# Official Journal C 2/2009

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 2 |
| | |
| English edition | Information and Notices | Volume 527 January 2009 |

ISSN 1725-2423

Official Journal

of the European Union

C 2

English edition

Information and Notices

Volume 527 January 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Resolutions, recommendations and opinions |
| | OPINIONS |
| | Commission |
| 2009/C 002/01 | Commission Opinion of 22 December 2008 concerning the plans for the disposal of radioactive waste arising from the JULES HOROWITZ research reactor and the MAGENTA fissile materials store, located on the site of Cadarache in France, in accordance with Article 37 of the Euratom Treaty | 1 |
| | European Data Protection Supervisor |
| 2009/C 002/02 | Opinion of the European Data Protection Supervisor on the Proposal for a Decision of the European Parliament and of the Council establishing a multiannual Community programme on protecting children using the Internet and other communication technologies | 2 |
| 2009/C 002/03 | Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents | 7 |

Notice No

Contents

page

I   Resolutions, recommendations and opinions

OPINIONS

Commission

2009/C 002/01

Commission Opinion of 22 December 2008 concerning the plans for the disposal of radioactive waste arising from the JULES HOROWITZ research reactor and the MAGENTA fissile materials store, located on the site of Cadarache in France, in accordance with Article 37 of the Euratom Treaty

1

European Data Protection Supervisor

2009/C 002/02

Opinion of the European Data Protection Supervisor on the Proposal for a Decision of the European Parliament and of the Council establishing a multiannual Community programme on protecting children using the Internet and other communication technologies

2

2009/C 002/03

Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents

7

| | II   Information |
| --- | --- |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 002/04 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  ) | 18 |
| 2009/C 002/05 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections | 21 |
| 2009/C 002/06 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections | 23 |

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 002/04

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  )

1

18

2009/C 002/05

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections

21

2009/C 002/06

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections

23

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 002/07 | Interest rate applied by the European Central Bank to its main refinancing operations: 2,5 % on 1 January 2009 — Euro exchange rates | 25 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 002/07

Interest rate applied by the European Central Bank to its main refinancing operations: 2,5 % on 1 January 2009 — Euro exchange rates

25

| | |
| --- | --- |
| 2009/C 002/08 | Note to the reader(see page 3 of the cover) | s3 |

2009/C 002/08

Note to the reader(see page 3 of the cover)

Note to the reader

s3

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

---

I Resolutions, recommendations and opinions

OPINIONS

Commission

| 7.1.2009 | EN | Official Journal of the European Union | C 2/1 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/1

---

COMMISSION OPINION

of 22 December 2008

concerning the plans for the disposal of radioactive waste arising from the JULES HOROWITZ research reactor and the MAGENTA fissile materials store, located on the site of Cadarache in France, in accordance with Article 37 of the Euratom Treaty

(Only the French text is authentic)

(2009/C 2/01)

On 29 April 2008, the European Commission received from the Government of France, in accordance with Article 37 of the Euratom Treaty, General Data relating to the plans for the disposal of radioactive waste arising from the JULES HOROWITZ research reactor and the MAGENTA fissile materials store, installations located on the site of Cadarache.

On the basis of these data and the complementary information provided by representatives of the French Government at the meeting of the Group of Experts on 15 and 16 September 2008, the Commission has drawn up the following opinion:

| 1. | the distance between both installations and the nearest point on the territory of another Member State, in this case Italy is approximately 110 km, while Spain is 230 km away; |
| --- | --- |

1.

the distance between both installations and the nearest point on the territory of another Member State, in this case Italy is approximately 110 km, while Spain is 230 km away;

| 2. | during normal operation, the discharges of liquid and gaseous radioactive effluents from both installations will not cause an exposure liable to affect the health of the population in another Member State; |
| --- | --- |

2.

during normal operation, the discharges of liquid and gaseous radioactive effluents from both installations will not cause an exposure liable to affect the health of the population in another Member State;

| 3. | solid radioactive waste arising from both installations will be temporarily stored on site before being transferred to a disposal facility authorised by the French Government. Spent fuel elements from the research reactor will be temporarily stored on site before being transported to the reprocessing plant at La Hague; |
| --- | --- |

3.

solid radioactive waste arising from both installations will be temporarily stored on site before being transferred to a disposal facility authorised by the French Government. Spent fuel elements from the research reactor will be temporarily stored on site before being transported to the reprocessing plant at La Hague;

| 4. | for both installations, in the event of unplanned releases of radioactive effluents, which may follow the accidents of the type and magnitude respectively considered in the General Data, the doses received in another Member State will not be liable to affect the health of the population. |
| --- | --- |

4.

for both installations, in the event of unplanned releases of radioactive effluents, which may follow the accidents of the type and magnitude respectively considered in the General Data, the doses received in another Member State will not be liable to affect the health of the population.

IN CONCLUSION, the Commission is of the opinion that, both in normal operation and in the event of an accident of the type and magnitude considered in the General Data, the implementation of the plans for the disposal of radioactive waste in whatever form arising from either the JULES HOROWITZ research reactor or the MAGENTA fissile materials store, both located on the site of Cadarache in France, is not liable to result in radioactive contamination of the water, soil or airspace of another Member State.

---

European Data Protection Supervisor

| 7.1.2009 | EN | Official Journal of the European Union | C 2/2 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/2

---

Opinion of the European Data Protection Supervisor on the Proposal for a Decision of the European Parliament and of the Council establishing a multiannual Community programme on protecting children using the Internet and other communication technologies

(2009/C 2/02)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Community, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,

Having regard to 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 (1),

Having regard to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), and in particular its Article 41,

Having regard to the request for an opinion in accordance with Article 28(2) of Regulation (EC) No 45/2001 received on 4 March 2008 from the European Commission,

HAS ADOPTED THE FOLLOWING OPINION:

I.   INTRODUCTION

Consultation of the EDPS

| 1. | The Proposal for a Decision of the European Parliament and of the Council establishing a multiannual Community programme on protecting children using the Internet and other communication technologies (hereinafter ‘the proposal’) was sent by the Commission to the EDPS for consultation on 4 March 2008, in accordance with Article 28(2) of Regulation (EC) No 45/2001. This consultation should be explicitly mentioned in the preamble of the decision. |
| --- | --- |

1.

The Proposal for a Decision of the European Parliament and of the Council establishing a multiannual Community programme on protecting children using the Internet and other communication technologies (hereinafter ‘the proposal’) was sent by the Commission to the EDPS for consultation on 4 March 2008, in accordance with Article 28(2) of Regulation (EC) No 45/2001. This consultation should be explicitly mentioned in the preamble of the decision.

The proposal in its context

| 2. | The new multiannual programme (hereinafter ‘the programme’) is presented in the continuity of the Safer Internet (1999-2004) and the Safer Internet Plus programmes (2005-2008). |
| --- | --- |

2.

The new multiannual programme (hereinafter ‘the programme’) is presented in the continuity of the Safer Internet (1999-2004) and the Safer Internet Plus programmes (2005-2008).

| 3. | Four orientations are defined:






  — | reducing illegal content and tackling harmful conduct online, |
| --- | --- | --- |

3.

Four orientations are defined:

—

reducing illegal content and tackling harmful conduct online,

| — | promoting a safer online environment, |
| --- | --- |

—

promoting a safer online environment,

| — | ensuring public awareness, |
| --- | --- |

—

ensuring public awareness,

| — | establishing a knowledge database. |
| --- | --- |

—

establishing a knowledge database.

| 4. | The programme is presented as consistent and complementary to relevant Community policies, programmes and actions. Considering the number of existing regulatory measures in the field of the protection of children in the context of new technologies, this programme concentrates on action rather than regulation. Focus is put on the efficiency and effectiveness of initiatives to be taken, and adaptation to the evolution of new technologies. In this perspective, it foresees enhanced exchanges of information and best practices. |
| --- | --- |

4.

The programme is presented as consistent and complementary to relevant Community policies, programmes and actions. Considering the number of existing regulatory measures in the field of the protection of children in the context of new technologies, this programme concentrates on action rather than regulation. Focus is put on the efficiency and effectiveness of initiatives to be taken, and adaptation to the evolution of new technologies. In this perspective, it foresees enhanced exchanges of information and best practices.

| 5. | As a framework instrument, the programme does not go into the details of the actions to be taken, but allows for calls for proposals and calls for tenders in line with the four orientations defined. |
| --- | --- |

5.

As a framework instrument, the programme does not go into the details of the actions to be taken, but allows for calls for proposals and calls for tenders in line with the four orientations defined.

Focus of the opinion

| 6. | The general orientations of the programme address the protection of children using the Internet and other communication technologies without putting emphasis on the privacy aspects of the issue (3). While being totally supportive of the objective of the proposal, the EDPS will in this opinion highlight these privacy aspects. |
| --- | --- |

6.

The general orientations of the programme address the protection of children using the Internet and other communication technologies without putting emphasis on the privacy aspects of the issue (3). While being totally supportive of the objective of the proposal, the EDPS will in this opinion highlight these privacy aspects.

| 7. | The EDPS considers as essential that the initiatives planned be consistent with the existing legal framework as cited in the proposal (4), and in particular Directive 2000/31/EC on e-commerce, Directive 2002/58/EC on e-privacy, and Directive 95/46/EC on data protection (5). |
| --- | --- |

7.

The EDPS considers as essential that the initiatives planned be consistent with the existing legal framework as cited in the proposal (4), and in particular Directive 2000/31/EC on e-commerce, Directive 2002/58/EC on e-privacy, and Directive 95/46/EC on data protection (5).

| 8. | The protection of personal data should be taken into account with regard to different aspects and different actors involved in the programme: the protection of personal data of children is of course the main issue, but not the only one: personal data related to persons and contents under scrutiny for the purpose of protecting children should also be taken into consideration. |
| --- | --- |

8.

The protection of personal data should be taken into account with regard to different aspects and different actors involved in the programme: the protection of personal data of children is of course the main issue, but not the only one: personal data related to persons and contents under scrutiny for the purpose of protecting children should also be taken into consideration.

| 9. | These issues will be developed as follows in this opinion:






  — | Chapter II will develop the link between data protection and the safety of children, highlighting the fact that the protection of children's data is an indispensable step towards more safety and prevention of abuse, |
| --- | --- | --- |

9.

These issues will be developed as follows in this opinion:

—

Chapter II will develop the link between data protection and the safety of children, highlighting the fact that the protection of children's data is an indispensable step towards more safety and prevention of abuse,

| — | in Chapter III, the opinion will stress the fact that processing of personal data is also inherent to the reporting, filtering or blocking of suspicious contents or persons on the Internet:






  — | in a first point, the question of the reporting of suspected persons or facts will be analysed in a data protection perspective, |
| --- | --- | --- |

—

in Chapter III, the opinion will stress the fact that processing of personal data is also inherent to the reporting, filtering or blocking of suspicious contents or persons on the Internet:

—

in a first point, the question of the reporting of suspected persons or facts will be analysed in a data protection perspective,

| — | the second point will focus on the role of technical tools, |
| --- | --- |

—

the second point will focus on the role of technical tools,

| — | the responsibility of the industry, in relation with their control on users' data and on content data will be the subject of the last point. |
| --- | --- |

—

the responsibility of the industry, in relation with their control on users' data and on content data will be the subject of the last point.

II.   PROTECTION OF PERSONAL DATA AND SAFETY OF CHILDREN

| 10. | The EDPS fully supports the objective of the programme and the orientations defined in order to enhance the protection of children online. In particular, reducing illegal or harmful content and raising awareness of children and other actors involved are decisive measures which should be further developed. |
| --- | --- |

10.

The EDPS fully supports the objective of the programme and the orientations defined in order to enhance the protection of children online. In particular, reducing illegal or harmful content and raising awareness of children and other actors involved are decisive measures which should be further developed.

| 11. | The EDPS wishes to recall that an appropriate protection of the personal information of the child is an essential preliminary step to ensure safety while being online. This interconnection between privacy and security of children is explicit in the recent Declaration of the Committee of Ministers ‘on protecting the dignity, security and privacy of children using the Internet’ (6). The declaration recalls the right of children to dignity, special protection and care as is necessary for their well being, ‘to protection against all forms of discrimination or arbitrary or unlawful interference with their privacy and to unlawful attacks on their honour and reputation’. |
| --- | --- |

11.

The EDPS wishes to recall that an appropriate protection of the personal information of the child is an essential preliminary step to ensure safety while being online. This interconnection between privacy and security of children is explicit in the recent Declaration of the Committee of Ministers ‘on protecting the dignity, security and privacy of children using the Internet’ (6). The declaration recalls the right of children to dignity, special protection and care as is necessary for their well being, ‘to protection against all forms of discrimination or arbitrary or unlawful interference with their privacy and to unlawful attacks on their honour and reputation’.

| 12. | As examples of risks associated with the protection of the privacy of children, the declaration cites the traceability of children's activities that may expose them to criminal activities, such as solicitation for sexual purposes or other illegal activities. Profiling and retention of personal data regarding children's activities are also presented as leading to a potential risk of misuse, e.g. for commercial purposes, or for searches by educational establishments or prospective employers. The declaration therefore calls for removal or deletion in a reasonably short period of time of content and traces left by children online, and for the development and promotion of information to children, especially on the competent use of tools providing access to information, the development of critical analysis of content and the appropriation of adequate communication skills. |
| --- | --- |

12.

As examples of risks associated with the protection of the privacy of children, the declaration cites the traceability of children's activities that may expose them to criminal activities, such as solicitation for sexual purposes or other illegal activities. Profiling and retention of personal data regarding children's activities are also presented as leading to a potential risk of misuse, e.g. for commercial purposes, or for searches by educational establishments or prospective employers. The declaration therefore calls for removal or deletion in a reasonably short period of time of content and traces left by children online, and for the development and promotion of information to children, especially on the competent use of tools providing access to information, the development of critical analysis of content and the appropriation of adequate communication skills.

| 13. | The EDPS supports these findings. In particular, he considers as essential to raise the awareness of the child as to the risks linked with a spontaneous communication of personal details such as real name, age or place of residence. |
| --- | --- |

13.

The EDPS supports these findings. In particular, he considers as essential to raise the awareness of the child as to the risks linked with a spontaneous communication of personal details such as real name, age or place of residence.

| 14. | Point 3 of the measures (7) proposed by the multiannual programme is specifically dedicated to ‘Ensuring public awareness’, through actions directed to children, parents, carers and educators, as to opportunities and risks related to the use of online technologies and ‘means of staying safe online’. Among the means indicated in the proposal, the dissemination of appropriate information and the provision of contact points where parents and children can receive answers to questions about how to stay safe online, are two useful tools that should integrate explicitly this dimension of the protection of the child's personal data. |
| --- | --- |

14.

Point 3 of the measures (7) proposed by the multiannual programme is specifically dedicated to ‘Ensuring public awareness’, through actions directed to children, parents, carers and educators, as to opportunities and risks related to the use of online technologies and ‘means of staying safe online’. Among the means indicated in the proposal, the dissemination of appropriate information and the provision of contact points where parents and children can receive answers to questions about how to stay safe online, are two useful tools that should integrate explicitly this dimension of the protection of the child's personal data.

| 15. | The EDPS wishes to stress that data protection authorities are relevant interlocutors in this context. They should be mentioned as such in the proposal, especially where it foresees the promotion of cooperation and sharing of information, experience and good practice at national and European level (8). |
| --- | --- |

15.

