Legal advice and/or analysis of the legality on EU-Turkey agreement

Luisa Izuzquiza made this access to documents request to Legal Service

The request was refused by Legal Service.

From: Luisa Izuzquiza

Delivered

Dear Legal Service,

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

All documents generated or received by the European Commission containing legal advice and/or analysis of the legality of the actions to be carried out by the EU and its Member States in implementing the actions set out in the statement on the agreement reached with Turkey at the summit held on 18 March 2016 (statement here: http://www.consilium.europa.eu/en/press/.... I am interested in documents drawn up both before and since the meeting was held, to date.

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
Access Info Europe
Calle Cava de San Miguel 8, 4ºc
28005 Madrid - Spain

Link to this

Legal Service


Attachment Picture Device Independent Bitmap 1.jpg
1K Download


 
Dear Ms. Izuzquiza,
 
I refer to your e-mail of 26 April 2016 in which you make a request for
access to documents under Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents (Official Journal
L145, 31.05.2001, page 43).
 
Your request has been registered under reference GESTDEM 2016/2228.
 
In accordance with Regulation 1049/2001 you will receive a response to
your request within 15 working days. The time limit will expire on
24/05/2016. In case this time limit needs to be extended, you will be
informed in due course.
 
Yours sincerely,
 
 
Elena ADSERÀ RIBERA
Member of the Legal Service 
 
European Commission
Legal Service
 
BERL 4/96
B-1049 Brussels/Belgium
+32 2 296 63 21
[1][email address]
 
 
 
 

References

Visible links
1. mailto:[email address]

Link to this

Legal Service


Attachment Picture Device Independent Bitmap 1.jpg
1K Download


Dear Mrs Izuzquiza,
 
We refer to your application under reference GestDem 2016/1681 (in
relation with the "statement on the agreement reached with Turkey at the
summit held on 18 March 2016"). By e-mail of 25 April 2016 we extended the
deadline to reply to it. Unfortunately, we have not been in a position to
fully complete the handling of it within the extended deadline which
expired yesterday. In this respect, we would like to inform you that the
reply is in the process of being finalized and that we expect to be able
to send it to you in the shortest time possible.
 
As regards your request 2016/2228 (in relation with the "statement on the
agreement reached with Turkey at the summit held on 18 March 2016"), we
will start working immediately after having dealt with your previous
request. Therefore, in accordance with Article 7(3) of Regulation No
1049/2001 regarding public access to documents we have to ask for an
extension of the deadline which expires today. The new time limit expires
on 14 June 2016. This request for an extension is due to the fact of the
large number and nature of the requests the Legal Service is currently
dealing with.
 
We apologise for this additional deadline and for any inconvenience this
may cause.
 
___________________________
 
European Commission
Legal Service
Information and documentation sector

[1][email address]
 
 
 
 
 

References

Visible links
1. mailto:[email address]

Link to this

Legal Service


Attachment Picture Device Independent Bitmap 1.jpg
1K Download


 
 
Dear Mrs Izuzquiza,
 
We refer to your application under reference GestDem 2016/2228 (in
relation with the "statement on the agreement reached with Turkey at the
summit held on 18 March 2016").
 
The extended deadline to reply to this request for access to documents
expires today. Unfortunately, the Legal Service will not be in a position
to send you the reply within this extended deadline.
 
However, we would like to inform you that the response to your request has
already been submitted for approval to the competent persons and we expect
that we will be able to send it to you very shortly.
 
We apologize for any inconvenience this delay may cause you .
 
Yours sincerely,
___________________________
 
European Commission
Legal Service
Information and documentation sector

[1][email address]
 
 
 
 
 

References

Visible links
1. mailto:[email address]

Link to this

Legal Service


Attachment Picture Device Independent Bitmap 1.jpg
1K Download

Attachment Ares 2016 2805485.pdf
141K Download View as HTML


 
Dear Ms Izuzquiza,
 
You will find enclosed an advanced copy of the Legal Service's reply to
your request for access to documents. The original version of the reply
will be sent to you by certified mail.
 
