Following a complaint presented by ASGI with the support of the International Human Rights Legal Clinic of the University of Turin, the European Ombudsman asked the Commission for access to an agreement signed in 2018 but never made public.
In May 2018, the European Union signed an agreement with The Gambia called Good Practices on identification and return procedures. The document was never made public on the ground that it was not a formal agreement. ASGI submitted a freedom of information (FOI) request to the European Commission but the request was refused. On 6 July 2022, thanks to the support of the Strategic Litigation: International Human Rights Legal Clinic of the University of Turin, the matter was referred to the European Ombudsman, who has now decided to open an inquiry. She has also confirmed the need to examine the agreement in order to assess whether or not this is an international agreement, and therefore subject to an obligation of publication.
The Commission had rejected the FOI request on the grounds, firstly, that disclosure of the document was not required because this was an informal and not an international agreement, and secondly, because disclosure could be detrimental to international relations between the EU and The Gambia.
According to the analysis of the Strategic Litigation: International Human Rights Legal Clinic, the agreement has to be considered a binding international treaty despite its name and the procedure followed for its conclusion because it creates rights and obligations for its parties, while at the same time producing clear legal effects on Gambian citizens staying in EU Member States. According to the available information, this agreement sets not only good practices for forced returns, but also mutual obligations and economic commitments.
The European Ombudsman has now confirmed that even if the Commission called the agreement “informal”, this is not enough for an exemption from the publication requirement and she requested a copy of it in order to clarify its nature and assess whether there are any obligations to publish it in light of its content. This result adds to similar proceedings started by the Italian Council of State following failure to gain access to the readmission agreement between Italy and the Gambia.
“All international treaties must be public and the definition of a treaty does not depend on the label given to it by the State, but on its content and its suitability to produce obligations at international level”, says Andrea Spagnolo from the University of Turin.
“Public knowledge of readmission agreements is necessary within a democratic system to control their content and to prevent collective expulsions and the violation of the fundamental rights of foreigners in Europe”, states ASGI lawyer Lucia Gennari.