Judgments nº T-851/16 of Tribunal General de la Unión Europea, February 07, 2018

• Resolution Date: February 07, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-851/16

(Access to documents - Regulation (EC) No 1049/2001 - EU-Turkey statements of 8 and 18 March 2016 - Implementation by the European Union or by the Member States of the measures concerned - Documents drawn up or received by the legal service of an institution - Legal advice - Analyses of the legality of the measures provided for in connection with the implementation of the EU-Turkey statement of 8 March 2016 - Refusal to grant access - Article 4(1)(a) of Regulation No 1049/2001 - Exception relating to the protection of the public interest in respect of international relations - Second indent of Article 4(2) of Regulation No 1049/2001 - Exception relating to the protection of court proceedings - Exception relating to the protection of legal advice)

In Case T-851/16,

Access Info Europe, established in Madrid (Spain), represented by O. Brouwer, E. Raedts and J. Wolfhagen, lawyers,

applicant,

v

European Commission, represented by A. Buchet and M. Konstantinidis, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2016) 6029 final of 19 September 2016 confirming the refusal to grant the applicant access to documents from the Commission’s Legal Service which purportedly concern the legality of the measures adopted by the European Union and its Member States in implementing the actions set out in the statement of the Heads of State or Government of the European Union of 8 March 2016, adopted following their meeting with the Turkish Prime Minister on 7 March 2016,

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 8 November 2017,

gives the following

Judgment

Background to the dispute

The EU-Turkey statements

1 On 15 October 2015, the Republic of Turkey and the European Union agreed on a joint action plan entitled ‘EU-Turkey joint action plan’ (‘the joint action plan’) designed to strengthen their cooperation in terms of supporting Syrian nationals enjoying temporary international protection and managing migration, in order to respond to the crisis created by the situation in Syria.

2 The joint action plan aimed to respond to the crisis situation in Syria in three ways, namely, first, by addressing the root causes leading to a mass exodus of Syrians, secondly, by providing support to Syrians enjoying temporary international protection and to their host communities in Turkey and, thirdly, by strengthening cooperation in the field of preventing illegal migration flows towards the European Union.

3 On 29 November 2015, the Heads of State or Government of the Member States of the European Union met with their Turkish counterpart. Following that meeting, they decided to activate the joint action plan and, in particular, to step up their active cooperation concerning migrants who were not in need of international protection, by preventing them from travelling to Turkey and the European Union, by ensuring the application of the established bilateral readmission provisions and by swiftly returning migrants who were not in need of international protection to their countries of origin.

4 On 8 March 2016, a statement by the Heads of State or Government of the European Union, published by the joint services of the European Council and the Council of the European Union, indicated that the Heads of State or Government of the European Union had met with the Turkish Prime Minister in regard to relations between the European Union and the Republic of Turkey and that progress had been made in the implementation of the joint action plan (‘the EU-Turkey statement of 8 March 2016’). That meeting had taken place on 7 March 2016.

5 On 18 March 2016, a statement was published on the Council’s website in the form of Press Release No 144/16, designed to give an account of the results of ‘the third meeting since November 2015 dedicated to deepening Turkey-EU relations as well as addressing the migration crisis’ between ‘the Members of the European Council’ and ‘their Turkish counterpart’ (‘the EU-Turkey statement of 18 March 2016’). According to that statement, all new irregular migrants crossing from Turkey to Greek islands as from 20 March 2016 will be returned to Turkey and, for every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the European Union taking into account the UN Vulnerability Criteria.

The requests for access to documents

The requests for access to the documents at issue in the present case

6 By email of 17 March 2016, the applicant, the Access Info Europe association, made a request pursuant to Article 6 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), to the European Commission’s Directorate-General (DG) for Migration and Home Affairs (‘DG Home’) for access to ‘all documents generated or received by the Commission containing the legal advice and/or analysis of the legality under EU and international law of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation, OJ [2014] L 134[, p. 3]’ (‘the first request for access’) and to ‘all documents generated or received by the Commission containing legal advice and/or analysis of the legality of the actions to be carried out by the [European Union] and its Member States in implementing the actions set out in the statement on the agreement reached with Turkey at the summit held on 7 March 2016 ... documents drawn up both before and since the meeting was held, to date’ (‘the second request for access’).

7 By decision of 3 June 2016 (‘the initial decision refusing access’), the Director-General of the Commission’s Legal Service (‘the Legal Service’) informed the applicant that in connection with the first request for access he had identified a document concerning the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation, which he nevertheless stated was a public document. In addition, in connection with the second request for access, he informed the applicant that he had identified eight sets of documents, consisting of notes and emails exchanged between the Legal Service and DG Home between 7 and 31 March 2016, to which the applicant was refused access (with regard to the latter documents, ‘the documents at issue’).

8 The reasons invoked in support of the refusal to grant access to the documents at issue were, first, an undermining of the protection of legal advice and court proceedings within the meaning of Article 4(2) of Regulation No 1049/2001 and, second, an undermining of the Commission’s internal decision-making process within the meaning of Article 4(3) of that regulation. Third, the protection of international relations within the meaning of Article 4(1)(a) of Regulation No 1049/2001 was relied on as justifying, in any event, the refusal to grant the applicant access.

9 By letter of 5 July 2016, the applicant submitted a confirmatory application under Article 7(2) of Regulation No 1049/2001, asking the Commission to reconsider its position.

10 By Decision C(2016) 6029 final of 19 September 2016 (‘the contested decision’), the Commission identified, in connection with the first request for access, a Legal Service document produced on 8 May 2012 as part of consultations, which it enclosed as an annex to that decision. As regards the second request for access, it essentially confirmed the initial decision refusing access and the reasons for that refusal as set out in the initial decision refusing access, except in respect of one document to which it granted partial access, enclosing as an annex a public version which omitted certain information and certain passages. Furthermore, the Commission stated that the part of the second request for access to documents concerning those in the possession of DG Home had been forwarded to that DG, which, by decision of 30 November 2016, granted the applicant access to three documents in its possession, but refused access to a fourth document, namely a letter from the UN High Commissioner for Refugees, relying on the exception provided for in Article 4(1) of Regulation No 1049/2001.

11 The documents at issue in the context of the second request for access are:

- a Legal Service and DG Home joint note of 7 March 2016 for the attention of the cabinet of Commission President Juncker on the question of the return of asylum seekers to Turkey, reference Ares(2016) 2453347 (‘the first document at issue’);

- an email of 9 March 2016, reference Ares(2016) 2453181, from the Legal Service to DG Home, various members of the Commission’s cabinets and the Secretariat-General, with two attachments, containing Legal Service comments in track changes (‘the second document at issue’);

- a series of emails of 10 March 2016, reference Ares(2016) 2443418, from the Legal Service to DG Home, the cabinet of the President and the Secretariat-General, with an attachment (‘the third document at issue’);

- an email of 16 March 2016, reference Ares(2016) 2447514, from the Legal Service to DG Home on the return of asylum seekers to Turkey (‘the fourth document at issue’);

- two email exchanges of 18 and 21 March 2016, reference Ares(2016) 2447359, from the Legal Service to DG Home on the question of the Greek Appeal Committees, to which the Commission nevertheless granted the applicant partial access (‘the fifth document at issue’);

- an email of 29 March 2016, reference Ares(2016) 2444871, from the Legal Service to DG Home, with an attachment (‘the sixth document at issue’);

- two emails of 28 and 29 March 2016, reference Ares(2016) 1901172, from the Legal...