Ref. Ares(2023)6794373 - 06/10/2023
SG.LD.ATD
Access to Documents Coordinator
Brussels, 6 October 2023
eeas.SG.LD (2023) 10601555
To
Mr Alexander Fanta
by electronic mail
Subject: Your request for access to documents of 18 September 2023
EEAS ref: 2023/129
Dear Mr Fanta,
I would like to thank you for your request for access to documents, which the EEAS has
examined in the framework of Regulation (EC) No 1049/2001.1
Following your application, we have searched for the requested documents “
The letter sent
by High Representative Borrell, dated September 7, on the migration pact with Tunisia” in
the EEAS filing systems and document management databases.
After this search, the EEAS has identified the following document matching your application,
as referenced hereafter:
- Letter addressed by the HR/VP Borrell to Commissioner Várhelyi dated 7 September
2023 (hereafter “the document”).
The identified document constitutes part of an internal exchange of views between members
of the College of the European Commission. As such, the document contains opinions,
considerations, as well as preliminary assessments on politically sensitive issues concerning,
in particular, the conclusion of several Memoranda of Understanding (‘MoUs’) between the
European Union and countries in the EU neighbourhood. The concerned document also
contains details on already concluded MoUs, as well as information of possible future
instruments of the same type that the Union could consider to negotiate. The public disclosure
of this document would therefore undermine the public interest as regards international
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European
Parliament, Council and Commission documents (OJ L 145, of 31.5.2001, p. 43, hereafter the "Regulation "), as applied
by the EEAS pursuant to Article 11(1) of the Council Decision 2010/427/EU of 26 July 2010 establishing the organisation
and functioning of the European External Action Service (OJ L 201, of 3.8.2010, p. 30).
European External Action Service – B-1046 Brussels – Belgium – Tel.: (32-2) 584 11 11
Office: EEAS C-25 03/432– e-mail:
xxxxxxxxxxxxxxxxxxx@xxxx.xxxxxx.xx
relations as per Article 4(1)(a) third indent of the Regulation, as it 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.
In addition and for the sake of completeness, according to Article 4(3), first and second
subparagraph of the Regulation, access to documents relating to a matter where a decision
has not been taken or has already been taken shall be refused if it would seriously undermine
the institution’s decision-making process, unless there is an overriding public interest in
disclosure. The concerned document constitutes the view of the High Representative about
applicable procedures within the EU institutions for MoUs, expressed towards another
Member of the College. It thus concerns a decision that the College has already taken and
possible future decisions in similar cases. Disclosing it would undermine the possibility of
members of the College to freely communicate between themselves through letters, notes or
messages, on matters which are subject to their joint decision-making in the College.
There is no overriding public interest in disclosing such document relating to procedural
issues within the College either. In particular, it is not decisive that the existence of the letter
that you have requested, as well as its alleged content, has been mentioned by several media
sources. As confirmed by the Court of Justice of the European Union in its case law, the fact
that a document originating or held by the institution might be or might have been in the
public domain in its leaked form does not constitute a ground on the basis of which the
institution would grant public access to it or recognise that the leaked document is indeed a
genuine document held or drawn up by that institution.2 Indeed, as confirmed by the case-
law, a document is not put into the public domain by its unauthorised disclosure.
We have considered whether partial access could be granted to the document. However, since
the vast majority of the substantive parts of the document is covered by the invoked
exceptions, granting a partial access, albeit marginal, to the remaining part would entail
revealing information the protection of which is covered by the exceptions relied on as
explained above.3
Should you wish this position to be reviewed, you may make a confirmatory application
within 15 working days in accordance with Article 7(2) of the Regulation.
Yours sincerely,
[e-signed]
Ludovic Promelle
2 See Judgments of 26 May 2016, IMG v Commission, T-110/15, EU:T:2016:322, paragraph 59, of 25 October 2013,
Beninca v Commission, T-561/12, EU:T:2013:558, paragraph 55, and of 6 October 2021, Aeris Invest v BCE, T-827/17,
EU:T:2021:660, paragraphs 218 and 219.
3 See Judgment of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraphs 122 and 123.
Electronically signed on 06/10/2023 10:39 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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