Dear European Union Agency for Asylum,

Under the right of access to documents foreseen by art 15.3 TFEU, Regulation 1049/2001, and the relevant EU jurisprudence I am requesting copy of the documents referred to in the Commission legislative proposal for a common EU list of 'safe countries of origin' (2025/0101(COD) - namely the methodology for determining this list and the assessment of the countries concerned, including the candidate countries for EU accession and any countries that the Commission did not propose for inclusion on the common EU list, as well as the seven countries which it did propose for the list.
As you will be aware, the Advocate-General's opinion in the case of Alace and Canpelli states that the assessments underlying 'safe country of origin' lists should be public.

Yours faithfully,
Emilio De Capitani
11 rue Darwin
1190 - Bruxelles

Subject: Confirmatory application of an access to EUAA documents request (EUAA RefNo 005632)
To the attention of Mikael Ribbenvik Cassar EUAA Deputy Executive Director

Dear Mr Ribbenivik ,

First of all let me apologize for my short delay in replying to your letter on June 12th answering to my request for access to documents dealing with EUAA preparatory activity in view of the classificatio as "Safe Countries" of several non EU States.

By this CONFIRMATORY APPLICATION I respectfully ask to reconsider your refusal of disclosing documents 3-15 listed in your letter for the following reasons.

(1) As far as the exception dealing with "The protection of international relations" (as foreseen by Article 4(1)(a) third indent Reg 1049/01)" is concerned first of all I consider your justification too general as it cover all the third Countries concerned.
It is also highly hypothetical because no reference is made to any particular initiative from any third Country threatening the EU because of the “Safe Country” assessment procedure . Moreover, even if this would had been the case, it is worth recalling that being classified (or not) as a “Safe” Country is an EU internal sovereign assessment whose impact is relevant only inside the EU and, as such, has no direct impact on the situation of third Countries and, because of this is not a subject for negotiations with them.
On the content, declaring a third Country as “Safe” may have a direct impact on protection and promotion of fundamental rights which is of an overriding principle also in the EU external relations (art.21 TEU).
It is in fact clear that when a Third Country is declared as “Safe”, the individuals coming from that Country and asking for international protection, shall overcome a (rebuttable) legal presumption of safety to avoid an accelerated procedure of its demand.
Maintaining confidential the elements justifying the declaration of “safety” will make their task unduly difficult. As recently declared by AG De la Tour “..Thus, the circumstances which demonstrate the country of origin’s ability or, conversely, its inability to provide protection from acts of persecution or serious infringements of fundamental rights constitute a crucial element both in the general assessment leading to the establishment of a presumption of safety with regard to the country concerned and, symmetrically, in the individual assessment of the applicant’s situation which leads, where appropriate, to the rebuttal of that presumption.”
In the same perspective enhanced transparency when defining a country as “Safe” is more than needed because the fact “..that the presumption of safety is rebuttable means that the applicant must be put in a position to know the reasons why his or her country of origin is presumed to be safe, so that he or she can rebut it more effectively by distinguishing his or her individual situation from the general situation on which that presumption is based. In general, the grant of international protection on the basis of sources of information is rarely challenged by the applicant. However, the refusal of international protection on that basis is a completely different matter. That is why any presumption of safety concerning a third country must be based on a procedure which ensures transparency in the collection and processing of information relating to its general situation, information on which the national legislature based its decision that that country could be designated as a safe country of origin. As is clear from Article 37(3) of Directive 2013/32, and despite the fact that the list contained in that provision is non-exhaustive, there is no room and no need here for sensitive or confidential information.” (AG Opinion on Joined Cases C 758/24 [Alace] and C 759/24 [Canpelli])
Last but not least, transparency on the elements and facts justifying the declaration of Safety of a third Counctry is essential for granting in compliance with art 47 of the Charter the judicial protection of an individual searching for international protection. As confirmed by AG De La Tour in the same Opinion cited above “.. sufficient and adequate publicisation of the sources of information on which the presumption of safety is based is inseparable from the right to an effective judicial remedy granted by Article 46(3) of Directive 2013/32 to an applicant from a third country designated as a safe country of origin whose application is examined under an accelerated procedure. (58).For the judicial review guaranteed by Article 47 of the Charter to be effective, such an applicant must be able to ascertain the reasons for the decision rejecting his or her application for international protection. (30) In so far as those reasons are the same as those which provide the basis for the presumption that the applicant’s country of origin is safe, disclosure of those sources enables the applicant to defend his or her rights and to decide, in full knowledge of the facts, whether it would be useful to bring an action before the competent judicial authority.”(pp 57,58)

