Date: Thursday, 22 February 2024

Remote meeting (online)

Present from Frontex

Frontex representatives from the Fundamental Rights Office, the Transparency Office, the Legal and Procurement Unit, the Executive Affairs Office, Operations Division, and the Inspection and Control Office

Present from the European Ombudsman

Jennifer King, Legal Expert

Alice Bernard, Inquiries Officer

Silvia Fuller, Inquiries Officer

Michal Krajewski, Inquiries Officer

Ella de Jonge, Inquiries Trainee

Background

The Ombudsman opened an inquiry into a complaint on how the European Border and Coast Guard Agency (Frontex) dealt with a request for public access to an opinion of its Fundamental Rights Officer (FRO) related to the situation in Greece. Frontex provided the requested document for inspection, as well as additional views to be taken into account by the Ombudsman during the inquiry.

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain a better understanding of the reasons why Frontex did not grant public access to the FRO opinion of April 2022 on the situation in Greece (the Opinion).

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the representatives of Frontex for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by Frontex as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without Frontex’s prior consent.^[1]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to Frontex to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

At the outset of the meeting, the Frontex representatives informed the inquiry team that, while Frontex maintains its position that (partial) disclosure of the Opinion could not have been granted at the time of its confirmatory decision in order to protect its ongoing decision-making process and its ability to fulfil its mandate, in light of current circumstances and due to the passage of time, partial disclosure of the document at issue will now be granted.

The inquiry team noted this revised position and welcomed this development. However, in order to determine whether Frontex correctly balanced the interests concerned at the time of the request, the inquiry team then asked for a detailed explanation of the exceptions that Frontex considered to be applicable to the specific sections of the Opinion, at the time of the confirmatory decision.

The Frontex representatives presented a draft redacted version of the Opinion, based on Frontex’s updated assessment following the decision to grant partial access. They emphasised that, at the time of the confirmatory decision, the document could not have been disclosed, even partially.

They explained the circumstances and context at the time of the confirmatory decision, based on which Frontex decided not to grant access to the Opinion. They explained that the Opinion was the first of three opinions submitted by the FRO to the Executive Director on the situation in Greece in 2022, which was a sensitive political issue for the Agency and for the EU as a whole. They highlighted that the Opinion, from April 2022, contained recommendations to the Executive Director to minimise the risks of fundamental rights violations in joint operational areas in Greece, and indicated that if the situation did not improve, the FRO would need to escalate its advice and recommend the withdrawal of Frontex from Greece under Article 46 of Regulation 2019/1896[2]. A second opinion was issued in June 2022 and confirmed the status quo whilst a third one, in September 2022, recommended the suspension of Frontex’s operations in Greece[3].

The Frontex representatives explained that the resignation of the Executive Director in April 2022, following the European Anti-Fraud Office (OLAF) report, and his replacement with an interim Executive Director is also relevant to understand the context of the confirmatory decision.

The Frontex representatives thus stated that disclosing the Opinion at the time would have undermined discussions regarding the next steps, would have made an operational issue a political one and would foreseeably and seriously have affected the FRO’s ability to issue the third opinion. They were concerned that disclosing the opinion while the decision-making process was ongoing would have brought premature public attention and possible interference, to that opinion. This would have constrained the FRO’s ability to issue a third opinion as they could have been pressured by the media, which would have endangered their advisory role. Also, Frontex was concerned that unilaterally disclosing the Opinion at that time would have put at risk its cooperation with national authorities, for which mutual trust among all participants is essential. Frontex was in contact with the respective national authorities to mitigate risks identified by the FRO and implement certain measures to address those risks.

In addition, they explained that, after issuing the third opinion, Frontex created a “Working Group on Article 46” to examine the way forward. This Working Group, they continued, issued its conclusion in February 2023 to the interim Executive Director, thus ending the decision-making process that Frontex intended to protect by not disclosing the Opinion. They explained that the FRO was part of this Working Group and that, until the group had adopted its conclusions, the decision-making process was on-going. Frontex’s representatives emphasized that the disclosure of the Opinion risked undermining the advisory role of the FRO because of pressure from the media, national authorities, and other stakeholders that existed at that time, which would have deprived Frontex of its space to think as recognized by the jurisprudence of the CJEU. By not disclosing the Opinion, Frontex wanted to avoid a premature and counterproductive public discussion, in order to keep the options of the FRO open internally in terms of next steps. The Frontex representatives explained that even disclosing the fact that the FRO had issued an opinion needed to be kept confidential at the time, to protect the independence of the office and its ability to provide internal advice and avoid self-censorship in the future. They also stated that in order to ensure that the public were aware of its concerns in 2022, in the FRO’s Annual Report published in 2023, Frontex included the key message from the three opinions of the FRO, that Frontex should suspend its operations in Greece. To that extent, they stated that the core point of the opinions was made public in June 2023 but not the contents of the opinions themselves as these include actionable operational information.

Frontex’s representatives stated that in November 2022 (at the time of the confirmatory decision), the Opinion had not been presented yet to the Management Board (only to the Executive Director), nor to the European Parliament. As such, Frontex considered the Opinion as an internal document and explained that, if it had been made public before the Board or the European Parliament had had an opportunity to review it, this would have created undue public pressure on those bodies, seriously undermining the decision-making process and eroding the mutual trust among all participants.

The inquiry team sought clarifications on the nature of the decision-making process, and in particular, the role of the Management Board in this respect.

