‘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.

 

Return hubs – innovative lawmaking or a dangerous legal experiment?

 

 

By Jonas Bornemann, Assistant Professor of European Law at Rijksuniversiteit Groningen and re:constitution fellow 2024/2025 and Isabela Brockmann, Research intern at the Department of European and Economic Law, Rijksuniversiteit Groningen.

 

Photo credit: Konstantin von Wedelstaedt, via Wikimedia commons

 

1.     Legislative creativity: thinking outside the (legal) box?

 

In lawmaking, creativity is an asset. The ability to devise innovative solutions can break deadlock and help align previously irreconcilable positions. But even the most innovative idea must stay within the limits of legality. This is particularly true for sensitive areas like migration law, where ‘out-of-the-box’ thinking has recently become fashionable among political leaders in Europe to signal their determination to pursue a more restrictive migration policy.

 

The most recent illustration of such an out-of-the-box mentality figured in the Commission’s reform of the Return Directive. Among the changes proposed, the Commission seeks to introduce an option for Member States to create so-called return hubs – centres established in third states to facilitate the return of persons who are not or no longer authorised to stay in the territory of EU Member States. The term ‘return’ is used here, following the terminology used by the Commission, although it should be borne in mind that persons send to return hubs are usually expelled to places they have never been to before. Speaking of ‘return’ in such a context may therefore already be a euphemism. Be that as it may, the Commission’s proposal has been presented and hailed as an innovative way to increase the effectiveness of returns, offering an avenue of deporting persons from the territory of EU Member States who cannot, for practical or legal reasons, be returned to their country of origin. However, the fate of this innovative instrument is far from certain. Even if it would ultimately be accepted by the co-legislatures, several important aspects regarding the implementation of the proposed policy remain unclear. This blog post discusses the potential limits in EU primary law that circumscribe the way that return hubs can be established and run, and proposes refinements to the legal design of the currently discussed reform of the Return Regulation.

 

The post will do so by, first, placing the idea of return hubs in the broader scheme of initiatives that seek to offshore migration administration (2.). It will subsequently present the legal basis for the establishment of return hubs as proposed by the Commission (3.), before zooming in on the options regarding the practical implementation of these hubs by the Member States. Specifically, it will discuss possible limits to the geographical location of these hubs (4.), the risk of systematised detention (5.) and the paramount importance of an effective remedy (6.). It concludes by drawing attention to aspects that should be addressed during the legislative process, to circumscribe, with greater clarity, the mandate of Member States to establish and use return hubs (7.).

2. Return hubs – a piece in the puzzle of offshoring migration administration

 

The idea of return hubs is closely linked to related attempts of offshoring migration administration. The Rwanda scheme, for instance, attempted to outsource asylum examinations through the adoption of a bilateral agreement between Rwanda and the UK that would have enabled the latter to send asylum-seekers to Rwanda to have their claims processed by Rwandan officials. However, following successful legal challenges before the UK Supreme Court and a new government which subsequently repealed the Safety of Rwanda Act, the Rwanda scheme was  abandoned and now largely serves as a cautionary tale for efforts to externalise migration administration. The (voluntary) return of four asylum-seekers pales in contrast to the extreme financial costs of the scheme, estimated to amount to £700m. Costs included upfront payments to Rwanda, asylum processing and operational costs and funding for an integration package covering five years if the individual decided to stay. The results, however, remained extremely meagre.

 

More recently, the Italy-Albania deal followed a similar but not identical template. The deal took the format of a protocol concluded between the two states to allow for the transfer of asylum seekers to Albanian asylum facilities. This measure applied exclusively to persons intercepted in international waters, and would have allowed Italian authorities to process claims under Italian law, although physical access to Italian territory is prevented. After transfer to these newly established facilities had been halted by Italian courts, and legal challenges are currently pending before the Court of Justice, the government decided to ‘reactivate’ the now moot asylum facilities, turning them into so-called ‘repatriation hubs’. A similar initiative was announced by the British Prime Minister during his visit in Albania: the UK would establish ‘return hubs’ in Albania to facilitate return of persons whose asylum application had been rejected.

 

All this suggests that there is a functional connection between the attempts to offshore asylum processing and the emergence of ‘return hubs’, even though the categories of persons targeted by these initiatives differ. Return hubs have no role to play in the context of asylum processing, but rather during the return of third country nationals that are not or no longer authorised to stay in the territory of the Member States. This may relate to third country nationals who are not or no longer allowed to stay and cannot be returned to their state of origin. Return hubs could therefore equally be used to return persons whose application for international protection had been rejected. With a view to this group of persons, however, it should be borne in mind that the Commission’s recently proposed changes to the Asylum Procedures Regulation could give rise to situations where the third state in which a return hub is established will be designated as ‘safe third county’ and that would-be beneficiaries of protection would be returned to that third state without their case being assessed on the merits in the EU.

 

3.     Return hubs as a Member State project

 

Despite the fact that several Member States are currently considering the use of return hubs, and the Commission’s proposal would adjust the legal framework in EU law accordingly, the design – both in law and fact – of these hubs remains far from clear. The Commission’s proposal indicates that persons may be returned to a third country with which an agreement has been concluded, thereby effectively creating a legal basis in EU law for such agreements (see here at 6). However, the proposal only vaguely predetermines the elements that such an agreement should satisfy, thereby backloading potential legal problems to Member States’ implementation of return hubs.

 

First of all, the proposal suggests that return hubs may be established on the basis of either an ‘agreement or arrangement’. The reference to ‘arrangements’ may be read as permitting Member States to resort to forms of cooperation other than formal international agreements. This wording may be inspired by the blueprint of the original UK-Rwanda deal, which took the form of an informal Memorandum of Understanding rather than an international agreement and was termed an ‘asylum partnership arrangement’. Informal arrangements, however, would likely fall short of the requirements outlined by the Commission’s proposal, specifically the obligation to ensure that the third state would be ready to accept the returnee (on this point, see here at 17). While an informal agreement may, in principle, likewise practically ensure that the third state accepts entry of returnees (here at 148), it is characterised by weaker normativity than formal international agreements and appears less suitable to ensure the willingness of third states to accept entry of returnees or ensure respect for safeguards of migrant protection. The importance of formal rules is acknowledged not just by the UNHCR (here, point 3. v), but likewise by the EU legislature, as Art. 59 (7) of the Asylum Procedures Regulation, seems to rest on the view that a formal international agreement adopted under the procedure of Article 218 TFEU would ensure full respect of the principle of non-refoulement.

 

The Commission’s proposal spells out several requirements that the international agreement adopted with third states should satisfy. An agreement establishing return hubs would have to outline the procedure for transfer, the conditions of stay in the third state, including the responsibilities of the Member State and third state respectively, modalities of onward return and the consequences if onward return would not be possible. In addition, the Commission’s proposal clarifies that unaccompanied minors and families with minors shall not be returned to a return hub and insists, moreover, that the agreement would include an independent monitoring mechanism to verify the effective application of the agreement. Last, the agreement must make provision for cases in which the arrangement would be violated or a significant change had occurred that would adversely impact the situation of the third country.

 

While the Commission’s proposal therefore lists certain elements that agreements establishing return hubs should satisfy, it is safe to say that the Commission wishes to ensure that the establishment of return hubs is a Member State project. For EU lawmakers, the choice for national solutions may seem preferable for several reasons: first, it accepts a level of diversity, to the effect that Member States remain free to decide whether they wish to include return hubs as an element of their return efforts. In addition, a legal design that simply requires agreements to respect essential safeguards, such as respect for international law and human rights, may be viewed as a means to keep one's hands clean. Any violation of these safeguards would be attributable to Member State authorities rather than EU institutions. In this sense, the Commission can present its proposal as conforming with standards of EU and international law, whilst leaving the implementation of return hubs, and associated legal challenges, to national authorities.

 

 

4.     Does EU law accept arbitrary geographical choices?

 

The establishment of return hubs is legally operationalised through a broadening of the concept of the ‘country of return’. Pursuant to Article 4 (3) of the Commission proposal, a country of return includes not only the country of origin or transit of a third country national, but has been extended to any third state willing to host a return hub and has entered into an agreement to that end with one or several Member States. Leaving the issue of political feasibility at the side, this raises the question whether Member States’ choice for the location of return hubs would be subject to any standards of legality, or whether this would essentially allow national governments to make an entirely arbitrary geographical choice. Are Member States allowed to return persons to hubs in third states that are extremely remote from both the EU and the country to which the person should ultimately be returned?

