Documents filed in ECJ cases

The request was successful.

Dear Legal Service,

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

All documents filed by the European Commission, the European Council, and the Hellenic Republic in case T‑193/16, and joined cases C‑208/17 P, C‑209/17 P and C‑210/17 P.

My postal address is:
Luisa Izuzquiza
Open Knowledge Foundation Deutschland e.V.
Singerstr. 109
10179 Berlin
Germany

Please do not hesitate to contact me if you need any clarification in regards to any aspect of my request.

Thank you in advance.

Yours faithfully,

Luisa Izuzquiza

Dear Legal Service,

If possible, I would like to add to my request the following documents, which I forgot to include initially:
- all documents filed by the Kingdom of Belgium in case T‑193/16.

Many thanks in advance.

Yours faithfully,

Luisa Izuzquiza

EC ARES NOREPLY,

1 Attachment

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Ares(2018)5505827 - Your request for access to documents - reference
Gestdem 2018/5601

Sent by ve_sj.acces docs (SJ) <[SJ request email]>. All responses
have to be sent to this email address.
Envoyé par ve_sj.acces docs (SJ) <[SJ request email]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Ms Izuzquiza

 

Thank you for your  e-mails dated 25/10/2018, asking for access to:

- all documents filed by the European Commission, the European Council,
and the Hellenic Republic in case T‑193/16, and joined cases C‑208/17 P,
C‑209/17 P and C‑210/17 P and

- all documents filed by the Kingdom of Belgium in case T‑193/16.

 

We hereby acknowledge receipt of your request for access to documents,
which was registered on the same date under reference number GestDem
2018/5601.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on
19/11/2018. In case this time limit needs to be extended, you will be
informed in due course.

 

You have lodged your application via the AsktheEU.org website. Please note
that this is a private third-party website which has no link with any
institution of the European Union. Therefore, the European Commission
cannot be held accountable for any technical issues or problems linked to
the use of this system.

 

Please note that the private third party running the AsktheEU.org website
is responsible and accountable for the processing of your personal data
via that website, and not the European Commission. For further information
on your rights, please refer to the third party’s privacy policy.

 

We understand that the third party running that website usually publishes
the content of applicants’ correspondence with the European Commission on
that website. This includes the personal data that you may have
communicated to the European Commission (e.g. your private postal
address).

 

Similarly, the third party publishes on that website any reply that the
Commission will send to the email address of the applicants generated by
the AsktheEU.org website.

 

If you do not wish your correspondence with the European Commission to be
published on the AsktheEU.org website, you can provide us with an
alternative, private e-mail address for further correspondence. In that
case, the European Commission will send all future electronic
correspondence addressed to you only to that private address.

 

 

Yours faithfully,

 

Access to Documents team

[6]cid:image001.gif@01D1747B.A20B1610

European Commission
Legal Service
Berlaymont

B-1049 Brussels/Belgium

[7][email address]

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D46D20.9164CB30
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/ext/doc...
7. mailto:[email address]

EC ARES NOREPLY,

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Ares(2018)5905713 - Your request for access to documents - reference:
GestDem2018/5601

Sent by ve_sj.acces docs (SJ) <[SJ request email]>. All responses
have to be sent to this email address.
Envoyé par ve_sj.acces docs (SJ) <[SJ request email]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Ms Izuzquiza,

 

We refer to your above-referenced request for access to documents under
Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, 31.05.2001, page
43).

 

Your request is currently being dealt with by the Legal Service. However,
we will not be in a position to complete the handling of your application
within the time limit of 15 working days, which expires today, 19/11/2018.

 

An extended time limit is needed as your request concerns documents of
which the Commission is not the author. According to Article 4(4) of
Regulation (EC) No 1049/2001, the Commission has to consult the third
parties from which the documents originate. This consultation procedure
adds an additional administrative step to the handling of your access
request.

 

Moreover, following the judgment of the Court in Case C-213/15P Breyer,
the Commission has received a big number of access requests concerning a
very large total number of documents where third parties need to be
consulted.

 

Under these circumstances, we have to ask for an extended deadline in
conformity with Article 7(3) of that Regulation. The new deadline will
expire on 10/12/2018. We will inform you in due time in case the treatment
of your request could not be finalised before the expiration of the second
deadline.

