How the EU “legislative triangle” is becoming a “Bermudes, triangle “…

by Emilio De Capitani

According to several scholars the Lisbon Treaty has strengthened the implementation of the democratic principle in the EU as well as the framework for participative democracy. In theory with entry into force of the Charter the EU has become more accountable to its citizens and there has been a clear improvement of the legal framework for EU legislative and non legislative activity. Even if not perfectly sound) there is now a clear definition of what should be considered of “legislative” nature and there is now a clear obligation (at primary law level) to debate publicly both in the Council and in the European Parliament.

Needless to say, the latter has been for years the champion of legislative and administrative transparency  not only in the citizens interest but also in view of the definition of its own marge of maneuver during the negotiations with the Council. This former EP attitude was not particularly appreciated by the Council and the Commission when in 2001, before Lisbon, the three institutions negotiated the first EU legislation in this domain. (Regulation 1049/01). However at the time it was easy to say that time was needed to promote open debates and votes in the Council and in the Commission because it would had required a change of culture in an institution mainly structured as a bureaucratic machinery (the Commission) or in an other framed by a diplomatic approach (the Council).

Five years after Lisbon such a change of culture in the Council and the Commission is it under way or is the other way round for the EP?

Have a look to the exchange of messages below and make your own opinion. The issue is still pending but risks to have some interesting developments…

Request for access to legislative preparatory documents debated during ‘Trilogues’

1 MY ORIGINAL REQUEST

From: Emilio De Capitani April 15, 2015
To the European Parliament,
Under the right of access to documents, as tabled in art. 15 TFEU and granted by art. 42 of the European Charter of Fundamental Rights and currently framed by Regulation 1049/2001, I am
requesting documents authored by the EP or available to it, which contain the following information:
– justifications for seeking early agreements on the current co-decision procedures put forward in all committees
– multicolumn tables (describing the Commission proposal, the Parliamentary Committee orientation, the Council internal bodies suggested amendements and, if existing, suggested draft
compromises) submitted to trialogues for the current pending co-decision procedures
I would like to obtain them
– in ENGLISH or, if not available in FRENCH
– in electronic format
Thanks in Advance!
Yours faithfully, (…)

THE FIRST EP REPLY

From: Registre European Parliament
May 06, 2015
OUR REFERENCE: A(2015)4931
Dear Mr De Capitani,
Further to your request submitted to the European Parliament under Regulation (EC) No 1049/2001 on 15 April 2015 regarding public access to documents held by the institution in connexion with current pending codecision procedures, we would like to inform you that your request is under consideration.

Parliament is currently dealing with around 140 legislative files under codecision/ordinary legislative procedure, certain of them under negotiations, with a view to reaching an agreement early in the legislative process. Clear identification of all the individual files concerned, and relevant documents, falling within the scope of your request is in progress by the relevant parliament competent services.

As far as your request for multicolumn tables is concerned, please be aware that the joint nature of these documents, as recognised by Parliament’s Rules of Procedure, requires Parliament to launch the necessary consultation with Council and Commission, pursuant Article 4(4) of Regulation (EC) No 1049/2001.

Taking into account that your application relates to a very large number of documents, and in consideration of the need to allow adequate time for the conclusion of the consultation procedure under Article 4(4) of Regulation (EC) No 1049/2001, Parliament is obliged to extend the deadline for processing your reply by further 15 working days, in accordance with Article 7(3) of Regulation (EC) No 1049/2001.

Thus, the new deadline expires on 02 June 2015. (…)
————————-

THE EP NEGATIVE REPLY

Mr Emilio De Capitani,
Fundamental Rights European Experts Group,
11 rue Darwin,
B-1190 Brussels.

Dear Mr De Capitani,
Subject: Your request for public access to documents Ourref.:A(2015)4931
On 15 April 2015, the Parliament received your request, under Regulation (EC) No 1049/2001, for public access to documents related to early agreements in the current co-decision procedures, and in particular multicolumn tables submitted to trilogues.

