European Commission v The Bavarian Lager Co. Ltd.
Date: 2010-06-29
36. The Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-0000, paragraph 31 and case-law cited).
49. As the General Court rightly states in paragraph 98 of the judgment under appeal, when examining the relationship between Regulations Nos 1049/2001 and 45/2001 for the purpose of applying the exception under Article 4(1)(b) of Regulation No 1049/2001 to the case in point, it must be borne in mind that those regulations have different objectives. The first is designed to ensure the greatest possible transparency of the decision-making process of the public authorities and the information on which they base their decisions. It is thus designed to facilitate as far as possible the exercise of the right of access to documents, and to promote good administrative practices. The second is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their private life, in the handling of personal data.
54. According to recital 2 of that regulation, openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.
56. Regulations Nos 45/2001 and 1049/2001 were adopted on dates very close to each other. They do not contain any provisions granting one regulation primacy over the other. In principle, their full application should be ensured.
63. It follows that, where a request based on Regulation No 1049/2001 seeks to obtain access to documents including personal data, the provisions of Regulation No 45/2001 become applicable in their entirety, including Articles 8 and 18 thereof.
64. By not taking account of the reference in Article 4(1)(b) of Regulation No 1049/2001 to the legislation of the Union concerning the protection of personal data and thus to Regulation No 45/2001, the General Court dismissed at the outset, in paragraph 107 of the judgment under appeal, the application of Article 8(b) of Regulation No 45/2001, and, in paragraph 109 of the judgment under appeal, the application of Article 18 of Regulation No 45/2001. And yet those articles constitute essential provisions of the system of protection established by Regulation No 45/2001.
66. In this case, it is apparent from the information on the file, and in particular from the contested decision, that, following the requests by Bavarian Lager of 4 May 1998, 5 December 2003 and 9 February 2004, the Commission sent the latter a document containing the minutes of the meeting of 11 October 1996, with five names removed. Of those five names, three persons could not be contacted by the Commission in order to give their consent, and two others expressly objected to the disclosure of their identity.
67. In refusing full access to that document, the Commission based its reasoning on Article 4(1)(b) of Regulation No 1049/2001 and Article 8 of Regulation No 45/2001.
68. It should be noted that, in paragraph 104 of the judgment under appeal, the General Court, in examining Article 2(a) of Regulation No 45/2001, that is to say the definition of the concept of ‘personal data’, correctly held that surnames and forenames may be regarded as personal data.
69. It also correctly established, in paragraph 105 of that judgment, in examining Article 2(b) of that regulation, that is to say the definition of the concept of ‘processing of personal data’, that the communication of such data falls within the definition of ‘processing’, for the purposes of that regulation.
70. The General Court was right to conclude, in paragraph 122 of the judgment under appeal, that the list of participants in the meeting of 11 October 1996 appearing in the minutes of that meeting thus contains personal data for the purposes of Article 2(a) of Regulation No 45/2001, since the persons who participated in that meeting can be identified.
77. By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Article 8(b) of Regulation No 45/2001.
78. As Bavarian Lager has not provided any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission has not been able to weigh up the various interests of the parties concerned. Nor was it able to verify whether there was any reason to assume that the data subjects’ legitimate interests might be prejudiced, as required by Article 8(b) of Regulation No 45/2001.