Last week, Advocate General Cruz Villalón delivered his opinion in the Council’s appeal against the General Court’s Access Info Europe judgement of 2011.
(For a background to this case, see an earlier post on this website.) AG Cruz Villalón’s opinion, which can be accessed here, marks another move in the longstanding debate about the role of transparency in the Council and, more broadly, in legislative procedures. The AG takes a principled stance in his opinion, which leads to an uncompromising, at times tough attitude towards the arguments put forward by the Council and its supporting intervenors (Czech Republic, Greece, Spain). In paras 59 and 60 of the opinion, the AG brings the crux of the matter down to a single question, which he immediately answers:
Fundamentally, the question at issue is therefore this: does the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’ constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001?
The answer to this question must, in my view, be in the negative.
He then goes on to substantiate this position in the light of transparency’s contribution to the overarching principle of democracy.
67. Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made legislation ‘easier’, if easy is taken to mean ‘hidden from public scrutiny’, as public scrutiny places serious constraints on those involved in legislating.
Member States are warned that when they participate in the EU’s legislative process, the institution within which they do so, the Council, is best viewed as a legislative chamber, evidence for which the AG sees in the progressive development of this principle in the successive Treaties. Therefore,
69. It is worth stating, once again, that Member States taking part in an EU legislative procedure as members of an institution are more like the common perception of a national legislature than they are like a sovereign body playing a role in relations governed by international law. The mind-set of discretion and even secrecy, which is justified in the context of relations between sovereign players, is out of place in the context of the European Union, which, in this respect, sees itself primarily and increasingly as a community based on the principles of the rule of law and democracy.
[…]
71. For this reason I am unable to endorse the argument of the Czech, French and Spanish Governments to the effect that transparency and, consequently, democratic debate is ensured by granting access to the material content of the document only. To do so would perhaps allow an abstract debate on the proposals at issue, but this would still lack the added value of knowing who supported them and who criticised them. Democratic political debate involves, above all, accountability; and to have accountability it is essential to know the identity of those participating in the debate and, in particular, the terms on which they are doing so.
It remains to be seen whether the EUCJ, often regarded as the EU’s constitutional court [1], is willing to embrace this line reasoning, and thereby accept its full consequences. In any case, the AG’s opinion marks the clearest perspective on the principle of democracy in the EU’s legislative process, as well as transparency’s role therein, to date.
– MH
[1] See P. Craig and G. de Búrca, EU Law: Text, Cases, and Materials, fourth edition, pp. 72-76.