Dear Taskforce on Article 50 negotiations with the United Kingdom,

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:

In the section dealing with Ireland and Northern Ireland, the Joint Report of the UK and the EU Brexit negotiators published on 8 December 2017 states that "[t]he Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European legal and policy framework." See paragraph 47 of this document:

https://ec.europa.eu/commission/sites/be...

I am writing to request disclosure of this mapping exercise. Please note the following:

1. I have already requested this information from the UK government, which has confirmed that it holds details of the mapping exercise, but is still considering my request. Details of my request can be found here: https://www.whatdotheyknow.com/request/b...

2. I am not seeking disclosure of any documents discussing the implications of the mapping exercise for the negotiations; I am only seeking disclosure of documents which make up the mapping exercise itself.

3. I consider that there are compelling reasons why the information should be disclosed. In particular, the impact of Brexit on the border between Northern Ireland and the Republic of Ireland is a matter of significant public interest and debate, both in the UK and the EU, particularly in the Republic of Ireland. It raises complex issues which are frequently poorly explained in the media and in some cases presented in a highly misleading manner. Disclosure of the requested information could reasonably be expected to inform and enhance the level of debate.

4. I am conscious that the Taskforce cannot be expected to disclose all documents relating to the Article 50 negotiations because in some instances, disclosure could reasonably be expected to prejudice those negotiations. In this case, however, the report referred to above indicates that the mapping exercise is something that negotiators on both sides are aware of and upon which they have reached a common understanding. It would also appear to be information which essentially describes the current border and trade arrangements, rather than sets out future policy options for the post-Brexit period. Against that background, it is difficult to see how its disclosure could conceivably prejudice the negotiations.

I look forward to hearing from you.

Yours faithfully,

Jonathan Rush

Taskforce on Article 50 negotiations with the United Kingdom

Thank you for your request for access to documents.
Unfortunately you have not indicated your postal address that is required for registering and handling your request in line with the procedural requirements. Please send us your full postal address at your earliest convenience. Pending your reply, we reserve the right to refuse the registration of your request.
You may, of course, use directly the electronic form for entering your request:

http://ec.europa.eu/transparency/regdoc/...

You have lodged your application via the AsktheEU.org website. Please note that this website is not under the European Commission's management, therefore the European Commission cannot be held accountable for any technical issues or problems linked to the use of this system

Best regards,

ACCESS TO DOCUMENTS TEAM

European Commission
Secretariat General
Unit SG.B4 – Transparency

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Dear Taskforce on Article 50 negotiations with the United Kingdom,

I have sent you my full postal address via the electronic form which you linked to in your reply. Please let me know if there is any other information you require.

I look forward to hearing from you.

Yours faithfully,

Jonathan Rush

Jonathan Rush left an annotation ()

I have now received a reply from the Article 50 Taskforce indicating that the time limit for responding to my request has been extended until 16 March 2018.

Jonathan Rush left an annotation ()

The European Commission responded to my request on 9.3 .2018. It has refused to disclose the Brexit NI mapping exercise, based on Articles 4(3) and 4(1)(a) of Regulation 1049/2001.

The 4(3) ground is that disclosure would "seriously undermine the institution's decision-making process." This is said to be the case here because disclosure would undermine the EU's negotiating position in the Brexit talks. That reasoning seems questionable given that the mapping exercise appears to have been shared with the UK - so both sides are well aware of what it says. Indeed, according to the Joint Report dated 8.12.2017, both sides were agreed that the mapping exercise demonstrates that "North-South cooperation relies to a significant extent on a common European legal and policy framework."

The 4(1)(a) ground is that disclosure would undermine the public interest as regards international relations. The Commission's argument is that disclosure of the material would prejudice the working relationship with UK counterparts. Had I requested material which might disclose the intentions of either party with regard to future EU-UK relations, a refusal on this ground might be understandable. But my request made it clear that I was not requesting any such information - and since the mapping exercise relates to the current position, it should not reveal the parties' intentions with regard to the future. So once again, the reliance on this ground seems questionable.

I will be asking the Commission to review its position, although I am not especially hopeful of a positive reply - so it looks as if I will need to complain to the European Ombudsman (a process likely to take some time).

Jonathan Rush left an annotation ()

On 26.3.2018, I asked for a review of the Article 50 Task Force's refusal of my request. See:
https://www.dropbox.com/s/roz1wumw9l1egi...

Jonathan Rush left an annotation ()

Since my last update, a number of MEPs have kindly written to the Commission in support of my request for review and on 12.4.2018, I sent this follow-up email to the Commission (no idea if it will do any good, but thought it was worth a try!):

Dear Sirs

Ref GestDem No 2018/758 - application for disclosure of Brexit North-South “mapping exercise” under Regulation 1049/2001 - request for review of decision to refuse disclosure

Further to my email of 26 March 2018 and the attached request for a review, I am writing to draw your attention to recent statements made by the EU Chief Brexit Negotiator and head of the Article 50 Task Force, Michel Barnier, which I believe are relevant to my request.

