Ref. Ares(2019)5714348 - 12/09/2019
Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels,
253 03 Chýně
Czech Republic
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 2019/4127
Dear
I refer to your letter of 9 August 2019, registered on the same day, in 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
In your initial application of 31 May 2019, addressed to the Ministry of Finance of the
Czech Republic, you requested access to the draft audit report drawn up by the European
Commission regarding audit REGC414CZ0133 to Czech institutions.
By letter dated 6 June 2019 (reference MF-14006/2019/9008-2), the Ministry of Finance
of the Czech Republic referred your request to the European Commission pursuant to
Article 5(2) of Regulation (EC) No 1049/2001, as the document originates from the
latter. On 18 July 2019, the European Commission registered your application under
reference GESTDEM 2019/4127.
In particular, the European Commission has identified the following document as falling
under the scope of your request:
Audit No REGC414CZ0133, draft report (English version), 29 May 2019,
reference Ares(2019)3512694 (hereafter ‘the requested document’).
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
In its initial reply of 1 August 2019, the Directorate-General for Regional and Urban
Policy refused access to this document based on the exception of Article 4(2), third
indent (protection of the purpose of inspections, investigations and audits) of Regulation
(EC) No 1049/2001.
In your confirmatory application, you request a review of this position and you put
forward a series of arguments in support of your request. These have been taken into
account in my assessment, set out 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
the Directorate-General for Regional and Urban Policy to refuse access to the requested
document. The refusal is based on the exceptions of Article 4(2), third indent (protection
of the purpose of inspections, investigations and audits), Article 4(1)(a), fourth indent
(protection of the public interest as regards the financial policy of the European Union),
and Article 4(1)(b) (protection of privacy and the integrity of the individual) of
Regulation (EC) No 1049/2001.
Please find below the detailed reasons for the refusal.
2.1. Protection of the purpose of inspections, investigations and audits
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 European Commission has the power to carry out audits to verify that the control and
management mechanisms implemented by Member States are adequate and to check
whether there are any deficiencies concerning projects funded by the European Union.
Indeed, Article 75(1) of Regulation (EU) No 1303/2013 of the European Parliament and
of the Council of 17 December 2013 laying down common provisions on the European
Regional Development Fund, the European Social Fund, the Cohesion Fund, the
European Agricultural Fund for Rural Development and the European Maritime and
Fisheries Fund and laying down general provisions on the European Regional
Development Fund, the European Social Fund, the Cohesion Fund and the European
Maritime and Fisheries Fund (hereafter ‘Regulation (EU) No 1303/2013’)3, provides that
‘[t]he Commission shall satisfy itself, on the basis of available information, […] that the
Member States have set up management and control systems that comply with this
3 Official Journal L 347 of 20.12.2013, p. 320.
2
Regulation and the Fund-specific rules and that those systems function effectively during
the implementation of programmes’.
Pursuant to Article 75(2) of Regulation (EU) No 1303/2013, ‘Commission officials or
authorised Commission representatives may carry out on-the-spot audits or checks […].
The scope of such audits or checks may include, in particular, verification of the effective
functioning of management and control systems in a programme or a part thereof, in
operations and assessment of the sound financial management of operations or
programmes’.
Similarly, Article 72 of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying
down general provisions on the European Regional Development Fund, the European
Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/19994 sets
out the responsibilities of the European Commission for the previous programming
period.
The document requested is a draft report forming part of the administrative file covering
an audit (and its follow-up) in relation to certain operational programmes and rural
development plans in the Czech Republic. The document contains the objective, scope
and methodology of the audit, the preliminary findings, recommendations and
conclusions for the key requirements audited, and the preliminary audit opinion.
The audit covers the management and control systems in place before the entry into force
of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council
of 18 July 2018 on the financial rules applicable to the general budget of the Union
(hereafter ‘Regulation (EU, Euratom) 2018/1046’)5. It also covers operations approved
after the entry into force of Regulation (EU, Euratom) 2018/1046. The main objective of
the audit is to verify compliance of the management and control systems with the
regulatory framework related to the measures to avoid conflict of interests.