Yours sincerely,
 
___________________________
European Commission
Legal Service
Information and documentation sector

[1][email address]
 
 
 

References

Visible links
1. mailto:[email address]

Link to this

From: Luisa Izuzquiza

Delivered

Dear Luis,

Many thanks for your response. I have noticed the pdf file (the response) you are sending attached is missing page number 3. Would it be possible for you to resend the document including the missing page?

Thank you in advance.

Yours faithfully,

Luisa

Link to this

Legal Service


Attachment Ares 2016 2805485 3.pdf
749K Download View as HTML


Dear Ms Izuzquiza,

Thank you for your e-mail. Sorry for the missing page.
Please find enclosed an advanced full copy of the Legal Service's reply to your request for access to documents.

Yours sincerely,

European Commission
Legal Service
Information and documentation sector

[email address]

show quoted sections

Link to this

From: Luisa Izuzquiza

Delivered

Dear Secretary-General,

This is a confirmatory application to challenge the refusal to provide full access to documents contained in the request for access to documents made by Luisa Izuzquiza of Access Info Europe (https://www.asktheeu.org/en/request/lega....

1. Facts

1.1 On 26 April 2016, Access Info Europe filed a request to the European Commission’s Legal Service in order to be granted access to EU documents on grounds of Regulation No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ("the Regulation"). On behalf of Access Info Europe, Luisa Izuzquiza requested access to the following documents:

All documents generated or received by the European Commission containing legal advice and/or analysis of the legality of the actions to be carried out by the EU and its Member States in implementing the actions set out in the statement on the agreement reached with Turkey at the summit held on 18 March 2016. I am interested in documents drawn up both before and since the meeting was held, to date.

1.2 The request was registered by the European Commission on 27 April. On 24 May the deadline for answering was extended. On 14 June it was extended again. A postal response arrived on 24 June 2016. Upon request, it was confirmed that the deadline for filing the confirmatory application was 15 July 2016.

2. Refusal to grant (partial) access to documents

2.1 The European Commission in its 16 June 2016 response identified a 3-point list of documents as a result of examination of the Legal Services files. These documents include a series of emails from the Legal Service to DG HOME, DG NEAR and the cabinet of Mr. Timmermans.

2.2 These documents have been denied to Access Info Europe by invoking three exceptions, namely (i) the protection of the court proceedings and legal advice, (ii)the public interest as regards international relations, and (iii) the protection of the decision-making process.

2.3 The European Commission has failed to inform Access Info Europe whether or not, in addition to the documents that it has generated, it holds any documents that were received from other institutions or external actors. By way of this confirmatory we therefore ask the Commission to indicate whether it has any such documents in its possession. This is an important question for us as we are seeking to understand which documents were held by the Commission and, hence, what analysis and perspectives were and are being taken into account in its decision making.

2.4 As to the documents listed in its 24 June response, the Commission appears to be asserting that the three exceptions invoked apply in their entirety to the full content of all the documents. No consideration is given to the possibility of partial access to some parts of some of the documents as required by Regulation 1049/2001 (Article 4.6). Access Info Europe hereby calls on the Commission to review and to be more precise about which exceptions apply to which parts of which documents. We believe that there are likely to be parts of the documents to which no exceptions apply. Hence these documents can be released in redacted form, along with clear indications of which exceptions are applied to which parts of the documents.

2.5 Access Info also requests by way of this confirmatory application that the Commission examines more fully how the public interest test might permit partial access: there may be parts of the documents to which the Commission might argue that the decision-making and legal advice protections apply, but where there is also an overriding public interest in accessing that content, and hence those parts can also be released in the redacted versions of the documents. This should in particular apply to passages that discuss the competence of the EU in the context of the agreement and/or arrangements made with Turkey on and around the March 2016 Summit.

2.6 Access Info Europe sets out below why it believes that the refusals to grant access to the requested documents breach the Regulation.

3. The protection of the court proceedings and legal advice

3.1 The European Commission argues that disclosure of the requested documents would harm the protection of court proceedings and legal advice as enshrined in Art. 4(2) of the Regulation.

3.2 When it comes to court proceedings, we note that the advice at issue here was not given in the context of ongoing or contemplated legal proceedings.

