European Commission v The Bavarian Lager Co. Ltd.

• Jurisdiction: European Union
• Celex Number: 62008CC0028
• ECLI: ECLI:EU:C:2009:624
• Docket Number: C-28/08
• Date: 15 October 2009
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de anulación

OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 15 October 2009 (1)

Case C‑28/08 P

Commission of the European Communities

v

The Bavarian Lager Co. Ltd

(Appeal – Access to documents of Community institutions – Document relating to a meeting held in proceedings for failure to fulfil obligations)

Table of contents

I – Introduction

II – Legal background

A – Relevant provisions of the Treaties and other international instruments

B – Secondary Community law

1. Regulation (EC) No 45/2001

2. The Community legislation on the right of access to documents

III – The facts in the proceedings before the Court of First Instance

IV – Proceedings before the Court of First Instance and the judgment under appeal

V – The proceedings before the Court of Justice and the parties’ grounds of appeal

VI – Summary of the positions of the parties and the interveners

A – The appeal

B – The observations of Bavarian Lager and the interveners

VII – Analysis of the appeal

A – The solution proposed for the first and second grounds of appeal

1. Comparison of the two regulations at issue

a) The travaux préparatoires for Regulation No 45/2001

b) The case-law

c) Further objections

2. The consequences of reconciling the two regulations in this way

a) Examining the problem in general terms

b) Consequences

c) The correct interpretation of Article 4(1)(b) of Regulation No 1049/2001

d) The modus operandi of this interpretation: three examples

3. Outcome

B – The third ground of appeal

C – Alternative solution to the first and second grounds of appeal

VIII – Costs

IX – Conclusion

I – Introduction

1. A democratic society governed by the rule of law has a fundamental interest both in wide public access to documents and in ensuring the protection of individual privacy and integrity. Both public access to documents and the protection of privacy are fundamental rights duly recognised under European Union law.

2. The present appeal brings into sharp focus the relationship between those two rights. Is there an essential, operational conflict between the provisions of the secondary legislation adopted by the European Union, in the form of the regulations concerning, respectively, access to documents and the protection of personal data? Or are the regulations capable of being harmoniously reconciled – and, if so, how precisely is this to be achieved?

3. Framed in those terms, the problem has much in common with the conundrum inherent in the question posed by Isaac Asimov: ‘What would happen if an irresistible force met an immovable object?’ (2) Replace ‘irresistible force’ by the right of access to documents and ‘immovable object’ by the right to protection of personal data and we have a vivid illustration of the intrinsic complexity of the appeal brought by the Commission before the Court of Justice. (3)

4. But the biggest surprise is not that questions like those encountered in scientific fields can arise in jurisprudence but rather that, as we shall see, the answer to be given also appears to be inspired by Asimov’s. After analysing the concepts of ‘irresistible force’ and ‘immovable object’, Asimov takes the view, essentially, that no universe with such inherent contradictions can exist, so that the question is meaningless and should not be answered. The solution that I suggest to the Court of Justice for this appeal also starts from the necessity adequately to define the legal concepts embodying the rights that allegedly collide. The clash will then be seen to be more apparent than real.

II – Legal background

A – Relevant provisions of the Treaties and other international instruments

5. Given that the dispute between the Commission and Bavarian Lager concerns fundamental human rights, it is appropriate to begin with Article 6 EU:

‘1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [‘ECHR’] (4) and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

…’

6. Regarding the fundamental right to privacy, Article 8 of the ECHR provides:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

7. Supplementing that provision, the Council of Europe approved on 28 January 1981 the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (‘Convention No 108’), which the Commission describes in its appeal as having influenced the relevant Community legislation. The second recital to that convention states ‘… it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing’.

8. Article 1 of Convention No 108 describes the aim and purpose of the convention in the following terms:

‘The purpose of this convention is to secure … for every individual … respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him.’

9. In the context of the EC Treaty, the right of access to documents of the Community institutions was embodied, following the Treaty of Amsterdam, in Article 255:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

…’

10. As regards the right to the protection of personal data, Article 286(1) EC provides that Community acts concerning the processing and free movement of such data are to apply to the Community institutions and bodies. (5)

11. The Charter of Fundamental Rights of the European Union (‘the Charter’) (6) also recognises the fundamental importance both of the protection of personal data and of the right of access to documents. Thus, Article 8(1) and (2) provide as follows:

‘1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.’

12. Article 42 deals with access to documents in the following terms:

‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.’

13. Article 7 of the Charter, under the heading ‘Respect for private and family life’, partially reproduces Article 8 of the ECHR, stating that:

‘Everyone has the right to respect for his or her private and family life, home and communications.’

14. Finally, Declaration No 17 annexed to the Final Act of the Maastricht Treaty states that transparency of the decision-making process strengthens the democratic nature of the institutions and the public’s confidence in the administration, and calls on the Commission to submit measures designed to improve public access to the information available to the institutions.

B – Secondary Community law

1. Regulation (EC) No 45/2001 (7)

15. Adopted on the basis of Article 286 EC, this regulation is the main instrument protecting personal data when they are processed in any way by Community institutions. It is one of a package of legislative measures, together with Directives 95/46/EC (8) and 97/66/EC, (9) which make up the acquis communautaire in relation to the protection of personal data.

16. In this appeal, it is appropriate first to focus on certain parts of its preamble. Thus, recital 8 provides that ‘[t]he principles of data protection should apply to any information concerning an identified or identifiable person’.

17. Recital 14 states that the Community provisions should apply ‘to all processing of personal data by all Community institutions and bodies in so far as such processing is carried out in the exercise of activities all or part of which fall within the scope of Community law’.

18. Next, recital 15 clearly and explicitly states that ‘[a]ccess to documents, including conditions for access to documents containing personal data, is governed by the rules adopted on the basis of Article 255 [EC] ... the scope of which includes Titles V and VI of the [EU] Treaty …’.

19. Finally, recital 22 states that ‘[t]he rights accorded the data subject and the exercise thereof should not affect the obligations placed on the controller’.

20. The main purpose of Regulation No 45/2001 is then set out in Article 1(1):

‘The institutions and bodies set up by, or on the basis of, the Treaties establishing the European Communities, hereinafter referred to as “Community institutions or bodies”, shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data …’, laying emphasis on compliance with the legal framework adopted under...