It follows from the above that the audit, checks and their follow-up, envisaged by the
above-mentioned rules, are audits in the sense of Article 4(2), third indent of Regulation
(EC) No 1049/2001.
In this regard, I would like to refer to the judgment of the General Court in Case
T-480/11 (
Technion)6, in which the General Court considered that the exception of
Article 4(2), third indent of Regulation (EC) No 1049/2001 applies if disclosure of the
documents under the request may endanger the completion of inspections, investigations
or audits. The General Court stated that ‘[t]he interest protected by that exception is the
interest in allowing audits to be conducted independently and free of pressures, whether
these come from the body being audited, from other interested bodies or from the general
public’.7
4 Official Journal L 210 of 31.7.2006, p. 25.
5 Official Journal L 193 of 30.7.2018, p. 1.
6 Judgment of the General Court of 12 May 2015,
Technion v
Commission, T-480/11, EU:T:2015:272.
7 Ibid, paragraph 63.
3
In the above-referred judgment, the General Court also held that there is a general
presumption that documents forming part of the administrative file of an audit can be
considered as manifestly covered, in their entirety, by the exception referred to in Article
4(2), third indent of Regulation (EC) No 1049/2001, at least as long as the audit
procedure is ongoing.8 Indeed, according to the settled case-law, the institutions may
base their decisions on general presumptions which apply to certain categories of
documents, as similar general considerations are likely to apply to requests for disclosure
relating to documents of the same nature.9
I consider that the document identified as falling within the scope of your request is
manifestly covered, in its entirety, by the exception referred to in Article 4(2), third
indent of Regulation (EC) No 1049/2001, as it forms part of the administrative file of the
above-referred audit.
Public access to this document, which has been sent to the Czech authorities as part of
the audit procedure, would be detrimental to the proper conduct of the audit in question.
Indeed, it would compromise the smooth cooperation between the European Commission
and the Czech authorities, which is an essential precondition for the effective fulfilment
of the investigative tasks of the institution. It may lead to a reduced willingness, by the
authorities of the Member State concerned to participate constructively in ongoing and
future audits concerning Union funds.
I would like to underline that the draft audit report is the preliminary (and not final)
assessment of the European Commission on the management and control mechanisms
audited. The document thus serves as the basis for discussions with the Member State
and there is a real and non-hypothetical risk that its premature disclosure would adversely
affect this dialogue. In particular, the disclosure of the document would provide an
inaccurate picture to the public and lead to premature and unjustified conclusions on the
overall compliance of the Member State concerned with the relevant Union rules. This, in
turn, would seriously affect the climate of mutual trust between the European
Commission and the Member State, which is necessary at any stage of the discussions.
Moreover, I would like to draw your attention to the fact that the audit is still in progress.
Indeed, the relevant European Commission services carried out on-the-spot audit
missions in the Czech Republic from 8 January to 15 February 2019. The Czech version
of the draft report was sent to the Czech authorities on 4 July 2019. The European
Commission, therefore, opened the contradictory procedure with the Member State
concerned, requesting that the national authorities clarify or validate the facts presented
in the draft audit report and express their agreement or disagreement with the draft
findings.
8 Ibid, paragraphs 55-65.
9 Judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke Ilmenau
(hereafter referred to as
‘Commission v
TGI judgment’), C-139/07 P, EU:C:2010:376, paragraph 54;
Judgment of the Court of Justice of 14 November 2013,
LPN and Finland v
Commission, Joint Cases
C-514/11 P and C-605/11 P, EU:C:2013:738, paragraph 45.
4
Taking into account the additional information provided by the Member State, the
European Commission will draft the final audit report as well as the final audit opinion.
On the basis of the final audit report, the Member State may be requested to implement
the proposed recommendation(s) and/or carry out corrective action(s). The European
Commission will close the audit after the Member State has accepted and/or
implemented the recommendations/actions proposed in the final audit report. Where the
Member State has not accepted or implemented the recommendation(s) and/or action(s)
proposed, the European Commission will apply appropriate measures. Only when the
possible recommendations and/or corrective actions are implemented and the
irregularities sanctioned, the audit will be definitely closed.
