Background to the complaint

1. The European Economic and Social Committee (EESC) is an EU advisory body composed of 329 members from different economic and social interest groups. The EESC members do not assist the EESC on a full-time basis. They examine and adopt opinions on EU policies and attend a number of meetings each month. Many members have full-time jobs in the Member States that are linked to their appointment to the EESC (for example, they work for trade unions or industry representative groups). The EESC does not pay its members a salary for their work at the EESC. Rather, the EESC pays members a ’daily allowance’ for attendance at official EESC events or meetings (known as ‘per diems’).^[1] In addition, they are reimbursed for the travel expenses they actually incur when travelling to attend EESC meetings.^[2]

2. The complainant, a journalist, sought public access to documents^[3] containing information on the daily allowances paid to the EESC members. Specifically, the complainant said he was interested in knowing the daily allowances paid to each individual EESC member in the period between January 2019 and April 2021, as well as the date and reason for each payment made.

3. The EESC gave the complainant access to one document, which was a list including relevant payments in the time from 1 January 2019 to 30 April 2021. For each payment, the date and the title of the corresponding meeting were listed. However, the EESC did not include the names of the EESC members who received allowances for each meeting, as it considered this information to be personal data that could not be disclosed under the EU’s data protection rules.^[4]

4. The complainant then asked the EESC to review its decision (by making a ‘confirmatory application’) and to disclose the names of the members who received the daily allowances.

5. The EESC maintained its refusal to give access to the personal data at issue, saying that disclosure would undermine the protection of the privacy and the integrity of the individual.^[5]

6. Dissatisfied, the complainant turned to the Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into the EESC’s refusal to give public access to the names of its members that had received a daily allowance in the period in question. In the course of the inquiry, the Ombudsman inquiry team met with the EESC representatives.^[6] The complainant provided comments on the meeting report.

Arguments presented to the Ombudsman

By the EESC

8. The EESC considered that the document at issue had to be fully anonymised to comply with data protection rules. It also said that this approach was in line with the approach the European Ombudsman had proposed in the context of a previous inquiry.^[7] In that case, the EESC, following a proposal for a solution by the Ombudsman, had disclosed an anonymised document containing information on travel costs of EESC members (with their names redacted).

9. In its confirmatory reply, the EESC explained that, when an access request concerns a document which contains personal data, it has to conduct an “assessment of the necessity, proportionality and respect of legal requirements”. Disclosure therefore had to be considered in accordance with both the EU legislation on access to documents and the EU legislation on data protection.^[8] In this case, it concluded that the names of the EESC members could not be disclosed, as there was a need to protect the privacy and the integrity of the individuals concerned.^[9]

10. In the meeting held with the Ombudsman inquiry team, the representatives of the EESC emphasised that personal data may be disclosed only if the recipient demonstrates that disclosure would serve a specific purpose in the public interest.^[10] The EESC noted that the complainant had not put forward such a necessity.

11. The EESC also said that disclosure would reveal sensitive personal information. It explained that persons with disabilities have the right to claim higher amounts, so that disclosure of the members’ names would allow for the identification of members belonging to this group.

12. During the Ombudsman’s inquiry, the complainant clarified that he considered disclosure necessary to enable the public to scrutinise the use of public resources and to steer a public debate on the merits of the EESC’s remuneration system. The representatives of the EESC told the Ombudsman inquiry team in the meeting that they considered these objectives were insufficient to justify disclosure.^[11]

By the complainant

13. The complainant argued that he had made similar access requests to the EESC in the past, in reply to which he was granted public access to the names of the members who had received per diems. He had then written an article on the subject. For that reason, he said, he could not understand why the EESC was now withholding the same kind of information.

14. The complainant also contended that it should not be for the EESC to decide whether a necessity to disclose the personal data has been demonstrated. In his view, this “is a conflict and is used to shut out public scrutiny of funds and to close any public debate”.

The Ombudsman's assessment

15. The concept of ‘personal data’ is very broad under the EU data protection rules; it comprises “any information relating to an identified or identifiable natural person”.^[12] The information which the complainant requested, that is the names of the EESC members who received daily allowances, is personal data of the EESC members.^[13]

Consent

16. If a data subject gives his or her consent to the disclosure of his or her personal data, there is no need for the person seeking access to the personal data to demonstrate that its disclosure serves a public interest or that this public interest outweighs any legitimate interests of the data subjects.

17. In the past, the EESC gave the complainant information on the meetings attended by a limited number of named EESC members, along with general information about the daily allowance normally paid for each day’s participation. The EESC disclosed the requested information after obtaining the EESC members’ consent for the disclosure of their personal data.

18. In this case, the complainant asked for the daily allowances paid to EESC members in the period from January 2019 to April 2021 (which covers parts of two terms of office). Thus, the request concerned approximately 500 EESC members. The Ombudsman notes that the EESC made a significant effort to satisfy the complainant’s request. It compiled a document of over 700 pages, listing all the instances (approximately 40 000 instances) for which its members received a daily allowance in the relevant period. In these circumstances, the EESC considered it excessive also to seek each member’s consent for the disclosure of their names. The Ombudsman takes the view that the EESC’s position, that it cannot ask approximately 500 persons, some of whom are no longer EESC members, for their consent, is reasonable. 

