DENNEKAMP V. EUROPEAN PARLIAMENT (15.7.2015) (“DENNEKAMP II”)

Necessity: An applicant for access to documents containing personal data must establish necessity (i.e. the transfer must be the most appropriate of the possible measures and it is proportionate to the goal) (¶¶ 60–61)

Contrary to what is argued by the applicant, the condition of necessity provided for in Article 8(b) of Regulation No 45/2001, thus interpreted, cannot be regarded as a broad interpretation of an exception to the fundamental right of access to documents which would result in an unlawful restriction of that right, contrary to EU case-law. Such an interpretation does not have the effect of creating a categorical exception for personal data to the principle of access to documents, but of reconciling two fundamental yet opposing rights where an application for access to documents relates to personal data, protected by Regulation No 45/2001, as is evident from paragraphs 56 to 59 above. In the relationship between the provisions protecting those opposing rights, the right of access to documents is also preserved, since the mandatory application, as in this case, of Article 8(b) of Regulation No 45/2001 merely results, first, in the applicant being required to establish the necessity of obtaining the transfer of personal data, that is to say, to prove that the measure concerned is proportionate and the most appropriate means of attaining the aim pursued (see, to that effect, judgment in Dennekamp v Parliament, cited in paragraph 4 above, EU:T:2011:688, paragraph 34), and, secondly, in the institution being required to examine whether the legitimate interests of the data subjects might be prejudiced by the transfer of personal data in the light of the applicant’s aim (see, to that effect, judgments in Commission v Bavarian Lager, cited in paragraph 4 above, EU:C:2010:378, paragraph 78, and Dennekamp v Parliament, cited in paragraph 4 above, EU:T:2011:688, paragraph 30). The strict interpretation of the conditions imposed by Article 8(b) of Regulation No 45/2001 does not in any way therefore result in an exception being established that would generally prevent any access to documents containing personal data.

None the less, the strict interpretation of the condition of necessity laid down by Article 8(b) of Regulation No 45/2001 does not mean that a general justification for the transfer of personal data, like the public’s right to information concerning the conduct of MEPs in the exercise of their duties, cannot be taken into consideration. In fact, as is already evident from paragraph 54 above, the general nature of the justification for the transfer has no direct effect on whether the transfer is necessary for the purposes of attaining the applicant’s aim.