 

Please accept our apologies for this delay and for any inconvenience this
may cause.

 

Yours sincerely,

 

Access to Documents team

European Commission
Legal Service
Berlaymont

B-1049 Brussels/Belgium

[6][email address]

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D47FFC.39179540
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/ext/doc...
6. mailto:[email address]

EC ARES NOREPLY,

2 Attachments

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Ares(2018)6332038 - Your request for access to documents registered
under: GestDem2018/5601

Sent by ve_sj.acces docs (SJ) <[SJ request email]>. All responses
have to be sent to this email address.
Envoyé par ve_sj.acces docs (SJ) <[SJ request email]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Ms Izuzquiza,

 

We refer to your above-referenced requests for access to documents under
Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, 31.05.2001, page
43).

The replies to your requests have been submitted to the competent persons
for approval. However, we are still not in a position to complete the
handling of your request within the extended deadline which expires today,
the 10^th of December 2018.

 

We will do our outmost to reply to you by the first half of next week, at
the latest.

 

Please accept our apologies for this delay and for any inconvenience it
may cause.

 

Kind regards,

 

Access to Documents team

[6]cid:image001.gif@01D1747B.A20B1610

European Commission
Legal Service
Berlaymont

B-1049 Brussels/Belgium

[7][email address]

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D49098.341C5DD0
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/ext/doc...
7. mailto:[email address]

EC ARES NOREPLY,

6 Attachments

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Ares(2018)6626088 - Your request for access to documents registered
under: GestDem2018/5601

Sent by COULON Francoise (SJ) <[email address]>. All
responses have to be sent to this email address.
Envoyé par COULON Francoise (SJ) <[email address]>. Toutes
les réponses doivent être effectuées à cette adresse électronique.

Dear Ms Izuzquiza,

 

Please find attached the reply of the Legal Service to your request for
access to documents.

 

A paper copy of the letter will be sent to you by registered mail shortly.
Please note that the requested documents are transmitted via email only.

 

Yours sincerely,

 

Access to Documents team

[6]cid:image001.gif@01D1747B.A20B1610

European Commission
Legal Service
Berlaymont

B-1049 Brussels/Belgium

[7][email address]

 

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D4992F.14A04F30
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/ext/doc...
7. mailto:[email address]

Dear Legal Service,

Please pass this on to the person who reviews confirmatory applications.

On 25 October 2018, I submitted an access to documents request for: 
“All documents filed by the European Commission, the European Council, and the Hellenic Republic in case T‑193/16, and joined cases C‑208/17 P, C‑209/17 P and C‑210/17 P.”

Later on that day, I added to the initial scope of my request the following documents: “all documents filed by the Kingdom of Belgium in case T‑193/16.”

A full history of my request and all correspondence is available here: https://www.asktheeu.org/en/request/docu...

My request was acknowledged on 26 October 2018 and registered under reference GestDem 2018/5601.
On 21 December 2018, the Legal Service granted partial access to the requested documents.

By the means of this confirmatory application I would like to appeal the Legal Service’s decision to grant partial access to document 4, ‘Plea of inadmissibility lodged by the European Council’ (reference SGS16/06071).

In its response letter, the Commission argues - siding with the European Council, which was consulted on the matter in accordance with Article 4 (4) of Regulation 1049/2001 - that the redacted parts of document 4 (hereon “the plea of inadmissibility”) fall under Article 4 (2), second indent, of Regulation 1049/2001: “protection of court proceedings and legal advice”.

In particular, the Council and the Legal Service justify the application of the above-mentioned exception by arguing that “disclosure of the arguments put forward in those [redacted] parts would have a negative impact on potential [court] proceedings that raise similar issues”.

Both the Council and the Legal Service also argue that “the observations contained in the partially refused document relate to matters that remain particularly sensitive and wide in scope”.

It is also stated that disclosure of the disputed content of the document “could prejudice the possibility of its Legal Service to express its view free from external influences”.

And finally, the Commission Legal Service states that I have not “provided elements capable of showing the existence of an overriding public interest in disclosure […] that would outweigh the public interest in the protection of court proceedings and legal advice.”

To that extent, I would like to state:

FIRST, that those “potential” court proceedings based on “similar” issues are, by definition, a purely hypothetical scenario evoked by the Legal Service which cannot seriously be considered a “reasonably foreseeable risk”, as required by EU case law.

