COMPLAINT: 2007/2021/OAM

Case title: The European Economic and Social Committee's (EESC) refusal to give full public access to a document concerning expenses claimed by its members

Date: Wednesday, 15 December 2021

Remote inspection arrangements

Present

European Economic and Social Committee

Administrator, Team of the Secretary-General

Team Assistant, Team of the Secretary-General

Head of Unit, Legal Service

Administrator, Legal Service

Head of Unit, Member’s Working Conditions

Deputy Data Protection Officer

Administrator, Information Centre and Document Management

European Ombudsman Directorate of Inquiries

Fergal O’REGAN, Chief Legal Expert

Oana MARIN, Inquiries Officer

Michaela GEHRING, Inquiries Officer

Viola PENDL, Inquiries Trainee

Purpose of the meeting

The meeting was held in the context of an inquiry into a complaint that the EESC did not provide full public access to a document^[1] containing information on the allowances claimed by all its members in the period since January 2019. The purpose was to obtain further information on the EESC’s decision.

Introduction and procedural information

The participants introduced themselves and the European Ombudsman’s inquiry team thanked the EESC for agreeing to the meeting. The inquiry team outlined the legal framework that applies to inspections and meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EESC as confidential without the EESC’s prior consent.

The inquiry team explained that a report on the meeting would be drawn up and that the draft would be sent to the EESC for review to ensure it was factually accurate and complete. The meeting report would then be finalised and provided to the complainant for any possible comments.

Information exchanged

The EESC representatives presented the background of the access request made in April 2021 which concerned the per diem (daily allowances) received by all the EESC members since 1 January 2019. The request concerned two terms of office and approximately 500 members. The EESC recalled that it has disclosed to the complainant a table which included the dates of the meetings concerned, the types of meetings and the corresponding daily allowances paid. However, it had redacted the names of the members concerned so as to protect their personal data (in accordance with Article 4(1)(b) of Regulation 1049/2001^[2]). The EESC also mentioned that the complainant has made a new identical access request in October 2021, to which the EESC replied that its position remained unchanged.

The EESC representatives explained that, when assessing the access request, they had tried to strike a balance between transparency of public spending and the protection of personal data. They had concluded that releasing the names of the members concerned would lead to disclosure of other sensitive personal data, such as medical data. For example, it would allow for the identification of members with disabilities, as they receive specific allowances.

In addition, the EESC representatives said that the complainant had not provided any specific necessity for the transfer of the personal data, which is required under EU data protection rules.^[3]  

The EESC dealt with the access request taking into account previous case law of the Court - which required the existence of a specific need in the public interest for the transfer of personal data.

On the requirement of necessity

The EESC representatives explained that the complainant has made in the past numerous similar requests for public access to documents and was therefore perfectly aware that he needed to put forward a necessity to have the data transferred for a specific purpose in the public interest.

The Ombudsman’s understanding is that the complainant would like to know the names and the amounts received by the members to scrutinise the use of public resources. Having this data would allow him to pursue a public debate on the merits of the EESC remuneration system. The complainant confirmed this to the Ombudsman.

The EESC representatives considered that, as recognised by the Court, this purpose does not satisfy the necessity test whereby the transfer of personal data is only possible if the transfer serves a "specific" purpose in the public interest.^[4] They also noted that the complainant had not, in his access request, put forward any necessity.

When asked how disclosure of attendance at meetings would prejudice the legitimate interests of the data subjects, in view of their position as public representatives, the EESC made clear that the legitimate interests were not assessed as the complainant did not establish that it was necessary to have the data transmitted for a specific purpose in the public interest. A proportionality test was thus not required. No transfer of personal data can be authorised unless its necessity has been established by the applicant.

Referring to older requests for access to documents where data on daily allowances paid was disclosed, the EESC representatives explained that those requests concerned identified individuals. The respective members were informed and did not oppose the disclosure of their data. In the current case, the complainant asked about the daily allowances paid to all members –and former members- over a number of years and it would have been disproportionate to contact them all.

On the general steps taken by the EESC towards transparency of members’ allowances since inquiry 1/2020/MIG^[5] was closed

The EESC representatives informed the inquiry team that the EESC has recently taken several steps towards greater transparency of its members’ remuneration system. It has created on its website a page detailing the rules on travel expenses and allowances.^[6] In addition, in its Annual Activity Report 2020, it included detailed information on the members’ expenditure,^[7] including for example travel costs, travel allowances and daily allowances broken down by destination (where a specific meeting took place). This data, however, concerns only meetings where at least three members attended, to protect their personal data.

The Ombudsman’s inquiry team asked whether the public can retrieve, from publicly available information, which member attended which meeting.

The EESC representatives explained that information about the members’ attendance at meetings is public, at least for the statutory meetings (the list of participants is included in the minutes of the meetings). However, this information is not centralised. Nevertheless, it is not possible to learn exactly the amount of allowances received by a specific member by looking at the attendance at the meetings.

The EESC representatives emphasised that it is the Council that decides on the EESC members’ allowances and reimbursement of expenses system.^[8] Members do not receive a salary for their work at the EESC. Rather, they receive a daily allowance for each day’s attendance at official EESC events and meetings, irrespective of the duration or number of meetings they attend on a given day. The daily allowance is established in the Council decision and is meant to cover the time spent and possible administrative costs, irrespective of any travel expenses. In addition, members are reimbursed for any travel expenses they actually incur when attending physical meetings, and the time needed to travel.

 

Conclusion of the meeting

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

 

Brussels, 15 December 2021

Fergal O’Regan                                                                                   Oana Marin

Chief Legal Expert                                                                              Inquiries Officer

 

[1] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049

[2] The exception of Article 4(1)(b) of Regulation (EC) 1049/2001 is the express link between the rules on public access to documents and the rules on the protection of personal data under Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725

[3] In line with Article 9(1)(b) of Regulation 2018/1725

 

[5] Case 1/2020/MIG on the European Economic and Social Committee's refusal of public access to documents concerning travel expenses related to an official trip to China, available at: https://www.ombudsman.europa.eu/en/case/en/56210

[6] More information available at: https://www.eesc.europa.eu/en/members-travel-expenses-and-allowances

[7] Appendices - Section 15. Detailed breakdown of members' expenditure concerning item 1004

of the EESC Annual Activity Report 2020 https://www.eesc.europa.eu/sites/default/files/files/eesc_aar-2020.pdf

[8] See Council Decision 2013/471/EU of 23 September 2013 on the granting of daily allowances to and the reimbursement of travelling expenses of members of the European Economic and Social Committee and their alternates, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013D0471; and Council Decision (EU) 2021/1072 of 28 June 2021 on a temporary derogation from Decision 2013/471/EU on the granting of daily allowances to and the reimbursement of travelling expenses of members of the European Economic and Social Committee and their alternates in view of the travel difficulties caused by the COVID-19 pandemic in the Union, available at: https://www.eesc.europa.eu/sites/default/files/files/celex_32021d1072_en_txt.pdf