Annual Report on the Status of PESCO Implementation 2020

Tommaso Angelini Battaglia made this access to documents request to European External Action Service

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Tommaso Angelini Battaglia

Dear European External Action Service,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

High Representative of the Union for Foreign Affairs and Security Policy Annual Report on the Status of PESCO Implementation 2020

Yours faithfully,
Tommaso Angelini Battaglia

EEAS ACCESS TO DOCUMENTS, European External Action Service

Dear Mr Battaglia,

 

This message is an acknowledgement of receipt for your request for access
to documents under Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents (which the EEAS is
also respecting).

 

Your request for access to document have been registered under reference
number: 2021/036. Please refer to this number in any further
correspondence.

 

In accordance with the Regulation, you will receive a reply within 15
working days at the latest.

 

Yours sincerely,

 

EEAS ACCESS TO DOCUMENTS (AD)

[1][EEAS request email]

SG.AFFGEN.2 – Parliamentary Affairs

References

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EEAS ACCESS TO DOCUMENTS, European External Action Service

2 Attachments

Dear Mr Battaglia,

 

On behalf of Mr Visentin please find attached the reply to your request
for access to documents.

 

Yours sincerely,

 

EEAS ACCESS TO DOCUMENTS (AD)

[1][EEAS request email]

SG.AFFGEN.2 – Parliamentary Affairs

 

References

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Tommaso Angelini Battaglia

Dear European External Action Service,

Kindly pass this email on to the person(s) who review(s) confirmatory applications.

Thank you for your email dated 5th March 2021 containing your reply to my FOI request of 24th
February 2021 (your reference 2021/036), concerning the 'Annual Report on the Status of PESCO Implementation 2020' (HR(2020)54).

After having examined duly your response and the document, I am filing the following confirmatory
application, for the reasons indicated in the following paragraphs.

The right to access documents of the European Institutions, enshrined in art. 42 of the Charter of
Fundamental Rights of the European Union, and provided efficacy by the Regulation (EC) 1049/2001
of 30 May 2001, is to be interpreted extensively, as it emerges from the point 10 of the preamble
to the Regulation, where it is stated that “all documents of the institutions should be accessible to
the public”. Thus, any exception should be interpreted restrictively, and must be duly justified, as
well as proportional(1).

In your response, you argue that, pursuant to Article 4(1)(a)3rd indent of the Regulation, the refusal
of the disclosure of the full document is necessary because it “could seriously undermine the
international relations”. I argue that this justification, which reproduces the wording of the cited
article, is insufficient due to lack of motivation, being in breach of art. 253 EC.
In fact, according to your response, the information contained, which could undermine international relations is of two different kinds: 1. “sensitive information from the national implementation plans of the
participating Member States” and 2. “recommendations for optimizing implementation
mechanisms and exchange of information”.

None of these two points appear to be sufficiently justified. National Implementation Plans, in fact,
are largely available to the public on the internet (2), so that information elaborated by the HRVP on
the basis of said documents appears to have no reason to remain hidden from the public.
Concerning point n. 2, Council Recommendation 2020/C 204/01 of 15th June 2020 contains several
recommendations to pMS and directly cites the document object of this confirmatory application.

Furthermore, there appears to be no possible causal link between the disclosure of a document
which contains information on the status of the implementation of PESCO, which is a framework for
cooperation on security and defense among member states, and the possible undermining of
international relations of the EU. The progress of implementation of PESCO is a matter of public
record, with periodical Council recommendation and press releases on the matter, so that at least the parts
concerning the implementation status should be made freely readable.

Furthermore, even if these reasons were sufficiently justified, they would still prove disproportional.
The document supplied is in fact composed of 41 pages: while, for the first 16 pages, you have
provided a few lines per each page, which do not allow the understanding of the general meaning
of the document, pages 16 to 41 are completely missing. Thus, the “partial disclosure” is only
nominal.

For these reasons, I respectfully ask that you reconsider your decision and suggest that you provide
the requested document.

A full history of my request and all correspondence is available on the Internet at this address:
https://www.asktheeu.org/en/request/annu...

Thank you very much for your attention.
Yours faithfully,
Tommaso Angelini Battaglia

1 See, among others, T-211/00 Kuijer v Council [2002] ECR II-485, paragraphs 55 and 56
2 See, for instance, Finland’s NIP: https://www.eduskunta.fi/FI/vaski/Liitea...

EEAS ACCESS TO DOCUMENTS, European External Action Service

Dear Mr Battaglia,

 

This message is an acknowledgement of receipt for your confirmatory
application requesting for a review of our reply, dated 5 March 2021,
under Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents (which the EEAS is also respecting).

 

Your confirmatory application has the same reference number 2021/036 as
the initial one. Please refer to this number in any further
correspondence.

 

In accordance with the Regulation, you will receive a reply within 15
working days: 9/4/2021.

 

Yours sincerely,

 

EEAS ACCESS TO DOCUMENTS (AD)

[1][EEAS request email]

SG.AFFGEN.2 – Parliamentary Affairs

References

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1. mailto:[EEAS request email]

Tommaso Angelini Battaglia

Dear EEAS ACCESS TO DOCUMENTS,

Kindly pass this email on to the person(s) who review(s) confirmatory applications.

Concerning my email for a confirmatory application, with your reference number 2021/036, I kindly ask that you completely disregard my previous email and consider only the following email as my confirmatory application. I acknowledge that this may make the response time longer.