The EDPS wishes to stress that data protection authorities are relevant interlocutors in this context. They should be mentioned as such in the proposal, especially where it foresees the promotion of cooperation and sharing of information, experience and good practice at national and European level (8).

| 16. | Several initiatives can be mentioned as an illustration of recent actions taken in this perspective in Member States or Members of the EEA. The Swedish DPA is conducting a yearly survey on young peoples' attitudes towards internet and surveillance, just like the DPA of the United Kingdom (9) which conducted a survey directed to 2 000 children between 14 and 21 years old. In January 2007, together with the Ministry of Education, the Norwegian DPA has launched an education campaign directed at schools (10). In Portugal, a protocol has been signed between the DPA and the Ministry of Education, to promote a data protection culture on the Internet and especially on social networks (11). Following this project, Portuguese social networks have integrated an interface and a mascot dedicated to children between 10 and 15 years old. |
| --- | --- |

16.

Several initiatives can be mentioned as an illustration of recent actions taken in this perspective in Member States or Members of the EEA. The Swedish DPA is conducting a yearly survey on young peoples' attitudes towards internet and surveillance, just like the DPA of the United Kingdom (9) which conducted a survey directed to 2 000 children between 14 and 21 years old. In January 2007, together with the Ministry of Education, the Norwegian DPA has launched an education campaign directed at schools (10). In Portugal, a protocol has been signed between the DPA and the Ministry of Education, to promote a data protection culture on the Internet and especially on social networks (11). Following this project, Portuguese social networks have integrated an interface and a mascot dedicated to children between 10 and 15 years old.

| 17. | These examples illustrate the active and decisive role played by data protection actors when it comes to the protection of children online, and the need to include them explicitly as interlocutors in the multiannual programme. |
| --- | --- |

17.

These examples illustrate the active and decisive role played by data protection actors when it comes to the protection of children online, and the need to include them explicitly as interlocutors in the multiannual programme.

III.   PROTECTION OF PERSONAL DATA AND RIGHTS OF OTHER STAKEHOLDERS

I.   Reporting and exchange of information

| 18. | The first point of the proposal (‘Reducing illegal content and tackling harmful conduct online’ (12)) includes as one of its main actions the provision of contact points for reporting online illegal content and harmful conduct. It is not questionable that to be fought efficiently, illegal content or harmful conduct must be brought to the attention of the competent authorities. Contact points have actually already been established in relation with the protection of children but also, e.g. for the fight against spam (13). |
| --- | --- |

18.

The first point of the proposal (‘Reducing illegal content and tackling harmful conduct online’ (12)) includes as one of its main actions the provision of contact points for reporting online illegal content and harmful conduct. It is not questionable that to be fought efficiently, illegal content or harmful conduct must be brought to the attention of the competent authorities. Contact points have actually already been established in relation with the protection of children but also, e.g. for the fight against spam (13).

| 19. | The EDPS notes nevertheless that the notion of harmful content remains unclear: no indication is given on who is responsible for defining what harmful content is, and according to what criteria. This is all the more worrying considering the implications of a possible reporting of such content. |
| --- | --- |

19.

The EDPS notes nevertheless that the notion of harmful content remains unclear: no indication is given on who is responsible for defining what harmful content is, and according to what criteria. This is all the more worrying considering the implications of a possible reporting of such content.

| 20. | In addition, as already mentioned above, in the framework of a programme like the present one not only personal data of children are at stake, but also personal data of all persons who are connected in some way with the information circulating on the network. It can be, for instance, the person suspected of misbehaviour and reported as suspect, but also the person reporting a suspicious conduct or content, or the victim of the abuse. While this information is necessary to an efficient reporting system, the EDPS considers it important to recall that it should always be processed in accordance with data protection principles. |
| --- | --- |

20.

In addition, as already mentioned above, in the framework of a programme like the present one not only personal data of children are at stake, but also personal data of all persons who are connected in some way with the information circulating on the network. It can be, for instance, the person suspected of misbehaviour and reported as suspect, but also the person reporting a suspicious conduct or content, or the victim of the abuse. While this information is necessary to an efficient reporting system, the EDPS considers it important to recall that it should always be processed in accordance with data protection principles.

| 21. | Some data at stake might even need specific protection, if they can be considered as sensitive data in the sense of Article 8 of Directive 95/46/EC. This can be the case for data related to authors of infringements as well as victims of abuse, especially when it comes to child pornography. It must be noted that at national level, some systems of reporting have required modification of the data protection legislation in order to enable the processing of judicial data of suspected offenders or victims (14). The EDPS insists on the fact that any reporting system to be put in place takes into account the existing data protection framework. The demonstration of a public interest, as well as guarantees related to the supervision of the system, in principle by law enforcement authorities, are decisive elements to comply with this framework. |
| --- | --- |

21.

Some data at stake might even need specific protection, if they can be considered as sensitive data in the sense of Article 8 of Directive 95/46/EC. This can be the case for data related to authors of infringements as well as victims of abuse, especially when it comes to child pornography. It must be noted that at national level, some systems of reporting have required modification of the data protection legislation in order to enable the processing of judicial data of suspected offenders or victims (14). The EDPS insists on the fact that any reporting system to be put in place takes into account the existing data protection framework. The demonstration of a public interest, as well as guarantees related to the supervision of the system, in principle by law enforcement authorities, are decisive elements to comply with this framework.

II.   The role of technical tools in a privacy perspective

| 22. | The use of technical tools is promoted as one of the solutions to deal with illegal content and harmful conduct (15). Examples of such tools are given in the impact assessment (16), including age recognition, face recognition (for victim identification by law enforcement authorities) or filtering technologies. According to the proposal these tools should be better adapted to practical needs and accessible to relevant stakeholders. |
| --- | --- |

22.

The use of technical tools is promoted as one of the solutions to deal with illegal content and harmful conduct (15). Examples of such tools are given in the impact assessment (16), including age recognition, face recognition (for victim identification by law enforcement authorities) or filtering technologies. According to the proposal these tools should be better adapted to practical needs and accessible to relevant stakeholders.

| 23. | The EDPS has already taken a clear position (17) in favour of the use of new technologies to enhance the protection of the rights of individuals. He considers that the principle of ‘privacy by design’ should constitute an inherent part of technological development which implies the processing of personal data. The EDPS therefore strongly encourages the development of projects aiming at developing technologies in that sense. |
| --- | --- |

23.

The EDPS has already taken a clear position (17) in favour of the use of new technologies to enhance the protection of the rights of individuals. He considers that the principle of ‘privacy by design’ should constitute an inherent part of technological development which implies the processing of personal data. The EDPS therefore strongly encourages the development of projects aiming at developing technologies in that sense.

| 24. | It is especially important to develop systems that will reduce as much as possible the exposure of children's personal data providing them a reliable protection and to offer them accordingly the opportunity to use new tools of the Information Society like social networks in a safer way. |
| --- | --- |

24.

It is especially important to develop systems that will reduce as much as possible the exposure of children's personal data providing them a reliable protection and to offer them accordingly the opportunity to use new tools of the Information Society like social networks in a safer way.

| 25. | It should nevertheless be recalled that, depending on the way they are used, technological tools can have a variety of impacts on individuals. If they are used in order to filter or to block information, they can stop the access by children to content that could be potentially damaging, but they can also prevent someone to get access to legitimate information. |
| --- | --- |

25.

It should nevertheless be recalled that, depending on the way they are used, technological tools can have a variety of impacts on individuals. If they are used in order to filter or to block information, they can stop the access by children to content that could be potentially damaging, but they can also prevent someone to get access to legitimate information.

| 26. | Even if the major concern here relates to freedom of access to information, there is still a consequence in a privacy perspective. Indeed, filtering, especially in its most recent developments using identity management, can function on the basis of given criteria, including personal data such as the age of the individual connected to the network (to prevent access by adults or children to specified content), the content of the information and traffic data linked with the identity of the author of the information. Depending on the way this personal information will — automatically — be processed, the individuals concerned could face consequences with regard to their right to communicate online. |
| --- | --- |

26.

Even if the major concern here relates to freedom of access to information, there is still a consequence in a privacy perspective. Indeed, filtering, especially in its most recent developments using identity management, can function on the basis of given criteria, including personal data such as the age of the individual connected to the network (to prevent access by adults or children to specified content), the content of the information and traffic data linked with the identity of the author of the information. Depending on the way this personal information will — automatically — be processed, the individuals concerned could face consequences with regard to their right to communicate online.

| 27. | The use of filtering or blocking tools to control the access to networks must therefore be used in a cautious way, taking into account their possible adverse effects and taking full profit of the privacy enhancing opportunities offered by the technology. |
| --- | --- |

27.

The use of filtering or blocking tools to control the access to networks must therefore be used in a cautious way, taking into account their possible adverse effects and taking full profit of the privacy enhancing opportunities offered by the technology.

| 28. | The EDPS welcomes the precision given in the impact assessment (18) according to which none of the proposed options should affect the rights to privacy and freedom of expression. He also shares the view expressed therein that one of the main objectives is user empowerment, i.e. ‘empowerment for making better choices and taking appropriate actions’ to protect children (19). |
| --- | --- |

28.

The EDPS welcomes the precision given in the impact assessment (18) according to which none of the proposed options should affect the rights to privacy and freedom of expression. He also shares the view expressed therein that one of the main objectives is user empowerment, i.e. ‘empowerment for making better choices and taking appropriate actions’ to protect children (19).

III.   The responsibility of service providers

| 29. | The collaboration of all stakeholders is considered in the proposal as a necessary element to enhance the protection of children using communication technologies. Among these stakeholders, the proposal (20) foresees the participation and the involvement of the industry especially through self-regulation. |
| --- | --- |

29.

The collaboration of all stakeholders is considered in the proposal as a necessary element to enhance the protection of children using communication technologies. Among these stakeholders, the proposal (20) foresees the participation and the involvement of the industry especially through self-regulation.

| 30. | Being responsible for the provision of telecommunication and content services, the industry in this sector could have some influence on the reporting, filtering or blocking of information when it is considered as illegal or harmful. The extent to which it can actually be entrusted with such a task, in a legal perspective, could nevertheless lead to discussion. |
| --- | --- |

30.

Being responsible for the provision of telecommunication and content services, the industry in this sector could have some influence on the reporting, filtering or blocking of information when it is considered as illegal or harmful. The extent to which it can actually be entrusted with such a task, in a legal perspective, could nevertheless lead to discussion.

| 31. | The collaboration of the industry in the perspective of raising the awareness of children and other actors concerned, like parents or educators, is of course welcome. Putting in place alert systems and moderators on websites allowing for the exclusion of inappropriate content, is also an essential aspect of the responsibility of content providers. |
| --- | --- |

31.

The collaboration of the industry in the perspective of raising the awareness of children and other actors concerned, like parents or educators, is of course welcome. Putting in place alert systems and moderators on websites allowing for the exclusion of inappropriate content, is also an essential aspect of the responsibility of content providers.

| 32. | As far as telecommunication service providers are concerned, the monitoring of telecommunications is however a debatable question, either aimed at the control of content protected by intellectual property rights or other illegal content. The issue raises the question of the intervention of a commercial actor, offering a specific (telecommunication) service, in a sphere where it is in principle not supposed to intervene, that is, the control of the content of the telecommunications. The EDPS recalls that such control should in principle not be done by service providers, and certainly not in a systematic way. When it is necessary in specific circumstances, it should in principle be the task of law enforcement authorities. |
| --- | --- |

32.

As far as telecommunication service providers are concerned, the monitoring of telecommunications is however a debatable question, either aimed at the control of content protected by intellectual property rights or other illegal content. The issue raises the question of the intervention of a commercial actor, offering a specific (telecommunication) service, in a sphere where it is in principle not supposed to intervene, that is, the control of the content of the telecommunications. The EDPS recalls that such control should in principle not be done by service providers, and certainly not in a systematic way. When it is necessary in specific circumstances, it should in principle be the task of law enforcement authorities.

| 33. | In its opinion of 18 January 2005, the Article 29 Working Party has recalled in relation with this issue (21) that ‘no systematic obligation of surveillance and collaboration can be imposed on ISPs, pursuant to Article 15 of Directive 2000/31/EC on electronic commerce. (...) As stated in Article 8 of the Data protection Directive, processing of data related to offences, criminal convictions or security measures can be processed only under strict conditions as implemented by Member States. While any individual obviously has the right to process judicial data in the process of his/her own litigation, the principle does not go as far as permitting in depth investigation, collection and centralisation of personal data by third parties, including in particular, systematic research on a general scale such as the scanning of the Internet (...). Such investigation falls within the competence of judicial authorities’. |
| --- | --- |

33.

In its opinion of 18 January 2005, the Article 29 Working Party has recalled in relation with this issue (21) that ‘no systematic obligation of surveillance and collaboration can be imposed on ISPs, pursuant to Article 15 of Directive 2000/31/EC on electronic commerce. (...) As stated in Article 8 of the Data protection Directive, processing of data related to offences, criminal convictions or security measures can be processed only under strict conditions as implemented by Member States. While any individual obviously has the right to process judicial data in the process of his/her own litigation, the principle does not go as far as permitting in depth investigation, collection and centralisation of personal data by third parties, including in particular, systematic research on a general scale such as the scanning of the Internet (...). Such investigation falls within the competence of judicial authorities’.

| 34. | In an area where freedom of speech, access to information, privacy and other fundamental rights are at stake, this intervention of private actors raises the question of the proportionality of the means used. The European Parliament has recently adopted a resolution stressing the need for a solution in compliance with the fundamental rights of individuals (22). In point 23 of its resolution, it states that ‘the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; [the Parliament] calls on the Commission and the Member States, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access’. |
| --- | --- |

34.

In an area where freedom of speech, access to information, privacy and other fundamental rights are at stake, this intervention of private actors raises the question of the proportionality of the means used. The European Parliament has recently adopted a resolution stressing the need for a solution in compliance with the fundamental rights of individuals (22). In point 23 of its resolution, it states that ‘the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; [the Parliament] calls on the Commission and the Member States, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access’.

| 35. | The EDPS considers that a balance has to be found between the legitimate objective to fight against illegal content and the appropriate nature of the means used. He recalls that any action of surveillance of telecommunication networks, where necessary in specific cases, should be the task of law enforcement authorities. |
| --- | --- |

35.

The EDPS considers that a balance has to be found between the legitimate objective to fight against illegal content and the appropriate nature of the means used. He recalls that any action of surveillance of telecommunication networks, where necessary in specific cases, should be the task of law enforcement authorities.

IV.   CONCLUSION

| 36. | The EDPS supports the proposal for a multiannual programme to protect children using the Internet and other communication technologies. He welcomes the fact that this programme intends to focus on the development of new technologies and on the elaboration of concrete actions to enhance the effectiveness of the protection of children. |
| --- | --- |

36.

The EDPS supports the proposal for a multiannual programme to protect children using the Internet and other communication technologies. He welcomes the fact that this programme intends to focus on the development of new technologies and on the elaboration of concrete actions to enhance the effectiveness of the protection of children.

| 37. | The EDPS recalls that the protection of personal data is an essential prerequisite to the safety of children online. Misuse of children's personal information must be prevented, using the orientations proposed in the programme, and especially the following:






  — | ensuring awareness of children and other stakeholders like parents and educators, |
| --- | --- | --- |

37.

The EDPS recalls that the protection of personal data is an essential prerequisite to the safety of children online. Misuse of children's personal information must be prevented, using the orientations proposed in the programme, and especially the following:

—

ensuring awareness of children and other stakeholders like parents and educators,

| — | promoting the development of best practice by the industry, |
| --- | --- |

—

promoting the development of best practice by the industry,

| — | promoting the development of privacy compliant technological tools, |
| --- | --- |

—

promoting the development of privacy compliant technological tools,

| — | favouring the exchange of good practice and practical experience amongst relevant authorities, including data protection authorities. |
| --- | --- |

—

favouring the exchange of good practice and practical experience amongst relevant authorities, including data protection authorities.

| 38. | These actions should be developed without overlooking the fact that the protection of children takes place within an environment where the rights of others might be at stake. Any initiative of collecting, blocking or reporting information should only be taken in the respect of the fundamental rights of all individuals involved and in compliance with the data protection legal framework. In particular, the EDPS recalls that the surveillance of telecommunication networks, where necessary in specific circumstances, should be the task of law enforcement authorities. |
| --- | --- |

38.

These actions should be developed without overlooking the fact that the protection of children takes place within an environment where the rights of others might be at stake. Any initiative of collecting, blocking or reporting information should only be taken in the respect of the fundamental rights of all individuals involved and in compliance with the data protection legal framework. In particular, the EDPS recalls that the surveillance of telecommunication networks, where necessary in specific circumstances, should be the task of law enforcement authorities.

| 39. | The EDPS notes that this programme constitutes a general framework for further concrete actions. He considers that some observations made in this opinion are a first step and could be developed in a practical way, by reference to the projects still to be put in place, in line with the orientations of the programme. He recommends that data protection authorities be closely involved when it comes to the definition of these practical projects. He also refers to the activities of the Article 29 Working Party on the subject, and in particular to the present work of the Working Party on social networks (23). |
| --- | --- |

39.

The EDPS notes that this programme constitutes a general framework for further concrete actions. He considers that some observations made in this opinion are a first step and could be developed in a practical way, by reference to the projects still to be put in place, in line with the orientations of the programme. He recommends that data protection authorities be closely involved when it comes to the definition of these practical projects. He also refers to the activities of the Article 29 Working Party on the subject, and in particular to the present work of the Working Party on social networks (23).

Done at Brussels, 23 June 2008.

Peter HUSTINX

European Data Protection Supervisor

---

(1)  OJ L 281, 23.11.1995, p. 31.

1

(2)  OJ L 8, 12.1.2001, p. 1.

2

(3)  Some references to privacy can be found in the Impact Assessment (3.2. Specific risks: disclosure of personal information; 3.3. Target groups; 5.2. Analysis of the impact of the policy options) but they are not significantly developed.

3

(4)  Explanatory Memorandum, 2.1. The legislative context; Summary of the Impact Assessment, 1.2. State of play: legislation.

4

(5)

5

| — | Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1), |
| --- | --- |

—

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1),

| — | Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37), |
| --- | --- |

—

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37),

| — | 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 L 281, 23.11.1995, p. 31). |
| --- | --- |

—

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 L 281, 23.11.1995, p. 31).

(6)  Declaration adopted by the Council of Ministers on 20 February 2008 at the 1018th meeting of the Ministers' Deputies, available at: wcd.coe.int/ViewDoc.jsp?Ref=Decl(20.02.2008)&Ver=0001

6

(7)  Annex 1, Actions, point 3.

7

(8)  Annex 1, Actions, point 1.

8

(9)  See ‘www.ico.gov.uk/youngpeople’.

9

(10)  See ‘www.dubestemmer.no’.

10

(11)  See ‘dadus.cnpd.pt/’.

11

(12)  Annex 1 of the proposal.

12

(13)  See e.g. the website put in place by the Belgian authorities for these purposes: www.ecops.be

13

(14)  See the Belgian Law on Data Protection of 8 December 1992, Article 3(6) related to the processing of data by the Centre for the reporting of missing or sexually abused children.

14

(15)  Annex 1, Actions, point 1.

15

(16)  Impact assessment, point 3.1.

16

(17)  2006 EDPS annual report part 3.5.1 Technological developments.

17

(18)  Impact assessment, point 5.2.

18

(19)  In that sense, filters would be meant to be initialised by parents, and could be de-activated, so that the adult remains in full control of the filtering effect.

19

(20)  Recital 8 of the preamble; Annex 1, point 1.4; Summary of the impact assessment, point 3.1.

20

(21)  Working document of the Article 29 Working Party on data protection issues related to intellectual property rights, WP 104.

21

(22)  European Parliament resolution of 10 April 2008 on cultural industries in Europe (2007/2153(INI)), point 23.

22

(23)  See the Working Document 1/2008 of 18 February 2008 on the protection of Children's Personal Data, WP 147, and for a more general view, the work programme 2008-2009 of the Working Party including social networks, available at:

23

http://ec.europa.eu/justice_home/fsj/privacy/workinggroup/wpdocs/2008_en.htm

---

| 7.1.2009 | EN | Official Journal of the European Union | C 2/7 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/7

---

Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents

(2009/C 2/03)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Community, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,

Having regard to 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 (1),

Having regard to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), and in particular its Article 41,

Having regard to the request for an opinion in accordance with Article 28(2) of Regulation (EC) No 45/2001 received on 15 May 2008 from the European Commission,

HAS ADOPTED THE FOLLOWING OPINION:

I.   INTRODUCTION

The proposal

| 1. | On 30 April 2008, the Commission adopted a Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (hereinafter: ‘the proposal’) (3). The proposal was sent by the Commission to the EDPS for consultation, in accordance with Article 28(2) of Regulation (EC) No 45/2001 and was received by the EDPS on 15 May 2008. |
| --- | --- |

1.

On 30 April 2008, the Commission adopted a Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (hereinafter: ‘the proposal’) (3). The proposal was sent by the Commission to the EDPS for consultation, in accordance with Article 28(2) of Regulation (EC) No 45/2001 and was received by the EDPS on 15 May 2008.

| 2. | The aim of the proposal is to make a number of substantive changes to Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (4). In its Explanatory Memorandum, the Commission gives reasons for reviewing the existing Regulation. It mentions the ‘European Transparency Initiative’ (5) which calls for more transparency, the Regulation applying the Århus Convention (6) to the institutions and bodies of the European Community, which interacts with Regulation (EC) No 1049/2001 as regards access to documents containing environmental information, as well as the case law of the Court of Justice and complaints settled by the European Ombudsman, relating to Regulation (EC) No 1049/2001. |
| --- | --- |

2.

The aim of the proposal is to make a number of substantive changes to Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (4). In its Explanatory Memorandum, the Commission gives reasons for reviewing the existing Regulation. It mentions the ‘European Transparency Initiative’ (5) which calls for more transparency, the Regulation applying the Århus Convention (6) to the institutions and bodies of the European Community, which interacts with Regulation (EC) No 1049/2001 as regards access to documents containing environmental information, as well as the case law of the Court of Justice and complaints settled by the European Ombudsman, relating to Regulation (EC) No 1049/2001.

Consultation of the EDPS

| 3. | The EDPS welcomes that he is consulted and recommends that reference to this consultation be made in the recitals of the proposal, in a similar way as included in a number of other legislative texts on which the EDPS has been consulted, in accordance with Regulation (EC) No 45/2001. |
| --- | --- |

3.

The EDPS welcomes that he is consulted and recommends that reference to this consultation be made in the recitals of the proposal, in a similar way as included in a number of other legislative texts on which the EDPS has been consulted, in accordance with Regulation (EC) No 45/2001.

| 4. | The attention of the EDPS has in particular been triggered by the fact that the proposal contains a provision dealing with the delicate relation between access to documents and the rights to privacy and to the protection of personal data, namely the proposed Article 4(5). The analysis of this provision will be the central part of this opinion. |
| --- | --- |

4.

The attention of the EDPS has in particular been triggered by the fact that the proposal contains a provision dealing with the delicate relation between access to documents and the rights to privacy and to the protection of personal data, namely the proposed Article 4(5). The analysis of this provision will be the central part of this opinion.

| 5. | However, the opinion will not be limited to this analysis. The analysis will be preceded by observations on the context of the proposal and its scope. After the analysis of Article 4(5), other issues will be addressed, such as the right of access to personal data under Regulation (EC) No 45/2001. |
| --- | --- |

5.

However, the opinion will not be limited to this analysis. The analysis will be preceded by observations on the context of the proposal and its scope. After the analysis of Article 4(5), other issues will be addressed, such as the right of access to personal data under Regulation (EC) No 45/2001.

II.   CONTEXT AND SCOPE OF THE PROPOSAL

The context

| 6. | The proposal was preceded by a public consultation. In the Explanatory Memorandum, the Commission mentions that it has taken into account the views of the majority of the respondents in this public consultation. |
| --- | --- |

6.

The proposal was preceded by a public consultation. In the Explanatory Memorandum, the Commission mentions that it has taken into account the views of the majority of the respondents in this public consultation.

| 7. | After the adoption of the proposal, on 2 June 2008, a public hearing took place in the European Parliament, organised by the LIBE-Committee. This was the occasion for a number of stakeholders to express an opinion on the proposal. The EDPS also made some provisional comments. On that occasion, the representatives of the European Commission — in a reaction to the different comments — emphasised that the proposal reflected the current state of thinking, but that the Commission was open to discuss the text and consider input for the improvement of the proposal, not excluding alternatives. |
| --- | --- |

7.

After the adoption of the proposal, on 2 June 2008, a public hearing took place in the European Parliament, organised by the LIBE-Committee. This was the occasion for a number of stakeholders to express an opinion on the proposal. The EDPS also made some provisional comments. On that occasion, the representatives of the European Commission — in a reaction to the different comments — emphasised that the proposal reflected the current state of thinking, but that the Commission was open to discuss the text and consider input for the improvement of the proposal, not excluding alternatives.

| 8. | The EDPS sees this open approach as an opportunity and envisages enriching the discussion with an alternative text for the proposed Article 4(5). Moreover, such an open approach perfectly fits in the notion of transparency: promoting good governance and ensuring participation of civil society (see for instance Article 15(1)) of the Treaty on the Functioning of the European Union). |
| --- | --- |

8.

The EDPS sees this open approach as an opportunity and envisages enriching the discussion with an alternative text for the proposed Article 4(5). Moreover, such an open approach perfectly fits in the notion of transparency: promoting good governance and ensuring participation of civil society (see for instance Article 15(1)) of the Treaty on the Functioning of the European Union).

| 9. | Despite the uncertainty about the fate of the Lisbon Treaty at the moment of issuing this opinion, the perspective of the legal framework under the new Treaty should not be ignored. |
| --- | --- |

9.

Despite the uncertainty about the fate of the Lisbon Treaty at the moment of issuing this opinion, the perspective of the legal framework under the new Treaty should not be ignored.

| 10. | The proposal is based on Article 255 of the EC Treaty that grants a right of access to European Parliament, Council and Commission documents. When the Lisbon Treaty enters into force, this Article will be replaced by Article 15 of the Treaty on the European Union. Article 15 extends the right of access to documents of all Union institutions, bodies, offices and agencies. It modifies Article 255 inter alia by introducing a general principle of openness (Article 15(1)) and by obliging the European Parliament and the Council to ensure publication of documents relating to the legislative procedures. |
| --- | --- |

10.

The proposal is based on Article 255 of the EC Treaty that grants a right of access to European Parliament, Council and Commission documents. When the Lisbon Treaty enters into force, this Article will be replaced by Article 15 of the Treaty on the European Union. Article 15 extends the right of access to documents of all Union institutions, bodies, offices and agencies. It modifies Article 255 inter alia by introducing a general principle of openness (Article 15(1)) and by obliging the European Parliament and the Council to ensure publication of documents relating to the legislative procedures.

The scope: the notion of documents

| 11. | The proposal applies to all documents within the definition of the proposed Article 3(a). This definition reads as follows: ‘“document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution; data contained in electronic storage, processing and retrieval systems are documents if they can be extracted in the form of a printout or electronic-format copy using the available tools for the exploitation of the system’. |
| --- | --- |

11.

The proposal applies to all documents within the definition of the proposed Article 3(a). This definition reads as follows: ‘“document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution; data contained in electronic storage, processing and retrieval systems are documents if they can be extracted in the form of a printout or electronic-format copy using the available tools for the exploitation of the system’.

| 12. | The reason for fully quoting this definition is that it raises a few essential questions as to the scope of the Regulation:






  — | the object of the right to access: is it a piece of paper (or its electronic equivalent) or does it have a broader meaning: information about the activities of EU institutions or the information held by them, disregarding the existence of a document? |
| --- | --- | --- |

12.

The reason for fully quoting this definition is that it raises a few essential questions as to the scope of the Regulation:

—

the object of the right to access: is it a piece of paper (or its electronic equivalent) or does it have a broader meaning: information about the activities of EU institutions or the information held by them, disregarding the existence of a document?

| — | what is the meaning of the limitation of the scope of application of the Regulation to documents that have been formally transmitted to one or more recipients or otherwise registered, or received by an institution? |
| --- | --- |

—

what is the meaning of the limitation of the scope of application of the Regulation to documents that have been formally transmitted to one or more recipients or otherwise registered, or received by an institution?

| — | the difference in scope between Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001. |
| --- | --- |

—

the difference in scope between Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001.

| 13. | The point of departure of the regulation is access to documents, not access to information as such. This is the notion as laid down in Article 255 EC. The Lisbon Treaty would not lead to a substantive change. The new Treaty just clarifies that the medium of the documents is not decisive. However, as the Court of First Instance stated in the WWF case, ‘it would be contrary to the requirement of transparency which underlies Regulation (EC) No 1049/2001 for institutions to rely on the fact that documents do not exist in order to avoid the application of that regulation’ (7). Therefore, according to the Court, the institutions concerned must, in so far as possible and in a non-arbitrary and predictable manner, draw up and retain documentation relating to their activities. Otherwise, the right of access to documents may not be exercised effectively. |
| --- | --- |

13.

The point of departure of the regulation is access to documents, not access to information as such. This is the notion as laid down in Article 255 EC. The Lisbon Treaty would not lead to a substantive change. The new Treaty just clarifies that the medium of the documents is not decisive. However, as the Court of First Instance stated in the WWF case, ‘it would be contrary to the requirement of transparency which underlies Regulation (EC) No 1049/2001 for institutions to rely on the fact that documents do not exist in order to avoid the application of that regulation’ (7). Therefore, according to the Court, the institutions concerned must, in so far as possible and in a non-arbitrary and predictable manner, draw up and retain documentation relating to their activities. Otherwise, the right of access to documents may not be exercised effectively.

| 14. | Against this background, on the one hand the proposal explicitly includes in the concept of document ‘data contained in electronic storage, processing and retrieval systems’, when they can be extracted. The EDPS notes that this definition comes close to the definition of processing of personal data laid down in Regulation (EC) No 45/2001 and extends the possible overlap with Regulation (EC) No 1049/2001. Requests for access to mere lists of names and/or other personal data are likely to increase — also in the light of the development of the tools available to exploit electronic systems — and it is therefore even more important to address the possible areas of tension between the Regulations as well as the relations with other available instruments, such as the right of access to personal data (see below, points 64-67). |
| --- | --- |

14.

