Ref. Ares(2017)3750613 - 26/07/2017
EUROPEAN COMMISSION
DIRECTORATE-GENERAL MIGRATION AND HOME AFFAIRS
Director-General
Brussels,
HOME Ares(2017)
By registered letter with acknowledgment of
receipt
Mr Sean McCarthaigh
The Times
1st floor
50 Ringsend Road
Dublin 4
Ireland Advance copy by e-mail: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref. GestDem 2017/3995
Dear Mr McCarthaigh,
We refer to your request dated 06/07/2017, registered under the above mentioned GestDem
reference number.
In your application, you mentioned that you request access to the documents concerning all
correspondence with the Irish government over Ireland's failure to implement Prüm decisions
requiring member states to share DNA, fingerprint and vehicle registration data. This
concerns an infringement procedure against Ireland for non-compliance with Council
Decisions 2008/615/JHA and 2008/616/JHA (Prüm Decisions)1.
We therefore understand that you request to have access to the letter of formal notice
addressed by the European Commission to Ireland on 30 September 2016 and the letter of
reasoned opinion addressed by the European Commission to Ireland on 18 May 2017, and
respectively to correspondence exchanged between the Irish authorities and the European
Commission in relation to this subject in the context of the
infringement case 2016/2093 –
Non-compliance with Council Decisions 2008/615/JHA and 2008/616/JHA (Prüm
Decisions)2.
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents, I regret to inform you that your application
1 Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating
terrorism and cross-border crime and Article 20(2) of Council Decision 2008/616/JHA on the implementation of
Council Decision 2008/615/JHA
2 http://ec.europa.eu/atwork/applying-eu-law/infringements-
proceedings/infringement_decisions/index.cfm?lang_code=EN&r_dossier=20162093&noncom=0&decision_da
te_from=&decision_date_to=&active_only=0&title=&submit=Search
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cannot be granted, as disclosure is prevented by exception to the right of access as laid down in
Article 4(2) third indent of this Regulation which provides that "
The institutions shall refuse
access to a document where disclosure would undermine the protection of: (...) the purpose of
inspections, investigations and audits".
In particular, the documents which you seek to obtain relate to ongoing investigations regarding
possible infringements of EU law, and more specifically, to the failure of Ireland to take the
necessary steps to meet the obligations under Council Decision 2008/615/JHA on the stepping
up of cross-border cooperation, particularly in combating terrorism and cross-border crime and
Article 20(2) of Council Decision 2008/616/JHA on the implementation of Council Decision
2008/615/JHA.
Disclosure of the requested documents at this point in time would affect the climate of mutual
trust between the authorities of Ireland and the Commission, which is required in order to resolve
the case possibly without having to refer it to the European Court of Justice.
This interpretation of Article 4(2) in Regulation (EC) No 1049/2001 has been confirmed by the
General Court in the
Petrie judgment3, where it has acknowledged the existence of a general
presumption that disclosure of documents in infringement proceedings in principle undermines
the protection of the objectives of investigation activities, as long as these proceedings are
ongoing.
“
68. ….As the Court pointed out in paragraph 63 of its judgment in WWF (cited above in
paragraph 59), the Member States are entitled to expect the Commission to guarantee
confidentiality during investigations which might lead to an infringement procedure. This
requirement of confidentiality remains even after the matter has been brought before the
Court of Justice, on the ground that it cannot be ruled out that the discussions between
the Commission and the Member State in question regarding the latter's voluntary
compliance with the Treaty requirements may continue during the court proceedings and
up to the delivery of the judgment of the Court of Justice…. "
In addition to this, it is to be noted that, in interpreting Article 4 (2), third indent, of Regulation
No 1049/2001, the Court of Justice has emphasised the bilateral nature of an administrative
procedure between the Commission and the concerned Member State, from which followed the
absence of access rights in an administrative procedure between the Commission and the
concerned Member States. Indeed, the Court stated in its judgment of 29 June 20104 that
"the interested parties, except for the Member State responsible for granting the aid, do
not have a right under the procedure for reviewing State aid to consult the documents on
the Commission's administrative file. Account must be taken of that fact for the purposes
of interpreting the exception laid down by Article 4(2), third indent, of Regulation No
1049/2001. If those interested parties were able to obtain access, on the basis of
Regulation No 1049/2001, to the documents in the Commission's administrative file, the
system for the review of State aid would be called into question".
For this reason, the Court acknowledged the existence of a general presumption that disclosure
of documents in the administrative file in principle undermines protection of the objectives of
investigation activities. Like the procedure for reviewing State aid, infringement proceedings on
3 Case T-29/08
LPN v Commission, ECLI:EU:T:2011:448, para. 111.
4 Case C-139/07 P
Commission v Technische Glaswerke Ilmenau (TGI), ECLI:EU:C:2010:376, para. 58.
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the basis of Articles 258 or 260 TFEU are of a bilateral nature in which the Commission's
position is only addressed to the Member State concerned and as such the correspondence is
subject to the same protections.
This has been confirmed by the Court of Justice in a judgment of 16 July 2015 regarding
access to correspondence with a Member State on a case regarding alleged infringements of
EU environmental law. In that judgment, the Court of Justice has acknowledged the existence
of a general presumption that disclosure of documents in infringement proceedings in
principle undermines the protection of the objectives of investigation activities, as long as
these proceedings are ongoing5.
We have also considered whether partial access could be granted to documents requested. For
the same reasons as explained above, we are of the opinion that partial access cannot be
given.
The exception laid down in Article 4(2), third indent of Regulation 1049/2001 must be waived
if there is an overriding public interest in disclosure. Such an interest must, firstly, be a public
interest and, secondly, outweigh the harm caused by disclosure.
We consider that at this stage of the procedure, the public interest is best served by protecting
the climate of mutual trust between the Commission and the government of Ireland in order to
achieve full compliance by that Member State with the relevant Union legislation.
Moreover, we are of the opinion that the Commission has met at this stage the public's need for
information on the infringement proceedings in question with its press releases of 29 September
20166 and 17 May 20177.
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:
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/327
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
e –signed
Yours sincerely,
Matthias RUETE
5 Judgment of the Court of Justice 16 July 2015 in case C-612/13 P,
ClientEarth v Commission.
6 See Commission press release of 29 September 2016, available
at http://europa.eu/rapid/press-
release_MEMO-16-3125_en.htm
7 See Commission press release of 17 May 2017, available
at http://europa.eu/rapid/press-release_MEMO-17-
1280_en.htm?locale=en
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Electronically signed on 25/07/2017 15:34 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563