3.3 The Commission refers to “possible litigation” before the Court of Justice. First, this is an unacceptable basis for applying the exception, because every single piece of legal advice could relate to hypothetical future court cases and this would therefore amount to a blanket ban on all legal advice. Such an approach is at odds with the requirement that all exceptions be narrowly construed. Second, there are no indications and no reasons provided what those possible proceedings would be. It is difficult to see what proceeding would be conducted before the EU Courts. The Commission has not provided any indication in this regard.

3.4 To the extent that there are specific cases underway which relate to some of the legal advice provided, we would be grateful for much precise information and an indication as to which passages of which of the documents listed are affected.

3.5 The Commission has further argued that the legal advice contained in the documents listed has been “intended exclusively for the President and Members of the Commission and for the Commission’s service responsible for Migration and Home Affairs.” Access Info Europe notes that an exception cannot be invoked merely by arguing that the document was originally prepared for a limited audience. Indeed, the Treaty requirement that EU bodies “conduct their work as openly as possible” implies that it should be assumed that all documents are, in principle, prepared with the potential of access by any EU citizen or resident. Only when, at a particular point in time, an exception can be justified and only when there is no overriding public interest (where the Regulation provides for this), and that information be withheld from public disclosure.

3.6 Next, the Commission contents itself with arguing that the EU-Turkey statement is highly sensitive and therefore disclosing the legal advice would “clearly have a serious [presumably negative] impact” on its ability to seek and receive frank advice on sensitive issues in the future. The Commission fails, however, to demonstrate precisely how this would happen, preferring to make this a blanket argument for all the documents identified as falling under the scope of this part of the request.

3.7 Access Info Europe notes that the legal advice and/or legal analysis contained in these documents could well vary in nature. We anticipate that the documents will include legal analysis, legal descriptions and/or advice which discusses and provides information and/or views on the competence and possibility under national, EU and /or international law to implement and/or carry out the actions and legal framework discussed (and according to the large majority of press reports " agreed") with Turkey on (or around) the summit held on 17-18 March 2016. Consistent with the jurisprudence of the European Court of Justice, legal advice on the competence of the EU in a particular area is something in which there is a particular public interest and hence should be provided pursuant to access to documents request. We therefore request that these passages in the identified documents be provided in full to Access Info Europe.

3.8 To the extent that legal advice relates to the legality of some of the actions being undertaken, Access Info Europe notes that the Court of Justice has stated on multiple occasions that the finding that the risk that the disclosure of legal advice relating to a decision-making process could give rise to doubts concerning the lawfulness of the adopted acts is not sufficient to constitute a threat to the protection of legal advice.[1] Such reasoning is in principle transposable to the field of the international activity of the European Union, because the decision-making process in that area is not exempt from the application of the principle of transparency.[2]

3.9 Even should the European Commission conclude that disclosure of the requested documents were to undermine protection of court proceedings and legal advice, it must still assess whether there is an overriding public interest in access. In the present case, two overriding public interests outweigh the exception.

3.10 First, disclosure of the requested documents is particularly critical in the present political context where across the EU there is debate on immigration in general and specifically on the agreements and arrangements that have been negotiated with Turkey. The rationale of the Regulation is to allow citizens to participate more efficiently in the European democratic debate and to strengthen the EU institutions' legitimacy. Disclosure of the requested documents in this specific political context is the rationale and the ratio legis of the Regulation.

3.11 Second, in the context of the current humanitarian crisis both within the EU and at its borders, it is crucial for all actors in our society to be aware of the competence of the EU and the actions that can be legally conducted in order to act efficiently to address the crisis.

4. Protection of the decision-making process

4.1 The European Commission has put forward two arguments under this exception firstly, that it would affect ongoing discussions on the implementation of the agreement actions, and secondly other ongoing discussions with the Council and Parliament related to regulatory reform.

4.2 The Commission has applied the exception to all the documents listed without stating specifically which content would be likely to cause harm to the protected interest should it be disclosed. Furthermore the Commission refers to all the listed documents as “internal documents”, a definition which is not admitted by Regulation 1049/2001.

