ORIGINAL PUBLISHED ON EU LAW ANALYSIS
by 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. Second, on 15 December 2015, Emily O’Reilly, European Ombudsman, launched a public consultation on transparency of trilogues, 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. 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.
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. 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. 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.  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.
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, 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. 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 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, 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.
Access to trilogue documents
Trilogues are increasingly taking over as the main forum for making legislative deals between the three institutions. They are the prime example of informal decision-making, which is often glorified in the EU context as the tool guaranteeing efficient law-making. 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’.
The use of informal formats is not in any way restricted to technical, urgent or uncontested files. 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.
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) 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.
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. 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’ 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’. 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?
 http://www.ombudsman.europa.eu/en/press/release.faces/en/61593/html.bookmark .
 Case T-540/15, De Capitani v European Parliament.
 Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Maurizio Turco v the Council, paras 45-46
 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.
 See the Council reply to Confirmatory application No 05/c/01/12 by Ms Anneli Jäätteenmäki, MEP.
 For the Council’s reply to ClientEarth, see http://register.consilium.europa.eu/pdf/en/10/st12/st12068.en10.pdf .
 The figures can be found on the Parliament’s websitehttp://www.europarl.europa.eu/code/about/statistics_en.htm .
 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.
 Public access to European Parliament, Council and Commission documents (recast), P6_TA(2009)0114 A6-0077/2009 .
 C-280/11 P Council v Access Info Europe.
 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-424/14ClientEarth v. the Commission.
 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
 ‘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 .
 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.)
 Joint declaration on practical arrangements for the Codecision procedure. OJ 2007 C 145/02 .
 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.
 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
 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.
 House of Lords Report with Evidence. Codecision and national parliamentary scrutiny, HL Paper 125 (2009) 15-16.
 The opinions are available on the Ombudsman website,http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61592/html.bookmark.
 Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final.
 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 .