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More Case Law: Commission v. Bavarian Lager

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

T-194/04, Bavarian Lager v. Comission, 8.11.2007 (reversed on appeal)

Application for annulment of Commission decision rejecting request of applicant (a trade association for German beer) for access to full minutes of a meeting organised by Commission (including names of attendees). The Commission had denied access to the names of 5 persons who attended the meeting, were members of a trade association and had not given consent to disclosure of their names, based on Article 4(1)(b) of Reg.1049/2001.

Legal obligation under Article 5(b) of Reg. 45/2001: The right of access to documents of the institutions laid down by Article 2 of Reg. 1049/2001 constitutes a legal obligation for purposes of Article 5(b) of Reg. 45/2001. Therefore, if Reg. 1049/2001 requires communication of data, Article 5 of Reg. 45/2001 makes such communication lawful.

Article 8(b) and obligation to prove need for transferred data: Access to documents containing PD falls within the application of Reg. 1049/2001. Article 6(1) states that the applicant is not required to justify his request. Therefore, where PD are transferred in context of Reg. 1049/2001, applicant does not need to prove necessity of disclosure of data for purposes of Article 8 of Reg. 45/2001 – otherwise would be contrary to principle of widest possible public access to documents held by institutions. Exceptions must be interpreted narrowly. Given that access to a document will be refused under Article 4(1)(b) of Reg. 1049/2001 where disclosure would undermine protection of privacy and integrity of individual, a transfer that does not fall under that exception cannot, in principle, prejudice the legitimate interests of the person concerned within the meaning of Article 8(b) of Reg. 45/2001.

DS’s right to object under Article 18: DS has right to object to processing, except in cases covered by Article 5(b), among others. Given that processing envisaged by Reg. 1049/2001 constitutes a legal obligation for purposes of Article 5(b), DS does not have a right to object. However, since Article 4(1)(b) of Reg. 1049/2001 lays down an exception to the obligation to provide access, it is necessary to consider the impact of disclosure on the DS. If communication would not undermine protection of privacy etc., then person’s objection cannot prevent disclosure.

Interpretation of Article 45/2001 in light of Article 8 ECHR: Reg.. 45/2001 must be interpreted in light of fundamental rights which form an integral part of general principles of law with respect to which the ECJ ensures compliance. Any decision taken pursuant to Reg. 1049/2001 must comply with Article 8 ECHR.

ECHR caselaw interprets “private life” broadly, and there is no reason in principle to exclude professional or business activities from concept of private life. To determine whether there is breach of Article 8, need to determine (1) whether there has been an interference with private life of DS, (2) whether that interference is justified (ie, it is in accordance with the law, pursues a legitimate aim, and is necessary in a democratic society – meaning relevant and sufficient, and proportionate to the legitimate aims pursued). In cases concerning disclosure of PD, the competent authorities have to be granted a certain discretion in order to establish a fair balance between competing public and private interests, subject to judicial review, referring to factors such as nature and importance of interests at stake and seriousness of interference.

Application of Article 4(1)(b) exception: To determine whether exception applies, it is necessary to examine whether public access is capable of actually and specifically undermining the protection of the privacy and integrity of the persons concerned.

The mere fact that a document contains PD does not necessarily mean that privacy or integrity of DS is affected, even though professional activities not, in principle, excluded from concept of private life. Here, persons present at the meeting whose names were not disclosed were present as representatives of trade association, and not in their personal capacity. Therefore, the fact that the minutes contain their names does not affect their private life. Minutes do not contain their personal opinions. Disclosure of the names is not capable of actually and specifically affecting the protection of privacy and integrity of those persons. Mere presence of their name on list does not constitute an interference.

Reg. 45/2001 does not require Commission to keep secret the names of persons who communicate opinions or information to it concerning exercise of its functions.

Court distinguishes Osterreichischer Rundfunk on ground that there, specific combination of name and income received by them, in contrast to this case, which falls under Reg. 1049/2001 and where it is name of person acting in professional capacity as representative of collective body, where no personal opinions can be identified.

Credits and acknowledgment go to Laraine Laudati, OLAF DPO.

Stay tuned for the Appeal judgment in this case.

Any questions can be submitted to: dan@e-crimeexpert.com

Additional information can be found at: www.e-crimeexppert.com

What do you think about the findings? Do you think that the applicant was right? 

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