4.3 Access Info Europe calls on the Commission review the application of this exception. We note that has been confirmed on multiple occasions that the exception for decision-making processes can be relied upon only if the disclosure of the contested documents would seriously undermine the institution's decision making process concerned.[3]

4.4 In the present case, disclosure of information that relates to ongoing discussions European Commission and the Greek government does necessarily in and of itself undermine the institution's decision-making process. Additionally, to the extent that the documents relate to regulatory reform, there is a particular public interest in transparency of the legislative process (something the treaties explicitly require for the Council and Parliament, and by extension the Commission when handling documents related to legislative reform).

4.5 Since all the exceptions to the principle of possible public access to documents must be narrowly construed, the arguments put forward by the European Commission cannot be accepted given the extensive record of strong decisions taken by the EU institutions and the Members States on highly sensitive topics when the respective opinions of the different actors were public and widely published.

4.6 In the event that the European Commission concludes that disclosure of the requested documents would harm decision-making, it should be much more concrete in explaining why that would be the case. Moreover, the Commission must still assess whether the public interest overrides the principle protected. As noted above (paragraph 3.10 and 3.11) there is a huge public interest in being able to participate in the debate about solutions to the migrant crisis. In the present case, specific attention must be paid to the ultimate aim of the Regulation and particular weight should be given to its rationale. The refugee crisis, and the associated humanitarian crisis, has been the most debated political topic in the EU during 2016 and it is most likely that it will remain so for the coming period. Information about precisely what is being done at the EU level to address this, including the legal analysis of the actions being undertaking, is absolutely crucial to permit public participation in the debate on how to address this serious challenge. In other words, disclosing the requested documents - and in any event those documents and passages that concern the competence of the EU to act in this important area - would provide the EU institutions with a great opportunity to achieve the democratic goal set by the EU Treaties, namely that in order “to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.” To do otherwise and for there to be non-disclosure of these documents would harm greatly the political debate in Europe and would in addition isolate the EU institutions even further from their citizens. Consequently, even if the European Commission were able to demonstrate that there would be harm caused to its decision making on these issues, it should strike the balance in favour of the higher public interest of public participation and release the documents.

5. The protection of the public interest as regards international relations argument

5.1 The European Commission's reasoning that disclosure of the documents would undermine protection of international relations cannot be accepted for two reasons.

5.2 First, the Commission failed to explain precisely how the disclosure of the requested documents might harm the public interest as regards international relations. Rather it stated: "Making available the refused documents to the public would seriously prejudice the crucial relations between the European Union and Turkey in the context of this highly sensitive situation."

5.3 Such an argument is at best circular as it merely asserts stating that the exception applies since we are in a situation where the exception is applicable. The Commission fails to explain why or how disclosure would harm international relations, nor does it show any causal link between the sensitivity of the situation and such harm. We note that the requested documents do not relate to negotiation strategy. The causal link between the sensitivity of the situation and the benefits for the EU democratic debate of such disclosure, is on the contrary very concrete and not at all speculative. This will be explained further in the below.

5.4 The European Commission's unacceptably brief explanation amounts to a failure to state reason. We note that the Regulation states and the Court of Justice has affirmed that the Commission is expressly bound by the duty to state reasons if it refuses to grant access to EU documents, even when it relies on exceptions enshrined in Art. 4(1) of the Regulation.

5.5 Second, in any event, granting access to the requested documents does not infringe the public interest as regards international relations.

5.6 Indeed, it has been held in case law that the risk of disclosing legal opinions taken within the EU institutions regarding the choice of the legal basis in the process of negotiation of an international agreement (which might in certain cases invalidate the act concluding the agreement in the future) does not in itself establish the existence of a threat to the European Union's interest in the field of international relations.[4] Such reasoning is mutatis mutandis applicable to the present case.

