Ref. Ares(2020)7898951 - 23/12/2020
EUROPEAN COMMISSION
Secretariat-General
Directorate C – Transparency, Efficiency & Resources
The Director
Brussels
SG.C.1/TB/rc -
By registered mail with AR
Mr Peter Teffer
Ekko Voorkamer
Bemuurde Weerd WZ 3
3513 BH Utrecht
The Netherlands
Copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2020/6149
Dear Mr Teffer,
I refer to your e-mail of 14 October 2020, registered on 15 October 2020, in which you
make a request for access to documents, under the above-mentioned reference number.
Please accept our apologies for the late reply to your request.
1.
SCOPE OF YOUR REQUEST
You request access to, I quote:
‘All e-mails, papers, proposals, and progress reports related to the ‘Electronic AccesS to
European Commission Documents’ (EASE) project, including but not limited to the
'Artificial Intelligence Study' ("whose aim is to identify ‘use cases’ where artificial
intelligence techniques could simplify the handling of applications for access to
documents", according to the REPORT FROM THE COMMISSION on the application
in 2019 of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents)’.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
The Secretariat-General of the European Commission has identified the following
documents as falling under the scope of your request:
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Memorandum of Understanding (MoU) on "Study on the use of Artificial
Intelligence techniques for the electronic access to Commission
documents (for EASE and new RegDoc systems), dated 27/06/2019,
reference Ares(2019)4076912 (hereafter document 1);
Addendum to the Memorandum of Understanding (MoU) on “Study on
the use of Artificial Intelligence techniques for the electronic access to
Commission documents (for EASE and new RegDoc systems)”, dated
09/10/2019, reference Ares(2019)6246514 (hereafter document 2);
Business Case - Electronic Access to European Commission Documents
(EASE), dated 07/02/2019 (hereafter document 3);
Project Charter - Electronic Access to European Commission Documents
(EASE), dated 04/07/2019 (hereafter document 4);
Project Status Report, reporting period: 01/01/2019 to 31/01/2019
(hereafter document 5);
Project Status Report, reporting period: 01/05/2019 to 31/05/2019, dated
06/06/2019 (hereafter document 6);
Project Status Report, reporting period: 01/09/2019 to 30/09/2019
(hereafter document 7);
Project Status Report, reporting period: 01/01/2020 to 31/01/2020, dated
24/03/2020 (hereafter document 8);
Project Status Report, reporting period: 01/02/2020 to 29/02/2020, dated
24/03/2020 (hereafter document 9);
Note to the Legal Service, reference Ares(2020)1968909, dated
07/04/2020 (hereafter document 10);
Reply from the Legal Service, reference Ares(2020)2244932, dated
27/04/2020 (hereafter document 11);
Electronic Access to EC Documents (EASE) Kick-off, reference
Ares(2018)5665150, dated 06/11/2018 (hereafter document 12);
Minutes of Meeting, reference Ares(2019)661011, dated 05/02/2019
(hereafter document 13);
Minutes of Meeting, reference Ares(2019)3561368, dated 03/06/2019
(hereafter document 14);
Minutes of Meeting, reference Ares(2019)4984025, dated 30/07/2019
(hereafter document 15);
2
Minutes of Meeting, reference Ares(2020)1858206, dated 31/03/2020
(hereafter document 16);
Minutes of Meeting, reference Ares(2020)1858206, dated 31/03/2020
(hereafter document 17);
Minutes of Meeting, reference Ares(2020)1858206, dated 31/03/2020
(hereafter document 18);
Minutes of Meeting, reference Ares(2020)3490394, dated 02/07/2020
(hereafter document 19), which has the following annex:
o
Project Steering Committee meeting - presentation, dated
02/07/2020, reference Ares(2020)3490394 (hereafter document
19.1);
Minutes of Meeting, reference Ares(2020)4881566, dated 17/09/2020
(hereafter document 20), which has the following annex:
o
Project Steering Committee meeting - presentation, dated
17/09/2020, reference Ares(2020)4881566 (hereafter document
20.1);
Study on the use of Artificial Intelligence techniques for the electronic
access to Commission documents (for EASE and new RegDoc systems),
dated 29/05/2019 (hereafter document 21);
Architecture Overview - Electronic Access to Commission Documents
(EASE), dated 13/08/2020 (hereafter document 22);
Article “Almost 600 respondents participated in the consultation on
designing an online platform for public access to Commission
documents”, dated 23/10/2018 (hereafter document 23);
Statistics: Public access to the documents held by the European
Commission (hereafter document 24); and
Description of Use Cases - SG Artificial Intelligence Study (hereafter
document 25).
I can inform you that:
document 23 is publicly available under the following Internet address:
https://ec.europa.eu/isa2/news/almost-600-respondents-participated-consultation-
designing-online-platform-public-access_en;
full access is granted to documents 19.1 and 24;
3
wide partial access is granted to the rest of the requested documents only subject to
redactions due to the protection of personal data as per point (b) of Article 4(1) of
Regulation (EC) No 1049/2001, for the reasons set out below.
2.1. Protection of the 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 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)1, 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 data2 (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/EC3 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 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’.4
Article 3(1) of Regulation (EU) 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’.5
1
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.
2
OJ L 8, 12.1.2001, p. 1.
3
OJ L 295, 21.11.2018, p. 39.
4
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
5
Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v
Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
4
The requested documents contain personal data such as the names, positions, email and
office addresses and telephone numbers of persons who do not form part of the senior
management of the European Commission.
The names6 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 3(1) of
Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) 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) 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 by itself the existence of a need for transferring personal data.7 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 request for access to documents, 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, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the requested 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.
6
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
7
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
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 the disclosure of the personal data concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that point (b) of Article 4(1) of Regulation (EC) No 1049/2001 do not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
However, for the reasons explained above, no wider partial access is possible without
undermining the interests described above.
5.
MEANS OF REDRESS
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels,
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana Verrier
Director
Enclosures: 26
6
Electronically signed on 23/12/2020 10:42 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline