Mr President, distinguished members of the Petitions Committee,

I am very grateful for having been given the opportunity to speak to you today in order to discuss my Special Report on the 'Bavarian Lager' case with you. Please forgive me for not having brought a sample of the product with me - I am afraid that I would have been criticised for improper behaviour if I had invited you for a drink on this occasion.

---

The facts

The facts underlying the complaint in this case are fairly straightforward.

The complainant is the Director of a company that imports German beer into the United Kingdom. He found it difficult to do so because of exclusive purchasing agreements, which require many pubs in the UK to obtain their supplies of beer from particular UK breweries. These agreements are regulated by a United Kingdom law, known as the "Guest Beer Provision", which allows pubs to also buy certain beers from other suppliers.

The complainant considered that the Guest Beer Provision infringed Article 30 (now Article 28) of the EC Treaty by discriminating against imported beers. In April 1993, he complained about the matter to the European Commission. The Commission then began an investigation under Article 169 (now Article 226) of the EC Treaty.

In August 1996, the complainant learnt that a tripartite meeting was to take place in October 1996 between the Commission, the UK authorities and a trade association, the Confédération des Brasseurs du Marché commun (CBMC), to discuss the Guest Beer Provision. He asked the Commission to allow him to attend the meeting. His request was refused.

At the beginning of March 1997, the UK authorities proposed an amendment to the Guest Beer Provision. The Commission considered the proposed amendment to be satisfactory and closed its investigation.

The complainant wanted to know who had made submissions to the Commission during its investigation and which representatives of the CBMC had attended the tripartite meeting in October 1996.

The Commission refused to provide the information. The CBMC, to which the complainant also turned, told him that it was unable to provide information, since the relevant persons had left the organisation and the files had been destroyed.

The issue

The Ombudsman's Statute entitles me to submit special reports to the European Parliament. I firmly believe that this possibility should only be used when fundamental issues are concerned. This is the case here. The Commission argues that the Data Protection Directive - Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, page 31) - prevents it from proving the relevant information. I consider that the Commission is wrong.

In my view, principles of good administration require that citizens asking the administration for information should be supplied with that information. The Commission accepts this and has reiterated this point in its new Code of Good Administrative Behaviour:

"Where a member of the public requires information relating to a Commission administrative procedure, staff shall ensure that this information is provided within the deadline fixed for the relevant procedure."

The present case thus raises the fundamental issue as to whether the administration of the EU may nevertheless rely on the need to protect personal data in order to reject a request for information on administrative matters.

The Data Protection Directive

Let me now turn to the Directive. Two concepts are of paramount importance in this context: "Personal data" on the one hand and "processing" on the other.

First, the term "personal data" is defined as "any information relating to an identified or identifiable natural person" (Article 2 (a)). The fact that a particular person has sent a letter or attended a meeting could thus be considered as "personal data".

Second, "processing" is defined as "any operation or set of operations which is performed upon personal data" (Article 2 (b)). The Directive provides, as examples of such operations, the collection, recording and storage of personal data. Since one may assume that the Commission does not throw away letters that it receives or lists of persons that attended a meeting (as otherwise it may well be accused of maladministration) but puts them on file, a "processing" could also be considered to be present.

In such circumstances, the "processing" would, according to Article 7, only be allowed if (a) the person concerned "has unambiguously given his consent" or (b) if one of the exceptions listed in that Article applied.

This approach would effectively undo one of the major achievements of the Amsterdam Treaty, that is to say the principle that decisions should be taken as openly as possible in the European Union.

Let us consider the circumstances of the present case. A citizen complains that a Member State has infringed Community law. The Commission opens an inquiry. In the context of this inquiry, it receives submissions from interested parties and convenes a meeting with representatives of the Member State concerned and with third parties. Its subsequent decision not to open infringement proceedings is clearly based on the information that it has thus obtained from third parties. Allowing the Commission to keep the names of these third parties confidential would be tantamount to saying that the principle of openness does not apply. It would be difficult to accept that a Directive, i.e. an act of secondary legislation, should be able to prevail against a basic concept of the Treaty.

Let me not be misinterpreted, however. There may well be good reasons (for example the need to protect business secrets) why the Commission might refuse to make available the actual submissions themselves. In certain procedures it may even be lawful not to disclose the identity of persons who have made submissions. Think of competition proceedings for example, where a small dealer may not be ready to provide any information against a powerful competitor without such protection. What cannot and should not be accepted, however, is the sweeping proposition that the Data Protection Directive obliges the Commission to keep the names of such persons confidential.

I believe that this position is also in full harmony with the purpose of the Data Protection Directive. This aim consists in the protection of "the fundamental rights and freedoms of natural persons, and in particular their right to privacy". Can it seriously be maintained that a person who has deliberately chosen to write to the Commission or to attend a meeting with the Commission should be entitled to rely on the "right to privacy" in order to prevent other persons from learning who they are? The answer must surely be no.

Please consider that the complainant does not ask for information about the age, colour, health, political allegiance or any other characteristics that may properly be called "personal data". All that he wants to know is who participated in the administrative procedure before the European Commission as a result of which the Commission closed its inquiry. The Commission's view would imply that there exists a fundamental right to supply information to an administrative authority in secret. I believe that this would be in striking contradiction to the principle of openness to which I have already referred.

Let me conclude by saying that there is another reason why the Commission's position is unconvincing, namely that it is contradictory in itself. The Commission has informed the Ombudsman that it wrote to all the persons concerned in order to ask whether they would object to their names being disclosed to the complainant. Some of these persons expressly agreed, a few objected and the majority did not reply at all. The Commission then informed the complainant of the names of all these persons, apart from those who had expressly objected. In its opinion, the Commission justified this approach with the following words:

"(…) in the absence of a response to the letter, and bearing in mind the particular circumstances in this case, the Commission is of the opinion that the interests or fundamental rights and freedoms of the data subjects do not prevail."

I am very appreciative of this constructive and co-operative approach by the Commission. However, Article 7 (a) provides that personal data may only be processed if the data subject has "unambiguously" given his consent. The Commission's approach thus shows that information of the type concerned here can be disclosed even if the provisions of the Data Protection Directive, were they applicable, would not allow this.

Thank you for your attention.