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European Commission to citizens: “Human rights are trumped by commercial secrecy – get over it”

1725393_429468097185565_262770321_nBy Simon Davies

Earlier this week the Secretary General of the European Commission issued a volatile administrative ruling that had the remarkable effect of simultaneously retarding both privacy and transparency.

The decision by Europe’s top civil servant came after a two-month consideration of an appeal by the Privacy Surgeon against the Commission’s refusal to disclose internal documents relating to the EU competition Commissioner.

EU Secretary-General Catherine Day: Public interest has nothing to do with us.

EU Secretary-General Catherine Day: Public interest has nothing to do with us.

This latest development highlights a stark difference of view over whether there is a public interest in disclosing documents that have traditionally been regarded as secret.

The original request for documents was submitted by the Privacy Surgeon in mid November. It sought data related to the Commission’s operational procedures and requested clarification of the conduct of its current inquiry into Google.

The request stemmed from a blog published on this site in October that raised questions about the Commissioner’s handling of privacy issues in the Google inquiry. The article pointed out that the competition Commissioner appears to have ignored crucial data protection and privacy concerns, despite having signalled in public statements that privacy was relevant to competition considerations.

Since the time of the original request for information, concerns over irregularities and perceived misconduct by the competition directorate of the Commission have grown. Following the competition Commissioner’s latest public statement of February 5th on the Google investigation, a journalist from the Guardian raised questions about the propriety of his private meetings with Google Executive Chairman Eric Schmidt – details of which the Commission has refused to divulge.

In her response to the appeal by the Privacy Surgeon, the Secretary General upheld the Commission’s initial absolute rejection of the information request. The Secretary General’s reasoning, however, was often illogical. For example, the Privacy Surgeon’s appeal argued that there was a “perception that the Commissioner [Commissioner Almunia] has ignored crucial data protection and privacy concerns” and thus evidence was required to provide assurance that this was not the case.

Since the time of the original request for information, concerns over irregularities and perceived misconduct by the competition directorate of the Commission have grown.

Instead of recognising the Catch-22 that needed to be broken through at least partial disclosure, the Secretary General went on the attack, noting:

“(This) appears to be your personal view. You did not adduce evidence that this view is shared more generally in the industry, let alone that it is a perception shared by the wider public. It can therefore not be held on the basis of the evidence you brought that the assessment of the accuracy of that perception would be in the interest of the public.”

Of perhaps even greater concern is the fact that despite the competition Commissioner having publicly acknowledged in 2012  that privacy was a key market consideration, he has said nothing on the point since – a silence that might satisfy Google’s fundamental antagonism to privacy rights.

The Privacy Surgeon’s appeal noted an apparent contradiction in the Commissioner’s position on privacy, on the one hand arguing that it could be a central competition issue, and on the other, disregarding it in all his dealings on the Google investigation.

Remarkably, the Secretary General argued against our position as follows:

“As the Vice President did not take a view on specific cases, and in particular on the case at hand, I cannot identify any contradiction between his positions. Absent a contradiction, there cannot logically be an overriding public interest in disclosing documents with a view to explore the reasons of that contradiction.”

This, ironically, is the personal view of the Secretary General.

The most disquieting aspect of the Secretary General’s position, however, is its refusal to acknowledge the central pillar of the appeal – the maintenance of public trust in the integrity of the Commissioner. This was dismissed as the “opinion” of the appellant, and no reasoning was applied to rejection of this argument.

The Privacy Surgeon is considering whether to take the decision to further appeal.