Against this background, on the one hand the proposal explicitly includes in the concept of document ‘data contained in electronic storage, processing and retrieval systems’, when they can be extracted. The EDPS notes that this definition comes close to the definition of processing of personal data laid down in Regulation (EC) No 45/2001 and extends the possible overlap with Regulation (EC) No 1049/2001. Requests for access to mere lists of names and/or other personal data are likely to increase — also in the light of the development of the tools available to exploit electronic systems — and it is therefore even more important to address the possible areas of tension between the Regulations as well as the relations with other available instruments, such as the right of access to personal data (see below, points 64-67).

| 15. | On the other hand, the Commission proposes that a document only ‘exists’ if it has been sent to recipients or circulated within the institution or otherwise registered. The EDPS notes that it is far from being clear to which extent this formulation would restrict the scope of application of the Regulation and would therefore run counter to the principles of openness and public participation. Unfortunately, the explanatory memorandum provides little guidance in this regard. Therefore, the EDPS suggests that the concept of ‘document’ should be clarified in the Commission proposal, in the provision itself or in a recital. |
| --- | --- |

15.

On the other hand, the Commission proposes that a document only ‘exists’ if it has been sent to recipients or circulated within the institution or otherwise registered. The EDPS notes that it is far from being clear to which extent this formulation would restrict the scope of application of the Regulation and would therefore run counter to the principles of openness and public participation. Unfortunately, the explanatory memorandum provides little guidance in this regard. Therefore, the EDPS suggests that the concept of ‘document’ should be clarified in the Commission proposal, in the provision itself or in a recital.

| 16. | Without entering into a detailed analysis of possible interpretations of these crucial provisions, the EDPS points out that, in spite of the changes in the concept of ‘document’ proposed by the Commission, there is still a difference in scope between Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001. The latter Regulation only applies, according to its Article 3(2), to ‘the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system’. Regulation (EC) No 1049/2001 applies to all documents held by an institution. |
| --- | --- |

16.

Without entering into a detailed analysis of possible interpretations of these crucial provisions, the EDPS points out that, in spite of the changes in the concept of ‘document’ proposed by the Commission, there is still a difference in scope between Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001. The latter Regulation only applies, according to its Article 3(2), to ‘the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system’. Regulation (EC) No 1049/2001 applies to all documents held by an institution.

| 17. | Although the manual processing of personal data becomes less important, it is necessary to consider that within the institutions and bodies of the European Union paper files are still used. If such paper files do not have a structured nature, they may not be fully covered by Regulation (EC) No 45/2001. However, such documents may contain personal data and it must be ensured that also in those cases the exception of Article 4(5) can be applied. |
| --- | --- |

17.

Although the manual processing of personal data becomes less important, it is necessary to consider that within the institutions and bodies of the European Union paper files are still used. If such paper files do not have a structured nature, they may not be fully covered by Regulation (EC) No 45/2001. However, such documents may contain personal data and it must be ensured that also in those cases the exception of Article 4(5) can be applied.

| 18. | This difference in scope should be duly taken into account in order to ensure that the legitimate interest of the data subject is considered also in case of paper files. This is an additional reason why the mere ‘referral’ to Regulation (EC) No 45/2001 — as explained below (see points 38-40) — is not satisfactory, since it would not provide guidance for those cases in which personal data contained in documents fall outside the scope of application of Regulation (EC) No 45/2001. |
| --- | --- |

18.

This difference in scope should be duly taken into account in order to ensure that the legitimate interest of the data subject is considered also in case of paper files. This is an additional reason why the mere ‘referral’ to Regulation (EC) No 45/2001 — as explained below (see points 38-40) — is not satisfactory, since it would not provide guidance for those cases in which personal data contained in documents fall outside the scope of application of Regulation (EC) No 45/2001.

III.   ARTICLE 4(5)

General appraisal of the provision

| 19. | The proposed Article 4(5) deals with the relation between access to documents and the rights to privacy and the protection of personal data, and replaces the present Article 4(1)(b) that was widely criticized as being ambiguous about the precise relation between these fundamental rights. The present Article was also disputed before the Court of First Instance (8). An appeal on grounds of law is now pending before the Court of Justice (9). |
| --- | --- |

19.

The proposed Article 4(5) deals with the relation between access to documents and the rights to privacy and the protection of personal data, and replaces the present Article 4(1)(b) that was widely criticized as being ambiguous about the precise relation between these fundamental rights. The present Article was also disputed before the Court of First Instance (8). An appeal on grounds of law is now pending before the Court of Justice (9).

| 20. | In this perspective, there are good reasons for replacing Article 4(1)(b). The EDPS understands that the Commission used this occasion to propose a change of Article 4(1)(b). However, the EDPS does not support the proposed provision as drafted by the Commission. |
| --- | --- |

20.

In this perspective, there are good reasons for replacing Article 4(1)(b). The EDPS understands that the Commission used this occasion to propose a change of Article 4(1)(b). However, the EDPS does not support the proposed provision as drafted by the Commission.

| 21. | In the first place, the EDPS is not convinced that this is the appropriate moment for change, while an appeal is pending before the Court of Justice. In this appeal fundamental issues are at stake. |
| --- | --- |

21.

In the first place, the EDPS is not convinced that this is the appropriate moment for change, while an appeal is pending before the Court of Justice. In this appeal fundamental issues are at stake.

| 22. | In the second place, more importantly: the proposal does not provide the appropriate solution. It consists of a general rule (the second sentence of Article 4(5) that:






  — | does not reflect the judgement of the Court of First Instance in Bavarian Lager, |
| --- | --- | --- |

22.

In the second place, more importantly: the proposal does not provide the appropriate solution. It consists of a general rule (the second sentence of Article 4(5) that:

—

does not reflect the judgement of the Court of First Instance in Bavarian Lager,

| — | does not do justice to the need for a right balance between the fundamental rights at stake, |
| --- | --- |

—

does not do justice to the need for a right balance between the fundamental rights at stake,

| — | is not viable since it refers to EC legislation on data protection that does not provide a clear answer when a decision on public access must be made. |
| --- | --- |

—

is not viable since it refers to EC legislation on data protection that does not provide a clear answer when a decision on public access must be made.

Moreover, it consists of a specific rule (the first sentence of Article 4(5)) that is in principle well defined, but with a scope that is far too limited.

This is not the appropriate moment for change

| 23. | The EDPS is fully aware of the possible interactions — and possible tensions — between access to documents and the rights to privacy and the protection of personal data. In his Background Paper on public access to documents and data protection, published in July 2005, he made a careful analysis of the issues arising from the simultaneous application of Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001. |
| --- | --- |

23.

The EDPS is fully aware of the possible interactions — and possible tensions — between access to documents and the rights to privacy and the protection of personal data. In his Background Paper on public access to documents and data protection, published in July 2005, he made a careful analysis of the issues arising from the simultaneous application of Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001.

| 24. | In particular, the EDPS highlighted that public access on the one hand and privacy and data protection on the other hand are fundamental rights which are laid down in different legal instruments at European level and represent key elements of ‘good governance’. There is no hierarchical order between these rights and in certain cases the simultaneous application of the Regulations does not lead to an obvious answer. According to the EDPS background paper, the solution can be found in the privacy exception laid down by the present Article 4(1)(b) of Regulation (EC) No 1049/2001. As the background paper explains, this provision imposes three conditions, all of which have to be fulfilled for the exception to public access to apply:






  — | the privacy of the data subject must be at stake, |
| --- | --- | --- |

24.

In particular, the EDPS highlighted that public access on the one hand and privacy and data protection on the other hand are fundamental rights which are laid down in different legal instruments at European level and represent key elements of ‘good governance’. There is no hierarchical order between these rights and in certain cases the simultaneous application of the Regulations does not lead to an obvious answer. According to the EDPS background paper, the solution can be found in the privacy exception laid down by the present Article 4(1)(b) of Regulation (EC) No 1049/2001. As the background paper explains, this provision imposes three conditions, all of which have to be fulfilled for the exception to public access to apply:

—

the privacy of the data subject must be at stake,

| — | public access must substantially affect the data subject, |
| --- | --- |

—

public access must substantially affect the data subject,

| — | public access is not allowed by the data protection legislation. |
| --- | --- |

—

public access is not allowed by the data protection legislation.

| 25. | The main lines of the EDPS analysis were confirmed by the Court of First Instance in the Bavarian Lager case, in which the Court of First Instance was called to interpret the relationship between Regulation (EC) No 45/2001 and Regulation (EC) No 1049/2001, and the exception regarding the protection of personal data contained in the latter Regulation. The main elements of this judgement will be used to substantiate the present opinion. The Commission decided to lodge an appeal against the judgement of the CFI; the case is now pending before the Court of Justice. In this case before the Court of Justice, the EDPS takes the position that the judgement of the CFI should be upheld. |
| --- | --- |

25.

The main lines of the EDPS analysis were confirmed by the Court of First Instance in the Bavarian Lager case, in which the Court of First Instance was called to interpret the relationship between Regulation (EC) No 45/2001 and Regulation (EC) No 1049/2001, and the exception regarding the protection of personal data contained in the latter Regulation. The main elements of this judgement will be used to substantiate the present opinion. The Commission decided to lodge an appeal against the judgement of the CFI; the case is now pending before the Court of Justice. In this case before the Court of Justice, the EDPS takes the position that the judgement of the CFI should be upheld.

| 26. | It is therefore questionable whether this is the appropriate moment to amend the provision on the relation between access to documents and protection of personal data, now that the case is pending before the Court of Justice. This case is not only about the interpretation of the present wording of Article 4(1)(b) (10) but also raises more fundamental questions relating to the balance between the fundamental rights at stake (11). Under those circumstances, it would be better to wait for the judgement and not adopt the Regulation before. |
| --- | --- |

26.

It is therefore questionable whether this is the appropriate moment to amend the provision on the relation between access to documents and protection of personal data, now that the case is pending before the Court of Justice. This case is not only about the interpretation of the present wording of Article 4(1)(b) (10) but also raises more fundamental questions relating to the balance between the fundamental rights at stake (11). Under those circumstances, it would be better to wait for the judgement and not adopt the Regulation before.

The amendment does not reflect the judgement of the Court of First Instance

| 27. | The preference to wait for the judgement of the Court of Justice is also motivated by the substance of the proposed provision. The Commission claims, in its explanatory memorandum, that the proposed amendments are also aimed at addressing the judgement of the CFI in the Bavarian Lager case. However, the amendment does not reflect the position of the CFI. |
| --- | --- |

27.

The preference to wait for the judgement of the Court of Justice is also motivated by the substance of the proposed provision. The Commission claims, in its explanatory memorandum, that the proposed amendments are also aimed at addressing the judgement of the CFI in the Bavarian Lager case. However, the amendment does not reflect the position of the CFI.

| 28. | In particular, the EDPS notes that the Commission proposal deletes any reference to the harm to ‘the privacy and the integrity’ of the individual as a necessary threshold to justify a refusal to access documents containing personal data. In this way, the Commission proposal strongly alters the balance so far reached by the legislator, as interpreted by the CFI. The proposal shifts the focus of access to documents containing personal data from Regulation (EC) No 1049/2001 to Regulation (EC) No 45/2001. |
| --- | --- |

28.

In particular, the EDPS notes that the Commission proposal deletes any reference to the harm to ‘the privacy and the integrity’ of the individual as a necessary threshold to justify a refusal to access documents containing personal data. In this way, the Commission proposal strongly alters the balance so far reached by the legislator, as interpreted by the CFI. The proposal shifts the focus of access to documents containing personal data from Regulation (EC) No 1049/2001 to Regulation (EC) No 45/2001.

| 29. | It is important, at least as long as the judgement of the CFI remains the point of reference in this delicate area, that the proposed amendments genuinely take into account this judgement and do not substantially depart from it. The judgement of the Court of First Instance not only gives an interpretation of some relevant provisions of both Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001, but it also strikes a right balance between the rights protected by these two Regulations. The EDPS underlines the importance for the legislator to preserve this balance, while possibly clarifying the relevant provisions. |
| --- | --- |

29.

It is important, at least as long as the judgement of the CFI remains the point of reference in this delicate area, that the proposed amendments genuinely take into account this judgement and do not substantially depart from it. The judgement of the Court of First Instance not only gives an interpretation of some relevant provisions of both Regulation (EC) No 1049/2001 and Regulation (EC) No 45/2001, but it also strikes a right balance between the rights protected by these two Regulations. The EDPS underlines the importance for the legislator to preserve this balance, while possibly clarifying the relevant provisions.

| 30. | In the following paragraphs of this opinion, the EDPS will further clarify why — contrary to the point of view expressed by the Commission — the proposed Article 4(5) does not reflect the case law of the Court. |
| --- | --- |

30.

In the following paragraphs of this opinion, the EDPS will further clarify why — contrary to the point of view expressed by the Commission — the proposed Article 4(5) does not reflect the case law of the Court.

The second sentence of Article 4(5) does not do justice to the need for a right balance

| 31. | The second sentence of Article 4(5) states: ‘Other personal data shall be disclosed in accordance with the conditions regarding lawful processing of such data laid down in EC legislation on the protection of individuals with regard to the processing of personal data’. |
| --- | --- |

31.

The second sentence of Article 4(5) states: ‘Other personal data shall be disclosed in accordance with the conditions regarding lawful processing of such data laid down in EC legislation on the protection of individuals with regard to the processing of personal data’.

| 32. | This provision implies that the authority deciding on a request for public access needs to base its decision not on Regulation (EC) No 1049/2001, but on Regulation (EC) No 45/2001. The provision thus contains the so called ‘referral theory’ (12) as defended by the Commission before the Court of First Instance in Bavarian Lager. |
| --- | --- |

32.

This provision implies that the authority deciding on a request for public access needs to base its decision not on Regulation (EC) No 1049/2001, but on Regulation (EC) No 45/2001. The provision thus contains the so called ‘referral theory’ (12) as defended by the Commission before the Court of First Instance in Bavarian Lager.

| 33. | This theory was rejected by that Court on the basis of the present wording of Article 4(1)(b) of Regulation (EC) No 1049/2001. The Court based this rejection on this wording: disclosure can only be denied if the privacy or the integrity of a person would be undermined. However, this reasoning of the Court is not just a textual interpretation, but reflects the result of a balancing between the two fundamental rights at stake: public access and data protection. |
| --- | --- |

33.

This theory was rejected by that Court on the basis of the present wording of Article 4(1)(b) of Regulation (EC) No 1049/2001. The Court based this rejection on this wording: disclosure can only be denied if the privacy or the integrity of a person would be undermined. However, this reasoning of the Court is not just a textual interpretation, but reflects the result of a balancing between the two fundamental rights at stake: public access and data protection.

| 34. | This need for a right balance between these fundamental rights — or a ‘balanced approach’ as it is usually defined — has also been emphasised in a number of documents dealing with the collision between those two rights. This was for example the case in Opinion 5/2001 of the Article 29 Working Party (13) and in the EDPS Background Paper. A similar approach is also taken in the Draft Convention of the Council of Europe on Access to Official Documents, which establishes that contracting parties may limit the right of access to official documents to the aim of protecting, inter alia, ‘privacy and other legitimate private interests’ (14). |
| --- | --- |

34.

