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Council of the European Union
General Secretariat
Directorate-General Communication and Information - COMM
Directorate Information and Outreach
Information Services Unit / Transparency
Head of Unit
Brussels, 14 July 2023
Mr Emilio De Capitani
Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Ref. 23/0955-mj-rh-vl/nb-ADD
Request made on: 30.03.2023
Registered on:
31.03.2023
Dear Mr De Capitani,
Thank you for your request for access to documents of the Council of the European Union.
1
Further to our letter of 26 April 2023, please find enclosed our replies to your request concerning
documents related to legislative procedures No.
2020/0279(COD), 2020/0277(COD),
2016/0224(COD) and
2020/0278(COD). Please note that we have focused on non-public
documents that cannot be directly downloaded from the public register of Council documents.
Inter-institutional File No 2016/0224(COD)
Please find attached the following documents:
•
WK 13259/20, WK 8111/21 and
WK 13204/22
•
ST 12128/17, ST 12514/17, ST 14978/17, ST 6238/18, ST 7366/18, ST 7998/18 + REV 1,
ST 8673/18, ST 8705/18, ST 9162/18, ST 9297/18, ST 9359/18, ST 9560/18 + REV 1,
ST 9661/18, ST 9690/18, ST 9802/18 + ADD 1, ST 10973/18, ST 11068/18, ST 12701/18 +
ADD 1, ST 13669/18, ST 13698/18, ST 14623/18, ST 15179/18, ST 5047/19, ST 5463/19 +
REV 1, ST 6456/19, ST 7033/19, ST 7447/19, ST 7708/19 + ADD 1, ST 8835/19,
ST 16072/22 + COR 1 and
ST 7895/23.
1
The General Secretariat of the Council has examined your request on the basis of the applicable rules:
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, 31.5.2001, p. 43) and the specific
provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure
(Council Decision No 2009/937/EU, OJ L 325, 11.12.2009, p. 35).
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Inter-institutional File No. 2020/0278(COD)
Please find attached the following documents:
•
WK 11181/20, WK 12970/20, WK 14634/20 + REV 1 + REV 2 + REV 3 + REV 4 + REV 5,
WK 14822/20, WK 14875/20, WK 463/21, WK 1601/21, WK 2227/21 + REV 1
WK 3008/21, WK 3497/21, WK 3678/21 + REV 1, WK 4125/21, WK 5047/21 and
WK 5340/21
•
ST 8548/21, ST 8814/21, ST 10200/21, ST 10222/21 + REV 1, ST 8899/22, ST 9704/22 +
COR 1, ST 9726/1/22 REV 1 EN and
ST 9726/1/22 REV 1 multilingual.
Moreover, please find enclosed a partially accessible version7 of document
WK 14045/20, in which
the parts containing personal data have been redacted in accordance with Article 4(1)(b) of
Regulation (EC) No 1049/2001 and European legislation regarding the protection of personal
data.
2
Inter-institutional File No. 2020/0279(COD)
Please find enclosed the following documents:
•
WK 8111/213, WK 11463/21, WK 13019/21, WK 15665/21 and
WK 2749/23
•
ST 9656/21, ST 10450/21 + REV 1, ST 10696/21, ST 12421/21, ST 13360/21, ST 5165/23
+ REV 1, ST 6553/23 and
ST 7618/23
Moreover, you will find attached a partially accessible version of document
WK 14045/204 and
WK 902/21 in which the parts containing personal data have been redacted in accordance with
Article 4(1)(b) of Regulation (EC) No 1049/2001 and European legislation regarding the protection
of personal data.
5
The partial access granted to document
WK 902/216 is also motivated by additional reasons set
out below.
Document
WK 902/21 of 21 January 2021 is a working document from the General Secretariat of
the Council to delegations on the Asylum Working Party informal videoconference held on
21 January 2021
. It contains two presentations (from the EASO and FRONTEX).
2
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection
of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and
agencies and on the free movement of such data (OJ L 295, 21.11.2018, p. 39).
3
This document concerns two of the four interinstitutional files for which you requested the preparatory documents:
2016/0224(COD) and 2020/0279(COD).
