Remote meeting via WebEx

Present

European Commission

Five members of the Secretariat-General (SG)

Four members of the DG for Human Resources and Security (DG HR)

Two members of the DG for Competition (DG COMP)

European Ombudsman (Directorate of Inquiries)

Ms FULLER Silvia, Inquiries Officer

Mr LESAUVAGE Christophe, Legal Expert

Ms EHNERT Tanja, Inquiries Coordinator

Ms MARIN Oana, Inquiries Officer

Ms KOSMOPOULOU Maria Eleni, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to clarify how the European Commission dealt with the complainant’s request for public access to documents concerning the move of a former staff member of DG COMP to the private sector, specifically:

1) whether, after having registered the public access request, the Commission searched for and identified any documents that fell within the scope of the complainant’s request; and

2) why the Commission did not follow the approach it had taken when handling previous similar public access requests made by the complainant. In particular, in the past, while refusing access based on Article 4(1)(b) and Article 4(3) of Regulation 1049/2001, the Commission had provided general information on the processes to which the respective access requests related. Notably, the Commission had (i) identified the documents that fell within the scope of the request; (ii) identified the number of requests the (former) staff member had made and their legal basis; and (iii) described the conditions under which the former staff member could carry out the new activities.

The questions had been sent to the Commission in advance of the meeting, together with the meeting request, on 12 June 2023.

Prior to the meeting, and following the Ombudsman’s request, the Commission provided the inquiry team with relevant information regarding the complainant’s request.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Commission representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the Commission to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

Identification of the documents falling within the scope of the complainant’s request

The Commission representatives clarified that, when DG HR handled the public access request at initial stage, it was aware whether the requested documents existed or not, but it did not consider appropriate to identify them in the hypothesis of their existence. This is because, should they exist, the requested documents would contain personal data throughout, and even revealing their existence would amount to a transfer of personal data. As the complainant had not met the requirement provided for in Article 9(1)(b) of Regulation 2018/1725,[2] that is, it had not established, in its public access request, the necessity of having the personal data transferred for a specific purpose in the public interest, the Commission considered that it could not even confirm or deny the existence of the requested documents.

The Commission representatives further clarified that, when handling confirmatory applications, the Secretariat-General relies on contributions from the Directorate-General which is responsible for handling the initial request. In this specific case, it was DG HR that provided a contribution and necessary information.

Given that the public access request did not establish any necessity to have the personal data transferred to the complainant, the Commission confirmed its previous conclusion that it was not necessary to identify documents and conduct their individual assessment.

The Ombudsman inquiry team asked for clarifications as to why the Commission considered that it could not proceed with the identification of the documents, given that Articles 12B, 16 and 40 of the EU Staff Regulations provide for certain procedures and, therefore, could constitute the basis for the processing of personal data.

The Commission representatives clarified that, under Regulation 2018/1725, the data subject has the right to be informed about every processing of their personal data. This includes the identification and any reference made to documents related to the procedures provided for in Articles 12B, 16 and 40 of the EU Staff Regulations. Since the public access request did not meet the conditions set out in Article 9(1)(b) of Regulation 2018/1725, proceeding to identifying and referring to any possible relevant documents would constitute a data breach, for which the Commission would need to inform the data subject. In light of all the above, the Commission did not proceed to such actions.

Following a question by the Ombudsman inquiry team, the Commission representatives noted that they did not inform the data subject about the access request, nor asked for their consent to disclose their personal data. Such actions were not considered, since the complainant had not put forward any arguments establishing a necessity of the transfer of the personal data. The Commission representatives clarified that Article 9 of Regulation 2018/1725 does not stipulate that the institution request the data subject’s consent. The Commission representatives also stated that they did not contact the data subject at the confirmatory stage either.

Approach followed in this public access request

The Commission representatives stated that the Commission applies different levels of transparency when handling public access requests related to Commission staff members, depending on whether the request concerns staff members in senior management positions, or below.

The Commission representatives further noted that the previous access requests mentioned by the complainant related to Commission staff who held senior management positions or were part of a Commissioner’s private office. On the contrary, the current public access request made by the complainant concerned a former staff member, who, prior to leaving the Commission, did not hold a senior management position or position in a private office.

The Ombudsman inquiry team asked whether the Commission had taken into account in its assessment that the data subject had made public their move from the Commission to the private sector.

The Commission representatives replied that, during the processing of the request, they were either unaware of any relevant information made public by the data subject, or considered this information insufficient to lead to a different conclusion in light of the Commission’s  policy for handling such requests.

Finally, the Ombudsman inquiry team noted that the strict approach followed by the Commission in this case could generate the impression that the Staff Regulations procedures were not followed as no documents were identified in the Commission’s reply to the applicant’s request.

The Commission representatives replied that the wording used in cases such as this is centred on the lack of legal grounds to proceed to the identification of the requested documents. As such, the Commission does not consider that it gives the impression that the documents do not exist or that the procedures are not being followed. Instead, it focuses on the fact that it cannot confirm nor deny the existence of these documents, since Regulation 2018/1725 does not allow their identification, as that would constitute unlawful processing of personal data.

Conclusion of the meeting

The inquiry team thanked the Commission’s representatives for their time and for the explanations provided, and the meeting ended.

Following the meeting, the Commission representatives provided the Ombudsman inquiry team with the Commission’s policy on processing public access requests concerning staff members in non-managerial positions.

 

Brussels, 24 August 2023

Silvia Fuller                                                                                          Christophe Lesauvage

Inquiries Officer                                                                                     Legal Expert

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Regulation EU) 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/EC (Regulation 2018/1725).