Dear Secretariat General of the European Commission,

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:

All documents relating to the infringement proceedings (including informal stages) brought by the European Commission against the Republic of Finland relating to the implementation of the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

Under Article 15 TFEU, Article 42 of the Charter of Fundamental Rights and Regulation 1049/2001 I hereby request access to all documents relating to the infringement proceedings (including informal stages) brought by the European Commission against the Republic of Finland relating to the implementation of the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

I am aware of Joined Cases C 514/11 P and C 605/11 P in which the ECJ confirmed that “it is possible for the Commission to base its decision on the general presumption that public access, even if only partial, to the documents relating to an infringement procedure during the pre-litigation stage thereof jeopardises the achievement of the objectives of that procedure in order to refuse access to those documents on the basis of the third indent of Article 4(2) of Regulation No 1049/2001.”

However, in the same ruling, the Court also recognised that
That general presumption does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 (see, to that effect, Commission v Technische Glaswerke Ilmenau, paragraph 62; Sweden and Others v API and Commission, paragraph 103; Commission v Éditions Odile Jacob, paragraph 126; and Commission v Agrofert Holding, paragraph 68). In addition, the Commission is not required to base its decision on that general presumption. It may always carry out a specific examination of the documents covered by a request for access and provide such reasons. What is more, where it finds that the infringement procedure involved in a given request for access is of a nature which permits the full or partial disclosure of the documents in the file, it is obliged to make that disclosure.

Questions surrounding this file are currently a matter of a high public interest in Finland. I am investigative journalist working for a major media house and charged with reporting on the matter.Therefore, the interest for which I am requesting access is not private in nature but public and relates to function of independent media in democratic society, as recognised by the European Court on Human Rights in its jurisprudence.

Prime Minister Orpo’s government has publicly committed to making the required changes, but remains unclear in public debate what changes the Commission has actually required to be made. Legislative reforms require parliamentary approval and thus broad societal support, and thus the discussions cannot be held in secret. Therefore, there exists a clear overriging public interest to disclose the requested documentation.

Yours faithfully,
Jarno Liski
reporter
Iltalehti

Address:
Alvar Aallon katu 3 C
00100 Helsinki
Finland

Dear Secretariat General of the European Commission,

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 'Documents relating to the infringement proceedings against Finland'.

Subject: confirmatory application for access to documents (2024/2124)

Dear European Commission,

With reference to Article 7(2) of Regulation (EC) No 1049/2001, I hereby file my confirmatory application and request the Commission to review its position in respect of my application.

As indicated in your decision, my request concerns access to all documents relating to the infringement proceedings (including informal stages) brought by the European Commission against the Republic of Finland relating to the implementation of the Council Framework
Decision 2008/913/JHA of 28 November 2008 on
combating certain forms and expressions of racism and xenophobia by means of criminal law. In its decision, the Commission identifies the following documents:

• Letter of formal notice under Article 258 TFEU to the Republic of Finland in infringement case INFR(2020)2320, of 18 February 2021 (C(2021) 863 final).

• Reply of the Republic of Finland to the letter of formal notice in infringement case INFR(2020)2320, of 16 April 2021 (INF(2021)000644).

• Additional letter of formal notice under Article 258 TFUE to the Republic of Finland in infringement case INFR(2020)2320, of 26 January 2023 (C(2023)153 final).
• Reply of the Republic of Finland to the additional letter of formal notice in infringement case INFR(2020)2320, of 23 March 2023 (INF(2023)000415).

Two of the documents thus originate from the Commission and two are documents originating from a Member State.

The Commission denies access in full with reference to Article 4(2) third indent
of Regulation (EC) No 1049/2001 and argues that it has not identified any overriding public interest in disclosure.
It is clear that the documents relate to an ongoing infringement procedure. However, in Finland they also relate to legislative activity and the need to update national legislation to reflect the requirements of the Framework Decision, which is currently the subject of broad societal discussion. While the EU Treaty framework relates mostly to the legislative activity of the EU institutions, it is difficult to see how national legislative work, when affected by EU legislation, would merit a lower level of publicity. Therefore, the principle of legislative transparency should apply mutatis mutandis also to national procedures. Recital 6 of Regulation No 1049/2001 states that wider access should be granted to legislative documents. According to the case-law, openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. Thus, the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C 39/05 P and C 52/05 P, EU:C:2008:374, paragraph 46). The documents I have requested are a part of “all the information which has formed the basis of a legislative act”, and citizens should have the right to scrutinise it. The same idea was recently repeated by the Court in C-156/21 - Hungary v Parliament and Council, where the Court stressed that account should be taken of the principle of openness and its relevance for democratic legitimacy. The Court found that ‘the consideration of those passages is also likely to contribute to reducing doubts in the minds of citizens, not only as regards the lawfulness of the contested regulation but also as regards the legitimacy of the legislative process as a whole, it serves in any event the overriding public interest’ (para 63). The same overriding public interest is present in the current case.
Second, under the Regulation, Article 4(4) 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’. As indicated, it is by far not clear whether the document should or should not be disclosed. The following paragraph specifies that Member States enjoy a specific status in this regime. In this case, the Republic of Finland should have been consulted for disclosure of the two documents originating from them.
Finally, under Article 4(6) of the Regulation, ‘If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.’ The documents are likely to contain passages from existing legislation, parliamentary and government documents that are already in the public domain and cannot become confidential just because they are now contained in documents held by the European Commission.

For these reasons, I request the Commission to review its position.

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

Hämeenlinna 28th May 2024,
Jarno Liski