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Council of the European Union
More legislative transparency providing it does not stop the "space to think" in secret
24.8.18
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The General Secretariat of the Council of the European Union has produced a Note on: Legislative transparency (in a non-public LIMITE document: 11099-18, pdf):

"The case law of the Court of Justice has evolved in a significant fashion. In a series of judgments, the Court has confirmed the very special role that transparency plays in law making, notably in strengthening democracy by allowing the citizens to hold decision makers accountable. The most recent case is the De Capitani judgment of 22 March 2018, which deals with access to four-column tables produced during trilogue negotiations. The General Court found that trilogues form an integral part of the legislative procedure and that public access to four column tables, even when negotiations are ongoing, should, in principle, be granted unless exceptional circumstances occur. (...)

New technological solutions (already in use or under development) are changing the way in which we produce and circulate documents. We are moving away from paper-based information to content stored on digital platforms."

However, the Note then says:

"It would be based on making more legislative documents directly accessible to the public at an earlier stage, while ensuring the necessary space for reflection and negotiations by protecting those documents that merit protection." [emphasis added]

The Council still want to keep the "space to think" in secret legislating trilogues between the Council and the European Parliament.

The Milestone approach

"Milestones will also set the time frame for the revision of the LIMITE status of documents that have not been made public from the outset. The essence of a transparency and information policy based on milestones is to identify which categories of documents will be made public at which point in time. In between milestones, the space to think and negotiate will be protected pending the publication at a later stage." [emphasis added]

Thus documents will not all be made public when they are produced and circulated to Member States:

"To strike the right balance between the case law and various calls for greater transparency, and the need to preserve the necessary flexibility for effective legislative
work."
[emphasis added]

This sounds a bit like the notion of "balancing" security and civil liberties.

Two important questions

The Note asks for guidance the Council on two important questions:

"the issue of recording the positions of Member States. The second has to do with the handling of trilogue documents." [emphasis in original]

The questions are:

"Following the judgment of the Court of Justice in Access Info in 2013, COREPER
decided that as a rule, the drafter of the document should record Member States´
names in documents relating to on-going legislative procedures "where appropriate
"
[emphasis added]

While conceding to the Court's decision exceptions are allowed but this has led to:

"incoherencies and heterogeneity of the documentation of the legislative process. At the same time, the disclosure of documents relating to ongoing legislative files that contain individual delegations' positions following a request for public access, does not seem to have had any disruptive effects on the decision making process.(...)

it is proposed to record in the note accompanying the General Approach the names of those Member States who have requested to have their position on the record, including with any related statement." [underline in original, bold emphasis added]

Member States' positions will only included if they request it - not really in the spirit of the law.

More tricky is access to 4-column documents:

"Concerning trilogue documents, following the De Capitani case law, there is little room left for refusing access to documents produced for trilogues when a request for public access is submitted. In line with the principle of coherence set out above, this calls for a reconsideration of the policy of confidentiality of trilogue documents." [emphasis added]

This seems pretty simple? But:

"The milestone approach offers the possibility to strike a balance between the required standard of transparency and the need to guarantee a certain “space to think”, as acknowledged by the Court." [emphasis added]

The distinction is between documents drawn up as a " basis for the trilogue discussions" - the General approach in the council and Negotiating "Orientation" vote in the parliament and "preparatory or preliminary drafts". So when the Council is developing its negotiating position or revising it they is no automatic publication These documents are the most interesting and important for democratic accountability which is why Statewatch often makes them public.

In part these loopholes appear in the de Capitani judgment which the Council is exploiting:

The judgment in the CJEU cited by the Council says in para 106:

"Moreover, as the Parliament stated at the hearing, prior to the entry of the compromise text into the fourth column of trilogue tables, discussions may take place during meetings for the preparation of such text between the various participants, so that the possibility of a free exchange of views is not called into question, particularly since, as noted in paragraph 86 above, the present case does not concern the issue of direct access to the work of the trilogues, but only that of access to documents drawn up in the context of those trilogues following a request for access." [emphasis added]

The council thus relies on para 86:

"As a preliminary matter, it is important to note that the present action does not seek to obtain direct access to ongoing trilogue work within the meaning of Article 12 of Regulation No 1049/2001. Indeed, the present dispute is concerned solely with access to the fourth column of the documents at issue, which may take place only on specific request lodged pursuant to that regulation."

The council is intending to introduce a "Trilogue Table Editor" by the end of 2019:

"these documents would need to be created at pre-defined points in time, for instance every time the mandate is updated. This approach would facilitate the application of a different regime for preliminary or preparatory drafts, exchanged during the talks, ahead of the finalisation of the 4th column or similar document. This different regime will also apply to technical meetings whereby no agenda's or lists of participants are established (and therefore not made public)." [both emphasis added]

Tony Bunyan, Statewatch Director, comments:

"These proposals will lead to a bit more openness but will not meet the Lisbon Treaty commitments which came into force nearly ten years ago. The Treaty 's premise is that all documents concerned with legislative measures should be made public as they are produced.

Until the "space to think" in secret is abolished we will never get full access to all the documents which are part of the legislative paper trail."

See Statewatch's Observatory on FOI in the EU which monitors all developments since 1993.

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