A Sound Legal Argument, but the Wrong Medium? Reflections on S.S. and Others v. Italy and the Limits of Strategic Litigation

 

Paolo Biondi

Photo credit: Gzen92, via Wikimedia Commons

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Abstract

The June 2025 S.S. and Others v. Italy judgment marked a missed opportunity—and a cautionary tale. Although the applicants advanced a legally coherent theory grounded in SAR, SOLAS, UNCLOS, and Strasbourg precedent, their case depended on a weak factual matrix. As a result, the ECtHR declined jurisdiction. However, shortly before, an analogous incident occurred where Rome MRCC expressly instructed Libya to intercept—while sidelining Sea‑Watch. This scenario presented stronger grounds for Strasbourg jurisdiction as Rome’s decision directly determined which vessel rescued (or rejected) migrants, causing their return. Such instructions, with knowledge of their likely outcome, implicate in a more clear-cut case Italy in Libya-run refoulement. Strategically, the lesson is clear, doctrine requires vehicles. The wrong case risks irrelevance. In border externalisation litigation, doctrinal ambition must be rooted in unambiguous control and causation.

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I am grateful to Prof. Steve Peers, Royal Holloway, University of London and Dr. Miles Jackson, University of Oxford for their insightful comments on an earlier draft of this blog post.

 

On 12 June 2025, the European Court of Human Rights (ECtHR) delivered its much-anticipated decision in S.S. and Others v. Italy (henceforth S.S.), declaring the application inadmissible. The case had raised fundamental questions about the responsibility of European States in orchestrating or outsourcing maritime interceptions to third countries. More broadly, it tested the outer limits of extraterritorial jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) in the context of so-called “pullback” operations to Libya.

Much of the academic (here and here) and advocacy community has responded with disappointment. Yet, I believe this case offers a unique opportunity for reflection on whether this particular case was fit for purpose. That is, whether the litigation strategy—however sophisticated doctrinally—aligned with the Court’s existing standards and practices for establishing jurisdiction.

In this piece, I argue that S.S. may have had sound legal arguments but the wrong case. The judgment reflects, at least in part, a mismatch between an ambitious theory of control and a fact pattern too attenuated to support the weight placed on it. This matters not only for assessing S.S., but also for the design of future cases seeking to challenge externalised border controls.

 

The Legal Frame: Jurisdiction under Article 1 ECHR

The applicants in S.S. were twelve survivors of a fatal 2017 maritime incident involving a migrant boat in distress off the Libyan coast. On 6 November 2017, the Rome Maritime Rescue Coordination Centre (MRCC) received a distress call from the vessel. It subsequently shared the coordinates with vessels in the area, including the Libyan Coastguard vessel Ras Jadir, which assumed command of the operation. While the NGO Sea-Watch 3 ultimately rescued 59 persons and brought them to Italy, 47 others were intercepted and returned to Libya. At least 20 people died. The applicants included ten survivors who were brought to Italy and two who were forcibly returned to Libya, where they allegedly suffered ill-treatment in detention (See events reconstruction by Forensic Architecture).

The core question before the Court was whether Italy’s involvement in the rescue coordination—particularly its initial coordination of the Search and Rescue (SAR) case—was sufficient to establish jurisdiction ratione personae under Article 1 ECHR. The Court held that it was not.

Recalling its well-established position that the Convention applies primarily within the territory of the Contracting States, the Court reiterated the exceptional nature of extraterritorial jurisdiction (Banković and Others v. Belgium, § 61; Al-Skeini and Others v. the United Kingdom, § 132). The two main bases recognised in the case law remain: (1) effective control over territory and (2) authority and control over individuals (Medvedyev and Others v. France, § 67; Hirsi Jamaa and Others v. Italy, § 74). The Court explicitly declined to rely on the two additional grounds acknowledged in M.N. and Others v. Belgium—namely, the exercise of public powers abroad and the establishment of procedural jurisdiction through investigative or operational obligations (see S.S., § 80, departing from M.N., §§ 104–107). It also implicitly reaffirmed M.N.’s rejection of a broader “cause-and-effect” theory of jurisdiction, according to which a State’s decisions with extraterritorial consequences might suffice to trigger Article 1 jurisdiction (see M.N., §§ 113–124).

In S.S., the Court found that Italy neither exercised territorial control in Libya nor personal control over the applicants. It focused in particular on the autonomy of the Libyan Coastguard: the Ras Jadir acted independently and did not respond to requests from other vessels or from an Italian navy helicopter to coordinate rescue efforts (§§ 100–102). The applicants’ contention that Italy’s initiation of SAR procedures and instruction to Libya amounted to a form of control was dismissed as unsupported by the Court’s case law (§ 104).

 

The Core Problem: A Weak Factual Matrix

The legal theory advanced by the applicants was not implausible. Drawing on Hirsi Jamaa, Al-Skeini, and Güzelyurtlu and Others v. Cyprus and Turkey, the case sought to extend jurisdiction to what might be termed “functional control”—a form of indirect authority exercised through coordination, operational influence, and outsourcing. It invited the Court to engage with the reality of modern border governance, one where responsibility is fragmented and delegated, yet consequences remain deadly.

However, the factual platform on which this theory rested was thin. Most of the applicants were rescued by Sea-Watch and disembarked in Italy. Only two were subjected to return to Libya. Even for these individuals, the direct link between Italian conduct and the harm suffered was difficult to trace. There was no physical custody, no boarding of an Italian vessel, and no clear-cut operational command over the rescuing actors.

Moreover, the Court's decision-making reflects a deep concern for preserving its doctrinal boundary lines. By declining to accept SAR coordination as a basis for jurisdiction, the Court implicitly reaffirmed a preference for factual control over persons, not merely over procedures or outcomes. As it stated, “the mere fact that the search and rescue procedure was initiated by the Rome MRCC cannot have resulted in bringing the applicants under the jurisdiction of the Italian State” (S.S., § 106). This formalism was foreseeable, given that an alternative outcome could result even in more reticence to coordinate SAR operations in the Mediterranean Sea.

 

A Stronger Case Was Possible

A more promising case took place months before, again involving Sea-Watch. In that later incident, the Sea-Watch 3 vessel on 10 May 2017 was first to arrive at the distress scene and was better equipped to carry out the rescue and to be the on-site coordinator. However, the Rome MRCC allegedly instructed the Libyan Coastguard to assume “on-scene command” while instructing the NGO to remain on stand-by. Following this, the Ras Jadir carried out the interception and returned the individuals to Libya.

From a jurisdictional perspective, this scenario could be significantly stronger. First, there is clear operational decision-making by Italian authorities that directly determined the outcome. Unlike S.S., where Italy informed all vessels and watched the case unfold while leaving it open to who would intervene not managing to keep under control the Libyan vessels involved, here Italy made the intentional and decisive choice of who would perform the rescue and who would not.

Second, there was a safer alternative actively excluded: Sea-Watch was on site and willing to perform the rescue and disembarkation in a place of safety. The Italian instruction, allegedly, effectively foreclosed a lawful and rights-respecting option, leading to a foreseeable violation of Article 3 ECHR.

Third, the concept of jurisdiction over persons can be more easily satisfied here. As in Hirsi Jamaa, where control over persons was exercised on the high seas by physically transferring migrants to Libyan authorities, this later case involved a chain of operational command (transfer of competence) that links Italy’s decision to the individuals’ fate. I have already argued at that time that this form of indirect operational control—particularly when paired with Italy's logistical and technical support to the Libyan Coastguard (which is much less relevant)—supports a finding of jurisdiction and even complicity under international law. Gauci, in a similar vein, has underlined that when a State issues instructions to third-country agents with full knowledge of foreseeable consequences, a jurisdictional link should be inferred, if not presumed.

If events were confirmed, this incident did differ materially from S.S. in one key respect, the degree of control exercised by Italian authorities. The Rome MRCC gave binding (not mere initial coordination) orders and handed over the case and people to the Libyans. At the same time, the MRCC had a better option (Sea-Watch) and the latter was more in line with standard SAR rules as Sea-Watch arrived first and was better equipped. The Libyan crew acted on these orders, and the outcome (return to Libya) was the direct result of decisions taken by Italian authorities. Sea-Watch this time was not left to decide whether to act or not but instead put on stand-by. Thus, a jurisdictional link ratione personae could arguably be established under Article 1 ECHR, following the reasoning of Hirsi Jamaa (exercised continuous and exclusive functional control) and even Güzelyurtlu on extraterritorial procedural obligations (the failure to act appropriately in the presence of options that prevents the realisation of Convention rights).

While S.S. invited the Court to make a doctrinal giant leap, this other case would have allowed it to apply existing doctrine to a novel but concrete scenario without the need even of using the complex legal arguments related to Italy’s material assistance and cooperation with Libya that distracted the Court from the core facts of the case.

 

 

Strategic Litigation and the Importance of the Right Vehicle

Strategic litigation often seeks to provoke legal development by advancing compelling cases that expose systemic injustices. But as the ECtHR’s decision in S.S. shows, doctrinal innovation is unlikely to occur unless supported by a compelling and carefully selected case. This raises important ethical considerations: while cause lawyers and civil society organisations may be driven by broader goals of legal change, they must ensure that the individual applicants are not treated merely as vehicles for test cases—particularly where the factual matrix is weak, the personal costs are high, and a negative ruling may entrench restrictive doctrines. In some situations, it may be ethically preferable not to bring a claim with limited chances of success, even if it aligns with a broader strategy, out of respect for the claimants’ rights, expectations, and wellbeing.

Besides the choice of case, the S.S. arguments appears to have overfocused on abstract structural control (Italy’s coordination role, SAR authority, NAURAS), rather than clear factual chains of causation that could demonstrate how Italy’s decisions determined the applicants’ fate. The strategy leaned heavily on the “public powers” doctrine and the notion of procedural jurisdiction (from M.N.), which had never been firmly accepted in Strasbourg jurisprudence. In doing so, it may have underplayed the more pragmatic narrative: that Italy chose to allow Libya to act in its stead in that specific moment, despite having a safer alternative (Sea-Watch). In hindsight, the case in S.S. also suffered from overreliance on structural arguments (e.g. Italy’s funding, training, and equipping of Libya’s Coastguard) while under developing more important individualised factual narratives demonstrating Italy’s control over the applicants, and an ambitious framing that leaned heavily on underdeveloped doctrines like procedural jurisdiction, which the Court has historically been reluctant to accept outside of investigative contexts (H.F. and Others v. France, § 195).

The inclusion of copious material from UN agencies, International Maritime Organisation (IMO), Medicines Sans Frontiers (MSF), and Forensic Oceanography was impressive in breadth, but possibly overwhelmed the Court without connecting every piece back to personal jurisdiction over the applicants. The applicants’ case risked being “over-lawyered”—strong on structural critique, but weaker on the concrete “why this engages jurisdiction here and now”.

This does not diminish the value of the case as advocacy. But for Strasbourg litigation—particularly in the sensitive domain of migration control—the Court has shown itself to be doctrinally cautious and highly fact-dependent. To trigger jurisdiction under Article 1, applicants must be able to show that the respondent State exercised direct, operational control over them in a way that materially affected their rights.

 

Beyond Strasbourg: Other Legal Avenues

The Court in S.S. briefly acknowledged that other international legal frameworks may govern rescue coordination and refoulement at sea (S.S., § 87). These include obligations under the International Convention for the Safety of Life at Sea (SOLAS) and the United Nations Convention on the Law of the Sea (UNCLOS), and customary international law. The limitations of Article 1 ECHR jurisdiction in this context may signal the need to litigate such “outsourced” responsibility in other fora. One pending example is Case T-136/23 – Sea-Watch v Frontex before the Court of Justice of the European Union (CJEU), which challenges the EU agency’s alleged role in facilitating interceptions by the Libyan Coastguard. There, unlike S.S., applicants invoke direct documentary evidence of Frontex’s aerial surveillance data being used to support pullbacks in a systematic way. While the facts of the case are not publicly disclosed yet, it most likely concerns the case of 30 July 2021 incident, in which a migrant boat was intercepted and returned to Libya after being detected by a Frontex surveillance drone operating within the Maltese SAR zone. This alternative litigation strategy—using a different legal regime and possibly a stronger evidentiary trail—may prove more effective in establishing responsibility and ensuring accountability. It reinforces the central theme of this piece: that strategic litigation must align legal argument, jurisdictional doctrine, and a compelling factual substrate.

 

Another alternative forum for litigation is the UN Human Rights Committee (HRC). In fact, through its decision in A.S. and Others v. Italy (Communication No. 3042/2017), the Committee already accepted once a functional understanding of jurisdiction in a strikingly similar context. The HRC reasoned that Italy had established jurisdiction when its MRCC received a distress call and continued operational involvement, had a naval asset in close proximity and had legal obligations under maritime law and consequently created a “special relationship of dependency” between the individuals on board and Italian authorities (see A.S. and Others, paras 7.5–7.8, citing HRC Gen. Comm. 36). They held that this dependency, coupled with Italy’s operational decision-making, was sufficient to trigger obligations under the International Covenant on Civil and Political Rights (ICCPR)—including non-refoulement—despite the absence of physical custody as per Hirsi.

The ECtHR’s dismissal of such reasoning in S.S. (see § 80) thus highlights a significant divergence between ECHR and the International Covenant on Civil and Political Rights (ICCPR) jurisprudence. That said, I would argue that in A.S. and Others, the facts reveal a higher degree of control exercised by the Italian authorities compared to the S.S. case. This underscores the importance of assessing each case on its own merits, as jurisdictional findings depend on the specific circumstances and evidence presented and less on more academic discourse.

These alternative fora underscore that accountability for outsourced border practices is not foreclosed—only displaced. While the ECtHR may adopt a narrow interpretation of jurisdiction, other institutions, such as the EU courts and the Human Rights Committee, have demonstrated greater openness to recognising functional forms of control. For strategic litigators, this means diversifying venues and tailoring claims to the doctrinal terrain of each forum.

