Joined Cases T‑314/16 and T‑435/16

VG, as heir of MS

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents and information concerning a Commission decision to put an end to a ‘letter of agreement and membership of Team Europe’ — Refusal of access — Exception relating to the protection of privacy and to the protection of individuals — Protection of personal data — Regulation (EC) No 45/2001 — Refusal to transfer data — Articles 7, 47 and 48 of the Charter of Fundamental Rights — Non-contractual liability)

Summary — Judgment of the General Court (First Chamber), 27 November 2018

Non-contractual liability — Conditions — Real and certain damage caused by an illegal measure — Contested measure including a negative assessment of the applicant — Annulment of the contested measure not providing appropriate compensation for non-material damage

Non-contractual liability — Damage — Damage for which compensation is available — Non-material damage consisting in a feeling of injustice and anxiety caused by the fact of being required to undergo judicial proceedings in order to secure recognition of rights — Included

Non-contractual liability — Conditions — Real and certain damage caused by an illegal measure — Annulment of the illegal measure in dispute — Whether appropriate reparation for non-material damage

Actions for damages — Application for damages linked to an application for annulment — Dismissal of the application for annulment leading to dismissal of the application for damages

EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Right of access of an individual to data relating to him — Refusal to grant access — Obligation to state reasons — Scope

EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Right of access of an individual to data relating to him — Subject matter — Data relating both to the applicant and to third parties — Duty to balance relevant interests — Request for access to data relating to the applicant concerning a complaint lodged against him — Refusal of access based on the wishes of the complainant — Not permissible

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

EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Concept of personal data — Information concerning the professional or occupational activities of a person — Included — Conditions

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and the integrity of the individual — Refusal to grant access — Obligation to state reasons — Scope — Duty to balance relevant interests

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Concept of a document — Scope — Account to be taken of the interest of the applicant in obtaining disclosure — Not included

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest justifying the disclosure of documents — Concept — Individual interest of the applicant — Not included

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and the integrity of the individual — Disclosure of documents concerning the applicant himself — Whether permissible — Limits — Protection of privacy and the integrity of third parties

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 — 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

Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action brought against a decision of an institution refusing access to documents — Continuation of the action by the applicant’s successor in title following the applicant’s death — Interest in bringing proceedings retained

An applicant’s interest in bringing proceedings must continue until the final decision, otherwise there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. In that regard, an action for annulment brought by the addressee of a measure can be pursued by the addressee’s universal successor in title, particularly in the case of the death of a natural person. Similarly, the universal successor in title may bring an action for damages in respect of non-material harm allegedly suffered by the deceased, where, prior to his death, the latter had claimed the right to bring that action and, accordingly, that action formed part of his estate at the point of succession. Consequently, as regards an action seeking (i) annulment of Commission decisions rejecting requests for access to documents and for the transfer of personal data and (iii) compensation for the damage allegedly suffered, given that the universal successor in title of the applicant is entitled to pursue the action his interest in bringing proceedings is retained, despite the applicant’s death, for the purpose of obtaining the annulment of the decisions at issue and of obtaining compensation for the non-material damage allegedly suffered. (see paras 31, 32, 35)

See the text of the decision. (see paras 38, 39)

Since Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, is intended to ensure that any person may have access to documents, a document that has been disclosed in accordance with the provisions of that regulation enters the public domain. In that regard, while it is true that the disclosure of personal data exclusively concerning the applicant for access cannot be refused on the ground that it undermines the protection of privacy and the integrity of the individual, the situation is different as regards a request for access covering personal data that does not concern the applicant exclusively. Whilst protection of the interest referred to in Article 4(1)(b) of Regulation No 1049/2001 is not necessary in relation to the applicant for access, it must, however, be guaranteed in relation to third parties, in accordance with the provisions 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. In that context, it follows from Article 8(b) of Regulation No 45/2001 that whoever requests a transfer of personal data must establish that that transfer 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 the transfer in question might prejudice the legitimate interests of the data subject. In that regard, in so far as the documents requested contain personal data that does not concern the applicant for access exclusively and that would enter the public domain if those documents were disclosed to that person, the institution concerned cannot be criticised, after weighing the competing interests, for considering that the interest of third parties in preventing their identity from entering the public domain outweighed the interest of the applicant for access in their identity being made public, and for refusing to grant access to the applicant for access, on the basis of the exception provided for in Article 4(1)(b) of Regulation No 1049/2001. (see paras 51-54, 67, 77)

See the text of the decision. (see para. 55)

See the text of the decision. (see para. 56)

See the text of the decision. (see paras 57-60, 89)

See the text of the decision. (see paras 63-65)

See the text of the decision. (see para. 72)

See the text of the decision. (see para. 86)

It is clear from the case-law of the European Court of Human Rights on the application of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that a person’s right to protection of reputation is part of the right to respect for private life. A person’s reputation forms part of his personal identity and psychological integrity, which fall within the scope of his private life. The same considerations apply to personal honour. (see para. 100)

The protection of the fundamental right to respect for privacy means, inter alia, that any individual may be certain that the personal data relating to him is correct and that it is processed in a lawful manner. It is in order to be in a position to carry out the necessary checks that the data subject has a right of access to the data relating to him that is being processed. That right of access is necessary, inter alia, to enable the data subject to obtain, depending on the circumstances, the rectification, erasure or blocking of his data by the data controller and consequently to exercise the right to request that, after a certain period of time, assessments relating to him are erased, that is to say, destroyed. In that regard, in respect of a request for access to personal data in order, depending on the circumstances, to request the rectification or erasure thereof, in so far as the data at issue is personal data relating both to the applicant and to other third parties, it is appropriate to weigh the competing legitimate interests in order to determine whether there is an overriding interest justifying the refusal to grant the applicant a right of access to that personal data. Where the data has been requested for the purpose of understanding the accusations raised by the institution concerned against the applicant following a third-party complaint, that institution cannot, for the sake of completeness, refer in its decision to the fact that the person who lodged the complaint against the applicant did not want the personal data at issue to be brought to the attention of the applicant for fear of reprisals. (see paras 102, 106, 108)

As regards a request for access to personal data relating to the applicant and held by an EU institution, the mere fact that the document requested concerns an interest protected by an exception referred to in Article 20 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, is not sufficient to justify application of that exception. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article. (see para. 110)

See the text of the decision. (see para. 115)

See the text of the decision. (see para. 116)

See the text of the decision. (see para. 118)

The feeling of injustice and anxiety caused by the fact that an individual is required to undergo judicial proceedings in order to secure recognition of his rights constitutes harm that can be inferred from the mere fact that the administration acted unlawfully. That harm is reparable where it is not compensated by the satisfaction resulting from the annulment of the unlawful measure. (see para. 119)