Tag: Transparency

Speaking of EU legislation and.. of sausages making. Still today there is no way of knowing how EU “Safe Countries” legislation was made ..

By Emilio De Capitani

Setting the ..table

“Laws are like sausages. It is best not to see them being made” is the most famous Otto Bismark’s quote, (even though, there’s no evidence, that Bismarck ever said it, much less coined it…). This statement may well come to mind when looking at the procedure followed by the EU legislators when preparing, negotiating and adopting the legislation on “Safe Countries”. The legislative act is Regulation (EU) 2024/1348 establishing a common procedure for international protection in the Union. It consolidates the first list of EU “Safe countries” established by Regulation (EU) 2026/464 as well as the new rules defining the concept of ‘safe country’ eg Regulation (EU) 2026/463

It is worth noting that these texts creates some “legal presumptions” whose main justification is to make easier to repatriate or expel both irregular migrants and people who have not been granted the right to asylum[1] These legal presumption which amounts to consider as unfounded most of the request for protection of the people trying to enter the EU from these third countries and because of this it significantly restricts the rights of people who are extradited, removed or turned back. It will be up to them to prove in very short deadlines that, in exceptional circumstances, the concept of a safe country of origin should not apply in their specific case (see paragraph 5 of Regulation 2026/464)[2] . Furthermore, the right to judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, would be severely restricted, as judicial appeals must be lodged within very short time limits, would not automatically have suspensive effect and, in the event of a negative decision, the individual would not be permitted to remain legally within the territory of the EU.

On these aspects it is worth recalling the art.52.1 of the EU  Charter which states “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law (emphasis added) and respect the essence of those rights and freedoms.  Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.limitations to fundamental rights may be adopted “

Has the principle of legislative transparency been respected in the Safe Countries case ?

In the following lines I will focus notably on some principles of the EU Legislation which in my opinion have been violated in this case.

It is self evident that these three Regulations have been adopted under the joint responsibility of the European Parliament and of the Council [3]following the so called “ordinary procedure” (art.294 TFEU) and are therefore EU “legislative acts” (art.289 TFEU). However it is worth recalling that since Lisbon art.15.2 TFEU has established the obligation of  legislative transparency which covers not only the votes (as it was the case before Lisbon) but also debates and negotiating preparatory documents. Unsurprisingly the CJEU has declared in 2018 that “transparency is inherent to legislative procedure” as legislative transparency is the main expression of EU democratic nature. As such, the co-legislator obligation of proactively publishing legislative preparatory documents shall not depend from the aleatory condition that citizens may submit a request for access to these documents. Proactive publication of legislative preparatory documents paves also the way for citizens’ timely participation to the EU decision making process as granted by art.10.3  11 of the TEU.

Building on the CJEU jurisprudence on Safe Countries ..

Furthermore in the case of the EU legislation defining the “safe countries” the general obligation of legislative transparency foreseen by art.15.2 TFEU has already been strengthened by the CJEU jurisprudence. According to the judgment of the Court of Justice of the European Union in Alace and Canpelli (in joined cases C-758/24, paragraphs 86–87, and C-759/24), “ the information justifying the designation of a third country as ‘safe’ – and on which a legal presumption may be based – must be precise and accessible not only to the public but, in particular, to the person seeking asylum or being refused entry; and, above all, it must be verifiable by any court called upon to rule on the matter[4](emphasis added). This jurisprudence was referring to national legislation dealing with “safe countries” and in my opinion is transferrable also to EU legislation. Moreover Article 61 of the same ‘Procedures’ Regulation, provides for the use of ‘relevant and available’ sources in order to verify whether a country can be defined as safe.  In other words, the designation of a country as ‘safe’ cannot be the result of mere political discretion, as it affects the exercise of a fundamental right (the right to political asylum) and because it may limit the prohibition on expulsion laid down in the Charter of Fundamental Rights of the European Union.