This need for a right balance between these fundamental rights — or a ‘balanced approach’ as it is usually defined — has also been emphasised in a number of documents dealing with the collision between those two rights. This was for example the case in Opinion 5/2001 of the Article 29 Working Party (13) and in the EDPS Background Paper. A similar approach is also taken in the Draft Convention of the Council of Europe on Access to Official Documents, which establishes that contracting parties may limit the right of access to official documents to the aim of protecting, inter alia, ‘privacy and other legitimate private interests’ (14).

| 35. | On the one hand, the right to public access must be respected, which means in any event that:






  — | the purpose of Regulation (EC) No 1049/2001 should be respected. The Regulation should give the fullest possible effect to the right to public access (15). This means that, in principle, all documents of the Institutions should be accessible by the public (16). As a consequence, exceptions to the right must be construed and applied restrictively so as not to defeat the general principle enshrined in the Regulation (17), |
| --- | --- | --- |

35.

On the one hand, the right to public access must be respected, which means in any event that:

—

the purpose of Regulation (EC) No 1049/2001 should be respected. The Regulation should give the fullest possible effect to the right to public access (15). This means that, in principle, all documents of the Institutions should be accessible by the public (16). As a consequence, exceptions to the right must be construed and applied restrictively so as not to defeat the general principle enshrined in the Regulation (17),

| — | given the nature of the right to public access, a person may not be required to justify his request and therefore does not have to demonstrate any interest in having access to the document requested (18). |
| --- | --- |

—

given the nature of the right to public access, a person may not be required to justify his request and therefore does not have to demonstrate any interest in having access to the document requested (18).

| 36. | On the other hand, the right to data protection must be respected:






  — | the protection of personal data is laid down in a system of checks and balances which does not prohibit the processing of personal data, but subjects the processing to safeguards and guarantees. The processing of personal data is allowed if the data subject gives his unambiguous consent or if the processing is necessary for other public and private interests (Article 5 of Regulation (EC) No 45/2001), |
| --- | --- | --- |

36.

On the other hand, the right to data protection must be respected:

—

the protection of personal data is laid down in a system of checks and balances which does not prohibit the processing of personal data, but subjects the processing to safeguards and guarantees. The processing of personal data is allowed if the data subject gives his unambiguous consent or if the processing is necessary for other public and private interests (Article 5 of Regulation (EC) No 45/2001),

| — | the provisions of Regulation (EC) No 45/2001 must necessarily be interpreted in the light of fundamental rights, in particular the right to privacy (19), |
| --- | --- |

—

the provisions of Regulation (EC) No 45/2001 must necessarily be interpreted in the light of fundamental rights, in particular the right to privacy (19),

| — | the processing of personal data must therefore be in accordance with the principle of proportionality and not actually and specifically undermine a legitimate interest of the data subject. |
| --- | --- |

—

the processing of personal data must therefore be in accordance with the principle of proportionality and not actually and specifically undermine a legitimate interest of the data subject.

| 37. | Such a balance can not be guaranteed by a simple referral to Regulation (EC) No 45/2001, which ‘is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their private life, in the handling of personal data’ (20). This solution may respect the right to data protection, but does not respect the right to public access. |
| --- | --- |

37.

Such a balance can not be guaranteed by a simple referral to Regulation (EC) No 45/2001, which ‘is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their private life, in the handling of personal data’ (20). This solution may respect the right to data protection, but does not respect the right to public access.

The second sentence of Article 4(5) does not offer a viable solution

| 38. | Regulation (EC) No 45/2001 does not provide a clear answer when a Community institution or body has to decide on a request for public access. In short (21), Article 5 of the Regulation allows processing of personal data if this is ‘necessary for the performance of a task carried out in the public interest’ or if this is ‘necessary for compliance with a legal obligation to which the controller is subject’. In other words, the lawfulness of the processing is not determined by the interest of data protection itself, but by the necessity of the processing for another interest (whether laid down in a legal obligation or not). This leads to the conclusion that since the necessity is not determined by Article 5 of Regulation (EC) No 45/2001 itself (nor by any other provision of this Regulation), the law designed to protect the other interest — in this case, the right to have access to documents — should give adequate guidance. |
| --- | --- |

38.

Regulation (EC) No 45/2001 does not provide a clear answer when a Community institution or body has to decide on a request for public access. In short (21), Article 5 of the Regulation allows processing of personal data if this is ‘necessary for the performance of a task carried out in the public interest’ or if this is ‘necessary for compliance with a legal obligation to which the controller is subject’. In other words, the lawfulness of the processing is not determined by the interest of data protection itself, but by the necessity of the processing for another interest (whether laid down in a legal obligation or not). This leads to the conclusion that since the necessity is not determined by Article 5 of Regulation (EC) No 45/2001 itself (nor by any other provision of this Regulation), the law designed to protect the other interest — in this case, the right to have access to documents — should give adequate guidance.

| 39. | However, according to the proposal, all the requests for access to documents containing personal data — unless the specific provision of the first sentence of Article 4(5) applies — should be assessed on the basis of a reference to Regulation (EC) No 45/2001. Such a reference would not provide for the necessary guidance in balancing the interests. This would result in an undesirable outcome (a ‘catch-22’ situation). |
| --- | --- |

39.

However, according to the proposal, all the requests for access to documents containing personal data — unless the specific provision of the first sentence of Article 4(5) applies — should be assessed on the basis of a reference to Regulation (EC) No 45/2001. Such a reference would not provide for the necessary guidance in balancing the interests. This would result in an undesirable outcome (a ‘catch-22’ situation).

| 40. | Finally, it should be noted that the reference to Regulation (EC) No 45/2001 does not solve the incompatibility between the right to public access and the obligation to prove the need to transfer of personal data, laid down by Article 8(b) of Regulation (EC) No 45/2001. As stated by the Court of First Instance in Bavarian Lager: ‘If one were to require the applicant to demonstrate the necessity of having the data transferred, as an additional condition imposed in Regulation (EC) No 45/2001, that requirement would be contrary to the objective of Regulation (EC) No 1049/2001, namely the widest possible public access to documents held by the institutions’ (22). |
| --- | --- |

40.

Finally, it should be noted that the reference to Regulation (EC) No 45/2001 does not solve the incompatibility between the right to public access and the obligation to prove the need to transfer of personal data, laid down by Article 8(b) of Regulation (EC) No 45/2001. As stated by the Court of First Instance in Bavarian Lager: ‘If one were to require the applicant to demonstrate the necessity of having the data transferred, as an additional condition imposed in Regulation (EC) No 45/2001, that requirement would be contrary to the objective of Regulation (EC) No 1049/2001, namely the widest possible public access to documents held by the institutions’ (22).

The scope of the first sentence of Article 4(5) is far too limited

| 41. | The first sentence of Article 4(5) of the proposal reads as follows: ‘Names, titles and functions of public office holders, civil servants and interest representatives in relation with their professional activities shall be disclosed unless, given the particular circumstances, disclosure would adversely affect the persons concerned’. It gives a specific rule for certain types of data, relating to a specified group of persons. |
| --- | --- |

41.

The first sentence of Article 4(5) of the proposal reads as follows: ‘Names, titles and functions of public office holders, civil servants and interest representatives in relation with their professional activities shall be disclosed unless, given the particular circumstances, disclosure would adversely affect the persons concerned’. It gives a specific rule for certain types of data, relating to a specified group of persons.

| 42. | As a first preliminary remark, the EDPS notes that there is no doubt that the first sentence of Article 4(5) respects the right to public access. In the situations addressed by this sentence, normally public access will be given to documents. In the view of the EDPS, the provision also respects the right to data protection. It covers the situation dealt with by the Court of First Instance in Bavarian Lager, as well as comparable situations. As that Court states: in those situations, disclosure of names does not lead to an interference with the private life of the persons, nor would those persons have any ground to believe that they enjoyed confidential treatment (23). |
| --- | --- |

42.

As a first preliminary remark, the EDPS notes that there is no doubt that the first sentence of Article 4(5) respects the right to public access. In the situations addressed by this sentence, normally public access will be given to documents. In the view of the EDPS, the provision also respects the right to data protection. It covers the situation dealt with by the Court of First Instance in Bavarian Lager, as well as comparable situations. As that Court states: in those situations, disclosure of names does not lead to an interference with the private life of the persons, nor would those persons have any ground to believe that they enjoyed confidential treatment (23).

| 43. | As a second preliminary remark, one can state that the provision is in principle well defined and fulfils the condition of legal certainty. The provision defines the different capacities in which the persons act and limits the personal data that can be disclosed. Irrespective of the question whether these limitations are appropriate, they are clearly drafted. They also comply with Regulation (EC) No 45/2001: the disclosure of the data constitutes lawful processing — as it is based on the legal obligation laid down in Article 4(5) — and the purpose is limited, namely granting of public access. |
| --- | --- |

43.

As a second preliminary remark, one can state that the provision is in principle well defined and fulfils the condition of legal certainty. The provision defines the different capacities in which the persons act and limits the personal data that can be disclosed. Irrespective of the question whether these limitations are appropriate, they are clearly drafted. They also comply with Regulation (EC) No 45/2001: the disclosure of the data constitutes lawful processing — as it is based on the legal obligation laid down in Article 4(5) — and the purpose is limited, namely granting of public access.

| 44. | As to the limitation of the scope ratione personae, certain data of public office holders, civil servants and interest representatives must be released. It seems that the provision merely aims at resolving the consequences of the Judgement of the Court of First Instance in Bavarian Lager. The question arises why the provision does not deal with a wider category of data subjects, in relation with their professional activities. The arguments supporting the presumption that in this relation personal data should normally be released, are for instance also valid in relation to:






  — | employees in the private sector or self employed persons, not to be characterised as interest representatives, unless there is a reason to assume that disclosure would adversely affect that person, |
| --- | --- | --- |

44.

As to the limitation of the scope ratione personae, certain data of public office holders, civil servants and interest representatives must be released. It seems that the provision merely aims at resolving the consequences of the Judgement of the Court of First Instance in Bavarian Lager. The question arises why the provision does not deal with a wider category of data subjects, in relation with their professional activities. The arguments supporting the presumption that in this relation personal data should normally be released, are for instance also valid in relation to:

—

employees in the private sector or self employed persons, not to be characterised as interest representatives, unless there is a reason to assume that disclosure would adversely affect that person,

| — | academic researchers presenting the result of their research, |
| --- | --- |

—

academic researchers presenting the result of their research,

| — | experts presenting their field of expertise in the public process, |
| --- | --- |

—

experts presenting their field of expertise in the public process,

| — | teachers and professors in the exercise of their teaching or lecturing functions. |
| --- | --- |

—

teachers and professors in the exercise of their teaching or lecturing functions.

| 45. | These examples suggest that it would have been useful to look for a wider provision, entailing data of different categories of persons, when acting in a professional capacity. |
| --- | --- |

45.

These examples suggest that it would have been useful to look for a wider provision, entailing data of different categories of persons, when acting in a professional capacity.

| 46. | A second limitation — ratione materiae — in the first sentence of Article 4(5) of the proposal, relates to the data elements. Only names, titles and functions shall be disclosed. This excludes data which reveal elements of the private situation of the person concerned, even if those data do not qualify as sensitive data as meant in Article 10 of Regulation (EC) No 45/2001. One could think about home address, telephone and e-mail, or other data — such as salaries and expenses — relating to high ranking officials or politicians. |
| --- | --- |

46.

A second limitation — ratione materiae — in the first sentence of Article 4(5) of the proposal, relates to the data elements. Only names, titles and functions shall be disclosed. This excludes data which reveal elements of the private situation of the person concerned, even if those data do not qualify as sensitive data as meant in Article 10 of Regulation (EC) No 45/2001. One could think about home address, telephone and e-mail, or other data — such as salaries and expenses — relating to high ranking officials or politicians.

| 47. | However, it also excludes data elements that have nothing to do with the private situation of the person concerned, such as the office address of the person concerned (physical and e-mail), as well as more generic information relating to the function of the person. |
| --- | --- |

47.

However, it also excludes data elements that have nothing to do with the private situation of the person concerned, such as the office address of the person concerned (physical and e-mail), as well as more generic information relating to the function of the person.

| 48. | A more fundamental problem with the approach of the proposal is that a name is seldom included in a document on its own. The name is usually connected to other data relating to the person. For example, the Bavarian Lager case was about access to minutes of a meeting. One can imagine that the minutes not only mention the names of the persons present at the meeting, but also their contribution to the discussion during the meeting. This contribution could sometimes even qualify as sensitive data as meant in Article 10 of Regulation (EC) No 45/2001, for instance if a political opinion is expressed. It is doubtful therefore whether particular data could be considered in isolation. |
| --- | --- |

48.

A more fundamental problem with the approach of the proposal is that a name is seldom included in a document on its own. The name is usually connected to other data relating to the person. For example, the Bavarian Lager case was about access to minutes of a meeting. One can imagine that the minutes not only mention the names of the persons present at the meeting, but also their contribution to the discussion during the meeting. This contribution could sometimes even qualify as sensitive data as meant in Article 10 of Regulation (EC) No 45/2001, for instance if a political opinion is expressed. It is doubtful therefore whether particular data could be considered in isolation.

IV.   AN ALTERNATIVE SOLUTION

The need for clear guidance by the legislator

| 49. | Regulation (EC) No 1049/2001 should itself give guidance to institutions and bodies that deal with requests for public access to documents containing personal data, whilst fully respecting the right balance between the two fundamental rights at stake. |
| --- | --- |

49.

Regulation (EC) No 1049/2001 should itself give guidance to institutions and bodies that deal with requests for public access to documents containing personal data, whilst fully respecting the right balance between the two fundamental rights at stake.

| 50. | According to the EDPS, a further discussion is needed about how to transpose this guidance into a specific legal provision. As the past has shown, this is an issue which includes difficult and fundamental considerations. It should be drafted as carefully as possible with input from the different stakeholders. |
| --- | --- |

50.

According to the EDPS, a further discussion is needed about how to transpose this guidance into a specific legal provision. As the past has shown, this is an issue which includes difficult and fundamental considerations. It should be drafted as carefully as possible with input from the different stakeholders.

The alternative solution

| 51. | As a contribution to the discussion, the EDPS proposes the following provision for public access to personal data:






  1. | personal data shall not be disclosed, if such disclosure would harm the privacy or the integrity of the person concerned. Such harm does not arise:






  (a) | if the data solely relate to the professional activities of the person concerned unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person; |
| --- | --- | --- | --- |

51.