(2) I also consider unfounded the exception dealing with the “Protection of the decision making process (Article 4(3) first subparagraph of Regulation (EC) No 1049/2001).
May I recall that the decision making process which is at stake in the present case is not the one to which art.4.3 of Regulation 1049/01 makes reference ? What we are discussing is a procedure dealing with the adoption of a “legislative act” as defined by art.289 of the TFEU. Such “legislative acts” did not existed at the time of the negotiation of Regulation 1049/01 which still, in its art 12, make reference to a notion of legislative procedures quite different for the scope and nature from the notion of legislative procedure foreseen by the Treaties after Lisbon. Since then, as already recognized by the Court “the principles of publicity and transparency are inherent in the legislative procedures of the European Union”. Moreover, contrary to the pre-Lisbon situation when according to the Treaty the Council has only to publish its legislative votes, the treaty now impose to both the co-legislators also the publicity of the legislative negotiations (art.15.2 TFEU). The "legislative" decision meking process as describe in a detailed manner by art.294 TFEU has nothing to do with the (administrative) decision making process described by art. 4.3 of Regulation 1049/01. Invoking the art.4.3 when dealing with legislative procedure is then out of scope as are notions such as "space to think" or disguising practices such as “informal”, “technical” meetings or documents.
In this perspective documents 3-15 dealing with EUAA assessments of "safety" of third Countries shall be considered already an essential element of the "Safe Countries of origin" Legislative proposal ( 2025/0101(COD) ***I. As such, the EUAA assessments as detailed in documents 3-15 shall be considered of the same nature as the "Preliminary Impact assessment" that the CJEU already considered should be accessible as part of a legislative procedure even before the beginning of the procedure itself. (Case C-57/16 P)Judgment of the Court (Grand Chamber) of 4 September 2018 -ClientEarth v European Commission /Appeal ).

Thanks in advance for taking in account this confirmatory application and publish asap the documents 3-15 listed in your June 12th letter

Yours

Emilio De Capitani
11 rue Darwin
1190 Brussels

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

Dear EUAA Public Access To Documents Mailbox ,

Thanks for your message on July 10th,2025
I take note of your decision to consider inadmissible my Confirmatory Application for procedural reason (two days delay after the date limit foreseen in art.7.2 Reg 1049/01). However I consider your decision legally unfounded for the reasons below.
As I have explained in my Confirmatory Application, what I am asking is for the EUAA to publish documents 3-15 by complying with the general obligation of legislative transparency set in art 15.2 TFEU. This general obligation of publishing documents linked to EU legislative procedures is not limited in time (and even not depending on a specific Citizen's request).
In subsidiary order , and if EUAA considers that documents 3-15 listed in your first letter are not of legislative nature and may be disclosed only after a specific Citizen's access to documents request, I want to stress that since the entry into force of the Lisbon treaty access to documents is a fundamental right protected by art 42 of the Charter and art.15.3 TFEU.
Please notice that these primary law provisions were not in force at the time of the negotiation of Regulation 1049/01 which, therefore, has to be interpreted in the light of the new EU Constitutional framework strenghtening such fundamental right and the EU Institutions duty of care in protecting it . In this perspective rejecting a Citizen's Confirmatory Application only because of a short delay in submitting it seems to me an excessive, if not, abusive interpretation of art.7.2 of Regulation 1049/01 deadlines. Making the dialogue easier (also on an informal basis ) between the Citizen and the public administration is moreover already clearly stated by the pre-Lisbon Regulation 1049/01. By submitting my Confirmatory application I also apologized for the delay and because of this I was expecting a different reaction from EUAA. Therefore please consider these lines as a complement to my Confirmatory Application.
Please notice that in absence of your further reaction I will consider the EUAA Decision to consider my confirmatory appllcation inadmissible, a challengeanìble Deciison before the CJEU.

Yours sincerely,

Emilio DE CAPITANI
11 rue darwin
1190 -Bruxelles