President European Commission

 

 

Dear President,

I am writing to seek a solution in this case concerning a request for public access to documents related to an agreement between Egypt and the EU on border management.

In its initial reply, the Commission identified 12 documents as falling within the scope of the request[1]. These included documents related to a contract between the Commission and an inter-governmental organisation with the aim of “Strengthening the operational capacity of the Egyptian Coast Guard and Egyptian Border Guards to manage migration flows through effective border surveillance and search and rescue at land and sea”.

The Commission granted access to one of the identified documents, and refused to disclose the remaining documents in their entirety. In doing so, it relied on the need to protect the public interest as regards public security and international relations, as well as the privacy and integrity of individuals and commercial interests.

The complainant asked the Commission to review its initial decision, by making a ‘confirmatory application’. In particular, the complainant noted that the migration deal between the EU and Egypt is a matter of public interest. In view of this, the complainant expressed surprise that the Commission did not provide access to at least parts of the documents.

My Office opened the inquiry in September this year, given that the Commission had failed to reply to the complainant’s confirmatory application by the extended time limit, which expired on 1 September 2023. We asked the Commission to reply without further delay.

In November 2023, given the persistent delay in replying to the complainant’s confirmatory application, my Office asked the Commission to provide copies of the documents at issue so that my inquiry team could inspect them[2].

My inquiry team reviewed the 12 documents that the Commission included within the scope of the request. The inspection showed that most of the information related to the operations or activities planned by the contractor, and the information describing the situation in Egypt, included in the documents, appear to have already been made public in an “Action Document” published by the Commission on 11 October 2022[3]. This concerns mostly Annex I to the contract, that is document 3 identified at initial stage[4]. While some information included in document 3 is more specific than what is in the public Action Document, this would concern only a small part of document 3.

In accordance with EU case-law[5], EU institutions enjoy a wide margin of discretion when deciding on what the protection of the public interest as regards public security and international relations calls for in terms of disclosure of documents. However, they are still required to demonstrate a `specific and actual risk’. Considering that most of the relevant information contained in this document seems to have been published by the Commission already, it is not readily clear how its (partial) disclosure could pose a serious and foreseeable risk to public security or to international relations.

Regarding the contractual arrangements between the Commission and the contractor[6], they appear to correspond to standard clauses that are published on the Commission’s website[7], similarly to the “General Conditions” to which the Commission granted full access in this case[8].  It is thus not clear why the Commission refused access to these contractual documents in their entirety.

Finally, regarding the budget set out as an annex to the contract[9], when applying the exception protecting commercial interests[10], EU institutions have to explain how disclosure would specifically and actually undermine the legitimate commercial interests at stake[11]. In addition, the EU Financial Regulation notes that “[...] citizens should know where, and for what purpose, funds are spent by the Union. Such information fosters democratic debate, contributes to the participation of citizens in the Union’s decision-making process, reinforces institutional control and scrutiny over Union expenditure, and contributes to boosting its credibility”[12]. In other words, the public should be adequately informed about the implementation of projects financed using public money.

In light of the above, my proposal for a solution at this stage is that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to the documents requested.

I would be grateful to receive your reply to my proposal by 22 April 2024.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of my intention to seek a solution in this case[13]. Please note that our usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution’s reply to it, once we have received that reply. I would therefore ask the Commission to inform us if any information contained in the solution proposal, or in its reply, should not be shared with the complainant[14]. I would also appreciate if you could include a translation of the reply in the language of the complaint (French).

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 18/01/2024

 

[1] As explained in the initial reply of the Commission to the request for public access ref. 2023/3176 (Ares(2023)4981913), the Commission unilaterally restricted the scope of the request to these 12 documents, due to the very large number of pages of the documents it first identified (24 documents).

[2] As per our usual practice, while the complainant was informed of our inspection request, the documents subject to the

public access request and any other information or documents that your institution considers to be confidential,

will not be disclosed to the complainant or any other person without the prior agreement of the Commission.

[3] As Annex IV to Commission Decision of 4 October 2022 on the financing of the individual measure for the multi-country migration programme in favour of the Southern Neighbourhood for 2022, available at: https://neighbourhood-enlargement.ec.europa.eu/commission-implementing-decision-4102022-financing-individual-measure-multi-country-migration_en.

[4] Designated in the initial reply of the Commission as Document 3 and included as well in Document 12 (signed copies).

[5] See, for example, judgment of the General Court of 27 November 2019, Izuzquiza and Semsrott v. Frontex, T-31/18, EU:T:2019:815, para. 63-66, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=221083&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=631205.  

[6] Document 2 “Special Conditions”, document 5 “Provisions applicable only to Multi-Partner Contribution Agreements”, Document 8 “Standard Request for Payment”, and document 9 “Management Declaration” as well as the signed copies included in documents 11 and 12.

[7] See the Commission’s manual on contribution agreements available at: https://international-partnerships.ec.europa.eu/system/files/2023-07/contribution-agreement_manual_en.pdf, and for example for Document 5: https://international-partnerships.ec.europa.eu/system/files/2023-07/contribution-agreement-annex-iia_en.pdf.

[8] Document 4, see: https://international-partnerships.ec.europa.eu/system/files/2023-07/contribution-agreement-annex-ii_en.pdf.

[9] Document 6.

[10] Article 4(2) first indent of Regulation 1049/2001.

[11] See, for example, judgment of 15 December 2021, Breyer v. European Research Executive Agency, T-158/19, EU:T:2021:902,  paragraph 87, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019TJ0158.

[12] Recital 11 of Regulation 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1046.

[13] In line with Article 2(10) of the Statute of the European Ombudsman, Regulation 2021/1163 of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties: https://www.ombudsman.europa.eu/en/legal-basis/statute/en.

[14] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox.