Member states’ ambassadors to the EU (Coreper) held an initial discussion on Wednesday 18 July on a new approach by the Council of the EU to legislative transparency.
The debate has been launched in the wake of the ruling by the General Court of the EU (case T-540/15) which states that certain documents (“four-column” tables) used in inter-institutional trialogue negotiating meetings must be made public, on specific request and on condition that the decision-making process is not undermined (see EUROPE 11987).
Neither Parliament nor Council of the EU appealed against this judgment and they must now coordinate their efforts in amending their policy on access to the documents used by their representatives in trialogue negotiations.
A document from the Secretariat General of the Council dated 13 July, a copy of which has been obtained by EUROPE, acknowledges the need for a proactive approach which would allow more documents to be made directly accessible at an earlier stage while ensuring the flexibility needed in discussions and negotiations.
Such a policy would have a number of advantages: - improved readability and traceability of the legislative process; - more coherence, avoiding making documents accessible in a random fashion; - an adequate response to the case law.
The Secretariat proposes, therefore, that certain stages of an ordinary legislative procedure be considered “milestones”, requiring publication of documents. Notably, when texts reach the trialogue stage, the “four-column” tables that form the basis of discussions or giving partial or definitive outcomes should be made public without having to await a request, once Coreper has discussed them.
With regard to the documents used in trialogues, “following the De Capitani case law, there is little room left for refusing access to documents produced for trialogues when a request for public access is submitted”, the Secretariat General acknowledges.
Position of member states. A further topic of discussion relates to the increased transparency of the member states’ position.
In response to a Court ruling of 2013 (case C-280/11), Coreper brought in the rule in 2014 that anyone drafting a Council document used in the legislative procedure should incorporate the position of the member states where it is appropriate. This wording has led to inconsistency and disparity in the documentation used in legislative procedures, the Secretariat General states.
It proposes this time that the note accompanying a political agreement in principle (“general approach”) quotes the member states which asked for their position to be recorded and made public with a view to the potential tabling of a declaration.
The Council debate, conducted at expert level, is at an early stage. According to a diplomat, it is not certain that the Austrian Presidency of the Council of the EU will make it a political priority. On Wednesday, the Netherlands called, nevertheless, for political-level discussion of the issue at a forthcoming General Affairs Council. (Original version in French by Mathieu Bion)