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Council discussing yet another small step towards full, open, democratic decision-making - ten years after the Lisbon Treaty
- plus the Council's Annual Report on access to documents 2018
16.5.19
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In its judgment in the De Capitani case on 22 March 2018, the Court of Justice of the EU decided that 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 even where negotiations are ongoing, as they form an integral part of the legislative procedure.

On 26 March 2019 the General Secretariat (GSC) of the Council set out its response to the judgment: Legislative transparency (LIMITE doc no: 7888-19, pdf).

The De Capitani judgment means that the parliament could release 4-column documents that the Council wants to keep secret. Then the Council would be: "forced to react and adapt to decisions taken by other institutions."

The GSC proposes that the Council's "General Approach" (negotiating position), agreed after lengthy discussions within working parties, should be made public, but not all the documents and discussions that led to the adoption of its position.

This approach, says the Note, would ensure that the infamous "space for reflection" (or "space to think" in secret) would be maintained.

The initial 4-column document and the final one would be made public but not those in-between - maybe up to three, four, five or more different versions.

The proposal concludes that:

"Coreper's central role could be recognised by providing that, for those documents for which publication as a rule would be agreed, any delegation can raise objections to the publication of a specific document during its examination in Coreper."

Thus it is envisaged that:

"progress reports to Coreper could be submitted as LIMITE, but unless delegations object during Coreper the LIMITE marking could be removed after examination by Coreper;

– the outcome 4-column documents of trilogues could be made public after examination in Coreper, unless delegations object to such publication during Coreper."

The concept of "unless delegations object" is unclear, is this to be a majority of delegations or a single delegation?

Coreper is invited to:

– agree to resort in the future as a rule to General Approaches for all legislative files in order to protect the interests of the Council in negotiations."
(sic)

"confirm whether the principle of proactive publication should be pursued, as set out in the draft policy paper of July 2018, or in a more targeted and simplified approach, or dropped altogether. "

These recommendations draw on an earlier document: Legislative transparency (LIMITE doc no: 11099-18, pdf) which sets out a number of "milestones".

Council Annual Report on access to documents 2018

The Council has published its: Seventeenth annual report of the Council on the implementation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Council doc: 7916-19, pdf).

The report states that under Article 17 of the Regulation:

"The Council also issued 978 classified documents, of which 905 are listed in the register [link] and 73 are not."

By far the most popular subject area for requests for access was Justice and Home Affairs, with 20%.

The reasons for refusing initial access requests were:

  • 30.6% protection as regards international relations;
  • 52% to protect the space to think in secret;
  • 28.6% for several reasons (which could include both the above reasons).

The reasons for refusing access on appeal (confirmatory application):

  • 21.5% for protection of "defence and military matters";
  • 21.4% projection of international relations;
  • 21.4% protection of the space to think in secret;
  • 35.7% for several reasons including the above.

"Partial access" (where large sections of a document are redacted (deleted):

  • 20.1% international relations;
  • 28.3 % protection of the space to think in secret;
  • 19.9% for several reasons including the above.

Reasons for refusing access on redacted documents on appeal:

  • 22.2% to protect the space to think in secret;
  • 66.7% for several reasons including the above.

The number of documents added to the public register in 2018:

  • Documents made public on circulation to Member States:
    • legislative: 2,765;
    • non-legislative: 12,550;
  • number of legislative LIMITE documents: 2,332 of which 1,178 made public on request - thus 1,154 were not made public as they were not requested;
  • number of non-legislative documents (largely operational) LIMITE produced was 6,797 of which only 1,561 are made public on request - thus 5,236 LIMITE documents were not released.

It should noted that the LIMITE documents are not classified documents under Article 9 of Regulation 1049/2001 - neither are "RESTRICTED" documents.

In addition, 454 "partially available" (censored) documents were "released" - which is pretty meaningless as the substantive content has been deleted.

Background

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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