Frontex’s representatives clarified that an opinion of the FRO, prepared in accordance with Article 46 of Regulation 2019/1896, is submitted to the Executive Director, and is not shared with the Management Board, which is only informed about the existence of the opinion and its broad conclusions. They clarified that whilst the Management Board is not part of the decision-making process and is merely informed about the state of play, to have disclosed the Opinion before the Management Board was aware of its terms, would have had a negative impact on the subsequent meeting of the Board.

The inquiry team asked if Frontex could elaborate upon the actual and specific risk in terms of pressure that could have arisen by the disclosure of the Opinion from the media, Member States, and stakeholders experienced by Frontex at the time of the confirmatory decision.

Frontex’s representatives explained that it has a good cooperation with the national authorities in Greece, and that if those authorities had been aware of an opinion that implied the suspension or withdrawal of Frontex’s activities from Greece, this would have negatively impacted on that cooperation. Also, Frontex explained that the pressure referred to would come from the media and the national authorities, and that, at the time of the confirmatory decision, Frontex believed that disclosure of the requested document would impact its monitoring role. In particular, even the fact that the FRO had issued an opinion needed to be kept confidential at the time, to protect the independence of the office and its ability to provide internal advice and avoid self-censorship in the future.

The inquiry team asked how Frontex examined whether there was an overriding public interest in disclosure of the document.

Frontex’s representatives considered that the public was sufficiently aware of the fundamental rights concerns in Greece due to press coverage and that disclosure of the Opinion would add no new elements to the debate. Frontex therefore concluded that the public interest was already satisfied with the information already publicly available, including in the FRO Annual Report published in 2023. Furthermore, they elaborated that while the Agency always considered ex-officio the existence of an overriding public interest, this consideration is based on the arguments to be brought forward by an applicant, which in the case at hand did not meet the criteria established by the CJEU. In addition, also other exceptions were applicable, which are not subject to such test. Finally, not all reasons why a document could not be made available, even partially, are to be presented and elaborated if such would make the exception/s that the Agency has to invoke, devoid of its/their purpose.

The inquiry team asked how Frontex considered the possibility of granting partial access to the Opinion at the time, redacting only certain parts to protect the interests invoked.

Further to Frontex elaboration in the confirmatory application, why a deviation from Article 4(6) of Regulation (EC) No 1049/2001 was necessary at the time that decision was adopted, the Frontex representatives emphasized that the Opinion was considered to be an “integral document”. They stated that, based on the initial request, Frontex concluded that the applicant was only interested in the full disclosure of the document. It considered that partial disclosure of a heavily redacted document - numerous mandatory exceptions pursuant to Article 4(1) in addition to Article 4(2) and Article 4(3) of Regulation (EC) No 1049/2001 were applicable to a considerable part of the document - would have rendered the informative value meaningless, which needed to be balanced with the administrative burden of its redaction.

In addition, the Frontex representatives clarified which specific parts of the Opinion still could not be disclosed due to public security concerns and the need to protect international relations (see confidential annex).

• It was stated, in particular, that the summary of one serious incident report included in the Opinion could reveal indirectly the identity of an individual already in a vulnerable situation and should thus not be disclosed.
• The Frontex representatives also highlighted that the reference to another serious incident report needed to be kept confidential due to the fact that it referred to an investigation which is still ongoing. The Ombudsman inquiry team highlighted that this justification was not provided in the confirmatory decision. Frontex representatives explained that this section of the document at the time of the confirmatory decision in any case formed an integral part of the underlying ongoing decision-making process. 
• Regarding international relations, the Frontex representatives explained that the mere reference of the nationality of certain individuals involved in certain incidents reported and referred to in the Opinion, could put at risk the international relations between Frontex and their home country or other third countries. Similarly, Frontex referred to certain international organisations with which it cooperates and the mere reference to these organisations in the context of reporting of human rights violations could endanger their cooperation in the future. A Frontex representative explained that the CJEU confirmed in regard to international relations that these were particularly susceptible to be influenced negatively by the perception of the international partners and that therefore specific care is to exercised not to undermine this delicate relationship.

Frontex’s representatives reiterated that when it comes to the application of the public security and international relations exceptions, Frontex enjoys broad discretion as confirmed by the jurisprudence of the CJEU. Further, they stated that it is not required to provide detailed reasoning for its decision such that it would undermine the interest to be protected. Finally, the Frontex representatives stated that the Agency must balance the right of transparency with the need to provide and improve border management and that the release of a document whilst the relevant decision making process is on-going, would have a negative impact on border management.

Conclusion of the meeting

Frontex’s representatives emphasised that the redacted version of the document shown to the inquiry team during the meeting is not final, but that a final version should be available in the next weeks and provided to the complainant and the Ombudsman without further delay. 

The inquiry team thanked Frontex’s representatives for their time and for the explanations provided, and the meeting ended.

Brussels, 04/03/2024

 

 

Jennifer King                                                                                                                             Alice Bernard

 

Legal expert                                                                                                                               Inquiries Officer

 

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard OJ L 295, 14.11.2019, p. 1–131, available at: https://eur-lex.europa.eu/eli/reg/2019/1896/oj.

[3] As explained in the FRO 2022 Annual report, p. 11 available at: https://www.frontex.europa.eu/assets/fundamental/FRO_annual_report_2022.pdf.