Unfortunately, it is by no means clear from the text and the preparatory work on the European legislation concerning safe countries what information the legislator relied on in designating several third Countries as ‘safe’. This is notably the case of Regulation (EU) 2024/0464, which, despite affecting the exercise of fundamental rights, did not undergo an impact assessment, as required by the 2016 ‘Better Law-Making’ Interinstitutional Agreement. Instead it merely refers to information gathered by the European Asylum Agency (EUAA) which may be considered the real impact assesment in this case. As such, following the 2018 “ClientHeart” jurisprudence on the accessibility of legislative impact assessment  it should had been, at least partially disclosed.  No way: when in 2024 I submitted to the EUAA a request of access to that information I received a negative answer for procedural reasons. Then I challenged the refusal of disclosure before the General Court (case T-661/25).[5] On my side the history could had be ended here awaiting for the General Court Ruling but something, unexpected, happened and may now re-open the issue of legislative transparency of that EU legislation on Safe Countries even before the CJEU.

India is a “safe Country” ? No according to the association “Sikhs for Justice”

It is worth noting that the EU has declared, that INDIA is a “safe” Country  for all its territory and for all the categories of people living there notwithstanding Article 63 of the ‘Procedures’ Regulation would had permitted to exclude parts of the territory or specific categories of persons. The latter approach has been adopted, for example, by the legislation of the Netherlands, which states: “The designation of this country as a safe country of origin does not apply to: • people originating from the ‘union territory’ of Jammu and Kashmir; • religious minorities who have experienced problems because of belonging to that religious minority; • Dalit women and girls; • journalists; • persons who have been critical of the Indian government and government policy, and have experienced problems as a result (for example, human rights activists, academics and demonstrators).” ([6] )

However these reservations, which, if mirrored at EU level would allowed for greater protection of certain categories of people and citizens of certain Indian states, can no longer be invoked because the new EU-level general declaration ([7]) declaring India as safe takes precedence over national declarations. However, a number of questions may arise, such as: which of the two declarations more accurately reflects the reality on the ground in India? On what facts was the Netherlands’ decision based, and on what other elements the European legislator has decided that certain safeguards intended for specific categories of people and specific regions of India can no longer be invoked?

This may explain why a representative of the Sikhs for Justice association has recently submitted a request of access to documents to the European Parliament and to the Council of the European Union.

Both the EP and the Council have, at least as a first reaction, refused to disclose the EUAA information.

How EU legislative transparency may be granted by invoking “classified” information?

On one side it has been evoked the risk for EU external relations even though what is at stake is the autonomy of EU “internal” legislation and not international negotiations.

On the other side both the institutions have declared that the Asylum Agency has ‘classified’ these information as ‘RESTREINT’ and that the EP and the Council have retained that classification.

This is quite disturbing because first the only institutions which may “classify” EU information according to art.9 of Regulation 1049/01 are at very large extent the Commission, the EP and the Council which were the only institutions covered by art.255 TCE on which Regulation 1049/01 was founded. Moreover it emerges very clearly from the legislative preparatory work of Regulation 1049/01 that art.9 was as an exceptional regime for information covering only EU and MS defence policies ([8]) and clearly not information dealing with a Country general condition of “safety” as in the this case.

It is at least unfortunate that the this EUAA ‘classification’ has been  subsequently endorsed by the Commission when the legislative proposal and, later, by the Parliament and the Council in their capacity as legislators. However even if endorsed by the EP and the Council this choice  appears open to criticism, at the very least, in terms of both form and content. It is open to criticism in terms of form, insofar as the ‘RESTREINT’ level is not provided for in Article 9 of Regulation (EC) No 1049/01, the only European legislation dealing with ‘sensitive information’ that may be shared only with authorised persons (‘need to know’). But it is open to criticism above all on the merits, as two scenarios could be envisaged:

  1.  either this information proves that India is a safe country, in which case it is difficult to see what negative consequences a possible disclosure might have,
  2. or, conversely, it proves the opposite, in which case its ‘classification’ would violate European law on two counts.

