Former secretary of the parliamentary committee on civil liberties (LIBE) of the European Parliament between 1998 and 2011, currently visiting professor at the Queen Mary Law School of London, the Scuola Superiore S. Anna de Pisa (Italy) and executive director of the ASBL FREE Group (Fundamental Rights European Experts Group), Emilio De Capitani made a name for himself, amongst other things, in his defeat of the Council before the Court of Justice of the EU over its requirement to make certain documents public.
On Tuesday 14 July, the ambassadors of the member states to the EU, meeting within Coreper, adopted a new guideline aiming to ensure greater legislative transparency at the level of Council of the EU.
Although this has been hailed an early success of the German Presidency of the Council of the EU, I nonetheless consider that the move falls well below what one might have expected on the basis of the provisions of the Treaty of Lisbon, the Charter of Fundamental Rights (article 42 on access to documents and article 41 on the right to proper administration) and Regulation 1049/01 on public access to documents.
In particular, it fails to take account of ten years of case-law of the Court of Justice of the EU on legislative transparency, from the Turco case in 2008) to the 2018 cases T-540/15 on access to legislative documents in the framework of inter-institutional negotiations (dialogue) and C-57/16, aka ‘Client Heart’, on access to the impact assessments elected to legislative procedures.
But let us take a closer look at all that. Under the Council’s new “transparency” approach, the following are supposed to be directly accessible: the Commission’s proposals (which, as it happens, are already public), meeting agendas (for which the Treaty of Lisbon and the Council’s internal regulation already make provision) and the progress reports on legislative work put before Coreper… as long as none of the delegations object.
This means that the legitimacy of this new provision is somewhat doubtful, in view of the fact that decisions on transparency within the Council now require a simple majority. Here, there is a risk of creating a sort of right of veto in favour of all delegations. But let us continue.
The new guideline also makes provision for reports submitted to the Council on legislative agenda items to be made public. Here, the publication requirement stems from the text of the Treaty, which requires that “the Council shall meet in public when it deliberates and votes on the draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities” (article 16 TEU).
The Council’s new approach also suggests that the mandate for legislative negotiations with the European Parliament be published once adapted by the Council or Coreper. This, once again, is nothing new, as mandates for legislative negotiations are documents belonging to the legislative process that are required to be accessible under article 15 of the TFEU and article 12 of regulation 1049/01 on direct access in electronic form all through a register.
According to Coreper’s new position, documents submitted to trialogue sessions will be published, but without the compromise proposals, even though these are supposed to be central to the debates. This means that the great breakthrough is to publish… what is already public.
And what about the announced publication of the Council’s position on compromises to close trialogues, once approved by Coreper? Once again, these document are already in the public domain, because their purpose is to be voted on by the co-legislator.
Or letters sent to the EP along with the compromise text to which Coreper is committed? Same again: these letters have been public since the first time one was sent in the framework of the adoption of Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies.
To be quite honest, all formal documents at first and second reading are public, as has been the case for cooperation procedures since the Single European Act of... 1987.
National positions still shrouded in secrecy
Obviously, none of these documents (with the exception of lists of votes) provide the citizens with any indication of the stance taken by their own governments in the course of the legislative negotiations.
On this subject, suffice it to say that since the Treaty of Lisbon entered into force, not just votes but also legislative debates have been supposed to be public, to allow citizens to find out the position taken by the people representing them at the level of both the Council and the European Parliament.
But although debates at parliamentary level ahead of trialogues are relatively accessible, both within the parliamentary committees and in plenary, legislative transparency remains pretty scarce at the level of the Council.
This is likely to change, even with the apparent new openness that has just been trumpeted by Coreper. It will remain virtually impossible to find out the positions of the national delegations in negotiations within the Council and even more so in inter-institutional negotiations with the European Parliament attended by the Commission.
Allow me to remark that this artistic licence lies not so much in the interests of the governments as such as in those of the Permanent Representatives, because it strengthens their hands when dealing with the necessary compromises and, if necessary, allows them to abandon their initial stance without having to justify this to their national parliaments, let alone the citizens of their countries.
This approach now runs counter to the letter and spirit of European Treaties which, as recently pointed out by the Court in the ‘Access Info’, ‘Trialogues’ and ‘Client Heart’ judgements, not only require citizens to be proactively kept informed, but to allow them, if they so wish, to contribute to an improvement of legislative quality through their increased participation in the decision-making process of the EU.
A complicit European Parliament
Unfortunately, then, we are forced to conclude that the measures recently adopted by Coreper are purely cosmetic in nature. Day-to-day experience shows us that in the future, most of the Council’s preparatory documents concerning the legislative processes will not be directly accessible, but marked as documents covered by confidentiality requirements (using the word LIMITÉ).
They are distributed within the working groups and, contrary to what is set out in article 11 of Regulation 1049/01, are no longer immediately listed on the Council’s register; this may take many months, or even years, of delay (see the thousands of documents marked WK, denoting ‘working papers’).
Can it be argued that these practices comply with article 15 of Regulation 1049/01, which stipulates that: “the institution shall develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation”?
Allow me to suggest that it cannot. I am therefore unable to understand the position of the European Parliament, which has for years publicly decried a situation that keeps the positions of the national delegations within the Council a secret from it, yet effectively accepts the practice and thus sides with the Council against the interests of European citizens.
To see the document : https://bit.ly/3h2zX7l
(Original version in French by Emilio De Capitani)