 

Conclusion: A Missed Opportunity, and a Lesson for the Future

While the S.S. judgment may be considered disappointing by some, part of the problem lies in the litigation strategy itself. S.S. is a reminder that strategic litigation must be strategic. The cause may be just. The legal theory may be sound. The political climate may be urgent. But if the factual matrix does not lend itself to a clear jurisdictional finding, the case will falter.

In contrast, other emerging cases—where the Rome MRCC more directly excludes European rescue actors and instructs Libyan authorities to intervene—offer a firmer and more evidentiary-rich basis for establishing jurisdiction. These scenarios may provide the ECtHR with an opportunity to revisit the issues left unresolved in S.S., and to do so through doctrinal continuity rather than rupture. However, it is important to bear in mind that jurisdictional determinations remain case-specific. Recognition of functional jurisdiction in one case does not automatically imply the same outcome in others. That said, courts may be encouraged to draw broader conclusions—such as identifying a minimum threshold of degree of control necessary to trigger jurisdiction in such cases—as they did in Hirsi Jamaa.

S.S. also illustrates a broader truth: when one door closes, others may still be ajar. As the pending Frontex case and the A.S. and Others v. Italy ruling before the UN Human Rights Committee show, different legal regimes may be more receptive to the realities of functional control at sea. Strategic litigation must therefore be both doctrinally agile and forum-sensitive—matching facts not just to law, but to the institutions most likely to listen. Yet whatever the forum of choice, the lesson remains: a sound legal argument must be paired with the right vehicle. Otherwise, as in S.S., the Court may close a door it was not yet ready to open.

A Dutch dangerous experiment in criminalizing compassion: How a parliamentary "slip-up" could create Europe's harshest migration law

 

Huub Verbaten, Research Fellow at the Clingendael Institute

Photo credit: Markus Bernet, via Wikimedia commons

On the evening of July 3, 2025, as Dutch parliamentarians prepared to vote on what could become some of Europe's most restrictive asylum laws, NSC MP Diederik Boomsma posed a question that cut to the heart of a dangerous policy experiment. Would offering a "bowl of soup" to someone without legal papers now be a criminal offense?

The question wasn't rhetorical. Just days earlier, a last-minute amendment by Geert Wilders' far-right PVV had passed through what opposition parties later called a "slip-up" in parliamentary procedure. The amendment didn't just criminalize being undocumented in the Netherland, it also made helping undocumented people a punishable offense. Suddenly, the simple act of human kindness that Boomsma described could land someone in jail.

Justice Minister David van Weel's initial response was telling: "Illegal is illegal. The law, is the law." But when pressed again later that evening, he backtracked, saying the criminalization clause wouldn't take immediate effect and would need assessment by the Council of State. The next day, Deputy Minister Thierry Aartsen offered a more pointed critique: "There should be no soup police."

This exchange encapsulates something profound about the moment we're witnessing in European migration policy. What began as political theater, a way for parties to signal toughness on immigration, has evolved into something more dangerous: the systematic criminalization of both vulnerability and compassion. The Netherlands, long seen as a pragmatic, tolerant society, is conducting an experiment in governance through criminalization that could reshape not just migration policy, but the very nature of civil society.

The mechanics of a political accident

To understand how the Netherlands arrived at this point, you need to understand the chaotic final days of the parliamentary session that ended July 3, 2025. What unfolded was less deliberate policymaking than political accident, resulting in a series of miscalculations and missed opportunities that produced legislation even its supporters seemed uncomfortable defending.

The story begins with the collapse of the four-party coalition government just one month earlier. Migration had been the breaking point. Geert Wilders, whose PVV party led the coalition, pulled the plug in June, claiming his partners were moving too slowly on promised migration restrictions. The irony was palpable: Wilders destroyed his own government over the very issue he'd finally gained power to address.

The criminalization amendment emerged from this toxic environment. Originally, the asylum legislation focused on reducing temporary residency permits from five to three years, suspending new permanent residency permits, and restricting family reunification.

These were significant changes, but they operated within existing legal frameworks. The PVV amendment changed everything. When the vote came on July 3, the numbers tell the story of a deeply divided parliament. The main asylum bill passed 95 to 55 MP votes, a comfortable margin that reflected broad support for tighter restrictions. But the criminalization amendment passed much more narrowly, and only because several opposition MPs were absent during the crucial vote. It was, in the words of multiple observers, a "slip-up" that produced one of Europe's harshest migration laws.

The Christian Democrats, who had initially supported the broader asylum package, immediately withdrew their backing once the criminalization clause was added. This wasn't careful policymaking. It was political improvisation under pressure, with consequences that extend far beyond the immediate parliamentary arithmetic.

The evidence against criminalization

The Dutch experiment in criminalizing illegal residence isn't happening in a vacuum. Other European countries have tried similar approaches, and the results offer a sobering preview of what the Netherlands can expect. The evidence is clear (see here and here): criminalization doesn't reduce irregular migration, but it does create a host of new problems.

Start with the basic premise underlying the Dutch legislation that making illegal residence a crime will deter people from coming or staying. Research (here and here) from the Netherlands' own Research and Documentation Centre (WODC) has repeatedly debunked the assumption that illegality and criminality go hand in hand. A recent German study reached similar conclusions, finding no evidence that immigration increases crime rates. Migrants are primarily driven by safety, prospects, and family, not by policy measures. The deterrence theory, appealing as it might sound to politicians, simply doesn't hold up under scrutiny.

The international evidence is even more damning. Belgium offers perhaps the most instructive comparison. Since 1980 - 45 years ago - Belgium has maintained criminal penalties for illegal residence, with fines up to 200 euros and prison sentences up to three months. The result? Belgium currently hosts an estimated 112,000 undocumented residents (see here and here), more than double the highest estimates for the Netherlands (23,000 to 58,000). If criminalization were an effective deterrent, Belgium should have far fewer undocumented residents, not far more.

Germany has taken a different approach that highlights the contradictions in criminalization strategies. Through its Duldung (toleration) system, Germany provides temporary legal status to people who cannot be deported. Between 2015 and 2020, Germany issued nearly 660,000 residence permits to people who had previously been living illegally in the country. Rather than criminalizing these individuals, Germany regularized their status, reducing the undocumented population from 300,000 in 2022 to 240,000 in 2023.

Italy provides the starkest example of criminalization's failures. Since 1998, Italy has maintained criminal penalties for illegal residence, with fines reaching 10,000 euros and mandatory deportation orders. Yet Italian courts have repeatedly rejected the harshest applications of these laws (see here and here). In 2023, it was determined that a protection permit (protezione speciale) may not be automatically denied without an individual assessment. Meanwhile, the informal economy grew, and with it, the vulnerability of undocumented individuals. Since 2020, the number of detected irregular migrants has increased nearly tenfold, from fewer than 23,000 to more than 195,000 in 2023 (see here and here). The paradox is stark: the stricter the policy, the larger the population it fails to control.

