Päivi Leino (University of Helsinki)
One of the great
achievements of the Lisbon Treaty, flagged around its adoption and entry into
force, was how the new Treaty would make EU law-making much more transparent. So
far, this has remained an unfulfilled promise. Access to documents relating to the
EU legislative procedure, in particular trilogues, the informal three-party meetings between the European Parliament, the Council and the Commission used
at every stage of the EU legislative procedure, has become particularly topical
during the past months. First, the new Interinstitutional
agreement (IIA) on Better Regulation, provisionally approved in December 2015,
addresses this question.[1]
Second, on 15 December 2015, Emily O’Reilly, European Ombudsman, launched a
public consultation on transparency of trilogues,[2] stressing their role as the forum where the deals are done and the
subsequent need to consider the proper trade-off between the Europeans’ right
to open EU law-making processes and the space to negotiate. Finally, Emilio De
Capitani, the previous head of the LIBE Committee Secretariat, has brought an
appeal against the European Parliament’s decision to refuse full access documents
relating to a legislative proposal.[3]
De Capitani argues in essence that granting access to them would not
specifically, effectively and in a non-hypothetical manner undermine the legislative
decision-making process, and that notably after the Lisbon Treaty, legislative
preparatory documents are subject to the principle of widest possible access.
The
recent events raise a number of fundamental questions relating to how we
understand the function of transparency in law-making that claims democratic
foundations. Moreover, since EU law-making is currently not backed up by any
shared interinstitutional space where documents and meeting schedules would be
recorded in real time, following legislative procedures requires a serious
amount of detective work for those with an interest in following them, and
increases reliance on a culture of leaks. In brief, exercising your democratic
rights should not be this difficult.
The legal
framework of law-making in the EU
The main principle in the Treaty of Lisbon is
clear: the Council and the European Parliament are to legislate in the open,
and are under an obligation to ensure the publication of the documents relating
to the legislative procedures. Regulation No 1049/2001 includes some references
to legislative documents. Under Article 12(2), legislative documents meaning “documents
drawn up or received in the course of procedures for the adoption of acts which
are legally binding in or for the Member States” should be made directly
accessible unless one of the exceptions under the Regulation is applicable. Therefore,
making these documents publicly available should not presume specific requests
but should instead take place automatically. These provisions have been subject
to the Court’s landmark ruling in Turco concerning access to Council legal service opinions, which
stresses how increased openness
enables citizens to participate more closely
in the decision-making process and guarantees that the administration enjoys
greater legitimacy and is more effective and more accountable to the citizen in
a democratic system. Those considerations are clearly of particular relevance
where the Council is acting in its legislative capacity […]. Openness in that
respect contributes to strengthening democracy by allowing citizens to
scrutinize all the information which has formed the basis of a legislative act.
The possibility for citizens to find out the considerations underpinning
legislative action is a precondition for the effective exercise of their
democratic rights.[4]
In the ruling,
the Court set the threshold high in referring to ‘all the information which has
formed the basis for a legislative act’: it is clearly not only quantity that
is of relevance, but also quality. The legislature needs to provide access to
information concerning the key elements on the legislative agenda while the
relevant process is on-going and there is a chance to influence it.
