article 4(1)b for the protection of privacy
and the integrity of the individual as detailed below.
2.1. Protection of the purpose of investigations
Article 4(2), third 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 […] the purpose of inspections, investigations and audits, unless there is an
overriding public interest in disclosure.’
The Court of Justice held that ‘[…] infringement procedures are […] a type of procedure
which, as such, has characteristics precluding full transparency being granted in that field
and which therefore has a special position within the system of access to documents’7.
Consequently, pursuant to settled case law, ‘[…] it can be presumed that the disclosure of
the documents concerning an infringement procedure during its pre-litigation stage risks
altering the nature of that procedure and changing the way it proceeds and, accordingly,
that disclosure would in principle undermine the protection of the purpose of
investigations, within the meaning of the third indent of Article 4(2) of Regulation
[EC] No 1049/2001.8’
The General Court further stressed that ‘[…] the Member States are entitled to expect the
European Commission to guarantee confidentiality during investigations which might
lead to an infringement procedure. This requirement of confidentiality remains even after
the matter has been brought before the Court of Justice, on the ground that it cannot be
ruled out that the discussions between the Commission and the Member State in question
regarding the latter's voluntary compliance with the Treaty requirements may continue
during the court proceedings and up to the delivery of the judgment of the Court of
Justice. The preservation of that objective, namely an amicable resolution of the dispute
between the Commission and the Member State concerned before the Court of Justice
has delivered judgment, justifies refusal of access […] on the ground of protection of the
public interest relating to inspections, investigations and court proceedings […]’.9
Nevertheless, when the above-mentioned general presumption does not or no longer
applies, it is the duty of the European Commission to examine individually and
specifically whether the requested documents can be fully disclosed publicly10.
7 See judgment of 14 November 2013,
LPN and Finland v
European Commission, C - 514/11 P and
C - 605 / 11 P, EU:C:2013:738, paragraph 55.
8
Ibid, paragraph 65.
9 Judgment of 11 December 2001,
Petrie and Others v
European Commission, T-191/99, EU:T:2001:284,
paragraph 68.
10 See
inter alia, judgment of 16 July 2015,
ClientEarth v European Commission, C-612/13 P,
EU:C:2015:486, paragraph 82.
3
In this instance, the documents to which you request access relate to two infringement
procedures, namely infringement procedure 2016/2013 which is still pending and closed
infringement procedure 2013/0042.
In its initial reply, the Directorate-General for environment refused access to the
documents related to infringement procedure 2016/2013 on the basis of a general
presumption against disclosure resulting from Article 4(2), third indent of
Regulation (EC) No 1049/2001. I must confirm this position on the ground that
infringement procedure 2016/2013 is still pending, in light of the above-mentioned case
law.
As far as the documents related to infringement procedure 2013/0042 are concerned, as
they are no longer protected by such a general presumption of confidentiality, the
Directorate-General for environment granted full access to them, subject to a withheld
part of the Reasoned Opinion and two replies of the Italian authorities of 12 February
2013 and 26 May 2014.
The withheld part of the Reasoned Opinion and the two replies of the Italian authorities
in question were refused, after consultation of the Italian authorities in accordance with
Article 4(4) and (5) of Regulation (EC) No 1049/2001, on the ground that those
documents contain substantive information inextricably linked to the still pending
procedure 2016/2013.
In the framework of this consultation, I would like to reassure you, that, contrary to your
assumption11, your identity was not released. Pursuant to the European Commission’s
established practice and in accordance with Regulation (EU) 2018/172512, the identity of
applicants is not disclosed in the course of consultations of third parties under Article
4(4) and (5) of Regulation (EC) No 1049/2001. In this context, the third party originator
of the requested document(s) is, indeed, merely informed of the submission of the
application for access and requested to provide its position as to the requested public
disclosure within a specific time-limit.
At the confirmatory stage, the Italian authorities were consulted again and amended their
initial position as detailed below.
a) Position of the Italian authorities
Following
their
re-consultation
pursuant
to
Article
4(4)
and
(5)
of
Regulation (EC) No 1049/2001, the Italian authorities have waived their initial
opposition to the disclosure of their reply of 26 May 2014.
11 See the last paragraph of your confirmatory application.
12 Regulation 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/ECOfficial Journal L 295 of 21 November 2018, p.39, hereinafter ‘Regulation
(EU) 2018/1725’.
4
The Italian authorities maintained nevertheless their opposition to the disclosure of their
reply
of
12
February
2013,
based
on
Article
4(2),
third
indent
of
Regulation (EC) No 1049/2001, on the ground that it would seriously undermine pending
procedure 2016/2013.
b) Prima Facie Assessment of the European Commission
The European Commission carried out a
prima facie assessment of the reasoning put
forward
by
the
Italian
authorities
in
light
of
the
provisions
of
Regulation (EC) No 1049/2001.
