Public Security Revisited

Abstract

With its Judgment of 27 November 2019 in Case T-31/18 Luisa Izuzquiza and Arne Semsrott v European Border and Coast Guard Agency (Frontex), the Court of Justice of the European Union opened a new chapter in the elaboration of the two seemingly antagonistic interests enshrined in Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents: the public’s fundamental right to transparency versus the public’s interest as regards “public security”. Focusing on the evolution of “public security” in the EU since 1993, this case note analyses the CJEU’s balancing of these principles, its increased scrutiny of Frontex administrative decisions, and the extent to which Frontex had to justify its denial to grant access to documents through the lens of the management of sensitive operational information. This examination puts the judgment in the context of the ongoing situation in the central Mediterranean and, by providing detailed insights on the underlying operational considerations, shows that the fundamental and wide-reaching right to transparency has to be balanced with the need to protect crew and vessels and the implementation and enforcement of the Frontex mandate. While continuing established case law in its use of the public security exception (a so-called absolute exception that is not subject to an overriding public interest test), in this case the CJEU subsumed, for the first time, individual subjective rights and legal interests under public security. This article argues that this amounts to the individualisation of public security. As pointed out by Frontex in its written and oral defence, the CJEU thus opened the door to extending the scope of public security to also include other groups of people in the government’s continuous and exclusive de jure and de facto control. The conclusion from the Frontex Case is thus that protecting life at sea and ensuring effective border surveillance are two sides of the same medal as they have a common aim: combatting human smugglers, traffickers in human beings and other criminals and safeguarding life, safety and physical integrity of law-enforcement crew and migrants alike.