Access to documents and data protection in the European Union: On the public nature of personal data

Abstract

If one of the EU Institutions is asked by a citizen to disclose a document which contains personal data, a difficult and sensitive situation can arise. The person asking for the information invokes his or her right of access to documents, while the Institution is obliged to respect the right to data protection of the person to whom the information in the document relates. Two fundamental rights can lead to opposing claims. How this collision can be solved is the focus of this article. It appears that the current legislation in which the right to public access to documents (Regulation 1049/2001) and the right to data protection (Regulation 45/2001) are elaborated does not sufficiently address this possible collision. Although in November 2007 the Court of First Instance has clarified the legal framework to a certain extent, in the judgment in the so-called Bavarian Lager case, questions still remain. It is therefore argued that the legislation should be changed in this respect. Inspired by examples from national legislation and case law from the European Court of Justice as well as the European Court of Human Rights a concrete proposal is developed, which is timely since the Regulation on access to documents is currently under revision.

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