EU court: ‘Frontex omitted existence of photos and videos. Ban on viewing them unjustified’

Brussels – Did Frontex, the EU’s coast guard agency, handle sea rescue operations within the rules, or did it violate the principle of non-refoulement? Sea-Watch, the NGO active in the search for migrants at sea and at the center of criticism, wanted answers and, to dispel all doubts, requested a whole series of documents made inaccessible to the public for security reasons. Too bad Frontex mishandled the file, so now it will have to make public at least the photographs. So ruled the EU General Court, partially dismissing Frontex’s appeal in the Sea-Watch dispute. “By failing to mention certain photographs in its decision, Frontex did not justify the denial of access to those photographs,” the Luxembourg judges argued.

In October 2021, Sea-Watch requested access to a set of documents from the European Border and Coast Guard Agency under the EU regulation regarding public access to documents of European institutions. The documents concerned a Frontex air operation in the central Mediterranean on July 30, 2021. Sea-Watch wanted to ensure that Frontex and the authorities of some member states had not violated the principle of non-refoulement during this operation.

Frontex refused access to 73 documents identified as falling within the requested lists. According to Frontex, the documents fell under several exceptions to the right of access, including the protection of public safety. Today, the Tribunal largely rejected Sea-Watch’s arguments against Frontex’s decision. At the same time, however, it notes how Frontex “failed to mention in its decision the existence of a number of photographs falling within the scope covered by Sea Watch’s application.” This omission means that Frontex “did not justify its denial of access to those photographs.” Accordingly, the Tribunal partially annuls Frontex’s decision insofar as it denied access to “all photographs and videos relating to the air operation in the central Mediterranean on July 30, 2021.”

Frontex has two months to appeal to the court and prove its case, otherwise the banned material will have to be disclosed.