 

Current legal standards limiting the geographic stretch of the deportation of asylum-seekers may not be applied by analogy when it comes to the return of third country nationals who are no longer authorised to legally stay in the EU Member States. Indeed, the ‘connection criterion’, a safeguard against arbitrary deportation which has aptly been referred to as the ‘anti-Rwanda’ rule, stipulates that asylum seekers may only be deported to a safe third state to which (s)he has a connection ‘on the basis of which it would be reasonable for him or her to go to that country’ (Article 59 (5) Asylum Procedures Regulation). While such a criterion may not be mandatory under international law and the Commission has recently proposed to allow Member States to derogate from it, one of the innovative aspects of the Commission’s proposal concerns the fact that this safeguard does not apply mutatis mutandis to persons who are not or no longer asylum seekers. More generally, the connection criterion does not apply outside refugee law, and is therefore a ground that cannot be relied upon to limit a Member State’s geographical choice for setting up return hubs.

 

In the absence of a legal standard such as the connection criterion, Member States appear, in principle, to be free to return third country nationals to hubs located in states to which the individual has no personal link whatsoever. However, it is not unreasonable to argue that this principled freedom should be limited by general principles of EU law, specifically the principle of proportionality. While the proposed Return Regulation would leave significant room for maneuver to Member States, it would nonetheless create a legal framework governing the use of return hubs, to the effect that Member States would act within the scope of EU law (for a discussion of the case law, see here at 141). If this is a correct reading of the proposed Regulation, return to a return hub in a region far removed from the country of origin of the person and to which that person has no connection may be viewed as violating this principle. While the principle of proportionality would not preclude Member States from establishing return hubs in third states, it may limit their geographical choice, nonetheless. As UNHCR rightly points out, return hubs would only further the effective return of a person if such hubs are geographically located in places from which individuals may actually be able to travel onwards, either by virtue of visa-free or other forms of mobility regimes. If this would not be the case, return hubs might not be suitable to attain the objective of effective return.

 

5.     Conditions in return hubs – towards systematised detention?

 

The Commission’s proposal suggests that an international agreement setting up return hubs must clarify the conditions of stay in the third state. However, it remains silent about the nature of these conditions. This has given rise to criticism by NGOs and scholars (see here, here, here as well as here, here and here), suggesting that return hubs may incentivise practices of arbitrary detention. On the one hand, it is not inconceivable to argue that an international agreement may allow third country nationals deported to a return hub in a third country to move freely in that country. However, existing practices suggest that cooperation with third states will most likely take the form of restricted mobility or ‘semi-carceral spaces’ (for this apt description, here at 34). This raises questions regarding the respect for fundamental rights in return hubs, specifically the right to liberty. Depending on the length and nature of stay, mobility restrictions in return hubs in third states may amount to detention. If it is presumed that return hubs will not magically resolve the obstacles of onward return to countries of origin, it is entirely reasonable to presume that these hubs will frequently amount to a restriction of liberty which would coincide with significant habeas corpus safeguards, particularly also the obligation to provide for periodic review of detention and to respect maximum detention periods.

 

The presumption that return hubs will frequently be designed as closed facilities follows from political preferences rather than legal necessity. Governments willing to host return hubs might accept that returnees are staying short-term before they are returned to their country of origin, but they might be much less enthusiastic about the prospect of returnees establishing themselves more permanently in that country. There is no obligation for Member States to ensure that third country nationals would remain at or in the proximity of return hubs. While Member State authorities (or the European Border and Coast Guard, as the case may be) may remain responsible for bringing the return of a third country national to her country of origin to a successful end (see here, point 14), there is no provision in EU law that would require Member States to limit the mobility of third country nationals in the country in which the return hub is located. Rather, with a view to persons who cannot be returned in the short- or medium-term to their country of origin, UNHCR advocates for arrangements that minimise restrictions to movement, and that allow for pathways to self-sufficiency in the host third country.