What is criminalized in one European country can offer protection in another. While the Netherlands seeks to criminalize illegal stay, countries like Italy and Germany have humanitarian exceptions: protezione speciale, Duldung. The result? Two people in exactly the same situation can face completely different outcomes, purely depending on where they are.

These differences are not minor legal technicalities because they touch on something fundamental: the fairness of European migration policy. How do you explain that someone in Germany might receive a Duldung for policy-related or personal reasons, while that same person would be considered a criminal in the Netherlands?

Systems under breaking point

The Dutch criminalization experiment arrives at a particularly unfortunate moment: when the country's justice system is already stretched beyond capacity. The Netherlands' justice system is currently in crisis. Prison overcrowding has become so severe that the government recently implemented early release programs for convicted criminals to free up cell space. Into this strained system, the criminalization amendment would inject thousands of new cases annually.

The Association of Dutch Municipalities (VNG) has been particularly vocal about the implementation challenges. In their assessment, the legislation creates an impossible situation: municipalities are legally required to provide basic services to vulnerable populations, but the new law would criminalize providing those very services. As VNG chairperson Sharon Dijksma put it, "Municipalities will soon have to break one law in order to comply with another law."

Police leadership opposes Minister Van Weel’s legislation (see here and here): 'Not every illegal alien is a nuisance' and 'When providing assistance to someone who is in the country illegally, the police would actually be in violation. This is an undesirable situation.'

The system strain isn't limited to formal institutions. Civil society organizations that have provided humanitarian assistance for decades suddenly find themselves in legal jeopardy. Churches offering sanctuary, NGOs providing food and shelter, even individual citizens helping neighbors could face criminal prosecution.

The logic of political theatre

If criminalization doesn't work as policy, why does it persist as politics? The answer reveals something uncomfortable about contemporary democratic governance: the gap between what sounds effective and what actually works has become a chasm that politicians exploit rather than bridge.

The Dutch criminalization amendment serves primarily as what political scientists call "symbolic legislation”, laws designed more to send messages than to solve problems. The message is clear: we take illegal immigration seriously enough to make it a crime. The audience isn't primarily migrants, who research shows are rarely deterred by such policies. The audience is voters who want to see their representatives "doing something" about immigration.

This dynamic isn't new in Dutch politics. The current proposal represents the third major attempt to criminalize illegal residence in the past two decades. Each time, the same pattern emerges: political pressure builds for "tough" action on migration, criminalization is proposed as a solution, experts warn about practical problems and limited effectiveness, and the proposal either dies or gets watered down. The current version broke this cycle not because the underlying problems were solved, but because political circumstances aligned to push it through despite expert opposition.

The criminalization approach also serves another political function: it shifts responsibility away from government failure. If the Netherlands cannot effectively manage migration through existing legal and administrative tools, criminalizing the problem makes it someone else's responsibility e.g. police, prosecutors, judges. When these institutions inevitably struggle with implementation, politicians can blame them for being "soft" rather than acknowledging the inadequacy of the policy itself.

When compassion becomes criminal

The most profound impact of the Dutch criminalization experiment may not be on migration patterns, which research suggests will remain largely unchanged, but on the fabric of civil society itself. When basic human compassion becomes potentially criminal, the effects ripple far beyond the immediate targets of the legislation.

Consider the position of healthcare providers who regularly treat undocumented patients. Under the new legislation, providing medical care to someone without legal status could potentially constitute "assistance" to illegal residence. The law contains no explicit medical exemption, leaving healthcare providers in an impossible position: violate their professional oath to "do no harm," or risk criminal prosecution for helping vulnerable patients.

The Dutch legislation creates what legal scholars call "overcriminalization", the expansion of criminal law into areas traditionally governed by administrative procedures or moral obligations. When criminal penalties attach to activities that most people consider morally neutral or even praiseworthy, the law loses legitimacy and becomes harder to enforce fairly.

The European Court of Justice has recognized this complexity in a series of recent rulings that establish minimum standards for human dignity even in restrictive migration regimes. The Jawo decision established that Dublin transfers cannot leave asylum seekers destitute. Haqbin confirmed that even problematic asylum seekers retain rights to basic accommodation. The ruling in Changu underlines that Member States may be strict in their return policies, but they remain responsible for the basic needs of people who cannot (yet) be deported.

The Court recently ruled that illegal travel into EU by a third-country national with minors does not constitute a criminal offence when claiming international protection. Therefore, the Italian law contravenes EU law. These rulings reflect a fundamental principle: human dignity is not conditional on legal status.

The European Commission made a proposal at the end of 2023 for a new directive aimed at clarifying the approach to assisting with illegal residence in the EU. The Netherlands supports the proposal but at the same time emphasized as recently as March 2024 that humanitarian aid must not be criminalized. The Meijers Committee warns that the directive risks criminalizing humanitarian aid and urges the EU to amend vague provisions allowing Member States too much discretion in prosecutions.

An increasing number of aid workers have appeared in court across several Member States for assisting undocumented individuals. According to a recent report by the PICUM network, at least 142 people in Europe were prosecuted in 2024 for helping migrants, including 62 in Greece, 29 in Italy, 17 in Poland, and 17 in France.

The choice ahead

The Dutch criminalization experiment now moves to its final act. When the upper house reconvenes after the summer recess, senators will face a choice that extends far beyond migration policy. They will decide whether the Netherlands embraces governance through criminalization or returns to its tradition of pragmatic, evidence-based policymaking.

The vote is expected to be extremely close. The Christian Democrats, who withdrew support in the lower house over the criminalization amendment, hold enough seats in the upper chamber to block the legislation if they maintain their opposition. This means the fate of one of Europe's harshest migration laws may come down to a handful of votes from politicians who weren't even directly elected on this issue.

The choice facing Dutch senators reflects a broader tension in contemporary democracy between responsive governance and responsible governance. Responsive governance gives people what they want, even when what they want is based on incomplete information or emotional reactions. Responsible governance sometimes requires leaders to resist popular pressure in favor of policies that actually work.

The criminalization amendment represents responsive governance at its worst, a policy that sounds tough but creates more problems than it solves. Responsible governance would acknowledge the legitimate concerns about migration while pursuing solutions that actually address those concerns rather than simply expressing frustration about them.

What would responsible migration governance look like? It would start with honest assessment of what's actually possible. Most undocumented residents in the Netherlands cannot be deported, either because their countries of origin won't accept them or because deportation would violate international law. Criminalizing these people doesn't make deportation more feasible; it just makes their lives more precarious.

The question that began this analysis - whether offering a bowl of soup to someone without papers should be a crime - captures the essence of this choice. Societies that criminalize basic human compassion don't become more secure or more prosperous. They become less humane and ultimately less democratic.

The Netherlands still has time to choose a different path. The question is whether its democratic institutions are strong enough to take it.

