Ref. Ares(2021)2029622 - 22/03/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
The Director-General
Brussels,
TRADE/SW/E3 (2021)2014534
By registered letter with
acknowledgment of receipt
Mr Kenneth Haar
Overgaden oven Vandet 12
1415 Copenhagen K
Denmark
Advance copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref GestDem 2021/0576
Dear Mr Haar,
I refer to your request of 4 February 2021 for access to documents under Regulation (EC)
No 1049/20011 ("Regulation 1049/2001") and registered as GestDem 2021/0099.
Please accept our apologies for the delay in preparing the reply to your request, which is
mainly due to a high number of access to documents requests being processed at the
same time by DG Trade.
1.
SCOPE OF YOUR REQUEST
In your application, you request access to:
(i) a list of meetings of DG Trade officials and/or representatives (including the
Commissioner and his Cabinet) and representatives of EFPIA (including Vaccines
Europe) since 1 September 2020;
(ii) minutes and other reports of these meetings;
(iii) all correspondence (including emails) between DG Trade officials and/or
representatives (including the Commissioner and Cabinet) and representatives of EFPIA
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents, OJ L 145,
31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: CHAR 07/067 - Tel. direct line +32 229-60143
xxxxxx.xxxxxx@xx.xxxxxx.xx
(including Vaccines Europe) regarding vaccines against COVID, including questions
concerning patents, since 1 September 2020.
I consider your request to cover documents held up to the date of your initial application, i.e.
4 February 2021
. We have identified
13 documents corresponding to the scope of your
request. A list of these documents providing a description and indicating their level of
disclosure is attached to this letter jointly with copies of the accessible documents.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document, it
must assess, in each individual case, whether that document falls within the exceptions to
the right of public access to documents set out in Article 4 of Regulation 1049/2001. Such
assessment is carried out in a multi-step approach. First, the institution must satisfy itself
that the document relates to one of the exceptions, and if so, decide which parts of it are
covered by that exception. Second, it must examine whether disclosure of the parts of the
document in question poses a “
reasonably foreseeable and not purely hypothetical” risk of
undermining the protection of the interest covered by the exception. Third, if the institution
takes the view that disclosure would undermine the protection of any of the interests defined
under Articles 4(2) and 4(3) of Regulation 1049/2001, the institution is required "
to
ascertain whether there is any overriding public interest justifying disclosure"3.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest possible right of access to documents4,
"the exceptions to that right […] must be
interpreted and applied strictly"5.
Having examined the documents requested under the provisions of Regulation 1049/2001
regarding public access to documents, I have come to the conclusion that
documents 1-13 may be partially disclosed, and
attachment 1 to document 9 may be fully disclosed.
Please note that these documents originating from third parties are disclosed to you based on
Regulation 1049/2001. However, this disclosure is without prejudice to the rules on
intellectual property, which may limit your right to reproduce or exploit the released
documents without the agreement of the originator, who may hold an intellectual property
right on them. The European Commission does not assume any responsibility from their
reuse.
In
documents 1-13 only names and other personal data have been redacted pursuant to
Article 4(1)(b) of Regulation 1049/2001 and in accordance with Regulation (EC) No
2018/1725. Hence, the main content of these documents is accessible.
2 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
4 Regulation (EC) No 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
2
2.1
Protection of privacy and integrity of the individual
Pursuant to Article 4(1)(b) of Regulation 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 (EC) 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/EC6 (‘Regulation 2018/1725’).
All the documents partially released contain personal information, such as names, e-mail
addresses, job titles, and/ or telephone numbers that allow the identification of natural
persons, as well as other personal information like signatures.
Indeed, Article 3(1) of Regulation 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.7 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.8
In its judgment in Case C-28/08 P (
Bavarian Lager)9, the Court of Justice ruled that
when a request is made for access to documents containing personal data, the Data
Protection Regulation becomes fully applicable.10
Pursuant to Article 9(1)(b) of Regulation 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
6 Official Journal L 205 of 21.11.2018, p. 39.
7 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Novak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:T:2018:560.
8 Judgment of the General Court of 19 September 2018 in c
ase T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
9 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.
10
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.
3
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 2018/1725, can the transmission of personal data
occur.
According to Article 9(1)(b) of Regulation 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 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 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 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.
Documents 1-13 contain personal information, such as names, e-mail addresses, job
titles and telephone numbers that allow the identification of natural persons. This
information has been redacted according to Art. 4(1)(b) of Regulation 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that article 4(1)(b) of Regulation 1049/2001 does not include the possibility
for the exception defined therein to be set aside by an overriding public interest.
4
4.
MEANS OF REVIEW
In accordance with Article 7(2) of Regulation 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 Secretary-General of the Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Sabine WEYAND
Enclosures:
List of documents
Documents (partially) released
5
Electronically signed on 22/03/2021 12:07 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
