Ref. Ares(2019)3258814 - 17/05/2019
EUROPEAN COMMISSION
NEIGHBOURHOOD AND ENLARGEMENT NEGOTIATIONS
The Director-General
Brussels,
By registered letter
Subject:
Your application for access to documents
Dear Mr Fachile,
I refer to your application dated 21 March 20191, registered under the reference number
GestDem 2019/17822, in which you make a request for access to:
“In-depth Guidelines on how to carry out the activities generically indicated in
the Action Document T05-EUTF-NOA-LY-06;
Any agreement signed between the EU and the project managing partners, which
are the International Organisation for Migration (IOM) and UN High
Commissioner for Refugees (UNHCR);
Information concerning detailed activities that are being implemented by the IOM
and the UNHCR with local partners (like DCIM and Libyan Coast Guard),
especially:
o
implementation plans and agreements,
o
data on beneficiaries reached and estimated to be reached,
o
monitoring reports on performed activities
o
and a list of actions that have already been planned for the future;
1 Ref. Ares(2019
)1951306
2 Ref. Ares(2019
)1951756
Mr. Salvatore Fachile
Piazza Giuseppe Mazzini no 8
00195 Rome
Italy
Advance copy by email:
ask xxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË — Tel. +32 22991111
Minutes of the meetings of the Operational Committee, as the body responsible
for reviewing and approving the actions financed by the EUTF, and evaluating
reports of the impact of this project on migrants and refugees human rights in
Libya;
Financial reports detailing the expenditure items of the 29 000 000 Euros budget
so far invested in the project.”
I.
Review of requested documents
1. “In-depth Guidelines on how to carry out the activities generically indicated
in the Action Document T05-EUTF-NOA-LY-06”
I regret to inform you that DG NEAR does not hold any documents that would correspond
to this description. As specified in Article 2(3) of Regulation (EC) No 1049/20013, the
right of access applies only to existing documents in the possession of the institution.
Given that no such guidelines corresponding to the description given in your application
are held by DG NEAR, DG NEAR is not in a position to fulfil this part of your request.
2. “Any agreement signed between the EU and the project managing partners,
which are the International Organisation for Migration (IOM) and UN High
Commissioner for Refugees (UNHCR)”
I regret to inform you that access to contractual documents (of the two Delegation
Agreements) cannot be granted, as disclosure is prevented by the exception mentioned in
Article 4(1)(a), first indent (protection of the public interest as regards public security) of
Regulation (EC) No 1049/2001, for the reasons set out below in section II of this letter.
Nevertheless, I am pleased to inform you that wide access, subject to redaction of
personal data (in accordance with Article 4(1)(b) of Regulation (EC) No 1049/2001), can
be granted to the Minutes of the Steering Committee which provide information on the
implementation of these programmes by the International Organisation for Migration
(hereafter “IOM”) and the Office of the United Nations High Commissioner for Refugees
(hereafter “UNHCR”). The justifications related to the redaction of personal data are
presented below in section II of this letter.
- Minutes of the 1st Meeting of the Steering Committee, Managing mixed migration flows in
Libya through expanding protecting space and supporting local socio-economic
development, 18 October 2017;
-Minutes of the 2nd Meeting of the Steering Committee, Managing mixed migration flows in
Libya through expanding protecting space and supporting local socio-economic
development, 7 December 2018.
3. “Information concerning detailed activities that are being implemented by
the IOM and the UNHCR with local partners (like DCIM and Libyan Coast
Guard), especially:
3 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, Official Journal
L 145 of 31 May 2001, p. 43.
2
o
implementation plans and agreements,
o
data on beneficiaries reached and estimated to be reached,
o
monitoring reports on performed activities,
o
and a list of actions that have already been planned for the future”.
Under the EU Trust Fund for Africa, the IOM has been providing trainings on a broad
range of topics, i.e. human rights, the combatting of human trafficking, first aid, English
language and IT skills. Beneficiaries have so far included a wide variety of local
government institutions, public service providers and Libyan migration authorities, such
as the Libyan Coast Guard, the Directorate for Combatting Illegal Migration, the General
Administration for Coastal Security, and the staff of relevant Libyan ministries.
At the same time, the UNHCR has held trainings on long-term solutions and legal
avenues for refugees and asylum seekers for relevant Libyan authorities (Ministry of
Interior, Ministry of Foreign Affairs and Immigration Department), as well as to local
NGOs (including the ones that are working in hard-to-reach areas, such as South and East
Libya) on coordination, protection and humanitarian principles.
4. “Minutes of the meetings of the Operational Committee, as the body
responsible for reviewing and approving the actions financed by the EUTF,
and evaluating reports of the impact of this project on migrants and refugees
human rights in Libya”
The following documents have been identified:
Minutes of the 1st Operational Committee for the North of Africa Window of the
EU Emergency Trust Fund for stability and addressing the roots causes of
irregular migration and displaced persons in Africa (the EU Emergency Trust
Fund), 16 June 2016;
Minutes of the 2nd Operational Committee for the North of Africa Window of
the EU Emergency Trust Fund for stability and addressing the roots causes of
irregular migration and displaced persons in Africa (the EU Emergency Trust
Fund), 16 December 2016;
Minutes of the 3rd Operational Committee for the North of Africa Window of
the EU Emergency Trust Fund for stability and addressing the roots causes of
irregular migration and displaced persons in Africa (the EU Emergency Trust
Fund), 23 May 2017;
Minutes of the 4th Operational Committee for the North of Africa Window of the
EU Emergency Trust Fund for stability and addressing the roots causes of
irregular migration and displaced persons in Africa (the EU Emergency Trust
Fund), 4 December 2017;
Report – 5th Operational Committee of the EU Emergency Trust Fund for
stability and addressing the root causes of irregular migration and displaced
persons in Africa (EUTF) North of Africa window, 6 July 2018;
Report – 6th Operational Committee of the EU Emergency Trust Fund for
stability and addressing the root causes of irregular migration and displaced
persons in Africa (EUTF) North of Africa window, 13 December 2018.
