by Emilio DE CAPITANI (Former Secretary of the European Parliament Civil Liberties Committee – LIBE) 18/02/20
1. Asking for transparency in a public organization where most of the members are bureaucrats, diplomats and politicians has always been a challenge because each one of these categories will try to preserve and expand its power without being accountable to anyone. This kind of secrecy that ancient Romans called “Arcana Imperii” remains even today the main temptation of power holders who only recently have reluctantly accepted the checks and balances preventing the concentration of powers. Needless to say such checks and balances can prevent abuses only if rule of law is preserved and legislation is adopted with transparent debates and votes as it should be in a democratic society where citizens may play a role when choosing their representatives (representative democracy) but are also associated to the willing to definition of the public policies (participative democracy).
The evolution of transparency in the first phase of the European Communities
2. Transparency (and fundamental rights) where not cited by the founding treaties of the European Economic Community which was mainly focused on the establishment of the internal market and of the four freedoms, but become unavoidable when the ambition of the ECC became more clearly political at the end of the Seventies in the perspective of an “ever closer” Union of the peoples of these member States. It is therefore not surprising that this change of perspective triggered also a change of practices and administrative culture on the side of bureaucrats, diplomats and politicians working in the European institutions.
Suffice it to say that still in the mid-1970s, decision-making and administrative transparency were limited to some essential aspects such as the introductory justifications of each European Community measure and the mandatory publication of most (but not all) of the EC acts on the Official Journal ( which at the time was only printed in less than 20,000 copies).
3. It is only after the first direct European Parliament elections and its association to the decision-making process even if only as a consultative body that the Commission decided (notwithstanding the opposition of some Member States in the Council) to publish its proposals and, in accordance with the case law of the Court, to better describe in the preamble of the draft acts the essential elements of the procedure as well as the legal basis justifying their adoption.
4. Even if the legislative nature of certain Community measures was already recognised in the case-law of the Court () the word “legislative” was a penumbral concept in the Institution’s practices and appeared only indirectly in the mid-1980s, first in the practices of the institutions after the Single European Act (entered into force in 1987) with the establishment of a “legislative program” whose aim was to describe notably the “cooperation procedures” requiring two successive readings by the European Parliament.
5. Finally the notion of a more transparent European legislation (both for the content as well as for the adoption procedure) appeared in the Conclusions of the European Council meeting in Birmingham on October 16, 1992 () as a political response of the EU institutions to the first negative referendum in Denmark ta the time of the ratification of the Maastricht Treaty.
Thanks to this Referendum and to the Maastricht Treaty a radical change of approach has been triggered notably inside the Council marking the new EU’s ambition to upgrade its economic mission to a more political one and, consequently, to make its decision-making process more democratic (with the codecision procedure) and transparent. (see the Declaration attached to the Maastricht treaty)
Legislative and not legislative transparency
6. This approach will be reinforced with the Amsterdam Treaty which entered into force on May 1, 1999 and which provides for the first time at the level of primary law in Article 255 of the EC Treaty (TEC) the fundamental right of citizens to access European Parliament and Council Commission documents. In addition to this article art. 207 p. 3 of the TEC gave the Council the right to determine “..the cases in which it must be regarded as acting in its capacity as legislator in order to allow better access to documents in these cases, while preserving the efficiency of its process of decision making… “.
7. In application of art. Art 255 TCE the European Parliament and the Council subsequently framed with Regulation 1049/2001 the principles as well as the exceptions () to the right of access to documents which was considered an essential element of participative democracy.
Unfortunately Regulation 1049/01 was not able to make a clear distinction between legislative and not legislative activity because it mirrored the definition given by the Council internal procedures according to which were “legislative” all the EU measures “binding in and for the Member States” even if most of these measures were administrative and not legislative so that a lower level of transparency could had been justified .
The stalemate after the Lisbon Treaty
8. The entry into force on 1st December 2009 of the Lisbon Treaty and of the Charter of fundamental Rights was deemed to mark a new era for the European Union and for its Citizens because since then most of the pre-existing problems at Constitutional level were adressed: the Unanimity rule in the Council is now the exception (and no more the rule), the European Parliament has been transformed in a full-fledged co-legislator (also in domains previously jealously controlled by the Member States such as the judicial and police cooperation in criminal matters) and the Court of Justice has been recognised fully competent on almost all the European Policies.
