30 March 2014
Frontex was set up in October 2004 by Council Regulation 2007/2004 (pdf) and its Management Board adopted a Decision on public access to documents on 21 September 2006 (pdf). The Frontex Regulation states that the agency should be subject to the EU Regulation 1049/2001 on public access to EU documents - however the Management Board Decision of 2006 simply ignored this and wrote its own rules on public access.
For example, the Management Board Decision on public access does not include any reference to Article 11 of Regulation 1049/2001 which would Frontex to provide a public register of the documents it holds and produces. As there was no reference in the Decision Frontex has never had a public register and has got away with it.
Faced with an own-initiative inquiry by the European Ombudsman, which incorporated complaints made by Statewatch, the agency has now promised to provide a register "in the mid-term" (whatever that means). Frontex appears to believe that, despite legal obligations that have been in place since the agency was set up in 2004, it will provide a public register in its own good time. On this issue and others raised here Frontex needs to be brought to public account.
On 22 October 2012 Statewatch submitted a complaint to the European Ombudsman against Frontex concerning its access to documents policy: Statewatch complaint (pdf). On 19 November 2012 the Ombudsman sent the complaint to Frontex: Ombudsman letter to Frontex (pdf). However, as the Ombudsman had already launched an own-initiative inquiry into Frontex in May 2012 the Ombudsman decided to close the Statewatch complaint but to include its substance in his inquiry: Closing Statewatch complaint: Frontex (pdf)
A further letter from the Ombudsman of 10 December 2012 stated that as Statewatch had agreed that its complaint be closed:
"you [Statewatch] would be informed of the Ombudsman's further steps in his own-initiative inquiries concerning Europol, Frontex and Eurojust and would be given the opportunity to submit observations on the replies received by the Ombudsman"
Ombudsman overall letter of 10.12.12 concerning his own inquiries and three Statewatch complaints (pdf).
The Ombudsman's own-initiative inquiry into Frontex began on 12 September 2012: Frontex: Visit and Annexes (pdf), which was followed on the Ombudsman's Report on Frontex (published 7 February 2013, pdf) and the Ombudsman's final Recommendations (pdf) of 26 September 2013 closing the case and giving Frontex until March 2014 to bring its Decision on access to documents into line with EU Regulation 1049/2001.
The substance of Statewatch's complaint against Frontex
1. Under Article 28 of Council Regulation 2007/2004 (pdf) of 26 October 2004 establishing Frontex, the agency is subject to Regulation 1049/2001 on public access to EU documents (pdf).
Article 28(1) states:
"Six months after the entry into force of this Regulation the Agency shall be subject to Regulation (EC) No 1049/2001 when handling applications for access to documents held by it."
Article 28(3) goes on to state that:
"The Management Board shall lay down the practical arrangements for the application of paragraphs 1 and 2."
Article 28(5) states that complaints against decisions to refuse access to documents could be lodged with the Ombudsman or action taken in the Court of Justice (as per Article 8 of Regulation 1049/2001).
2. On 21 September 2006 the Decision of the Frontex Management Board on public access to documents (pdf) was adopted:
"Laying down practical arrangement regarding public access to the documents of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)."
3. The Decision of the Management Board deviates from the provisions of Regulation 1049/2001 in the following respects:
i) In Recital 6 and Article 4 Frontex claims a status equivalent to that of a Member State, as if it has interests independent of the European Union (and the Member States) which set it up. Article 4 states that the decision to grant access to a "Frontex document" must take into account "the necessity not to jeopardise the attainment of objectives and tasks of Frontex."
ii) The Frontex Decision on access to documents does not include provisions incorporating Article 11 of Regulation 1049/2001, namely the requirements to maintain a public register of documents and to record in that register without delay references to documents.
Making available a public register of documents ensures that citizens and civil society can follow and understand what is being discussed and decided. And furthermore by making available documents concerning the implementation of policy and legislation it ensures that the activities of Frontex are subject to public and parliamentary accountability. Access to documents is the life-blood of a democratic system and a public register of documents is crucial to this process.
iii) The Frontex Decision on access to documents does not transpose Article 8(3) of Regulation 1049/2001 - it does not expressly state the right to make a complaint to the European Ombudsman or to go to the Court of Justice following refusals of access to documents. This is despite the fact that Article 28(5) of Regulation 2007/2004 does afford this right. Article 7(2) of the Frontex Decision simply states that "Frontex will inform the applicant of the remedies open to him or her".
iv) Article 15 of the Frontex Decision on access to documents states that its Annual Report "shall include… the number of cases in which it refused to grant access to documents and the reasons for such refusals…" but misses out a requirement of Article 17 of Regulation 1049/2001, which states that the Annual Report shall also include the number of sensitive documents not recorded in the register.
Regulation (EU) No 1168/2011 of 25 October 2011 amending the original 2004 Frontex Regulation (2007/2004) does not change the obligation for Regulation 1049/2001 to apply to Frontex, as set out under Article 28(1) of 2007/2004.
Under the Lisbon Treaty the legal basis for public access to documents is now Article 15(3) of the consolidated version of the Treaty on the Functioning of the European Union. This new provision extends the public right of access to documents to all the Union institutions, bodies, offices and agencies. In March 2011 the Commission put forward a proposal to effect this commitment, however, the European Parliament decided that this provision should be incorporated into its first reading position (adopted in December 2011) on the Commission's 2008 proposals to amend 1049/2001 and has not treated this matter separately.
The Lisbon Treaty commitment simply reinforces the provisions already contained in Regulation 2007/2004 and therefore Frontex is subject to Regulation 1049/2001.
Frontex Annual Reports: reporting on access to documents?
Article 17 of Regulation 1049/2001 obliges the publication in an annual report of information on requests for public access to documents. An examination of the Frontex Annual Reports shows that the agency has not fully complied with this requirement:
The Ombudsman's Report of 7 February 2013
The Ombudsman visited Frontex on 4 October 2012 and issued his Report on Frontex (pdf) on 7 February 2013.
The Ombudsman posed three general questions: a) Frontex's website does not have a section on access to documents; how do they handle requests for access to documents? b) does Frontex produce an annual report on access to documents? c) does Frontex intend to have a public register of documents in the sense of Article 11 of Regulation 1049/2001?
Frontex says it is subject to Regulation 1049/2001 but seeks to create for itself a number of exceptions.
On the specific complaints made by Statewatch there are the following references:
a) On the issue that Frontex seeks to give itself the status of a Member State (Statewatch complaint 2.i, the Ombudsman's Report notes that the Decision adopted by the Frontex Management Board on 21 September 2006 on practical arrangements on public access to Frontex documents reiterates that the agency is "subject to Regulation 1049/2001 when handling applications for access to documents held by it."
The Decision states that:
"in order to safeguard the ability to carry out its tasks, special attention should be paid to the specific requirements of Frontex as a specialised body tasked with improving the integrated management of the external borders of the Member States of the EU. Therefore, full account of the sensitive nature of tasks carried out by Frontex, in particular in relation to operations at borders and border related data should be taken. In any case, the successful and effective fulfilling of Frontex objectives and tasks as foreseen in the Frontex Regulation should not be jeopardised." (quoted in para. 24, Ombudsman's Report)
The Ombudsman's Report makes no comment on this assertion. Frontex claims it operates under Regulation 1049/2001 yet here it is claiming a further block exception due to the "sensitive nature of its tasks" - a factor already provided for in the Regulation (Article 9). The cited statement in the Management Board's Decision on public access should be deleted.
b) The Ombudsman notes that Frontex's Annual Report contains a section on "Transparency and access to documents" (para. 26, Statewatch 2.v), but makes no reference to the obligation under Article 17 of 1049/201 to place on record in the Annual Report the number of sensitive documents not recorded in the register and further that references to these could be included in the register in a way which did not disclose the subject matter. It could be argued that as Frontex does not yet have a public register this is not relevant - however, neither Europol or Eurojust have a public register yet the Ombudsman drew these issues to their attention in his reports.
As the Management Board's Decision on public access contain no reference to the Article 17 (1049/2001) obligation to place on record the number of sensitive documents not listed on the public register the Decision should be amended in this respect.
Further it should be drawn to Frontex's attention that the section on public access in its Annual Report must contain the reasons for refusing access to documents as set out in Article 15 of its Decision on public access (see previous section on Frontex Annual Reports).
c) On the issue of Frontex's failure to make available a public register of documents (Statewatch 2.ii) the agency stated to the Ombudsman:
"As of yet, there is no public Register of Frontex documents, but there are plans to create one." (para 26)
The Ombudsman's report makes no mention of the fact that the Management Board Decision on public access does not contain a provision in it on providing a public register - Frontex should be obliged to amend its Decision.
d) The issue of the right of an applicant to go to the Ombudsman if a confirmatory appeal is rejected is covered in the report (para. 29, Statewatch 2.iii) However, this does not refer to the equal right to go to take the matter up with the ECJ shold the complainant prefer to do so. Frontex's response confirms this (see below).
The Management Board Decision on public access to documents should be amended to include the right of appeal to the EU Ombudsman and the Court of Justice.
In our view the four substantive Statewatch complaints have not been fully addressed.
Frontex's Response to the Ombudsman's Report
Frontex's Response to the Ombudsman's Report (7.5.13, pdf) in the light of the above, is brief and peremptory.
a) Under (a)(2) Frontex agree to recognise an applicant's right to appeal to the Ombudsman - but not to the ECJ.
b) The Ombudsman's suggestion on providing a public register of documents included the statement that "he trusts this will be done without delay". Frontex's response comes in two parts. Firstly:
"We have a mid-term plan to build a comprehensive document management system that would include, as one of its sub-components, a register".
This response does not answer the Ombudsman's position of "without delay". What does "mid-term" mean? Two, three, four, five years? The Management Board's Decision should be amended (as referred to above) and an actual date should be given to provide a public register without delay.
The second part - which claims that "the principle of transparency is of the utmost importance for Frontex" and that "by the end of 2013 or beginning or 2014" a "temporary solution" will be in place to provide "a better overview of documents produced by the agency" - is institutional blather. Nine years after Frontex was obliged to provide a public register they are still seeking to put off providing a public register to some undefined point in the future. This is not an acceptable answer.
Frontex did not respond to other issues in the Statewatch complaints as they were not put to them, at this stage (see below).
Ombudsman's Letter to Frontex on 9 August 2013
The Ombudsman wrote a further Letter to Frontex on 9 August 2013 (pdf). He notes that Frontex intends to publish on its website the rules on access to its documents - currently that of 21 September 2006: Decision of the Frontex Management Board on public access to documents (pdf). The Ombudsman goes on to say that:
"In my view, even the prospect of publishing the Decision on public access could provide an opportunity to modify that Decision in order to ensure the full implementation of the provisions of Regulation 1049/2001 at Frontex."
The Ombudsman then lists four issues which he asks Frontex to "modify" in the 2006 Frontex Decision on access to its documents before publishing it on the website:
First, the Ombudsman says the Decision "could be modified to make it clear what Frontex understands by the reference, at the end of Article 4" (and raised by Statewatch above). This states that any request to a EU Member State for documents originating from Frontex shall be referred to Frontex and that particular account should be taken of: "the necessity not to jeopardise the attainment of objectives and tasks of Frontex". As argued above Regulation 1049/2001 gives ample protection for Member States' or agency's documents and this provision introduces an additional blanket exclusion for denials of access.
Second, Frontex's 2006 Decision on access does not implement Article 8(3) of Regulation 1049/2001 which expressly says that an applicant has the right to make a complaint to the European Ombudsman or to institute court proceedings before the European Court of Justice if a confirmatory application is rejected.
Third, Frontex's 2006 Decision on access does not include the provision in Article 17 of Regulation 1049/2001 which states that the Annual Report shall also include "the number of sensitive documents not recorded in the public register".
Finally, Frontex's 2006 Decision does not include a provision implementing Article 11 of Regulation 1049/2001 concerning an obligation to maintain a public register of documents and the requirement for references to documents to be recorded in the register without delay.
The Ombudsman concludes:
"In the light of the foregoing, I would be grateful if Frontex could consider modifying the Decision on public access before its publication on the new Frontex website. This is in order to ensure that Frontex fully implements the provisions of Regulation 1049/2001 as indicated above." (emphasis in original)
Frontex is asked to respond to the Ombudsman by 15 September 2013.
In reaching his Recommendations the Ombudsman will take into account all responses by the agency, including that of 7 May 2013 and Frontex's failure to give a specific date for when it will provide a public register of documents - something which it has been legally obliged to do for the past nine years.
Frontex letter to the Ombudsman, 10 September 2013
Frontex replied to the Ombudsman's letter of 9 August on 10 September: Reply (pdf). It answered none of the issues raised by the Ombudsman and simply says that the 2006 Decision on access to documents is being currently revised. No express indication is given in the response as to whether the revision will bring the Decision fully in line with Regulation 1049/2001.
Ombudsman's Decision of 26 September 2013
In September 2013 the Ombudsman issued his Decision (pdf) closing the case, saying that he welcomed the fact that Frontex is revising its Decision on public access to its documents, and adding that:
"He reminds Frontex of the need to implement fully the provisions of Regulation 1049/2001 and in particular that its register should include a list of sensitive documents. He also requests Frontex to send the revised Decision to the Ombudsman by the end of March 2014."
So Frontex were given six months by the Ombudsman to provide a revised Decision on public access to its documents that complies with the Regulation.
The question of when Frontex is going to have a proper public register of documents remains on the table, their only commitment so far being to provide one in the unspecified "medium term".
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