Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 26.9.2019
C(2019) 7075 final
Steptoe
Avenue Louise 489
1050 Brussels
Belgium
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 2019/3595
Dear
,
I refer to your letter of 22 August 2019, registered on the same date, 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 21 July 2019, you submitted the initial application to addressed to the Directorate-
General for Internal Market, Industry, Entrepreneurship and SMEs, I quote, ‘[…]
requesting access to:
i.
Any documents related to the European Commission's assessment or
correspondence between the different Directorates-General related to the
safeguard procedure of Article 129 of the R[egistration], E[valuation],
A[uthorisation] and R[estriction of Chemicals] Regulation […] used by France
and leading to Commission Implementing Decision (EU) 2019/961[…], as of 14
November 2018;
ii.
Any documents (as of 14 November 2019) related to the discussions of the draft
Commission Implementing Decision at the R[egistration], E[valuation],
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/
A[uthorisation] and R[estriction of Chemicals] Committee meeting of 12 April
2019 and
iii.
Any documents (as of 14 November 2019) related to the use of the procedure
under Article 129 of the R[egistration], E[valuation], A[uthorisation] and
R[estriction of Chemicals] Regulation by France for concerning the cellulose
wadding insulation materials with ammonium salts additives and leading to
Commission Implementing Decision […], in particular:
• Any correspondence between France and the European Commission, and
• Any documents related to the European Commission's assessment of
urgency.’
The European Commission identified 29 documents falling under the scope of your
initial application3.
In its initial reply of 1 August 2019, the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs informed you that documents 13, 17, 25 and 28
were publically available and provided the hyperlinks thereto.
With regard to the remaining documents, the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs granted:
- full access to documents 2, 3, 11, 14, 15, 16, 19, 21 and 27,
- wide partial access to documents 1, 4, 6, 7, 8, 9, 10, 12, 18, 20, 22, 23, 24, 26 and
29, with personal data redacted 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 document 5, with the limited parts withheld based on the above-
mentioned exception in Article 4(1)(b) of Regulation (EC) No 1049/2001, as well
as the exception in Article 4(2), second indent, of that regulation, protecting the
legal advice.
You submitted your confirmatory application on 22 August 2019, asking for the review
of that position.
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.
3 The full list of these documents was enclosed to the reply of the Directorate-General for Internal
Market, Industry, Entrepreneurship and SMEs of 1 August 2019.
2
Following this review, I inform you that the information included in document 5,
redacted at the initial stage because of the exception in Article 4(2), second indent, of
Regulation (EC) No 1049/2001 (protection of the court proceedings and legal advice) is
now disclosed. Consequently, wide partial access is granted to the above-mentioned
document, with only personal data redacted based on the exception in Article 4(1)(b) of
the said regulation.
With regard to documents 1, 4, 6, 7, 8, 9, 10, 12, 18, 20, 22, 23, 24, 26 and 29, I confirm
the position of the Directorate-General for Internal Market, Industry, Entrepreneurship
and SMEs granting wide partial access thereto, with the relevant parts redacted by virtue
of the above-mentioned exception in Article 4(1)(b) of Regulation (EC) No 1049/2001.
The detailed reasons are set out below.
2.1.
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’.
In its judgment in Case C-28/08 P
(Bavarian Lager)4, 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 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 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/EC6 (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.
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.
3
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) 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
Documents 1, 4, 5, 6, 7, 8, 9, 10, 12, 18, 20, 22, 23, 24, 26 and 29, contain personal data
such as the names, surnames, initials, as well as office and email addresses of the staff
members of the European Commission not holding any senior management position.
They 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.9 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.
7
European Commission v
The Bavarian Lager judgment,
cited
above, paragraph 59.
8
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.
9
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