As a contribution to the discussion, the EDPS proposes the following provision for public access to personal data:

1.

personal data shall not be disclosed, if such disclosure would harm the privacy or the integrity of the person concerned. Such harm does not arise:

(a)

if the data solely relate to the professional activities of the person concerned unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person;

| (b) | if the data solely relate to a public person unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person or other persons related to him or her; |
| --- | --- |

(b)

if the data solely relate to a public person unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person or other persons related to him or her;

| (c) | if the data have already been published with the consent of the person concerned; |
| --- | --- |

(c)

if the data have already been published with the consent of the person concerned;

| 2. | personal data shall nevertheless be disclosed, if an overriding public interest requires disclosure. In those cases, the institution or body shall have to specify the public interest. It shall give reasons why in the specific case the public interest outweighs the interests of the person concerned; |
| --- | --- |

2.

personal data shall nevertheless be disclosed, if an overriding public interest requires disclosure. In those cases, the institution or body shall have to specify the public interest. It shall give reasons why in the specific case the public interest outweighs the interests of the person concerned;

| 3. | where an institution or body refuses access to a document on the basis of paragraph 1, it shall consider whether partial access to this document is possible. |
| --- | --- |

3.

where an institution or body refuses access to a document on the basis of paragraph 1, it shall consider whether partial access to this document is possible.

| 52. | This provision can be explained as follows. |
| --- | --- |

52.

This provision can be explained as follows.

| 53. | The first part of paragraph 1 contains the basic rule and reflects the need for a right balance between the fundamental rights at stake. The exception to the right of public access shall only apply if disclosure would harm the privacy or the integrity of the person concerned. The provision refers to privacy (respect for private and family life as meant in Article 7 of the Charter of Fundamental Rights of the Union and Article 8 ECHR) and not to data protection (as meant in Article 8 of the Charter). |
| --- | --- |

53.

The first part of paragraph 1 contains the basic rule and reflects the need for a right balance between the fundamental rights at stake. The exception to the right of public access shall only apply if disclosure would harm the privacy or the integrity of the person concerned. The provision refers to privacy (respect for private and family life as meant in Article 7 of the Charter of Fundamental Rights of the Union and Article 8 ECHR) and not to data protection (as meant in Article 8 of the Charter).

| 54. | However, the right to protection of personal data — laid down in a system of checks and balances to protect the data subject, see also point 36 above — is fully taken into account. The provision specifies the legal obligation for the disclosure of the personal data, as foreseen in Article 5(b) of Regulation (EC) No 45/2001. |
| --- | --- |

54.

However, the right to protection of personal data — laid down in a system of checks and balances to protect the data subject, see also point 36 above — is fully taken into account. The provision specifies the legal obligation for the disclosure of the personal data, as foreseen in Article 5(b) of Regulation (EC) No 45/2001.

| 55. | It has to be noted that Regulation (EC) No 45/2001 does not prohibit the processing of personal data, in so far as this is based on a legal ground for processing under Article 5(b) of Regulation (EC) No 45/2001. The application of such a legal ground in a specific case is to be examined in the light of Article 8 ECHR and the case law of the European Court for Human Rights. In this context reference should be made to the judgement of the Court of Justice in Österreichischer Rundfunk
   (24).The introduction of ‘harm the privacy or integrity of the person concerned’ in paragraph 1 of the provision specifies that it is precisely this test that decides whether public access shall be given to personal data. |
| --- | --- |

55.

It has to be noted that Regulation (EC) No 45/2001 does not prohibit the processing of personal data, in so far as this is based on a legal ground for processing under Article 5(b) of Regulation (EC) No 45/2001. The application of such a legal ground in a specific case is to be examined in the light of Article 8 ECHR and the case law of the European Court for Human Rights. In this context reference should be made to the judgement of the Court of Justice in Österreichischer Rundfunk
   (24).The introduction of ‘harm the privacy or integrity of the person concerned’ in paragraph 1 of the provision specifies that it is precisely this test that decides whether public access shall be given to personal data.

| 56. | The term integrity was also included in the present text of Article 4(1)(b) and refers to the physical integrity of a person. It can have added value for instance in cases where disclosure of personal data could lead to a threat to the physical integrity of the person without a direct relation to his or her privacy. |
| --- | --- |

56.

The term integrity was also included in the present text of Article 4(1)(b) and refers to the physical integrity of a person. It can have added value for instance in cases where disclosure of personal data could lead to a threat to the physical integrity of the person without a direct relation to his or her privacy.

| 57. | The second part of paragraph 1 of the proposed provision aims to give guidance to the institution or body deciding on a request for public access. It distinguishes three situations where the disclosure of personal data will normally not lead to any harm to the data subject.






  — | the first situation is the one covered by the first sentence of Article 4(5) of the proposal of the Commission. It is worded in a much wider and more functional fashion, taking into account the critical observations the EDPS made on the present text. The provision recognises that also in this situation there might be a reason to assume that disclosure would adversely affect that person. In that case the Community institution or body must examine whether it is likely that this effect will occur. In other words, the presumption is access. Finally, the wording ‘a reason to assume’ (etc.) is taken from Article 8(b) of Regulation (EC) No 45/2001, |
| --- | --- | --- |

57.

The second part of paragraph 1 of the proposed provision aims to give guidance to the institution or body deciding on a request for public access. It distinguishes three situations where the disclosure of personal data will normally not lead to any harm to the data subject.

—

the first situation is the one covered by the first sentence of Article 4(5) of the proposal of the Commission. It is worded in a much wider and more functional fashion, taking into account the critical observations the EDPS made on the present text. The provision recognises that also in this situation there might be a reason to assume that disclosure would adversely affect that person. In that case the Community institution or body must examine whether it is likely that this effect will occur. In other words, the presumption is access. Finally, the wording ‘a reason to assume’ (etc.) is taken from Article 8(b) of Regulation (EC) No 45/2001,

| — | the second situation provides that an even wider access is allowed when data of public persons are involved. One could consider politicians or other persons whose functions or behaviour normally justify a wider access by the public based on its right to know. This is again subject to the restriction that the conclusion may be different in a specific case. In this situation a possible adverse effect to relatives should also be taken into account, |
| --- | --- |

—

the second situation provides that an even wider access is allowed when data of public persons are involved. One could consider politicians or other persons whose functions or behaviour normally justify a wider access by the public based on its right to know. This is again subject to the restriction that the conclusion may be different in a specific case. In this situation a possible adverse effect to relatives should also be taken into account,

| — | the third situation relates to data that are already in the public sphere, with consent of the data subject. One can for instance imagine that personal data have been published on a website or a blog. |
| --- | --- |

—

the third situation relates to data that are already in the public sphere, with consent of the data subject. One can for instance imagine that personal data have been published on a website or a blog.

| 58. | Paragraph 2 recognises the fact that there can be an overriding interest requiring public access. Certain data can be indispensable for the public to develop an informed opinion on the legislative process or the functioning of the European institutions more in general. One can for instance think about the (financial) relations between an institution and certain lobby groups. Since this paragraph contains an exception to an exception, additional safeguards are included. On a case by case basis, the institution or body must specify the application of the provision. |
| --- | --- |

58.

Paragraph 2 recognises the fact that there can be an overriding interest requiring public access. Certain data can be indispensable for the public to develop an informed opinion on the legislative process or the functioning of the European institutions more in general. One can for instance think about the (financial) relations between an institution and certain lobby groups. Since this paragraph contains an exception to an exception, additional safeguards are included. On a case by case basis, the institution or body must specify the application of the provision.

| 59. | Paragraph 3 obliges the institution or body to consider partial access — for instance by blanking out names in documents — as an additional instrument to ensure a right balance between the fundamental rights at stake, which should only be used if there is a ground for refusal. |
| --- | --- |

59.

Paragraph 3 obliges the institution or body to consider partial access — for instance by blanking out names in documents — as an additional instrument to ensure a right balance between the fundamental rights at stake, which should only be used if there is a ground for refusal.

| 60. | Finally, the EDPS underlines that this solution would avoid the ‘catch-22’ situation as mentioned above in point 39. |
| --- | --- |

60.

Finally, the EDPS underlines that this solution would avoid the ‘catch-22’ situation as mentioned above in point 39.

V.   SHOULD REGULATION (EC) No 45/2001 BE CHANGED?

| 61. | It follows from the Judgement of the Court of First Instance in Bavarian Lager that the need for clarification of the relation between public access and data protection is also urgent because of the different interpretations that can be given in this context to Article 8(b) of Regulation (EC) No 45/2001. The controversy, inter alia in the Bavarian Lager case before the Court of First Instance, related to the meaning of ‘establishes the necessity of having the data transferred’ in the context of public access. If one takes this clause literally, it would mean that the applicant for a document under Regulation (EC) No 1049/2001 would have to establish a convincing reason for requiring a document, which would be contrary to one of the objectives of the public access Regulation, namely the widest possible access to documents held by institutions (25). In order to solve this problem, the Court of First Instance decided that when personal data are transferred in order to give effect to the right of access to documents, the applicant does not need to prove the necessity of disclosure. Equally, it stated that a transfer of data that does not fall under the exception of Article 4(1)(b) can not prejudice the data subject's legitimate interests (26). |
| --- | --- |

61.

It follows from the Judgement of the Court of First Instance in Bavarian Lager that the need for clarification of the relation between public access and data protection is also urgent because of the different interpretations that can be given in this context to Article 8(b) of Regulation (EC) No 45/2001. The controversy, inter alia in the Bavarian Lager case before the Court of First Instance, related to the meaning of ‘establishes the necessity of having the data transferred’ in the context of public access. If one takes this clause literally, it would mean that the applicant for a document under Regulation (EC) No 1049/2001 would have to establish a convincing reason for requiring a document, which would be contrary to one of the objectives of the public access Regulation, namely the widest possible access to documents held by institutions (25). In order to solve this problem, the Court of First Instance decided that when personal data are transferred in order to give effect to the right of access to documents, the applicant does not need to prove the necessity of disclosure. Equally, it stated that a transfer of data that does not fall under the exception of Article 4(1)(b) can not prejudice the data subject's legitimate interests (26).

| 62. | This solution was needed in order to reconcile both Regulations in a satisfactory way, but it is challenged by the Commission in its appeal before the Court of Justice. The Commission states that ‘no provision of either Regulation (EC) No 45/2001 or Regulation (EC) No 1049/2001 requires or permits this provision (Article 8(b)) to be disabled in order to permit a norm under Regulation (EC) No 1049/2001 to have effect’ (27). |
| --- | --- |

62.

This solution was needed in order to reconcile both Regulations in a satisfactory way, but it is challenged by the Commission in its appeal before the Court of Justice. The Commission states that ‘no provision of either Regulation (EC) No 45/2001 or Regulation (EC) No 1049/2001 requires or permits this provision (Article 8(b)) to be disabled in order to permit a norm under Regulation (EC) No 1049/2001 to have effect’ (27).

| 63. | According the EDPS this tension could best be solved by the introduction of a recital in the amended Regulation (EC) No 1049/2001, codifying the decision of the Court of First Instance. Such a recital could read as follows: ‘Where personal data are transferred in order to give effect to the right of access to documents, the applicant does not need to prove the necessity of disclosure for the purpose of Article 8(b) of Regulation (EC) No 45/2001’. |
| --- | --- |

63.

According the EDPS this tension could best be solved by the introduction of a recital in the amended Regulation (EC) No 1049/2001, codifying the decision of the Court of First Instance. Such a recital could read as follows: ‘Where personal data are transferred in order to give effect to the right of access to documents, the applicant does not need to prove the necessity of disclosure for the purpose of Article 8(b) of Regulation (EC) No 45/2001’.

VI.   RIGHT OF ACCESS TO DOCUMENTS AND RIGHT OF ACCESS TO OWN PERSONAL DATA

| 64. | The right of access to documents as provided for in Regulation (EC) No 1049/2001 must be differentiated from Article 13 of Regulation (EC) No 45/2001. The right of access as provided in Regulation (EC) No 1049/2001 grants a general right of access to everyone concerning documents in view of guaranteeing transparency of public bodies. Article 13 of Regulation (EC) No 45/2001 is more limited as regards the beneficiaries of the right of access, as it grants this right only to the person concerned to information relating to him/her, notably with a view of enabling data subjects to control of information relating to them. Furthermore, the right of access under Article 13 of Regulation (EC) No 45/2001 is referred to in Article 8(2) of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

64.

The right of access to documents as provided for in Regulation (EC) No 1049/2001 must be differentiated from Article 13 of Regulation (EC) No 45/2001. The right of access as provided in Regulation (EC) No 1049/2001 grants a general right of access to everyone concerning documents in view of guaranteeing transparency of public bodies. Article 13 of Regulation (EC) No 45/2001 is more limited as regards the beneficiaries of the right of access, as it grants this right only to the person concerned to information relating to him/her, notably with a view of enabling data subjects to control of information relating to them. Furthermore, the right of access under Article 13 of Regulation (EC) No 45/2001 is referred to in Article 8(2) of the Charter of Fundamental Rights of the European Union.

| 65. | Against this background, the EDPS considers that Regulation (EC) No 1049/2001 should clarify that the existence of the right of access to documents is without prejudice to the right of access to own personal data under Regulation (EC) No 45/2001. |
| --- | --- |

65.

Against this background, the EDPS considers that Regulation (EC) No 1049/2001 should clarify that the existence of the right of access to documents is without prejudice to the right of access to own personal data under Regulation (EC) No 45/2001.

| 66. | Furthermore, the EDPS recommends the legislator to consider introducing in the amended Regulation an ex officio access to the data subject's own personal data. Indeed, it happens in practice that people may not be aware of the existence of the right of access to his/her own personal data, as stipulated in Article 13 of Regulation (EC) No 45/2001, and therefore they ask for access in the light of Regulation (EC) No 1049/2001. They may be refused access to the document if one of the exceptions in Regulation (EC) No 1049/2001 applies, or it may be considered that a request for specific access is not within the scope of that Regulation. In such a case, when the institution or body knows the ratio of such request for access (i.e. access to petitioner's own personal data), the institution should be obliged to provide access ex officio to the petitioner's personal data. |
| --- | --- |

66.

Furthermore, the EDPS recommends the legislator to consider introducing in the amended Regulation an ex officio access to the data subject's own personal data. Indeed, it happens in practice that people may not be aware of the existence of the right of access to his/her own personal data, as stipulated in Article 13 of Regulation (EC) No 45/2001, and therefore they ask for access in the light of Regulation (EC) No 1049/2001. They may be refused access to the document if one of the exceptions in Regulation (EC) No 1049/2001 applies, or it may be considered that a request for specific access is not within the scope of that Regulation. In such a case, when the institution or body knows the ratio of such request for access (i.e. access to petitioner's own personal data), the institution should be obliged to provide access ex officio to the petitioner's personal data.

| 67. | Both aspects could be clarified by introducing specific statements to the Recitals to the amended Regulation (EC) No 1049/2001, possibly in connection with Recital 11 of the existing regulation. A first recital (or part of a recital) could state that the right of access to public documents is without prejudice to the right of access to personal data under Regulation (EC) No 45/2001. A second recital (or part of a recital) could include the notion of ex officio access of an applicant to his or her own personal data. When a person requests access to data concerning him or her, the institution should on its own initiative examine whether that person is entitled to access under Regulation (EC) No 45/2001. |
| --- | --- |

67.