‘WARNING. Confidential documents. Not to be disclosed to anyone’ (Part 2)

 

 

Päivi Leino-Sandberg (University of Helsinki)

 

Photo credit: EmDee, via Wikimedia Commons

 

The debate around the recent Pfizergate ruling has turned some problems around how the Commission applies citizens’ right to access its documents to public attention. But Pfizergate is not an isolated incident. It is a part of a pattern of long delays, the claimed non-existence of documents that remain nearly impossible to rebut, and lacking remedies, which this post seeks to illustrate through an example – my own request saga that lasted over two years.

 

In March 2023, I filed three access to documents (ATD) requests with both the Council and the Commission for the legal advice relating to:

 

-       the Proposal for a Regulation on the establishment of the Reform Support Programme. (COM(2018) 391 final);

-       the Proposal for a Regulation of the European Parliament and of the Council on the establishment of a European Investment Stabilisation Function (EISF Proposal). (COM(2018) 387 final);

-       the Proposal for a Regulation of the European Parliament and of the Council on a governance framework for the budgetary instrument for convergence and competitiveness for the euro area. (COM(2019) 354 final).

 

By the time of my requests, the legislative negotiations on the three instruments had long been abandoned. However, their key elements developed into the Recovery and Resilience Facility. The Council disclosed its legal advice in full, respecting the Turco jurisprudence, which establishes that legal advice in legislative matters should, as the main rule, be disclosed.

 

The request must have offered the Commission serious nightmares. First, it concerned legal advice. Second, it shows the Commission engaging in damage control, trying to limit the ‘harmful effects’ of legislative transparency on its own work. Third, the question of current and future mechanisms of fiscal distribution is politically sensitive, given the vast responsibility of the Commission for the allocation of the massive amounts of RRF funding and their legal fragility under the current Treaties.

 

In its initial decision, the Commission identified a number of documents relating to the final interservice consultation preceding the formal approval of the three legislative proposals. Much was ultimately blanked out. However, in respect of one of the proposals, COM(2019) 354 final, I received partial access to two documents that made it clearly visible that more would have existed.

 

First, the minutes of the Fast-track meeting of 8 July 2019 show that the Legal Service had requested the deletion of article 4(2), as a box in the margin indicates that ‘The SJ referred to its full set of drafting suggestions as well as observations in writing that had been made ahead of the FT ISC meeting.’

 

Second, the Commission provided the comments of the Legal Service in the form of track-changes regarding the ISC/2019/05372 on the proposal, which indicated that there were further suggestions that had been further elaborated in an email.

 

Neither of these documents were listed among the result of the Commission’s search or disclosed. It chose to approach my request in highly formalistic terms: as referring only to only the final stages preceding the formal approval of the Commission proposals and excluding all more informal correspondence, such as emails and ‘full sets of drafting suggestions’.

 

In my confirmatory request dated 31 May 2023, I pointed out how

 

It seems highly unlikely that the legal service or the legal units in the DGs had not provided any written legal advice beyond the documents identified by the Commission in its decision of 24 May 2023, and that the contribution of the legal service would be limited to correcting primarily technical details in the draft proposals at a stage when they are nearly finished. I kindly ask the Commission to verify this point.

 

I further clarified that my interest in the documents related to the Commission analyses on the applicable legal bases, since

 

as the Commission is well aware, some of these instruments are legally framed as cohesion policy instruments while others are understood as parts of the EU’s economic governance framework. I find it unlikely that no legal analyses would have been conducted in the Commission relating to the choice of legal basis for these instruments. The instruments also introduce a new interpretation of EU cohesion policy with constitutional importance for Union development in particular as regards spending. I find it unlikely that this change would not have been subject to careful analysis in the Commission legal service, and hereby request the Commission [to] reconsider its position on these aspects, as legal advice on these matters, given in the context of a legislative procedure, should be disclosed. […]

 

The Court has already confirmed in Miettinen that ‘the question of the legal basis is an essential question in the legislative process ‘; that ‘a proposal is designed to be debated, in particular as regards the choice of legal basis’ and that ‘in the light of the importance of the choice of legal basis of a legislative act, the transparency of the choice does not weaken the decision-making process, but strengthens it’.

 

In August I contacted the European Ombudsman about the Commission’s failure to reply in time to my confirmatory application. The Commission decision (C(2023) 5806 final) arrived on 22 August 2023, five months after my initial request was filed.

 

In the Commission, my reference to informal communication was found not acceptable as ‘the scope of review of an initial reply provided is restricted to the scope of the application made at the initial level and cannot be extended at the confirmatory level’. I could therefore not request ‘access to other documents’. I had already been provided ‘the relevant documents’ that referred to

 

any legal advice in the possession of the European Commission relating to [name of the proposal in question]’, the scope of the request was limited to legal advice on the proposals in question as such. Consequently, searches conducted concerned only such legal opinions and resulted in identifying documents related to replies given during the respective Inter-Service Consultations.

 

No further documents could be identified and no new documents needed to be created. The Commission was unconvinced about the existence of a public interest relating to the innovative legal interpretation that had enabled the EU to set up a financial instrument of €750 billion:

 

It is true, and cannot be disputed, that the public should be informed about how public money is spent. Such information made available to citizens reinforces public control of the use to which that money is put and contributes to the best use of public funds. Nevertheless, please note that this objective is already achieved by publishing comprehensive information on the EU budget, as well as the amounts allocated to the various areas with supporting explanations, which contributes to transparency in the use of public funds. No such link can be established regarding the full disclosure of the legal advice to which you are seeking access.

 

Finally, the Commission reminded me, if an institution claims not to hold any documents, there is a presumption of lawfulness attached to the declaration, unless the applicant can rebut it by relevant and consistent evidence. The Commission argued, the ‘mere suspicion that there must be a document does not suffice to put in question the presumption of legality of the institution’s statement’. As I had failed to ‘put forward any relevant or consistent evidence pointing which could lead to the rebuttal of the presumption’. However, I was welcome to file a new request for ‘additional documents’.

 

I consulted the Ombudsman’s office, given a recent EO recommendation that urged the Commission to ‘engage with requesters openly and constructively at all stages’. Moreover, how exactly could an applicant verify the existence of a document? One might think that a cross-reference in a Commission document disclosed by the Commission itself might also be enough to rebut the claim that no documents exist.

 

However, the Ombudsman announced she had now closed my case as the Commission had replied to my confirmatory application. I was advised that her services found a new request ‘the more appropriate course of action. We have asked the Commission to treat any such follow-up public access request promptly.’ 

 

New request of September 2023

 

I re-filed the request on 6 September 2023, specifying that I indeed requested access

 

to the Legal advice provided by the Commission legal service at the stage when what later came to me known as Commission legislative proposals COM(2018) 391 final, COM(2018) 387 final and COM(2019) 354 final were prepared in the relevant Commission DGs. This request relates to all stages of preparatory work preceding the respective Inter-Service Consultations and also covers informal advice offered in the form of e-mail messages or other informal corrspondence between the Legal Service and the DGs that were in charge of preparing the proposals and that may have influenced how the proposals were formulated.