 

6.     Could return hubs increase the effectiveness of the EU’s return policy?

 

The creation of return hubs is driven by the ambition to increase the effectiveness of return. Although the Commission’s proposal does not explain how the establishment of such hubs would help attain this objective, there seems to be an implicit assumption that a person who is returned to a country in which (s)he does not like to reside would be more easily convinced to return. This assumption is problematic, not just because of the lack of empirical data supporting it. Such a conclusion equally fails to acknowledge the variety of reasons why persons leave their country of origin, and ignores the fact that return is often hampered by lack of cooperation on the side of the third state, not the individual.

 

In addition to these factual uncertainties, the political objective of increasing the effectiveness may be criticised for being based on fair-weather presumptions. It presupposes that Member States would be able to ensure that returnees will not be exposed to inhuman or degrading treatment in the third state to which they have been transported. On the one hand, it can surely be welcomed that the Commission’s proposal explicitly reminds Member States of this obligation, requiring them to respect “international human rights standards and principles (…) including the principle of non-refoulement” (Article 17 (1) of the Commission proposal). On the other hand, NGOs, scholars and curiously, in a 2018 working paper, even the Commission itself, had warned against the significant risks of refoulement associated with the establishment of return hubs. For example, a third country may be declared prima facie safe, however, this may still fail to account for intolerance towards certain groups, such as LGBTQ+ individuals or religious minorities. A de facto risk of violating non-refoulement therefore remains.

 

In this context, it is crucial that individuals have the possibility to challenge their deportation to a return hub. National courts may find deportations to return hubs to be unlawful if this would amount to a violation of migrants’ fundamental rights. One of the key questions for the future of the idea of establishing return hubs will therefore revolve around the availability and nature of judicial redress. While the Commission’s proposal clarifies that individuals would benefit from a right to an effective remedy with a possibility of suspensive effect, a document drafted by the Council Presidency before the publication of the Commission’s proposal indicated that ‘the prevailing position’ in the Council was that ‘judicial scrutiny [...] could put the implementation of this innovative solution at risk’ and should therefore be precluded. This proposition is highly problematic, as it seems to be at odds with EU primary law, specifically the right to an effective remedy, proposing to sacrifice this crucial constitutional safeguard in the name of innovative lawmaking, thereby exacerbating the risk of refoulement that is inherent in the idea of offshoring return.

 

7.     The uncertain future of return hubs

 

Return hubs are one of the key innovations proposed by the Commission. Hopes may be high that this will enable Member States to increase the effectiveness of return policies, thus marking what is presented as a significant change in EU migration policy. As this blog post has argued, however, the fate of return hubs is far from certain. It is unclear whether the co-legislatures may be able to find common ground on this element of reform or whether the proposed legal basis for return hubs in EU law will be kept as it is, amended or abandoned altogether. Specifically, it should be worth critically reflecting on some of the underlying presumptions of this policy instrument: would it really persuade third country nationals to move back to their country of origin? And could Member States in practice enter into a cooperation with third states that ensures that courts will accept, in a significant number of cases, deportation?

 

Presuming there is a political majority for the idea of return hubs, based on the preceding analysis, the co-legislature may wish to consider some of the following aspects that may allow them to define, more clearly, the legal option of Member States to rely on these return hubs. First, the Return Regulation should clarify that such return hubs could only be established on the basis of formal international agreements. Second, return hubs would have to be established in a third state from which a person may, factually or legally, be able to move to her or his country of origin. Third, the EU legislature should oblige Member States to include, in their cooperation with third states, rules that clarify the legal position of third country nationals who cannot return to their country of origin. After a reasonable period of time, these individuals would have to be authorised to move freely within the territory of that third state, in order to avoid a practice of indefinite and systematic detention. Lastly, unlike views reportedly raised in the Council, ideas to drop or undermine the effectiveness of judicial review should be abolished. The right to an effective remedy is crucial in the context of deportation to a third state, and likewise a firmly enshrined constitutional guarantee. While judicial review may undermine the idea of effective return, this is surely a price worth paying. The fate and success of return hubs as an innovative policy instrument will depend on these safeguards. Should return hubs emerge as an innovative policy tool, its legal design needs to be waterproof.