Dear Justice and Consumers,

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:

The Commission's assessments ("country fiches") of all 54 priority countries in the scope of the EU assessment on high-risk third countries under Directive (EU) 2015/849 with regard to strategic deficiencies in their AML/CFT regimes.

The list of 54 priority countries screened by the Commission can be found here: https://ec.europa.eu/info/sites/info/fil...

Yours faithfully,

Sven Giegold

European Parliament
ASP 05F163
Rue Wiertz 60
1047 Brussels
Belgium

On 7 March 2019, the Commission sent the following reply via e-mail.

Commission européenne/Europese Commissie
1049 Bruxelles/Brussel
BELGIQUE/BELGIË
Tel. +32 22991111
Office: MO59 08/005
Tel. direct line +32 229 20678

EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE AND CONSUMERS
The Director General

Brussels, 07 March 2019
JUST/TA

Mr Sven Giegold
MEP
European Parliament
ASP 05F163
Rue Wiertz 60
1047 Brussels

Subject: Your application for access to documents – Ref. GestDem No 2019/0869

Dear Mr. Giegold,

We refer to your e-mail dated 13/02/2019 in which you make a request for access to documents, registered on 14/02/2019 under the above-mentioned reference number.

You request access to the Commission's assessments ("country fiches") of all 54 priority countries in the scope of the EU assessment on high-risk third countries under Directive (EU) 2015/849 with regard to strategic deficiencies in their AML/CFT regimes.

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 cannot be granted, as disclosure is prevented by exceptions to the right of access laid down in Article 4 of this Regulation.

The documents which you seek to obtain contain sensitive information with regard to the assessment of third countries – regarding the context, risk profile and level of deficiencies relating to the regime on anti-money laundering and countering terrorist financing (AML/CFT). Information received in this context originates from third parties that indicated that this information shall not be disclosed (especially confidential information received from third countries, international organisations and Europol). Disclosure of the documents requested would therefore undermine the protection of the public interest as regards international relations affecting the relations between the Union and the concerned third countries, as well as the relations between the Union and international organisations active in the AML/CFT field. Therefore the exception laid down in Article 4(1)(a) third indent of Regulation (EC) No 1049/2001 applies to these documents.

In addition, these documents relate to a matter where the decision is still pending since the Delegated Regulation related to these underlying documents did not yet enter into force. The European Parliament and Council still benefit from an objection period where they can object to the Delegated Regulation – in which case the Delegated Regulation would be null and void, requiring the Commission to re-assess the matter, the underlying documents and adopt a new Delegated Regulation. Pending the entry into force of the Delegated act, the disclosure of the documents would undermine the decision-making process of the Commission in case it needs to further act on this matter. Such a disclosure would reveal preliminary views and policy options which are under consideration. Therefore, the exception laid down in Article 4(3) first subparagraph of Regulation (EC) No 1049/2001 applies to these documents. The exceptions laid down in Article 4(3) apply unless there is an overriding public interest in disclosure of the document/documents. We have examined whether there could be an overriding public interest in disclosure, but have not been able to identify such an interest. In any case, the public interest in making the content of the documents public does not outweigh the harm disclosure would cause to the interests protected by the above mentioned exception.

We have considered whether partial access could be granted to the documents requested. However, these documents are entirely covered by the exceptions or the remaining parts after expunging the confidential information might be meaningless or illegible.

In accordance with Article 7(2) of Regulation (EC) No 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, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B - 1049 Bruxelles

or by email to: [email address]

Yours sincerely,
(e-signed)
Tiina ASTOLA
Electronically signed on 07/03/2019 19:14 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563

Dear Justice and Consumers,

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

I am filing the following confirmatory application with regards to my access to documents request 'EU Commission's assessments of 54 priority countries with regard to strategic deficiencies in their AML/CFT regimes'.

In its letter of 7 March 2019, the Commission claims that it cannot grant full neither partial access to the documents requested. The reasons for the Commission’s refusal are the following:

1) Disclosure of the documents requested would undermine the protection of the public interest as regards international relations affecting the relations between the Union and the concerned third countries, as well as the relations between the Union and international organisations active in the AML/CFT field.
2) The documents requested relate to a matter where the decision is still pending since the Delegated Regulation related to these underlying documents did not yet enter into force.
3) There is no overriding public interest in disclosure that could outweigh the harm the disclosure would cause to decision-making process of the Commission.

Related to the first argument, we believe that there is no undermining of international relations between the Union and the concerned third countries. Even if third parties providing the information have explicitly mentioned that they do not want them to be disclosed, we believe that most of the Commission’s analysis is based on public information such as FATF (or other regional bodies related to FATF) evaluations or countries’ legislation already available to the public. In this case, it should be possible to consider at least a partial disclosure of the priority countries’ assessments.  According to Directive (EU) 2018/843 (AMLD5), the Commission, in order to identify high-risk third countries, should take into account the legal and institutional AML/CFT framework of the third country (Article 9(2)) and relevant evaluations, assessments or reports drawn up by international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing (Article 9(4)). As mentioned, such information are already largely public.

Related to the second argument, first, we would like to ask the European Commission to further explain how disclosing these documents would have undermined the ongoing decision making process at the time of our request. Second, the situation has evolved since the reply of the European Commission. The Council has since rejected the delegated act, putting an end to the decision-making process of this delegated regulation. We believe that the decision is therefore no longer pending and conditions mentioned in Article 4 (3) sub-paragraph 1 of Regulation 1049/2001 are not met.  

Related to the third argument, we are strongly convinced that there indeed is an overriding public interest in disclosure that outweighs the potential harm caused by the disclosure. According to Article 33(1) of Directive (EU) 2018/843 (AMLD5), obliged entities are required to file suspicious transaction reports to the FIU where the obliged entity knows, suspects or has reasonable grounds to suspect that funds, regardless of the amount involved, are the proceeds of criminal activity or are related to terrorist financing. In order to target the risks of money laundering and terrorist financing facing the Union and those operating within it more effectively, Recital 22 of AMLD4 and Article 18 of AMLD5 require obliged entities to apply a risk-based approach when carrying out customer due diligence measures. Therefore, it is in the public interest of all obliged entities to have as much information as possible in order to apply the risk-based approach and warn public authorities of possible threats of money laundering or terrorism financing or even terminate business relationships if warranted.

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

Yours faithfully,

Sven Giegold

European Parliament
ASP 05F163
Rue Wiertz 60
1047 Brussels
Belgium