4
This document concerns two of the four interinstitutional files for which you requested the preparatory documents:
2020/0278(COD) and 2020/0279(COD).
5
Article 4(1)(b) of Regulation (EC) No 1049/2001.
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection
of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and
agencies and on the free movement of such data (OJ L 295, 21.11.2018, p. 39).
6
Article 4(6) of Regulation (EC) No 1049/2001.
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The FRONTEX contribution contains, among other things, an element related to sensitive
operational information as it refers to details crucial for situational awareness at the external
borders of the European Union, which is used by Frontex to conduct its operational activities and
to develop risk analyses. The disclosure of this information at page 21 of the document would
hamper the effectiveness of Frontex operations and jeopardise the efforts carried out by the
European Union and Member States to curtail criminal activities at the external borders.
Hence, having consulted with the originating source of the document, the General Secretariat of
the Council is of the opinion that the disclosure of the information pertaining to this variable would
undermine the protection of the public interest as regards public security and has to be refused
based on Article 4(1)(a) first indent of Regulation (EC) No 1049/2001.
You may also have access to a partially releasable version
7 of document
WK 1926/21, submit ed
to the Informal videoconference of the members of the Strategic Commit ee on Immigration,
Frontiers and Asylum held on 10 February 2021. This partial access wil enable you to accede
almost to the full text, with the exception of some elements of the EEAA’s (ex EASO) contribution
in the right hand side diagram of page 21 of the document (as it results from our consultation with
the author – same as above with Frontex).
Furthermore, we regret to inform you that access to the following documents cannot be given for
the reasons set out below:
Inter-institutional File No 2016/0224(COD)
•
WK 12036/18, ST 15089/21, ST 15099/21 + REV 1 + REV 2, WK 13305/22 + REV 1,
ST 13988/22, ST 7625/23 and
ST 7674/23 + REV 1.
o Document
WK 12036/18 (that also concerns the inter-institutional file
2018/0329(COD)) focuses on Border procedures and article 22 of the recast of the
“return” directive.
o Documents
WK 13305/22 + REV 1, ST 15089/21, ST 15099/21 + REV 1 + REV 2,
ST 7625/23 and
ST 7674/23 + REV 1 contain compilations of delegations’
comments on dif erent elements of the amended proposal.
o Document
ST 13988/22 is a note drawn up by the Presidency for the Asylum
Working Party containing text modifications on Articles 1-40 and recital 34 of the
amended proposal.
o
ST 15089/21, ST 15099/21 + REV 1 + REV 2, WK 13305/22 + REV 1 and
ST 7625/23 contain a collection of comments from delegations on the amended
proposal for a Regulation of the European Parliament and of the Council
establishing a common procedure for international protection in the Union and
repealing Directive 2013/32/EU.
o
ST 13988/22 is a Presidency Note containing suggested text modifications to
Articles 1-40 and recital 34 of the abovementioned amended proposal.
o
ST 7674/23 + REV 1 contain a compilation of comments and drafting suggestions in
response to Presidency’s comments on the amended proposal.
7
Article 4(6) of Regulation (EC) No 1049/2001.
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Inter-institutional File No. 2020/0277(COD)
•
WK 1023/23.
o This document (the only one identified corresponding to this file), dated 26 January
2023, was drawn by the General Secretariat of the Council for the Asylum Working
party and contains a compilation of delegations’ comments on the Proposal for a
Regulation of the European Parliament and of the Council addressing situations of
crisis and force majeure in the field of migration and asylum.
Inter-institutional File No. 2020/0278(COD)
•
WK 14827/20 + REV 1 + REV 2
o This document and its revised versions
REV 1 and
REV 2 contain a compilation of
delegations’ replies to a questionnaire on Article 4 of the proposal for a Regulation
of the European Parliament and of the Council introducing a screening of third
country nationals at the external borders and amending Regulations (EC)
No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817.