Both aspects could be clarified by introducing specific statements to the Recitals to the amended Regulation (EC) No 1049/2001, possibly in connection with Recital 11 of the existing regulation. A first recital (or part of a recital) could state that the right of access to public documents is without prejudice to the right of access to personal data under Regulation (EC) No 45/2001. A second recital (or part of a recital) could include the notion of ex officio access of an applicant to his or her own personal data. When a person requests access to data concerning him or her, the institution should on its own initiative examine whether that person is entitled to access under Regulation (EC) No 45/2001.

VII.   FURTHER USE OF PERSONAL DATA CONTAINED IN PUBLIC DOCUMENTS

| 68. | Another issue to be considered and possibly clarified in the Commission proposal is the further use of personal data contained in public documents. Indeed, when access to documents is granted, the use of personal data contained therein may be subject to the applicable rules on the protection of personal data, and in particular to Regulation (EC) No 45/2001 and to the national legislations implementing Directive 95/46/EC. Re-use, dissemination and further processing of these personal data by the applicant, by the institutions granting access or by third parties having access to the document should be carried out in the framework of the applicable data protection legislation. |
| --- | --- |

68.

Another issue to be considered and possibly clarified in the Commission proposal is the further use of personal data contained in public documents. Indeed, when access to documents is granted, the use of personal data contained therein may be subject to the applicable rules on the protection of personal data, and in particular to Regulation (EC) No 45/2001 and to the national legislations implementing Directive 95/46/EC. Re-use, dissemination and further processing of these personal data by the applicant, by the institutions granting access or by third parties having access to the document should be carried out in the framework of the applicable data protection legislation.

| 69. | For example, should a list of names and contact details of public officials be disclosed further to an access request, this list should not be used in order to target the concerned officials with a marketing campaign or to profile them, unless in accordance with applicable data protection legislation. |
| --- | --- |

69.

For example, should a list of names and contact details of public officials be disclosed further to an access request, this list should not be used in order to target the concerned officials with a marketing campaign or to profile them, unless in accordance with applicable data protection legislation.

| 70. | Therefore, it would be advisable that the legislator uses this occasion in order to highlight this relation. This approach would be consistent with the choice of the legislator in Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. Indeed, in the latter Directive full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC is one of the conditions that are explicitly mentioned for the re-use of public sector information (28). |
| --- | --- |

70.

Therefore, it would be advisable that the legislator uses this occasion in order to highlight this relation. This approach would be consistent with the choice of the legislator in Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. Indeed, in the latter Directive full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC is one of the conditions that are explicitly mentioned for the re-use of public sector information (28).

| 71. | In this perspective, the EDPS suggests introducing a recital stating that ‘when access to documents is granted, the further use of personal data contained therein is subject to the applicable rules on the protection of personal data, and in particular to the national legislations implementing Directive 95/46/EC’. |
| --- | --- |

71.

In this perspective, the EDPS suggests introducing a recital stating that ‘when access to documents is granted, the further use of personal data contained therein is subject to the applicable rules on the protection of personal data, and in particular to the national legislations implementing Directive 95/46/EC’.

VIII.   CONCLUSION

| 72. | The attention of the EDPS has in particular been triggered by the fact that the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents contains a provision dealing with the delicate relation between access to documents and the rights to privacy and to the protection of personal data, the proposed Article 4(5). This opinion supports the reasons behind replacing the present Article 4(1)(b) by a new provision to some extent, but does not support the provision itself. |
| --- | --- |

72.

The attention of the EDPS has in particular been triggered by the fact that the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents contains a provision dealing with the delicate relation between access to documents and the rights to privacy and to the protection of personal data, the proposed Article 4(5). This opinion supports the reasons behind replacing the present Article 4(1)(b) by a new provision to some extent, but does not support the provision itself.

| 73. | This provision is criticized for the following reasons:






  1. | the EDPS is not convinced that this is the appropriate moment for change, while an appeal is pending before the Court of Justice. Fundamental issues are at stake in this appeal; |
| --- | --- | --- |

73.

This provision is criticized for the following reasons:

1.

the EDPS is not convinced that this is the appropriate moment for change, while an appeal is pending before the Court of Justice. Fundamental issues are at stake in this appeal;

| 2. | the proposal does not provide the appropriate solution. It consists of a general rule (the second sentence of Article 4(5)) that:






  — | does not reflect the judgement of the Court of First Instance in Bavarian Lager, |
| --- | --- | --- |

2.

the proposal does not provide the appropriate solution. It consists of a general rule (the second sentence of Article 4(5)) that:

—

does not reflect the judgement of the Court of First Instance in Bavarian Lager,

| — | does not do justice to the need for a right balance between the fundamental rights at stake, |
| --- | --- |

—

does not do justice to the need for a right balance between the fundamental rights at stake,

| — | is not viable since it refers to EC legislation on data protection that does not provide a clear answer when a decision on public access must be made; |
| --- | --- |

—

is not viable since it refers to EC legislation on data protection that does not provide a clear answer when a decision on public access must be made;

| 3. | it consists of a specific rule (the first sentence of Article 4(5)) that is in principle well defined, but with a scope that is far too limited. |
| --- | --- |

3.

it consists of a specific rule (the first sentence of Article 4(5)) that is in principle well defined, but with a scope that is far too limited.

| 74. | As a contribution to the discussion, the EDPS proposes the following exception to public access to personal data:






  1. | personal data shall not be disclosed, if such disclosure would harm the privacy or the integrity of the person concerned. Such harm does not arise:







  (a) | if the data solely relate to the professional activities of the person concerned unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person; |
| --- | --- | --- | --- |

74.

As a contribution to the discussion, the EDPS proposes the following exception to public access to personal data:

1.

personal data shall not be disclosed, if such disclosure would harm the privacy or the integrity of the person concerned. Such harm does not arise:

(a)

if the data solely relate to the professional activities of the person concerned unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person;

| (b) | if the data solely relate to a public person unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person or other persons related to him or her; |
| --- | --- |

(b)

if the data solely relate to a public person unless, given the particular circumstances, there is a reason to assume that disclosure would adversely affect that person or other persons related to him or her;

| (c) | if the data have already been published with the consent of the person concerned; |
| --- | --- |

(c)

if the data have already been published with the consent of the person concerned;

| 2. | personal data shall nevertheless be disclosed, if an overriding public interest requires disclosure. In those cases, the institution or body shall have to specify the public interest. It shall give reasons why in the specific case the public interest outweighs the interests of the person concerned; |
| --- | --- |

2.

personal data shall nevertheless be disclosed, if an overriding public interest requires disclosure. In those cases, the institution or body shall have to specify the public interest. It shall give reasons why in the specific case the public interest outweighs the interests of the person concerned;

| 3. | where an institution or body refuses access to a document on the basis of paragraph 1, it shall consider whether partial access to this document is possible. |
| --- | --- |

3.

where an institution or body refuses access to a document on the basis of paragraph 1, it shall consider whether partial access to this document is possible.

| 75. | The opinion identifies several other points where clarifications are needed of the public access regulation, mainly in its relation to the provisions of Regulation (EC) No 45/2001. These clarifications can be given by introducing recitals or possibly legislative provisions on the following subjects:






  (a) | the concept of a document so as to ensure the widest possible application of the public access regulation; |
| --- | --- | --- |

75.

The opinion identifies several other points where clarifications are needed of the public access regulation, mainly in its relation to the provisions of Regulation (EC) No 45/2001. These clarifications can be given by introducing recitals or possibly legislative provisions on the following subjects:

(a)

the concept of a document so as to ensure the widest possible application of the public access regulation;

| (b) | the interpretation of Article 8(b) of Regulation (EC) No 45/2001 in the context of public access so as to ensure that the applicant for public access does not need to prove the necessity of disclosure; |
| --- | --- |

(b)

the interpretation of Article 8(b) of Regulation (EC) No 45/2001 in the context of public access so as to ensure that the applicant for public access does not need to prove the necessity of disclosure;

| (c) | the relation between the right of access to public documents and the right of access to own personal data under Regulation (EC) No 45/2001 so as to ensure that the right of access to public documents is without prejudice to the right of access to own personal data; |
| --- | --- |

(c)

the relation between the right of access to public documents and the right of access to own personal data under Regulation (EC) No 45/2001 so as to ensure that the right of access to public documents is without prejudice to the right of access to own personal data;

| (d) | the obligation of an institution to examine on its own initiative whether that person is entitled to access under Regulation (EC) No 45/2001, when a person requests access to data concerning him or her under the public access regulation; |
| --- | --- |

(d)

the obligation of an institution to examine on its own initiative whether that person is entitled to access under Regulation (EC) No 45/2001, when a person requests access to data concerning him or her under the public access regulation;

| (e) | the further use of personal data contained in public documents, in order to ensure that this further use is subject to the applicable rules on the protection of personal data. |
| --- | --- |

(e)

the further use of personal data contained in public documents, in order to ensure that this further use is subject to the applicable rules on the protection of personal data.

Done at Brussels, 30 June 2008.

Peter HUSTINX

European Data Protection Supervisor

---

(1)  OJ L 281, 23.11.1995, p. 31.

1

(2)  OJ L 8, 12.1.2001, p. 1.

2

(3)  COM(2008) 229 final.

3

(4)  OJ L 145, 31.5.2001, p. 43.

4

(5)  Minutes of the Commission's meeting No 1721 of 9 November 2005, item 6; see also documents SEC(2005) 1300 and SEC(2005) 1301.

5

(6)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Århus Convention to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13).

6

(7)  Judgement of 25 April 2007, WWF European Policy Programme v Council, Case T-264/04, paragraph 61.

7

(8)  Judgement of 8 November 2007, Bavarian Lager v Commission, T-194/04. Two other still pending cases concern the same issue.

8

(9)  Pending Case C-28/08 P, Commission v Bavarian Lager, OJ C 79, p. 21.

9

(10)  It is clear that it is within the discretion of the legislator to change a text of a legislative instrument. The fact that the interpretation of the text is subject of a dispute before the Court does not change this.

10

(11)  See on this balance, points 31-37 below.

11

(12)  Because it shifts the test from Regulation (EC) No 1049/2001 to Regulation (EC) No 45/2001.

12

(13)  Opinion 5/2001 on the European Ombudsman Special Report to the European Parliament following the draft recommendation to the European Commission in complaint 713/98/IJH, 17 May 2001, WP 44, available on the website of the Working Party.

13

(14)  Article 3(f) of the draft Convention, that is presently being finalized within the Council of Europe. The latest draft is available at the link:

14

http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc08/EDOC11631.htm

(15)  Article 1 and Recital 4 of the Regulation; Recital 4 will be renumbered Recital 6, after modification of the Regulation according to the proposal.

15

(16)  Recital 11 of the Regulation; Recital 11 will be renumbered Recital 17, after modification of the Regulation according to the proposal.

16

(17)  Paragraph 94 of the Judgement of the Court of First Instance in Bavarian Lager, and the case law mentioned there.

17

(18)  Paragraph 107 of the Judgement of the Court of First Instance in Bavarian Lager, elaborated in point 40 below.

18

(19)  See in this sense in particular the Judgement of the Court of Justice in Österreichischer Rundfunk (mentioned in footnote 22).

19

(20)  Paragraph 98 of the Judgement.

20

(21)  See the EDPS Background Paper for more extensive explanation of Article 5.

21

(22)  Paragraph 107 of the Judgement of the Court of First Instance. NB: Article 8 of Regulation (EC) No 45/2001 also imposes other obligations but they do not pose any problems in the present context.

22

(23)  See in particular paragraphs 131, 132 and 136 of the Judgement.

23

(24)  Judgement of the Court of 20 May 2003, Rechnungshof (C-465/00) v Österreichischer Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (C-139/01) v Österreichischer Rundfunk. Joined Cases C-465/00, C-138/01 and C-139/01, ECR 2003, p. I-4989.

24

(25)  See paragraph 107 of the judgement of the CFI.

25

(26)  Paragraph 107 and 108 of the judgement of the CFI.

26

(27)  See the application of the Commission in Case C-28/08 P mentioned in footnote 7.

27

(28)  See Recital 21 and Article 1(4) of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

28

---

II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 7.1.2009 | EN | Official Journal of the European Union | C 2/18 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/18

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(Text with EEA relevance)

(2009/C 2/04)

| Date of adoption of the decision | 8.10.2008 |
| --- | --- |
| Reference number of the aid | N 679/07 |
| Member State | France |
| Region | — |
| Title (and/or name of the beneficiary) | Soutien de l'Agence de l'innovation industrielle en faveur du programme «DEFI COMPOSITE» |
| Legal basis | Régime N 121/06 |
| Type of measure | Individual aid |
| Objective | Research and development |
| Form of aid | Direct grant, Reimbursable grant |
| Budget | Overall budget: EUR 63,638 million |
| Intensity | 50 % |
| Duration | 4 years |
| Economic sectors | Manufacturing industry |
| Name and address of the granting authority | OSEO Innovation |
| 27-31, Av. du Général Leclerc |
| F-94710 Maisons-Alfort Cedex |

Date of adoption of the decision

8.10.2008

Reference number of the aid

N 679/07

Member State

France

Region

—

Title (and/or name of the beneficiary)

Soutien de l'Agence de l'innovation industrielle en faveur du programme «DEFI COMPOSITE»

Legal basis

Régime N 121/06

Type of measure

Individual aid

Objective

Research and development

Form of aid

Direct grant, Reimbursable grant

Budget

Overall budget: EUR 63,638 million

Intensity

50 %

Duration

4 years

Economic sectors

Manufacturing industry

Name and address of the granting authority

OSEO Innovation

27-31, Av. du Général Leclerc

F-94710 Maisons-Alfort Cedex

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 5.11.2008 |
| --- | --- |
| Reference number of the aid | N 234/08 |
| Member State | Sweden |
| Region | — |
| Title (and/or name of the beneficiary) | Stöd för investeringar i solvärme |
| Legal basis | Förordning om stöd för investeringar i solvärme; Förordning (1988:764) om statligt stöd till näringslivet |
| Type of measure | Aid scheme |
| Objective | Environmental protection |
| Form of aid | Direct grant |
| Budget | Overall budget: SEK 15,5 million |
| Intensity | 60 % |
| Duration | 1.7.2008-30.6.2013 |
| Economic sectors | All sectors |
| Name and address of the granting authority | Boverket Box 534 |
| S-371 23 Karlskrona |

Date of adoption of the decision

5.11.2008

Reference number of the aid

N 234/08

Member State

Sweden

Region

—

Title (and/or name of the beneficiary)

Stöd för investeringar i solvärme

Legal basis

Förordning om stöd för investeringar i solvärme; Förordning (1988:764) om statligt stöd till näringslivet

Type of measure

Aid scheme

Objective

Environmental protection

Form of aid

Direct grant

Budget

Overall budget: SEK 15,5 million

Intensity

60 %

Duration

1.7.2008-30.6.2013

Economic sectors

All sectors

Name and address of the granting authority

Boverket Box 534

S-371 23 Karlskrona

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 18.11.2008 |
| --- | --- |
| Reference number of the aid | N 256/08 |
| Member State | Germany |
| Region | Brandenburg |
| Title (and/or name of the beneficiary) | Richtlinie des Ministeriums für Wirtschaft zur Förderung von Forschung und Entwicklungsvorhaben im Land Brandenburg — Große Richtlinie |
| Legal basis | Richtlinie des Ministeriums für Wirtschaft zur Förderung von Forschung und Entwicklungsvorhaben im Land Brandenburg — Große Richtlinie |
| Type of measure | Aid scheme |
| Objective | Research and development, Innovation |
| Form of aid | Direct grant |
| Budget | Annual budget: EUR 11,66 million
  Overall budget: EUR 70 million |
| Intensity | 80 % |
| Duration | 2008-31.12.2013 |
| Economic sectors | — |
| Name and address of the granting authority | Investitionsbank des Landes Brandenburg (ILB) |
| Steinstraße 104-106 |
| D-14480 Potsdam |