Indeed, by declaring a country to be safe, despite independent information to the contrary, the European legislator would be exercising its remit in an arbitrary manner (which should instead be based on independent and objective information, precisely because it affects the exercise of a fundamental right such as the right to asylum and compliance with the prohibition on refoulement, as laid down in the Charter of Fundamental Rights).

Above all, however, the ‘classification’ of the information used to justify the concept of a ‘safe country’ meant that its contents could not be debated publicly during the legislative negotiations, particularly in the European Parliament which denounced this situation in its resolution on access to documents.[9]  

Conclusion

Invoking classified information to justify the non disclosure of legislative preparatory documents seems to me a clear breach of the principle of legislative transparency laid down in Article 15(2) of the Treaty on the Functioning of the European Union, and risks, unfortunately, of bringing the European legislator closer to that of North Korea[10] .

The procedure for access to documents, initiated by the Sikhs for Justice Association, is still ongoing, so it is not yet clear whether the European Court will be called upon to settle the matter, but in the meantime, the Sikhs for Justice association has taken steps to limit the damage caused by the new European regulations, including through ‘participatory’ channels, by publishing an open letter and by submitting a petition to the European Parliament calling for the suspension and amendment of India’s designation as a ‘safe country’ (as foreseen by Article 63 of the ‘Procedures’ Regulation)

It now remains to be seen whether the legality of designating India as a ‘safe’ country will be reviewed through the courts or following a legislative review process. Whatever the future of the European legislation may be, it is certainly commendable and noteworthy that representatives of civil society, such as the organisation Sikhs for Justice, are fighting so resolutely not only for the respect of their own fundamental rights, but also for better quality legislation and European democracy, in accordance with the principles of democracy, the rule of law, the protection of minorities, solidarity and non-discrimination, upon which the European Union is founded.

[1] Article 41(1)(e) and Article 3(a) concerning accelerated procedures

[2] see: https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=OJ:L_202600464

[3]  As required by see art 14 and 16 TEU.

[4] SEE: “(86 ) However, the effectiveness of judicial review regarding compliance with the substantive conditions set out in Annex I to Directive 2013/32 presupposes that the court before which the case is brought has access to the sources of information on the basis of which the competent national authority designated the third country in question as a safe country of origin. That requirement of effectiveness also implies that the court in question must be able to verify whether that designation complies with the substantive conditions set out in Annex I to that directive, taking into account any other information it may have gathered itself, whether from public sources or from sources which it has requested one of the parties to the proceedings before it to produce, provided that, on the one hand, the reliability of that information has been established and, on the other hand, in accordance with the principle of the right to be heard, those parties have the opportunity to submit their observations on that information. (87 ) It follows that Member States are required, under Article 46(3) of Directive 2013/32, to adapt their national law in such a way as to ensure sufficient and adequate access to the sources of information on which they have relied in designating safe countries of origin. Such access must enable an applicant for international protection originating from such a country, and the national court hearing an appeal against a decision concerning the application for international protection, to familiarise themselves effectively with those sources of information in accordance with the case-law referred to in paragraph 78 of this judgment.”

[5] Even though the main issue at stake in this case is the fact that I have submitted my confirmatory application with two days delay that EUAA has considered mandatory and I consider only of ordinatory nature.  

[6] See Council document WK 8158/2025, pp. 23–24

[7]  According to Regulation (EU) “With regard to India, according to information from the Asylum Agency, nine Member States currently designate it as a safe country of origin at national level, and in 2024 the recognition rate at Union level for applicants from that country was 2 per cent. The country has ratified the main international human rights instruments. India is a constitutional republic with a parliamentary democracy. There is no evidence of expulsion, removal or extradition of Indian nationals to countries where they would be at risk of being subjected to the death penalty, torture, persecution or other inhuman or degrading treatment. In general, there is no real risk of serious harm within the meaning of Article 15 of Regulation (EU) 2024/1347. Although India retains the death penalty in its criminal law and has not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty, in practice the death penalty has not been carried out since 2020. India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There are no armed conflicts in India and, consequently, there are no threats arising from indiscriminate violence in situations of internal or international armed conflict. In general, there is no persecution in the country within the meaning of Article 9 of Regulation (EU) 2024/1347.”

