# Judgment of the Court (Grand Chamber) of 29 June 2010.#European Commission v The Bavarian Lager Co. Ltd.#Appeal - Access to the documents of the institutions - Document concerning a meeting held in the context of a procedure for failure to fulfil obligations -Protection of personal data - Regulation (EC) No 45/2001 - Regulation (EC) No 1049/2001.#Case C-28/08 P.

- Type: Case Law
- Source: Court of Justice of the European Union
- Identifier: C-28/08
- Date: 2010-06-29
- Original: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0028
- Canonical: https://overview.legal/posts/597808
- Topics: Personal Data, Processing, Legitimate Interest, Right of Access, Supervision, Transparency, Marketing, Public Authority, Identification, Monitoring

## Sections (6)

### ¶37

And yet those articles constitute essential provisions of the system of protection established by Regulation No 45/2001. 65 Consequently, the particular and restrictive interpretation which the General Court gave to Article 4(1)(b) of Regulation No 1049/2001 does not correspond to the equilibrium which the Union legislature intended to establish between the two regulations in question. 66 In this case, it is apparent from the information on the file, and in particular from the contested decision, that, following the requests by Bavarian Lager of 4 May 1998, 5 December 2003 and 9 February 2004, the Commission sent the latter a document containing the minutes of the meeting of 11 October 1996, with five names removed. Of those five names, three persons could not be contacted by the Commission in order to give their consent, and two others expressly objected to the disclosure of their identity. 67 In refusing full access to that document, the Commission based its reasoning on Article 4(1)(b) of Regulation No 1049/2001 and Article 8 of Regulation No 45/2001. 68 It should be noted that, in paragraph 104 of the judgment under appeal, the General Court, in examining Article 2(a) of Regulation No 45/2001, that is to say the definition of the concept of ‘personal data’, correctly held that surnames and forenames may be regarded as personal data. 69 It also correctly established, in paragraph 105 of that judgment, in examining Article 2(b) of that regulation, that is to say the definition of the concept of ‘processing of personal data’, that the communication of such data falls within the definition of ‘processing’, for the purposes of that regulation. 70 The General Court was right to conclude, in paragraph 122 of the judgment under appeal, that the list of participants in the meeting of 11 October 1996 appearing in the minutes of that meeting thus contains personal data for the purposes of Article 2(a) of Regulation No 45/2001, since the persons who participated in that meeting can be identified. 71 Therefore, the decisive question is whether the Commission could grant access to the document including the five names of the participants in the meeting of 11 October 1996, in compliance with Article 4(1)(b) of Regulation No 1049/2001 and Regulation No 45/2001. 72 First of all, it should be noted 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. 73 The Commission, at the time of the first request by Bavarian Lager dated 4 May 1998, sought the agreement of the participants at the meeting of 11 October 1996 to the disclosure of their names.

> Topics: Personal Data, Consent, Processing

### ¶38

As the Commission indicates in the decision of 18 March 2003, that procedure was in compliance with the requirements of Directive 95/46, in force at that time. 74 Following a new request by Bavarian Lager to the Commission, dated 5 December 2003, seeking communication of the full minutes of the meeting of 11 October 1996, the Commission informed Bavarian Lager on 27 January 2004 that, having regard to the entry into force of Regulations Nos 45/2001 and 1049/2001, it was henceforward obliged to treat that request under the specific regime of those regulations, particularly Article 8(b) of Regulation No 45/2001. 75 Whether under the former system of Directive 95/46 or under the system of Regulations Nos 45/2001 and 1049/2001, the Commission was right to verify whether the data subjects had given their consent to the disclosure of personal data concerning them. 76 This Court finds that, by releasing the expurgated version of the minutes of the meeting of 11 October 1996 with the names of five participants removed therefrom, the Commission did not infringe the provisions of Regulation No 1049/2001 and sufficiently complied with its duty of openness. 77 By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Article 8(b) of Regulation No 45/2001. 78 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.

> Topics: Personal Data, Consent

### ¶39

Nor was it able to verify whether there was any reason to assume that the data subjects’ legitimate interests might be prejudiced, as required by Article 8(b) of Regulation No 45/2001. 79 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. 80 Therefore, the General Court erred in law in concluding, in paragraphs 133 and 139 of the judgment under appeal, that in this case the Commission had wrongly applied Article 4(1)(b) of Regulation No 1049/2001 and held that Bavarian Lager had not established either an express and legitimate purpose in obtaining, or any need to obtain, the document at issue in its entirety. 81 In the light of those considerations as a whole, it is appropriate, without there being any need to examine the other arguments and pleas of the parties, to set aside the judgment under appeal in so far as it annuls the contested decision.

> Topics: Personal Data, Legitimate Interest

### ¶40

The consequences of the judgment under appeal being set aside 82 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, if the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits. 83 That is the case here. 84 As the Court has found in paragraphs 69 and 73 of this judgment, the contested decision did not infringe the provisions of Regulations Nos 45/2001 and 1049/2001. 85 The action for annulment by Bavarian Lager against that decision must therefore be dismissed. Costs 86 Pursuant to the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of those rules, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings.

### ¶41

Under Article 69(4) of those rules, which applies to appeal proceedings by virtue of Article 118 thereof, Member States and institutions which intervene in the proceedings are to bear their own costs. The Court may order an intervener to bear its own costs. 87 Since the Commission has applied for costs and Bavarian Lager has been unsuccessful in the appeal, Bavarian Lager must be ordered to pay the costs relating to the appeal. 88 Since the Commission has also applied for an order that Bavarian Lager pay the costs of the procedure before the General Court and the action before that Court has been dismissed, Bavarian Lager must be ordered to pay the costs relating to the procedure at first instance. 89 The Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden, the United Kingdom, the Council and the European Data Protection Supervisor must be ordered to bear their own costs. On those grounds, the Court (Grand Chamber) hereby: 1.

### ¶42

Sets aside the judgment of the Court of First Instance of the European Communities of 8 November 2007 in Case T-194/04 Bavarian Lager v Commission, in so far as it annuls the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names, and in so far as it orders the European Commission to pay the costs of The Bavarian Lager Co. Ltd; 2. Dismisses the action of The Bavarian Lager Co. Ltd against the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names; 3. Orders The Bavarian Lager Co. Ltd to pay the costs incurred by the European Commission both in the context of the present appeal proceedings and before the Court of First Instance; 4. Orders the Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland, the Council of the European Union and the European Data Protection Supervisor to bear their own costs. [Signatures] * Language of the case: English.

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