Ref. Ares(2022)7130340 - 14/10/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MIGRATION AND HOME AFFAIRS
The Director-General
Brussels
HOME/MP/
Mr Andrea Glioti
By
email:
ask+request-11767-
xxxxxxxx@xxxxxxxx.xxx
Subject: Your application for access to documents – Ref GestDem 2022/4794
Dear Mr Glioti,
We refer to your e-mail of 24 August 2022 in which you make a request for access to
documents, registered on 25 August 2022 under the above-mentioned reference, and
clarified by your e-mail of 29 September 2022.
You request “
documents which contain the following information:
1) All correspondence (including emails and WhatsApp messages) between the European
Commission Migration and Home Affairs and the International Centre for Migration
Policy Development (ICMPD) since 02/03/2016
2) All minutes and any other records of the following meetings between representatives
of the ICMPD and the listed Commissioners, Members of their Cabinet or Director-
Generals, as documented in the EU Transparency Register:
https://ec.europa.eu/transparencyregister/public/consultation/displaylobbyist.do?id=428
294520891-74
a) Raul Hernandez Sagrera – 16/05/2022
b) Ylva Johansson and Raul Hernandez Sagrera – 25/05/2021
c) Paraskevi Michou – 24/01/2020
d) Ylva Johansson and Raul Hernandez Sagrera – 23/04/2020
e) Paraskevi Michou – 26/04/2018
f) Diane Schmitt – 07/09/2016
g)
Francesco Luciana Cabinet member of Dimitris Avramopoulos 27/07/2016.”
1. ASSESSMENT AND GENERAL CONCLUSIONS
Under
point 1) of your request, we identified the following 18 documents as falling within
the scope of your request:
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- A letter addressed to the EC, for a meeting request with ICMPD Director General –
March 2018, Ares(2022)5128185 (document 1);
- ICMPD input to the Targeted Consultation document towards the new EU strategy
addressing trafficking in human beings – July 2020, Ares(2022)5128119
(document 2);
- ICMPD feedback to roadmap on the revision of the EU Directive 2011/36 –
September 2021, Ares(2022)2140525 (document 3);
- ICMPD contribution to the public consultation on the revision of the EU Anti-
Trafficking Directive – March 2022 (2 documents):
o “ICMPD Contribution to the Public Consultation on the revision of the EU
Anti-Trafficking Directive”, Ares(2022)2140525 (document 4);
o “Feedback from: ICMPD”, Ares(2022)5128005 (document 5);
- Email exchanges on ICAT Joint Submission to the Public consultation on the Anti-
Trafficking Directive – March 2022, Ares(2022)5128064 (document 6);
- Complete MPF Steering Committee minutes since 2016 (12 documents):
o 1st Meeting: Ares(2022)4695491 (document 7),
o 2nd Meeting: Ares(2022)4694768 (document 8),
o 3rd Meeting: Ares(2022)4694904 (document 9),
o 4th Meeting: Ares(2022)4694964 (document 10),
o 5th Meeting: Ares(2022)4695064 (document 11),
o 6th Meeting: Ares(2022)4695112 (document 12),
o 7th Meeting: Ares(2022)4695151 (document 13),
o 8th Meeting: Ares(2022)4695430 (document 14),
o 9th Meeting: Ares(2022)4695255 (document 15),
o 10th Meeting: Ares(2022)4695297 (document 16),
o 11th Meeting: Ares(2022)4695334 (document 17),
o 12th Meeting: Ares(2022)4695389 (document 18).
Having examined documents 1 – 18 requested under the provisions of 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, I have come
to the conclusion that the requested documents should be disclosed. However, a complete
disclosure of the identified documents is prevented by the exception concerning the
2
protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation 1049/2001, because they contain the following personal data:
- the names and initials and contact information of Commission staff members not
pertaining to the senior management;
- the names and initials and contact details of other natural persons;
- handwritten signatures signatures of natural persons;
- other information relating to an identified or identifiable natural person.
Article 9(1)(b) of the Data Protection Regulation1 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 1049/2001, access
cannot be granted to the personal data contained in the requested documents, 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.
Please note that documents originating from third parties are disclosed to you based on
Regulation 1049/2001. However, this disclosure is without prejudice to the rules on
intellectual property, which may limit your right to reproduce or exploit the released
documents without the agreement of the originator, who may hold an intellectual
property right on them. The European Commission does not assume any responsibility
from their reuse.
Under
point 2), items c), e), f) and g) of your application, we regret to inform you that
the Commission does not hold any documents that would correspond to the description
given in your application.