Inter-institutional File No. 2020/0279(COD)
•
WK 2473/21, WK 2873/21 + REV 1 + REV 2 + REV 3, WK 3263/21, WK 4545/21 + REV 1
+ REV 2 + REV 3, WK 5586/21 + REV 1 + REV 2 + REV 3, WK 1505/23, WK 3023/23,
ST 11617/21 + REV 1, ST 12818/21 + REV 1 + REV 2, ST 14392/21 + REV 1 + REV 2 and
ST 15030/21 + REV 1.
o Documents
WK 2473/21, WK 2873/21 + REV 1 + REV 2 + REV 3, WK 3263/21,
WK 4545/21 + REV 1 + REV 2 + REV 3, WK 5586/21 + REV 1 + REV 2 + REV 3,
WK 1505/23 and WK 3023/23 are working documents from the General Secretariat
of the Council to the Asylum Working Party on the Proposal for a Regulation of the
European Parliament and of the Council on asylum and migration management and
amending Council Directive (EC) 2003/109 and the proposed Regulation (EU)
XXX/XXX [Asylum and Migration Fund] and contain a compilation of comments and
observations from delegations on different parts of the proposal.
o Document
ST 11617/21 and its
REV 1 contain a compilation of replies from
delegations on Articles 1-2 and 8-27 of the draft Regulation.
o Document
ST 12818/21 and its
REV 1 and REV 2 contain Member States’
comments on Articles 28 to 44.
o Document
ST 14392/21 and its
REV 1 and REV 2 contain Member States’
comments on Articles 45 to 60 and on definitions in Article 2.
o Document
ST 15030/21 and its
REV 1 contain delegations’ comments on Articles 3
to 7 and 61 to 75.
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As a reminder, these four inter-institutional files concern the following draft legislation:
•
File No 2016/0224(COD)
This inter-institutional file concerns the Commission’s proposal and amended proposal for a
Regulation of the European Parliament and of the Council establishing a common
procedure for international protection in the Union and repealing Directive 2013/32/EU. This
proposal is part of the Pact on Migration and Asylum. The amendments to the 2016 initial
proposal concern the conditions for the use of the border procedure and other procedural
aspects related to international protection, appeals and returns.
Given the complexity of the topic, negotiations are particularly sensitive. Even if an
agreement was reached at the Justice and Home Affairs Council, the long-standing
diverging views between Member States on some of the key components of this file remain.
•
File No 2020/0277(COD)
This inter-institutional file concerns the Commission’s proposal for a Regulation of the
European Parliament and of the Council addressing situations of crisis and force majeure in
the field of migration and asylum.
The proposed Regulation covers exceptional situations of mass influx of third-country
nationals or stateless persons arriving irregularly in a Member State
Situations where there is a risk of such arrivals are also being covered. The proposed
Regulation also addresses situations of force majeure in the field of asylum and migration
management within the Union. It provides various adaptations to the EU rules on the
asylum and return procedures as well as to the solidarity mechanisms set out in the Asylum
and Migration Management Regulation (AMMR).
•
File No 2020/0278(COD)
This inter-institutional file concerns the Commission’s proposal for a Regulation of the
European Parliament and of the Council introducing a screening of third country nationals
at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226,
(EU) 2018/1240 and (EU) 2019/817.
The aim of the new Screening Regulation is to ensure fast identification of the correct
procedure applicable to a person entering the EU without fulfil ing the entry conditions. It
wil also apply to persons who, while not fulfil ing the conditions for entry into the EU,
request international protection during border checks; are brought ashore in search and
rescue operations at sea; and persons apprehended within the territory if they have eluded
controls at the external borders in the first place.
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•
File No 2020/0279(COD)
This inter-institutional file concerns the Commission’s proposal for a Regulation of the
European Parliament and of the Council on asylum and migration management and
amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX
[Asylum and Migration Fund].
Once adopted, the new Regulation on asylum and migration management (AMMR), which
aim to establish a common framework in this field, should replace, once adopted, the
current Dublin III Regulation. It includes a new mandatory solidarity mechanism that should
assist Member States facing with migratory pressure or finding themselves in a significant
migratory situation, with a possibility to chose between different solidarity contributions, all
of which of equal value.
The draft text, together with the Pact and the other proposals, was presented to the Interior
Ministers by the Commissioner Johansson in October 2020. Intensive work on this draft
AMMR was carried out by the recent acting Presidencies of the Council at technical,
strategic and political level.
