The General Court of the European Union has rejected all of the EU Council’s arguments that it is not obliged to grant access to documents drawn up by its working groups in the context of a legislative procedure, in a judgment delivered on Wednesday 25 January (case T-163/21).
However, the General Court does not recognise an unconditional right of access of European citizens to EU Council documents in the context of a legislative procedure, for example, in the case at hand, the amendment of the directive (2013/34) on the annual financial statements of companies. It notes that, in accordance with the provisions of Regulation (EC) No 1049/2001 governing public access to documents of the EU institutions, the institutions may refuse access to certain legislative documents in duly justified cases, such as the protection of the decision-making process.
Where such access cannot be refused, the public must make a formal request for access to documents, as is currently the case.
Asked by EUROPE about the outcome of the case, Mr Emilio De Capitani, the complainant in this case, said he had “mixed feelings”. He said he was pleased that the public’s right of access to documents from EU Council working groups acting in the context of a legislative process had been recognised. But on the “key element” of unconditional access to legislative documents, he noted that “access will still have to be requested”. He wondered what the best way is to protect a decision-making process: by hiding the negotiations to which only the lobbies have access or by making the legislative work in progress transparent.
Secondly, the General Court rejects the reasons given by the EU Council in a decision of January 2021 for refusing Mr De Capitani access to the documents of the working group that participated in the amendment of the ‘financial statements’ directive.
None of these grounds “supports the conclusion that disclosure of the documents at issue would seriously undermine, in a concrete, actual and non-hypothetical manner, the legislative process concerned”, the General Court considers.
As regards the allegedly sensitive content of the documents at issue, the court notes that these documents contain specific textual comments and amendments which are part of the normal legislative process. Although these documents relate to politically and legally complex issues which are the subject of difficult negotiations, according to the court, the EU Council does not identify any concrete and specific aspects of these documents which would be particularly sensitive and would jeopardise a fundamental interest of the Union or of the Member States if disclosed to the public.
The preliminary nature of the discussions in the EU Council working groups does not justify, as such, the application of the exception based on the protection of the decision-making process enshrined in Regulation 1049/2001. In the General Court’s view, this exception generally covers documents dealing with a matter on which a “decision has not been taken” by the institution concerned.
An applicant for access to legislative documents in the context of an ongoing procedure is fully aware that the information contained therein is subject to change. That was, in fact, the objective pursued by the applicant, who sought to ascertain the positions expressed by the Member States within the EU Council precisely in order to generate a debate in that regard before that institution established its position in the legislative procedure in question.
On the third ground relating to alleged harm to Member States’ cooperation in good faith if the documents were disclosed, the General Court again rejected the EU Council’s argument.
Since the Member States express their respective positions on a given legislative proposal in the working groups, the fact that these elements are subsequently communicated on request is not, in itself, likely to undermine the principle of sincere cooperation. The General Court considers that EU co-legislators must be answerable for their actions to the public, a principle which implies that citizens should be able to follow the decision-making process within the institutions in detail and have access to all relevant information inherent in the legislative procedures.
In this case, there is nothing to suggest that the EU Council could reasonably expect a risk of external pressure and a reaction beyond what can be expected from the public by any member of a legislative body.
Finally, the General Court is of the opinion that access to documents drawn up by the EU Council’s working groups cannot be limited on the basis of their allegedly “technical” nature, a criterion which it considers irrelevant for the purposes of applying the exception based on protection of the decision-making process. In the court’s view, the fact that the national experts in the working groups express their State’s position within the EU Council during the deliberations on a legislative proposal does not make the documents produced at this stage of the legislative process technical.
In a previous case initiated by Mr De Capitani, the General Court had imposed, in March 2018, the publication of the documents (four-column table) presenting the positions of the different European institutions, upon formal request and after the trilogue negotiations (see EUROPE 11987/12). It thus recognised the trilogues, which are informal inter-institutional fora, as an essential part of the legislative process at European level.
See the General Court’s judgment: https://aeur.eu/f/52a (Original version in French by Mathieu Bion)