 

On 16 October 2023 the Commission replied, regretting to inform me

 

that the Legal Service has not identified any document matching the terms of your request. Please note that, in line with the applicable rules, the Legal Service and the competent directorate generals of the Commission have carried out a thorough search in their corporate document management systems (Ref. Ares(2023)6974568).

 

Four days later, I filed a confirmatory application, referring to Article 21 of the Commission Rules of Procedure, which requires the Legal Service to be consulted on all drafts or proposals for legal instruments and on all documents which may have legal implications. I drew the Commission’s attention to a working paper published by a member of its Legal Service, Leo Flynn, in 2019 where he explains how cohesion policy had been firmly identified by the EU institutions as a way to fill the ‘gaps’ in the ‘incomplete policy side of EMU’. The Treaty constraints on that side were considered ‘challenging’ and ’limit the possibility for the Union institutions to adopt measures that are binding as to how the Member States conduct their economic policies’. I pointed out that under Article 17 a of the Staff Regulations Flynn must have recived prior authorisation, expressly or implicitly, to speak at the event in Maastricht and publish the subsequent working paper.

 

The Commission reply seemed to suggest that the Commission Legal Service had provided no written advice on this legal transformation, which according to Flynn's description, took place over several years. Alternatively, I argued, the Commission reply could be understood as claiming that while legal advice may or may not have been offered on the relevant legal questions at hand, no such advice can be currently found in the Commission's ‘corporate document management systems’. In this regard, I referred to the position of the European Ombudsman, also repeated in the Pfizergate context, namely that whether or not a document is registered in the Commission’s document management system but has no bearing on whether they fall within the scope of the public access rules.

  

The black hole of internal consultations and Ombudsman inquiry

 

Following the request, I was informed about an extended deadline caused by Commission’s internal consultations. I submitted another complaint to the Ombudsman in December. I also wrote to the Commission in December, reminding that the extended dead line had passed.

 

A new inquiry was opened by the Ombudsman a month later, leading to consultations and dead lines set for Commission responses. The Commission did not seem to respect them. The investigation stalled. My confirmatory request remained unaddressed. In March I reminded the Commission again.

 

Some weeks later, the Ombudsman website indicated that a preliminary inquiry outcome had been reached on 19 March 2024. I was not aware of its contents. This seemed at odds with Article 2(1) of the Ombudsman Statute that establishes a number of rights for the complainant. I had no idea what was going on with my file.

 

Article 41 of the EU Charter of Fundamental Rights establishes a right to good administration. It provides a  right to one’s own file and to get a decision ‘within a reasonable time’. With reference to these provisions, I formally requested information from the European Ombudsman about her communication with the Commission with a view to ‘learning how exactly the Ombudsman is dealing with my case, keeping in mind the Commission's blatant disregard of dead lines, which already constitutes a clear case of maladministration’.

 

The decision of the Ombudsman of 22 May disclosed nothing beyond my own descriptions of the matter (Ares(2024)3209423). Instead, I was informed that ‘we will share with you the Ombudsman’s proposal for a solution together with the Commission’s reply once we have received it. Thus, at this stage, disclosure of this document is prevented by the need to protect the Ombudsman’s ongoing inquiry’. According to the decision, she was not ‘able to identify an overriding public interest that could override the necessity of ensuring that the Ombudsman can effectively carry out her inquiry’.

 

To underline the point, the file was marked with ‘WARNING’, ‘Confidential documents’, ‘Not to be disclosed to anyone’. While I had not requested confidential treatment, the Ombudsman had decided my whole file – consisting of documents that should under established Court case law have been public - should be treated as confidential.

 

  

 

I learned from the Ombudsman’s final decision more than a year later that the Commission had by that time shared 13 documents as falling under my request. These documents had been inspected by the Ombudsman inquiry team. In the absence of any formal decision by the Commission, the Ombudsman had also written to the Commission to seek a solution, stressing that the case law in this area is clear and that there is, in principle, an obligation to disclose the advice of an institution’s legal service relating to a legislative proposal. As a result, ‘the Ombudsman proposed that the Commission should ‘consider granting the widest possible access to any documents it identifies at confirmatory stage’.

The Commission’s final decision

 

In practice, the Commission seems to have ignored also this recommendation entirely. Its final decision (C(2024) 3961 final) arrived in June 2024 – carfully timed to make a Court appeal as difficult as possible. It chose to disclose very little of the 13 documents it had identified to the Ombudsman already four months earlier. The documents are e-mail messages and other informal correspondence within the Legal Service and between the Legal Service and the Directorates-General that were in charge of preparing the proposals and that may have influenced how the proposals were formulated, prior to the preparation of these proposals.

 

The queries from DGs that the Commission disclosed demonstrate that the Commission lawyers were indeed working their ways around key Treaty constraints. However, the Commission redacted all the actual legal advice, because it ‘concern[ed] purely internal exchanges related not even to any draft versions of future proposals (and therefore not part of [any] legislative file) and thus should be as a rule protected as part of the institution’s “space to think”.’

 

When trying to distance its preparatory work from legislative work, the Commission builds on arguments that are factually inaccurate, given the timeline of the relevant legislative negotiations and other publicly available information. Deepening the EMU and modernising EU public finances are key strands in the debate on the future of Europe initiated by the Commission's White Paper of 1 March 2017, which specifically refers to the objective that “a euro area fiscal stabilisation function is operational” by 2025. Two of the legislative proposals I was interested in are included in the Reflection Paper on the future of EU Finances of 28 June 2017, the letter of intent accompanying President Juncker’s State of the Union Address 2017, and the Commission work programme for 2018. The two first proposals were approved by the Commission on 31 May 2018. The third one builds on the first two, as mandated by the December 2018 Euro Summit.

 

There is little doubt that by the end of 2017 the Commission was working on concrete legislative proposals. The documents identified by the Commission fall within the relevant timeframe and coincide with developments in the legislative processes where legal advice has been particularly needed, either when drafting the proposals or when concrete legal issues that emerged in the negotiations.

 

There is also a rather obvious contradiction in the Commission position. It carefully underlines how the requested documents ‘do not concern legal questions arising when legislative initiatives were being debated nor would its disclosure increase the transparency and openness of the legislative process’. At the same time, the Commission asserts various times that the documents should be protected because they are relevant to ‘ongoing’, ‘current’, and ‘pending’ legislative discussions and  ‘many current and future proposals’ including in the context of defence financing, ‘in particular in the context of the future MFF preparations’; or contain ‘internal discussions about the limits and scope of different legal bases (Articles 174 to 178 TFEU and 197 TFEU), including about legal bases that were ultimately not used, but which may be used in other future or present Commission proposals’.

 

I agree with the Commission that the opinions are highly relevant for ongoing and future legislative negotiations – this is indeed why I sought access to them. Moreover, the Court has already established that ‘the assertion that the requested document is relevant to a ‘wide range of current and future dossiers’ does not constitute a detailed statement of reasons’.

