Judgments nº T-31/18 of Tribunal General de la Unión Europea, November 27, 2019

Resolution DateNovember 27, 2019
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-31/18

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a naval operation carried out by Frontex in the central Mediterranean in 2017 - Vessels deployed - Refusal of access - Article 4(1)(a) of Regulation No 1049/2001 - Exception relating to the protection of the public interest in the field of public security)

In Case T-31/18,

Luisa Izuzquiza, residing in Madrid (Spain),

Arne Semsrott, residing in Berlin (Germany),

represented by S. Hilbrans, R. Callsen, lawyers, and J. Pobjoy, Barrister,

applicants,

v

European Border and Coast Guard Agency (Frontex), represented by H. Caniard and T. Knäbe, acting as Agents, and by B. Wägenbaur and J. Currall, lawyers,

defendant,

ACTION under Article 263 TFEU for annulment of Frontex Decision CGO/LAU/18911c/2017 of 10 November 2017 refusing access to documents containing information on the name, flag and type of each vessel deployed by Frontex in the central Mediterranean under Joint Operation Triton between 1 June and 30 August 2017,

THE GENERAL COURT (First Chamber),

composed of P. Nihoul, acting as President, J. Svenningsen and U. Öberg (Rapporteur), judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 2 July 2019,

gives the following

Judgment

Background to the dispute

1 The European Border and Coast Guard Agency (Frontex) (‘the Agency’) was created in 2004 and is currently governed by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251 p. 1).

2 In accordance with Article 1 of Regulation 2016/1624, the European Border and Coast Guard, consisting of, according to Article 3 of that regulation, Frontex and the national authorities of Member States responsible for border management, aims to ensure European integrated border management at the external borders, which ‘includes addressing migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension, to ensure a high level of internal security within the Union in full respect for fundamental rights, while safeguarding the free movement of persons within it’.

3 Frontex assists the border management and coast guard agencies of the Member States, notably by coordinating the latter through ‘joint operations’ conducted with a host Member State and other Member States. The rules of engagement, resources, personnel, equipment and infrastructure used by participants are set out in the operation plan specific to each operation.

4 Frontex launched Operation Triton at the beginning of November 2014, after receiving an additional budget allocation from the European Commission.

5 Operation Triton was aimed at improving border surveillance and control through joint patrols and using the assets provided by the Member States. Its operational area covered the territorial waters of Italy and Malta, as well the search and rescue zones of both those Member States, up to 138 nautical miles south of Sicily.

6 Operation Triton 2017 started on 1 January 2017 and ended on 31 January 2018.

7 Under Article 74(1) of Regulation 2016/1624, ‘[Frontex] shall be subject to 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)] when handling applications for access to documents held by it’.

8 Article 8(3) of Regulation 2016/1624 provides the following:

‘The Agency shall engage in communication activities on its own initiative on matters falling within its mandate. It shall provide the public with accurate and comprehensive information about its activities.

Communication activities shall not be detrimental to the tasks referred to in paragraph 1, in particular by revealing operational information which, if made public, would jeopardise attainment of the objective of operations. Communication activities shall be carried out without prejudice to Article 50 and in accordance with relevant communication and dissemination plans adopted by the management board.’

9 Article 74(2) of Regulation 2016/1624 lays down the following:

‘[Frontex] shall communicate on matters falling within the scope of its tasks on its own initiative. It shall make public relevant information including [an] annual activity report … and ensure … in particular that the public and any interested party are rapidly given objective, comprehensive, reliable and easily understandable information with regard to its work. It shall do so without revealing operational information which, if made public, would jeopardise attainment of the objective of operations.’

10 By email of 1 September 2017, the applicants, Ms Luisa Izuzquiza and Mr Arne Semsrott, under Article 6(1) 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), submitted a request to Frontex for access to documents containing information on the name, type and flag of every vessel which it had deployed between 1 June and 30 August 2017 in the central Mediterranean under Joint Operation Triton.

11 By letter of 8 September 2017, sent to the applicants on the same day, Frontex refused access to the requested documents on the basis of the exception provided for in the first indent of Article 4(1)(a) of Regulation No 1049/2001 relating to the protection of the public interest in the field of public security.

12 In that letter, Frontex stated:

‘The information contained in the requested document would [make it possible], combining it with information publicly available such as on www.marinetraffic.com, to become aware of the current position of the patrolling vessels.

In possession of this information, criminal networks involved in migrant smuggling and trafficking of human beings would be aware of patrolling areas and patrolling schedules of the law enforcement vessels. This will allow these criminal networks to adapt their modus operandi accordingly in order to circumvent border surveillance and consequently cross the external border and access, irregularly, the territory of an EU Member State.

Border surveillance [is aimed] at combating illegal immigration and trafficking in human beings, and [preventing] any threat to the Member States’ internal and public security.’

13 By email of 29 September 2017, the applicants made a confirmatory application under Article 7(2) of Regulation No 1049/2001.

14 In their confirmatory application, the applicants claimed, first, that the name, flag and type of each vessel involved in Operation Sophia of the EEAS (European External Action Service) were proactively published online and actively publicised, secondly, that the name, flag and type of each vessel involved in Operation Triton 2016 were then available online and, thirdly, that on 12 September 2017 Frontex had proactively published on Twitter part of the information requested.

15 By email of 17 October 2017, Frontex requested a deadline extension of 15 working days on the basis of Article 8(2) of Regulation No 1049/2001.

16 By Decision CGO/LAU/18911c/2017 of 10 November 2017 (‘the contested decision’), Frontex confirmed the refusal to divulge the documents requested on the ground that the disclosure of ‘details related to technical equipment deployed in the current and ongoing operations would undermine public security’.

17 In the contested decision, Frontex restated the following:

- ‘... based on the information contained in the requested documents, it might be possible, combining it with information publicly available on certain maritime websites/tools, to become aware of the current position of the patrolling vessels’,

- ‘in possession of this information, criminal networks involved in migrant smuggling and trafficking of human beings would be aware of patrolling areas and patrolling schedules of the law enforcement vessels. This will allow these criminal networks to adapt their modus operandi accordingly in order to circumvent border surveillance and consequently cross the external border and access, irregularly, the territory of an EU Member State’.

Procedure and forms of order sought

18 By application lodged at the Registry of the General Court on 20 January 2018, the applicants brought the present action.

19 On 27 March 2018, Frontex lodged the defence.

20 On 30 May 2018, the applicants lodged the reply.

21 On 20 July 2018 the Frontex lodged the rejoinder.

22 On 1 October 2018, Frontex lodged an application for the case to be heard in camera in accordance with Article 109(2) of the Rules of Procedure of the General Court. On 24 October 2018, the applicants lodged their observations on the application for the case to be heard in camera.

23 By decision of 30 April 2019, the Court dismissed the application for the case to be heard in camera.

24 On a proposal from the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, requested the parties to reply to certain written questions. They replied to the questions within the period prescribed.

25 By way of a measure of inquiry under Article 91(c) of the Rules of Procedure, the Court ordered Frontex to...

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