Dear Migration and Home Affairs,

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:

- Study on the implementation of the Facilitators' Package conducted by Milieu Law & Policy Consulting in 2023, with the aim to evaluate the implementation of the "Facilitators' Package", consisting of Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence and Council Framework Decision 2002/946/JHA providing the applicable criminal law framework.
- All the 27 national case studies linked to Milieu's study.

Yours faithfully,
Silvia Carta

Advocacy Officer
Rue du Congrès 37, 1000 Bruxelles, Belgium

Dear Migration and Home Affairs,

I am reaching out to you to kindly ask for a response in relation to my request above (Results of 2023 monitoring and mapping of the implementation of the Facilitators Package). After an extension from your side, the deadline for a reply (06/03/2024) has passed without a response. I would be grateful if you could publish the material requested in the shortest possible delay.

Thank you in advance.

Yours faithfully,

Silvia Carta

Dear Migration and Home Affairs,

Following up to my previous message, I would like to clarify that I am filing a confirmatory application in response to the lack of answer, and requesting an internal review.

Yours faithfully,

Silvia Carta

Dear Migration and Home Affairs,

This is a kind reminder to reply to the request above as soon as possible, since the deadline to handle the confirmatory application expired on 22/04/2024 and has not been extended.

In the absence of a prompt response on your part, I will refer this case to the European Ombudsman.

Looking forward to hearing from you.

Yours faithfully,

Silvia Carta

Dear Migration and Home Affairs,

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 'Results of 2023 monitoring and mapping of the implementation of the Facilitators Package'. This request concerns access to documents 2-28, which was denied with reference to protection of public security and protection of the ongoing decision-making process. With regard to protection of public security, the refusal has not duly and sufficiently justified why the application of the national security exception does not allow the granting of partial access to the documents 2-28, as to allow a sufficient level of transparency without jeopardizing the effectiveness of sensitive operations. In accordance with settled case law of the Court of Justice of the EU (CJEU), any exception derogating to the principle of the widest possible public access to documents, must be interpreted and applied restrictively, and this implies that DG HOME must explained for each document how in concrete terms access to them may pose a risk (e.g. CJEU, C-350/12 P, Council v in 't Veld, para. 52).

In this respect, the documents also arguably contain information which is not strictly related to ‘practices’ or ‘operational activities of the Member States in their fight against smuggling’, but it relates instead to more general details on the transposition and implementation of the legal framework. These are part national legislation and publicly available at national level, and therefore should not fall under the exception foreseen in Art. 4(1)a. Document 1 – to which access was granted - mentions that national case studies (Documents 2-28) rely on ‘diverse sources’, including reports from NGOs, the media, and national case law, which are unlikely to contain information which would justify an exception based on national security, and which would on the contrary provide relevant information necessary to spark a public debate on the best practices and shortcoming of how different member states tackle the offence of facilitation at their national level.

Furthermore, on the protection of ongoing decision-making, the Commission’s reasoning in relation to Article 4(3) also seems to be at odds with CJEU’s case law.

Unlike what the Commission argued, the Court has made it clear that the fact that the legislative proposal updating the Facilitators’ package is at a very early stage of the decision making is not by itself sufficient to allow the application of the exception in question (C-280/11 P, Council v Access Info Europe). On the contrary, granting access to documents relating to ongoing interinstitutional negotiations is likely to increase the transparency and openness of the legislative process as a whole, in particular the preparatory steps of that process, and, thus, to enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process (C-57/16, ClientEarth v Commission, para. 92).

Connected to this, the argument that putting Member States’ shortcomings into the public domain might hamper ongoing negotiations and prejudicing the decision-making process does not seem to be a sufficient reason to justify the refusal of full, or at least partial, disclosure of the documents. In particular, the General Court clarified that in order for the exception in the first subparagraph of Art. 4(3) to apply, the decision-making process must be “seriously undermined” (case T-471/08, Toland v Parliament). Yet, similarly to Toland v Parliament, the Commission’s decision in the case at hand does not contain “any tangible element which would allow the conclusion to be drawn that that risk that the decision-making process would be undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical.”

I further want to argue that there is an overriding public interest for disclosure insofar the Commission did not conduct an impact assessment before proposing legislation to update the Facilitators Package. The REFIT evaluation of the current legislation dates of 2017. Since then, many changes have occurred at national level as the comparative study resulting from the national reports confirms. Withholding documents related to only study the Commission has requested prior to presenting its legislative proposal would further limit citizens’ ability to participate closely in the decision-making process and scrutinise the information at the basis of the legislative proposal (cf. Cases C-280/11 P, Council v Access Info Europe and C-57/16, ClientEarth v Commission).

On this basis, the refusal to disclose the entirety of the documents requested does not appear justified. I therefore request access or partial access to the documents, even in a redacted form - for instance blanking the most sensitive information related to details on member-states’ operations - which would not jeopardize public security, nor the decision-making process.

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

Yours faithfully,
Silvia Carta
Advocacy Officer
Rue du Congrès 37, 1000 Brussels, Belgium

Dear Migration and Home Affairs,

This is a kind reminder to reply to the confirmatory request above as soon as possible, since the deadline to handle the confirmatory application expired on 30/10/2024.

In the absence of a prompt response on your part (by 15/11/2024), I will refer this case to the European Ombudsman.

Looking forward to hearing from you.

Yours faithfully,

Silvia Carta