However, the
institutions, and the Council in particular, have had difficulties with
maintaining this standard and turned to a vast number of excuses that risk to
water down the principle in rather fundamental ways.[5] In the Council’s
view, the application of the Treaty provisions stipulating the publicity of its meeting are restricted to documents
that are submitted to the Council for the preparation of the latter’s
deliberation or vote.[6]
This raises the rather fundamental question of the relevance of the stage of
decision-making for the application of legislative transparency. The Council
understanding would seem to deprive the principle of much of its democratic effet
utile; If the publicity of legislative documents was indeed limited to only
those documents that are issued a couple of days before a formal ministerial meeting
where a legislative file is to be deliberated or approved, often without any
discussion, then transparency would only be applied at the point when the file
is to be closed and the process is over. This would effectively hamper access
to documents produced during the time when the majority of questions are
settled at lower decision-making levels between civil servants, ambassadors and
the three institutions. The Council has also argued that the early stage of the
legislative process between the institutions, namely first reading, is a point
to be taken into consideration. [7] At the same time,
a major part of legislative files are closed specifically at first reading: For
example in 2009-2013, 83 % of legislative files were closed at first reading, 8
% during early second, 7 % at second, and only 3 % at third.[8]
The relevant provision in Regulation No 1049/2001 in
this regard is the ‘space to think’ exception in Article 4(3), relating to
situations where a decision has not yet been taken by the institution. The
Parliament has repeatedly voiced the argument that the said provision is
outdated as far as legislative matters are concerned,[9]
and suggested both that no exception would ever apply to ‘documents transmitted
within the framework of procedures leading to a legislative act or a
non-legislative act of general application’ but also the deletion of Article
4(3) altogether.[10]
The latter is a far-reaching proposal that might benefit from further
reflection considering that the exception has been used for varying purposes
outside the legislative context.
However, Article 4(3) was interpreted in the
post-Lisbon legislative context by the Court when Access Info Europe, an NGO
promoting freedom of information in the EU, requested access to a legislative
document including footnotes indicating the positions of individual Member
States. The central question was whether access to Member State positions
distracts the effectiveness of decision-making and if yes, which one should
take priority, effectiveness or openness. The Council lost the case in the
General Court and appealed to the Court of Justice[11]
arguing that the General Court’s reading had attached ‘undue and excessive weight to the transparency of
the decision-making process, without taking any account of the needs associated
with the effectiveness of that process’, and disregarded the balanced approach
laid down both in primary law and secondary law between the two objectives. The
Council argued that ‘its legislative process is very fluid and requires a high
level of flexibility on the part of Member States so that they can modify their
initial position, thus maximising the chances of reaching an agreement’. In the
Council’s view, identifying the delegations was not necessary for ensuring a
democratic debate. The CJEU rejected this with reference to how full access can
be limited only if there is a genuine risk that the protected interests might
be undermined. The high standard of proof required to establish that level of
harm makes it almost impossible to rely on Article 4(3) in this context. In
particular, according to the Court,
the
various proposals for amendment or re-drafting made by the four Member State
delegations which are described in the requested document are part of the
normal legislative process, from which it follows that the requested documents
could not be regarded as sensitive – not solely by reference to the criterion
concerning the involvement of a fundamental interest of the European Union or
of the Member States, but by reference to any criterion whatsoever (para 63).
So
far, the Court has stood rather firm in promoting transparency of core
legislative documents,[12]
and is likely to have a word or two to say in the De Capitani case. However, its rulings are of a limited importance
as long as it is accepted that the institutions may apply them selectively.[13]
Access to trilogue documents
Trilogues are
increasingly taking over as the main forum for making legislative deals between
the three institutions.[14]
They are the prime example of informal decision-making, which is often
glorified in the EU context as the tool guaranteeing efficient law-making.[15]
In
first reading deals trilogues function as the forum for interinstitutional
agreement. The Treaties
make no reference to this forum. In the joint declaration on practical
arrangements for the co-decision procedure adopted in 2007, the three
institutions argue that the trilogue ‘system has demonstrated its vitality and
flexibility in increasing significantly the possibilities for agreement at
first and second reading stages’. According to the declaration, trilogues ‘may
be held at all stages of the procedure and at different levels of
representation, depending on the nature of the expected discussion’.[16]
The use of informal formats is not in any way restricted to technical, urgent
or uncontested files.[17]
Trilogues
are an incredibly efficient format for accommodating institutional positions,
and have led to a great majority of deals being closed early in the legislative
procedure.
During
the trilogue phase, the EU democratic process is
in the hands of very few: the European Parliament rapporteur(s), the
representatives of the Council Presidency and Secretariat and a few Commission
officials. This phase largely escapes public scrutiny. The joint declaration quoted above
stipulates that ‘trilogues taking place within the European Parliament and
Council shall be announced, where practicable’, and ‘when conclusion of a
dossier at first reading is imminent, information on the intention to conclude
an agreement should be made readily available as soon as possible’. There is no
mention of access to information while the process is in the substantive phase.
