Opinion of the Advocate General — ECLI:EU:C:2015:219
Date: 2015-04-14
Language of the case: English
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - successful
Origin: Belgium;United Kingdom

Summary — Judgment of the Court (Second Chamber), 16 July 2015 1. Institutions of the European Union — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Concept of ‘personal data’ — Names of individuals who in a professional capacity submitted comments on a draft document to an agency of the European Union — Included (European Parliament and Council Regulation No 45/2001, Art. 2(a)) 2. Institutions of the European Union — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Request for access to personal data —Obligation to establish that the transfer of that data is necessary — Scope — Reliance on the principle of transparency — Need to refer to specific considerations related to the particular case (Arts 1 TEU and 11(2), TEU; Art. 15 TFEU; European Parliament and Council Regulation No 45/2001, Art. 2(a) and 8(b)) 3. Institutions of the European Union — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Request for access to personal data — Obligation to determine that the legitimate interests of the person concerned are prejudiced — Scope (European Parliament and Council Regulation No 45/2001, Art. 8(b)) 1. As regards the concept of ‘personal data’ defined in Article 2(a) of Regulation No 45/2001 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, the fact that information is provided as part of a professional activity does not mean that it cannot be characterised as a set of personal data. In that regard, in relation to comments on a draft guidance document submitted by external experts to an agency of the European Union, the disclosure of the names of those experts making it possible to connect to one particular expert or another a particular comment constitutes information which concerns identified natural persons and, accordingly, constitutes a set of personal data, within the meaning of Article 2(a) of Regulation No 45/2001. Likewise, the fact that both the identity of the experts concerned and the comments submitted were made public on the European Food Safety Authority website does not mean that the information at issue could no longer be so characterised. Further, the concepts of ‘personal data’, within the meaning of Article 2(a) of Regulation No 45/2001, and of ‘data relating to private life’ are not to be confused. Accordingly, an argument that the information at issue does not fall within the scope of the private life of the experts concerned is ineffective. Moreover, the question whether the person concerned objects to the disclosure of the information at issue is not a constituent part of the concept of ‘personal data’. Consequently, the characterisation of an item of information relating to a person as being personal data does not depend on whether there is such an objection (see paras 27-33) 2. Where an application is made seeking access to personal data, within the meaning of Article 2(a) of Regulation No 45/2001 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, the provisions of that regulation, and in particular Article 8(b) thereof, become applicable in their entirety. It follows from the very wording of Article 8(b) that under that provision transfer of personal data is subject to two cumulative conditions being satisfied. In that context, whoever requests such a transfer must first establish that it is necessary. If it is demonstrated to be necessary, it is then for the institution concerned to determine that there is no reason to assume that that transfer might prejudice the legitimate interests of the data subject. If there is no such reason, the transfer requested must be made, whereas, if there is such a reason, the institution concerned must weigh the various competing interests in order to decide on the request for access. As regards a request for access to the names of experts who submitted comments on a draft guidance document to the European Food Safety Authority (EFSA), the necessity for the transfer of that data was demonstrated by an argument which was substantiated and based on the fact that the disclosure of that information was, against the background of a climate of suspicion towards EFSA, necessary to ensure the transparency of the process of adoption of a measure likely to have an impact on the activities of economic operators, in particular, in order to appreciate how the form of participation by each expert in that process might, through that expert’s own scientific opinion, have influenced the content of that measure. The transparency of the process followed by a public authority for the adoption of a measure of that nature contributes to that authority acquiring greater legitimacy in the eyes of the persons to whom that measure is addressed and increasing their confidence in that authority, and to ensuring that the authority is more accountable to citizens in a democratic system. In that regard, obtaining the names of the experts was necessary so that the impartiality of each of those experts in carrying out their tasks as scientists in the service of EFSA could be specifically ascertained. On the other hand, a reference, in order to demonstrate the necessity for the the transfer of the data at issue, to the existence of a general requirement of transparency, stemming from Article 1 TEU, Article 11(2) TEU and Article 15 TFEU, is not sufficient to demonstrate the necessity of the information at issue being disclosed, since, in general, no automatic priority can be conferred on the objective of transparency over the right to protection of personal data. (see paras 44, 46, 47, 50-53, 55-58) 3. As regards the second condition laid down in Article 8(b) of Regulation No 45/2001 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, for the transfer of personal data, the authority concerned must assess whether the disclosure requested might have a specific and actual adverse effect on the interest protected. In that regard, an allegation that the disclosure of the names of experts who submitted comments on a draft guidance document to an agency of the European Union would have been likely to undermine the privacy and integrity of the experts concerned is a consideration of a general nature which is not otherwise supported by any factor which is specific to the case. On the contrary, such disclosure would, by itself, have made it possible for suspicions of partiality to be dispelled or would have provided to experts who might be concerned the opportunity to dispute, if necessary by available legal remedies, the merits of those allegations of partiality. Such an allegation, unsupported by evidence, if it were to be accepted, could be applied, generally, to any situation where an authority of the European Union obtains the opinions of experts prior to the adoption of a measure which has effects on the activities of economic operators in the sector concerned by such a measure, regardless of which sector. Such an outcome would be contrary to the requirement that exceptions to the right of access to documents held by the institutions must be interpreted strictly, a requirement which entails that it must be established that there is a risk of a specific and actual adverse effect on the interest protected. (see paras 69, 70)