Public access to documents - Confirmatory application No 06/c/01/17 - Hoofdinhoud

Council of the European Union Brussels, 31 March 2017 (OR. en)

7606/1/17 REV 1

INF 42 API 29

NOTE

From: General Secretariat of the Council

To: Working Party on Information

Subject: Public access to documents

• - 

  Confirmatory application No 06/c/01/17

Delegations will find attached the:

 request for access to documents sent to the General Secretariat of the Council on 31

January 2017 and registered on 1 February 2017 (Annex 1);

 reply from the General Secretariat of the Council dated 15 March 2017 (Annex 2);

 confirmatory application dated 22 March 2017 and registered the same day (Annex 3)

ANNEX 1

[E-mail message sent to access@consilium.europa.eu on 31 January 2017- 21:40 using the electronic form available in the Register application]

From: DELETED

Sent: Tuesday, January 31, 2017 21:40

To: SECRETARIAT DGF Access

Subject: Electronic Request for Access

Title/Gender: DELETED

Family Name: DELETED

First Name: DELETED

E-Mail: DELETED

Occupation:

On behalf of:

Address:

Telephone:

Mobile

Fax:

Requested document(s): ST 14978 2016 INIT

ST 10448 2016 INIT

ST 8966 2016 INIT

ST 5653 2016 REV 1

ST 5499 2017 INIT

CM 1006 2017 REV 1

ST 15806 2016 INIT

ST 14555 2016 REV 2

ST 15616 2016 INIT

ST 5698 2017 INIT

ST 5700 2017 INIT

ST 5395 2017 REV 1

ST 15233 2016 REV 1

ST 15219 2016 REV 2

ST 5616 2017 INIT

ST 5364 2017 INIT

ST 5136 2017 INIT

ST 11800 2016 REV 1

ST 5373 2017 INIT

ST 5264 2017 INIT

ST 11395 2016 INIT

ST 7963 2016 INIT

ST 15757 2016 INIT

CM 1336 2017 INIT

CM 1294 2017 INIT

ST 13169 2016 INIT

ST 5151 2017 COR 1

1st preferred linguistic version: EN - English

2nd preferred linguistic version:

__________________

ANNEX 2

Council of the European Union General Secretariat Directorate-General Communication and Information Knowledge Management Transparency Head of Unit

Brussels, 15 March 2017

DELETED Email: DELETED

Ref. 17/0204-nh-ld/dm

Request made on: 31.01.2017

Registered on: 01.02.2017

Deadline extension: 22.02.2017

Dear Mr DELETED,

Thank you for your request for access to documents of the Council of the European Union. 1

Please find attached documents 5264/17, 15757/16, 10448/16, CM 1006/17, CM 1006/1/17 REV 1, 15806/16, 15616/16, 5698/17, 5700/17, 5395/17, 5395/1/17 REV 1, 5364/17, 11395/16, CM 1336/17 and CM 1294/17 you requested.

After consulting the European External Action Service and EUROPOL, the General Secretariat of

the Council has come into the following conclusion 2 .

1 The General Secretariat of the Council has examined your request on the basis of the applicable rules: Regulation (EC)

No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43) and the specific provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure (Council Decision No 2009/937/EU, OJ L 325, 11.12.2009, p. 35).

2 Article 4(4) of Regulation (EC) No 1049/2001 i.

EU Classified Information (EUCI) is classified at the following level, among others: 3

"RESTREINT UE": this classification is applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States.

I regret to inform you that access to documents 14978/16, 8966/16, 5653/1/16 REV 1, 13169/16,

5616/17 and 5373/17 cannot be given for the reasons set out below

Document 14978/16 RESTREINT UE/EU RESTRICTED is a note from the European External

Action Service (EEAS) to the Political and Security Committee (PSC) containing a Six Monthly report 1 January - 31 October 2016 of EUVAVFOR MED Op SOPHIA.

Document 5653/1/16 REV 1 RESTREINT UE/EU RESTRICTED is a note from the EEAS to the PSC and European Union Military Committee containing a Six Monthly report 22 June - 31

December 2015 of EUVAVFOR MED Op SOPHIA.

Document 8966/16 RESTREINT UE/EU RESTRICTED is a note from the EEAS to the PSC containing Military Advice on the ENFM Strategic Review

Document 13169/16 RESTREINT UE/EU RESTRICTED is a note from the EEAS to the PSC and European Union Military Committee containing a Military Advice on the High Representative's Report on the Twenty-Fourth Operation ALTHEA Six Monthly Review.