Since the date of reception of your request, the Parliament has identified 40 co-decision/ordinary legislative procedures falling within the scope of your request, involving 119 documents in total (a list of all the procedures relevant to your request is attached in Annex I).

As regards the multi-column documents, the use of such documents stems from the conciliation procedure, but they are at present used to track negotiations during first reading and early second reading agreements in tripartite meetings (trilogues).

Trilogues are usually conducted in an informal framework and multi-column documents are intended to help reconcile the positions of the three institutions (Parliament, Council and Commission), with a view to clearing the way for the adoption of an act at an early stage of the decision-making process.
According to the Parliament’s Rules of Procedure, multi-column documents are considered as joint documents, indicating the negotiating position of the respective institution on the specific file under discussion and proposals for compromise texts, where appropriate1. While the first and second columns reproduce text which is already in the public domain, the third and fourth columns often contain text that has not yet been agreed, where negotiations are still ongoing between the Council and the Parliament.

Full disclosure of the compromise proposals before agreement, without a prior individual assessment of each requested document, might affect the required mutual trust between the institutions and, thus, the negotiating process, thereby diminishing the chances of reaching an overall agreement.
Therefore, in order to process your request, the Parliament would have to assess, on a case by case basis, each of the documents concerned to ascertain whether full or partial public access to the third and fourth columns can be granted.

The assessment would create an excessive administrative burden for Parliament, due to the fact that the negotiating teams themselves, involved in the procedures at stake, would be those reviewing the documents concerned. The relevant services, however, already have a heavy workload with the preparation of the ongoing negotiations on the different co-decision files, with a view to reaching.an early agreement at the first or second reading stage.

Indeed, it flows from the principle of proportionality that the institutions may, in particular cases where the volume of documents for which access is requested or where the number of passages to be assessed would create an inappropriate administrative burden, balance the interest of the applicant for access against the workload resulting from the processing of the application in order to safeguard the interests of good administration2.

Moreover, according to recent case-law , in exceptional cases, derogation from the obligation to grant partial access is permissible where the administrative task of blanking out the parts that may not be disclosed proves to be particularly burdensome, thereby exceeding the limits of what may reasonably be required.

As a consequence, I regret to inform you that Parliament is obliged to refuse public access to the requested documents, on the grounds that the administrative burden created by their disclosure would be disproportionate as compared to the objectives set out in your application for access to those documents.

I would like to draw your attention to the fact that, pursuant to Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to submit, within 15 working days of receipt of this letter, a confirmatory application with a reasoned request for Parliament’s position to be reconsidered.
Yours sincerely, Klaus WELLE

NOTES
1 The term four-column document is defined in the second subparagraph of paragraph 5 of Annex XX (“Code of Conduct for negotiating in the context of the ordinary legislative procedures”) of the Parliament’s Rules of Procedure.
2 Judgment of the Court of Justice of 2 October 2014 in case C-127/13,Strack v Commission.
3 Judgment of the Court of First Instance of 7 February 2002 in case, T-211/00, Kitijev v Council.

