Ref. Ares(2019)7171120 - 20/11/2019
EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE AND CONSUMERS
The Director General
Brussels,
JUST/01/AC
Ms Izuzuquiza
c/o CEO Observer
Rue d’Édimbourg 26
1050 Brussels
Belgium
Registered letter with acknowledgement of receipt
Advanced copy to e-mail:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your applications for access to documents – GESTDEM n. 2019/1478
Dear Ms Izuzuquiza,
We refer to your e-mails sent to the European Commission on 7 March 2019 and
24 March 2019 in which you make 45 requests for access to documents, registered under
the above-mentioned reference numbers.
Your requests covers a period between 26 April 2018 and 7 March 2019 and concerns:
- a list of all lobby meetings held by this DG with Facebook or its intermediaries.
The list should include: date, individuals attending and organisational affiliation,
as well as the issues discussed;
- all minutes and other reports of these meetings;
- all correspondence, including attachments (i.e. any emails, correspondence or
telephone call notes) between this DG (including the Commissioner and the
Cabinet) and Facebook or any intermediaries representing its interests; and
- all documents prepared for the purpose of the meeting and/or exchanged during
the course of the meeting.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: MO59 08/005 ‐ Tel. direct line +32 229 20678
In the letter of 26 March 2019 addressed to you by the Secretariat General of the
Commission, it was indicated that a search in the document management systems of the
European Commission for ‘intermediaries’ of the companies you are interested in is not
precise enough to yield results. You therefore agreed on 1 April 2019 to limit your
request in this respect.
I would like to point out that DG JUST has received a number of very similar requests
for access to documents submitted by you but also by other applicants concerning lobby
meetings held within the European Commission with Amazon, Google, Microsoft or
Facebook or persons representing their interests. Although the applicants are different
entities, the requests are almost identical and were made at the same time. Their handling
represent a considerable investment in terms of resources by the same departments of DG
JUST within the same period.
As stated by the EU Courts, the European Commission needs to respect the principle of
proportionality and ensure that the interest of the applicant for access is balanced against
the workload resulting from the processing of the application for access in order to
safeguard the interests of good administration.
The work needed to deal with your applications has entailed multiple searches for
documents, which have been undertaken simultaneously by my services and by Ms
Jourova Cabinet.
• Search for documents relating to meetings with Google, Facebook, Microsoft and
Amazon both at the level of the Directorate-General or the service concerned and
at the level of the Commissioner and his Cabinet in several document
management systems of the Commission;
• Retrieval of the documents falling under the scope of your requests;
• Scanning of the documents which are not in pdf format;
• Preliminary assessment of the content of the documents in light of the exceptions
of Article 4 of Regulation EC (No) 1049/2001;
• Assessment of the further procedural steps to undertake, for example whether
third party consultations should be made;
• (possibly) third-party consultations under Article 4(4) of Regulation 1049/2001
and (possibly) a further dialogue with the third party originators of documents
falling within the scope of your request;
• Final assessment of the documents in light of the comments received, including of
the possibility of granting (partial) access;
• Redactions of the relevant parts falling under exceptions of Regulation EC (No)
1049/2001);
• Preparation of the draft reply for each of your requests by each of the services
concerned;
• (possible) Consultation of the Legal Service ;
• Finalisation of the replies at administrative level and formal approvals of the draft
decisions;
2
• Final check of the documents to be (partially) released (if applicable) (scanning of
the redacted versions, administrative treatment,…) and dispatch of the replies.
The handling of the simultaneous requests cannot be expected to be completed within the
normal time limits set out in Article 7 of Regulation 1049/2001 for all the documents you
are looking for.
The Secretariat general of the Commission considering that your request had a wide
scope has already proposed a fair solution according to Article 6(3) of Regulation (EC)
No 1049/2001. In accordance with the case law of the EU Courts, a fair solution can only
concern the content or the number of documents applied for, not the deadline for
replying.1
The Secretariat General of the Commission proposed to narrow down the scope of your
request, so as to reduce it to a more manageable number, i.e.:
-
Restrict the temporary scope of your wide-scoped request to a period of your
choice not exceeding six months and limit its scope only to the meetings published
in the Transparency Register;
-
Limit the number of your seemingly separate requests to 10 requests of your choice;
- Limit the scope of your requests to 20 meetings of your choice published in the
Transparency Register for each one of the companies you are interested in
(Google, Amazon, Microsoft and Facebook).
You have rejected the options proposed by the Secretariat General.
After your reply, DG JUST has reassessed its capacity to handle the simultaneous
requested in the time prescribed by the Regulation and determined that given the
activities which must be carried out to satisfy the request it could only handle documents
related to the meetings which took place between Commissioner Jourova and or
members of her Cabinet with the four companies indicated in the simultaneous request,
including yours, in the last year preceding the request.
