A charity suing the EU's border agency Frontex over document access has had its case dismissed by the General Court of the European Union.
The verdict on Wednesday (24 April) is a blow for pro-transparency campaigners seeking to hold the Warsaw-based agency to account.
But while the judges in Luxembourg dismissed the case, they also faulted Frontex for failing to disclose the existence of relevant photographs.
"I think it's a bit of a bitter irony that in a case on transparency, the court found Frontex wrongfully kept more than 100 photos secret," said Oliver Kulikowski of Sea-Watch, a German civil rescue ship.
Sea-Watch had lodged the case in the hopes of getting over 70 documents held by the agency, following a 30 July 2021 incident where the Libyan Coast Guard intercepted and returned a small boat carrying 20 people to Libya.
"We don't really know what drove Frontex to withhold these photographs," said Luisa Izuzquiza of pro-transparency group FragDenStaat.
"The fact is that the whole case evolves around the legitimacy of a refusal of information," she said.
Asked to comment on the photographs, the agency said it was in the process of studying the judgement.
But it also poses questions on the commitments towards transparency made by the agency's new leadership under Hans Leijtens.
Human Rights Watch and Border Forensics, a Swiss-based non-profit organisation, had also launched a joint investigation into incident. They reported that the people on the boat, once returned to Libya, were tortured.
And they accused Frontex of being complicit of the abuse by cooperating with the Libyan coast guard. They said Frontex aerial surveillance assets alerted the Libyans of the boat.
Sea-watch's charity rescue vessel was also in international waters off the Libyan coast at the time. But it received no alert from Frontex.
With the help of FragDenStaat, the charity then demanded the agency release all documents in its possession over the incident.
But Frontex refused citing public security exceptions, leading Sea-watch to lodge a case at the Luxembourg-court. That case has now been dismissed.
For its part, Frontex claims it does not cooperate with the Libyans.
Instead, it says it informs Libya's maritime rescue and coordination centre (MRCC) whenever a boat in their search and rescue zone is in distress.
The European Commission in 2017 announced the need to set up a Libyan MRCC via Italy with the help of EU funds.
The centre is today composed of a container and mobile unit stored in the port of Tripoli under the control of the Libyan port authority.
As of last month, Libya's MRCC still hadn't been connected to electricity and water, according to the commission.
Meanwhile, Frontex says it provides situational awareness through aerial surveillance under the command and control of member states.
"The moment it is in distress, we send a signal via VHF 16 to everybody in the environment of that vessel," Leijtens told the European Parliament's civil liberties committee in March.
"The definition of that is grave and imminent danger. And that happened in 2023. We had 2025 sightings and in 414 cases - so almost one out of five - we declared Mayday on behalf of the ship," he said.
Sea-Watch says they have occasionally received Frontex Mayday alerts.
"But we have definitely other cases that we witnessed where we know Frontex was in the air and did not contact other ships in the area," said Kulikowski.
This article's headline was updated at 16:57 on24 April 2024 to more accurately reflect the court's ruling.
Nikolaj joined EUobserver in 2012 and covers home affairs. He is originally from Denmark, but spent much of his life in France and in Belgium. He was awarded the King Baudouin Foundation grant for investigative journalism in 2010.
Nikolaj joined EUobserver in 2012 and covers home affairs. He is originally from Denmark, but spent much of his life in France and in Belgium. He was awarded the King Baudouin Foundation grant for investigative journalism in 2010.