Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 6.12.2019
C(2019) 8902 final
University of Amsterdam
Nieuwe Achtergracht 166
NL- 1018 WV Amsterdam
The 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 2019/3828
Dear
,
I refer to your letter of 27 August 2019, registered on 28 August 2019, 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 3 July 2019, addressed to the Directorate-General for
Taxation and Customs Union, you requested access to ‘all documents […] on the topic
CCTB/CCCTB-proposals of the Working Party on Tax Questions […] and the High
Level Working Party related to the years 2016-2019’.
The European Commission has identified the following documents as falling under the
scope of your request:
Flash report related to the Working Party on Tax Questions of 16 February
2017, reference Ares(2017)912953 (hereafter ‘document 1’);
Flash report related to the Working Party on Tax Questions of 23 March
2017, reference Ares(2017)1617364 (hereafter ‘document 2’);
Flash report related to the Working Party on Tax Questions of 26 April
2017, reference Ares(2017)2172583 (hereafter ‘document 3’);
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Flash report related to the Working Party on Tax Questions of 12 July
2017, reference Ares(2017)3997450 (hereafter ‘document 4’);
Flash report related to the Working Party on Tax Questions of 21
September 2017, reference Ares(2017)4635033 (hereafter ‘document 5’);
Flash report related to the Working Party on Tax Questions of 3 October
2017, reference Ares(2017)4868804 (hereafter ‘document 6’);
Flash report related to the Working Party on Tax Questions of 16 October
2017, reference Ares(2017)5132532 (hereafter ‘document 7’);
Flash report related to the Working Party on Tax Questions of 18 January
2018, reference Ares(2018)364484 (hereafter ‘document 8’);
Flash report related to the Working Party on Tax Questions of 27
September 2018, reference Ares(2018)5048657 (hereafter ‘document 9’);
Flash report related to the Working Party on Tax Questions of 17 October
2018, reference Ares(2018)5348658 (hereafter ‘document 10’);
Flash report related to the Working Party on Tax Questions of 30 October
2018, reference Ares(2018)5556351 (hereafter ‘document 11’);
Flash report related to the Working Party on Tax Questions of 21 January
2019, reference Ares(2017)322012 (hereafter ‘document 12’);
Flash report related to the Working Party on Tax Questions of 22 February
2019, reference Ares(2017)1257484 (hereafter ‘document 13’);
Flash report related to the Working Party on Tax Questions of 25 March
2019, reference Ares(2017)2053348 (hereafter ‘document 14’).
In its initial reply of 9 August 2019, the Directorate-General for Taxation and Customs
Union refused access to these documents based on the exceptions of Article 4(1)(a),
fourth indent (protection of financial, monetary or economic policy of the Union or a
Member State) and Article 4(3), first paragraph (protection of the decision-making
process) of Regulation (EC) No 1049/2001.
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.
2
Against this background, the European Commission has carried out a renewed, thorough
search for documents that would fall under the scope of your confirmatory application.
Following this renewed search, the European Commission has identified the following
documents in the scope of your request:
CCTB Revenue Assessment - Powerpoint presentation by the Commission
services - WK 13019/2018 INIT, reference Ares(2019)6376196, (hereafter
‘document 15’);
CCTB: Profit and Loss method vs. Business Asset Comparison Method (BACM)
-
WK
12817/2018
INIT,
reference
Ares(2019)6376105,
(hereafter
‘document 16’);
CCTB proposal - Financial instruments - WK 12025/2018 INIT, reference
Ares(2019)6376021, (hereafter ‘document 17’);
CCTB proposal - Insurance undertakings - WK 12024/2018 INIT, reference
Ares(2019)6375822, (hereafter ‘document 18’);
Proposal for a Council Directive on a Common Corporate Tax Base - CCTB
mapping - WK 7662/2017 INIT, reference Ares(2019)6375668, (hereafter
‘document 19’);
Proposal for a Council Directive on a Common Corporate Tax Base (CCTB) -
Impact of the CCTB on the effective tax burden of corporations - WK 3822/2019
INIT, reference Ares(2019)6375574, (hereafter ‘document 20’);
Proposal for a Council Directive on a Common Corporate Tax Base (CCTB) -
Impact of the CCTB on the effective tax burden of corporations - WK 3821/2019
INIT, reference Ares(2019)6375469, (hereafter ‘document 21’);
Proposal for a Council Directive on a Common Corporate Tax Base (CCTB) -
Leasing - WK 3732/2019 INIT, reference Ares(2019)6375347, (hereafter
‘document 22’);
Tax Treatment of Debt and Equity Financing from the Viewpoint of the
Borrower's Tax Jurisdiction and Operation of the 10-year reference date for the
purpose of computing increases in the "AGI tax base" - WK 2837/2017 INIT,
reference Ares(2019)6375225, (hereafter ‘document 23’);
Cross-Border Loss Relief and Recapture – Article 42 CCTB - WK 2563/2017
REV 1, reference Ares(2019)6375096, (hereafter ‘document 24’);
Cross-Border Loss Relief and Recapture – Article 42 CCTB - WK 2563/2017
INIT, reference Ares(2019)6374996, (hereafter ‘document 25’);
3
Common Corporate Tax Base (CCTB) proposal - Presentation by the
Commission Services - WK 1732/2017 INIT, reference Ares(2019)63754898,
(hereafter ‘document 26’);
Common Corporate Tax Base (CCTB) proposal - Presentation by the
Commission Services - WK 1730/2017 INIT, reference Ares(2019)6374788,