In the concluding remarks of a speech to the European Parliament on 10 April 2018, he placed particular emphasis on the importance of disclosing as much information as possible about the Brexit negotiations, saying that: “[t]ransparency is key for the public debate that we need on Brexit. This negotiation will not and cannot be secret.” See: http://europa.eu/rapid/press-release_SPE...

The principles outlined by M. Barnier support my argument that disclosure of the mapping exercise referred to above is vital if there is to be a proper public debate about post-Brexit border arrangements between Northern Ireland and the Republic of Ireland (which is the only way to build lasting political consent for those arrangements).

I trust that you will take full account of these principles when considering my request for disclosure of the mapping exercise.

In view of the recent letter dated 6 April 2018 from Lucy Anderson MEP, I am also copying in the European Ombudsman (for information only).

I look forward to hearing from you.

Yours faithfully

Jon Rush

Jonathan Rush left an annotation ()

On 23.4.2018, the European Commission informed me that it was extending the time to respond to my request for a review until 16 May. This is because "we have not yet been able to gather all the elements we need to carry out a full analysis" and "our consultations with the UK authorities relating to the requested documents are not yet finalised."

Jonathan Rush left an annotation ()

On 7.6.2018 the European Commission issued a decision confirming its refusal of my request. See:
https://www.dropbox.com/s/87b9n47zw8i1y5...

Having requested clarification of some factual aspects of the decision, I received this response from the Article 50 Task Force on 22.6.2018:
https://www.dropbox.com/s/wy7ooqz6ee3exg...

On 7.8.2018 I submitted a formal complaint to the European Ombudsman, which you can read here:
https://www.dropbox.com/s/4u070xbhzpw5mt...

I am hoping that the European Ombudsman will prioritise my complaint (under its new fast-track procedure for access to documents complaints).

Jonathan Rush left an annotation ()

The European Ombudsman confirmed that it had accepted my complaint as admissible on 29.8.2018. In the course of September, I understand that an inspection of the Commission's file has been carried out. The Ombudsman aims to deal with access to documents complaints within about 40 working days. Using 29.8 as the start date, that takes us to end of October. Based on this and on correspondence with officials dealing with the case, I am optimistic that a decision will be forthcoming by sometime in November, if not before.

Jonathan Rush left an annotation ()

On 9.11.2018, the European Ombudsman decided that the European Commission (EC) was justified in withholding the mapping exercise on the grounds that its disclosure could prejudice international relations (because the UK told the EC that it opposed disclosure). However, she has also stated that she expects the mapping exercise to be disclosed as soon as the relevant negotiations are concluded.

Among other things, I had argued that disclosure would help rather than hinder the negotiations, given that many of the difficulties on the UK side appear to stem from a failure to understand the extent to which North-South cooperation relies on the existing EU framework of law (with the resulting confusion making it difficult for the UK to reach a coherent policy position). However, as a matter of EU law, all the EC had to show was that it had reasonable grounds for concluding that disclosure could harm relations with the UK - it was not required to consider whether there was an overriding public interest in disclosure. Given the UK’s opposition to disclosure of the mapping exercise, it would be difficult for the Ombudsman to justify a conclusion that the Commission had no reasonable grounds at all for thinking that relations could be harmed. Although I am obviously disappointed with the outcome, I think that the Ombudsman’s decision is probably correct as a matter of EU law. She has, however, expressed the view that, had there been a requirement to consider the overriding public interest, this could have been met in this case (see paragraph 35). You can read the decision here: https://www.dropbox.com/s/j17y8nyd6n2dhi...

I don't think there is much mileage in seeking a review of the Ombudsman's decision. However, I may appeal against the UK Information Commissioner's decision to uphold the UK government's refusal to disclose the same information - and if so, I may well refer to parts of the Ombudsman's decision in my grounds of appeal. See further:
https://www.whatdotheyknow.com/request/b...

Jonathan Rush left an annotation ()

Although the Ombudsman called for the mapping exercise to be released once negotiations on the Withdrawal Agreement had concluded, this has still not happened - which is very disappointing. In particular, it means that UK MPs have voted on the draft Withdrawal Agreement without having access to key information which should have been made available to them in order to scrutinise it properly. I have written to the European Commission on numerous occasions asking them to release the mapping exercise (in line with the Ombudsman's decision) but have received no reply (other than an acknowledgement of receipt last year - but since then, nothing).

On 7.12.2018, the UK government released the list of 156 areas covered by the mapping exercise together with some commentary - but the material disclosed does not appear to be the same document which the Ombudsman examined in her investigation (although I understand that the list of areas covered is identical). The UK document appears to be missing key information, namely an assessment of the extent to which each of the 156 areas is underpinned by EU legal or policy frameworks; this is important because without it, you cannot work out whether the draft Withdrawal Agreement puts adequate arrangements in place to ensure that those areas of cooperation can continue effectively after Brexit. The UK document can be accessed here:
https://www.gov.uk/government/publicatio...

Before asking the European Commission to disclose it, I had also requested this information from the UK government under the Freedom of Information Act but it was refused (and in October 2018, that decision was upheld by the UK Information Commissioner). I have appealed against the Information Commissioner's decision and am now awaiting the Tribunal's ruling. See: https://www.whatdotheyknow.com/request/b...