Background to the complaint

1. The European Border and Coast Guard Agency (Frontex) is an EU agency tasked with assisting Member States in monitoring the EU’s external borders.[1] For several years, Frontex has been supporting Greece in the context of ‘Joint Operation Poseidon’ covering the area of the Greek sea borders with Turkey and the Greek islands - mainly the Aegean Sea.[2] In this context, Frontex deploys remotely piloted aircrafts (drones) to support Greece with border control, search and rescue, and detection of cross-border crimes.[3]

2. On 24 August 2023, a Frontex drone crashed at sea, southeast of Crete. The drone had been supplied to Frontex by a private contractor.[4] In reply to a question from a Member of the European Parliament, Frontex said that, according to the preliminary conclusions of its contractor and the final investigation report, the primary cause of the accident was a technical failure.[5]

3. In January 2024, the complainant, an academic in the field of engineering, asked Frontex for public access[6] to the final investigation report into the crash of the drone mentioned in Frontex’s reply to the parliamentary question.

4. In February 2024, Frontex identified one document as falling within the scope of the request, but refused to grant access to it. In doing so, Frontex invoked an exception under the EU legislation on public access to documents (Regulation 1049/2001), arguing that disclosure would undermine the protection of commercial interests, including intellectual property.[7]

5. The complainant asked Frontex to review its decision (by making a ‘confirmatory application’).

6. In March 2024, Frontex confirmed the position in its initial reply, adding that disclosing the document would also undermine the public interest as regards public security.[8]

7. Dissatisfied with Frontex’s confirmatory decision, the complainant turned to the Ombudsman.

The inquiry

8. The Ombudsman opened an inquiry into Frontex’s refusal to give public access to the requested document.

9. In the course of the inquiry, the Ombudsman received additional comments from Frontex. The Ombudsman inquiry team also inspected the document at issue and the third-party consultations conducted by Frontex in relation to the access request.[9]

Arguments presented

By the complainant

10. The complainant argued that the final investigation report is of “aviation safety importance” and that the operations of Frontex drones may affect EU citizens. In addition, the complainant would like to study the report and use it for education and research purposes. He stated that there is a public interest in disclosing the document, both to the general public and to students in the field of aeronautical engineering.

By Frontex

11. Frontex explained that the document originates from a third party (hereafter ‘the contractor’) and that its disclosure would undermine the protection of the commercial interests of Frontex and the contractor, including intellectual property. Frontex noted that the document contains comprehensive technical and economic information, including working methods and technical know-how of the contractor. Frontex therefore consulted the contractor on the access request, both at initial and confirmatory stage, which objected to the disclosure. Frontex also said that disclosing the document would affect its current and future ability to negotiate contracts of a similar kind.

12. Frontex considered that the complainant had not provided proof of the existence of an overriding public interest in disclosure of the document. In particular, Frontex considered that the complainant had put forward general considerations only, which cannot establish that, in the present case, the principle of transparency prevails over the reasons justifying the refusal to disclose the document.

13. Frontex further argued that disclosure of the document would undermine the public interest as regards public security because it contains sensitive operational information, including on the technical equipment deployed in the operational area. Disclosing this information would hamper ongoing and future operations by enabling third parties, including criminal groups, to know the exact type and capabilities of the equipment and to draw conclusions regarding usual positions and movement patterns. By combining the information contained in the requested document with other sources, criminal groups would be able to adapt their modus operandi and circumvent border surveillance in current and future operations or to inflict harm on officials and assets.

14. Frontex noted that EU institutions enjoy a wide margin of discretion when determining whether disclosing certain information could pose a risk to the public interest as regards public security. Frontex insisted that the risk at issue was not purely hypothetical.

15. Finally, Frontex considered that partial access was not possible and, referring to the reply to the parliamentary question, said that certain information was already made public.

The Ombudsman's assessment

16. Having inspected the document at issue, the Ombudsman confirms that it contains the information described by Frontex.

17. First, the inspection of the document confirmed that it contains commercially sensitive information. In particular, the document contains technical information about the drone, its functioning and maintenance, the disclosure of which would reveal the contractor’s expertise.[10]

18. Frontex’s position that disclosure of the document would undermine the commercial interests of the contractor therefore appears reasonable.

19. The exception for the protection of commercial interests must be set aside if there is a public interest in disclosure that is deemed more important. However, the Ombudsman considers that the complainant’s general argument that access to the document would benefit the general public, students and academics in the field of aeronautical engineering is not sufficient to constitute an overriding public interest in disclosure.

20. Second, the inspection confirmed that the document contains, in parts, operational information, such as technical details about the drone used by Frontex in ongoing operations, including its location and flight patterns.

21. The EU institutions, bodies, offices and agencies enjoy a wide margin of discretion when determining whether disclosing a document would undermine the public interest as regards public security.[11] As such, the Ombudsman can only assess if there was a manifest error in the institution’s assessment.

22. Frontex argued that the operational information contained in the document could be exploited by criminal networks, thus jeopardising ongoing and future operations.[12] Based on the inspection of the document, the Ombudsman finds that it was not manifestly wrong for Frontex to consider that disclosing parts of the information at issue could undermine public security.

23. In light of the above, the Ombudsman considers that there was no maladministration by Frontex in refusing public access to the requested document.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[13]:

There was no maladministration by Frontex.

The complainant and Frontex will be informed of this decision.

Rosita Hickey
Director of Inquiries

Strasbourg, 27/05/2024

 

[1] See Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard: https://eur-lex.europa.eu/eli/reg/2019/1896/oj; See also Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex:32014R0656.

[2] For more information, see https://www.frontex.europa.eu/what-we-do/operations/operations/.

[3] For more information, see https://www.frontex.europa.eu/media-centre/news/news-release/frontex-deploys-unmanned-aircraft-to-support-greece-with-border-control-McmYki.

[4] Following a procurement procedure: https://ted.europa.eu/en/notice/-/detail/473315-2020. 

[5] Frontex’s reply to the parliamentary question of 28 September 2023 (E-002852/2023) ‘Frontex drone crash’: https://www.europarl.europa.eu/RegData/questions/reponses_qe/2023/002852/P9_RE(2023)002852(ANN02)_XL.pdf. For more information: https://www.europarl.europa.eu/doceo/document/E-9-2023-002852-ASW_EN.html.

[6] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049, applicable to Frontex pursuant to Article 114(1) of Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/eli/reg/2019/1896/oj.

[7] In accordance with Article 4(2), first indent of Regulation 1049/2001.

[8] In accordance with Article 4(1)(a), first indent of Regulation 1049/2001.

[9] The third-party consultation is regulated in Article 4(4) of Regulation 1049/2001.

[10] See Judgment of the General Court of 9 September 2014 in case T-516/11, Mastercard and Others v Commission, para. 84: https://curia.europa.eu/juris/liste.jsf?num=T-516/11&language=EN and Judgment of the General Court of 7 February 2018 in case T-718/15, PTC Therapeutics International v European Medicines Agency (EMA), para. 85: https://curia.europa.eu/juris/liste.jsf?num=T-718/15&language=en.

[11] See, for example, Judgment of the General Court of 11 July 2018 in case T-644/16, ClientEarth v Commission, paras. 23-25: https://curia.europa.eu/juris/liste.jsf?num=T-644/16&language=en.

[12] See Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v Frontex,

paras. 72-74: https://curia.europa.eu/juris/liste.jsf?num=T-31/18.

[13] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions.