EUROPEAN COMMISSION
LEGAL SERVICE
The Director-General
Brussels, 23 March 2022
By e-mail
Ms Ine Lejeune
Mingerslaan 6
8370 Blankenberge
Belgium
ask+request-10705-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Request for access to documents
Ref.:
Your request of 3 February 2022, registered on 4 February 2022, under reference
GestDem 2022/0768
Dear Ms Lejeune,
I refer to your above-referenced letter, under Regulation (EC) No 1049/2001 regarding public
access to documents
1, by which you request access to the following submissions made in the
Cases:
C-563/12, BDV Hungary Trading2, by:
1. the European Commission
2. the Greek Government;
C-33/16, A Oy3, by:
3. the European Commission
4. the Greek Government;
5. the Netherlands Government
C-288/16, L.Č.4, by:
6. the European Commission
C-275/18, Milan Vinš5, by:
7. the European Commission;
8. the Greek Government;
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents (OJ L 145, 31.05.2001, page 43).
2 Judgment of the Court of Justice of 19 December 2013, ECLI:EU:C:2013:854.
3 Judgment of the Court of Justice of 04 May 2017, ECLI:EU:C:2017:339.
4 Judgment of the Court of Justice of 29 June 2017, ECLI:EU:C:2017 :502.
5 Judgment of the Court of Justice of 28 March 2019, ECLI:EU:C:2019:265.
European Commission, B-1049 Brussels / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
Office: BERL 1/80. Telephone: direct line (32 -2) 296 13 86.
E-mail: xxxxxx.xxxxxxxxxxxxxx@xx.xxxxxx.xx
C-653/18, Unitel6, by:
9. the European Commission
C-656/19, BAKATI PLUS7, by:
10. the European Commission.
As regards the written observations submitted by the European Commission in Case
C-495/17, Cartrans Spedition SRL, please note that this document has been sent to you on 17
March 2021, following your request of 24 February 2021 and registered under reference
GestDem2021/1046. Since this document is now public, you can find it by consulting this
link:
https://ec.europa.eu/dgs/legal_service/submissions_cour_en.htm.
1.
WRITTEN OBSERVATIONS SUBMITTED BY THE COMMISSION (DOCUMENTS 1, 3, 6, 7, 9
AND 10)
After a concrete assessment of the documents concerned, I am pleased to inform you that
partial access can be granted in accordance with Regulation (EC) No 1049/2001, with the
exception of some personal and commercial data, as will be explained below.
Accordingly, you will find enclosed redacted copies of the French translation8 of documents 1
and 10 as well as copies of the French translation of documents 3, 6, 7 and 9, as requested.
You may reuse the disclosed documents free of charge, provided that the source is
acknowledged and that you do not distort its original meaning or message. Please note that the
Commission does not assume liability stemming from the reuse.
2.
WRITTEN PLEADINGS SUBMITTED BY THIRD PARTIES (DOCUMENTS 2, 4, 5 AND 8)
In accordance with Article 4(4) of Regulation (EC) No 1049/2001, the Commission has
consulted the authors of the written pleadings submitted by the third parties. Following these
consultations, I would like to inform you that:
– the Greek Government has agreed to the disclosure of its written submissions (documents
2, 4 and 8);
– the Netherlands Government has agreed to the disclosure of its written submission
(document 5).
Please note however that some personal data has been deleted, as will be explained below.
Accordingly, you will find enclosed redacted copies of the French translation9 of documents
2, 4 and 5 as well as a copy of the French translation of document 8, as requested.
The disclosed documents were transmitted by the Court of Justice to the Commission in its
capacity as participant to the Court proceedings at stake. Access is granted for information
only and cannot be re-used without the agreement of the originator, who holds a copyright on
them. They do not reflect the position of the Commission and cannot be quoted as such.
1.1. Protection of commercial interests
As mentioned above, some commercially sensitive information has been redacted on page 2
(paragraph 2) of Document 1, concerning the amount of additional taxation as adjustment
imposed on the applicant by the tax authorities following an audit.
6 Judgment of the Court of Justice of 17 October 2019, ECLI:EU:C:2019:876.
7 Judgment of the Court of Justice of 17 December 2020, ECLI:EU:C:2020:1045.
8 Languages of the proceedings: Hungarian, Finnish, Latvian, Czech and Polish.
9 ibid.