These documents contain information on organisation and strategic review of two on-going operations. Release of this information would affect the efficiency of the European Union's action and question the feasibility of the operations as a whole.

Disclosure of the documents would therefore undermine the protection of the public interest as regards defence and military matters. As a consequence, the General Secretariat has to refuse access

to these documents 4.

3 Council Decision of 23 September 2013 on the security rules for protecting EU classified information (2013/488/EU),

OJ L 274, 15.10.2013, p. 1.

4 Article 4(1)(a), second indent, of Regulation (EC) No 1049/2001 i.

Document 5616/17 RESTREINT UE/EU RESTRICTED is a note from the EEAS to the Committee for Civilian Aspects of Crisis Management containing Initial Mapping Report Executive Summary on EUBAM Libya.

The requested documents contain delicate operational information on the ongoing mission in a territory with serious security challenges. Release of these documents which also contain internal EU assessments would jeopardise the EU's efforts to bring stability to the region by enhancing the security of the Libyan borders, hurt relations with relevant third parties and affect the future mission's capability to fulfill its tasks.

Disclosure of the documents would therefore undermine the protection of the public interest as regards public security and international relations. As a consequence, the General Secretariat has to

refuse access to these documents. 5

Document 5373/17 RESTREINT UE/EU RESTRICTED is a note from the EEAS to the Committee for Civilian Aspects of Crisis Management containing Six-Monthly Mission Report No 2/2016, 1 June - 30 November 2016, of European Union Police Mission for the Palestinian Territories

(EUPOL COPPS).

It reveals sensitive details of the on-going mission, internal assessments of the situation on the ground and of the Palestinian Authority's police forces and their capabilities as well as strategic objectives of the EU vis-à-vis the operation.

The General Secretariat considers that the information contained in the above-mentioned document is of a strategic and operational nature. Disclosure of such sensitive information concerning this ongoing mission would seriously undermine not only the proper functioning and outcome of this specific operation but also the functioning and outcome of other current and future operations, put at risk the staff deployed in the field and prejudice the EU's relations with the Palestinian

authorities. As a consequence, the General Secretariat has to refuse public access to this document. 6

5 Article 4(1)(a), first and third indent, of Regulation (EC) No 1049/2001 i.

6 Article 4(1)(a), first and third indents, of Regulation (EC) No 1049/2001 i.

Document 7963/16 is a note from the Political and Security Committee to the Permanent

Representatives Committee (Part 2) containing draft Council conclusions on Libya.

For the Council to reach a final agreement on the adoption of these Council conclusions, its

Member States held initial consultations and exploratory talks. This document contains opinions that were put forward for internal use only, as part of initial deliberations within the Council.

Release of this information would harm future decision-making on this and similar issues.

Disclosure of the document would therefore seriously undermine the decision-making process of the Council, even after the specific decision has been adopted.

Release of the information contained in this document would also have a negative impact on the relations between the European Union and Libya.

Having examined the context in which the document was drafted, on balance the General

Secretariat could not identify any evidence suggesting an overriding public interest in its disclosure.

As a consequence, the General Secretariat has to refuse access to this document. 7

We have also looked into the possibility of releasing parts of the documents. 8 However, as the

information contained in the documents forms an inseparable whole, the General Secretariat is unable to give partial access.

You will also find a partially accessible versions of documents 15219/2/16 REV 2, 15233/1/16

REV 1 (in the form of document 15233/16 REV1 EXT 1), 11800/1/16 REV 1, 5151/17 and

5151/1/17 REV 1. However, I regret to inform you that full access to this document cannot be given for the reasons set out below.

Document 15219/16 REV 2 is a note from the Secretariat General of the Council to the JHA

Counsellors Group/COSI Support Group on the Operational Action Plans 2017 related to the EU's priorities for the fight against serious and organised crime between 2014 and 2017.

7 Article 4(1)(a) third indent and Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001 i.

8 Article 4(6) of Regulation (EC) No 1049/2001 i.

Certain parts of this note contains detailed information on Operational Action Plans and Member States' participation that could be used by individuals or groups of persons involved in serious and organised crime to impair the EU’s efforts to combat this type of crime. Full disclosure of this information could therefore undermine the protection of the public interest as regards public

security. 9 As a consequence, the General Secretariat is unable to accede to your request for full

access.

