No public interest in whether the EU-Turkey refugee deal respects EU Treaties and international human rights?

By Päivi Leino and Daniel Wyatt

Introduction

The EU Treaty commits the Union to respect international human rights in both its internal and external action, and to always act as openly as possible. Despite this, the transparency of the EU institutions remains a hot-button issue, including in relation to the consummation of international agreements (or other international arrangements) that have potential human rights implications. This very issue was on display in the recent judgment of the General Court in Case T-851/16 Access Info Europe v Commission. Here, Access Info Europe, an NGO concerned about the 2016 compatibility of the EU-Turkey refugee deal with international human rights law, sought, through an access to documents request made to the Commission, to uncover the institution’s own legal analysis regarding the agreement’s legality.

The matter was no less urgent because of the General Court’s recent order in Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council, which established that the deal does not count as measure adopted by one of the institutions of the EU for the purposes of judicial review under the Treaties. This leaves the matter in a legal limbo especially considering that the EU is not party to the European Convention of Human Rights and thus not subject to its external human rights scrutiny, a path effectively closed by the CJEU itself. To our knowledge, the EU Fundamental Rights Agency, the EU body that was established to provide expertise on fundamental rights, had not been consulted on the matter. It would be a clear concern to the public to uncover, if this indeed was the case, that an international arrangement that dealt with areas of fundamental importance, for example considerations of whether Turkey was a ‘safe third country’ for the purposes of the refugee regime, was concluded on the basis of hasty and incomplete legal advice—or, in the worst case, that advice that deemed the agreement illegal was ignored. It is hard to envisage a matter in which public access rules would be serving their constitutional function better.

In this case, the Court engaged in an extensive analysis of the application of three of the exceptions to document disclosure found in Regulation 1049/2001 on public access to documents (‘the Transparency Regulation’), ultimately siding almost entirely with the Commission’s continuing desire for secrecy. For those wishing to see a move in the direction of greater institutional transparency, therefore, the judgment of the General Court does not inspire much hope. However, the implications of the case reach beyond the strict interpretation of the Transparency Regulation to questions concerning the manner in which the EU reaches international arrangements and their compatibility with fundamental rights. Since the applicant argued that the exceptions applied by the Commission were not applicable to the requested documents, the Court ordered their production and examined them. While the documents were not communicated to the applicant, their key contents are described in the ruling, thus providing insights into what kind of legal analysis was conducted prior to concluding the arrangement.

Background and Facts of the Case

In response to the worsening Syrian conflict, the EU and Turkey agreed on 15 October 2015 to formalise the EU-Turkey Joint Action Plan (‘Joint Action Plan’). The purpose of the Joint Action Plan was to signify the strengthening of cooperation between the EU and the Republic of Turkey regarding the support of Syrian nationals under temporary protection and for handling migration management issues stemming from the Syrian crisis more generally.

A statement was then released on 8 March 2016 by the Heads of State or Government of the Member States of the EU following a meeting with the Turkish Prime Minister on 7 March 2016 regarding progress made in implementing the Joint Action Plan. At this meeting, the parties, arguing that ‘bold moves were needed’ with respect to irregular migration, reached a pre-agreement of sorts regarding the effective ramping up of cooperation in the area of the Joint Action Plan. For example, the parties agreed in principle to return all migrants crossing from Turkey to the Greek Islands back to Turkey and that for every Syrian being returned to Turkey, another Syrian will be resettled from Turkey to the EU. A final agreement on increased efforts was reached on 18 March 2016—a request for documents made by Access Info concerning this later meeting forms the basis of the related case, Case T-852/16 Access Info Europe v Commission—which has been subject to wide and intense criticism concerning its legality vis-à-vis international human rights law.

On 17 March 2016, Access Info Europe (‘the applicant’) made a request to the Commission pursuant to the Transparency Regulation for documents relating to the meeting of 7 March 2016. More specifically, the applicant requested access 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’. Eight documents were subsequently identified that fell within the applicant’s request (‘the relevant documents’): one joint note between the Commission’s Legal Service (‘Legal Service’) and DG Home addressed to Commission President Juncker and seven emails or email exchanges between the Legal Service and DG Home (and occasionally others) on various topics. The Commission denied access to all of them—except for partial access to an email exchange—relying on a number of exceptions to disclosure contained within the Transparency Regulation. The Commission argued that release of the documents would undermine the public interest as regards international relations (Article 4(1)(a) third indent), the protection of court proceedings and legal advice (Article 4(2) second indent).