As specified in Article 2(3) of Regulation 1049/2001, the right of access as defined in
that regulation applies only to existing documents in the possession of the institution.
Given that no such documents, corresponding to the description given in your
application, are held by the Commission, the Commission is not in a position to fulfil this
part of your request.
1 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, OJ L 295, 21.11.2018, p. 39.
3
Under
point 2), items a), b) and d), we have identified the following documents as falling
within the scope of your application:
* Short report: Meeting Commissioner Ylva Johansson with ICMPD Director General
Dr. Michael Spindelegger, 16/05/2022, registered under Ref. Ares(2022)6327013
(document 19);
* Flash report: Meeting Commissioner Ylva Johansson with ICMPD Director General
Dr. Michael Spindelegger, 25/05/2021, registered under Ref. Ares(2022)5080168
(document 20);
* Meeting report: Meeting Commissioner Ylva Johansson with ICMPD Director
General
Dr.
Michael
Spindelegger,
23/04/2020,
registered
under
Ref.
Ares(2022)5080168 (document 21).
Having examined the documents requested under the provisions of Regulation
1049/2001, I have come to the conclusion that document 21 can be fully disclosed and
that documents 19 and 20 should be partially disclosed.
Firstly, a complete disclosure of documents 19 and 20 is prevented by the exception
concerning the protection of privacy and the integrity of the individual, outlined in Article
4(1)(b) of Regulation 1049/2001 and by the exception concerning the protection of the
public interest as regards international relations, outlined in Article 4(1)(a), third indent, of
the Regulation.
Documents 19 and 20 contain the names and contact details of Commission officials not
forming part of senior management.
Article 9(1)(b) of the Data Protection Regulation 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 application, you do
not express any particular interest to have access to these personal data nor do you put
forward arguments to establish the necessity to have the data transmitted for a specific
purpose in the public interest.
Consequently, I conclude that access cannot be granted to the redacted personal data
included in the documents in question.
In addition, the third indent of Article 4(1)(a) of Regulation No 1049/2001 lays out an
exception based on the need to protect the public interest as regards international
relations. The Regulation states that
“[t]he institutions shall refuse access to a document
where disclosure would undermine the protection of […] the public interest as regards
[…] international relations”.
When it comes to the interests protected by Article 4(1)(a), according to settled case law
of the Court of Justice,
“refusal of access by the institution is mandatory where
disclosure of a document to the public would undermine the interests which that
provision protects, without the need, in such a case and in contrast to the provisions, in
particular, of Article 4(2), to balance the requirements connected to the protection of
4
those interests against those which stem from other interests”.2. Similarly, the Court
stressed that 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 1049/2001]
could undermine the public interest”3.
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”4.
Moreover, as regards the interests protected by the above-mentioned article,
“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.
Document 20, which is of an internal nature and contains a section on the EU-Turkey
Statement, has been examined in light of the above-mentioned case law. As it contains
comments regarding the EU approach and preferences in the context of sensitive
negotiations related to Turkey, revealing such details would jeopardise the EU-Turkey
relationship and ongoing negotiations related to migration and asylum. As such, public
disclosure of the redacted parts of documents would negatively affect the Commission's
effectiveness in the negotiations in a realistic and non-hypothetical way.
I conclude that there is a reasonable and concrete risk that public disclosure of the
requested document is likely to harm public interest in the area of international relations.
As such, access to the document must to be refused under the exception laid down in the
third indent of Article 4(1)(a) of Regulation 1049/2001 (protection of the public interest
as regards international relations). Therefore the relevant parts of the document in
question have been redacted.
2. MEANS OF REDRESS
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this 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:
2 Judgment of the Court of Justice of 1 February 2007, C-266/05 P,
Sison v
Council, EU:C:2007:75,
paragraph 46.
3 Judgment of the Court of Justice of 3 July 2014,
Council v
In’t Veld, C-350/12, EU:C:2014:2039,
paragraph 63.
4 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v
Council,
T-264/04, EU:T:2007:114, paragraph 40.
5 Judgment of the General Court of 11 July 2018,
ClientEarth v
European Commission, T-644/16,
EU:T:2018:429, paragraph 23. See also Judgment of the Court of Justice of 3 July 2014,
Council v
In ‘t Veld, C-350/12, EU:C:2014:2039, paragraph 63.
5
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 faithfully,
Monique PARIAT
Director-General
Annexes: 21 documents
6
Electronically signed on 14/10/2022 15:46 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121