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:

- Any legal advice or counsel produced or received by the European Commission regarding the Memorandum of Understanding between the European Union, Egypt and Israel on cooperation related to trade, export and transport of natural gas to the European Union, signed on June 25, 2022. This request is meant to include any discussion about the matter of potential Palestinian sovereignty over gas reserves close to Gaza for which Israel has issued exploration licenses in October 2023. I note that the MoU in Section 8 explicitly allows for disclosure of the type of the information the applicant seeks, "without obtaining the other Side’s prior written consent".

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 'Legal advice regarding MoU with Egypt and Israel on natual gas'.

In the reply I received, the Commission states that access to five e-mails could not be granted as this would "undermine the protection of the public interest of the EU as regards international relations." But there was not further explanation. The reply I received does not satisfy the requirement for a proper response. 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.)

I contend that it is necessary to show that disclosure would undermine the public interest as regards international relations based on the content of the document or documents in question. 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.

On the substance of the correspondence, the reply said they contain "legal considerations and analysis produced by the legal experts of the European Commission on a non-binding international agreement". In this context, I note that in In ‘t Veld v Council, the ECJ agreed with the General Court that not all internal debates could reveal strategic objectives or be exploited by negotiating partners, and in Besselink v Council, the General Court found that disclosing positions already known by negotiating partners, drafted before any actual negotiation took place, can also not reasonably be said to undermine the EU’s international relations.

I therefore ask to re-evaluate my request and grant fullest possible disclosure.

Yours faithfully,

Alexander Fanta