Given the ongoing nature of the audit and the sensitivity of the investigations, the
disclosure of the document requested would expose the auditors and the relevant
European Commission departments to the foreseeable risk of coming under outside
pressure, which would be detrimental to the proper conduct of the audit and undermine
its effectiveness. It would also affect the European Commission’s capacity to carry out
appropriate follow-up measures, if deemed necessary.
I take the view that the purpose of such audit in the Member State concerned is best
achieved through good cooperation and in bilateral discussions free from external
pressure, notably when the subject of the inspections concerns the sensitive topic of
potential shortcomings in the mechanisms for the prevention of conflict of interests in the
allocation of European Union funds.
Against this background, there is a foreseeable and not purely hypothetical risk that
public release of the requested document would undermine the purpose of an ongoing
audit, which is, in this instance, to ensure that the management and control systems
implemented by the Member State are functioning effectively and, ultimately, to protect
the Union’s financial interests.
I conclude, therefore, that the requested document is covered in its entirety by the
exception laid down in Article 4(2), third indent of Regulation (EC) No 1049/2001 and
that access must be denied on that basis.
2.2. Protection of the public interest as regards the financial policy of the
European Union
Article 4(1)(a), fourth 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 public interest as regards […] the financial, monetary and
economic policy of the Community or a Member State’.
In its judgment in Case T-264/04 (
WWF)10, the Court of First Instance11 considered that
‘the institutions enjoy a wide discretion when considering whether access to a document
10 Judgment of the Court of First Instance of 25 April 2007,
WWF European Policy Programme v
Council (hereafter referred to as ‘
WWF v
Council judgment’), T-264/04, EU:T:2007:114.
11 Currently the General Court.
5
may undermine the public interest and, consequently, that the Court’s review of the
legality of the institutions’ decisions refusing access to documents on the basis of the
mandatory exceptions relating to the public interest must be limited to verifying whether
the procedural rules and the duty to state reasons have been complied with, the facts have
been accurately stated, and whether there has been a manifest error of assessment of the
facts or a misuse of powers’.12
The financial policy of the European Union relates closely to the proper management of
Union funds. Indeed, an inadequate implementation of the European Structural and
Investment Funds, or any irregularity in their management, would have the effect of
prejudicing the budget of the European Union and, therefore, its financial interests.
The above-mentioned audit is one of the means to protect the financial interests of the
European Union. Should the European Commission services detect a serious dysfunction
in the Czech management and control systems, or serious irregularities in the financial
management of the programmes and operations concerned, the European Commission
may apply the necessary measures to ensure the proper use of the Union funds and
protect the financial interests of the European Union.
Public access to the requested document, which would undermine the purpose of the
ongoing audit, would also undermine the financial interests of the European Union, as it
would hamper the European Commission’s ability to address constructively possible
shortcomings in the mechanisms in place to prevent conflict of interests in the Member
State and apply appropriate corrective measures, where necessary.
In light of the above, there is a real and non-hypothetical risk that such premature
disclosure would undermine the protection of the public interest as regards the financial
policy of the European Union, notably with regard to the proper management of
European Union funds.
Consequently, I consider that public disclosure of the requested document is also
prevented on the grounds of the protection of the public interest as regards the financial
policy of the European Union, based on the exception of Article 4(1)(a), fourth indent of
Regulation (EC) No 1049/2001.
2.3. 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 the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data’.
12
WWF v
Council judgment, cited above, paragraph 40.
6
In its judgment in Case C-28/08 P
(Bavarian Lager)13, 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 data14
(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/EC15 (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’.16
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’.17
The document which you seek to obtain contains personal data such as the names and the
surnames of persons who do not form part of the senior management of the European
Commission. They also contain personal data from third parties, including the name of
representatives of private companies.
The names18 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.
