Ref. Ares(2022)5412794 - 27/07/2022
EUROPEAN COMMISSION
NEIGHBOURHOOD AND ENLARGEMENT NEGOTIATIONS
The acting Director-General
Brussels
Subject:
Your application for access to documents
Ref. GestDem No 2021/2757
Dear Mr Papetti,
I refer to your e-mail dated 14 May 20221 in which you made a request for access to
documents, registered on 16 May 20222 under the above-mentioned reference number.
You requested access to:
“
- Documents containing the supposed aim and the final outcome of the activities
performed by IOM in Libya under the “Support to Integrated border and
migration management in Libya” First phase and Second phase in partnership
with the Italian Minister of Interior.
- Documents containing the description of the already performed and expected
activities under the Activity n°6 of the Addendum 1 signed by DG NEAR
regarding the “Strengthen the Humanitarian Border Management and Health,
Border and Mobility capacities of South Libya authorities”.
- A detailed list of the activities performed so far in the same context by IOM.
- A list of the Libyan authorities involved in the aforementioned activities.”
I also refer to our email of 9 June 20223, in which we explained that an extended time
limit is needed for the purpose of internal consultations, and to our email of 30 June
1 Ref. Ares(2022)3684470.
2Ref. Ares(2022)4280923.
3 Ref. Ares(2022)4280950.
Mr Fabio Papetti
Viale Giulio Cesare, 92
00192 Roma
Italy
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
20224, by which we informed you that due to internal consultations, the reply to your
request was taking longer to be processed.
Based on the above, we have identified 35 documents as falling under the scope of your
request. Please find the list attached to this reply.
Having examined these documents under the provisions of Regulation (EC) No
1049/20015, I have decided that:
Partial access can be granted to documents 10, 12, 17, 19, 23, 24, 26, 28, 30, 32,
33 and 34 as full access is prevented by the exception to the right of access laid
down in Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of the
privacy and integrity of the individual).
Access must be refused to 1, 2, 3, 4, 5, 6, 7, 8, 9, 11,13, 14, 15, 16, 18, 20, 21, 22,
23, 26, 28, 32 and 35 as disclosure is prevented by the exceptions to the right of
access laid down in Article 4(1)(a), first indent (protection of the public interest
as regards public security), Article 4(1)(a), third indent (protection of the public
interest as regards international relations), Article 4(1)(b) (protection of the
privacy and integrity of the individual) and Article 4(3), first subparagraph
(protection of the decision-making process) of Regulation (EC) No 1049/2001.
The justifications are as follows:
1. Protection of the public interest as regards public security
Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 provides that
‘[t]he
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 ruled that, ‘
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’6.
In this context, it is important to mention that when (partial) access is given to documents
as a result of an application submitted under Regulation (EC) No 1049/2001, this access
is automatically granted to the public at large, and not only to the applicant concerned.
Taking into account the political sensitivity of the file at hand, this fact is of particular
importance, with specific reference to preventing and tackling migrant smuggling and
human trafficking.
4 Ref. Ares(2022)5066821.
5 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.
6 Judgment of the General Court of 11 July 2018,
Client Earth v
European Commission, T-644/16,
paragraph 23.
2
Having regard to the above, I conclude that there is a reasonably foreseeable and non-
hypothetical risk that disclosure of documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11,13, 14, 15, 16,
18, 20, 21, 22, 23, 26, 28, 32 and 35, or parts thereof, would undermine the protection of
the public interest as regards public security. Therefore, I consider that the use of the
exception under Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 is
justified, and that access to the documents in question must be refused on that basis.
I would also like to underline that Article 4(1)(a), third indent, of Regulation (EC) No
1049/2001 has an absolute character and does not envisage the possibility for the
applicant to demonstrate the existence of an overriding public interest.
2. Protection of the public interest as regards international relations
Article 4(1)(a), third 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 […] international relations […]'.
As per settled case-law, the institutions ‘must be recognised as enjoying a wide discretion
for the purpose of determining whether the disclosure of documents relating to the fields
covered by [the exceptions provided for in Article 4(1)(a) of Regulation (EC) No
1049/2001] could undermine the public interest’7.
Consequently,
‘the Court’s review of the legality of the institutions’ decisions refusing
access to documents on the basis of the mandatory exception […] 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’8.
The public disclosure of documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 18, 20, 21,
22, 23, 26, 28, 32 and 35 would be severely detrimental for the European Union relations
with its Member States and with the Libyan authorities. This could further jeopardize the
EU and the other partners’ ability to provide support to vulnerable migrants in Libya.
