Cases T‑639/15 to T‑666/15 and T‑94/16

Maria Psara and Others

v

European Parliament

(Access to documents — Regulation (EC) No 1049/2001 — European Parliament — Expenditure by Members of the Parliament of their allowances — Refusal to grant access — Non-existent documents — Personal data — Regulation (EC) No 45/2001 — Need to transfer the data — Specific and individual examination — Partial access — Excessive administrative burden — Obligation to state reasons)

Summary — Judgment of the General Court (Fifth Chamber, Extended Composition), 25 September 2018

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Obligation to state reasons — Scope — Unnecessary to answer all arguments advances in the confirmatory request for access

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Obligation excluded where the administrative burden is excessive — Redaction of personal data in more than four million documents — Refusal of partial access — Lawfulness

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Requirement that the institution should examine the documents specifically and individually — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits

EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Request for access to personal data — Obligation to establish the need to transfer those data — Scope — Verification by the institution concerned — Criteria for assessment — Raising by the applicant of general objectives of openness — Rejection

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Scope — Obligation to assess in conformity with EU legislation on the protection of personal data — Applicability in full of the provisions of Regulation No 45/2001 to any request for access to documents including personal data

EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Concept of personal data — Documents relating to the allowances and expenses paid to Members of the European Parliament — Included — Conflating of personal data with other, public data — Irrelevant

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Limitations of the principle of access to documents — Existence of the documents forming the subject-matter of the application for access — Presumption of non-existence based on the statement to that effect by the institution concerned — Simple presumption rebuttable on the basis of relevant and consistent evidence

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Refusal of access to a document on the ground that it does not exist or is not held by the institution concerned — Request for access to documents concerning the spending by Members of the European Parliament of their general expenditure allowances — Documents not held by the Parliament

The right of public access enshrined in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents concerns only those institution documents which the institutions effectively hold, in that that right cannot extend to documents which are not in the possession of the institutions or which do not exist. With regard to a request for access to documents detailing how and when the Members of the European Parliament (MEPs) of each Member State spent, at various times, their general expenditure allowances, under Articles 25 and 26 of the Decision of the Bureau of the European Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute of Members of the European Parliament, MEPs are to receive, on a monthly basis, a flat-rate allowance in, furthermore, an amount known to the public, following a single application submitted at the start of their mandate. Having regard to the flat-rated nature of the general expenditure allowance, the European Parliament has no document detailing, physically or in time, the use by its members of those allowances. The Parliament does not have the data in question and is therefore not able to disclose the documents requested in that connection. (see paras 27, 29-31)

See the text of the decision. (see paras 33-35)

The documents held by the Parliament relating to travel costs and daily allowances contain information concerning identified natural persons, 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, which necessarily identify every MEP concerned, if only for the purposes of payment of those allowances. The same is true of the documents held by the Parliament relating to parliamentary assistance expenses, which necessarily identify every MEP concerned and the respective beneficiaries of those allowances, also if only for the purposes of payment of those allowances. In that regard, it is not possible to distinguish the data concerned according to whether they are in the private or the public sphere since 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. Nor can the question of whether the risk of harm to MEPs’ legitimate interests does exist alter the classification of the data at issue as personal data. Similarly, the fact that data concerning the persons in question are closely linked to public data on those persons, inter alia as they are listed on the Parliament's internet site, and are, in particular, MEPs’ names does not mean at all that those data can no longer be characterised as personal data, within the meaning of that provision. In other words, the classification of the data at issue as personal data cannot be ruled out merely because those data are related to other data which are public, which is the case irrespective of whether disclosure of those data would undermine the legitimate interests of the persons concerned. (see paras 46-48, 50-53)

See the text of the decision. (see paras 65, 66)

In the context of decisions by which an institution refuses a request for access to information containing personal data on the ground that it is covered by the exception, set out in Article 4(1)(b) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, concerning protection of privacy and the integrity of the individual, those data may be transferred only if their addressee shows that the transfer is necessary and if there is no reason to believe that that transfer could prejudice the legitimate interests of the person concerned, by virtue of 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, which the institutions are bound to follow when they receive a request for access to documents containing personal data. Thus, it is clear from the wording of Article 8(b) of Regulation No 45/2001 that the regulation makes the transfer of personal data 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 person concerned. Thus, that provision requires the institution in receipt of an application for access initially to make an assessment of the necessity, and thus proportionality, of the transfer of personal data in the light of the applicant’s objective, satisfaction of the requirement for necessity laid down in Article 8(b) of Regulation No 45/2001, which is to be interpreted strictly, requiring the applicant to show that the transfer of personal data is the most appropriate of the possible measures for attaining the applicant’s objective and that it is proportionate to that objective, which requires the applicant to provide express and legitimate reasons to that effect. In that regard, where, in order to demonstrate the need for the transfer of the data in question, the applicants have stated various objectives, such as that of guaranteeing the public right to information and transparency, expressed in such broad and general terms, the institution cannot be criticised for not having deduced from such objectives an express demonstration of the need to transfer those personal data. A contrary view would oblige the institution, as a matter of principle, to infer from general considerations relating to the public interest in the disclosure of personal data that the necessity for the transfer of those data has, by implication, been established. Furthermore, the wish to institute public debate cannot suffice to show the need for the transfer of personal data, since such an argument is connected solely with the purpose of the request for access to the documents. No automatic priority can be conferred on the objective of transparency over the right to protection of personal data. (see paras 69-76, 90, 91)

See the text of the decision. (see paras 102-105)

It cannot seriously be disputed that the redaction of all personal data in more than four million documents meant an excessive administrative burden such as to justify the refusal of partial access to the documents concerned under Article 4(6) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. (see paras 127, 129)