9. Moreover the preamble of the European Charter has proclaimed a sort of Copernican Revolution by announcing that the EU was placing “.. the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’ and this announcement is now mirrored in the new Title II of the TEU, dealing with democratic principles which now stipulates that ‘the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions’ (Article 9) and that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’ (Article 10(3)).
10. Participative democracy is now hammered in the art. 11.1 and 2 TEU according to which the EU institution shall“..give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action‘ and ‘maintain an open, transparent and regular dialogue with representative associations and civil society”.
11. But the main rule for participative democracy (along the right to submit legislative initiatives to the attention of the Commission) is the Art 15 of the TFEU whose opening words are the following :” In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible.” This general obligation is clearly linked to the article 41 of the Charter which promote the principle of good administration inside the EU and the art. 298 of the same Treaty which states that “In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.” 
12. The second paragraph states of art 15 that “The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.” Public debates and votes may look quite a basic rule when enacting a legislation, but this was not the case in the European Union before the Lisbon treaty. Even if Council votes were public, this was not the case of legislative debates unlike what was happening in the European Parliament where debates were and still are public at committees and Plenary level. This situation of half transparency notably when the legislation is enacted in co-decision by the European Parliament and by the Council is clearly unacceptable for the EU citizens and even the national Parliaments which in principle should have the right to know and to follow the EU decision-making process no matter if debates are in the Parliament or in the Council.
13. Moreover after Lisbon there is no more ambiguity between legislative and non legislative procedures because the Treaty itself :
- consider as legislative the measures adopted following the “ordinary” or the “special” procedure
- foresee the explicit announcement in the draft agendas of the Council the legislative debates/votes
- makes no more reference to the need of protecting the efficiency of decision making process.
14. It is worth noting that in cases of non legislative procedures the General Court and the Court of Justice have already accepted before the enry into force of the Lisbon Treaty a lower level of transparency than for legislative procedures by recognising a general presumption of non access () to five this kinds of non legislative documents.
This jurisprudence has been on my opinion rightly criticised by the doctrine  because Regulation 1049/01 does not make any reference to this kind of presumption. Quite the opposite the Regulation require an examination on each relevant document by also imposing a dialogue with the person who is asking the access. Moreover the presumption of confidentiality for the documents exchanged between the Commission and a Member States during the transposition of EU law in national law is prejudicial not only for the european citizens but also for the European Parliament. 
15 As far as legislative procedures were concerned the European Parliament in December 2011 voting on the revision of Regulation 1049/01 has decided to delete the reference in art 4 to the “efficiency of the decision making process” for the legislative procedures. But this vote has not been followed by the Council which is obviously more than happy to continue in its pre-Lisbon practices thanks to the survival of this exception in Regulation 1049/01 (which is still into force). Unfortunately the European Commission has also until now been supportive of the exception of the protection of the “efficiency of the decision making process” because it has found it very useful when confronted to requests for documents linked to the competition policy or dealing with its relations with the Member States when transposing EU law.
16. It is worth noting that this exception which until today is still the main reason for refusing the access to documents also for legislative procedures is not justified with the necessity to avoid a possible danger for the EU (which may justify even the creation of “classified” documents) but quite simply with the need of the Member States representatives to change their negotiating position without having to explain the real motivation to their national citizens or even …to their national parliaments.
17. When legislative procedures are at stake the Court of Justice has tried to reverse the Council and Commission position with several groundbreaking rulings such as the “Hautala” () the “Turco” ( ) and Access Info () cases but the impact on the Council and Commission behaviour has been very limited. Even two very interesting recent rulings in 2018 of the Court of Justice and of the General Court have received until now a limited impact on the EU legislative transparency.
18. The first “Client Heart” case  is significant insofar as it clarifies the scope of the concept of ‘legislative documents’, which requires a wider threshold of openness. Deciding as Grand Chamber the Court of Justice found that also documents drawn up in the context of an impact assessment qualify as legislative documents even if as outcome of the this analysis the Commission decide of not launching a legislative procedure.