13 Judgment of the Court of Justice of 29 June 2010,
Commission v
The Bavarian Lager Co. Ltd
(hereafter referred to as
‘Commission v
The Bavarian Lager judgment’) C-28/08 P, EU:C:2010:378,
paragraph 59.
14 Official Journal L 8 of 12.1.2001, p. 1.
15 Official Journal L 205 of 21.11.2018, p. 39.
16 Commission v The Bavarian Lager judgment, cited above, paragraph 59.
17 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v
Österreichischer
Rundfunk, Joint Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
18
Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
7
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.19 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 confirmatory 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 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 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.
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.
19 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.
8
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
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.
According to the case-law, the applicant must, on the one hand, demonstrate the
existence of a public interest likely to prevail over the reasons justifying the refusal of the
documents concerned and, on the other hand, demonstrate precisely in what way
disclosure of the documents would contribute to assuring protection of that public
interest to the extent that the principle of transparency takes precedence over the
protection of the interests which motivated the refusal.20
In your confirmatory application, you state that, I quote: ‘the overriding public interest in
disclosure can be identified, as the above-mentioned audit is affecting the Czech Prime
Minister (and his – directly or indirectly – owned companies). [The Prime Minister] is
undoubtedly a person whose actions should be under public scrutiny’.
Having carefully analysed the above-referred arguments, I agree that, from a general
point of view, they point to the existence of a certain interest in the subject matter at
hand. However, I consider that such considerations do not demonstrate any pressing need
for the public to obtain access to the document requested, which has a preliminary nature
and does not set the final position of the institution regarding the activities audited.
Moreover, I do not see how this interest would override the public interest in ensuring
that the ongoing audit is properly conducted, and that the control systems in the Member
State are fully aligned with the required Union standards. As explained in section 2.1
above, the public interest is best served by allowing the European Commission to
complete the audits in smooth cooperation with the Member State.
Furthermore, I would like to stress that the requested document relates to an
administrative procedure and not to any legislative act, for which the Court of Justice has
acknowledged the existence of wider openness21. The General Court confirmed this
jurisprudence in its judgment in Case T-476/12 (
St. Gobain Glass)22
stressing the
serenity of administrative proceedings and the need to protect administrative procedures
from external pressure
.
In light of the above, I must conclude that the arguments you invoke do not demonstrate
how disclosure of the requested document would contribute, in a concrete manner, to the
20 Judgment of the General Court of 9 October 2018,
Anikó Pint v
Commission, T-634/17,
EU:T:2018:662, paragraph 48; Judgment of the General Court of 23 January 2017,
Association Justice
& Environment, z.s v
Commission, , T- 727/15, EU:T:2017:18, paragraph 53; Judgment of the General
Court of 5 December 2018,
Falcon Technologies International LLLC v
Commission,
T-875/16, EU:T:2018:877, paragraph 84.
21
Commission v
TGI judgment, cited above, paragraphs 53-55 and 60;
Commission v
Bavarian Lager
judgment, cited above, paragraphs 56-57 and 63.
22 Judgment of the General Court of 11 December 2014,
Saint-Gobain Glass Deutschland v
Commission,
T-476/12, EU:T:2014:1059, paragraphs 81-82.
9
protection of any public interest which would override the public interest protected by
Article 4(2), third indent (protection of the purpose of inspections, investigations and
audits) of Regulation (EC) No 1049/2001.
Please note also that the requested document is also protected under Articles 4(1)(a) and
4(1)(b) of Regulation (EC) No 1049/2001, which 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 partial access to the document requested.
However, as stated by the Court of Justice, where the document requested is covered by a
general presumption of non-disclosure, such document does not fall within an obligation
of disclosure, in full, or in part.23
Consequently, as explained in sections 2.1 and 2.2 above, I have come to the conclusion
that the document requested is covered in its entirety by the invoked exceptions to the
right of public access.
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
23
Judgment of the Court of Justice of 28 June 2012,
Commission v
Éditions Odile Jacob, C-404/10 P,
EU:C:2012:393, paragraph 133.
10
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