These four inter-institutional files remain subject of intensive negotiations, even if they are
undergoing different stages of the negotiation process. The matters they cover are intrinsically
interlinked.
The establishment of standard provisions and mechanisms relating to the management of the
external borders and the control of migratory flows is deemed crucial. Consequently, the disclosure
of these preparatory documents in a context of particularly intense migratory pressure at the
borders of the EU during the ongoing negotiations cannot be granted, since it would have a
negative impact on public interest with regard to public security and international relations, since
the release of these documents to the public would harm Member States’ capacity to re-define
their approach to management of the flow of nationals of third countries at the borders of the
European Union.
Discussions in this field have been highly sensitive from a political point of view as regards the
establishment of Member States’ positions, which requires the involvement and coordination
between a large number of domestic actors. The discussion on some key elements of the
Commission’s proposals, such as the solidarity measures in case of crisis, going beyond the
agreement on solidarity under the Asylumm and Migration Management Regulation (AMMR),
has been quite controversial.
Even if an agreement was reached at the JHA Council on two of these four inter-institutional file,
there are stil some divergences among Member States on the main elements of the balance
between solidarity and responsibility and on some of the key components of these files. This
makes it quite hard to conciliate views in order to find the necessary flexibility towards compromise
solutions.
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In this context, delegations’ comments and observations were entered to facilitate the examination
of the most dif icult parts of the draft legislative acts concerned, with a view to exploring possible
compromise solutions that are stil being addressed and wil continue to feed the debate to seek
agreement while discussing the migration package with the European Parliament.
In particular, the Member States’ observations shared in these working documents focus on
several elements of the abovementioned draft legislation that aims at targeting routes, disrupting
the modus operandi of facilitators and traffickers in human beings, and enhancing the Union’s and
its Member States’ situational awareness capacities and reinforcing their preventive, monitoring
and follow-up activities such as admissions and returns.
Hence, releasing recent positions of EU Member States on issues that wil be subject of
negotiations with the European Parliament would seriously undermine the negotiation strategy
taken by the current Presidency and future Presidencies in this field and might also affect the
negotiations on all the files focusing on this sensitive topic.
8
Having examined the context in which these documents were drafted and the current state of play
on these sensitive matters, on balance the General Secretariat could not identify any evidence
suggesting an overriding public interest in their disclosure.
Moreover, disclosing such information would enable traffickers to gain insights into this decision-
making process acknowledging the elements of concern and the diverging views among the
Member States and to identify the key areas of the EU’s strategy in building its new legislation.
This would enable them, with ascertainable likelihood, to put in place counteractive steps to
circumvent new legislation in progress, finding new ways and means of border crossing and
adjusting their influence on migrants, reinforcing their criminal activities and causing prejudice to
public interest as regards public security.
9
Furthermore, the disclosure of these documents would jeopardise the mutual trust of all parties, an
essential prerequisite for establishing international relations, which require the ability to establish a
meaningful cooperation or engagement among the Member States and also when the Union is
confronted with in its relations with third countries.
The success of the EU’s international negotiations and cooperation in this sensitive domain
depends to a large extent on the existence of a climate of mutual trust between all parties involved.
it would be counter-productive if concrete sensitive information in this regard, deemed extremely
important by all Member States, may be made publicly available.
This is particularly so during the current period when the ability of the Union to engage with third
countries is key to address migration challenges and where political and diplomatic efforts are
being devoted to mitigate their effects. Disclosure under such circumstances would therefore
involve a concrete risk of undermining international relations.
10
8
Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001.
9
Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001.
10
Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001.
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We have also looked into the possibility of releasing parts of these working documents.
11 However,
given the state of play on the ongoing negotiations and since their content is considered an
inseparable whole, no part of the documents can be released into the public domain at this stage.
Pursuant to Article 7(2) of Regulation (EC) No 1049/2001, you may ask the Council to review this
decision within 15 working days of receiving this reply. Should you see the need for such a review,
you are invited to indicate the reasons thereof.
Yours Sincerely,
Fernando FLORINDO
Enclosures: 90 – WeTransfer link to download the documents:
https://we.tl/t-QHs2zdzvdp
11
Article 4(6) of Regulation (EC) No 1049/2001.
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Document Outline
