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Decision in case 2139/2019/EWM on how the European Border and Coast Guard Agency (Frontex) handled a request for access to documents concerning ‘return intervention teams’
Decision
Case 2139/2019/EWM - Opened on Wednesday | 04 December 2019 - Decision on Tuesday | 25 February 2020 - Institution concerned European Border and Coast Guard Agency ( No maladministration found ) - Country Germany
The case concerned how the European Border and Coast Guard Agency (Frontex) dealt with a request for access to documents containing information on the tasks and composition of ‘return intervention teams’, which are intended to provide operational and technical assistance in the context of Frontex activities.
Following the suggestion of the Ombudsman, Frontex replied to the complainant explaining why it was not in the possession of any documents falling within the scope of the complainant’s request. The Ombudsman therefore found that there was no maladministration by Frontex and closed the inquiry.
Background to the complaint
1. The complainant asked the European Border and Coast Guard Agency (“Frontex”) to grant him public access to a series of documents[1], including documents containing information on ‘return intervention teams’. These return (intervention) teams are formed to provide EU Member States with enhanced technical and operational assistance in the context of certain Frontex activities.[2]
2. Frontex granted the complainant access to most of the requested documents on 2 October 2019. However, it stated that it did not have any documents containing ”information on the return intervention teams”.
3. On the same day, the complainant submitted a new application for access to documents, requesting (i) a breakdown of the costs of four different return operations in the period 2014 to 2018, and (ii) documents containing information on the tasks of the return intervention teams and their composition.
4. Frontex provided the documents on the return operations to the complainant on 29 October 2019. However, it gave no reply to the request for documents containing information on the tasks and composition of the return intervention teams. The complainant sent a reminder to Frontex on the same day asking Frontex to provide these documents.
5. After further correspondence, Frontex referred to its decision of 2 October 2019 on the previous request for access to documents concerning return intervention teams.
6. The complainant turned to the Ombudsman. He argued that it is likely that Frontex holds documents falling within the scope of his request. He referred to a glossary of the European Migration Network on the European Commission’s website. In this glossary, “return intervention” is defined as “an activity of the European Border and Coast Guard Agency (Frontex) providing EU Member States with enhanced technical and operational assistance consisting of the deployment of European return intervention teams to EU Member States and the organisation of return operations”.
The inquiry
7. The Ombudsman opened an inquiry into how Frontex had handled the complainant’s application for access to documents containing information on the tasks and composition of return intervention teams.
The Ombudsman's assessment
8. In the course of the inquiry, the Ombudsman contacted Frontex and proposed that Frontex explain its position that it has no documents containing information on the tasks and composition of return intervention teams. Given Frontex’s role in creating and deploying such teams[3], the Ombudsman considered that Frontex’s claim that no such documents existed required further explanation.
9. In its reply, Frontex stated that it has so far not carried out any return interventions, and that no return intervention team had therefore been deployed at that point. However, Frontex has supported Member States in the context of return operations[4]. Return interventions are intended to be specific and exceptional (on top of an ordinary assistance), where Member States face specific burdens or disproportionate challenges regarding the returns of migrants. Against this background, should Frontex create return intervention teams in the future, the tasks and composition of these teams would have to be defined on an ad hoc basis and based on the specific operational needs.
10. The Ombudsman appreciates that Frontex has clarified the matter and finds its explanation reasonable. She therefore considers that there was no maladministration.
Conclusion
Based on the inquiry, the Ombudsman closes this case with the following conclusion:
There was no maladministration by Frontex.
The complainant and Frontex will be informed of this decision.
Emily O'Reilly
European Ombudsman
Strasbourg, 25/02/2020
[1] Under the provisions of the EU’s rules on public access to documents, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.
[2] Article 2(15) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, available at http://data.europa.eu/eli/reg/2016/1624/oj, which was in force when the complainant submitted his request for public access to documents to Frontex. Pursuant to Article 2(29) of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, which entered into force in December 2019, these teams are now called “return teams”.
[3] Regulation (EU) 2016/1624 of 14 September 2016 on the European Border and Coast Guard was applicable at the time of the application for access to documents. Since December 2019, this Regulation has been superseded by Regulation (EU) 2019/1896.
[4] Article 50 of Regulation 2019/1896.