In this context, the European Commission first notes that the reply of the Italian
authorities of 12 February 2013, pertains to closed investigation 2013/0042 regarding the
lack of transposition by Italy of Directive 2010/63.
Moreover, this document does not seem to contain any substantive elements as regards
the incorrect transposition by Italy of the said directive, as currently assessed under
pending infringement procedure 2016/2013.
Furthermore, whereas both closed infringement procedure 2013/0042 and ongoing
infringement procedure 2016/2013 concern the issue of the transposition by Italy of the
same act, namely Directive 2010/63/EU, they had two distinct purposes. Whilst the latter
focus on the improper transposition of the directive in question by Italy, the former
concerned exclusively the issue of its lack of transposition into the Italian legislation.
Both procedures cannot therefore be considered, at first sight, as inextricably linked.
Therefore, the disclosure of the arguments raised by Italy regarding the reasons
underlying the lack of transposition in the framework of a procedure closed more than
five years ago do not seem likely to undermine the distinct purpose of the currently
pending investigation under infringement procedure 2016/2013, which consists in
assessing whether the transposition of Directive 2010/63/EU into the Italian legislation is
proper.
This
prima facie conclusion seems further reinforced by the fact that, in substance, the
reply of the Italian authorities of 12 February 2013 is rather brief and drafted in quite
general terms, referring to a political situation which was likely of public knowledge at
the time.
Against this background, the arguments raised by Italy in the framework of the closed
procedure for lack of transposition do not appear,
at first sight, to remain applicable in
the
context
of
the
ongoing
procedure
for
improper
transposition
of
Directive 2010/63/EU.
According to the European Commission’s assessment, the exception of Article 4(2), third
indent of Regulation (EC) No 1049/2001, concerning the protection of the purpose of
investigations does not therefore, at first sight, seems to apply to the document in
question.
5
In light above the above, access to the third paragraph of the Reasoned Opinion sent by
the European Commission to the Italian authorities, cannot therefore be refused on the
mere ground that its reflects the position expressed in the reply of 12 February 2013 from
the Permanent Representation.
Consequently, access is, hereby, granted to the three requested documents pertaining to
infringement procedure 2013/0042, subject to the sole redaction of personal data, in
accordance with Article 4(1)(b) of Regulation (EC) No 1049/2001, as detailed below.
2.2. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that ‘[t]he 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.’
The applicable legislation in this field is 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/EC.13
In the
Psara case, the General Court reiterated that Article 4(1)(b) ‘is an indivisible
provision [which] 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, in particular with Regulation
45/2001’ and that ‘[it] establishes a specific and reinforced system of protection of a
person whose personal data could, in certain cases, be communicated to the public
[…].14’
Notwithstanding the fact that this judgment referred to Regulation (EC) No 45/2001, it
applies by analogy to Regulation (EU) 2018/1725, as, in principle, the rest of the case
law pertaining to the former.
Article 3(1) of Regulation (EU) 2018/1725 provides that personal data ‘means any
information relating to an identified or identifiable natural person […]’. The Court of
Justice ruled that
any information, which due to its content, purpose or effect, is linked to a
particular person, qualifies as personal data15.
13 Official Journal L 205 of 21.11.2018, p. 39, hereafter ‘Regulation (EU) 2018/1725’.
14 Judgment of 25 September 2018,
Maria Psara and Others v
European Parliament, T-639/15 to T-
666/15 and T-94/16, EU:T:2018:602, paragraph 65.
15 Judgment of 20 December 2017, C-434/16,
Peter Novak v
Data Protection Commissioner,
EU:T:2018:560, paragraphs 33-35
6
In the
Rechnungshof case law, the Court of Justice further confirmed that ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’16.
The General Court also stressed that ‘[t]he Court previously held that derogations from
the protection of personal data must be interpreted strictly’17.
In this instance, the letters of replies originating from the Italian authorities and the
Reasoned Opinion contain the names, surnames and handwritten signatures of
individuals.
Public disclosure of these personal and biometric data would consequently constitute
processing (transfer) of personal data within the meaning of Article 9(1) (b) of
Regulation (EU) 2018/1725.
Pursuant to this provision, ‘personal data shall only be transmitted to recipients established
in the Union other than Union institutions and bodies if […] the 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 both fulfilled and the processing constitutes lawful processing
in accordance with the requirements of Article 5 of Regulation (EU) 2018/1725, can the
transmission of personal data occur.
