Gerecht EU wijst nietigverklaring van besluit van EFSA af
HvJ EU 16 september 2013, zaak T-214/11 (ClientEarth tegen EFSA) - dossier
Nietigverklaring, afwijzing, vergunningaanvraag, gewasbeschermingsmiddelen. Nietigverklaring van het besluit van de Europese Autoriteit voor Voedselveiligheid (EFSA) van 10 februari 2011, waarbij is geweigerd verzoeksters volledig toegang te verlenen tot bepaalde documenten aangaande het opstellen van richtsnoeren inzake de wetenschappelijke documentatie die dient te worden gevoegd bij de vergunningaanvragen voor het in de handel brengen van gewasbeschermingsmiddelen en van de in deze producten vervatte werkzame stoffen. Het gerecht wijst de vorderingen af.
Preliminary observations
31 Article 41(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), as amended by Regulation (EC) No 1642/2003 of the European Parliament and of the Council of 22 July 2003 (OJ 2003 L 245, p. 4), provides that Regulation No 1049/2001 is to apply to applications for access to documents held by EFSA. Under Article 41(3) of Regulation No 178/2002, as amended, decisions taken by EFSA, pursuant to Article 8 of Regulation No 1049/2001, on confirmatory applications, may form the subject of an action before the General Court, under the conditions laid down in Article 228 TFEU and Article 263 TFEU respectively.
38 It is appropriate, first, to examine the first plea in law, then the third plea in law and, finally, the second plea in law.
The first plea in law:
the inapplicability to this case of Article 4(1)(b) of Regulation No 1049/2001 and of Regulation No 45/2001
39 Article 4(1)(b) of Regulation No 1049/2001, on which EFSA particularly based its refusal of access to the information at issue in the decision of 12 December 2011, provides that ‘[t]he institutions shall refuse access to a document where disclosure would undermine the protection of … privacy and the integrity of the individual, in particular in accordance with [European Union] legislation regarding the protection of personal data’. According to the case-law, that is an indivisible provision which requires that any undermining of privacy and the integrity of the individual must always be examined and assessed in conformity with European Union legislation concerning the protection of personal data, and in particular with Regulation No 45/2001. That provision thus establishes a specific and reinforced system of protection of a person whose personal data could, in certain cases, be communicated to the public (Case C‑28/08 P Commission v Bavarian Lager [2010] ECR I‑6055, paragraphs 59 and 60, and judgment of 7 July 2011 in Case T‑161/04 Valero Jordana v Commission, not published in the ECR, paragraph 87).
40 It follows that, where an application based on Regulation No 1049/2001 seeks to obtain access to documents containing personal data, the provisions of Regulation No 45/2001 become applicable in their entirety (Commission v Bavarian Lager, paragraph 39 above, paragraph 63, and Valero Jordana v Commission, paragraph 39 above, paragraph 88).
43 In this case, EFSA disclosed to the applicants all the comments on the draft guidance document that were submitted by the expert members of the PPR and the PSC. The applicants also know the names of those experts. It is clear from the Court file that the names, biographies and declarations of interests in respect of each of the experts concerned were disclosed on EFSA’s website. The only information relating to the comments at issue which has not been made available to the applicants is the link between each comment and its author, as the applicants confirmed at the hearing. They want EFSA to enable them to make that link, in other words know the names of the authors of each comment.
44 In that regard, first, it must be observed that it is clear from the case‑law that the name of an individual may be considered to be personal data even in situations where the individual concerned is employed by the institution concerned (see, to that effect, Commission v Bavarian Lager, paragraph 39 above, paragraph 68, and Valero Jordana v Commission, paragraph 39 above, paragraph 91).
45 Secondly, the Court of Justice has held that the list of participants in a meeting organised by the Commission, which had been attended by representatives of a business organisation, appearing in the minutes of that meeting, contained personal data within the meaning of Article 2(a) of Regulation No 45/2001, since those participants could be identified (see, to that effect, Commission v Bavarian Lager, paragraph 39 above, paragraph 70).
46 It must therefore be held that the information at issue, which makes possible the personal identification of the authors of some comments and which is comparable in nature to the information requested in the case which gave rise to the judgment in Commission v Bavarian Lager, paragraph 39 above, is a set of personal data, within the meaning of Article 2(a) of Regulation No 45/2001, even if that information is held by EFSA in an employment context.
47 The examination and assessment of the request for access submitted by the applicants was therefore subject, as regards the information at issue, to the provisions of Regulation No 45/2001 (see, to that effect, Valero Jordana v Commission, paragraph 39 above, paragraph 92).
48 That conclusion cannot be invalidated by any of the arguments put forward by the applicant.
The second plea in law:
the existence of a public interest justifying disclosure of the information at issue, in accordance with Article 8(a) and (b) of Regulation No 45/2001
70 As stated in paragraph 64 above, where the institutions receive a request for access to documents which contain personal data, those documents may be transferred to requesting parties such as the applicants only if those requesting parties demonstrate that the transfer is necessary and that there is no reason to assume that the data subjects’ legitimate interests might be prejudiced by the transfer, in accordance with Article 8(b) of Regulation No 45/2001.
71 The applicants submit three arguments which they claim demonstrate that the disclosure of the information at issue was justified on public interest grounds and, therefore, that the transfer of that information was necessary. EFSA and the Commission do not accept those arguments.
81 The second argument submitted by the applicants must therefore be rejected.
The third plea in law:
82 Thirdly, the applicants claim that the only legitimate interests of the experts concerned, who have already accepted that EFSA should disclose their names and biographies on its website, are that their identity is not misused, their reputation is not prejudiced and their opinions are not distorted. Any other interest is a vested interest which should not be protected. Lastly, according to the case-law, an opinion should be disclosed even if that might bring external pressure to bear on the person expressing it.
83 In that regard, suffice it to observe that it is clear from a reading of Article 8(b) of Regulation No 45/2001 that the conditions referred to in that provision which must be satisfied before an institution is entitled to transfer personal data, namely that the recipient establishes that it is necessary that the data is transferred and that there is no reason to assume that the data subject’s legitimate interests might be prejudiced, are cumulative. Since the applicants have not established in this case that the transfer of the personal data which they requested was necessary, there is no need to determine whether there are legitimate interests of the data subjects which must not be prejudiced by the transfer if it is to be permitted.
Costs
87 Under Article 87(3) of the Rules of Procedure, the Court may order the costs to be shared or the parties to bear their own costs if each party succeeds on some and fails on other heads, or where the circumstances are exceptional.
88 In this case, EFSA, in the course of proceedings, gave access to all the documents which the applicants had requested in the confirmatory application and the refusal of access to which had caused this action to be brought, with the exception of the information at issue. In the light of those exceptional circumstances, the applicants and EFSA shall be ordered to bear their own costs.
89 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which intervene in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders ClientEarth and Pesticide Action Network Europe (PAN Europe), the European Food Safety Authority (EFSA) and the European Commission each to bear their own costs.
