Data Protection and FOI: ECJ’s Balancing Act

July 1, 2010

The Court of Justice has given judgment in Case C-28/08P, Commission v Bavarian Lager. The case required the Court to consider data protection and freedom of information rights as competing rights and to strike a balance between them.  

The EU Commission had declined to release all information in its possession relating to a meeting, but only insofar as it refused to name five persons who attended a meeting – the minutes and views expressed were disclosed. The Court of Justice rules that it was within its rights to restrict disclosure in this way. The Court of Justice judgment declines to take on the ‘big issues’ that many sought to see resolved in this case – in broad terms, the Court ruled that Bavarian Lager had failed to show why it needed to know the names and that, in the absence of any credible claim to need to know, the data protection/privacy rights triumphed, almost by default. The Court’s judgment contrasts with that of the Court of First Instance and with the Opinion of the Advocate General. 

The Access to Documents Regulation[i] provides that EU institutions are to refuse access to a document where disclosure would risk undermining the protection of the private life of an individual and to have particular regard to Community legislation on the protection of personal data. The Data Protection Regulation[ii] states that personal data cannot be transferred to recipients other than Community institutions and organs unless the recipient establishes that the data are necessary for the performance of a task carried out in the public interest or subject to the exercise of public authority. These two pieces of EU legislation both applied to the circumstances arising in the Bavarian Lager case. 

The Bavarian Lager company was created with a view to importing German beer in bottles, principally to supply pubs in the UK. However, its product could not be sold easily because most pubs at that time were bound by exclusive purchasing contracts requiring them to obtain their beer supplies from certain breweries. UK law required British breweries to grant public house managers the chance of buying a beer from another brewery on condition that it was cask-conditioned – the guest beer. But most beers produced outside the UK were sold in bottles and did not qualify for guest beer status. Bavarian Lager lodged a complaint with the Commission on the basis that the guest beer requirement constituted a measure having equivalent effect to a quantitative restriction on imports.

During the procedure for failure to fulfil obligations brought by the Commission against the UK, representatives of the Community and British administrations, and of the Confederation des Brasseurs du Marche Commun (‘CBMC’) took part in a meeting held on 11 October 1996. Bavarian Lager sought leave to take part in that meeting, but the Commission refused its request. Having been informed by the British authorities that the guest beer provision was going to be amended to allow the sale of bottled beer as a guest beer in the same way as cask-conditioned beer, the Commission informed Bavarian Lager that the procedure for failure to fulfil obligations would be suspended. The Commission then decided to take no further action on the matter.

Bavarian Lager made several requests to the Commission for access to documents placed on the file relating to the procedure for failure to fulfil obligations and the names of the participants in the meeting of 11 October 1996. The Commission agreed to disclose certain documents relating to the meeting, but blanked out five names appearing in the minutes, two persons having expressly objected to the disclosure of their identity and the Commission having been unable to contact the three others.

Bavarian Lager then made a fresh application to obtain the full minutes of the meeting of October 1996, stating the names of all the participants. By decision of 18 March 2004, the Commission rejected that application, citing in particular the protection of the private life of those persons, such as guaranteed by the Data Protection Regulation. Bavarian Lager brought an action before the Court of First Instance seeking annulment of that Commission decision. In its judgment of 8 November 2007 (Case T-194/04 Bavarian Lager v Commission), the Court of First Instance annulled the Commission decision, considering in particular that the mere entry of the names of the persons in question on the list of persons attending a meeting on behalf of the body they represented did not constitute an undermining of private life and did not place the private lives of those persons in any danger.

The Commission, supported by the UK government and the Council, brought an action before the Court of Justice against that judgment of the Court of First Instance.

In its judgment of 29 June, the Court of Justice points out that the Access to Documents Regulation establishes as a general rule that the public may have access to documents of the institutions, but lays down exceptions by reason of certain public and private interests. In particular, its provision laying down an exception to the right of access to a document – in cases where disclosure would undermine the privacy and the integrity of the individual — establishes a specific and reinforced system of protection of a person whose personal data could, in certain cases, be communicated to the public.

Where a request based on the Access to Documents Regulation thus seeks to obtain access to documents including personal data, the provisions of the Data Protection Regulation become applicable in their entirety, including the provision requiring the recipient of personal data to establish the need for their disclosure and the provision which confers on the data subject the right to object at any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her.

The Court of Justice then holds that the Court of First Instance was right to conclude that the list of participants in the meeting of 11 October 1996 appearing in the minutes of that meeting contains personal data, since the persons who participated in that meeting can be identified.

After pointing out that Bavarian Lager was able to have access to all the information concerning the meeting of 11 October 1996, including the opinions which those contributing expressed in their professional capacity, the Court of Justice examines the question whether the Commission could grant access to the document containing the five names of participants at that meeting, and arrives at the conclusion that the Commission was right to verify whether the data subjects had given their consent to the disclosure of personal data concerning them.

In the absence of the consent of the five participants at the meeting of October 1996, the Commission sufficiently complied with its duty of openness by releasing a version of the document in question with their names blanked out.

The Court stated ‘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 …It follows from the above that the Commission was right to reject the application for access to the full minutes of the meeting of 11 October 1996.’

The Court of Justice therefore annulled the judgment of the Court of First Instance.  

The judgment is available in full here

[i] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

[ii] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 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 (OJ 2001 L 8, p. 1)