Implementation Legal reform Research

Transparency reforms “better served” by withholding access, access applicant is told

The Council’s ongoing transparency overhaul continues to attract public attention.

Fragment from the confirmatory application.

Last summer, the Council entered a reorientation process of its internal access to documents policy. The internal reforms, which are still ongoing, were sparked by a highly critical report published by the European Ombudsman, as well as a court judgment which found current access practices in informal trilogue negotiations on legislative dossiers between the Council and the European Parliament to contravene EU transparency law. A recent confirmatory application (appeal) decision highlights the public attention for these reform negotiations.

The application

While in April of this year, 97 outgoing MEPs wrote an open letter to the Council urging it to widen the transparency of its decision making, an applicant working for the NGO Corporate Europe Observatory (a lobby watchdog) requested access to documents recording the positions of member states in these ongoing negotations.

The request bears marked resemblance to a request filed in 2008 by transparency NGO Access Info Europe. At the time, the Council was negotiating a revision of the Transparency Regulation, and Access Info Europe sought disclosure of the negotiating positions of the member states. After protracted litigation, Access Info Europe won its case, and the Council was made to disclose the requested documents.

The present case however does not concern these legislative reforms (which, incidentally, were never completed), even though the thematics and member state positions and oppositions appear to be highly similar to those at the time of the Access Info Europe saga.

The Council’s response

The Council’s response in its appeal decision reveals a continued reliance on the classic “trade-off argument”: it argues that disclosure would undermine the efficiency of the negotiations, and therefore contradict the public interest (see bloc quote above). This is the case, the Council argues, because the negotiations are highly polarised, and disclosure of member state positions would result in the exercise of unwelcome external pressure making already difficult negotiations even more difficult. Either way, the Council holds, the ongoing negotations are of an administrative nature and any parallels drawn with the Access Info Europe case law are therefore incorrect.

Similar to the Access Info Europe request, several transparency-friendly member states made statements contradicting the Council’s assessment.

Trade-off argument: where does the public interest lie?

The trade-off argument is often invoked and knows many varieties. Being used as an argument to prevent disclosure, it is per definition underpinned by claims that of a hypothetical nature (“if we would disclose the document, X and Y would occur; therefore we won’t disclose the document”). In a recent article published in the Journal of European Public Policy, Stéphanie Novak and Maarten Hillebrandt analyse in more detail how the Council deals with this challenge, developing lines of argument of varying logical and empirical strength. The tension between the logic of transparency and the logic of efficiency is likely to receive continued scrutiny, as access applicants invoking a public interest in disclosure confront a Council that relies on the exact same argument.