That the Council (or the Commission) could - or is likely to - face “potential” and “similar” legal proceedings in the future is, on the contrary, a speculative assertion that the Legal Service has failed to back up with any actual fact or justification besides merely stating that it is an existing possibility.

To this extent, it should be stressed that the General Court’s Order of 28 February 2017 and the Order of the Court of Justice of 12 September 2018 settled that the EU-Turkey statement was not a measure adopted by the European Council or any other EU institution for that matter, but rather by the EU Member States.

It is therefore safe to assume that this (reiterated) decision by the Luxembourg-based court effectively deters future court proceedings on the subject at stake. Therefore, far from it being likely (or “reasonably foreseeable”) that future, “potential”, or even “similar” proceedings will be filed, it is rather unlikely; hence disclosure cannot, in a reasonably foreseeable way, pose a risk to equality of arms.

Furthermore, by application of this same logic, every EU Commission document (or any EU document, for that matter) would perpetually be covered by Article 4 (2), second indent, as every EU decision and policy can always, potentially, be subject to litigation.

Therefore, in the present case, the application of Article 4 (2), second indent, cannot be considered legitimate.
The application of this exception is also contrary to Court of Justice jurisprudence, which has stated that once court proceedings have been closed, there are no longer grounds for presuming that disclosure of pleadings would undermine those proceedings.

SECOND, that the Court of Justice has also found that the mere fact that documents relate to a sensitive area of EU work does not make documents sensitive per se. Therefore, the fact that the matters discussed in the plea of inadmissibility are considered “sensitive” by the Council does not justify the application of an exception.

I would also like to point out that the fact that the subject being discussed in documents is “wide of scope” [sic] cannot be considered in any way as a justification for the application of an exception under Article 4 of Regulation 1049/2001. On the contrary, the fact that the matter discussed in the document are “wide of scope” suggests that the level of detail is insufficient in order to make disclosure sensitive.

THIRD, that it is hard to see how external pressure triggered by the disclosure of the plea of inadmissibility could affect the Council’s Legal Service’s work.

EU institutions legal services have two main duties: to provide legal advice to institutions and their services, and to represent institutions in all court cases.

The argument put forward that disclosure in the present case “could prejudice the possibility of [the Council’s] Legal Service to express its view free from external influences” seems unlikely: I do not believe that the Legal Service would be willing to provide different versions of its legal advice (i.e.: interpretation of EU law) depending on the level of public oversight or public debate around the issue at stake.

I am sure that the interpretation of EU law that the Legal Service provides is indisputable and is always meant to serve the same purpose: to ensure and defend the legality of the Council’s decisions. I am therefore sure that the work of the Legal Service would not vary upon receiving more or less external pressure or influence.

In addition to this, it is worth noting that the Court of Justice has established that, for external pressure - or, in the present case, “external influences” - to constitute legitimate ground for refusing access to requested documents, the reality of such external influences must be established with certainty, and evidence must be provided to show that there is a foreseeable risk that the decision to be taken would be substantially affected due to this external influence.

To this extent, the arguments put forward by the Council and the Commission Legal Service lack of the certainty and evidence required by the cited case law.

Furthermore, it is worth mentioning that, if by “external influences” the Council and the Commission are referring to the ability of members of the public to express their opinion about a given subject, decision-making process or court proceeding, then this external influence can better be defined as citizens’ exercise of their right of freedom of expression and their right to participate in the EU democratic process.

I would like to recall that one of the essential pillars on the basis of which the EU was founded is a participatory democracy. To this extent, “external influence” cannot in any way be considered grounds on which access to the requested documents can be refused, but only an incentive for greater transparency.

And FOURTH, that there is indeed an overriding public interest in the disclosure of the plea of inadmissibility.

Migration is one of the top political issues in the EU currently, and (accordingly) it is at the top of the EU’s priorities. It is therefore democratic imperative to enhance transparency around this policy area, thus allowing for more participation and enabling accountability.

This is of particular importance when it comes to the EU-Turkey statement; a flagship agreement that entails both great human rights responsibilities and a huge financial effort for the EU.

In terms of accountability, greater transparency around the EU-Turkey statement and how this agreement was forged is essential, and the plea of admissibility in dispute is key to this question.