2
Article 4(2), first indent of Regulation (EC) No 1049/2001 states by way of exception that
"
[t]he institutions shall refuse access to a document where disclosure would u n dermin e th e
protection of commercial interests of a natural or legal person, including intellectual
property, unless there is an overriding public interest in disclosure ”.
The purpose of this exception is to protect the commercial and business interests of natural or
legal persons, especially with respect to confidential information related to their economic
activities.
In the light of the above, the withheld information must be covered by the said exception and
cannot be disclosed. In fact, considering that the Court of Justice abstained from revealing this
piece of information in its judgment, I consider that it constitutes sensitive information, known
to a limited number of persons, the disclosure of which may have prejudicial effect to the
commercial interests of the applicant. This risk is reasonably predictable and not purely
hypothetical.
1.2. Protection of personal data
The initials of the Institutions’ officials, not having the function of senior management staff,
have been redacted in the documents disclosed (first page of documents 2, 4, 5 and 10). This
information must be protected under the exception provided for in Article 4(l)(b) of
Regulation (EC) No 1049/2001, in accordance with the European Union legislation regarding
the protection of personal data.
According to Article 4(1)(b) of Regulation (EC) No 1049/2001
"[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: [...](b) 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-28/08P (Bavarian Lager)10, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable11.
The applicable legislation in this field is 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/EC12 (‘Regulation (EU) 2018/1725’).
Article 3(1) of Regulation (EU) 2018/1725 provides that personal data ‘
means any
information relating to an identified or identifiable natural person […]’. The Court of Justice
has specified that any information, which by reason of its content, purpose or effect, is linked
to a particular person is to be considered as personal data13.
10 Judgment of the Court of Justice of 29 June 2010, Case C-28/08 P,
European Commission v Th e Ba va rian
Lager Co. Ltd, EU:C:2010:378, paragraph 59.
11 Bavarian Lager judgment, paragraph 63. Whereas this judgment specifically related to Regulatio n (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 a n d b od ie s a nd o n t h e fre e
movement of such data, the principles set out therein are also applicable under the new data protec tion
regime established by Regulation (EU) 2018/1725.
12 Official Journal L 205 of 21.11.2018, page 39.
13 Judgment of the Court of Justice of 20 December 2017, Case
C-434/16, Peter Nowak v Data Protection
Commissioner, ECLI:EU:C:2017:994, paragraphs 33-35.
3
As regards the personal data of the officials of the institutions, the General Court has
confirmed, in its judgment in Case T-39/17 that the information such as names, signatures,
functions, telephone numbers and other information pertaining to staff members of an
institution fall within the notion of "private life", regardless of whether this data is registered
in the context of a professional activity or not. Accordingly, the initials of the Institutions’
officials have been deleted, since this information constitutes personal data in the meaning of
Article 3(1) of Regulation (EU) 2018/172514.
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 b o d ies 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 th e
data subject’s legitimate interests might be prejudiced, establishes that it is proportionate to
transmit the personal data for that specific purpose after having demonstrab ly weig hed th e
various competing interests”.
Only if these conditions are met 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.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established 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, 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
subject’s legitimate interests might be prejudiced.
Notwithstanding the above, please note that 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 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.
2.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Pursuant to Article 4(2) of Regulation (EC) No 1049/2001 the exception to the right of access
must be waived if there is an overriding public interest in disclosing the requested document.
In order for an overriding public interest in disclosure to exist, this interest, firstly, has to be
public and, secondly, overriding,
i.e. in this case it must outweigh the interest protected under
Article 4(2), first indent. In the present case, there are no elements capable of showing the
14 Judgment of the General Court of 19 September 2018, Case T-39/17,
Chambre de commerce and d'industri e
métropolitaine Bretagne-Ouest (port de Brest) v Commission, ECLI:EU:T:2018:560, paragraphs 37, 38 a n d
43.
4
existence of an overriding public interest in disclosure of this information, which would
outweigh the public interest invoked for the protection of commercial interests of the
persons/companies concerned.
Please note that the exception of Article 4(1)(b), concerning the protection of personal data,
has an absolute character and does not envisage the possibility of demonstrating the existence
of an overriding public interest.
3.
MEANS OF REDRESS
Should you wish the position to be reconsidered, you should present in writing, within fifteen
working days from receipt of this letter, a confirmatory application to the Commission's
Secretariat-General at the address below:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[signed electronically]
Daniel CALLEJA CRESPO
Attachments: 10
5
