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EU: Council discussing giving Member States the right to veto releasing documents and trilogue discussions - in defiance of CJEU judgment and EU law

27 May 2019

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Council discuss giving Member States the right to veto releasing trilogue discussion documents - in defiance of CJEU judgment and EU law
- Article 266 of TFEU: "The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the court of Justice of the European Union."
27.5.19
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The Council of the European Union is discussing giving Member States the right to veto access to documents concerning secret trilogue meetings contrary to the judgment in the case taken against the European Parliament in the Court of Justice judgment of 22 March 2018. In the De Capitani judgment the CJEU said access should be given to 4-column documents which set out of the state of play in secret trilogue meetings between the Council and the European Parliament as they form an integral part of the legislative procedure even where negotiations are ongoing.

The latest discussions are set out in: Legislative transparency - examination of options (LIMITE document no: 9319-19, dated 15 May 2019, pdf)

It proposes that any Member State delegation can seek to veto preparatory documents which, if accepted, could lead to the European Parliament being barred from allowing direct access to trilogue documents.

Two alternatives are proposed "Use of General Approach" and a "Targeted publication approach."

Use of General Approach

"During the Coreper discussion, there was broad support for the principle of adopting initial mandates for legislative files as General Approach at Council level, as a general rule. Several delegations called for the possibility of exceptions to be foreseen in order to prevent hampering the efficiency of the legislative process."

In the Council proposed measures are first discussed and agreed in Working Parties until a negotiating position is reached which is the "General Approach" - a mandate to open negotiations with the EP in trilogue meetings.

The document makes clear the status of all the documents before this stage: Point 4 says:

"an agreement reached at the level of the working party could not constitute an initial mandate for negotiations unless it is validated by Coreper.."

Exceptions to this general rule::

"5. It is proposed to define the exceptions to this general rule as applying when all the following circumstances are met. An initial mandate can be granted at Coreper level:

a. upon the initiative of the Presidency;
b. when the calendar of planned negotiations so requires;
c. with the agreement of Coreper; and
d. making the mandate public after its examination in Coreper."

It is also made clear that:

"The proposed approach would only apply for initial mandates; it would not have an impact on the practice applicable for revising mandates during the negotiations."

Targeted publication approach

"10. No objections were expressed in Coreper to the inclusion in a possible targeted approach of:

a. the initial Council mandate (in line with above);

b. the final position (the "fourth column" of the last 4-column table reflecting the final outcome of negotiations), after examination by Coreper; and

c. progress reports submitted to Coreper, after examination by Coreper and if no objection has been raised in Coreper to their publication.

Point 11 makes clear that whole 4-column documents would not be made public only the final, agreed "compromise" text:

"11. For 10b above, it should be noted that what is meant is only the agreed text, rather than the whole 4-column table representing the outcome of the last trilogue;"

The procedure for objections to documents being made public:

"For 10c above, it is proposed that an objection could be raised by a single delegation and no specific grounds would be required. The objection would only reverse the presumption of proactive disclosure while the relevant rules will apply as concerns making public a document (simple majority),"

Point 14 sets the process of releasing much of which is already the Council's practice.

Point 15 says:

"15. For the case of documents produced in the context of trilogues, the following could be envisaged:

a. trilogue agendas, where applicable, would not be considered for proactive publication;

b. lists of participants for trilogues, where applicable, would not be considered for proactive publication (including in light of data protection requirements);

c. 4-column tables established in preparation for a trilogue or as outcome for a trilogue could be made public, in coordination with EP and Commission if they are co-authors of the document, upon initiative of the Presidency, after examination by Coreper and if no objection has been raised in Coreper to their publication (an objection could be raised by a single delegation and no specific grounds would be required since the objection would only reverse the presumption of proactive disclosure while the relevant rules would apply as concerns making public a document (simple majority).

The document concludes:

"16. It could be envisaged to consider the approach in point 15 above as a position of the Council in view of discussions with the other institutions involved in the trilogue process, in order to allow for a common approach to be agreed on the handling of these jointly-held documents.

The Antici group is invited to:

- confirm the proposal in point 4 and 5;

- confirm the elements in point 10 and examine which of the elements in points 14 and 15 meet the broadest support."

The "Antici group" advises COREPER II and is named after the Italian official who proposed its creation.

Conclusion

The Council does not intend to abide by the CJEU judgment and infringes Article 266 of TFEU according to which:

"The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union."

See previous document: Legislative transparency (LIMITE doc no: 7888-19, dated 26 March 2019,pdf). These recommendations draw on an earlier document: Legislative transparency (LIMITE doc no: 11099-18, pdf) which sets out a number of "Milestones".

Background

Council discussing yet another small step towards full, open, democratic decision-making - ten years after the Lisbon Treaty (Statewatch News)

Statewatch Briefing: Another step towards ending EU law-making through secret trilogue meetings (pdf)

More legislative transparency providing it does not stop the "space to think" in secret (Statewatch News)

Statewatch wins two new complaints: European Ombudsman decision breaches "space to think" (Statewatch News)

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