 

What makes the matter particularly pertinent is that in recent years, legal interpretations in the institutions have tended to fluctuate in response to functional demands. The Commission Legal Service likes to repeat that its advice should be ‘frank, objective and comprehensive’. But if its advice indeed lives up to decent professional standards, why would it need to remain confidential? Would not publicity rather help the Legal Service to make sure that in despite the functional pressures of Commission decision-making, its its advice remains ‘frank, objective and comprehensive’? What exactly is in that legal advice that makes it so compulsory to hold it secret?

 

Conclusions

 

When thinking about a possible Court appeal, I was contacted by Ombudsman services who were still working on my complaint relating to the Commission delay. I was offered the possibility to turn the initial delay in responding complaint to a case that addresses the substance of the Commission decision. In the end, I accepted and provided a number of comments on the Commission decision.

 

During the following ten months, nothing seemed to happen in the Ombudsman services. The file was finally closed with a decision by the new Ombudsman on 4 April this year. Contrary to what had been indicated, she ultimately refrained from substantive scrutiny of the decision, but expressed ‘doubts […] as to whether its position is fully supported by the relevant EU case-law set out in her solution proposal. The complainant’s extensive arguments in this regard do not seem to be without merit.’ Moreover, given the fact that my original request was made for more than two years ago, the Ombusdman found that

 

[t]here is nothing that could justify in this case what is manifestly a significant delay in replying to the complainant’s request and a clear failure by the Commission to comply with the time limits established by Regulation 1049/2001. This cannot be good administration.

 

It is possible that the Ombudsman’s involvement contributed to the Commission finally approving a decision in the case. However, it did nothing to convince the Commission that its position was in conflict with EU law. I am by far not the only one with this experience (see e.g. here, here, here).

 

The new Rules of Procedure of December 2024 make it explicit that while the Commission will implement judgments of the Court, ‘the Commission may upon assessment of the arguments provided by the European Ombudsman decide to grant further or full access to documents in the framework of the Commission’s reply to the proposal or recommendation’ (Annex, Article 15(2)). Under the Treaties, the Ombudsman cannot be given binding powers. But its authority to persuade seems seriously hampered as far the Commission is concerned.

 

This raises a rather basic question about whether there is any point for an applicant to appeal to the Ombudsman. Her lengthy and secretive process also risks the Ombudsman simply legitimating the Commission’s reluctance to deal with the request in an appropriate manner.

 

The Commission’s way of dealing with sensitive requests is not an incident. It is not an example of bureaucratic resistance but a policy that is systematically implemented to exclude democratic debate while matters are pending and to avoid accountability for politically charged actions.

‘WARNING. Confidential documents. Not to be disclosed to anyone’ (Part 1)

 

Päivi Leino-Sandberg (University of Helsinki)

 

Photo credit: Cancillería Ecuador via Wikimedia Commons

 

When conducting research, I often file requests for access to documents (ATD) under the EU’s access to documents regulation (1049/2001), primarily with the Commission and the Council, and use them as a source of empirical research. In this blogpost, I share some experiences from my recent requests. This post illustrates some of the general features of how ATD requests operate with the Commission and the Council today. The second part uses the example of one of my recent requests to illustrate the Commission’s increasing resistance to citizens’ right to access its documents as a way of enforcing public accountability, and how its policy of non-engagement also corrupts access to remedies. Making the Commission arguments and practices visible is one way of subjecting it to political accountability.

 

During the past twenty years or so, both have had their sensitivities to disclose what they deem as ‘internal documents’. Today the Council has a comprehensive public register that is helpful for identifying what you might be interested in. Equally importantly, when filing a request with a Council, the Council will respond. You are regularly informed about when your matter will be decided. Negative decisions will also explain why access was (perhaps partially) refused. I have in most cases received full access to the legal opinions, Presidency compromise proposals, court pleadings and various internal policy documents I have requested. While proactive transparency for legislative documents is still struggling to emerge, the Council is respectful of the applicants’ procedural rights.

 

The Commission is an entirely different story. Its public registers are far from comprehensive, which forces those interested in its documents to file requests. Fairly often the answer is that documents ‘do not exist’. Alternatively, instead of disclosing what you initially asked for, you are offered some documents that fall under your request but that are carefully selected by the Commission.

 

If asking for important information, there is a great likelihood that your request will simply fall in a black hole where the clear time limits (15+15 working days) set in Regulation 1049/2001 lose all significance. For months (or even years) nothing seems to move. You find yourself sending reminders through the Commission EASE system, which is frequently malfunctioning, and especially so when your own time limit for an appeal is running. Whereas the Commission’s deadlines for reacting to requests are endlessly flexible, those placed on the applicants are carved in stone.

 

Based on my experiences, the implementation gap between the Commission and the Council is widening. When I requested access to the legal advice relating to the new fiscal stabilisation mechanisms, the Council granted full access to all its opinions. The Commission did not – and this is a story I will share in part 2 of this blog.

 

When I asked for legal advice relating to the EU’s new unified funding and borrowing approach, no documents could be found. For the Council, this may well be true. However, the new Commission strategy is an important step towards becoming a European ‘treasury’’ – and something that in the Four and Five Presidents’ Reports on EMU Development for a decade ago was still counted among the long-term objectives requiring major Treaty reform. Against this background, it is unlikely that the Commission would have prepared the strategy without any engagement of its Legal Service – but this is difficult to rebut.

 

Over the years, the Court has been very understanding of the Commission’s wish to exclude many of its non-legislative documents from the scope of public access. While also rejecting some of the Commission’s standpoints (such as on impact assessment and legal advice), it has accepted to replace the duty to carry out a concrete, individual examination of the content of the requested documents by a general presumption of confidentiality. This enables the Commission to de facto leave a large part of its key activities outside public access, including state aid, control of concentrations / merger control proceedings, infringement proceedings, proceedings under Article 81 EC (now Article 101 TFEU), and pilot procedures. General presumptions are legally problematic under Regulation No 1049/2001 and the EU’s obligations under the Aarhus Convention.

 

Today, the Commission’s resistance to public accountability continues in two core areas of democratic decision-making: approval of EU legislation and the use of EU funds. Its policy is driven by the aim to make timely and informed debate impossible.

 

Instead of gaining access to original documents, the Commission refers you to formal communication offering a curated picture of its actions. This undermines the explicit objective of the Treaty-based citizens’ right to access documents. Under the preamble to Regulation 1049/2001,

 

Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

 

The Commission’s lack of understanding of the relevance of these basic Treaty objectives for its own work have been visible in the way the Commission has responded to the requests concerning the implementation of the Recovery and Resilience Facility (RRF), which allocates nearly €700 billion of EU taxpayers’ money to national reforms and investments under light Commission guidance. Journalists have waited for answers to their requests concerning the plans for months and sometimes for years.

 

One example of a an enormously late Commission reply, given to investigative journalist Peter Teffer, explains how disclosure of various documents relating to the preparation of the Dutch Recovery and Resilience Plan ‘would open the door to undue external pressure on the decision-making process’. In the view of the Commission, ‘This could lead to speculation and serious interference with the Commission’s decision-making process. As a result, the Commission would be deprived of engaging in a constructive form of internal criticism, provided free of all external pressure’ (Ares(2024)5120311).