The second “De Capitani v European Parliament” Ruling regarding the exception for the protection of the decision-making process, is Case T-540/15 where the General Court clarified that the negotiations between the European Parliament and the Council in presence of the Commission (so called “Trilogues”) are an essential phase of the legislative work (no matter if described as “informal”) so that the documents exchanged during these meeting and notably the multicolumn documents should be accessible even if they are evolving and provisional.
How change everything to..change nothing
19. Unfortunately two years after these two rulings the institutions have not changed their behaviour, (even if in some cases they accept specific requests on a case by case basis).
The Council is routinely marking most of the internal legislative documents debated in the working groups or at Coreper level as LIMITE and covered by “professional secrecy” even when they are transmitted to the National Parliaments (which prevent them from debating publicly) and the European Parliament still does not consider trilogues related documents as of legislative (preparatory) nature ! () Now the point is that if “Trilogues” are an essential phase of the legislative procedure the documents debated during these meetings should be proactively published as required by art. 15 TFEU() and art. 12 par 2 of Regulation 1049/01 ().
20. The “trilogue” procedure is already per se an extraordinry way to foster the EU decision making process and this can explain why now almost all the legislative procedures are negotiated in this framework. That having been said, pretending that this procedure should remain confidential is a blatant violation of the principle lf legislative transparency now embedded in the Treaties and in the Charter. It will be an exception on an already exceptional procedure where, moreover, the provisional texts exchanged when accessible are in only one language and where once a compromise is reached there is no real possibility for amendments!
Why making access to information simple when you can make it complex ?
21. To make things even worse, 18 years after the entry into force of Regulation 1049/01 the EU institutions are still quarelling on the the way how the EU citizens can have a simplified access to the documents negotiated under a specific legislative procedure.
The idea of a common “portal” was debated already debated in 2002 and some pilot projects have been tested since then in the Commission and more recently in the Office of EU publication who is in charge of the production of EURLEX. It may be surprising but institutions who spend millions of euro for the production and diffusion of their internal documents are not able of agreeing common exchange format for the most important EU activity which is to legislate for half billion people.. Such situation in the era of Google and Facebook is frankly unacceptable and in my opinion should trigger soon or later an enquiry by the Ombusdman or even by the Court of Auditors having regard to the social and economic impact of this EU institutions failure.
 Il s’agit notamment de la base juridique justifiant dans les traités l’adoption de la mesure, ainsi que les institutions consultés ainsi que un argumentaire permettant de comprendre le problème que la mesure était censé résoudre.
 Voir le point 33 de l’arret “Isoglucose”, SA Roquette Freres v Counseil [Case 138/79, 1980]) selon lequel la consultation « .. est LE MOYEN QUI PERMET AU PARLEMENT DE PARTICIPER EFFECTIVEMENT AU PROCESSUS LEGISLATIF DE LA COMMUNAUTE . CETTE COMPETENCE REPRESENTE UN ELEMENT ESSENTIEL DE L ‘ EQUILIBRE INSTITUTIONNEL VOULU PAR LE TRAITE . ELLE EST LE REFLET , BIEN QUE LIMITE , AU NIVEAU DE LA COMMUNAUTE , D ‘ UN PRINCIPE DEMOCRATIQUE FONDAMENTAL , SELON LEQUEL LES PEUPLES PARTICIPENT A L ‘ EXERCICE DU POUVOIR PAR L ‘ INTERMEDIAIRE D ‘ UNE ASSEMBLEE REPRESENTATIVE »
 Voir les Conclusions du Conseil européen ( https://www.consilium.europa.eu/media/20501/1992_october_-_birmingham__eng_.pdf) et la Resolution du conseil du 8 juin 1993 relative à la qualité rédactionnelle de la législation communutaire (https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A31993Y0617%2801%29 )
 Exceptions qui doivent être interprétées et appliquées strictement (arrêt du 13 juillet 2017, Saint-Gobain Glass Deutschland/Commission, C‑60/15 P, EU:C:2017:540, point 63 et jurisprudence citée).
