Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels, 31.7.2019
C(2019) 5880 final
1018WV Amsterdam
Netherlands
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 2019/2365
Dear
,
I refer to your email of 12 July 2019, registered on the same 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
documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR APPLICATION
On 16 April 2019, you submitted an initial application for access to ‘[f]ull version of the
informal meeting minutes of the Code of Conduct Group [on] Business Taxation
(excl[uding] subgroups) related to 2016 (2nd half), 2017, 2018 and 2019’.
Your request was attributed to the Directorate-General for Taxation and Customs Union
for reply.
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/
The European Commission identified 21 documents as falling under the scope of your
initial application3. In its initial reply of 27 June 2019, the Directorate-General for
Taxation and Customs Union granted:
- wide partial access to 12 documents (documents 2, 3, 6, 7, 9, 12, 14-18 and 19),
subject to the redaction of personal data based on the exception protecting privacy
and the integrity of the individual, provided for in Article 4(1)(b) of Regulation
(EC) No 1049/2001;
- partial access to nine documents (documents 1, 4, 5, 8, 10, 11, 13, 20 and 21).
The partial refusal was based on the exceptions protecting the public interest as
regards the financial, monetary and economic policy of the Community or a
Member State, privacy and the integrity of the individual and the institution’s
decision-making process, provided for in, respectively, Article 4(1)(a), fourth
indent, of Regulation (EC) No 1049/2001, Article 4(1)(b) of that regulation and
Article 4(3), first subparagraph, of the said regulation,
On 12 July 2019, you submitted the confirmatory application.
I note, however, that in that application you underline that it relates, I quote, ‘[…] only to
the 2019 doc[uments] (in the [initial reply] letter, doc[uments] 19 to 21’. Consequently,
through your confirmatory application, you request a review of the position of the
Directorate-General for Taxation and Customs Union, only as far as documents 19-21 are
concerned.
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 that review, I can inform you that further partial access is granted to the
documents concerned. Indeed, following the examination of the contents of these
documents, the further access is granted to one additional part of document 19,
previously withheld based on the exception in Article 4(1)(b) of Regulation (EC) No
1049/2001 (protection of privacy and the integrity of the individual). Further access is
also granted to the parts of documents 20 and 21, previously withheld on the basis of the
exception in Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001,
(protection of institution’s decision-making process).
With regard to the remaining undisclosed parts of these documents, I confirm the
position of the Directorate-General for Taxation and Customs Union.
Indeed, the undisclosed personal data included in documents 19-21, still requires
protection under the exception in Article 4(1)(b) of Regulation (EC) No 1049/2001 and
3
The list of the documents containing their titles and reference numbers was provided in the reply of
the Directorate-General for Taxation and Customs Union of 27 June 2019.
2
the relevant part of document 21, has to be withheld by virtue of Article 4(3), first
subparagraph, of that regulation.
The detailed reasons are set out below.
I also note that the relevant parts of document 21, as explained by the Directorate-
General for Taxation and Customs Union in its initial reply, contain information falling
outside the scope of your initial application and consequently, they were redacted as
such. The redacted version of that document disclosed in this decision, contains
indication which parts were redacted as out of scope.
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’.
The Court of Justice ruled in its judgment in Case C-28/08 P
(Bavarian Lager),4 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 data5 (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 the above-mentioned 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.6
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) No 2018/1725.
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 undisclosed parts of the requested documents contain the names and surnames of
staff members of the European Commission not holding any senior management
position. This information clearly constitutes personal data in the sense of Article 3(1) of
Regulation (EU) No 2018/1725 and in the sense of the
Bavarian Lager judgment7.
4 Judgment of the Court of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, paragraph 59 (hereafter ‘
Bavarian Lager’).
5 Official Journal L 8 of 12.1.2001, p. 1.
6
Official Journal L 205 of 21.11.2018, p. 39.
7
Bavarian Lager, cited above, paragraph 70.
3
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.
Furthermore, 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.8
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.
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 documents 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 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 disclosure of the personal data concerned.
8 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.
4
2.2 Protection of the decision-making process
Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that ‘[a]ccess
to a document, drawn up by an institution for internal use or received by an institution,
which relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
The relevant undisclosed part of document 21 contains information relating to the actions
taken by the Member State to address the issue of compliance with the 2000 guidance on
rollback and standstill. Indeed, the redacted part contains the reference to the internal
discussion with the Member State concerned concerning the legislative initiatives to be
undertaken in that context. These discussions are still ongoing and consequently, the
initiatives have not yet materialised as the adopted legislation.
Public disclosure of this information would undermine, as explained in the initial reply of
the Directorate-General for Taxation and Customs Union, the working of the Code of
Conduct Group on Business Taxation. Indeed, as the result of such disclosure, the
European Commission would encounter difficulties in receiving such informal updates
from the Member States and the information received would be limited to the standard
formal exchanges. It needs to be underline that the atmosphere of mutual trust and
confidentiality is instrumental for the proper functioning of the above-mentioned Group.
The disclosure of the information in question would affect that atmosphere and
consequently, the effectiveness of Group’s decision-making would be seriously
undermined.
Therefore, the withheld part of document 21 requires protection under Article 4(3), first
subparagraph, of Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that article 4(1)(b) of Regulation (EC) No 1049/2001 does not include the
possibility for the exception defined therein to be set aside by an overriding public
interest.
The exception laid down in Article 4(3) 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 do not refer to any particular overriding public
interest that would warrant public disclosure of the redacted information included in
document 21.
Nor have I, based on my own analysis, been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the decision-making process falling under the exception provided for in the first
subparagraph of Article 4(3) of Regulation (EC) No 1049/2001.
5