Annex
LIST OF PROCEDURES FALLING WITHIN THE SCOPE OF REQUEST A(2015)4931
COD 2008/0090: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2011/0218: http://www.europarl.europa.eu/oeil/popup… (COD)
COD2011/0901B: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2012/0082: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2012/0084: http://www.europarLeuropa.eu/oeil/popups…(COD)&l=en
COD 2012/0175: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2012/0193: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2012/0196: http://www.europarl.europa.eu/oeil/popup…(COD)&l =en-
COD 2012/0288: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2012/0360: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0014: http://www.europarl.europa.eu/oeil/popup…(COD)
COD 2013/0015: http://www.europarl.europa.eu/oeil/popup… g=en&reference=2013/0015 (COD)
COD 2013/0016: http://www.europarl.europa.eu/oeil/popup…. do?lang=en&reference=2013/0016 (COD)
COD 2013/0024: http://www.europarl.europa.eu/oeil/popup…. do?lang=en&reference=2013/0024 (COD)
COD 2013/0025: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0027: http://www.europarl.europa.eu/oeil/popup…(COD)
COD 2013/0081: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0088: http://www.europarl.europa.eu/oeil/popup…(COD)
COD 2013/0089: http.7/www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2013/0089 (COD)
COD 2013/0091: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0136: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0165: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0214: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0224: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0226: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0246: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0264: http://www europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2013/0264(COD)
COD 2013/0265:http://www.europarl.europa.eu/oeil/popup…. do?lang=en&reference=2013/0265 (COD)
COD 2013/0279: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0297: http://www.europarl.europa.eu/oeil/popup…(COD)&l =en
COD 2013/0309: http://www.europarl.europa.eu/oeil/popup…(COD)&l =en
COD 2013/0371: http://www.europarl.europa.eu/oeil/popup… (COD)
COD 2013/0403: http://www.europarl.europa.eu/oeil/popup…(COD)
COD 2013/0408: http://www.europarl.europa.eu/oeil/popup…(COD)&l =en
COD 2013/0410: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0435:http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2013/0436: http://www.europarl.europa.eu/oeil/popup…(COD)&l=en
COD 2014/0011: http://www.europarl.europa.eu/oeil/popup…. do?reference=2014/0011(“C0D)&1 =en
COD 2014/0213: http://www.europarl.europa.eu/oeil/popup…(COD)

MY CONFIRMATORY APPLICATION

Brussels 19/06/2015
To the attention of Klaus WELLE Secretary General of the European Parliament

Dear Secretary General,‎

Following Your letter (doc A(2015)4931- on June 3, 2015) I hereby submit a confirmatory application of my request of access to preparatory documents (and in particular the multicolumn tables) linked with so called “trilogues” drawing to early agreements in the “ordinary legislative procedures” still pending before the EU co-legislators on April 15,2015.‎

In fact the only information I have obtained from the EP is the list of the pending legislative procedures for which an early agreement is currently negotiated and no multicolumn document has been transmitted (even if reference has been made to the existence of 119 documents).‎‎

I therefore reiterate my request for these legislative preparatory documents and in order to take in account your concerns on the number of ‎documents involved I herewith narrow down and limit my request to the legislative procedures whose legal basis fall in the freedom security and justice area (Title V) TFEU and on art. 16 TFEU (data protection).‎

I take also this occasion to explain why I consider your refusal to give access to multicolumn documents unjustified from a constitutional, institutional and operational point of view.

On Constitutional Grounds:

Although access should already be granted on the basis of the principle of widest possible access contained in Regulation 1049/01, from a constitutional point of view, your letter does not take in account the fact that since the entry into force of the Lisbon treaty EU legislative activity should comply with transparency standards that are even higher than previously foreseen by Regulation 1049/01 (and the latter should be interpreted accordingly).‎

Is worth recalling that since 1st December 2009 :
-‎ the scope of what should be considered of legislative nature is now defined by the treaty (and no more by the Council as previously stated by art. 207 of TEC ;
-‎ the European Parliament and the European Council should not only vote but also publicly debate‎ legislative measures (art. 16.8 TEU and 15 TFEU). In the Council case the Treaty clearly states that it “..shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities”.

The same obligation of transparency applicable to the European Parliament and the Council when acting alone shall be respected when they establish an interinstitutional dialogue linked with a legislative procedure. If this was not the case the EU institutions could create a sort of grey zone to circumvent their constitutional obligations and making it impossible for EU citizens (and national parliaments) to understand how the different positions inside the European Parliament or the Council are evolving during the procedure.

This can of course not be accepted and would be contrary to the Lisbon obligations.‎ To put it simple : citizens (and national parliaments) should understand if the members they have elected in the Parliament or the State of which they are citizens, is acting in a way that they can agree on.

The possibility to have access to legislative preparatory documents and therewith enable the traceability and understanding of – and debate and accountability relating to – legislative negotiations is moreover squarely acknowledged by the Court of Justice of the EU to be an essential aspect of the normative choice the EU has made in favour of transparency and the democratic entitlement of citizens to know and be able to participate and debate.‎

Moreover, it is not without reason that art. 294 of the Treaty describes in a very detailed way how the EU institutions should interact during the different phases (“readings”) of the legislative procedure and requires that each institution adopts in turn publicly, its position by also explaining (in the case of the Council and of the Commission) the reasons justifying it.

Now, the current daily practice of hidden negotiations during early agreements makes the provisions of Article 294 meaningless and it is particularly worrying that this already happens during the first legislative phase when the European Parliament has to play the guiding role and can require the Council to abide with the highest legislative transparency standards.‎‎

Under this perspective the fact that votes on negotiations mandates are taken publicly in the EP (as orientation) and in the Council (as general approach) is only a first initial step in the right direction. However it remains useless if all the subsequent dialogue does not follow the same level of transparency. As things stands now the EU citizens are acquainted only of the legislative compromise once reached by the two co-legislators months (if not years) later.

But at that moment it will be not only impossible to disentangle the positions of each actor but also to influence a different outcome as everything will be settled by a single vote in the Committee and in the Plenary.

This situation has become particularly worrying as early first and second readings now cover almost 90% of EU legislative procedures. ‎

The need to recognise the position taken by each institution during the first two legislative readings is not contradicted but confirmed by the fact that Article 294 of the Treaty foresees a “conciliation” mechanism. The latter can be considered as the exception which confirm the rule of individual responsibility of each institution. It can be triggered only as ultima ratio in case of persistent divergences between the co-legislator after the EP second reading and is framed by the Treaty on a mandate limited in time and by requiring that, for instance all the member states should be represented (when instead during early “trilogues” they remain hidden behind the Council Presidency…).‎

Given this, according to the Treaty, exceptional nature of the conciliation procedure, your statement that the “multi-column” documents during the earlier phases of the legislative procedure (first and second reading) are stemming “…from the conciliation procedure” (which is a specific feature of the third reading) create a confusion between procedural phases that art. 294 TFEU separate in a very strict way . ‎

But even more worrying is your statement according to which “full disclosure of the compromise proposals before agreement, without a prior individual assessment of each requested document, might affect the required mutual trust between the institutions and thus, the negotiating process, thereby diminishing the chances of reaching an overall agreement.” ‎

W‎hen legislative negotiations are at stake‎, the Lisbon Treaty makes no more reference to the possibility of avoiding request for access to documents with the need to preserve “the effectiveness of the (Council) decision making process” ( as it was previously stated in Article 207 of the TEC referring to Council legislative role). By deleting these words it has been made clear that legislative transparency is the pre-precondition of such an effectiveness because it makes possible a wider participation, also of the national parliaments and of civil society to the EU legislative process (see art 11, 12 of the TEU and art.15 of the TFEU as well as the protocol 1 and 2 to the Treaty).

From an Institutional perspective‎

It seems that until now the European Parliament Plenary has been rather consistent in favour of generalised transparency on legislative procedures notably when it voted on the revision of Regulation 1049/01 in December 2011 as well as when, on 11 March 2014, it called on ‎“… the Commission, the Council and Parliament to ensure the greater transparency of informal trilogues, by holding the meetings in public, publishing documentation including calendars, agendas, minutes, documents examined, amendments, decisions taken, information on Member State delegations and their positions and minutes, in a standardised and easy accessible online environment, by default and without prejudice to the exemptions listed in Article 4(1) of Regulation (EC) No 1049/2001;” (See par.28 of the European Parliament resolution of 11 March 2014 on public access to documents for the years 2011-2013 (‎2013/2155(INI)<\’http://www.europarl.europa.eu/oeil/popup…(INI)\’>). ‎Since then has the European Parliament changed its mind ?