5.7 The General Court and the Court of Justice went as far as to consider that when it comes to on-going negotiations, the absence of disclosure of documents on the choice of the proper legal basis "can only be worse in the absence of a prior objective debate between the institutions concerned regarding the legal basis of the action envisaged".[5] In the same case, it was even recalled that "at the material time, there was a procedure under EU law, in Article 300(6) EC [now Art. 218 (11) TFEU] specifically designed to prevent complications, both at the European Union level and in international law, resulting from an incorrect choice of legal basis [or in the present case more broadly regarding the compliance with EU law]" .[6]

5.8 In accordance with this case-law, in any event legal analysis and/or advice pertaining to the competence of the EU to act, and mandates to the EU, should be disclosed.

5.9 The Court of Justice also ruled unambiguously that, even when protection of international relations is invoked, exceptions to the principle of possible public access to documents must be interpreted and applied strictly.[7]

5.10 To conclude, disclosure of legal opinions does not threaten the European Union's interest in the field of international relations. On the contrary, withholding this information could only be more detrimental for the EU in the future. Moreover, the mere fact that the topic of the agreement is sensitive speaks in favour of disclosure. The sensitivity of the topic in the European political debate gives more weight to the Regulation's aim to enhance democracy in the EU.

6. Conclusion

6.1 To conclude, it is our understanding that the European Commission made an error in law by deciding not to disclose the requested documents, partially or in full, in its decisions dated on 16 June 2016.

6.2 Consequently, Access Info Europe hereby reiterates its request for access, partial or in full, of the requested documents and in particular of those passages that concern the competence and mandate for the EU to act.

Yours faithfully,

Luisa Izuzquiza
Access Info Europe

Footnotes:
[1] T-529/09, para. 76 and confirmed by the Court in C350/12 P; Sweden and Turbo v Council, C-52/05 P para. 60; Sweden v MyTravel and Commission, C-506/08 para 113.
[2] T-529/09, para. 76 and confirmed by the Court in C350/12 P.
[3] Among others see T-300/10 para. 130; T-344/08 para. 152-154; T-424/14 and T-425/14 para. 61.
[4] T-529/09, para. 46 and 51; confirmed by the Court in C350/12 P para. 44.
[5] Para. 52; confirmed by the Court in C350/12 P para. 44.
[6] Para 53; confirmed by the Court in C350/12 P para. 44.
[7] C350/12 P para. 48.

Link to this

From: Luisa Izuzquiza


Attachment image001.gif
3K Download


Dear Mr Remis,
Thank you very much for your e-mail.
Regarding your future answer to my request and any related correspondance,
I would like to ask if you could kindly send it too to the following
e-mail address: [1][FOI #2851 email] (it should be
fine if you just put it in copy).
This way your response will appear too in the original request, made via
the portal [2]AsktheEU.org:
[3]https://www.asktheeu.org/en/request/lega...
Thank you very much in advance.
Best regards,
Luisa
--
Luisa Izuzquiza
Communications Officer
Access Info Europe | [4]http://www.access-info.org
Twitter: @luisaizuz - @Access_Info
Madrid office: +34 913 656 558
[Mobile]

show quoted sections

Link to this

Legal Service


Attachment image001.gif
3K Download

Attachment IZUZQUIZA 2016 2228 EN HR2.pdf
539K Download View as HTML


Dear Mrs IZUZQUIZA,

 

Please find attached a letter concerning your confirmatory application for
access to documents under Regulation (EC) No 1049/2001 - Gestdem 2016/2228

 

Yours sincerely,

 

TEAM ACCESS DOCUMENTS
[1]cid:image001.gif@01D10B5D.0CD08030
European Commission
Secretariat General

Unit B4 - Transparency

 

References

Visible links

Link to this

Legal Service


Attachment image001.gif
3K Download

Attachment 2016 2228C 2016 6030 F1 DECISION LETTER EN V2 P1 861263.pdf
62K Download View as HTML


Dear Ms Izuzquiza,

 

Please find attached an advance information copy of the confirmatory
decision taken on your request for access to documents registered under
Gestdem number 2016/2228, adopted and notified on 19/09/2016 in the
above-mentioned case.

 

This advance copy is solely sent for your information and is not the
formal notification of the confirmatory decision.

 

Yours sincerely,

 

Carlos Remis
SG.B.4
Transparence
Berl. 05/315

 

Link to this