EUROPEAN COMMISSION Secretariat-General The Secretary-General Brussels, Aâ.o}. cêojf SG.B.4/MF/rc - sg.dsg2.b.4(2015)3385012 By registered mail with acknowledgement: Mr Menzo Willems De Telegraaf Laan van Leeuwenstijn 2271 HL Voorburg The Netherlands Copy by email: mwillems@telegraaf.nl DECISION OF THE SECRETARY GENERAL PURSUANT TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) 1049/2001 1 - REPEALS & REPLACES THE DECISION OF 17 FEBRUARY 2015 Subject: Your confirmatory application under Regulation 1049/2001 for access to documents - GESTDEM 2014/5061 Dear Mr Willems, I refer to your e-mail of 6 January 2015, registered on the same day, by which you lodge a confirmatory application in accordance with Article 7(2) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents 2 (hereafter Regulation 1049/2001). 1. SCOPE OF YOUR REQUEST In your initial application of 29 October 2014, addressed to the Directorate-General for the Budget (DG BUDG), you requested access to all documents regarding the correspondence between the Commission and the Dutch ministries about the Dutch contribution of642 million euro. 1 Official Journal L 345 of 29.12.2001, p. 94. 2 Official Journal L145, 31.05.2001 p.43. Commission européenne/europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Your request is understood to cover all correspondence exchanged during the period from 20 to 28 October 2014 (i.e. preceding the date of your initial request) between the Dutch authorities and the Commission about the annual adjustment to the own resource contribution of the Netherlands based on value-added tax (VAT) and gross national income (GNI) 3. The Commission has identified the following e-mail correspondence as falling under the scope of your request: 1. E-mails sent by the staff of the Dutch authorities to Commission staff (Directorate- General for the Budget): - 20 October 2014, 2:00 PM (document 1); - 21 October 2014, 3:12 PM (document 2); - 21 October 2014, 3:59 PM (document 3); - 23 October 2014, 10:35 AM (document 4); - 23 October, 3:11 PM (document 5); - 27 October 2014,1:20 PM (document 6); - 28 October 2014, 8:26 AM (document 7); - 28 October, 6:32 PM (document 8); - 28 October, 6:59 PM (document 9); - 28 October, 10:58 PM (document 15) 4. 2. E-mails sent by Commission staff (Directorate-General for the Budget) to staff of the Dutch authorities: - 21 October 2014, 3:50 PM (document 10); - 22 October 2014, 2:55 PM (document 11); - 23 October 2014, 11:21 AM (document 12); - 27 October 2014, 2:34 PM (document 13); - 28 October 2014, 6:58 PM (document 14). Through its initial reply DG BUDG refused access to all of these documents based on the exception of Article 4(3) (protection of the decision-making process), as the decisionmaking process with regard to the Dutch contribution was still fully ongoing. In your confirmatory application you reiterate your interest in obtaining access to the documents requested, arguing that the decision-making process was already finalised when the Dutch authorities sent their initial reply. Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources, OJ L 130, 31.5.2000, p. 1-12.. In the initial reply, this document had been erroneously identified as a document sent by Commission staff. 2
2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001 When assessing a confirmatory application for access to documents submitted pursuant to Regulation 1049/2001, the Secretariat-General conducts an independent review of the reply given by the Directorate-General concerned at the initial stage. Following the Commission's independent assessment, I am pleased to inform you that wide (partial) access is granted to the documents requested, with the exception of the personal data of non-senior management staff appearing therein. Documents 1-9 and 15 are e-mail messages sent by the Dutch authorities to the Commission. As part of its review, the Commission has, in accordance with Article 4(4) and (5) of Regulation 1049/2001 and Article 4(3) of the Treaty on the Functioning of the European Union, consulted the Dutch authorities at confirmatory stage on the possible disclosure of these documents, of which they were the author. In these consultations, the Commission drew the Dutch authorities' attention to the requirements laid down by the Court of Justice in its judgment in Case C-64/05 Ρ Kingdom of Sweden VÄ. Commission of the European Communities 5, according to which, if a Member State objects to disclosure, it is obliged to state reasons for that objection with reference to the exceptions listed in paragraphs (1) to (3) of Article 4 of Regulation (EC) 1049/2001. In their response of 16 July 2015, the Dutch authorities asked the Commission to make its own assessment on the disclosure of the documents. Following the Commission's own assessment of the documents in light of the exceptions of Article 4 of Regulation 1049/2001,1 have decided to grant access to the documents, with the exception of the personal data (names, telephone numbers and other elements enabling identification) of non-senior officials appearing therein. Article 4(1 )(b) of Regulation 1049/2001 provides that access to documents is refused where disclosure would undermine the protection of privacy and integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data. In its judgment in the Bavarian Lager case 6, the Court of Justice ruled that when a request is made for access to documents containing personal data, the Data Protection Regulation 45/2001 7 ("the Data Protection Regulation") becomes fully applicable. 5 Judgment of the Court of 18 December 2007, C 64/05 Ρ Kingdom of Sweden vs Commission of the European Communities, [2007], ECR, p. 1-11389, at para. 66. 6 Judgment of teh Court of 29 June 2010, C-28/08 Ρ, Commission v The Bavarian Lager Co. Ltd, para. 63. 7 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, Official Journal L 8 of 12.1.2001, p. 1. 3
Article 2(a) of the Data Protection Regulation provides that 'personal data' shall meanany information relating to an identified or identifiable 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". The names, telephone numbers and other elements enabling the identification of officials not occupying any senior management position clearly constitute personal data in the meaning of Article 2(a) of the Data Protection Regulation. In accordance with Article 8(b) of Regulation 45/2001, personal data shall only be transferred to recipients if the necessity to disclose the personal data has been established and there is no reason to assume that the legitimate rights of the persons concerned might be prejudiced. These conditions are cumulative. As the Court has also explained, if the applicant does not provide any express and legitimate justification in order to demonstrate the necessity for the personal data to be transferred, the Commission cannot weigh up the interests, and the request must therefore be refused. 9 In the present case, I note that you have not put forward any interest in, nor any arguments to substantiate a need to obtain the above-mentioned personal data. Furthermore, it cannot be assumed that the release of those names would not prejudice the legitimate rights of the individuals concerned. Therefore, in accordance with Article 4(1 )(b) of Regulation 1049/2001, access to the personal data of non-senior officials appearing in the documents has to be refused. 3. NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE The exception of Article 4(1 )(b) is absolute and does not envisage the possibility for the interest protected therein to be overridden by a public interest in disclosure. 4. PARTIAL ACCESS In accordance with Article 4(6) of Regulation 1049/2001, the Commission herewith grants wide partial access to the documents requested. 8 Judgment of the Court of 20 May 2003.Rechnungshof (C-465/00) v Österreichischer Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (С-139/01) v Österreichischer Rundfunk,.para 73. 9 Judgment of the Court of 29 June 2010, C-28/08 P, Commission v Пе Bavarian Lager Co. Ltd, para 77-78. 4
5. MEANS OF REDRESS Finally, I would like to draw your attention to the means of redress that are available against this decision, that is, judicial proceedings and complaints to the Ombudsman under the conditions specified respectively in Articles 263 and 228 of the Treaty on the Functioning of the European Union. Yours sincerely, Catherine Day Enclosure: the documents requested by you, to which access is granted with the exception of the personal data appearing therein 5