by Emilio DE CAPITANI *[1]
Foreword
In a famous Italian novel “The Leopard” which describes a key moment of regime change in Sicily a young protagonist, Tancredi, addresses the old Prince of Salina, suggesting as the best strategy in order to maintain the old privileges to adapt, at least apparently, to the new situation.
This seems to be also the strategy chosen by the European institutions after the entry into force of the Treaty of Lisbon when dealing with openness and transparency of their decision-making process.
This Treaty marks a radical change from the previous situation, notably because it make visible and strengthens the interrelation between the principles of the Rule of law, democracy, mutual trust and transparency in the EU. This relation was already implicit before the Treaty but has become more evident at primary law level with the definition of the EU funding values (art 2 TEU), the binding nature of the EU Charter of fundamental rights and the establishment in the Treaties of clear legal basis transforming these principles in reality within the EU institutional framework and in relation with the EU Member States.
Under this perspective several articles of the EU Charter become relevant when dealing with principles of openness and transparency in the EU such the art.11 on Freedom of expression and information and articles 41 and 42 on the right to good administration and of access to EU documents. These rights should be granted and promoted not only by the EU Institutions Agencies and bodies but also by the Member states when implementing EU law. If a decision making process should be transparent at EU level the same transparency should be granted when EU measures are transposed at national level [2].
Openness and Transparency as corollaries of EU democracy
Furthermore the Lisbon Treaty has also endorsed several ambitious institutional innovations negotiated at the time of the draft Constitutional Treaty and which have now a direct or indirect impact on EU notions of rule of law, mutual trust, democracy and transparency.
First of all, the Treaty makes clear the democratic nature of the EU not only by strengthening representative democracy (“The functioning of the Union shall be founded on representative democracy.” Art.10.1 TEU) but also by recognizing the principle of participative democracy [3] (“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” art.10.3 TEU).
Participative democracy is further strengthened by recognizing the role of Civil Society in art.11 TEU according to which “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.”.
Moreover, the Lisbon treaty confirms the principle of openness when it states that “(EU) decisions are taken as openly as possible and as closely as possible to the citizen.”(art 1, 2nd Alinea TEU). This provision was already present before Lisbon, but since then the notion of what could be considered “possible” has evolved both from a technical and political point of view. From a technical perspective, in the last twenty years the digital transformation has already triggered also at EU level the notion of e-government[4], of re-use of public data [5]. In a Google era efficient communication techniques that involve and empower citizens make now possible involving citizens in public decision-making processes.[6]
From a political perspective the new Treaty emphasizes that “In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.” (art.9 TEU). When translated in transparency policies this principle requires that, when in public domain, information should be accessible by means and procedures which should not be directly or indirectly discriminatory [7].
(EU) Preaching “Transparency by design…
The Lisbon Treaty not only proclaimed the democratic principles on which the EU is founded and should be promoted (art 9-12 TEU) but confirmed the principle of openness and of participative democracy according to which ‘(EU) decisions are taken as openly as possible and as closely as possible to the citizens’ (art.1.2 TEU) and “[e]very 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.”(art.10.3 TEU).
Moreover, EU Legislative acts [8] are now defined at primary law level (art.289 TFEU) and the obligation of granting ‘Legislative transparency’ is now foreseen by Article 15(2) TFEU according to which “The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.” As a consequence, granting legislative transparency has become a self-standing constitutional obligation which cannot be jeopardized by measures of EU secondary law or even more, by internal practices of the EU institutions. In other words, the mandatory principle of ‘legislative transparency’ established by Article 15(2) TFEU and 16.8 TEU should no more, be mixed with the ‘transparency on demand’ approach of the “pre-Lisbon” era when the scope of legislative transparency was often linked to the aleatory condition that a citizen may ask or not access to a legislative preparatory document.
…but framing “confidentiality by design”.
Unfortunately, even today, fifteen years since the entry into force of the Lisbon Treaty legislative preparatory documents made proactively public by the EU legislators following art.15.2 TFEU are still a fraction of the documents prepared and debated by the Commission, the Council and, even by the European Parliament along a legislative procedure.
The Council is the most appalling case of hiding legislative preparatory documents.
Even today, the Council’ internal Rules of procedures [9]consider that confidentiality should be the rule and transparency the exception. According to Council Internal Guidelines transparency of Council meetings when debating legislative procedures (as required by Article 16(8) TEU) is required only for “formal” Meetings at ministerial level. By so doing, citizen’s access is excluded not only from the “informal” Ministerial meetings but also from all the Coreper and working parties meetings no matter if, in a more general perspective, the Council is a single legal entity and preparatory bodies should not be considered apart).[10] As a proof that the main Council inspiration is “confidentiality by design” instead of “transparency by design” is the Council reorganization operational since 2015 of its internal document management[11]. Its 130/150 internal working parties have been transformed into ‘virtual communities’, which are de facto also virtual ‘sandboxes’ where working (WK) documents covering also legislative preparatory works (also at ‘trilogue level’) are shared only between the Community members [12].
By doing so the Council of the European Union is, since years preventing, routinely, access and democratic participation of EU citizens and of civil society, and is making unduly difficult the work of journalists, preventing the National Parliaments from checking the respect of the principle of subsidiarity and, last but not least, hiding essential information to the other co-legislator, the European Parliament.
The EU “Catch 22” how promoting confidentiality to protect ..transparency
To justify this behavior the Council still today refer to the exceptions set in art.4 and 9 of the pre-Lisbon Regulation 1049/2001 , and notably to the need of ‘protecting its decision making process’ as foreseen by art.4.3 of that Regulation. According to this principle “Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. Suffice to note that, if transposed to legislative preparatory works this principle may justify, for instance, the confidentiality of the work of the Parliamentary committees but this will clash with the provisions of art. 15.2 TFEU imposing the publicity of meetings of the EP and of the Council when acting as legislators (and this voer also the preparatory bodies as the EP and the Council have a single institutional identity). Moreover such use of a generic exception by an institution in its own interest will clash with the interinstitutional nature of the EU legislative process as described by art 294 of the TFEU.
To overcome the clash between the current provisions of the treaty and the exception described in art.4.3 of the pre-Lisbon Regulation 1049/01 there are then only two possibilities: either you consider that this exception is not relevant for legislative procedures or you consider that when legislation is at stake the “overriding public interest” is directly foreseen by the treaty and no exception can be raised. Behaving like the Council does when acting as legislator, create a “Catch 22” situation where confidential is invoked to “protect” a procedure which should be …transparent.
Needless to say this Council behavior has been denounced in several occasions, not only by the other co-legislator, the EP, but also by the EU Ombudsman not to speak of the Court of Justice. The latter with several rulings has framed in stricter terms the scope of Regulation 1049/01 exceptions even before the entry into force of the Lisbon treaty and of art.15.2 TFEU. It is then quite appalling that the impact on the Council practice of the EP pressure, of the Ombudsman recommendations of the CJUE jurisprudence has been very limited and anecdotical. [14]
To overcome all these legal inconsistencies the European Parliament voted on December 15th , 2011[15] several ambitious amendments aligning Regulation 1049/2001 to the post-Lisbon new Constitutional framework. The EP Plenary not only considered that legislative debates should not be covered by the pre-Lisbon exceptions listed in art. 4, but voted also a legislative framework for classified documents (art. 9) and paved the way for the implementation of the principle of good administration by EU institutions, agencies and bodies. In the same perspective it also adopted two legislative proposals on framing the principle of good administration by the EU institutions, Agencies and bodies [16]
Unfortunately, the EP position on the alignment of Regulation 1049/01 with the Lisbon treaty, is , since thirteen years still formally pending, and has not been endorsed by the European Commission nor by the EU Council so that the EU and its citizens are still confronted with a secondary law (Regulation 1049/2001) and a wide practice of the EU institutions, agencies and bodies not complying with the new post-Lisbon constitutional framework.
In a quite opposite direction from the EP recommendation on the revision of Regulation 1049/01 and on the establishment of an EU code on good administration founded on art 298 TFUE (open, independent and efficient EU Public administration) the European Commission submitted in 2022 on the same legal basis (and without consulting the EU Ombudsman) a legislative proposal[17] dealing with information security in the institutions, bodies, offices and agencies of the Union.
The so called ‘INFOSEC’ Proposal, if adopted as it stands, may even pave the way for the transformation of the ‘EU Bubble’ into a sort of (administrative) fortress and substitute the principle of ‘transparency by design’ arising from art. 1.2 TEU with the principle of ‘confidentiality by design’[18] of all EU Institutions, Agencies and Bodies. It does so by redefining the conditions of treatment, access and sharing of all kinds of information/documents treated by the EU institutions, agencies and bodies by so overlapping and turning upside down Regulation 1049/2001 and the letter and spirit of the Treaty.
If the principle of Regulation 1049/2001 is to frame the right to know of EU citizens by granting that everything is public unless a specific exception is applicable, the logic of the new Commission proposal is that almost all internal documents should be protected and shared only with people with a recognised ‘need to know’ unless the document is marked as ‘public’. This will generalise to all the EU Institutions, Agencies and bodies the current Council practice of limiting the access internal documents in clear clash with art. 1 of the TEU which requires that the EU Institutions should act as openly as possible and the art.298 TFEU requiring that the EU administration should be not only indipendent and efficient but also “open”.
With the new proposed legal regime, the Commission, by endorsing and widening in a legislative measure the current Council internal security rules, is proposing to go back to the pre-Maastricht era when it was up to the EU institutions to decide whether or not to give access to their internal documents [19]. But since the Amsterdam Treaty (Article 255 TCE) and, even more, since the Lisbon Treaty, this practice is no longer compatible within an EU that is bound by the rule of law.
The core of the proposed INFOSEC Regulation is the creation and management of EU classified information (EUCI). By doing so, it substantially amends Article 9 of Regulation 1049/2001, which deals with so-called ‘sensitive documents’. It does not regulate how the information should be classified and declassified in the interests of the EU, as opposed to the interests of the originator (whether that be a member State, EU institution, agency or body). It is worth recalling that Article 9 of Regulation 1049/2001 recognises the so-called ‘originator privilege’ only in the domain of ‘sensitive’ documents and information mainly covered by the EU external defence policy (former Second “Pillar”). As such it is an exception to the general philosophy of Regulation 1049/2001 according to which the EU institutions may only be bound by law and not by the will of an ‘author’, even if it were an EU Member State. [20]
How the EP risks slowly turning to intergovernamental practices
The EP has been, since its first direct election, the most supportive institution of the transparency of the EU decision making process both in the interest of the EU citizens and its own constitutional role. For decades it has challenged the Council and Commission reluctance when sharing the relevant information on what was happening on the ground inside or outside the EU. The Court of Justice has recognised in several cases that the EP’s right to relevant information is explicitly recognised by the Treaty notably for international agreements (Article 218 (10) TFEU).
Unfortunately, instead of pushing the Council towards an open ‘parliamentary’ approach to legislation, the EP has followed the Council ‘diplomatic’ approach notably in the crucial phase of inter-institutional negotiations (‘trilogues’) even when, as is normally the case, these negotiations take place in the first parliamentary ‘reading’.
Although the CJEU considers the documents shared within the trilogues meetings as ‘legislative’[21], the European Parliament still publish these documents only since March 2023 but only after specific requests for access by EU citizens and after a consistent delay so that the information becomes available when the agreements have been reached.
This practice does not fit with Article 15(2) TFEU nor with the CJEU jurisprudence according to which ‘[i]n a system based on the principle of democratic legitimacy, co-legislators must be answerable for their actions to the public and 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.’[22]
[1] Affiliate to the Scuola Superiore S.Anna (Pisa)
[2] In this perspective it is quite bizarre that the Council evoke the notion of sincere cooperation by the Member States in order not to debate publicly at national level the EU legislative preparatory documents (coded as LIMITE) notably through the National Parliaments
[3] This emphasis for participative democracy is now also echoed at UN level by the 2030 Agenda for Sustainable Development whose Goal 16 foresees notably, to “Develop effective, accountable and transparent institutions at all levels”(16.6) Ensure responsive, inclusive, participatory and representative decision-making at all levels (16.7) 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements (16.10)
[4] See the European Commission communication https://commission.europa.eu/business-economy-euro/egovernment_en
[5] See the Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information which maybe a clear reference also for comparable initiatives of the EU Institutions, agencies and bodies.
[6] See the recent Council Conclusions on the EU’s ambition to play a leading role globally in the digital transformation and digital governance that respects, promotes and protects universal human rights, democracy and sustainable development, and puts people and their universal human rights at the centre, in line with the international law and the EU Declaration on Digital Rights and Principles. (Doc 9957/24 of 21st of May 2024)
[7] This issue is relevant not only in cases of proactive publication but also when an information is disclosed following a Citizen’s request. If the information/document deals with legislative procedures it should be accessible in the public domain to everyone without further request for access.
