EUROPE - Black Tuesday for transparency

BRUSSELS - 2 / 7 / 2010 - The public until Tuesday had the right to know the names of the officials working on their behalf nor of lobbyists trying to influence those officials. However Tuesday the 29^th of June the European Court of Justice decided that the strict data protection rules should weigh more than the public interest rules. The outcome is devastating for the public’s right to know: This reverses the burden of proof, says expert lawyer. A ‘depressing judgement’ says key-politician.

 

By Brigitte Alfter

Andrew Ronnan from Northern England likes Bavarian beers. So in the 1990ies he intended to import Bavarian beer to his home country for sale there. Many of the pubs, however, had agreements with British breweries and could not serve foreign beers, so the European Commission started to look into this alleged breach of free competition. Ronnan wanted to participate in one of the meetings of the Commission, was refused and followed up by asking access to the minutes of the meeting including the list of participants. This is where it all started.

This week the case came to a conclusion with a judgment by the European Court of Justice, which – in short – forces the applicant to prove, that she or he has a good reason for disclosure of any name.  “Civil servants are only accountable at their discretion,” says lawyer Scott Crosby, a freedom of information expert and partner at Kemmler Rapp Böhlke & Crosby in Brussels after a first look at the judgment.

However for Crosby the real error in the judgment is to consider that merely identifying a civil servant who attends an official meeting in the course of his or her duties would undermine the protection of that person’s privacy and integrity. “Mentioning the name of a person, who does his duty, is not an infringement of this person’s privacy,” in Scott Crosby’s opinion. After all, there is no mention of “sexual orientation nor bank accounts”, he says. “This is switching the burden of proof from the Commission to the applicant,” says Crosby.

Andrew Ronnan does not trade beer anymore and found better businesses to make a living. He is an enthousiastic marathon runner, and not one who gives up easily. Obvioulsy he is not happy about the judgment. “As the EU expands, it grows only more essential that there is more openness in commercial discussions,” he comments. “We are not talking about how to make a nuclear bomb here. This is simple commercial business. If they want to keep corporate business organisations under the veil of secrecy, this is not in the wider interest of the 460 million European citizens,” he comments.

His reading of the judgment is that “if you scream loud enough for the names, then the Commission may have to release them”. In other words if you give a reason to release the names. “We didn’t give a reason, because 1049/01 says you don’t have to.”

The Bavarian Lager case was fought by lawyers James Webber and Matthew Readings of Shearman & Sterling in London. Webber is disappointed with the judgment. “This is a conservative judgment which provides legal clarity but does not support transparency,” he says.

In his view the Court decided, that access to documents is simply another form of data processing - there is little analysis about the transparency context in which the data is processed. In consequence “people who lobby the Commission in their professional capacity may now withhold their names from disclosure on the basis of their entitlement to privacy,” he says.

To overcome the privacy issues, the judgment thus introduces an obligation by the applicant to prove, that there is a necessary interest in disclosing the name. But proving that disclosure is necessary will be “very difficult,” Webber estimates. “This does not take account of the principle (of the access to documents regulation) that you don’t have to give reasons,” he says.

The Commission is not disappointed. “We are very pleased about the legal clarity,” says Michael Mann, spokesperson for Commissioner Maros Sefcovic, responsible for inter-institutional relations and administration. However at the time of this interview the Commission had not read the judgment in detail yet and did not want to comment further.

The European Data Protection Supervisor Peter Hustinx however did comment already one day after the judgment was published. The fact, that the Court of First Instance and the European Court of Justice came to opposite conclusions shows, according to Hustinx, that there is an urgent need to address the relationship between transparency and data protection in the current revision of the regulation.

Michael Cashman, British MEP and rapporteur for the revision of 1049/01 talks about “a depressing judgment” and promises, that he will work for taking into account the need to reinforce the principle of transparency particularly for people participating in meetings, where decisions are made.

Bavarian Lager chronology

The legislation thus includes the conflict between the two interests.  

November 2007 - The Court of First Instance reaches the conclusion, that the disclosure of the names “does not affect the private life of the persons in question, given that they participated in the meeting as representatives of the bodies to which they belonged. Moreover, as noted above, the minutes do not contain any individual opinions attributable to those persons, but positions attributable to the bodies which those persons represented.

Subsequently according to Andrew Ronnan the Commission granted him access to the minutes requested.

Bavarian Lager is supported by the Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden and the European Data Protection Supervisor.

Link list

Regulation 1049/01

Bavarian Lager at the General Court T-194/04, 2007