[8] Following the adoption of art.9 the European parliament accepted to withdraw a Court Case dealing with an agreement between the Council and NATO (so called “Solana agreement”)

[9] “..calls, in particular, on the European Union Agency for Asylum (EUAA) to grant the European Parliament timely access to its documents, in particular information and analysis on safe countries of origin and safe non-EU countries..” Par 16 of  European Parliament resolution of 10 March 2026 on public access to documents – report covering the years 2022 – 2024 (2025/2137(INI)) (C/2026/4005)

[10] As stated in plenary by Graham Watson, Chair of the European Parliament’s Committee on Civil Liberties, on May 2nd,2000 when voting on the Access to documents last compromise.

The new proposal on the security of EU informations: transforming the EU “Bubble” in an EU “Fortress” ? (2)

Notwithstanding all the shortcomings of the Commission’s legislative proposal, the challenge for the European Parliament (EP) and for the Council is now to bring some order to the information management inside the EU. This is particularly important given that the EU’s digital agenda provides the opportunity, as part of an increasingly-integrated public administration, to establish a virtual common working space, to categorise information to be shared, to establish different level of access and diffusion with the external world, within the EU institutions or to be exchanged with the member states.

However, to do so by respecting the principles of transparency, proportionality, efficiency and accountability requires the EP and the Council to share the same political vision. Notwithstanding the repeated public mantra invoking a more democratic and transparent EU, there is no way this requirement can be taken for granted. Suffice to recall that 23 years after the Regulation on access to documents came into force the Parliament, Council and Commission have not yet been able (or willing?) to establish a common platform displaying day by day the EU legislative process, and this is clearly not solely due to technical reasons.

The problem being political more than technical it should now be seen if the EP and the Council could find an interinstitutional agreement on such a complex issue in the next six months, given the political pressure of the end of the legislature. The Commission may have authored the proposal but, as co-legislators, the EP and Council bear all responsibility for its final content before EU citizens and before the Court of Justice.

This EP-Council legislative co-responsibility has been clearly framed at primary law level by the Treaty on European Union, according to which “The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions,” (Article 14(1)) and: “The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions” (Article 16(1)).

Revising and strengthening the Regulation on access to documents

The first issue on the agenda in negotiations on the security of information proposal should be how to strengthen, at the highest level, the aspects dealing with transparency and open administration, bearing in mind the different legislative “cultures” of the EP and the Council. This could be done by amending explicitly, and publicly, the Regulation on access to documents that the Commission is proposing to revise by stealth, through the information security proposal.

The first thing to do is to add to the legislative proposal a complementary legal basis of Article 15 TFEU, according to which the EP and the Council shall define “General principles and limits on grounds of public or private interest” governing the right of access to EU documents. Thereafter articles. 4, 9 and 12 of that Regulation should be amended by taking in account (at last!) the new constitutional situation arising from the entry into force of the Lisbon treaty and of the relevant CJEU jurisprudence in this domain.

The first set of amendments should enforce at secondary law level the fundamental notion of legislative transparency and its impact on legislative preparatory documents and debates.

It is worth recalling that the principle of legislative transparency (which is ignored by the information security proposal), has, since Lisbon, been imposed at primary law level 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.” Regardless of the different legislative “culture” of the Council, the authors of the Lisbon Treaty also imposed specific obligations of legislative transparency even at the level of the definition of its meeting agendas with (Article 16(8) of the TEU).

With all these provisions, the EU legislative function becomes inherently intertwined with the obligation of transparency (as it should be in a democratic entity). This is consistent with the choice of the authors of the Lisbon Treaty, of modelling the EU legal order upon the constitutional principle of the separation of powers, adding to the administration and the judiciary (provided for by the previous rules in Article 17 and Article 19 TEU) the EU legislative power (Articles 14 and 16 TEU). Thus, the legislative function has become an institutional, democratic and autonomous prerogative of the European Union, directly governed by several principles and rules of EU primary law. Under this constitutional framework, being transparent when acting as legislator has become a self-standing obligation upon the institutions, the scope of which does not depend on the aleatory condition of whether or not an individual has requested access to a legislative preparatory document.

