EUROPEAN COMMISSION
Brussels, 31.7.2019
C(2019) 5884 final
Ms Giulia Crescini
Piazza Mazzini, no. 8
00195 Rome
Italy
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/6744
Dear Ms Crescini,
I refer to your letter of 22 February 2019, registered on 25 February 2019, in 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
documents2 (hereafter 'Regulation (EC) No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 7 December 2018, addressed to the Directorate-General for
Neighbourhood and Enlargement Negotiations, you requested access to ‘documents
which contain the […] information concerning the activities that are being implemented
by the International Organisation for Migration (hereafter ‘IOM’) within the project
“Supporting protection and humanitarian repatriation and reintegration of vulnerable
migrants in Libya”, which is funded through the EU Trust Fund’. In particular, you
requested access to documents including the following information:
– number of individuals assisted through the project;
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
– details on sex, age, movements and multi-sectoral needs of vulnerable migrants
assisted;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding confidentiality (i.e.
whether and how is the obligation to hide sensible data respected);
– number of interventions carried out throughout the implementation of the project;
– number of monitoring reports drafted;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding the repatriation
procedure from Libya to other countries, including the assessment of the
voluntary nature of the repatriation (e.g. whether the information regarding the
repatriation procedure are provided in any language that each beneficiary can
understand; whether interpreters and/or mediators participate in the assessment;
whether the will to participate in the procedure is expressed in written form; etc.);
– number of individuals repatriated;
– statistics on the countries where individuals have been repatriated to;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding concrete safeguards in
case of repatriation of unaccompanied minors (UAMs) or migrants with special
medical needs;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding pre-departure
counselling interviews;
– details on fit-to-travel checks;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding the involvement of the
International Organisation for Migration in the issuance and/or replacement of
missing, lost or expired travel documents;
– text of any agreements concluded by the International Organisation for Migration
with countries of destination of the repatriation procedure;
– text of any protocols concluded by the International Organisation for Migration
with countries of destination of the repatriation procedure;
– guidelines, implementation plans or documents of the International Organisation
for Migration (however named or referred to) regarding their activities within the
migrant’s country of origin, including its involvement in facilitating onward
transportation to the final destination;
2
– text of the Convention concluded by the European Commission with the
International Organisation for Migration;
– text of any Protocols additional to the Convention concluded by the European
Commission with the International Organisation for Migration.
The European Commission identified the following two documents as falling under the
scope of your request:
– 5th Quarterly report to the European Union, EU-IOM Joint Initiative on Migrant
Protection and Reintegration: Libya, EU Emergency Trust Fund for Africa –
North Africa window, 1 May 2018 – 31 July 2018, Ares(2019)2656440
(hereafter 'document 1');
– PowerPoint presentation: Protecting vulnerable migrants and stabilising
communities in Libya, EUTF-IOM Joint initiative for migrants' protection and
reintegration, Ares(2019)2656440 (hereafter 'document 2').
In its initial reply of 05 February 2019, the Directorate-General for Neighbourhood and
Enlargement Negotiations refused access to these documents based on the exception of
Article 4(1)(a), first indent (protection of the public interest as regards public security), of
Regulation (EC) No 1049/2001.
In its assessment, the Directorate-General for Neighbourhood and Enlargement
Negotiations took into account the position of the International Organisation for
Migration, consulted in line with the provisions of Article 4(4) and (5) of Regulation
(EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You reduce the
scope of you application by requesting the documents and information on:
- number of individuals assisted through the project;
- details on sex, age, movements and multi-sectoral needs of vulnerable migrants
assisted;
- guidelines, implementation plans or documents of the International Organisation for
Migration (however named or referred to) regarding confidentiality (i.e. whether and how
is the obligation to hide sensible data respected);
- number of interventions carried out throughout the implementation of the project;
- number of monitoring reports drafted;
3
- guidelines, implementation plans or documents of the International Organisation for
Migration (however named or referred to) regarding the repatriation procedure from
Libya to other countries, including the assessment of the voluntary nature of the
repatriation (e.g. whether the information regarding the repatriation procedure are
provided in any language that each beneficiary can understand; whether interpreters
and/or mediators participate in the assessment; whether the will to participate in the
procedure is expressed in written form; etc.);
- number of individuals repatriated;
- statistics on the countries where individuals have been repatriated to;
- guidelines, implementation plans or documents of the International Organisation for
Migration (however named or referred to) regarding concrete safeguards in case of
repatriation of unaccompanied minors (UAMs) or migrants with special medical needs;
- guidelines, implementation plans or documents of the International Organisation for
Migration (however named or referred to) regarding pre-departure counselling
interviews;
- details on fit-to-travel checks;
- guidelines, implementation plans or documents of the International Organisation for
Migration (however named or referred to) regarding their activities within the migrant’s
country of origin, including its involvement in facilitating onward transportation to the
final destination;
In addition to the document 1 and 2, the European Commission has identified one more
document received in the meantime and falling in the scope of your confirmatory
application:
– 6th Quarterly report to the European Union, EU-IOM Joint Initiative on Migrant
Protection and Reintegration: Libya EU Emergency Trust Fund for Africa –
North Africa window, 1 August 2018–31 October 2018, Ares(2019)3047080
(hereafter 'document 3').
In other words, the scope of your confirmatory application covers documents 1, 2 and 3.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
Following this review, I am pleased to inform you that partial access is granted to
documents 1, 2 and 3. The withheld parts of the documents 1 , 2 and 3 are redacted based
on the exceptions provided for in Article 4(1)(a), first indent and Article 4(1)(b) of
Regulation (EC) No 1049/2001 (protection of, respectively, the public interest as regards
public security and privacy and the integrity of individual), for the reasons set out below.
4
2.1. Consultation of the International Organisation for Migration
The documents 1, 2 and 3 originate from the International Organisation for Migration.
According to Article 4(4) of Regulation (EC) No 1049/2001, ‘as regards third-party
documents, the institution shall consult the third party with a view to assessing whether
an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or
shall not be disclosed’.
Under the provision of Article 4(4) of Regulation (EC) No 1049/2001 and taking into
account the arguments put forward in your confirmatory application, a renewed third-
party consultation of the International Organisation for Migration was initiated by the
Secretariat-General at confirmatory stage. The International Organisation for Migration
agreed to full disclosure of document 2 and partial disclosure of documents 1 and 3 based
on the exception of Article 4(1)(a), first indent (protection of the public interest as
regards public security) of Regulation (EC) No 1049/2001.
The International Organisation for Migration indicated that full disclosure of the
documents 1 and 3 would undermine the public interest as regards public security. It
underlined that considering the highly volatile, unstable and insecure context in which
this EU-funded Action in Libya is being implemented, the disclosure of sensitive
information contained in document 1 and 3 could put their staff and contractors at risk,
impede future access to the final beneficiaries of the Action as well as impact the
trustworthy relationship with the Libyan national and local authorities established over
the past years.
In addition, documents 1 and 3 include information on the locations of activities
implemented by the International Organisation for Migration staff, implementing
partners and contractors as well as the whereabouts of the reached target groups,
comprising primarily vulnerable migrants such as unaccompanied minors, returnees and
internally displaced people. The two documents contain exact locations of internally
displaced people, host families, ‘safe shelters’ and centres where assistance to
beneficiaries is provided.
These two documents also contains detailed information on the strategy and plans for
future activities of the International Organisation for Migration, which involve
emergency services and direct protection assistance in identified areas of intervention.
Releasing this information could undermine operationalization of these envisaged
activities in Libya.
Furthermore, according to the International Organisation for Migration, documents 1 and
3 contain information on their partners, including NGOs, and their responsibilities in this
project. The release of this information could pose risks (including considerable security
risks) as they could be targeted for their involvement in the project. It could damage the
ability of the International Organisation for Migration to work in Libya but also prejudice
the relations between the International Organisation for Migration with other
governments mentioned in the two reports.
