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18 March 2017

EU  
European Ombudsman launches Inquiry into availability of Council legislative documents
- the root of legislative secrecy lies in secret trilogues
18.3.17
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On 10 March 2017 the European Ombudsman launched an inquiry into:

"the disclosure of documents from discussions on draft EU legislative acts in Council preparatory bodies."

See: Access to documents relating to Council preparatory bodies when discussing
draft EU legislative acts (pdf)

The letter to the Council observes that:

"The General Secretariat of the Council (GSC) does not proactively make available documents reflecting the positions of individual Member States during negotiations. This approach, however, is without prejudice to the right of public access to documents provided for in Regulation 1049/20015. These documents can be made available after the act in question has been adopted, provided that they are not covered by any exception laid down in Article 4 of Regulation 1049/2001." [emphasis added]

The notion that legislative documents are only made public after a measure is adopted has no place in a democracy.

The reality is that Member States positions in the Council developing its negotiating position are hidden in LIMITE documents see for example: RECEPTION DIRECTIVE: Proposal for a Directive of the Council laying down standards for the reception of applicants for international protection (LIMITE doc no 7004-17, pdf) 97 Footnotes with Member State positions.

LIMITE documents are not "classified documents" they are documents under the internal rules of the Council which are solely intended for circulation to Member States. In this way the Council is circumventing the CJEU ruling in the Access Info Europe ruling (C-280/11 P) (see Note below). Classified documents are: "Restricted, Confidential, Secret and Top Secret").

There are other documents which are circulated to Council Working Parties (eg: "WK" documents which are numbered) and "meetings documents" which do not have numbers.

The crux of the matter is that the Council wants to keep its documents secret so that it can be "flexible" when negotiating in secret trilogues with the European Parliament:

"I am mindful of the fact that documents tabled by preparatory bodies serve primarily to record the progress of discussions and to formalise possible compromises, in order to make the negotiation process as effective as possible.

It is also clear that a certain degree of flexibility is needed to take account of the different types of preparatory bodies and the variety of subjects under discussion. However, in many cases these documents are the only possible source of information by which the public can follow how decisions are prepared before being discussed or approved in public by the Council."

The root of legislative secrecy lies in secret trilogues

The issue of secret trilogues, to which this issue relates was the subject of a previous Ombudsman inquiry which found that there was no case of maladministration. See: Trilogues: Again citizens and civil society get half the cake: Institutional "Space to think" (in secret) defended by EU Ombudsman (Statewatch).

After this was written the responses of the Council, the Commission and the European Parliament to the trilogue inquiry were made available - all express their pleasure that there was no case of maladministation in the secret trilogue meetings when closing the Inquiry.

- the Council response (pdf): The Council "welcomes" there is no case to answer. As it:

"is the prerogative of the co-legislators and cannot give rise to instances of maladministration..."

and that the "institutions need a space for exchange and explanation in a spirit of trust and confidence." In other words the "space to think" in secret.

- the Commission response (pdf) almost word for word repeats the position of the Council:

"Regarding steps to make further details public in a proactive way, it is necessary to take into account that the Institutions need a space for exchange and explanation in a spirit of trust and confidence. Over-formalising them could become counterproductive in terms of transparency as it could push the “real” negotiation into other forums. Much of the value of the trilogue process lies in its informality and flexibility. Greater transparency should not come at the price of making the process excessively rigid and formal."

All three institutions refer to a pending CJEU case:

"The question of the possible publication of four-column documents more broadly is closely linked with issues currently being examined by the General Court in a pending case (T-540/15 De Capitani/Parliament)."

- the European Parliament response (pdf)

"I welcome the fact that indeed no grounds for maladministration were found....

we share the same objective of making the EU' s legislative procedure as open as
possible, without unduly or unintentionally limiting its efficiency and, even more
important, without putting the required internal transparency and accountability of the
decision-making process at risk."

"Efficiency" wins out over democracy.

In conclusion it should be noted that 82% of all new measures going through the parliament's Civil Liberties Committee (LIBE) are agreed with the Council in secret trilogue meetings.

Tony Bunyan, Statewatch Director comments:

"the root of legislative secrecy lies in secret trilogues"

Note

EU: ACCESS TO DOCUMENTS: European Court of Justice rules in favour of greater transparency of the Council of the EU (Access Info, link) and Full-text of judgment (pdf):

"Madrid/Luxembourg, 17 October 2013 - In a case brought by Access Info Europe, the European Court of Justice today rejected arguments by the Council of the European Union that it should be able to keep secret the identities of Member States making proposals in the context of negotiations on future EU legislation....The Council of the EU had fought to defend its policy of releasing legislative drafting documents with the names of Member States tabling amendments blacked out."

The document in question. as the court notes. concerned discussions within the Council on amending the Regulation on public to EU documents - it was dated 26 November 2008 and the full-text (with Member States' positions) was put online at the time by Statewatch: EU doc no: 16338/08 (pdf).

At issue was the Council's deletion of Member States' positions: The judgment observes in para 8: "On 26 November 2008 – that is to say, the very day on which the requested document was created – an unedited version of the requested document was made available to the public on the internet site of the organisation Statewatch, without authorisation (‘the unauthorised disclosure")."

See also:

Statewatch: Ombudsman to Council on secrecy in law-making: "there has never been a more critical time" for openness

A missed opportunity to open up secret trilogue decision-making in the EU (pdf) by Tony Bunyan

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