Civil society representatives have, for a very good reason, pointed out how
trilogues represent the victory of efficient law-making over the formal
machinery of law-making, which results in a general lack of transparency.[18]
The informal
arrangements surrounding trilogues not only affect public access, but also
access within the institutions. Information is power, and
the trilogue format empowers those that possess it at the expense of those who
do not. Political
scientists have demonstrated how within the Parliament, first reading
agreements emphasise the discretion given to its own rapporteur(s)[19] and stress the role of responsible committee.
Handing out information is in the hands of the rapporteurs, whose tweets
commenting on the conduct of negotiations also create a practical avenue to
information for many Member State governments. As far as the Council is
concerned, first reading agreements mean in practice that deals are
effectively concluded before they reach the ministers, since the Council
position is settled by Coreper. In principle, feedback from trilogues is given
to the delegations either through working parties or Coreper. National
parliaments often experience difficulties following decision-making in
trilogies, especially since amendments are made at great speed, which hinders
their effective scrutiny at national level.[20]
Ombudsman
inquiry and the new IIA
The European Ombudsman initiative is
therefore timely, even if the objective of ensuring transparency in the
legislative procedure reaches beyond its current scope. Last May, the
Ombudsman approached the three institutions about their proactive disclosure
policies on trilogue documents.[21]
In his reply to the
Ombudsman, Martin Schultz, President of the European Parliament, describes the
current trilogue-related practices in the Parliament, but focuses on its internal
transparency and accountability, which he sees as requiring that all political
groups may follow and influence the negotiations. This speaks against an undue
formalisation of the trilogue process. The Commission challenges the
Ombudsman’s mandate to engage in the own-initiative inquiry altogether. In its
view, trilogues are a
preparatory step in negotiations of a purely
legislative nature and it is hard to see how any aspect of their conduct, such
as whether or when to hold trilogue meetings, the choice of representatives by
each institution to attend trilogue meetings, whether or which supporting
documents to produce etc., can give rise to maladministration, except as
regards questions related to public access to the documents used during
trilogue meetings.
In its reply, the Commission stresses the internal
nature of any possible briefing documents and lack of systematic records of
what takes place during the trilogues. And the Council, not surprisingly,
agrees with the Commission:
The Council is of the view that the exercise of
legislative powers is not limited to the adoption of political choices on the
merits of legislative files. It also includes the choices according to which the
legislators decide to organise the legislative process itself. The organisation
of the legislative process cannot be considered an administrative activity –
and therefore cannot give rise to possible instances of maladministration – but
ought rather to be regarded as an essential aspect of the exercise of the
legislators’ prerogatives.
In other words, hands off legislative
transparency, European Ombudsman. And yet, it is difficult to think of a matter
where issues relating to access to documents and information in the broad sense
would be more vital in a union that is tackling a permanent democratic and
legitimacy deficit.
In the new IIA, provisionally concluded in
December 2015, the Commission proposal on how the ‘three institutions will
ensure an appropriate degree of transparency of the legislative process,
including of trilateral negotiations between the three institutions’[22]
is strengthened. The three institutions now commit to ensuring ‘the
transparency of legislative procedures, on the basis of relevant legislation
and case-law, including an appropriate handling of trilateral negotiations’.
For this purpose, they ‘improve communication to the public during the whole
legislative cycle’ and ’undertake to identify, by 31 December 2016, ways of
further developing platforms and tools to this end, with a view to establishing
a dedicated joint database on the state of play of legislative files’.[23]
While promises carry little weight if institutional attitudes remain unchanged,
the latter commitment could contribute not only making more documents available
earlier in the process and making their identification easier, also to shedding
light on the vast number of legislative documents that are currently not made
public while the process is pending.