5
Finally, the International Organisation for Migration pointed out that the information
contained in documents 1 and 3 illustrate the internal policies, guidelines and standards
of procedures regarding hiring staff, selecting implementing partners and procuring,
which are confidential in nature. They contain information on the assessment of
suitability of partners to work alongside the International Organisation for Migration in
this project. The release of this information could damage future relationships of the
International Organisation for Migration with those partners that were not selected.
2.2. European Commission's assessment
I have carried out an assessment at first sight of the reply provided by the International
Organisation for Migration and have come to the conclusion that their arguments justify
at first view the non-disclosure of parts of the documents 1 and 3 on the basis of the
exception provided for in Article 4(1)(a), first indent (protection of the public interest as
regards public security) of Regulation (EC) No 1049/2001. In addition, I have concluded
that certain parts of the documents 1, 2 and 3 need to be withheld on the basis of the
exception provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of
privacy and the integrity of individual).
The reasons are set out below.
2.2.1.
Protection of the public interest as regards public security
Article 4(1)(a), 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 the public interest as regards public security’.
In its recent judgment in Case Pagkyprios Organismos Ageladotrofon v Commission, the
General Court clarified that ‘before refusing access to a document originating from a
Member State, the institution concerned must examine whether that Member State has
based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No
1049/2001 and has given proper reasons for its position. Consequently, when taking a
decision to refuse access, the institution must make sure that those reasons exist and refer
to them in the decision it makes at the end of the procedure’.3
The General Court clarified in this judgment that the institution ‘must, in its decision, not
merely record the fact that the Member State concerned has objected to disclosure of the
document applied for, but also set out the reasons relied on by that Member State to show
that one of the exceptions to the right of access provided for in Article 4(1) to (3) of the
regulation applies’.4
3 Judgment of the General Court of 8 February 2018,
Pagkyprios Organismos Ageladotrofon v
Commission, T-74/16
, EU:T:2018:75, paragraph 55.
4
Pagkyprios Organismos Ageladotrofon v Commission judgment quoted above, paragraph 56.
6
The General Court also clarified that ‘the institution to which a request for access to a
document has been made does not have to carry out an exhaustive assessment of the
Member State’s decision to object by conducting a review going beyond the verification
of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of
Regulation No 1049/2001.[…] The institution must, however, check whether the
explanations given by the Member State appear to it, prima facie, to be well founded’.5
Furthermore, as regards the interests protected by Article 4(1)(a) of Regulation (EC) No
1049/2001, the General Court has acknowledged that ‘the institutions enjoy a wide
discretion when considering whether access to a document may undermine the public
interest and, consequently, […] the Court’s review of the legality of the institutions’
decisions refusing access to documents on the basis of the mandatory exceptions relating
to the public interest must be limited to verifying whether the procedural rules and the
duty to state reasons have been complied with, the facts have been accurately stated, and
whether there has been a manifest error of assessment of the facts or a misuse of
powers’.6
Moreover, the General Court recently ruled that, as regards the interests protected by
Article 4(1)(a) of Regulation (EC) No 1049/2001, ‘it must be accepted that the
particularly sensitive and fundamental nature of those interests, combined with the fact
that access must, under that provision, be refused by the institution if disclosure of a
document to the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complexity and delicacy that call for the
exercise of particular care. Such a decision requires, therefore, a margin of
appreciation’.7
In this context, it is important to mention that when (partial) access is given to documents
as a result of an application submitted under Regulation (EC) No 1049/2001, this access
is automatically granted to the public at large, and not only to the applicant concerned.
Taking into account the highly volatile and complex situation in Libya at the moment,
this fact is of particular importance. A recent airstrike on Tajoura detention centre in
Libya killed at least 44 migrants and injured more than 130 others, including some
registered with Voluntary Humanitarian Return programme managed by the International
Organization for Migration.
Documents 1 and 3 contain concrete information whose disclosure would put at risk not
only the International Organisation for Migration staff, partners and contractors but also
the project target groups, consisting mostly of vulnerable migrants such as
unaccompanied minors, returnees and internally displaced people. The two documents
include concrete information on the location of activities implemented by the
International Organisation for Migration staff, implementing partners and contractors as
well as the whereabouts of the reached target groups, locations of internally displaced
5 Idem, paragraph 57.
6 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v Council of the
EU, T-264/04, EU:T:2007:114, paragraph 40.