As for the list of these meetings, information on participants and topics discussed, I refer
to the letter of the Secretariat General of 26 April 2019, which included a full list of
meetings held by the Commissioner and its Cabinet members.
In this context, this is the list of documents processed by DG JUST in order to determine
whether they could be disclosed or not. You can see from the list that a number of
documents are partially released, for the reasons explained more in detail in the next
sections of the letter.
1 Judgment of the Court of Justice of 2 October 2014,
Guido Strack v Commission, C-127/13 (hereafter
‘
Guido Strack v Commission’)
, EU:C:2014:2250, paragraphs 26-28.
3
Meeting
topic
documents
Disclosure
Meeting
of
the 1. Report of the Ares(2019)2550079
Article 4(1)(b), data
Commissioner
of
meeting
protection
4/3/2019
2. Briefing
Article 4(1)(b), data
protection
Meeting
of 3. Request
of
Ares(2019)107072
28/1/2019 on data
meeting
protection
Meeting
of
28/1/2019 on the
code of conduct
Article 4(1)(b), data
4. briefing
protection
5. report
of
the
Ares(2019)1450305 Article 4(1)(b), data
meeting
protection
6. report
of
the
Article 4(1)(b), data
meeting
protection
Meeting
of Public
event
in No
specific
9/11/2018
Lisbon
document
was
prepared
for
a
bilateral meeting or
received
from
Facebook
N/A
7. e-mail
Ares 2018)5414515
Article 4(1)(b), data
8. Follow-up letter
protection
from Facebook of
18/10/2018
Article
(4)2
first
indent – commercial
interests
Article 4(2), 2nd and
3rd
indent
-
proceedings
and
legal advice, [and/or]
the
purpose
of
inspections,
investigations
and
audits
Meeting of Wojtek 9. Report of the
Ares (2019)835879
Article 4(1)(b), data
4
Talko
with
meeting
protection
Facebook
on
October 10
Article 4(2), 2nd and
3rd
indent
-
proceedings
and
legal advice, [and/or]
the
purpose
of
inspections,
investigations
and
audits
Meeting
of
the
10. Report of the
Ares (2019)835389
Article 4(1)(b), data
Commissioner with
meeting
protection
Facebook
of
27/9/2018
Meetings
of 11. Letter
to Ares(2018)3606493 Article 4(1)(b), data
Commissioner
Facebook
of
protection
Jourova
with
6/7/2019
Facebook
on
Article
4(1)a,
4th
September
18
indent
-
public
(consumer
interest as regards
protection)
the
financial,
monetary
or
economic policy of a
Member State
Article 4(2), 2nd and
3rd
indent
-
proceedings
and
legal advice, [and/or]
the
purpose
of
inspections,
investigations
and
audits
12. E-mail
Ares(2018)3902273 Article 4(1)(b), data
13. Reply
from
protection
Facebook
of
22/7/2018
Article
(4)2
first
indent – commercial
interests
14. Invitation
of Ares(2018)4345976 Article 4(1)(b), data
22/8/2018 to the
protection
meeting
with
CAB
15. Letter
to Ares(2018)4427339 Article 4(1)(b), data
Facebook
of
protection
28/8/2018
5
16. Letter
from Ares(2018)4755044 Article 4(1)(b), data
Facebook to DG
protection
JUST
of
14/9/2018
Article
(4)2
first
indent – commercial
interests
17. Briefing for the Ares(2018)5057268 Article 4(1)(b), data
meeting
protection
Article 4(2), 2nd and
3rd
indent
-
proceedings
and
legal advice, [and/or]
the
purpose
of
inspections,
investigations
and
audits
18. Report
of
the
Article 4(1)(b), data
CPC meeting
protection
Meeting
of
19. Briefing to MS
Article 4(1)(b), data
17/9/2018
Nikolay
and
protection
Daniel Braun
N/A
20. Exchange e-mail Ares
Article 4(1)(b), data
30.4.2018
– (2018)3119694
protection
8.5.2018
Meeting
of
the
21. Report of the Ares
Article 4(1)(b), data
Commissioner
of
meeting
(2018)3445141
protection
26/4/2018
N/A
22. Letter from Ms Ares(2018)
Article 4(1)(b), data
Sandberg
of 1854626
protection
5.4.2018
N/A
23. Letter
to
Ms Ares(2018)1669470 Article 4(1)(b), data
Sandberg
protection
Since some of the documents concerned originate from third parties, the originators of the
documents have been consulted and the final assessment on the disclosure of the documents
requested has to take into account their position.
I would also like to draw your attention on the fact that all briefings have been prepared for
internal use and aimed at providing a factual, political and legal picture of the files that the
Commissioner and her Cabinet members had to discuss with stakeholders. Their content
includes therefore staff opinions and assumptions on the position of those stakeholders and
of the Member States or third countries on a given topic.
6
1.
REDACTION BASED ON ARTICLE 4(2) FIRST INDENT – COMMERCIAL INTERESTS
Following an examination of the documents requested under the provisions of Regulation
(EC) No 1049/2001 regarding public access to documents and taking into account the
opinion of the third parties, I regret to inform you that your application cannot be fully
granted, as disclosure is prevented by exceptions to the right of access laid down in Article 4
of this Regulation.
The author of the documents n. 8, 13 and 16 has in particular objected to disclosure of
certain parts of the documents that they sent to the Commission and has motivated its
position on the fact that these documents contain commercially sensitive business
information of the company that submitted it. Access to those parties would therefore
undermine interests protected under Article (4)2 first indent of Regulation (EC)
1049/2001. 2
2.
REDACTION BASED ON ARTICLE 4(1)A, 4TH INDENT, FINANCIAL, MONETARY OR
ECONOMIC POLICY OF A MEMBER STATE
Parts of the document n. 11 (letter to Facebook of 6 July 2018 and relevant annexes) have
been redacted at the request of third parties concerned on the basis that disclosure would
undermine the protection of the public interest as regards the financial, monetary or
economic policy of a Member State, in line with Article 4(1)a, 4th indent of Regulation
(EC) No. 1049/2001. Furthermore, according to the third party concerned, disclosure of
the E-Mail addresses dedicated to the “Notice and action procedure”, which the
competent authorities use to notify platform operators about unlawful content on their
online interfaces and ask the latter to remove it, would enable abusive conduct and could
hamper the efficient functioning of the “Notice and action procedure”.
In accordance with Article 7(2) of Regulation (EC) 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position, according to
the procedure indicated at the end of this letter.
3.
REDACTION BASED ON ARTICLE 4(2), 2ND AND 3RD INDENT, LEGAL ADVICE,
INSPECTIONS, INVESTIGATIONS
With regard to the Commission's own documents n. 8, 11 and 17 we consider that their full
disclosure would also undermine the protection of Article (4)2, 2nd and 3rd indent (i.e. legal
advice/investigations). Some parts of them concern in fact “
proceedings and legal
advice, [and/or] the purpose of inspections, investigations and audits […].”.
The investigations on Facebook general terms are part of a coordinated action based on
Article 9(2) of Regulation (EC) No 2006/2004 of the European Parliament and of the
Council of 27 October on cooperation between national authorities responsible for the
enforcement of consumer protection laws (CPC-Regulation) aimed at investigating the
facts and determining the actions undertaken by Facebook in this context, which is, as it
is also stated in the document Briefing Commissioner, not yet concluded. Furthermore, it
2 Article 4(2), first indent of Regulation 1049/2001 stipulates that ‘[t]he institutions shall refuse access
to a document where disclosure would undermine the protection of commercial interests of a natural
or legal person, including intellectual property, […] unless there is an overriding public interest in
disclosure.’
7
should be noted, that the documents mentioned above contain legal advice by the
consumer protection cooperation networks, which the competent authorities may use in
the context of their investigations and/or enforcement actions, including in front of the
competent courts.
The exceptions laid down in Article 4(2) of Regulation (EC) 1049/2001 apply unless there
is an overriding public interest in disclosure of the documents “
[t]he institution shall refuse
access to a document where disclosure would undermine the protection of […] court
proceedings and legal advice, the purpose of investigations and audits, unless there is an
overriding public interest in disclosure.”.
In this respect, it should be noted that according to Article 1 of Regulation (EC) No
2006/2004, “
[t]his Regulation lays down the conditions under which the competent
authorities in the Member States designated as responsible for the enforcement of the
laws that protect consumers’ interests shall cooperate with each other and with the
Commission in order to ensure compliance with those laws and the smooth functioning of
the internal market and in order to enhance the protection of consumers’ economic
interests.”. Especially in cases where (possible) infringements of consumer law affect a
number of consumers in more than one Member State, the coherent enforcement of EU
consumer law clearly constitutes a public interest. In such cases, disclosure of the certain
information that is shared among the competent authorities and the Commission, as well
as, where appropriate, with third parties concerned by the investigation – including in
particular certain information in respect to the legal assessment – before the action is
closed, could undermine the efficiency of such actions.
When assessing the exceptions of Article 4(2), 2nd and 3rd indent of Regulation (EC) No
1049/2001 in the light of a possible overriding public interest to disclosure, it should in
particular be noted, that the CPC network, after concluding the first part of its
investigations, has already published its assessment (see press release of 17 March 2017,
including the common position:
http://europa.eu/rapid/press-release_IP-17-631_en.htm).
The Commission has carefully assessed the exceptions to disclosure, under Article 4(2)
of Regulation (EC) No 1049/2001 and has concluded that in the present case the public
interest to full disclosure of documents does not override the public interest in the
efficient law enforcement, which a disclosure at this stage of the coordinated action
under Article 9 of the CPC-Regulation would undermine.
4.
REDACTION BASED ON ART. 4(1)(A) - INTERNATIONAL RELATIONS
Concerning document n. 25, some paragraphs have been redacted on the basis of the
exception to disclosure set in Article 4(1)(a) third indent of Regulation 1049/2001, as we
consider that its disclosure undermines the international relations with a third country.
Making available the redacted parts to the public would seriously prejudice the relations
between the European Commission and the United States government in their ongoing
dialogue on the protection of privacy in the context of transatlantic data transfers, and the
mutual confidence between them. Establishing and protecting an atmosphere of mutual trust
with the United States is a very delicate exercise and any harm to that trust cannot easily be
repaired and thus can have a serious adverse effect on any ongoing dialogue as well as
future cooperation.
8
The Commission also has a legitimate interest in not revealing its tactical considerations and
other strategic elements of the past discussions as this could negatively affect its position in
any future (trade) negotiations at both bilateral or multilateral (WTO/GATS) level. A
section of document n. 12 has been redacted as it concerns topics not connected with your
request and therefore it must be considered as out of the scope of your request (annex at the
end of the document).
5.
REDACTION BASED ON ART. 4(2) - ONGOING COURT CASES
Concerning documents n. 4, 7 and 12, some sections have been redacted on the basis of the
exception to disclosure set in Article 4(2) second indent of Regulation (EC) 1049/2001, as
they refer to and comment on ongoing Court cases. Their disclosure would undermine the
proper conduct of such judicial procedures.
Redacted sections contain in fact references to court proceedings. Their disclosure would
undermine the protection of on-going and reasonably foreseeable future court proceedings
in that it would negatively affect the Commission ability to defend its position in Court an
equal footing with the respective applicant, contrary to the principle of equity of arms.
6.
REDACTION BASED ON ART. 4(3) - DECISION MAKING PROCESS
Finally, full disclosure of documents n. 2, 3, 8, 9 and 11 would undermine the decision
making process of the Commission, as it would reveal the preparatory work for the
negotiation strategy for the adoption of the "new deal for consumers" package, currently
under discussion in European Parliament and Council.
Article (4)3 indicates that
" 3. Access 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.
Access to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure."
The Commission's services must be able to continue their intelligence and mediation work
with stakeholders and national authorities, which is essential to gather information and
feedback on a number of provisions which are debated, in order to facilitate the elaboration
of a final text which would meet the objectives of the proposed legislation, as well as the
formulation of the official position of the Commission in the context of the co-decision
procedure. Anticipating the options under consideration, would compromise solutions and
the possible fallback position on key issues, as decided by the College of Commissioners. It
would ultimately deprive the Commission of essential negotiating tools, which enable it to
fulfil its institutional role at this stage of the legislative procedure.
Therefore, the exception laid down in Article 4(3) second subparagraph of Regulation (EC)
No 1049/2001 applies to this document.
9
7.
REDACTIONS BASED ON ARTICLE 4(1)(B), DATA PROTECTION
Pursuant to Article 4(1)(b) of Regulation (EU) No 1049/2001, access to a document has
to be refused if its disclosure would undermine the protection of privacy and the integrity
of the individual, in particular in accordance with European Union legislation regarding
the protection of personal data.
The applicable legislation in this field is Regulation (EU) No 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 (‘Regulation 2018/1725’).
The documents to which you request access contain personal data, in particular names, e-
mails, telephone numbers, signatures.
Indeed, 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 data.4 Please note in
this respect that the names, signatures, functions, telephone numbers and/or initials
pertaining to staff members of an institution are to be considered personal data. In its
judgment in Case C-28/08 P (Bavarian Lager)5, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable6.
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.
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
3 Official Journal L 205 of 21.11.2018, p. 39.
4 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994.
5 Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
6 Whereas this judgment specifically related to 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 data, the
principles set out therein are also applicable under the new data protection regime established by
Regulation 2018/1725.
10
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) 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.
REVIEW OF THE DECISION
In accordance with Article 7(2) of Regulation (EC) 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review the position granting partial
access to the requested documents, including in case you would disagree with the
assessment that the redacted data are personal data, which can only be disclosed if such
disclosure is legitimate under the applicable rules on the protection of personal data.
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 Bruxelles, or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Tiina ASTOLA
Director-General
11
Electronically signed on 19/11/2019 18:56 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
Document Outline