You correctly summarised that I requested the document ‘High Representative of the Union for
Foreign Affairs and Security Policy Annual Report on the Status of PESCO Implementation 2020’.
You have identified this document as HR (2020)54, to which you have granted partial access.
Pursuant to Article 7(2) of Regulation (EC) No 1049/2001, I ask the Council to review the decision
to grant only partial access to the document in question, taking into consideration the following:
- The harm test applicable to Article 4(1)(a) has not been sufficiently proven as it was not
sufficiently demonstrated how full disclosure of the document would cause a reasonable
foreseeable, non-hypothetical harm to international relations.
- The Union institutions must conduct their work as openly as possible
- The disclosure of this document is within the public interest.

1. The harm test applicable to Article 4(1)(a) has not been sufficiently proven, as it was
not sufficiently demonstrated how full disclosure of the document would cause a
reasonable foreseeable, non-hypothetical harm to international relations.
Full access to HR (2020)54 has been refused under Article 4(1)(a), on the grounds of the protection
of international relations. With respect to the protection of the public interest as regards
international relations You state that the document:
contains sensitive information from the national implementation plans of the participating
Member States, which they provide as a basis for the ongoing assessment and review of,
among other things, objectives, investments, ongoing and new projects as well as the
fulfilment of strategic and operational commitments by each participating Member State in
accordance with its national implementation plan. It also contains recommendations for
optimizing implementation mechanisms and exchange of information.
Taking due account of the content of the document and on the basis of its internal and
external consultations, the EEAS has come to the conclusion that disclosure of the document
in full would undermine the EU’s action in this sensitive area and would also have a
negative impact on its international relations.
Simply stating that the release of the documents could have a “negative impact” is not sufficient in
demonstrating the harm is of such a level that it would compensate denying a citizen their
fundamental right of access to documents.
We should stress that a mere “negative” impact does not meet the level of test required. In Case T
233/09 Access Info Europe v Council, the General Court confirmed that the mere fact that a
document concerns an interest protected by an exception to disclosure is not sufficient to justify the
application of that exception. The Court of Justice of the European Union has also stated that an EU
body “remains obliged (...) to explain how disclosure of that document could specifically and
actually undermine the interest protected by an exception provided for in that provision, and the
risk of the interest being undermined must be reasonably foreseeable and must not be purely
hypothetical.” 1

It remains unclear precisely how full disclosure threatens to have a “negative impact” on the
international relations of the EU, particularly given the subject of the document–the Permanent
Structured Co-Operation (PESCO)–is an internal integration project with no third-country
involvement. The EEAS must be able to explain how, specifically and actually, disclosing the
redacted information would undermine the international relations of the EU.

2. The Union institutions must conduct their work as openly as possible
Article 15 of the Treaty on the Functioning of the European Union states:
In order to promote good governance and ensure the participation of civil society, the
Union's institutions, bodies, offices and agencies shall conduct their work as openly as
possible.
As stated in Case C‑280/11 P, the Court lays out the “advantage” of increased openness is that it
enables citizens to participate more closely in the decision-making process and guarantees that the
administration enjoys greater legitimacy and is more effective and more accountable to the citizen
in a democratic system.
In addition to this, in relation to the right of access to EU documents, recital 4 in the preamble to
Regulation (EC) No 1049/2001 states:
The purpose of this Regulation is to give the fullest possible effect to the right of public
access to documents
Article 1 of Regulation 1049/2001 states:
‘The purpose of this Regulation is:
(a) to define the principles, conditions and limits on grounds of public or private interest
governing the right of access to European Parliament, Council and Commission …
documents … in such a way as to ensure the widest possible access to documents.

3. The disclosure of this document is within the public interest.
The disclosure of this document in full is within the public interest because:
In 2018 the collective defence spending of the EU 27 reached €162 billion, representing
over 2.6% of government expenditure and 1.2% of European GDP 2 . In addition, the
European Defence Agency’s general budget amounted to €37 million 3 . Given PESCO
projects represent a significant proportion of this expenditure, it is clearly in the public
interest as regards international relations and military co-operation that civil society is able
to scrutinise their performance and evaluate whether they represent value-for-money.

For these reasons, I respectfully ask that you reconsider your decision and suggest that you provide
the requested document.

A full history of my request and all correspondence is available on the Internet at this address:
https://www.asktheeu.org/en/request/annu...

Yours sincerely,

Tommaso Angelini Battaglia

(1) Judgment of 3 July 2014. Council of the European Union v Sophie in 't Veld.C-350/12P para. 64
(2) https://ec.europa.eu/eurostat/web/produc...
(3) https://eda.europa.eu/who-we-are/Budget

EEAS ACCESS TO DOCUMENTS, European External Action Service

Dear Mr Battaglia,

 

This message is an acknowledgement of receipt for your confirmatory
application requesting for a review of our reply, dated 5 March 2021,
under Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents (which the EEAS is also respecting).

 

As requested the EEAS will completely disregard your previous email and
consider only the new email as your confirmatory application.

Your confirmatory application has the same reference number 2021/036 as
the initial one. Please refer to this number in any further
correspondence.

 

Yours sincerely,

 

EEAS ACCESS TO DOCUMENTS (AD)

[1][EEAS request email]As

SG.AFFGEN.2 – Parliamentary Affairs

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EEAS ACCESS TO DOCUMENTS, European External Action Service

1 Attachment

Dear Mr Battaglia,

 

On behalf of Mr Di Vita please find attached the reply to your
confirmatory request for access to documents.

 

Yours sincerely,

 

EEAS ACCESS TO DOCUMENTS (AD)

[1][EEAS request email]

SG.AFFGEN.2 – Parliamentary Affairs

 

References

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