[8] It should be noted that the concept of draft legislative act and legislative acts referred to in Article 15(2) TFEU does not correspond to the concept of legislative documents and legislative procedures referred to in the Pre-Lisbon Regulation 1049/01. While Article 15(2) TFEU refers to the projects and legislative acts defined in Article 289 TFEU (i.e. the joint adoption of legislative acts by the Council and the European Parliament), the Regulation, which pre-dates the entry into force of Article 289 TFEU, refers to “documents drawn up or received in the course of procedures for the adoption of acts which are legally binding”.2 Now, according for instance to the new Article 290 TFEU, Commission delegated acts which were “legislative” before Lisbon are now “non-legislative acts” (see also Article 16.8 TEU as to the “non-legislative activities” of the Council
[9] Council Decision of 1 December 2009 adopting the Council’s Rules of Procedure Link : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32009D0937
[10] Indeed, Article 5(1) of the Council Rules of Procedure (CRP) provides that, unless deliberating or voting on legislative acts, Council meetings must not be public, and Article 6(1) CRP stipulates that ‘Without prejudice to Articles 7, 8 and 9 and to provisions on public access to documents, the deliberations of the Council shall be covered by the obligation of professional secrecy …’, but on page 54 of its commentary on the CRP it is notably stated explicitly that : This rule also applies to the preparatory work for Council meetings, that is, all the Council’s preparatory bodies (Coreper, committees and working parties). However, legislative work in preparatory bodies is not public.”(emphasis added)
[11] See the Council public document 7385/16 of 2 May 2016, “Delegates Portal: a new Community Approach to document distribution”. The reorganization of the internal production/diffusion of Council internal documents has been endorsed by the Coreper in public document 6704/13 CIS 5 work on COCOON (Council Collaboration Online)”. The system has been generalised to all Working Parties in 2015. See https://data.consilium.europa.eu/doc/document/ST-7385-2016-INIT/en/pdf.
[12] Meijers Committee, ‘Working Documents’ in the Council of the EU cause a worrying increase in secrecy in the legislative process, CM2107 June 2021 https://www.commissie-meijers.nl/wp-content/uploads/2021/09/2107_en.pdf.
101See (2022/0084(COD) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0119.
[13] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access
to European Parliament, Council and Commission documents.
[14] European Ombudsman openly stated for the first time in a recent decision of March 2024 that EU institutions are not giving effect to case law on public access to legislative documents. See European Ombudsman, Case OI/4/2023/MIK, ‘How the European Parliament, the Council of the EU and the European Commission deal with requests for public access to legislative documents’, https://www.ombudsman.europa.eu/en/case/en/64321.. Cited by the EP Study “Regulation 1049/2001 on the right of access to documents, including the digital context” https://www.europarl.europa.eu/RegData/etudes/STUD/2024/762890/IPOL_STU(2024)762890_EN.pdf
[15] See Legislative Procedure 2008/0090(COD).Link https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2008/0090(COD)
[16] With the aim of guaranteeing the right to good administration and ensuring an open, efficient and independent EU civil service, on 15 January 2013 the European Parliament adopted a first resolution (Rapporteur Luigi Berlinguer SD Italy) presenting detailed recommendations to the Commission on a Law of Administrative Procedure of the EU under the new legal basis of Article 298 of the Treaty on the Functioning of the European Union (TFEU). A second resolution for an open, efficient and independent European Union administration (rapporteur: Haidi Hautala, Greens/EFA, Finland) in June 2016 (2016/2610(RSP)).
[17] See Legislative Procedure 2022/0084(COD) Proposal for a Regulation of the European Parliament and of the Council on information security in the institutions, bodies, offices and agencies of the Union Link : https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2022/0084(COD)&l=en
[18] In principle, the objective as announced in the title of the proposal is legitimate: granting a comparable level of protection in all the EU institutions, agencies and bodies, for information and documents, which, according to the law, should be protected. To do so a wide inter-institutional coordination group is proposed, as well as a network of security officials in all the EU entities and a securitised informatic network (TEMPEST) is foreseen.
[19] By replacing the ‘right to know’ foreseen at the Treaty with the a ‘need to know’ mechanism the proposed Regulation
turn upside down the EU openness and transparency principle.
[20] What the INFOSEC proposal does is transform the exception of the ‘originator principle’ in a rule against the provision of Regulation 1049/2001. It does not foresee judicial oversight of classified information. It does not solve the problem of the sharing of ‘sensitive information’ between entities that have a legitimate “need to know”. Last but not least, it threatens the EP oversight role of EU security agreements with third countries and international organisations on the exchange of classified information.
[21] See Case T-540/15 De Capitani v European Parliament
[22] Case T-163/21 De Capitani v Council EU:T:2023:15.
European Area of Freedom Security & Justice 