(hereafter ‘document 27’);
CORTAX model - WK 990/2018 INIT, reference Ares(2019)6374484, (hereafter
‘document 28’);
CCTB: Mergers, divisions and losses - Presentation - WK 159/2019 ADD 1,
reference Ares(2019)6374370, (hereafter ‘document 29’);
CCTB: Losses in the context of restructuring - WK 159/2019 INIT, reference
Ares(2019)6374252, (hereafter ‘document 30’);
CCTB: Goodwill - WK 148/2019 REV 2, reference Ares(2019)6374134,
(hereafter ‘document 31’);
CCTB: Goodwill - WK 148/2019 REV 1, reference Ares(2019)6373992,
(hereafter ‘document 32’);
CCTB: Goodwill, reference Ares(2019)6373861, (hereafter ‘document 33’);
Proposal for a Council Directive on a Common Corporate Tax Base (CCTB) -
Franco-German proposal on CCTB scope extension - WK 3725 2019 INIT,
reference Ares(2019)7024070, (hereafter ‘document 34’);
CCTB: Scope vs. Flexibility of the Common Base - WK 979 2018 INIT,
reference Ares(2019)7024018, (hereafter ‘document 35’);
CCTB: level of harmonisation - WK 905 2018 INIT, reference
Ares(2019)7023978, (hereafter ‘document 36’);
C(C)CTB: flexibility for Member States - WK 980 2018 INIT, reference
Ares(2019)7023886, (hereafter ‘document 37’);
CCTB: way forward for more detailed provisions - WK 12706 2018 INIT,
reference Ares(2019)7023820, (hereafter ‘document 38’);
Proposal for a Common Corporate Tax Base (CCTB) - Political issues arising
from the evaluation of the impact of the Proposal for a Common Corporate Tax
Base (CCTB) on national tax revenues - WK 12697 2018 INIT, reference
Ares(2019)7023772, (hereafter ‘document 39’);
CCTB proposal: state of play and further handling in the Council under the
Austrian Presidency - WK 10851 2018 INIT, reference Ares(2019)7023714,
(hereafter ‘document 40’);
4
Presidency compromise text on Chapters I to X of the proposal for a Council
Directive on a Common Corporate Tax Base (CCTB) - WK 3712 2019 INIT,
reference Ares(2019)7023648, (hereafter ‘document 41’);
Presidency discussion document - Possible ways forward on the anti-abuse
measures foreseen in the CCTB proposal - WK 2250 2019 INIT, reference
Ares(2019)7023614, (hereafter ‘document 42’);
CCTB: Hidden profit distributions - WK 306 2019 REV 1, reference
Ares(2019)7023551, (hereafter ‘document 43’);
Proposal for a Council Directive on a Common Corporate Tax Base - Presidency
compromise on CCTB Chapters I-II-III-IV-V - WK 261 2019 INIT, reference
Ares(2019)7023450, (hereafter ‘document 44’);
Presidency compromise text on CCTB Chapters I-II-III-IV-V - WK 12705 2018
INIT, reference Ares(2019)7023401, (hereafter ‘document 45’);
CCTB revenue assessments: summary of responses received - WK 12787 2018
INIT, reference Ares(2019)7023368, (hereafter ‘document 46’);
Presidency working paper on the German-French common position paper on the
CCTB proposal - WK 10852 2018 INIT, reference Ares(2019)7023313,
(hereafter ‘document 47’);
First Presidency compromise on provisions for evaluating impact on national tax
revenues - WK 2676 2018 INIT, reference Ares(2019)7023283, (hereafter
‘document 48’);
First Presidency compromise on Chapter IV of the Proposal for a Council
Directive on a Common Corporate Tax Base - WK 1929 2018 INIT, reference
Ares(2019)7023227, (hereafter ‘document 49’);
CCTB proposal: state of play and way forward – WK 15069 2017 INIT -
reference Ares(2019)7023847, (hereafter ‘document 50’).
Please note that documents 1-14 were drawn up for internal use under the responsibility
of the relevant services of the Directorate-General for Taxation and Customs Union.
They reflect solely the author’s interpretation of the interventions made and do not set
out any official position of the delegations involved in the discussions.
Please also note that documents 34-50 are room documents of the Council’s Working
Party on Tax Questions. In the framework of sincere cooperation with the Council, the
Commission consulted the Council on the possible disclosure of documents 34-50.
Following this review and after taking into account the replies of the Council services on
possible disclosure of the requested documents and the justifications provided, I can
inform you that:
5
full access is granted to documents 15-50;
wide partial access is granted to documents 1-14.
As regards the redacted parts of documents, they contain personal data and can therefore
not be disclosed, as they are protected based on the exception of Article 4(1)(b)
(protection of the privacy and the integrity of the individual) of Regulation (EC) No
1049/2001, for the reasons 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)3, 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 data4
(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/EC5 (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’.6
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
3
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.
4
OJ L 8, 12.1.2001, p. 1.
5
OJ L 205, 21.11.2018, p. 39.
6
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
6
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’.7
Documents 1-14 contains personal data such as the names and initials of persons who do
not form part of the senior management of the European Commission.
The names8 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.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. 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.
7
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.
8
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
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.
7