  Comme reconnu par la Cour la possibilité, pour les citoyens, de contrôler et de connaître l’ensemble des informations qui constituent le fondement de l’action législative de l’Union est une condition de l’exercice effectif par ces derniers de leurs droits démocratiques, reconnus notamment à l’article 10, paragraphe 3, TUE (voir, en ce sens, arrêts du 1er juillet 2008, Suède et Turco/Conseil, C‑39/05 P et C‑52/05 P, EU:C:2008:374, point 46, ainsi que du 17 octobre 2013, Conseil/Access Info Europe, C‑280/11 P, EU:C:2013:671, point 33).
  Article 11, TEU
1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.
4.Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.
The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 24 of the Treaty on the Functioning of the European Union.
It is a disgrace that notwithstanding repeated formal requests of the European Parliament the European Commission do not intend to present a legislative proposal covering this objective.
 À ce jour, la Cour a reconnu l’existence de présomptions générales de confidentialité au bénéfice de cinq catégories de documents, à savoir les documents d’un dossier administratif afférent à une procédure de contrôle des aides d’État, les mémoires déposés devant les juridictions de l’Union au cours d’une procédure juridictionnelle tant que celle-ci est pendante, les documents échangés entre la Commission et les parties ayant procédé à une notification ou des tiers dans le cadre d’une procédure de contrôle des opérations de concentration entre entreprises, les documents se rapportant à une procédure précontentieuse en manquement, y inclus les documents échangés entre la Commission et l’État membre concerné dans le cadre d’une procédure EU Pilot, et les documents afférents à une procédure d’application de l’article 101 TFUE (voir, en ce sens, arrêt du 16 juillet 2015, ClientEarth/Commission, C‑612/13 P, EU:C:2015:486, point 77 ainsi que jurisprudence citée ; s’agissant des mémoires déposés devant les juridictions de l’Union, voir, en ce sens, arrêt du 18 juillet 2017, Commission/Breyer, C‑213/15 P, EU:C:2017:563, point 41 et jurisprudence citée ; s’agissant des documents échangés dans le cadre d’une procédure EU Pilot, voir arrêt du 11 mai 2017, Suède/Commission, C‑562/14 P, EU:C:2017:356, point 51). Dans chacun de ces cas, le refus d’accès en cause portait sur un ensemble de documents clairement circonscrits par leur appartenance commune à un dossier afférent à une procédure administrative ou juridictionnelle en cours (arrêt du 16 juillet 2015, ClientEarth/Commission, C‑612/13 P, EU:C:2015:486, point 78 ; voir, également, arrêt du 11 mai 2017, Suède/Commission, C‑562/14 P, EU:C:2017:356). »
 See notably “Beware of Courts Bearing Gifts: Transparency and the Court of Justice of the European Union
Marios Costa* & Steve Peers**
 For instance in case of Directives the obligations or the advantages for the national citizens arise mainly from the national measure transposing the Directive. Make transparent the informations exchanged during this phase is clearly more interesting for the Citizens than the access to the information in the “Brussels” phase. Under this perspective the national transposition phase is still an “european phase” and it would be bizarre that an EU institution hide these information. As far as the European Parliament is concerned this confidentiality during the transposition phase for codecision measure is contrary to common sens the EP being the co-author of the measures concerned.
Under this perspective the EP should had challenged this Commission practice since year as contrary to the principle of loyal cooperation.
Case C-353/99 P, Council of the European Union v. Heidi Hautala, Judgment of the European Court of Justice of 6 December 2001
 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council 4
 See e.g. C-280/11 P Council v Access Info Europe
 Judgment of 4 September 2018, C‑57/16 ‘ClientEarth’ .
 See the EP Bureau Decision of 2010 listing the documents of legislative nature which should be proactively published and which does not foresee trilogues related documents. https://www.europarl.europa.eu/RegData/PDF/rev_801268_1_EN.pdf
 Art.15,3par 5subparagraph TFEU : “The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph”.
 Art 12. 2 Regulation 1049/01 “ In particular, legislative documents, that is to say, 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, subject to Articles 4 and 9, be made directly accessible.