In a way, since Lisbon, the institutions’ obligation to be transparent when acting as co-legislator is a different, even if parallel, regime to the pre-Lisbon access to documents regime. Moreover, if legislative preparatory documents are already public, why should citizens ask for them?

The idea that legislative procedures should be more transparent than non-legislative procedures was already present in the 2001 access to documents Regulation, thanks to specific EP amendments to the original Commission proposal. But, at the time, the very notion of legislative activity was substantially different from the one framed by the Lisbon Treaty. Transposing into secondary law the principle of legislative transparency as required by Article 15(2) TFEU is a long overdue obligation.

This can be easily done through two simple amendments to the Regulation on access to documents.

The first should change title of Article 4, which should become “Exceptions applicable to non-legislative documents.” It is worth recalling that in December 2011 the European Parliament voted, as co-legislator, for just such an amendment. This would have strengthened the principle of legislative transparency, but the EP amendment was not taken on board by the Council. Twelve years later and some months before the European elections it would be timely to convince the Council to stick to its obligation of legislative transparency

The second should amend Article 12(2) so that it reads: “2. In particular, legislative preparatory documents shall be made directly accessible.” This amendment is consistent with the previous one. There should no longer be any reference to Article 4 exceptions, nor to Article 9 on classified information – this has a special regime, as is discussed below.

Strengthening the efficiency of the non-legislative decision making process by amending the text of art.4 of Regulation 1049/01  

The non-legislative decision making process is dealt with in recital 11 and Article 4 of the access to documents Regulation and it already foresees several general exceptions to protect the internal debates in a given institution, agency or body in cases where a document’s disclosure would undermine the protection of one of the protected interests.

Since the adoption of Regulation 1049/01 the Court of justice has already framed more strictly the conditions under which these exceptions should be interpreted.

To quote a recent judgement of CJEU (points 67-70 of Ruling T-163/21, emphasis added) :

“..Since such exceptions derogate from the principle that the public should have the widest possible access to the documents, they must be interpreted and applied strictly… Where an EU institution, body, office or agency to which a request for access to a document has been made decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of that undermining must be reasonably foreseeable and not purely hypothetical…

According to the case-law, the decision-making process is ‘seriously’ undermined, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 where, inter alia, the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question…”

The simplest solution would be to stick to the CJEU jurisprudence and amend Article 4 as follows (the proposed amendments are in bold):

Article 4 Exceptions applicable to non-legislative documents

1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

– public security,
– defence and military matters,
– international relations,
– the financial, monetary or economic policy of the Community or a Member State;

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

– commercial interests of a natural or legal person, including intellectual property,
– court proceedings and legal advice,
– the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

The EU Institution, Agency or body must, in principle, explain how access to a requested document could specifically and actually undermine the interest protected by the exception at stake, and the risk of that undermining must be reasonably foreseeable and not purely hypothetical.

3. 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.

4. Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

The decision-making process is ‘seriously’ undermined, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 where, inter alia, the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question.

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.”

One fundamental aspect ignored in the Commission’s proposal is a minimal framework for implementing art.13.2 TEU according to which “The institutions shall practice mutual sincere cooperation.” at least in the most common and frequent cases of procedures associating several agencies or, even, EU institutions.

A sensible solution would be to define a first list of these procedures, describe in advance the possible workflow and, without prejudice to the “nuclear option” of launching judicial procedures before the CJEU in case of conflicts of interpretation or failure to act, to define a “mediation mechanism” preventing or solving the conflicts in a transparent and friendly way.

This issue should be further examined by the co-legislator. At first sight, in the case of EU Agencies the role of Mediator may be played by the European Commission and in the case of the EU institutions it may be the case of the EU Ombudsman.

In case of unsuccessful mediation the way to the CJEU will still be possible.

