Ref. Ares(2021)1561740 - 01/03/2021
EUROPEAN COMMISSION
Secretariat-General

Directorate C – Transparency, Efficiency & Resources
  The Director

Brussels
SG.C.1/LC
By registered mail with AR
Mr Peter Teffer
Ekko Voorkamer
Bemuurde Weerd WZ 3
3513 BH Utrecht
The Netherlands
Copy by email:
ask+request-9021-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2021/0595
Dear Mr Teffer,
I  refer  to  your  message  of  6  February  2021,  registered  on  the  same  day,  in  which  you
make a request for access to documents, under the above-mentioned reference number.
1.
SCOPE OF YOUR REQUEST
You  request  access  to  document,  I  quote:  ‘C(2020)7590/F1SG  (Secretariat-
General)28/10/2020 Decision (letter) DECISION OF THE EUROPEAN COMMISSION
PURSUANT TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION
(EC) NO 1049/2001’.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
The  Secretariat-General  of  the  European  Commission  has  identified  the  following
document  as  falling  under  the  scope  of  your  request:  C(2020)7590  Decision  of  the
European  Commission  pursuant  to  Article  4  of  the  Implementing  Rules  to  Regulation
(EC) No 1049/2001 - GESTDEM 2020/4953.
A  complete  disclosure  of  the  identified  document  is  prevented  by  the  exception
concerning the protection of privacy and the integrity of the individual outlined in Article
4(1)(b)  of  Regulation  (EC)  No  1049/2001,  because  it  contains  the  following  personal
data: the name contact details of natural person.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

2.1.
Protection of the 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)1,  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  data2  (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/EC3 (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’.4
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’.5
Document  C(2020)7590  contains  personal  data  such  as  name  and  street  address  of
natural person.

1
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.
2
OJ L 8, 12.1.2001, p. 1.
3
OJ L 295, 21.11.2018, p. 39.
4
European Commission v The Bavarian Lager judgment, cited above, paragraph 59.
5
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.
2

The names6 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.7 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  request  for  access  to  documents,  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.

6
European Commission v The Bavarian Lager judgment, cited above, paragraph 68.
7
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.
3

3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note also that Article 4(1)(b) of Regulation (EC) No 1049/2001 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 (further) partial access to the documents requested.
However,  for  the  reasons  explained  above,  no  wider  partial  access  is  possible  without
undermining the interests described above.
Consequently,  I  have  come  to  the  conclusion  that  the  redacted  parts  of  the  requested
documents  are  covered  in  their  entirety  by  the  invoked  exception  to  the  right  of  public
access.
5.
MEANS OF REDRESS
In  accordance  with  Article  7(2)  of  Regulation  (EC)  No  1049/2001,  you  are  entitled  to
make a confirmatory application requesting the Commission to review this position.
Such  a  confirmatory  application  should  be  addressed  within  15  working  days  upon
receipt  of  this  letter  to  the  Secretariat-General  of  the  Commission  at  the  following
address:
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,
Tatjana Verrier
Director
Enclosures: 1
4
Electronically signed on 01/03/2021 18:19 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482

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