The General Court’s Order of 28 February 2017 and the Order of the Court of Justice of 12 September 2018 caused great confusion, leaving EU citizens with the sense that no one takes responsibility - and therefore no one can be held accountable - for the EU-Turkey statement and its consequences.

Once that the legal proceedings that led to these court orders have been finalised, EU citizens deserve to know which was the Council’s position in these cases, and therefore have more clarity on the legal nature of such an important decision-making process.

I am therefore hereby calling on the Legal Service of the European Commission to: 

- rectify its initial assessment that document 4, the Council’s plea of inadmissibility, falls under Article 4 (2), second indent, of Regulation 1049/2001: “protection of court proceedings and legal advice”;

- rectify its assessment that there is no overriding public interest in disclosure; and

- disclose the content of document 4 in full.

Please don’t hesitate to contact me if you have any doubts or question in regards to this confirmatory application.

Thank you in advance.

Yours faithfully,

Luisa Izuzquiza

EC ARES NOREPLY,

[1]Ares(2019)431064 - Confirmatory request - FW: Internal review of access
to documents request - Documents filed in ECJ cases --- Gestdem 2018/5601

Sent by ve_sg.accessdoc (SG) <[email address]>. All responses have
to be sent to this email address.
Envoyé par ve_sg.accessdoc (SG) <[email address]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Madam,

Thank you for your email dated 23/01/2019 by which you request, pursuant
to Regulation No 1049/2001 regarding public access to European Parliament,
Council and Commission documents, a review of the position taken by the
Legal Service in reply to your initial application GESTDEM 2018/5601.

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 25/01/2019 (Ares(2019)431012).

Your application will be handled within 15 working days (15/02/2019).  In
case this time limit needs to be extended, you will be informed in due
course.

Please be informed that the answer to your confirmatory application is a
formal Commission decision that will be notified to you by express
delivery. Thank you for providing your contact phone number, so that the
external delivery service can contact you in case of absence.

Please note that the Commission will not use your phone number for any
other purpose than for informing the delivery service, and that it will
delete it immediately thereafter.

Yours faithfully,

Carlos Remis
SG.C.1
Transparence
Charl. 03/21

show quoted sections

EC ARES NOREPLY,

1 Attachment

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Ares(2019)899254 - Your confirmatory application for access to
documents under Regulation (EC) No 1049/2001 – GESTDEM 2018/5601

Sent by ve_sg.accessdoc (SG) <[email address]>. All responses have
to be sent to this email address.
Envoyé par ve_sg.accessdoc (SG) <[email address]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Ms Izuzquiza,

 

I refer to your e-mail of 23 January 2019, registered on the 25 January
2019, by which you submit a confirmatory application in accordance with
Article 7(2) of Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents.

 

Your confirmatory application is currently being handled. Unfortunately,
we have not yet been able to gather all the elements we need to carry out
a full analysis of your request in order to take a final decision and,
therefore, we are not in a position to reply to your confirmatory request
within the prescribed time limit expiring on 15 February 2019.

 

Consequently, we have to extend this period by another 15 working days in
accordance with Article 8(2) of Regulation 1049/2001. The new deadline
expires on 08 March 2019.

 

Yours sincerely,

 

María OLIVÁN AVILÉS
Head of Unit

[6]cid:image001.gif@01D13362.41D673C0

European Commission

Secretariat General

Unit C.1 (Transparency, Document Management and Access to Documents)

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D4C46C.3FE08DA0
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/ext/doc...

Legal Service

3 Attachments

Dear Ms IZUZQUIZA,
Please find attached a copy of the confirmatory decision taken on your
request for access to documents registered under Gestdem number 2018/5601,
adopted on 27/02/2019.
Please note that the Secretariat-General of the European Commission will
proceed with the formal notification of the decision in the coming days.
This copy is solely sent for your information and is not the formal
notification of the confirmatory decision.
 
Best regards,
 
Gitte Louise Olsen
Access to documents team
 
European Commission
Secretariat-General
Unit C1 – Transparency, Document Management &
Access to Documents
Office address CHAR 03/021
+32 2 995 63 26
[1][email address]
 
 
 
 
 

References

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1. mailto:[email address]

Dear Legal Service,

Thank you! I hereby confirm receipt of document 4.

Yours faithfully,

Luisa