From an operational perspective‎

According to the EP the early first and second reading agreements now cover more than 90% of the legislative procedures and 1557 trilogues meetings already took place during the last term (2009-2014). However as far as I know no records are currently accessible on these essential phases of the legislative process .‎ I do believe that this is a clear violation of EU citizens right to access legislative preparatory works .

A first possible step to overcome such a massive lack of information should be to grant the timely access to the different versions of a multicolumn documents before and after each trilogue meeting.‎

Transparency being the rule to be followed during legislative procedures, this also means that there is no ground or reason for the EP to ask the opinion of the Council to diffuse a document (or a column in a multicolumn document) representing its position/suggestion, once it has transmitted it to the EP.

If in in exceptional cases (what in legislative works appears rather unlikely to happen) the Council consider that a special treatment is needed it is up to him to justify it and to the EP to evaluate if the request can override the right to access of the EU citizens.

If a general obligation exists for EU officials this is to swiftly put the preparatory documents (trilogues related documents included ) on the institution’s register as already clearly required by Regulation 1049/01.

I finally note that for the reasons set out in the above, there is also an overriding public interest in granting access. Indeed, the interest in contained in the Lisbon Treaty and is also clear from the case law of the Court regarding access to legislative documents (Turco, Access Info, Schlyter).‎

I Thank you in advance for considering my more limited request and the arguments set out in the above for granting access.

Best regards,‎

Emilio De Capitani‎
Executive Director of the
Fundamental Rights European Experts Group (FREE Group)
11 Rue Darwin
1190 Bruxelles

Nota Bene :

  1. Confirmatory requests are dealt with by the EP Bureau (art.116 of the Rules of Procedure) on a proposal of the EP Vice President in charge of access to documents (Mrs ILDIKO’ GALL-PELCZ (EPP – HU) – Annex XIV of the Rules of Procedure)
  1. In principle the Multicolumn documents received by the Council should be on the list established by the Bureau of documents which should be DIRECTLY ACCESSIBLE to the EU citizens (see art. 5 2011 EP Bureau decision on access to documents which clearly states that

“1. All documents drawn up or RECEIVED by the European Parliament under the legislative procedure must be accessible to citizens in electronic form, subject to the restrictions laid down in Articles 4 and 9 of Regulation (EC) No 1049/2001.”

The Catch 22 problem is that the Bureau list DOES NOT MAKE REFERENCE to the documents RECEIVED by the Council during the first and the second reading (!) but only to Conciliation documents WHEN PUBLIC. (See below)

————————————
List of Parliament’s documents directly accessible to public

 

Documents relating to Parliament’s legislative activities
– Plenary documents, such as agendas, minutes, texts adopted, amendments, motions for resolution, registers of attendance, results of roll call votes
– Parliamentary committee documents, such as agendas, minutes, reports adopted, amendments
– Parliamentary delegation documents
– Public Conciliation documents

 

Documents relating to other Parliament’s activities
– Documents relating to Members’ activities, such as written declarations and parliamentary questions with answers
– Public documents relating to the Bureau, Conference of Presidents, College of Quaestors, Conference of Committee Chairs, Conference of delegation chairs, such as agendas and minutes

General documents relating to the functioning of the Institution
– Rules of Procedure
– List of Members and declarations of financial interests of current Members
– Statute of Members and its implementing rules
– List of Members’ accredited Assistants
– Press documents
– Parliament’s studies and publications

 

Official documents forwarded by other EU institutions and third party documents already published

 

Official correspondence

Certain categories of administrative documents, such as public documents on procurement according to the provisions of the financial regulation and the implementing rules, general administrative guidelines

Documents as disclosed following a prior request under Regulation 1049/2001

 

One thought on “How the EU “legislative triangle” is becoming a “Bermudes, triangle “…

  1. Pingback: “(EU’s) Laws are like sausages. You should never watch them being made…” (*) | European Area of Freedom Security & Justice

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