The new proposal on the security of EU informations: transforming the EU “Bubble” in an EU “Fortress” ? (1)

by Emilio DE CAPITANI

The Civil Liberties Committee (LIBE) of the European Parliament is currently working on a legislative proposal (2022/0084(COD)) dealing with information security in the institutions, bodies, offices and agencies of the Union. At first sight the 76 pages long text looks “technical”, but looking closer it is clear that it may have a huge impact, not only from an organizational point of view, but also in a more political perspective. If adopted as it stands it may even pave the way for the transformation of the “EU Bubble” in a sort of (Administrative) Fortress and substitute the principle of “Transparency by design” with the principle of “confidentiality by design”.

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 interinstitutional coordination group is proposed, as well as a network of security officials in all the EU entities and a securitized  informatic network (TEMPEST) is foreseen.

So far so good, and if the content of the proposal was limited to these organizational aspects it could, even, be an example of administrative cooperation which may be consistent with the chosen legal basis for this Regulation eg art.298 of the TFEU.

What is worrying is the fact that, in parallel with the definition of the physical security of EU information, this proposal on one side redefines the conditions of treatment, access and sharing of all kinds of information/document treated by the EU Institutions, Agencies and bodies and, on the other side does not frame adequately the conditions of interinstitutional / interagency cooperation.

On the first aspect the new proposal, unlike what is declared by the EU Commission, completely overlaps and modify Regulation 1049/01 on access to public documents but following a completely different logic. If the principle of Regulation 1049/01 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, which mirror the logic of the current Council internal security rules, is that almost all internal documents should be protected and shared only with people with a recognized “need to know” unless the document is marked as “public”.

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 transparency principle as defined by art.1 of  the TUE according to which “..decisions are taken as openly as possible and as closely as possible to the citizen” and by art.15.1 of the TFEU which states that “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.” Last but not least the new proposed framework goes against the notion of openness echoed in art 298 TFEU which requires that the EU administration should not only be Independent and efficient but also “Open”. Recognizing, as the new proposal does, to each EU institution agency and body the possibility to “protect” its internal information/documents by invoking the very fuzzy notion of “harm” as described in the proposal (“to the legitimate public and private interests, measured as a combination of the likelihood of threats occurring and their impact”…) the new draft Regulation threatens in a fundamental way the right to access to legislative and non legislative information as required by art.15 of the TFEU and by Regulation 1049/01.

To put it short: with this new envisaged legal regime the Commission (by the endorsing at legislative level the Council internal security rules) is proposing to the EP to go back to the pre-Maastricht era when it was up to the EU institutions to decide if giving access to their internal documents. But since Amsterdam (with the art.255 of the TCE) and, even more, since Lisbon, this practice is no more compatible within an EU which is bound by the rule of law and where there should not be space for dark zones. It is therefore quite surprising that until now the EP has not proposed to the legislative proposal substantial amendments which may adequately preserve the Transparency principle in the EU institutional framework.  

On the second aspect this proposal is also failing short from implementing the principle of an independent and efficient administration as required by art.298 TFEU because by transforming each EU Institution agency and body in a sort of  sandbox it will make extremely difficult implementing the principle of sincere cooperation foreseen by art 13.2 of the TUE. In an European Union where in most cases interagency and interinstitutional cooperation is essential to achieve the missions foreseen by the Treaties it is highly problematic insisting on each EU entity independence without foreseeing by law mechanism of  a structured interinstitutional and interagency cooperation (outside the enhanced cooperation on protecting each other secrets).

Not providing legal procedures for arbitration and conflict prevention this proposal paves the way to a permanent  conflictual administrative framework. Referring to the fact that the Court of Justice may solve possible problems of interpretation of a badly designed legislation or solve potential cases of failure to act by all these EU entities is a very bad approach for a legislator which is deemed to be guided by the principle of granting legal certainty to EU Citizens and to the EU administration. Furthermore it is quite bizarre that the European Ombudsman has not been associated or consulted on the proposal at stake.

(to be continued)