In
more than one way, the recent debates illustrate how knowledge is power;
therefore, those that are in possession of it are unlikely to volunteer to
distribute it. In this respect, what we need is a much more political debate on
the way in which the exercise of democratic rights is effectively exhausted,
often in practice through the choices of technocrats in the EU institutions,
who make choices about how individual requests for documents are answered and
which documents are placed on the web. Are the current institutional politics
acceptable, or are they not? And more fundamentally, is efficiency such an
overarching value that it triumphs in all circumstances over all other
objectives, such as securing a transparent and democratic decision-making
process?
Photo credit: pressgazette.co.uk
[1] Provisional text of the
proposed interinstitutional agreement on better regulation, dated 16 December
2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf, Article 28-28a.
[3] Case T-540/15, De Capitani v European Parliament.
[4] Joined Cases C-39/05 P and C-52/05
P Kingdom of Sweden and Maurizio Turco v the Council, paras 45-46
[5] See also Päivi Leino, “Transparency,
Participation and EU Institutional Practice: An Inquiry into the Limits of the
‘Widest Possible’”, EUI Working Paper (LAW 3/2014). Available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf .
[6] See the Council reply to
Confirmatory application No 05/c/01/12 by Ms Anneli Jäätteenmäki, MEP.
[7] For the Council’s reply to
ClientEarth, see
http://register.consilium.europa.eu/pdf/en/10/st12/st12068.en10.pdf .
[8] The figures can be found on the
Parliament’s website http://www.europarl.europa.eu/code/about/statistics_en.htm .
[9] The ‘Hautala / Sargentini report’,
Public access to documents 2009-2010 European Parliament resolution of 14
September 2011 on public access to documents (Rule 104(7)) for the years
2009-2010 (2010/2294(INI)) P7_TA(2011)0378.
[10] Public access to European
Parliament, Council and Commission documents (recast), P6_TA(2009)0114
A6-0077/2009 .
[11] C-280/11 P Council v Access Info
Europe.
[12] Even if the General Court recently
made a true bummer relating to impact assessments, which play a key role in the
early stages of the legislative procedure; see T-424/14
ClientEarth v. the Commission.
[13] See Päivi Leino, “Transparency,
Participation and EU Institutional Practice: An Inquiry into the Limits of the
‘Widest Possible’”, EUI Working Paper (LAW 3/2014); available at
http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf
[14] ‘Shifting EU Institutional Reform
into High Gear: Report of the CEPS High-level Group’, pp. 1-24, Report
available at http://www.ceps.eu/book/shifting-eu-institutional-reform-high-gear-report-ceps-high-level-group .
[15] See in greater detail, Päivi Leino
“The Politics of Efficient Compromise in the Adoption of EU Legal Acts” in
Marise Cremona (Ed.), EU Legal Acts:
Challenges and Transformations, Collected Courses of the Academy of European
Law (Oxford University Press, forthcoming 2016.)
[16] Joint declaration on practical
arrangements for the Codecision procedure. OJ 2007 C 145/02 .
[17] See Bressanelli, Héritier, Koop and Reh, ‘The
Informal Politics of Codecision: Introducing a New Data Set on Early Agreements
in the European Union’, EUI Working
Papers RSCAS 2014/64.
[18] See e.g. Bunyan, ‘European Parliament: Abolish 1st
[and 2nd] reading secret deals – bring back democracy ‘warts and all’’,
Statewatch analysis available at:
http://www.statewatch.org/analyses/no-84-ep-first-reading-deals.pdf
[19] Discussed in Hix and Hoyland,
‘Empowerment of the European Parliament’, 16 Annu. Rev. Polit.Sci (2013) 171, at 184. For rules concerning the
Parliament’s representation and position-building, see European Parliament
Rules of Procedure, Rule 70.
[20] House of Lords Report with
Evidence. Codecision and national parliamentary scrutiny, HL Paper 125 (2009) 15-16.
[21] The opinions are available on the
Ombudsman website, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61592/html.bookmark .
[22] Proposal for an Interinstitutional Agreement on
Better Regulation, COM(2015) 216 final.
[23] Provisional text of the proposed interinstitutional agreement on better
regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf .
