In theory, the European Parliament should provide access to documents on the (trialogue) negotiating sessions underway between the EU institutions, as long as this access does not negatively affect the decision-making process in question, the General Court of the EU (EGC) ruled in a judgment returned on Thursday 22 March (case T-540/15).
In July 2015, a former European Parliament official, Mr Emilio De Capitani, requested and was partly granted access to a document (a table with four columns) showing the positions of the various European institutions in ongoing negotiations on European citizens’ rights.
The Parliament sent him all of five of the seven tables identified and, for the other two, blanked out the fourth column containing provisional compromises and preliminary proposals of the Presidency of the Council, on the grounds that disclosing this information would damage the decision-making process at the Council and at inter-institutional level.
In its judgment, the General Court concludes that no general presumption of non-disclosure was admissible with regard to the nature of the legislative procedure, as the principles of publicity and transparency are inherent to the legislative procedures of the EU.
Trialogues, an integral part of the legislative procedure, are used frequently, in 70% - 80% of legislative procedures. These meetings are held in camera and the agreements reached at them, usually reflected in the fourth column of trialogue tables, are frequently then adopted by the co-legislators with no substantial amendments, the EGC observes.
The General Court, which considers that the absence of information and debate is likely to give rise to doubts in the minds of the citizens as to the legality of an isolated act and the legitimacy of the decision-making process as a whole, finds that access to such documents should be possible if a specific request has been made on the basis of the regulation (1049/2001) governing public access to the documents of the European institutions.
Indeed, the citizens’ ability to exercise their democratic rights presupposes the opportunity to follow the decision-making process at the European institutions participating in the legislative procedures in detail and to have access to all relevant matters.
“I won by defending the position of Parliament that it adopted itself in 2011 in the ‘Cashman’ report. Since then, the institutions have gone on as if nothing had happened and the procedure has not changed”, De Capitani told EUROPE.
In the 'Cashman' report, Parliament extends the right of access to documents to all institutions and bodies of the EU and limits exemptions to access to these documents to those justified by public and/or private interests (public security, intellectual property) (see EUROPE 10518).
De Capitani also told us that “it is not just Parliament; the Commission and Council of the EU will also have to apply this decision. Of course, it is possible that the institutions will appeal to the Court and it will be really interesting to see how they justify themselves”.
Parliament satisfied. Sophie in't Veld (ALDE, Netherlands) described the General Court judgment as a “major breakthrough for European democracy”, as stakeholders and citizens will be able to follow the legislative process closely and hold their politicians to account. “Transparency must become the rule, as it is vital for a mature European Parliamentary democracy”, she added, calling for the Commission to submit an action plan to ensure true transparency ahead of the European elections.
Sven Giegold (Greens/EFA, Germany), who is negotiating the reform of the transparency register on behalf of Parliament, reiterates that the MEPs’ position is that trialogue documents should be considered ordinary legislative documents (see EUROPE 11862). (Original version in French by Mathieu Bion with Solenn Paulic)