Judgment of the General Court

 The Court’s treatment of these three exception grounds will be dealt with in turn.

The Court held that the Commission was correct in applying the international relations exception to five out of the eight relevant documents on the basis that their release would have the potential to seriously undermine the relationship between the EU and Turkey as it relates to the highly sensitive issue of the management of the Syrian migration crisis. These documents included inter alia a joint note that contained in essence the political objectives of the EU in tackling the migration crisis and an email that contained the initial legal reasoning of how to implement the return and resettlement objective mentioned above. It was clear to the Court that the disclosure of documents such as these could undermine the public interest as regards international relations.

On the other hand, the Court held that the Commission made a manifest error of assessment in relation the three of the eight documents, including a document that considered the question of whether Greece could ‘apply the inadmissibility procedure before carrying out the Dublin procedure’. While these documents dealt with matters that related generally to EU-Turkey relations, in the Court’s view they did not in and of themselves possess the link relevant to bring them within the exception (paras 38-59).

The Court held with respect to the court proceedings exception—interpreting previous case law—that it is not confined to pleadings and various other internal documents exchanged with respect to pending proceedings (para 68). Rather, what is important is that the heart of the exception is protected, namely the principle of equality of arms and the sound administration of justice (paras 70-72). The Court ultimately held, somewhat surprisingly, that all relevant documents fell within the exception.

While not specifically drawn up in respect of pending court proceedings, on the date of denying access, three sets of court proceedings were pending which related specifically to the legality of the EU-Turkey arrangement, and the Commission had already lodged applications for leave to intervene in all three (para 76). For these reasons, disclosure of the relevant documents would have disturbed the equality of arms between the parties by affecting the Commission’s potential position as intervener (para 78).

Finally, the Court held that all documents were covered by the legal advice exception, confirming, contrary to the applicant’s arguments, that the relevant documents were not legal advice concerning a legislative act. Rather, the Court accepted that they were merely interdepartmental consultations that did ‘not constitute legal advice definitively fixing the institution’s position’ and that they ‘were sought at short notice’, for the purpose of assisting Commission representatives in their meetings with the representatives of Greece and Turkey on the measures to be adopted as part of the implementation of the commitments undertaken in the EU-Turkey statements of 8 and 18 March 2016 (para 92). The Court then went on to say that ‘the disclosure of such legal advice, which was preparatory and internal and drawn up for the purpose of political dialogue between the institution and representatives of a Member State and a third state would have actually undermined, in a foreseeable manner, the Commission’s interest in seeking and receiving frank, objective and comprehensive advice from its various department in order to prepare its final position as an institution, in an area of certain high political sensitivity, and in a context of urgency in order to address a delicate migration situation’ (para 93).

What appeared to be decisive for the Court was the political sensitivity of the matter and the particular urgency required with respect to these documents. The Court strongly emphasised that many of the documents were drafted in haste at the last minute and sent at late hours (paras 92-94). What clearly also factored into the Court’s decision was the fact that there was consistent ongoing liaison between the Commission and the Member States regarding the implementation of the relevant EU-Turkey measures (para 85).

Finally, the Court held, with respect to both the court proceeding and legal advice exceptions, that there was no overriding public interest in disclosure (paras 97-113). This final point merits particular attention.

What happened to the Transparency Regulation’s public interest test?

There are a number of key takeaways from the case, not least amongst which is the continuation of the recent trend of the Court in siding with institutional opacity. Such opacity should be particularly worrying in a case that concerns the relocation and fundamental rights of potentially millions of people escaping an ongoing and terrible conflict. It is hard to think of a matter more deserving of maximal transparency. It remains to be seen whether Access Info Europe will appeal the case (as well as its sister case, Case T-852/16 Access Info Europe v Commission) to the Court of Justice. Those wishing to see a move towards a more transparent European Union should perhaps still reserve their judgment, but, as explored, reasons for pessimism nevertheless loom large.

Secondly, the case provides a surprisingly detailed analysis of each of the relevant documents. While improving our understanding of the level of analysis taken prior to the adoption of the deal, the case does not, however, add much to our general understanding of the application of the exception as such.

Thirdly, the logic of the court in interpreting the court proceedings and legal advice exceptions should be questioned. The link drawn by the Court in its analysis of whether the documents would be caught by the court proceedings exception is quite tenuous. The documents at issue were drawn up by the Legal Service not in connection with any pending cases and the Commission had only applied for leave to intervene, an application that was ultimately not granted because the cases were settled by way of orders, thus logically implying that if the court proceedings exception ever applied, it has by now ceased to do so. Under the Transparency Regulation, exceptions only apply ‘for the period during which protection is justified on the basis of the content of the document’.

However, it is the Court’s interpretation of the legal advice exception that is of particular note. The Court held that the documents relate neither to a legislative act for the purposes of broad legislative transparency under Article 15(2) TFEU nor to an international agreement and, therefore, the Turco and in ’t Veld jurisprudence is inapplicable. In the latter case, the General Court itself stressed how the principle of the transparency of EU decision-making process ‘cannot be ruled out in international affairs’ (para 89), in this context with regard to an international agreement which may have an impact on an area of the EU’s legislative activity. This was upheld by the CJEU on appeal.

Against this background, this artificial distinction between legislative and non-legislative acts is wholly unsatisfying in the circumstances given that the EU-Turkey arrangement was later translated into amendments of various EU acts, including the Proposal for a Qualification Regulation. The latter, for example, includes many provisions that relate to some of the key elements of international human rights law such as the non-refoulement principle, defined in such documents as an absolute prohibition. It is perhaps safest to assume that the peculiarities of the facts of the case—particularly the sensitive nature of migration stemming from the Syrian conflict and the urgency with which the issues needed to be dealt—dictated the Court’s conclusions. Nevertheless, the judgment presents a confusing and unfortunate interpretation of the Transparency Regulation in categorically denying the existence of a public interest in disclosure, which could be deemed to exist specifically because the matter was high on the political agenda. Acknowledging the existence of such a public interest would not automatically lead to full transparency, since the Regulation still allows for balancing this interest with possible harm from disclosure, which in a politically sensitive situation can be high. The Transparency Regulation’s objective is not to disclose everything, but to maintain a balance that is necessary in democratic society. In the ruling, the Court made a specific point of stressing that the Commission had regularly disseminated general information about the matter publicly (para 112). This however misses the point: public access is not about the institutions’ communication policy but about the right of citizens and civil society to call to account and request and debate information that is relevant for policy choices.

Finally, the case reveals the burden placed on applicants requesting documents from the institutions. The Court’s conclusion in this regard is laconic: ‘in the light of the arguments put forward by the applicant, it must be held that the applicant has failed to establish how the principle of transparency was especially pressing in the present case to the point of justifying […] the disclosure of the documents at issue’ (para 112). It is in practice effectively impossible to argue for the existence of an overriding public interest for the purposes of justifying disclosure when the contents of the documents are not known. Applicants have previously failed to do so in relation to environmental matters (LPN, ClientEarth, Association Justice & Environment), the use of public funds (Dennekamp), the protection of public health (Spirlea) and constitutional issues (Besselink). Now we learn that the application of hard core fundamental rights is no different. In practice, this Court jurisprudence turns the concept of overriding public interest and the subsequent public interest test established by the Transparency Regulation into a ghost concept with no practical relevance.

At the same time, the case also revealed something we would not have wished to learn: that the refugee deal was made based on extremely limited and hasty legal analysis, the substance of which was not and has not been made public. The implications of this for the substance of the legal advice is clear: if the analysis confirmed that the agreement was legally sound, then the Commission would have had no problem in allowing its disclosure, however its being kept in the dark all but confirms the suspicions regarding its contents. While this is something we already knew, it demonstrates the difficulty of running a Union in a manner consistent with its values, such as respect for fundamental rights. When things get rough, other matters tend to take priority. We refuse to believe that settling this balance is a matter of no significant public interest.

Disclaimer: Päivi Leino acts as the Chair of the International Advisory Board of Access Info Europe. She has not been involved in the case (but is very proud of the outcome).

 

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