EU Law Analysis: EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

Massimo Frigo, Senior Legal Adviser of the International Commission
of Jurist’s Europe Programme*

It is sometimes cases on obscure
administrative processes that become landmark judgments in the ever constant
building of our democratic legal systems. In the US Marbury
v. Madison
was a case that at the time attracted little attention as
the subject matter related to respect of procedures in judicial appointments.
This notwithstanding it came to be the legal milestone of constitutional review
in the US legal system.

In the European Union one of
these cases was decided on 22 March: Emilio
De Capitani v. Parliament
. As it will be outlined below, it is a
technical case that goes to the heart of the procedure of one of the
fundamental institutions in a democracy: Parliament.

The EU legislative decision-making process

Unlike the United States, the
European Union is not a State. However, it retains more and more competence to
legislate in areas of everyday life and of crucial constitutional State
prerogatives, including in the sphere of justice and home affairs that includes
immigration, asylum, border control, and police cooperation.

The legislative process of the EU
may be generally simplified in this way: the European Commission, i.e. a
body of supposedly independent experts appointed by the European Council
(see, the 28, soon 27, heads of State or government of its Member States) and
approved by the European
(the only institutions directly elected by EU citizens), has the
initiative to table legislation.

Once the proposal is tabled it is
the turn of the co-legislators to discuss it, amend it, approve it or reject
it. At any moment the European Commission can withdraw the proposal and put an
end to the process.

The EU legislators are the
European Parliament and the Council of the European
. The latter consists of the Governments, often in the configuration
of the ministries relevant to the legislative piece to be discussed, of the EU
Member States. These two bodies must agree on the legislative text, and its
potential modifications, and approve it in the same form before it can become
law. They can do it in one or two reading sessions.

In the last decades, since this
procedure (once called “co-decision” and now the “ordinary legislative
procedure”) came to exist, a practical solution to speed up the legislative
procedure was found by holding what are called “trilogues”. These are closed
meeting among representatives of the Council of the EU, the European Parliament
and the European Commission to find a compromise and produce an agreed text
that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues
is that no one from the public has access to them nor to any document on the proposed
suggestions for compromise. Furthermore, when an agreement is reached,
statistically, both the Parliament and the Council almost always approve the agreed
compromise into law without further amendments. It is therefore a key moment in
the legislative process. And it is absolutely foreclosed to EU citizens and
civil society.

The case

Mr De Capitani brought a
challenge to the General
Court of the European Union
, the judicial body competent for cases against
EU institutions at first instance, because Parliament, after having consulted
the Council and the Commission, refused him access to the part of a document in
the legislative process. Specifically this part of the document is the fourth
column in a tabled document that reports the compromises reached or suggested
during the trilogues, while the first three of them include the original
proposal and the positions of the institutions.

The judgment

The General Court ruled that,
“contrary to what the Council maintains …, … the trilogue tables form part of
the legislative process.” (para 75, , De

It pointed out that

78. … it is
precisely openness in the legislative process that contributes to conferring
greater legitimacy on the institutions in the eyes of EU citizens and increasing
their confidence in them by allowing divergences between various points of view
to be openly debated. It is in fact rather a lack of information and debate
which is capable of giving rise to doubts in the minds of citizens, not only as
regards the lawfulness of an isolated act, but also as regards the legitimacy
of the decision-making process as a whole … .

The Court dismissed the EU
institutions’ exception that non-disclosure was necessary because the document
dealt with a draft law in the area of police cooperation. The Court very
strongly ruled that

89… the fact …
that the documents at issue relate to the area of police cooperation cannot per
se suffice in demonstrating the special sensitivity of the documents. To hold
otherwise would mean exempting a whole field of EU law from the transparency
requirements of legislative action in that field.

Furthermore the Court stressed

90…. the
documents at issue concern a proposal for a draft regulation, of general scope,
binding in all of its elements and directly applicable in all the Member
States, which naturally concerns citizens, all the more so since at issue here
is a legislative proposal directly affecting the rights of EU citizens, inter
alia their right to personal data protection …, from which it follows that the
legislative proposal could not be regarded as sensitive by reference to any
criterion whatsoever … .

The Court then dealt with the
assertion that access to these documents could increase public pressure on the
representatives of the EU institutions involved in the trilogue procedure:

98… in a
system based on the principle of democratic legitimacy, co-legislators must be
held accountable for their actions to the public. 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 … Thus,
the expression of public opinion in relation to a particular provisional
legislative proposal or agreement agreed in the course of a trilogue and
reflected in the fourth column of a trilogue table forms an integral part of
the exercise of EU citizens’ democratic rights, particularly since … such
agreements are generally subsequently adopted without substantial amendment by
the co-legislators.

Finally, while allowing still the
possibility for certain situations (“duly justified cases”) of non-disclosure
for co-legislators, including Parliament (para 112, De
), the Court closed by rejecting also the argument raised by
Parliament that making public documents of the trilogue would have taken away
the nature of these meetings as a “space to think” . The Court unmistakably
reminded Parliament that these meetings are essential parts of the legislative
procedure and not “spaces to think” and as such must be subject to the required
level of publicity (para 105, De

Conclusion: a more democratic EU?

The European Union does not enjoy
today the best image in terms of transparency, accountability and democratic
processes. Its institutions have been openly attacked from many different
quarters for their lack of transparency and the bureaucratic nature of their
procedures. Most of these attacks are populist fear-mongering that simply aims
at finding a scapegoat to gain political traction, votes and, hence, power.
However, as we have seen, some critiques of the EU structure cannot be simply
dismissed as political nonsense and one of them is about the legislative
process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these
institutions and, importantly, demonstrates that, while some institutions of
the EU may be criticised for lack of transparency and obedience to the rule of
law, there are institutions, notably the EU courts, that can address the
problem within.

This ruling can still be subject
to appeal before the Court
of Justice of the EU
. In the meantime and this notwithstanding, the crucial
question is whether and how the ruling will be implemented. Will the
Parliament, the Council, i.e. the Governments of the Member States, and the
Commission open up to democratic scrutiny in legislative process?

The answer to this question will
be vital for the EU to withstand any criticism that it does not obey the rule
of law and democratic accountability. This is why this case is a turning point
for the EU rule of law structure. Much of the legitimacy of the EU as a rule of
law based supra-national organisation lies in what its institutions are going
to do next. And we’d better be watching…

Barnard & Peers: chapter 5, chapter 9

Photo credit: Walsall College

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