 

For the Commission, public debate of its policies is not understood as an inherent part of a democratic political system but a threat to its decision-making. In the face of the righteousness of its own cause, democratic rights of critical observers start looking like a nuisance.

 

There are many responses of the same kind. The Commission also insists that key RRF documents should be kept confidential until 2026 when the final disbursements have been made. Its reluctance to apply transparency has led to a highly critical inquiry by the previous European Ombudsman.  

 

The previous Ombudsman also voiced broad and fundamental concerns about the Commission’s increasing lack of engagement with her inquiries, leading to growing frustration when the Commission services simply refused to comply with the Court’s case law. 

 

‘We now need to embed citizens’ participation across the EU’ is something that Ursula van der Leyen declares in her Political guidelines for 2024-2029. Yet, the Commission has never been a believer in participatory democracy. In legislative matters, documents are strategically disclosed so late that negotiations have already come to an end. It is difficult to think of any European Citizenship Initiatives with legislative impact. The recent Omnibus debate – also subject to an ongoing Ombudsman investigation - illustrates the tendency of the Commission to replace broad consultations of civil society with guidance from the industry.

 

One of my own recent interests has concerned how the practical scrutiny of national Recovery and Resilience Plans, introduced by the European Council in 2020 to ensure that the adequacy of the Commission’s assessment of the fulfilment of milestones and targets in national plans, has been organized in the Economic and Financial Committee (EFC), an EU body set up by Article 134 TFEU and consisting of senior officials from the Member States, the Commission, and the ECB. 

 

EFC documents are officially Commission documents. But given the difficulties involved in receiving a decision within a decent timeframe from the Commission, I filed my request for

 

‘any EFC internal rules or guidelines that govern the preparation of its opinions under the RRF, including possible amendments’ with the Council, presuming that the documents would also be in its possession. It consulted the Commission, which opposed disclosure. However, the Council decided to disclose the relevant guidelines in full following my confirmatory appeal.

 

The documents demonstrate that due to time limits and information asymmetries, Member State scrutiny of national spending under the RRF is a myth. The Commission is the only EU actor that conducts negotiations with the Member States on what should be in the plans and receives documentation from them. The Commission also monitors, based on Member State documents, how the milestones and targets are implemented. The Council, the EFC and also the European Parliament are all dependent on the small amount of information they receive from the Commission, supporting its proposal. Given the information asymmetries and short timeframe, the scrutiny by the Council  or the EFC is a mere formality. They do not have the time, the resources, the local knowledge needed to assess national plans or even the inclination to challenge the way another Member State spends its share of the funds. But for the Commission, it has been useful to be able to refer to how it does not take decisions alone, thus placing the responsibility with the EFC or the Council.

 

They are of course also requests that are dealt with reasonably smoothly in the Commission. When I asked for the Commission pleadings in case C‑166/07, EP v Council, I received them promptly, exactly 15 working days from my request. When I for some years ago asked for ‘documents relating to the meeting between Margarethe Vestager and members of the Court in Luxembourg on 28 November 2022’, I received an answer ‘only’ five weeks later. I was surprised, given that there might be questions about why the Competition Commissioner meets members of the Court, unless this is to discuss the Commission agenda in ongoing and future cases.

 

However, systemic delays are today commonplace. As the European Ombudsman noted in March 2023 when closing her investigation relating to the problems,

 

long delays frequently occur in cases that are of significant public interest.

 

The effect of such delays in some instances is to render the information obtained no longer useful for research or journalistic purposes. The delays may also prevent citizens from having their say at relevant times in decision making.

 

At the confirmatory application stage, legal deadlines are missed in 85% of cases. The lengthy delays may deter people from making access to document requests. The Ombudsman found these delays to be systemic and constitute maladministration.

 

The European Parliament later approved a resolution on the issue, where it

 

Stresses that, if the Commission does not address the systematic and significant delays in its processing of requests for public access to documents by the time the new College of Commissioners is established, Parliament will consider using all available parliamentary instruments to address the matter; recalls that Parliament has the right to bring action against the Commission before the Court of Justice of the EU on the grounds of infringement of the Treaties, including Article 15(3) TFEU on the right of EU citizens and residents to access documents;

 

But political accountability seldom reaches very far in the EU, and the Commission is well aware of this. But being an unelected body with very weak direct accountability to the voters, participatory democracy is by and large the only mechanism for the general public to hold the Commission accountable. Any effort from the Commission to frustrate that channel should simply not be tolerated.

 

When the new Commission took office, it not only cut further on its transparency practices, but also formalised them in its Rules of Procedure. Its new internal rules allow destroying documents, create new general presumptions of secrecy with nearly unlimited temporal scope also for all ‘opinions of the Legal Service’ irrespective of whether they are given in a legislative or non-legislative context. Under the Turco jurisprudence, legal advice in legislative matters benefits from the presumption of full disclosure.

 

The new rules make it explicit that the Commission does not apply the Court’s case law relating to legislative transparency to its own documents[PS5] [PL6] . The ‘documents directly accessible to the public’ are limited to ‘legislative proposals as of their adoption’, ‘accompanied by the impact assessment and the Regulatory Scrutiny Board opinion’, thus excluding all preparatory documents preceding the formal approval of the proposal. This formulation ignores the Grand Chamber ruling in case C-57/16 P, where the Court identifies the Commission as a ‘key player in the legislative process’ and underlines the importance of timely disclosure of legislative preparatory work in the Commission, given its importance for how legislative proposals are formulated.

 

The debate around the recent Pfizergate ruling has brought some of these problems to the surface. It concerned the reluctance of the Commission to identify and disclose the text messages concerning the EU vaccine purchases between the Commission President and Pfizer CEO Albert Bourla. The Court rejected the Commission arguments, underlining that formal registration of a document is not a precondition for public access, and that the institutions must maintain and preserve documentation concerning their activities.

 

Under existing case law, citizens are advised to trust the institutions:

 

where an institution states that a document does not exist in the context of an application for access, the non-existence of that document is presumed, in accordance with the presumption of veracity attaching to that statement.

 

In Pfizergate, the applicant, New York Times, could verify based on interview transcripts that the requested documents had at least existed. The Court accepted this as evidence that could be used for rebutting the presumption of veracity. But fairly often such evidence is difficult to come by. Moreover, how do you trust an Institution that openly disregards legal obligations relating to citizens’ rights?

 

Before the Court, the Pfizergate facts had already been referred to the European Ombudsman whose findings the Commission ignored. And when losing the case in Court, the Commission press release indicates the intention of engaging in malicious compliance - doing the absolute minimum required without devoting any effort to thinking what it could actually do better. The Commission Press Release was quick to note that the ruling did “not put into question the Commission's registration policy regarding access to documents” but only required it to provide a “better explanation”. Since then, it has indicated that it has no “specific timeline" for replying to the Times. Therefore, the question is not just about some text messages that went missing, but about how the the Commission’s non-engagement policy also corrupts access to remedies.

 

In part 2, I share a true story to illustrate the anatomy of an ATD request with the Commission.