However, as abovementioned, pursuant to Article 4(6) of the Regulation, you may have access to those parts of the document which are not covered by this exception.

Document 15233/1/16 REV 1 RESTREINT UE/EU RESTRICTED is a note from the General

Secretariat of the Council to delegations concerning the Operational Action Plan 2017 related to the EU crime priority G3: "Cyber Attacks"

The document reflect details on operational strategies concerning the fight against Cyber Attacks; this information could be used by ill-intended persons and organisations to frustrate the efforts of the Union and its Member States to reduce the risks of Cyber Attacks.

Full release of the information contained in them would therefore undermine the protection of the public interest as regards public security. As a consequence, the General Secretariat has to refuse

full access to these documents. 10

Document 11800/1/16 REV 1 is a Note of 16 December 2016 from the Presidency to the Working Party on Information Exchange and Data Protection (DAPIX) on the Manual on Law Enforcement Information Exchange.

9 Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 i.

10 Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 i.

You can have access to Part I ("Operational context") and Part II ("General Information") of the note but no access can be given to Part III ("National Fact sheets"). In this part detailed operational data such as contact points and addresses, descriptions of database content and available information are given for each Member State. Disclosure of this information could be used by individuals or groups of persons affected by cross-border law enforcement measures to impair the EU’s efforts to support, streamline and facilitate cross-border information exchange.

Full disclosure of this document would therefore undermine the protection of the public interest as regards public security. As a consequence, the General Secretariat has to refuse full access to this

document. 11

Document 5151/17and 5151/1/17 REV1 contain a contribution of the Legal Service of the Council concerning the possible Council participation to the Inter-Institutional Agreement between the European Parliament and the European Commission on the transparency register for organisations and self-employed individuals engaged in EU policy-making and policy implementation. Document 5151/17 COR 1 is a corrigendum to the document 5151/17.

The decision-making process to which the requested documents relate is currently ongoing. The

Council has not yet taken a position on the issue dealt with by the legal contribution, which is complex and forms a fundamental part of the ongoing internal discussions. Disclosure of the legal advice would adversely affect the negotiations by impeding internal discussions of the Council on the proposal and would hence risk compromising the capacity of the Council to reach an agreement on the dossier. Moreover the Council´s eventual participation in the Inter-Institutional Agreement will have to be negotiated with the other institutional actors involved. The disclosure of the document would make known to all interlocutors the Council's internal reflections and concerns and would therefore limit its options during possible upcoming interinstitutional negotiations. For those reasons, disclosure of the requested document would undermine the Council decision-making

process 12 .

11 Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 i

12 Article 4(3), first indent of Regulation (EC) No 1049/2001 i

The legal advice covered by this opinion deals with issues which are contentious and which constitute critical elements in the negotiations. The legal advice is therefore sensitive. Disclosure of

such a document would therefore undermine the protection of legal advice 13 . It would make known

to the public an internal opinion of the Legal Service, intended for the members of the Council. The possibility that the legal advice in question be disclosed to the public may lead the Council to display caution when requesting similar written opinions from its Legal Service. Moreover, disclosure of the legal advice could also affect the ability of the Legal Service to effectively defend the negotiating position of the Council in the possible upcoming interinstitutional negotiation or eventually its possible decision to participate in the Inter-institutional agreement. Lastly, the Legal Service could come under external pressure which could affect the way in which legal advice is drafted and hence prejudice the possibility of the Legal Service to express its views free from external influences. Finally, the issues touched upon in the legal opinion are novel, contentious and likely to be relevant for individual decisions concerning interest representatives once the proposed scheme is put in place. As a consequence there is a high risk of future litigation and disclosure of the requested document would undermine the serene conduct of the judicial proceedings by possibly altering the equality of arms and affecting the capacity of the Council Legal Service to effectively defend the Council in Court.

As regards the existence of an overriding public interest in disclosure the requested documents in relation to the interests in protecting the ongoing decision making procedure and in having a frank, objective and comprehensive legal advice under Regulation (EC) No. 1049/2001 i, the General Secretariat considers that, on balance, the principle of transparency which underlies the Regulation would not, in the present case, prevail over the above indicated interests so as to justify disclosure of the documents.

13 Article 4(2), second indent of Regulation (EC) No 1049/2001 i

In view of the foregoing, the General Secretariat of the Council is unable to grant you full access to the requested documents. However, in accordance with Article 4 (6) of the Regulation (EC) No.

1049/2001, you may have access to paragraphs 1 - 12 of the legal opinion 14 .

However, access to 5151/17 COR 1 will be refused in its entirety.

I regret to inform you that access to documents 14555/2/16 REV 2, 5499/17 and 5136/17 cannot be given for the reasons set out below.

Document 14555/2/16 REV 2 is a Note from The Presidency to the COSI Support Group of 15

December 2016 on "Strengthening cooperation on counter-terrorism threat analysis"

This note contains detailed findings, assessments and recommendations with the aim of further strengthening the cooperation between security services and law enforcement to achieve a more comprehensive and future-oriented picture of the terrorist threat.

The disclosure of this information could be used by persons or organisations involved in terrorism, to hamper the EU-efforts to combat this type of activities.

Disclosure of the document would therefore undermine the protection of the public interest as regards public security. As a consequence, the General Secretariat has to refuse access to document

14555/2/16 REV 2 15 .

This document furthermore reflects preliminary consultations and opinions that were put forward for internal use only, as part of initial deliberations within the Council preparatory bodies.

Disclosure of the information contained in this document would therefore also jeopardise a final decision as regards possible follow-up actions and thus seriously undermine the decision-making process of the Council. As a consequence, the General Secretariat has also for this reason to refuse

access to this document 16 .

14 Article 4(6) of Regulation (EC) No 1049/2001 i.

15 Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 i

16 Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001 i

Having examined the context in which the document was drafted, on balance the General

Secretariat could not identify any evidence suggesting an overriding public interest in its disclosure.

Document 5499/17 RESTREINT UE/EU RESTRICTED is a note from EUROPOL to Delegations of 20 January 2017 on " An outlook on Developments in Jihadist Terrorism"

The document presents an outlook on the current modi operandi in jihadist terrorism affecting the EU, and contains operational information on the threat of jihadist terrorism in EU Member States, the trends in terrorism with regards to different actors, the propaganda, recruitment and financing methods, the weapons of choice, as well as on the convergence between terrorism and organised crime and terrorism and immigration in the EU. The disclosure of such information to the public would risk undermining the operational activities by the law enforcement authorities of EU Member States and third countries in their fight against terrorism. The release of this information would equally risk weakening Europol's partners' trust and endangering their mutual cooperation, which is essential to Europol's activities, and consequently would risk hindering Europol's ability to effectively perform its tasks.

Disclosure of the document would therefore undermine the protection of the public interest as regards public security. As a consequence, the General Secretariat has to refuse access to this

document 17 .

Document 5136/17 RESTREINT UE/EU RESTRICTED is a note from the Slovak delegation to the Working Party on Frontiers/Mixed Committee (EU-Iceland/Liechtenstein/Norway/Switzerland) containing a Report on the activities of the Immigration Liaison Officer's (ILO) Network and on the situation in the Republic of Serbia in matters relating to illegal immigration.

This document contains detailed information on migration situation in Serbia in context of the global situation in the Western Balkans, migration routes and modus operandi included. Release of this information to the public would seriously hamper the efforts of the law enforcement authorities in relation with illegal immigration and prejudice relations between the European Union and Serbia and other countries in the region.

17 Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001 i.

Disclosure of the document would therefore undermine the protection of the public interest as regards public security and international relations. As a consequence, the General Secretariat has to

refuse access to the document. 18

We have also looked into the possibility of releasing parts of the documents 14555/2/16 REV 2,

5499/17 and 5136/17 19 . However, as the exception to the right of access applies to their entire

content, the General Secretariat is unable to give partial access at this stage.

You can ask the Council to review this decision within 15 working days of receiving this reply

(confirmatory application). 20

Yours sincerely,

Fernando PAULINO PEREIRA

Enclosures

______________________

18 Article 4(1)(a), first and third indent, of Regulation (EC) No 1049/2001 i.

19 Article 4(6) of Regulation (EC) No 1049/2001 i.

20 Article 7(2) of Regulation (EC) No 1049/2001 i.

Council documents on confirmatory applications are made available to the public. Pursuant to data protection rules at EU level (Regulation (EC) No 45/2001 i), if you make a confirmatory application your name will only appear in related documents if you have given your explicit consent.

ANNEX 3

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