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I am pleased to inform you that wide access is granted to these documents, subject only
to redaction of personal data, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, for the justifications mentioned below under section III of this letter.
5. “Financial reports detailing the expenditure items of the 29 000 000 Euros
budget so far invested in the project”
I regret to inform you that DG NEAR does not hold any documents that would correspond
to this description. As the named programme (UNHCR component) only started on 1
September 2018, to date no financial report has been received.
Given that no such financial report is held by DG NEAR, DG NEAR is not in a position
to fulfil this part of your request.
II.
Protection of the public interest as regards public security
Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 provides that ‘the
institutions shall refuse access to a document where disclosure would undermine the
protection of the public interest as regards public security’.
As regards the interests protected by Article 4(1)(a) of Regulation (EC) No 1049/2001,
the General Court has acknowledged that ‘the institutions enjoy a wide discretion when
considering whether access to a document may undermine the public interest and,
consequently, […] the Court’s review of the legality of the institutions’ decisions
refusing access to documents on the basis of the mandatory exceptions relating to the
public interest must be limited to verifying whether the procedural rules and the duty to
state reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’.4
Moreover, the General Court recently ruled that, as regards the interests protected by
Article 4(1)(a) of Regulation (EC) No 1049/2001, ‘it must be accepted that the
particularly sensitive and fundamental nature of those interests, combined with the fact
that access must, under that provision, be refused by the institution if disclosure of a
document to the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complexity and delicacy that call for the
exercise of particular care. Such a decision requires, therefore, a margin of
appreciation’.5
Taking into account the highly volatile and complex situation in Libya at the moment, it
is of particular importance to protect the overarching human security objective and the
implementation of these programmes which aim a saving human lives. Contractual
documents contain concrete information whose disclosure could put at risk not only the
IOM and UNHCR staff, partners and contractors but also the project target groups,
consisting mostly of vulnerable migrants such as unaccompanied minors, returnees and
internally displaced people.
In addition, the documents in question contain information that, if revealed, could impede
future access to the final beneficiaries of the IMO and UNHCR activities. This could also
undermine the strategy for future activities planned by the IOM and UNHCR, which
4 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v Council of the
EU, T-264/04, EU:T:2007:114, paragraph 40.
5 Judgment of the General Court of 11 July 2018,
Client Earth v European Commission, T-644/16,
EU:T:2018:429, paragraph 23.
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involve emergency services and direct protection assistance in identified areas of
intervention. This in itself also constitutes a risk for public security.
Therefore, disclosure of these documents would undermine the protection of the public
interest as regards public security protected by Article 4(1)(a) first indent of Regulation
1049/2001, and access has to be refused on that basis.
III.
Protection of the privacy and integrity of the individual
Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document has
to be refused if its disclosure would undermine the protection of privacy and the integrity
of the individual, in particular in accordance with European Union legislation regarding
the protection of personal data.
The applicable legislation in this field is Regulation (EU) 2018/1725 of the European
Parliament and of the Council of 23 October 2018 on the protection of natural persons
with regard to the processing of personal data by the Union institutions, bodies, offices
and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC (‘Regulation 2018/1725’).
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data ‘means any
information relating to an identified or identifiable natural person […]’. The Court of
Justice has specified that any information, which by reason of its content, purpose or
effect, is linked to a particular person is to be considered as personal data.6
In its judgment in Case C-28/08 P (Bavarian Lager)7, the Court of Justice ruled that when
a request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable.8
Pursuant to Article 9(1)(b) of Regulation 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have
6 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:C:2017:994.
7 Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
8 Whereas this judgment specifically related to 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, the
principles set out therein are also applicable under the new data protection regime established by
Regulation 2018/1725.
5
the data transmitted for a specific purpose in the public interest. It is only in this case that
the European Commission has to examine whether there is a reason to assume that the
data subject’s legitimate interests might be prejudiced and, in the affirmative, establish
the proportionality of the transmission of the personal data for that specific purpose after
having demonstrably weighed the various competing interests. In your request, you do
not put forward any arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest. Therefore, the European Commission does not
have to examine whether there is a reason to assume that the data subject’s legitimate
interests might be prejudiced.
Notwithstanding the above, please note that there are reasons to assume that the
legitimate interests of the data subjects concerned would be prejudiced by disclosure of
the personal data reflected in the documents, as there is a real and non-hypothetical risk
that such public disclosure would harm their privacy.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data, as the need to obtain access
thereto for a purpose in the public interest has not been substantiated and there is no
reason to think that the legitimate interests of the individuals concerned would not be
prejudiced by disclosure of the personal data concerned.
IV.
Partial Access
I have considered whether partial access could be granted to the documents to which access
is refused but this was deemed impossible as the sensitive elements are integral to them.
Please note that I cannot provide you with more detailed information on these documents
without disclosing their substance which is protected by the quoted exception laid down in
Article 4 (1)(a) first indent of Regulation (EC) No 1049/2001.
V.
Means of Redress
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review its position. Such
a confirmatory application should be addressed within 15 working days upon receipt of this
letter to the Secretary-General of the Commission at the following address:
European Commission
Secretary-General
Transparency unit SG.C.1
BERL 7/076
B-1049 Bruxelles/Brussel
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[e-signed]
Christian Danielsson
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Electronically signed on 17/05/2019 15:50 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563