Date of adoption of the decision

18.11.2008

Reference number of the aid

N 256/08

Member State

Germany

Region

Brandenburg

Title (and/or name of the beneficiary)

Richtlinie des Ministeriums für Wirtschaft zur Förderung von Forschung und Entwicklungsvorhaben im Land Brandenburg — Große Richtlinie

Legal basis

Richtlinie des Ministeriums für Wirtschaft zur Förderung von Forschung und Entwicklungsvorhaben im Land Brandenburg — Große Richtlinie

Type of measure

Aid scheme

Objective

Research and development, Innovation

Form of aid

Direct grant

Budget

Annual budget: EUR 11,66 million

Overall budget: EUR 70 million

Intensity

80 %

Duration

2008-31.12.2013

Economic sectors

—

Name and address of the granting authority

Investitionsbank des Landes Brandenburg (ILB)

Steinstraße 104-106

D-14480 Potsdam

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

| 7.1.2009 | EN | Official Journal of the European Union | C 2/21 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/21

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(2009/C 2/05)

| Date of adoption of the decision | 26.11.2008 |
| --- | --- |
| Reference number of the aid | NN 47/04 ex N/344/A/1999 |
| Member State | The Netherlands |
| Region | — |
| Title (and/or name of the beneficiary) | Programma Beheer |
| Legal basis | De artikelen 2 en 4 van de Kaderwet LNV-subsidies, artikel 29, eerste lid, van de Wet agrarisch grondverkeer; Subsidieregeling natuurbeheer 2000 (SN) en Subsidieregeling agrarisch natuurbeheer (SAN) en de Wet Inrichting Landelijk gebied (WILG) |
| Type of measure | Scheme: nature management: Investment aid, compensation aid, agri-environmental and forestry aid, technical aid |
| Objective | Maintenance, restoration and up keeping of nature area's, traditional landscapes |
| Form of aid | Compensation for the reel costs of the activities and for agro-environmental measures for the income foregone |
| Budget | Maximum from EUR 28 million per year in 2000 to EUR 58 million per year in 2013 |
| Intensity | Maximum 100 % of the true costs |
| Duration | 1.1.2000-31.12.2013 |
| Economic sectors | Landowners, Agriculture; Primary production, Forestry sector |
| Name and address of the granting authority | Ministerie van LNV |
| Postbus 20401 |
| 2500 EK Den Haag |
| NEDERLAND |

Date of adoption of the decision

26.11.2008

Reference number of the aid

NN 47/04 ex N/344/A/1999

Member State

The Netherlands

Region

—

Title (and/or name of the beneficiary)

Programma Beheer

Legal basis

De artikelen 2 en 4 van de Kaderwet LNV-subsidies, artikel 29, eerste lid, van de Wet agrarisch grondverkeer; Subsidieregeling natuurbeheer 2000 (SN) en Subsidieregeling agrarisch natuurbeheer (SAN) en de Wet Inrichting Landelijk gebied (WILG)

Type of measure

Scheme: nature management: Investment aid, compensation aid, agri-environmental and forestry aid, technical aid

Objective

Maintenance, restoration and up keeping of nature area's, traditional landscapes

Form of aid

Compensation for the reel costs of the activities and for agro-environmental measures for the income foregone

Budget

Maximum from EUR 28 million per year in 2000 to EUR 58 million per year in 2013

Intensity

Maximum 100 % of the true costs

Duration

1.1.2000-31.12.2013

Economic sectors

Landowners, Agriculture; Primary production, Forestry sector

Name and address of the granting authority

Ministerie van LNV

Postbus 20401

2500 EK Den Haag

NEDERLAND

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 26.11.2008 |
| --- | --- |
| Reference number of the aid | N 14/07 |
| Member State | United Kingdom |
| Region | England |
| Title | Natural England Management Agreement Scheme |
| Legal basis | Natural Environment § Rural Communities Act 2006; Countryside and Rights of Way Act 2000 (amended) |
| Type of measure | Aid scheme |
| Objective | Conserve and enhance the natural environment |
| Form of aid | Grant |
| Budget | GBP 250 million |
| Intensity | Up to 100 % |
| Duration | 2008-2013 |
| Economic sectors | Agricultural sector |
| Name and address of the granting authority | Natural England |
| Endcliffe |
| Deepdale Business Park |
| Ashford Road |
| Bakewell |
| Derbyshire |
| UNITED KINGDOM |

Date of adoption of the decision

26.11.2008

Reference number of the aid

N 14/07

Member State

United Kingdom

Region

England

Title

Natural England Management Agreement Scheme

Legal basis

Natural Environment § Rural Communities Act 2006; Countryside and Rights of Way Act 2000 (amended)

Type of measure

Aid scheme

Objective

Conserve and enhance the natural environment

Form of aid

Grant

Budget

GBP 250 million

Intensity

Up to 100 %

Duration

2008-2013

Economic sectors

Agricultural sector

Name and address of the granting authority

Natural England

Endcliffe

Deepdale Business Park

Ashford Road

Bakewell

Derbyshire

UNITED KINGDOM

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 26.11.2008 |
| --- | --- |
| Reference number of the aid | N 380/08 |
| Member State | Italy |
| Region | Lombardia |
| Title (and/or name of the beneficiary) | Aiuti al settore forestale — 10 000 ettari di boschi e sistemi verdi multifunzionali |
| Legal basis | Legge regionale n. 27/2004 articolo 16; delibera di Giunta regionale n. 2513 dell'11 maggio 2006; delibera di Giunta regionale n. 3839 del 20 dicembre 2006 |
| Type of measure | Aid scheme |
| Objective | Improve the forests and create multifunctional green systems |
| Form of aid | Direct grant |
| Budget | EUR 200 000 000 |
| Intensity | Maximum intensity is 100 % |
| Duration | Until 31.12.2013 |
| Economic sectors | Forestry |
| Name and address of the granting authority | Regione Lombardia — Direzione Generale Agricoltura |
| Via Pola 12/14 |
| 20124 Milano MI |
| ITALIA |

Date of adoption of the decision

26.11.2008

Reference number of the aid

N 380/08

Member State

Italy

Region

Lombardia

Title (and/or name of the beneficiary)

Aiuti al settore forestale — 10 000 ettari di boschi e sistemi verdi multifunzionali

Legal basis

Legge regionale n. 27/2004 articolo 16; delibera di Giunta regionale n. 2513 dell'11 maggio 2006; delibera di Giunta regionale n. 3839 del 20 dicembre 2006

Type of measure

Aid scheme

Objective

Improve the forests and create multifunctional green systems

Form of aid

Direct grant

Budget

EUR 200 000 000

Intensity

Maximum intensity is 100 %

Duration

Until 31.12.2013

Economic sectors

Forestry

Name and address of the granting authority

Regione Lombardia — Direzione Generale Agricoltura

Via Pola 12/14

20124 Milano MI

ITALIA

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

| 7.1.2009 | EN | Official Journal of the European Union | C 2/23 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/23

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(2009/C 2/06)

| Date of adoption of the decision | 4.12.2008 |
| --- | --- |
| Reference number of the aid | N 645/07 |
| Member State | Spain |
| Region | — |
| Title (and/or name of beneficiary) | Proyecto de Orden APA de medidas urgentes para reparar los daños causados por inundaciones acaecidas por el desbordamiento del río Ebro en marzo y abril de 2007 |
| Legal basis | Proyecto de Orden APA/2007, por la que se desarrolla el artículo 4 del Real Decreto-Ley no 3/2007, de 13 de abril, por el que se adoptan medidas urgentes para reparar los daños causados por las inundaciones producidas por desbordamientos en la cuenca del río Ebro durante la última semana del mes de marzo y la primera del mes de abril de 2007 |
| Type of measure | Scheme |
| Objective | To compensate for losses resulting from an exceptional occurrence |
| Form of aid | Direct grant and tax benefits |
| Budget | EUR 2 287 535 |
| Intensity | Max. 80 % |
| Duration | Ad hoc |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Entidad Estatal de Seguros Agrarios |
| Ministerio de Agricultura |
| C/ Miguel Angel 23, 5a planta |
| 28010 Madrid |
| ESPAÑA |

Date of adoption of the decision

4.12.2008

Reference number of the aid

N 645/07

Member State

Spain

Region

—

Title (and/or name of beneficiary)

Proyecto de Orden APA de medidas urgentes para reparar los daños causados por inundaciones acaecidas por el desbordamiento del río Ebro en marzo y abril de 2007

Legal basis

Proyecto de Orden APA/2007, por la que se desarrolla el artículo 4 del Real Decreto-Ley no 3/2007, de 13 de abril, por el que se adoptan medidas urgentes para reparar los daños causados por las inundaciones producidas por desbordamientos en la cuenca del río Ebro durante la última semana del mes de marzo y la primera del mes de abril de 2007

Type of measure

Scheme

Objective

To compensate for losses resulting from an exceptional occurrence

Form of aid

Direct grant and tax benefits

Budget

EUR 2 287 535

Intensity

Max. 80 %

Duration

Ad hoc

Economic sectors

Agriculture

Name and address of the granting authority

Entidad Estatal de Seguros Agrarios

Ministerio de Agricultura

C/ Miguel Angel 23, 5a planta

28010 Madrid

ESPAÑA

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 4.12.2008 |
| --- | --- |
| Reference number of the aid | N 358/08 |
| Member State | The Netherlands |
| Region | — |
| Title (and/or name of the beneficiary) | Garantstelling landbouwondernemingen |
| Legal basis | Kaderwet LNV-subisdies en Regeling LNV-subsidies |
| Type of measure | Guarantee |
| Objective | The measure concerns a general subsidy for the agricultural sector in the form of a guarantee to support the investment in the resurrection, overtaking, the up keeping or improvement of a small or medium sized agricultural enterprise |
| Form of aid | After payment of a premium, guarantee of 80 % of a loan for agricultural investments |
| Budget | The factual payments on the guarantees will amount to a maximum of on average EUR 3,6 million per year |
| Intensity | General guarantee: 3,33 %, Young farmer guarantee: 5,83 %, Guarantee plus: 3,33 %, Guarantee plus on non-preferential loan: 3,15 % |
| Duration | 2009-2014 |
| Economic sectors | Agricultural sector |
| Name and address of the granting authority | Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| Postbus 20401 |
| 2500 EK Den Haag |
| NEDERLAND |

Date of adoption of the decision

4.12.2008

Reference number of the aid

N 358/08

Member State

The Netherlands

Region

—

Title (and/or name of the beneficiary)

Garantstelling landbouwondernemingen

Legal basis

Kaderwet LNV-subisdies en Regeling LNV-subsidies

Type of measure

Guarantee

Objective

The measure concerns a general subsidy for the agricultural sector in the form of a guarantee to support the investment in the resurrection, overtaking, the up keeping or improvement of a small or medium sized agricultural enterprise

Form of aid

After payment of a premium, guarantee of 80 % of a loan for agricultural investments

Budget

The factual payments on the guarantees will amount to a maximum of on average EUR 3,6 million per year

Intensity

General guarantee: 3,33 %, Young farmer guarantee: 5,83 %, Guarantee plus: 3,33 %, Guarantee plus on non-preferential loan: 3,15 %

Duration

2009-2014

Economic sectors

Agricultural sector

Name and address of the granting authority

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Postbus 20401

2500 EK Den Haag

NEDERLAND

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 7.1.2009 | EN | Official Journal of the European Union | C 2/25 |
| --- | --- | --- | --- |

7.1.2009

EN

Official Journal of the European Union

C 2/25

---

Interest rate applied by the European Central Bank to its main refinancing operations (1):

2,5 % on 1 January 2009

Euro exchange rates (2)

6 January 2009

(2009/C 2/07)

1 euro=

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3332 |
| JPY | Japanese yen | 125,84 |
| DKK | Danish krone | 7,4530 |
| GBP | Pound sterling | 0,91760 |
| SEK | Swedish krona | 10,5675 |
| CHF | Swiss franc | 1,5018 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 9,3850 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 26,410 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 266,67 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7070 |
| PLN | Polish zloty | 4,0200 |
| RON | Romanian leu | 4,0675 |
| TRY | Turkish lira | 2,0256 |
| AUD | Australian dollar | 1,8727 |
| CAD | Canadian dollar | 1,5850 |
| HKD | Hong Kong dollar | 10,3369 |
| NZD | New Zealand dollar | 2,2700 |
| SGD | Singapore dollar | 1,9719 |
| KRW | South Korean won | 1 753,58 |
| ZAR | South African rand | 12,4521 |
| CNY | Chinese yuan renminbi | 9,1138 |
| HRK | Croatian kuna | 7,2835 |
| IDR | Indonesian rupiah | 14 665,20 |
| MYR | Malaysian ringgit | 4,6789 |
| PHP | Philippine peso | 62,570 |
| RUB | Russian rouble | 38,8859 |
| THB | Thai baht | 46,755 |
| BRL | Brazilian real | 2,9517 |
| MXN | Mexican peso | 17,7949 |
| INR | Indian rupee | 64,8270 |

Currency

Exchange rate

USD

US dollar

1,3332

JPY

Japanese yen

125,84

DKK

Danish krone

7,4530

GBP

Pound sterling

0,91760

SEK

Swedish krona

10,5675

CHF

Swiss franc

1,5018

ISK

Iceland króna

NOK

Norwegian krone

9,3850

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

26,410

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

266,67

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7070

PLN

Polish zloty

4,0200

RON

Romanian leu

4,0675

TRY

Turkish lira

2,0256

AUD

Australian dollar

1,8727

CAD

Canadian dollar

1,5850

HKD

Hong Kong dollar

10,3369

NZD

New Zealand dollar

2,2700

SGD

Singapore dollar

1,9719

KRW

South Korean won

1 753,58

ZAR

South African rand

12,4521

CNY

Chinese yuan renminbi

9,1138

HRK

Croatian kuna

7,2835

IDR

Indonesian rupiah

14 665,20

MYR

Malaysian ringgit

4,6789

PHP

Philippine peso

62,570

RUB

Russian rouble

38,8859

THB

Thai baht

46,755

BRL

Brazilian real

2,9517

MXN

Mexican peso

17,7949

INR

Indian rupee

64,8270

---

(1)

Rate applied to the most recent operation carried out before the indicated day. In the case of a variable rate tender, the interest rate is the marginal rate.

(2)  Source: reference exchange rate published by the ECB.

---

7.1.2009

| 7.1.2009 | EN | Official Journal of the European Union | C 2/s3 |
| --- | --- | --- | --- |

EN

Official Journal of the European Union

C 2/s3

---

NOTE TO THE READER

The institutions have decided no longer to quote in their texts the last amendment to cited acts.

Unless otherwise indicated, references to acts in the texts published here are to the version of those acts currently in force.

---