Dissatisfied with the way in which the European institutions have complied with the judgment of the General Court of the European Union bearing his name (T-540/15), the former European Parliament official, Emilio De Capitani, has decided to bring a new case before the Court of Justice of the EU. The objective is to impose greater transparency in the legislative procedure at European level.
Delivered in March 2018, the 'De Capitani' judgment requires the publication of documents (four-column table) presenting the positions of the various European institutions on formal request and after the trilogue negotiations have been held (see EUROPE 11987/12). It thus recognises informal forums, such as trilogues, as an essential part of the legislative process at European level.
While the treaty requires them to comply with case law, the European institutions have “not taken a specific position”, De Capitani told EUROPE on Monday 23 September. He noted that the Finnish Presidency of the Council of the EU, supported by the Secretariat-General of the European institution, is trying to change internal practices on access to documents as part of legislative procedures.
The Finnish authorities, which are organising a conference on the transparency of public life at European level on Tuesday 24 September in Brussels, have thus decided to publish the mandates detailing the Council's initial negotiating position on a legislative initiative, with a view to launching interinstitutional negotiations. If the Council's negotiating mandate must first be endorsed by the Member States' ambassadors to the EU (Coreper), they will request the green light from Coreper beforehand.
The Finnish Presidency is thus carrying out “a major fix”. It confirms that interinstitutional negotiations must take place “only if there is Coreper coverage”, thus limiting the ability of a Member State holding the Council Presidency to enter into informal discussions with the European Parliament, Mr De Capitani said. He added, “In the European Parliament, this coverage already exists with the possibility of going to plenary session” to approve or reject a negotiating position on a legislative text drafted by the relevant parliamentary committee.
In addition, the Finnish Presidency has taken other initiatives to increase legislative transparency. The document drawn up for the trilogue meetings containing the initial positions of the co-legislative institutions, except for the compromise proposals, will be made public. Finally, the document containing the final result of the trilogues will also be published after its adoption by Coreper.
Faced with resistance from Member States questioning the legal basis for allowing it to do so, the Finnish Presidency stressed that this temporary experiment is only binding for the Presidency and would continue until the end of December, when the baton is passed to Croatia.
Mr De Capitani also criticised the abusive use of the exception contained in the Regulation (1049/2001) to restrict public access to European institutions' documents by Member States.
Should European legislation be amended? “No. If you change the regulations, you turn the exception into the rule”, he said. According to him, it is no coincidence that the 2011 'Cashman' report has not been implemented, since it provided, as early as 2011, that the exception restricting access to documents would not apply to the legislative process (see EUROPE 10518/32).
The former European Parliament official also does not spare the European institution where he made his career. “Parliament's bureau could change the situation” overnight by deciding to proactively shed light on the trilogue negotiations, he said. Instead, it continues to release the documents in question only after a formal request.
Mr De Capitani has therefore decided to systematically request in writing all the documents of the trilogues used as part of the 153 legislative procedures currently in progress. And he will once again bring proceedings against the European institutions to demand the proactive publication of the documents used in the trilogue.
According to European legislation (Article 12 of Regulation 1049/2001), the institutions shall, as far as possible, make documents directly available to the public (...) in particular, legislative documents.
View Finnish initiatives to instill more transparency within the Council of the EU as part of a legislative procedure: http://bit.ly/2m0qLJn (Original version in French by Mathieu Bion)