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Migrant Report

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Dear Secretariat General (SG),

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 report, pursuant to Article 19 of Directive 2008/115/EC,
submitted to the European Parliament by the European Commission regarding the detention of migrants within the European Union.

Yours faithfully,

Joe Balson

Secretaría General de la Comisión Europea

Thank you for your request for access to documents. Unfortunately you have not indicated your postal address that is required for registering and handling your request in line with the procedural requirements. Please send us your full postal address at your earliest convenience. Pending your reply, we reserve the right to refuse the registration of your request.
You may, of course, use directly the electronic form for entering your request:
http://ec.europa.eu/transparency/regdoc/...

ACCESS TO DOCUMENTS
European Commission
Secretariat General
Unit SG.B4 – Transparency

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Dear Secretariat General (SG),

Thank you for your response, in which you ask for my postal address, which you state is "required" for registering and handling my request in line with the "procedural requirements".

I would like this to be considered as a confirmatory application against your refusal to process my request without a postal address.

The right of access to EU documents is a fundamental right enshrined in Article 42 of the Charter of Fundamental Rights and set out in Article 15 of the Treaty on the Functioning of the European Union. My request was made in exercise of that right.

Article 15 of the TFEU makes clear that the principles for and limits on exercise of the right of access to documents “shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure” and that any Rules of Procedure adopted by the institutions, bodies, offices and agencies of the EU must be “in accordance with [these] regulations.” The Regulation currently in force is Regulation 1049/2001.

According to Regulation 1049/2001, the only things which may be "required" of an applicant in order for a request to be registered are found in Article 6.1, which includes an exhaustive list: applications must be made in "any written form", in one of the official languages, and in a "sufficiently precise manner to enable the institution to identify the document". I have met all of these requirements.

At no point does the Regulation mention that the requester must provide his or her postal address before the request can even be registered.

Indeed, since it was adopted in 2001, many requesters have exercised the right to documents under this Regulation without the need to provide a postal address.

Furthermore, the Regulation states that requests for access to documents should be handled "promptly" and in Article 15 there is an explicit reference to the need to "develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation."

The refusal to register a request if the citizen involved does not provide a postal address is contrary to the principles of good administration which require that officials “shall in particular avoid restricting the rights of the citizens … when those restrictions … are not in a reasonable relation with the purpose of the action pursued” (Code of Good Administrative Behaviour, Article 6). Delaying registering a request for want of a postal address in the 21st Century when emails are a common means of communicating with public administrations is an unnecessary impediment. It also serves to delay the processing of requests sent to the institutions, which constitutes an unreasonable and disproportionate impediment to the exercise of the fundamental right of access to EU documents.

Finally, in your response you have not indicated which "procedural requirements" you are referring to, which leaves me little certainty as to which procedural steps I now need to follow in order to exercise my right of access to documents. I am therefore requesting a copy of these requirements in order to know where I stand legally.

I look forward to your prompt response.

Joe Balson

Secretaría General de la Comisión Europea

Les bureaux de la Commission sont fermés le 29 et 30 mai 2014.  Vos
demandes d'accès aux documents seront traitées dès le 2 juin 2014.

*  *  *

Die Abteilungen der Europäischen Kommission sind am 29. und 30. Mei 2014
geschlossen. Ihre Anträge auf Zugang zu Dokumenten werden ab dem 2. Juni
behandelt. 

                                                      * *  *

European Commission departments are closed on 29th and 30rd May 2014.   We
will handle your requests for access to documents on 2nd June 2014.

 

Secretaría General de la Comisión Europea

1 Adjuntos

Dear Mr Balson,

With respect to your questions regarding the provision of a postal address (copied below), please find our explanations below.

On 1 April 2014, the postal address became a mandatory field for the purpose of introducing a request for access to documents.

The decision to ask for a postal address from applicants for access to documents was triggered by the following considerations:

* The need to obtain legal certainty as regards the date of receipt of the reply by the applicant under Regulation 1049/2001. Indeed, as foreseen by Article 297 of the Treaty on the Functioning of the European Union (TFEU), […] decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification. Replies triggering the possibility for administrative or judicial redress are therefore transmitted via registered mail wit acknowledgement of receipt. This requires an indication of a valid postal address by the applicant;

* The need to direct the Commission's scarce resources first of all to those requests which have been filed by "honest and serious" applicants. With only a compulsory indication of an e-mail address, applicants can easily introduce requests under an invented identity or under the identity of a third person. Asking for a postal address helps the Commission to protect the administration, as well as other citizens and legal persons, from abuse. Such an approach is therefore fully compliant with the principles of good administration, to which you refer.

* For similar reasons, asking for a compulsory indication of a postal address enables the Commission services to verify whether Article 6(3) of the Regulation, on voluminous requests, is being evaded by introducing several requests under different identities. Indeed, in its Ryanair judgment, the General Court confirmed that Article 6(3) cannot be evaded by splitting the application into a number of applications Judgment of the General Court in case T-494/08, Ryanair Ltd v Commission, paragraph 34.;

* Knowing whether the applicant is an EU resident in the sense of Article 2(1) of Regulation 1049/2001 is a precondition for the purpose of correctly applying the exception in Article 4(1)(b) of Regulation 1049/2001 (protection of the privacy and integrity of the individual), which has to be interpreted in accordance with Data Protection Regulation 45/2001 Judgment of the Court of Justice of 29 June 2010 in case C-28/08 P, Commission v Bavarian Lager, paragraphs 56-63..
Article 9 of Regulation 45/2001 requires the adequacy of the level of protection afforded by the third country or international organisation when transmitting personal data to third-country residents or legal persons. It follows that, in case of requests for documents which include personal data, the correct application of the data protection rules cannot be ensured in the absence of a postal address enabling the Commission to ascertain that the minimum data protection standards will be respected.

This policy is also fully in line with Regulation 1049/2001, which provides that any natural or legal person residing or having its registered office in a Member State has a right of access to documents, subject to the principles, conditions and limits defined in that Regulation. Asking for a postal address is the only means to assess whether citizens applying for access to documents do indeed reside or have their registered office in a Member State, and therefore fall within the personal scope of the Regulation. As indicated above, Article 1 of the Detailed Rules of Application of Regulation 1049/2001 Official Journal L 345, 29.12.2001, p. 94. extends the right of access to third-country citizens, but in that case the Commission must be able to verify whether the data protection rules in the country of residence are adequate from a data protection point of view.

Please note also that other institutions, such as the Court of Justice, already ask for the address in their respective electronic forms for access to documents requests.

We therefore kindly reiterate our request to you to provide a full postal address, so we can duly register and handle your request.

Thank you in advance.

Kind regards,

ACCESS TO DOCUMENTS TEAM

European Commission
Secretariat General
Unit SG.B4 – Transparency

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Secretaría General de la Comisión Europea

Dear Mr Balson,

Following our earlier correspondence copied below, please note that, once we receive your postal address, we will send your request for access to the responsible Commission service for treatment as an initial application for access to documents in the meaning of Article 6(1) of Regulation 1049/2001.

Indeed, as your application has not been dealt with yet at the initial level pending the receipt of your postal address, the Secretariat-General is not in a position to adopt a confirmatory decision, contrary to what you request in your message.

Thank you for your understanding.

Kind regards,

ACCESS TO DOCUMENTS TEAM

European Commission
Secretariat General
Unit SG.B4 – Transparency

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No sabemos si la última respuesta a esta solicitud contiene información o no – si eres Joe Balson por favor abre una sesión y háznoslo saber.