The necessity test

19. Absent the consent of EESC members for the disclosure of their personal data, the EU data protection rules require that a person seeking access to personal data must demonstrate a specific need that is met through obtaining such access.^[14] Moreover, that specific need must serve a public interest. Even if such a need exists, the personal data cannot be disclosed if the data subject has a legitimate interest in non-disclosure, which outweighs this need. Finally, even if that test is met, disclosure of the personal data can only occur if it is the most appropriate means of attaining the purpose pursued by the person seeking access. If an alternative less intrusive means of achieving the same purpose exists, this must be used instead of granting access to the personal data.

20. As regards whether disclosure of the names would serve a public interest, such as permitting a public debate on the system of allowances, the Ombudsman notes that, according to the rules,^[15] all EESC members automatically receive a ‘flat-rate’ allowance for each day attendance at an EESC event or meeting. This daily allowance is meant to cover the time spent by a member in preparing for and participating at a meeting, as well as any administrative costs (such as meals, hotel fees, etc.). The members receive this allowance irrespective of whether they travel or not to the place of the meeting (for example, it applies to persons resident in Brussels who attend meetings in Brussels).^[16]

21. Members with disabilities can receive a different amount for the daily allowance, as they may incur higher costs, including costs incurred by persons providing them assistance.^[17]

22. It is possible for members to waive their right to compensation. Some members do that, and publicise the fact that they do.

23. The attendance lists for most meetings are published. The public can thus verify who is entitled to the daily allowance, by verifying who attended those meetings.

24. What the public will not be able to verify, by looking at meeting lists, is which members may have waived their right to a daily allowance and which members may have benefited from a higher allowance based on the fact that they have a disability.

25. The Ombudsman notes that information on who waives their right to compensation and who is entitled to a disability-based extra allowance will not in any way contribute to a public debate on the appropriateness of the EESC system of allowances. Any such debate can well occur on the basis of the public information on how the system of allowances works. That public debate is not dependent on knowing how much each individual EESC member received.

26. The Ombudsman notes, in that respect, that, following a suggestion for improvement she made in 2020,^[18] the EESC has increased the transparency of its members’ expenses. It has published on its website an overview of how the system for reimbursing travel expenses and allowances works.^[19] In addition, its annual activity reports include detailed information on the members’ costs,^[20] such as for example travel costs, travel allowances and daily allowances, broken down by destination (where a specific meeting took place). The Ombudsman welcomes these developments.

27. She also finds justified the EESC’s argument that releasing the names of the members could lead to disclosure of other sensitive personal data, such as medical data.

28. In light of the above, the Ombudsman takes the view that, in this case, the EESC was justified in refusing to provide access to the names of the members, in line with the exception for the protection of the privacy and integrity of an individual.

29. The Ombudsman notes that the daily allowance is different from the travel expenses, which are paid only to members who have to travel to the place of the meeting and cover the actual expenses of the journey. The complainant did not ask the EESC to give him information on travel expenses.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Economic and Social Committee.

The complainant and the EESC will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 25/04/2022

 

[1] As set out in the 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: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013D0471.

[2] More information available about the EESC members’ travel expenses and allowances is available at: https://www.eesc.europa.eu/en/members-travel-expenses-and-allowances.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[4] 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 and on the free movement of such data: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[5] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[6] The meeting report is available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/151501

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

[8] Regulation 1049/2001 and Regulation 2018/1725 (see footnotes 3 and 4 above).

[9] In line with Article 4(1)(b) of Regulation 1049/2001.

[10] Article 9(1)(b) of Regulation 2018/1725.

[11] In this context, the EESC referred to the judgement of the General Court of 25 September 2018 Psara et al v. Parliament, Cases T-639/15 to T-666/15 and T-94/16, see in particular paragraphs 73-74, 77, 90-91: https://curia.europa.eu/juris/document/document.jsf?text=&docid=206663&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2866235.

[12] Article 3(1) of Regulation 2018/1725.

[13] See in that regard the Judgment of the Court of Justice of 29 June 2010 in case C-28/08 P, Commission v Bavarian Lager, paragraph 68: https://curia.europa.eu/juris/document/document.jsf?text=&docid=84752&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=242873.

[14] Article 9(1)(b) of Regulation 2018/1725.

[15] See footnote 1 above.

[16] During the Covid-19 pandemic, the allowance was adapted for remote attendance, given that administrative costs are lower for such meetings, while the time dedicated to the meeting remains the same. See 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: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D1072.

[17] See Decision of the Bureau of the European Economic And Social Committee on the reimbursement of expenses incurred and the allowances received by Committee members, delegates of the Committee's consultative commissions, their respective alternates and the Committee's experts, Article 17: https://www.eesc.europa.eu/sites/default/files/files/eesc-2020-01810-00-00-admin-tra-en_0.pdf.

[18] See footnote 7 above.

[19] See footnote 2 above.

[20] 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.