Ref. Ares(2018)6549080 - 19/12/2018
NEIGHBOURHOOD AND ENLARGEMENT NEGOTIATIONS
Brussels, 19th December 2018
Your application for access to documents – Ref GestDem No 2018/5450
Dear Ms Przywara,
I refer to your e-mail dated 18 October 20181 in which you make a request for:
"all documents generated or received by the Commission concerning implementation of
the Commission Implementing Decision of 20.7.2016 on the Annual Action Programme
2016 in favour of the Republic of Belarus to be financed from the general budget of the
European Union, Annex II Action Document for Helping Belarus Address the
Phenomenon of Increasing Numbers of Irregular Migrants.
I request access particularly to the documents concerning:
Under component 1 Policy development, strengthening of legal, institutional and
policy-related and legal advice on the review of relevant legislation and the
elaboration of an irregular migration management strategy and its
implementation provided to the Belarussian part;
trainings on identification of migrants' identity and trainings for services involved
in processing readmission applications provided to the Belarussian part;
development of gender-sensitive standard operating procedures for the
management of Migrants Accommodation Centres;
1 Ref. Ares(2018)5351270
By registered letter
Ms. Danuta Przywara
Zgoda 11 00-018
Advanced copy by email:
[Dirección de correo de la solicitud #6022]
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË — Tel. +32 22991111
Under component 2: Establishment of an Assisted Voluntary Return and
Reintegration (AVRR) system for irregular migrants;
support in legislative and policy development, as well as training provided to
Belarusian law enforcement agencies staff (including number of policy dialogue
number of migrants supported under the AVRR Programme and what kind of
support was provided to them;
Under component 3: Establishment of Migrants Accommodation Centres (MAC)
in line with best EU and international standards;
study visits for senior officials (policy makers) and technical experts to several
EU / non-EU countries where MACs already exist;
number of MACs established or developments on establishing MACs (including
assessment study on number of MACs, their location, conditions and needs.
I request also documents concerning:
financing agreement with the partner country, referred to in Article 184(2)(b) of
Regulation (EU, Euratom) No 966/2012 which was concluded to implement
above mentioned actions;
Mid-term evaluation carried out for this action or its components;
Frontex bilateral working arrangements on the establishment of operational
cooperation with the SBC."
The following documents have been identified as falling under the description provided in
the Financing Agreement signed between the European Commission and the
Government of the Republic of Belarus: Special conditions, Annex I Technical
and Administrative Provisions and Annex II General conditions;
Working Arrangement on the establishment of Operational Cooperation between
the European Agency for the Management of Operational Cooperation at the
External Borders of the Member States of the European Union (Frontex) and the
State Border Committee of the Republic of Belarus;
Delegation Agreement between the European Union and the International
Organisation for Migration, together with its seven annexes.
With regard to documents related to implementation, please note that the contract
between the European Union and the International Organisation for Migration was
signed in late 2017. Registration by Belarus authorities at the ministerial level was
completed only in August 2018, after which the project implementation has officially
started. The official opening ceremony took place on 23 October 2018 in Minsk
(attended by representatives of the Ministry of Interior, the State Border Committee, the
European Union, the International Organisation for Migration, the office of the United
Nations High Commissioner for Refugees, the Belarus Red Cross Society, the Belarusian
Movement of Medical Workers, diplomatic missions and journalists). The project has
therefore not produced yet any concrete outputs in any of the components, nor any mid-
Following an examination of the documents identified under the provisions of Regulation
(EC) No 1049/2001 regarding public access to documents2 and taking into account the
opinion of the third parties, pursuant to Article 4(4) of Regulation (EC) No 1049/2001, I am
in the position to grant:
Full access to the Financing Agreement and its two annexes, the Working
Arrangement between Frontex and the State Border Committee of the Republic of
Belarus, Annexes II, V, VI and VII of the Delegation Agreement between the
European Union and the International Organisation for Migration;
Partial access to Annex I of the Delegation Agreement between the European
Union and the International Organisation for Migration, as full disclosure is
prevented by the exception to the right of access laid down in Article 4(1)(a) third
indent (protection of the public interest as regards international relations) and
Article 4(1)b (protection of the privacy and integrity of the individual) of
Regulation (EC) No 1049/2001.
On the other side, I regret to inform you that access to the Special conditions of the
Delegation Agreement between the European Union and the International Organisation
for Migration and its Annexes III and IV cannot be granted, as disclosure is prevented by
the exceptions to the right of access laid down in Article 4(1)(a), third indent, (protection of
the public interest as regards international relations), Article 4(1)b (protection of the
privacy and integrity of the individual) and Article 4(2), first indent, (the protection of
commercial interests of a natural or legal person, including intellectual property) of
Regulation (EC) No 1049/2001.
1. Protection of the public interest as regards international relations
Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001 provides that “The
institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations”.
With regards to Article 4(1)(a) of Regulation (EC) No 1049/2001, the Court of Justice
has acknowledged in Case C‑350/12 P3 that the institutions enjoy "a wide discretion for
the purpose of determining whether the disclosure of documents relating to the fields
covered by those exceptions could undermine the public interest.
First, the co-authors of the documents have objected to the disclosure of these
documents, which contain confidential information.
2 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents, Official Journal L 145 of 31
May 2001, p. 43.
3 Judgment of the Court of Justice of 3 July 2014, Council v in 't Veld
, Case C‑350/12 P, paragraph 63.
Please note that the Special Conditions of the Delegation Agreement contain articles
related to the terms negotiated between the International Organisation for Migration and
the Delegation of the European Union to the Republic of Belarus with regard to the
services provided to migrants.
Annex I of the Delegation Agreement cannot be shared in its entirety, given the
sensitivity of the information contained, related to the context of the action, specific
assistance and locus of operations of activities, international relations and political notes.
The Commission considers that public disclosure of the above mentioned documents
would expose its diplomatic relations with the International Organisation for Migration.
In order to ensure the effective implementation of the object of the agreement which was
signed, it is essential to foster an atmosphere of mutual trust and confidence between the
Therefore, full public disclosure of these documents would undermine the protection of
public interest as regards international relations protected by Article 4(1)(a), third indent,
of Regulation (EC) No 1049/2001, and access has to be refused on that basis.
2. Protection of the privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that “access to documents is
refused where disclosure would undermine the protection of privacy and integrity of the
individual, in particular in accordance with Community legislation regarding the
protection of personal data”.
In Case C-28/08P4, the Court of Justice ruled that when a request is made for access to
documents containing personal data, Regulation (EC) No 45/20015 becomes fully
applicable. Article 2(a) of Regulation (EC) No 45/2001 provides that "'personal data'
shall mean any information relating to an identified or identifiable person […]".
Court of Justice confirmed in Case C-465/006, "there is no reason of principle to justify
excluding activities of a professional […] nature from the notion of private life".
The documents partially disclosed and withheld contain the names of Commission
officials and representatives of the International Organisation for Migration not forming
part of senior management as well as the hand-written signatures of these persons. This
information clearly constitutes personal data in the sense of Article 2(a) of Regulation
(EC) No 45/2001.
4 Judgment of the Court of Justice of 29 June 2010, European Commission v. the Bavarian Lager, Case C-
28/08P, paragraph 59.
5 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 8 December 2000 on the
protection of individuals with regard to the processing of personal data by Community institutions and
bodies and on the free movement of such data, Official Journal L8 of 12 January 2001, p.1. Please note that
Regulation (EC) No 45/2001 will be repealed on 11 December 2018. Regulation (EU) 2018/1725 of the
European Parliament and of the Council of 23 October 2018 on the protection of natural persons with
regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the
free movement of such data, published in the Official Journal L295 of 21November 2018 p. 39, will enter
into force on 11 December 2018. Regulation (EU) 2018/1725 will not introduce changes to the content of
6 Judgment of the Court of Justice of 20 May 2003 in joined cases C-465/00, C-138/01 and C-139/01,
preliminary rulings in proceedings between Rechnungshof and Österreichischer Rundfunk, paragraph 73.
According to Article 8(b) of this Regulation, personal data shall only be transferred to
recipients if they establish the necessity of having the data transferred to them and if there is
no reason to assume that the legitimate rights of the persons concerned might be prejudiced.
I consider that, with the information available, the necessity of disclosing the
aforementioned personal data to you has not been established and/or that it cannot be
assumed that such disclosure would not prejudice the legitimate rights of the persons
concerned. Therefore, I am disclosing a version of the documents requested in which these
personal data have been redacted.
3. Protection of commercial interests of a natural or legal person, including
Article 4(2), first indent, of Regulation (EC) No 1049/2001 provides that "The institutions
shall refuse access to a document where disclosure would undermine the protection of […]
commercial interests of a natural or legal person, including intellectual property […]
unless there is an overriding public interest in disclosure"
According to the Court of First Instance in Case T-380/04, this can be the case for a contract
which "is likely to contain confidential information concerning the contracting companies
and their business relations
Annex III of the Delegation Agreement includes confidential and commercially sensitive
information. The disclosure of this information could jeopardize the International
Organisation for Migration's advantages in terms of cost-effectiveness and efficiency over
other entities which are implementing or aim to implement similar projects worldwide.
Annex IV of the Delegation Agreement which represents the financial identification form
contains sensitive financial information pertaining to the International Organisation for
Migration bank details.
The exception of Article 4(2), first indent, of Regulation (EC) No 1049/2001 has to be
read also in light of Article 339 of the Treaty on the Functioning of the European Union,
which requires staff members of the EU institutions to refrain from disclosing
information of the kind covered by the obligation of professional secrecy, in particular
information about undertakings, their business relations or their cost components.
It follows that disclosure of this information would prejudice the commercial interests of the
International Organisation for Migration and that the documents withheld fall within the
exception provided for in Article 4(2), first indent, of Regulation (EC) No 1049/2001.
4. No overriding public interest in disclosure
Pursuant to Article 4(2) of Regulation (EC) No 1049/2001, the exceptions to the right of
access defined therein must be waived if there is an overriding public interest in
disclosing the documents requested. In order for an overriding public interest in
disclosure to exist, this interest first has to be public and, secondly, overriding, i.e. in this
case it must outweigh the commercial interests of a natural or legal person protected
under Article 4(2), first indent, of Regulation (EC) No 1049/2001.
7 Judgment of the Court of First Instance (Third Chamber) of 30 January 2008 in Case T-380/04,
Terezakis v Commision, paragraph 57, 93.
In your request, you do not put forward any arguments demonstrating the existence of an
overriding public interest in disclosure. Similarly, the Commission has not identified any
public interest that would override the interests protected by Article 4(2), first indent, of
Regulation (EC) No 1049/2001.
Moreover, I consider that the public interest in providing information concerning this
matter is satisfied through wide access to the nine documents which are disclosed.
5. Partial Access
I have considered whether partial access could be granted to the documents requested and
currently withheld but this was deemed impossible as the sensitive elements are integral to
them. Please note that I cannot provide you with more detailed information on these
documents without disclosing their substance which is protected by the quoted exceptions
laid down in Article 4 of Regulation (EC) No 1049/2001.
6. Means of Redress
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 its 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:
Transparency unit SG.C.1
or by email to: [correo electrónico]
Encl./ 9 documents (sent by e-mail only)
Electronically signed on 18/12/2018 12:35 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563