According to settled case-law, the condition of necessity laid down in Article 9(1)(b) of
Regulation (EU) 2018/1725 requires the demonstration by the applicant that the transfer
of personal data is the most appropriate of the possible measures for attaining his/her
objective, and that it is proportionate to that objective.’18
In your request, 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
subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, please note that 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 documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
16 Judgment of 20 May 2003, C-465/00, C-138/01 and C-139/01,
Rechnungshof v
Österreichischer
Rundfunk and others, EU:C:2003:294, paragraph
73.
17 Judgment of 25 September 2018,
Maria Psara and Others v
European Parliament, T-639/15 to T-
666/15 and T-94/16,
op. cit., paragraph 68.
18 Judgment of 15 July 2015,
Dennekamp v
Parliament, T-115/13, EU:T:2015:497, paragraph 77.
7
Consequently,
I
conclude
that,
pursuant
to
Article
4(1)(b)
of
Regulation (EC) No 1049/2001, access cannot be granted to the personal data included in
the Replies of the Italian authorities and the Reasoned Opinion, 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
such a disclosure.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Whereas Article 4(1)b is an absolute exception which cannot be set aside, the exception
laid down in Article 4(2), third indent 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.
In your confirmatory application, you allege the existence of an overriding public interest
on the grounds that (1) your organisation represents many Italian citizens asking for the
abolition of animal experiments; (2) an opinion of the Italian Commission XII ‘Igiene e
Sanità’ of 12 March 2019 requesting amendments in the Italian legislation; (3) the lack of
transparency on the reasons underlying the infringement procedure against Italy; (4) an
online petition signed by 17000 citizens in favour of the repeal of the opinion and respect
of the transposition of Directive 63/2010/EU; and (5) the required public awareness of
the actual situation, including animal welfare organisations and not only ‘interested
lobbies with financial interests’.
Pursuant to settled case law, whereas the overriding public interest capable of justifying
the disclosure of requested documents must not necessarily be distinct from the
principles which underlie Regulation[(EC)] No 1049/2001, such general considerations
cannot, nevertheless, provide an appropriate basis for establishing that, in the present
case, the principle of transparency is so pressing as to prevail over the reasons justifying
the refusal to disclose the documents in question19.
Having regard to the foregoing considerations, it appears that none of the arguments that
you put forward establish the existence of an overriding public interest within the
meaning of Regulation (EC) No 1049/2001.
Nor have I been able to identify any public interest capable of overriding the interest
protected by Article 4(2), third indent of Regulation (EC) No 1049/2001. This is
notwithstanding the fact that the European Commission welcomes the public’s interest
regarding the transposition of Directive 63/2010/EU and has been promoting animal
welfare within the limits of its responsibilities.
19 Judgment of 14 November 2013,
LPN and Finland v
European Commission, C-514/11P and C-605/11P,
EU:C:2013:738, paragraphs 92 to 94.
8
The fact that the requested documents relate to an administrative procedure and not to
any legislative act, for which the Court of Justice has acknowledged the existence of
wider openness20, provides further support to this conclusion.
Moreover, the fact that the European Commission has kept, to some extent, the public
informed of the substance and the various stages of the infringement procedure in
question via its dedicated portal for infringements only reinforces this conclusion.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation[(EC)] No 1049/2001, (further) partial
access is hereby granted to the Reasoned Opinion and the Reply of the Italian authorities
of 12 February 2013.
However, for the reasons explained above, no (further) meaningful partial access is
possible without undermining the interests described above.
As far as the refused documents pertaining to infringement procedure 2016/2013 are
concerned, they do not fall within an obligation of disclosure, in full, or in part, pursuant
to settled case law, as they are covered by a general presumption of non-disclosure21.
Consequently, I have come to the conclusion that these documents are covered in their
entirety by the invoked exception to the right of public access.
5.
DISCLOSURE AGAINST THE EXPLICIT OPINION OF THE ITALIAN AUTHORITIES
As the decision to partially disclose the Reply of 12 February 2013 and the third
paragraph of the Reasoned Opinion (insofar as it reflects the substance of the latter) is
taken against the objections of the Italian authorities expressed in the framework of their
consultation at the initial and confirmatory level in accordance with Article 4(4) and (5)
of Regulation (EC) No 1049/2001 as explained above, the European Commission will
inform them of its decision.
The institution will not grant such partial disclosure until a period of ten working days
has elapsed from the formal notification of this decision to the Italian authorities, in
accordance
with
Article
5(6)
of
the
implementing
provisions
of
Regulation (EC) No 1049/2001.
This time-period will allow the Italian authorities to inform the European Commission
whether they will 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.
20 Judgment of 29 June 2010,
European Commission v
Technische Glaswerke Ilmenau Gmbh, C-139/07 P,
EU:C:2010:376, paragraph 60.
21 Judgment of 28 June 2012,
European Commission v
Éditions Odile Jacob, C-404/10 P, EU:C:2012:393,
paragraph 133.
9