Dear Neighbourhood and Enlargement Negotiations,

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 letter sent by High Representative Borrell, dated September 7, on the migration pact with Tunisia. The existence of the letter has been made public by the Guardian: https://www.theguardian.com/world/2023/s...

Yours faithfully,

Alexander Fanta
Follow the Money
Rue Auguste Orts 2, 1000 Bruxelles

Dear Neighbourhood and Enlargement Negotiations,

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 'Letter from Borrell'.

The EEAS has denied access to the letter as its content 'would expose the position of the EU on such arrangements, as well as its internal assessments, to current international partners and potential future ones and, as a consequence, weaken the negotiating position of the EU on these matters.' I argue that these grounds for refusal, based on Article 4 (1.) of the proposal, are largely hypothetical and not sufficiently concrete to justify withholding the document.

The Court of Justice of the EU has said that the risk of jeopardizing international relations must be reasonably foreseeable and not purely hypothetical (see CJEU, 21 July 2011 Case C-506/08 P, Sweden v MyTravel and Commission) and that the institution must show that the document requested specifically and actually undermines the interest protected by the exception (see CJEU, 28 November 2013, Case C-576/12 P, Ivan Jurasinovic v Council of the European Union, paragraph 45.) The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest.

As regards your refusal under Article 4(3), first and second subparagraph, I content that the EEAS has not sufficiently demonstrated that disclosure of the document would "seriously undermine" the institution's decision-making process, as is required under this exception. In this context, I would like to refer to the findings of the court in the De Capitani ruling (T-540/15). The Court pointed out that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] The Court drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action, which should include international treaties, was a precondition for the effective exercise of democratic rights. It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99]

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

Yours faithfully,

Alexander Fanta