Moreover, disclosure of documents under Regulation (EC) No 1049/2001 has an
erga
omnes effect, preventing the institution from opposing communication of the disclosed
documents to other applicants9. As the General Court has stated,
‘disclosure by the
Union, to the public, of its own negotiating positions, when the negotiating positions of
the other parties remain secret, could, in practice, have a negative effect on the
negotiating capacity of the Union’10.
Against this background, there is a risk that full disclosure of these documents would
undermine the protection of the public interest as regards international relations. I
7 Judgment of 3 July 2014 in case C-350/12,
Council v
In ‘t Veld, paragraph 63.
8 Judgment of 25 April 2007 in case T-264/04,
WWF European Policy Programme v
Council, paragraph
40.
9 Judgment of 21 October 2010 in case T-439/08,
Agapiou Joséphidès v Commission and EACEA,
paragraph 116.
10 Judgment of 19 March 2013 in case T-301/10,
In 't Veld v Commission, paragraph 125.
3
consider this risk as reasonably foreseeable and non-hypothetical, given the sensitivity of
the issue and the current context in Libya.
I would also like to underline that Article 4(1)(a), third indent, of Regulation (EC) No
1049/2001 has an absolute character and does not envisage the possibility for the
applicant to demonstrate the existence of an overriding public interest.
3. Protection of the privacy and the integrity of the individual
Complete disclosure of documents 10, 12, 17, 19, 23, 24, 26, 28, 30, 32, 33 and 34 is
prevented by the exception concerning the protection of privacy and the integrity of the
individual outlined in Article 4(1)(b) of Regulation (EC) No 1049/2001. In particular,
these documents contain the names and handwritten signatures of Commission staff
members not pertaining to the senior management, as well as of staff members of other
organisations.
Article 9(1)(b) of the Data Protection Regulation11 does not allow the transmission of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data, nor do you
put forward any arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
document, 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.
4. Protection of the commercial interests
Article 4(2), first indent, of Regulation (EC) No 1049/2001 provides that "[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of commercial interests of a natural or legal person, including intellectual
property, [...], unless there is an overriding public interest in disclosure".
It should be noted that the exception relating to commercial interests can be applied to
non-commercial entities, such as non-profit associations or even public entities. This is
due to the fact that giving access to the requested information could be used to distort
competition in future procedures, because of its commercial value. Alternatively, its
disclosure can prejudice the legitimate interests of economic operators who participated
in the relevant procedures.
11 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, Official Journal L 295 of 21 November 2018, p. 39.
4
Finally, the exception of Article 4(2), first indent, of Regulation (EC) No 1049/2001 has
to be read in light of Article 339 of the Treaty on the Functioning of the European Union,
which requires staff members of the EU institutions to refrain from disclosing
information of the kind covered by the obligation of professional secrecy, in particular
information about undertakings, their business relations or their cost components. In
consequence, there is a real and non-hypothetical risk that public access to the
abovementioned information would undermine the "commercial interests" of the third
parties.
Unfortunately, it is not possible to give more detailed reasons justifying the need for
confidentiality without disclosing its content and, thereby, depriving the exception of its
very purpose12.
No overriding public interest in disclosure
The exception laid down in Article 4(2), first indent, of Regulation (EC) No 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest
must, firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your application, you do not invoke any interest except your own interest which is of a
private nature. For these reasons, you have not established arguments that would show
the existence of an overriding public interest in disclosure at this point in time. Neither
has the Commission identified such an overriding public interest, based on the elements
in its possession.
For all these reasons, I do not see in the case at hand a public interest within the meaning
of Regulation (EC) No 1049/2001, that is to say objective and general in nature and
which is not indistinguishable from individual or private interests that would outweigh
the public interest in protecting the decision-making process.
Partial Access
We have considered whether partial access could be granted to the documents currently
withheld but this was deemed impossible, as the sensitive elements are integral to them.
Please note that we cannot provide you with more detailed information on these
documents without disclosing their substance, which is protected by the quoted
exceptions laid down in Article 4 of Regulation (EC) No 1049/2001.
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 this position.
12 Judgment of 24 May 2011 in joined cases T-109/05 and T-444/05,
NLG v Commision, paragraph 82.
Judgment of 8 February 2018 in case T-74/16,
Pagkyprios organismos ageladotrofon v Commission,
paragraph 71.
5
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
Secretariat-General
Transparency,
Document
Management
&
Access
to
Documents
(SG.C.1)
BERL 7/076
B-1049 Bruxelles
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[e-signed]
Maciej POPOWSKI
6
Electronically signed on 27/07/2022 13:25 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121