Lieve Lowet

Lieve Lowet

EU Affairs consultant and lobbyist

Also the Council will have to be more transparent….

30 January 2023

European legislation, in which the European Parliament and the Council are co-legislators, has one problem: how to understand the full genesis of the rules, so important for law and other practitioners to understand the ratio legis? In the European Parliament, the Committee deliberations are public and web-streamed, and the same is true for the plenary meetings, where, in addition, the deliberations are written down in minutes. While the disclosure is not absolute on the side of the EP, on the side of the Council the situation is different. Documents exchanged in the working groups preparing the compromise in the Council are not disclosed and only the final text of the deliberations finds its way to the outside by way of the presidency’s general approach. Requests for access to documents are often denied or heavy censured text is released.

The European Court of Justice decided in its Judgment of the General Court in Case T-163/21 | De Capitani v Council of 25 January 2023 that the Council must grant access to documents drawn up within its working groups. The working groups concerned in this case are those relating to the legislative procedure concerning the amendment of the directive on the annual financial statements. The General Court found that none of the grounds relied on by the Council 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 facts of the case

The applicant was Mr Emilio De Capitani, former head of the EP’s LIBE Committee secretariat. He had submitted a request for access to certain documents under Regulation (EC) No 1049/2001 of 30 May 2001 which regulates the public access to the documents of the European Parliament, Council and Commission (OJ 2001 L 145, p. 43). In his request, he was supported by Belgium, the Netherlands, Finland and Sweden. The documents he wanted access to were those exchanged within the Council’s ‘Company Law’ working group relating to the legislative procedure concerning the amendments of Directive 2013/34/EU, finally adopted as Directive (EU) 2021/2101 of the European Parliament and of the Council of 24 November 2021 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches.  The Council refused access on the ground that their disclosure would seriously undermine the Council’s decision-making process within the meaning of Regulation No 1049/2001. Following the applicant’s confirmatory application concerning access to the undisclosed documents, the Council decided on 14 January 2021 to refuse to grant access again. Mr De Capitani then went to the ECJ asking for annulment of that decision. It should be noted that the Council working groups prepare the work of the Committee of Permanent Representatives (Coreper) and, subsequently, of the Council. Their deliberations are not public, but the agenda is disclosed.

What did the Court find? In a nutshell

The principle of publicity and transparency is not absolute

Without going into the full details of the case, the Court notes that, as the principle of openness is of fundamental importance in the European Union legal order, the principles of publicity and transparency are inherent in the legislative procedures of the European Union. Access to legislative documents must therefore be as wide as possible. However, that does not mean that EU primary law provides for an unconditional right of access to legislative documents. The right of access to documents of the EU institutions is exercised in accordance with the general principles, limits and conditions laid down by means of regulations. The provisions of the Functioning of the European Union Treaty (TFEU) governing the right of access to documents of the institutions do not exclude legislative documents from its scope. But the principle of openness is not absolute and the EU institutions may refuse access to certain documents of a legislative nature in duly justified cases.

The test of undermining the legislative process

Secondly, the Court finds that none of the grounds relied on by the Council in the contested decision supports the conclusion that “disclosure of the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the legislative process concerned” (par.96). The documents in fact contain specific textual comments and amendments which form part of the normal legislative process. Although those documents may contain elements resulting from ‘difficult negotiations’, the Court states that “(…)whilst relating to a matter of some importance, possibly characterised by both political and legal difficulty, there is nothing in the contested decision to suggest that the content of the documents at issue is particularly sensitive to the point of jeopardising a fundamental interest of the European Union or of the Member States if disclosed (…)”(par.76).

The preliminary nature is no excuse

The preliminary nature of the discussions within the Council working group “does not justify, as such, the application of the exception relating to the protection of the decision-making process” (par.78). That exception envisages in general documents on a question where “a decision has not been taken by the institution” concerned. Since a proposal is, by its nature, intended to be discussed, an application for access to legislative documents in the context of an ongoing procedure means that the information contained therein is not yet final and is intended to be amended throughout the discussions in the course of the preparatory work of the working group until there is agreement on the whole text. That was the objective pursued by the request for access made by Mr. de Capitani, who wanted to understand the positions expressed by the Member States within the Council in order to generate a debate before the Council established its final position in the legislative procedure in question.

The test of harming sincere cooperation

Furthermore, the Court finds that “the Council has not produced any tangible evidence to show” (par. 83) that the access to the documents at issue would have harmed the Member States’ sincere cooperation according to article 4(3) of the TEU. Since the Member States express in the Council working groups their respective positions on a given legislative proposal, and that their position could evolve, the fact that those elements are disclosed, on request, is not in itself capable of undermining that sincere cooperation.  In a system based on the principle of democratic legitimacy, co-legislators must be answerable for their actions to the public and if citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information. In the present case, there is nothing to suggest that the Council could reasonably expect a risk of external pressure and a reaction beyond what could be expected from the public by any member of a legislative body who proposes an amendment to draft legislation.

The technical nature is no excuse either

Lastly, access to documents drawn up by the Council working groups cannot be limited because of their allegedly technical nature. “Whether or not a document is ‘technical’ is not a relevant criterion for the purposes of the application” of the exception based on protection of the decision-making process. “The members of the Council working groups are given a mandate from the Member States that they represent and (…) they express the position of their Member State within the Council, when the Council acts in its capacity as co-legislator. The fact that the working groups are not authorised to adopt the Council’s definitive position (…) does not mean that their work does not form part of the normal legislative process (…), or that the documents drawn up are ‘technical’ in nature.” (par. 95).

An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of the General Court within two months and ten days of notification of the decision.

The full text of the judgment is published on the CURIA website on the day of delivery. The original text is the French text.

Lieve Lowet

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