Open Government in the EU

On Wednesday 18 July 2018, the committee  of ambassadors of the member states to the EU (Coreper) held an orientational debate about the need for reforms of the Council’s transparency policy, thus Agence Europe reports.

The debate, which appears as the opening move in a further series of discussions about potential changes to the Council’s internal transparency policy, was based on a series of proposals drafted by the Council’s Secretariat. This document discusses possible and necessary changes in the face of new case law and further external pressures.

The proposals include, inter alia, ways to make the legislative process more traceable and ‘readable’, to apply more consistent rules in the drafting of legislative documents, and to centre transparency around “milestones” in the legislative process. Furthermore, it puts forward a plan to ‘normalise’ the publication of member state inputs (statements, proposals for amendments) into legislative debates. Under the current rules, the Council applies a fragmented policy by which member state inputs are sometimes recorded in the official documents, and sometimes not at all. The Council has so far been able to apply this policy since the formal rules do not stipulate how a legislative document is supposed to be drafted.

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Emilio de Capitani (photo credit: EUD Observatory/YouTube)

In a landmark case delivered on Thursday 22 March, the EU’s General Court requires the European Parliament to publish legislative negotiation documents (known by EU insiders as the “trilogue four-column document”) not only fully, but also immediately.

Case T-540/15 was brought by Emilio de Capitani, who had been refused access to the full negotiation document in ongoing legislative processes in the area of justice and home affairs.

Against the Parliament’s assertion that access to the full document could not be granted while negotiations were under way without jeopardising the legislative process, the Court found that no legal grounds existed in the access to documents act (Regulation 1049/01) to postpone disclosure of the document, as the act states should be the legal default position.

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“On the Administration of Pollution: How Much “Space to Think” May the EU Claim?”

When can an institution plausibly argue that something is decision-making, and not “mere” administration? And more importantly, how does this influence EU bodies’ legitimate claim to a “space to think” that shields them from transparency? In this newly published case note, Maarten Hillebrandt and Liisa Leppävirta argue that the EU courts still have a long way to go to clarify these questions.

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A new court case further strengthen’s the EU institutions’ hands in granting access to a member state’s documents against its will.

In a case against the Commission, initiated by France, the General Court confirmed that the Commission acted lawfully by granting public access to a series of documents submitted to it by the member state. Although France had justified its request for non-disclosure with the invocation of an exception contained in the EU access to documents law, the Commission judged this exception prima facie not to apply to said documents. France brought a judicial protest against this action, which led to the court’s judgment of April, which goes along with the Commission’s decision to disclose the documents against France’s will.

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On 27 February, the General Court of the EU delivered another ruling on the EU right of public access to documents. In case T-118/12 (Breyer v Commission), German Pirate Party member Patrick Breyer (pictured) took action against the Commission’s decision not to grant it access to documents, saying that these documents, being held by the Court, fell outside of the scope of the access law. While the Court ended up ruling otherwise, ACELG PhD Eljalill Tauschinsky points at an element of the case that is problematic nonetheless: the Court’s decision to make Breyer bear half of his own costs, to punish him for publishing documents pertaining to the court case on his website, thereby allegedly inviting readers to comment negatively and exert pressure on the Commission in an ongoing case. While a comparable situation occurred over 15 years ago in the Swedish Journalist Association case, Tauschinsky argues that Breyer was punished worse for a comparable breach.

The comment, posted on the ACELG blog, can be accessed here.

Cross-post van het Expertisecentrum voor Europees Recht (ECER), Ministerie van Buitenlandse Zaken.

De Commissie mag een verzoek om openbaarmaking van de processtukken van een lidstaat in een infractieprocedure niet automatisch afwijzen omdat het stukken van het EU-Hof zijn. Het besluit om stukken vrij te geven moet worden genomen op basis van de bijzondere regeling in de Eurowob. Dat heeft het EU-Gerecht bepaald.

Het gaat om het arrest van het Gerecht van 27 februari 2015 in de zaak T-188/12, Patrick Breyer tegen de Commissie.

Breyer verzocht de Commissie om vrijgave van de door Oostenrijk bij het EU-Hof ingediende processtukken (memories) in de infractieprocedure die de Commissie tegen Oostenrijk had gevoerd over de implementatie van de dataretentierichtlijn ( zaak C-189/09).

Voor een uitgebreide bespreking van dit arrest zie de ECER-website. -MH

Sophie in ‘t Veld, a Dutch member of the European Parliament for the Democrats ’66 / ALDE party, laments the apparent lack of EU transparency in an op-ed on European news website Euractiv.com. “Trust in government and politics, both national and European, is at an all-time low, and the key to restoring trust is transparency.”

In her opinion article, likens the EU’s mentality to that of Sir Humphreys, the fictive British Prime Minister’s advisor in BBC hit series Yes, Minister: “Open government, Prime Minister. Freedom of information. We should always tell the press freely and frankly anything that they could easily find out some other way.” According to In ‘t Veld, it is apparent that the EU is developing towards a parliamentary democracy where citizens take ownership, and where transparency and accountability have a central role. The EU’s tradition of diplomatic and secretive decision making, she argues,  is outdated. “Sorry Sir Humphrey, you are a man of the past. Transparency is the future.”

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The Court of Justice of the EU dismisses in full the Council’s appeal against an earlier judgement in the much publicised Access Info Europe case.

The long awaited judgement of the Court of Justice of the EU (CJEU) in the Access Info Europe appeal was finally handed down last week, on 17 October. After losing a case against Access Info Europe (AIE) in front of the lower General Court, the Council appealed. The CJEU now has found that the General Court’s judgement was correct and must therefore be upheld. In total, three separate pleas in law filed by the Council were refuted.

On its website, AIE director Helen Darbishire commented: “If the Council applies this ruling to all similar documents, this would finally provide a similar level of transparency at the EU level as one would normally find in national legislative processes.” On Twitter, AIE spoke in equally superlative terms, saying that it was “More than satisfied! The decision we hope will open the door to a more participatory and transparency EU!” The Council, meanwhile, has not given the case any attention on its news homepage.

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Law professor offers constitutional arguments for the disclosure of important Council documents. The General Court orders the Council to reconsider the scope of partial disclosure, but only on procedural grounds.

By Maarten Hillebrandt

On Thursday 12 September, the General Court gave its judgment in Besselink v Council (T-331/11). In January 2011, Leonard Besselink (pictured), then Professor of Constitutional Law at Utrecht University, requested access to the documents relating to the EU’s negotiations to accede to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In these documents, the Council discussed the strategic and substantive instructions to the Commission, which negotiated the accession on the EU’s behalf. The final draft of this draft accession treaty is currently going through the process of ratification. However, the Council refused access to the documents in which it instructed the Commission, on the basis of Article 4(1), third indent, of Regulation 1049/2001 on public access to EU documents. This article states that access must be refused where disclosure would undermine the public interest with regard to international relations.  (more…)