7 Judgment of the General Court of 11 July 2018,
Client Earth v European Commission, T-644/16,
EU:T:2018:429, paragraph 23.
7
people, host families and ‘safe shelters’. Likewise, the disclosure of the figures from
certain tables in the two documents could lead to the identification of the beneficiaries or
to targeted attacks.
The full disclosure of documents 1 and 3 would put in the public domain detailed
information that could put a number of stakeholders at risk and thereby undermine public
security. The two documents requested contain information on the partners of the
International Organisation for Migration and their responsibilities in the projects. They
also contain information that, if revealed, could impede future access to the final
beneficiaries of the activities run by the International Organization for Migration. This
would undermine the strategy for future activities, which involve emergency services and
direct protection assistance in identified areas of intervention. Finally, the disclosure of
certain parts of the two documents would harm the trustworthy relationship with the
Libyan national and local authorities and certain governments.
Having regard to the above, I conclude that there is a reasonably foreseeable and non-
hypothetical risk that full disclosure of documents 1 and 3 would undermine the
protection of the public interest as regards public security. Therefore, I consider that the
use of the exception under Article 4(1)(a), first indent of Regulation (EC) No 1049/2001
(protection of the public interest as regards public security) is justified, and that access to
certain parts of the documents in question must be refused on that basis.
2.2.2.
Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of […]
privacy and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data’.
In its judgment in Case C-28/08 P
(Bavarian Lager)8, the Court of Justice ruled that
when a request is made for access to documents containing personal data, Regulation
(EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000
on the protection of individuals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement of such data9 (hereafter
‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by 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, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC10 (hereafter ‘Regulation (EU) 2018/1725’).
8 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v The Bavarian Lager judgment’) C-28/08 P,
EU:C:2010:378, paragraph 59.
9 Official Journal L 8 of 12.1.2001, page 1.
10 Official Journal L 205 of 21.11.2018, p. 39.
8
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
(EC) No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.11
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
The documents 1, 2 and 3 contain personal data such as the names and photos of the
migrants and International Organisation for Migration staff, as well as other information
that would make them identifiable. Such parts have been redacted based on the exception
provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001.
Pursuant to Article 9(1)(b) of Regulation (EU) 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation (EU) 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.12 This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the lawful processing of personal data only if
the first condition is fulfilled, namely if the recipient establishes that it is necessary to
have the data transmitted for a specific purpose in the public interest. It is only in this
case that the European Commission has to examine whether there is a reason to assume
that the data subject’s legitimate interests might be prejudiced and, in the affirmative,
establish the proportionality of the transmission of the personal data for that specific
purpose after having demonstrably weighed the various competing interests.
11
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
12 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v European Food Safety Agency,
C-615/13 P, EU:C:2015:489, paragraph 47.
9
In your confirmatory application, you do not put forward any arguments to establish the
necessity to have the personal data for a specific purpose in the public interest. Therefore,
the European Commission does not have to examine whether there is a reason to assume
that the data subjects’ legitimate interests might be prejudiced.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to those parts of documents 1, 2 and 3 that contain
personal data – as the need to obtain access thereto for a purpose in the public interest has
not been substantiated and there is no reason to think that the legitimate interests of the
individuals concerned would not be prejudiced by the disclosure of the personal data
concerned.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(1)(a) and (b) of Regulation (EC) No 1049/2001 are
absolute exceptions which do not need to be balanced against overriding public interest
in disclosure.13
4.
PARTIAL ACCESS
Partial access is granted to documents 1, 2 and 3. The non-disclosed parts of these
documents are protected based on the exceptions provided for in Article 4(1)(a), first
indent and Article 4(1)(b) of Regulation (EC) No 1049/2001 (protection of, respectively,
the public interest as regards public security and privacy and the integrity of individual).
5.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and
228 of the Treaty on the Functioning of the European Union.
13 Judgment of the Court of Justice of 1 February 2007,
Sison v Council, C-266/05, EU:C:2007:75,
paragraph 46.
10
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
Enclosures: (3)
11
Document Outline