In a recent court judgment (De Capitani v Council), the General Court of the EU finds that the Council erroneously relied on the access to documents regulation (Regulation 1049/2001) to refuse access to Council working party documents pertaining to an ongoing legislative decision-making procedure in order to protect the negotiation process, Dutch Foreign Ministry experts observe.
When a member of the public requests access to a Council working party document in an ongoing legislative procedure, its technical nature is not a relevant criterium when applying the statutory exception covering the protection of the decision-making process set out in Regulation 1049/2001. Council working party documents are part of the normal legislative process. The fact that the working party is not authorised to determine the Council’s final position does not diminish this fact. Thus the General Court of the EU ruled in a case that was brought by an individual against the Council.
It concerns the ruling by the General Court of 25 January 2023 in case T-163/21 (De Capitani v Council).
Emilio De Capitani requested the Council to disclose documents circulated within the Council’s Company Law Working Group on in the context of an ongoing legislative procedure. It concerned the revision of Directive 2013/34/EU on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings. The requested documents (carrying the code ‘WK’) contain inter alia comments on the legislative proposal by the member states, as well as their proposals for concrete textual amendments. The Council partially refused access, relying on the protection of the decision-making process in the sense of article 4(3), first paragraph of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (hereinafter: ‘the access regulation’). De Capitani requested the General Court to annul the Council’s decision (article 263 TFEU) on the ground that it violates article 4(3) of the access regulation. The Netherlands, Belgium, Finland and Sweden intervened in the case on the side of De Capitani.
The General Court first considered the question whether De Capitani has a legitimate interest in bringing the proceeding. This is because the Council argued that such an interest was lacking, since De Capitani was eventually granted full access to the requested documents at a later stage in the legislative process. To determine whether De Capitani has a continued interest in bringing proceedings, the General Court set out to determine whether the full document disclosure at a later stage granted him full satisfaction having regard to the objectives he pursued by his access request. With his access request, De Capitani sought to inform the public about the positions taken by the member states within the Council, and to generate a debate in that regard before the institution established its position in the legislative procedure in question. Disclosure of the requested documents however only took place after the Council had adopted its negotiating position, and after an agreement had been reached in interinstitutional trilogue negotiations. For this reason, the General Court considered that De Capitani did not obtain full satisfaction, and his interest in bringing proceedings did not cease to exist.
As the interest in bringing proceedings did not cease to exist, the General Court thereupon proceeded to consider De Capitani’s argument that the Council violated article 4(3), first paragraph of the access regulation. The argument of De Capitani comprised two parts: first, that article 4(3) access regulation is, in a general sense, inapplicable to legislative documents, and second, that in the present case, no justified reliance on article 4(3) of the access regulation is possible.
As for the first point, De Capitani held that the application of the exception to legislative documents overlooks the new constitutional dimension of access to documents drawn up in a legislative context, as laid down in the TFEU and the Charter of Fundamental Rights. In response, the General Court found that while primary Union law introduces a close normative interrelation between the legislative procedure and the principles of openness and transparency, it does not confer an unconditional right of access to legislative documents. The General Court recalled that article 42 of the Charter of Fundamental Rights of the EU grants Union citizens a right to access to documents, but that this right is to be exercised within the boundaries of article 15(3) TFEU. From this article, it follows that the right of Union citizens to access documents of the European institutions -including legislative documents- is exercised in accordance with the general principles, limits, and preconditions established in a regulation. For this reason, the first part of the applicant’s case was dismissed as unfounded.
As for the second part, De Capitani argued that in the present case, the Council misapplied article 4(3), first paragraph of the access regulation, as it was not justified in applying the exception protecting the decision-making procedure.
In the context of this second part, the General Court reminded that the access regulation intends to give the public a right of access that is as wide as possible. According to established case law, exceptions to the right of access must be interpreted and applied strictly, whereby the EU institution in question must explain in what way disclosure of a document specifically and actually undermine the interest protected by the exception invoked. The risk of such an undermined interest must be reasonably foreseeable and not purely hypothetical.
Although the Council introduced various arguments, in the view of the General Court none of them justify a reliance on article 4(3), first paragraph of the access regulation. Thus, the Council held that the question of tax transparency in multinational undertakings was ‘highly sensitive’ from a political point of view, yet according to the General Court, it does not show from the contested decision that the requested information at issue is particularly sensitive, in the sense that their publication would damage a fundamental interest of the Union or its member states.
Besides this, the Council indicated that the discussions on the legislative proposal were not exhaustive and did not necessarily reflect the definitive positions of the member states. In this context, the General Court emphasised that the preliminary nature of the discussions relating to the legislative proposal in question does not warrant them to be qualified as seriously undermining the decision-making procedure. Even when a proposal is, by its nature, intended to be discussed and is not liable to remain unchanged following such discussion, public opinion is perfectly capable of understanding this, thus the General Court. Moreover, the Council argued that disclosure at this stage of the negotiations would damage the mutual confidence which governs the work of Council working groups. The General Court however considered that the Council does not specify anything concrete which corroborates this assertion. In response to the entertained risk of public pressure caused by disclosure, the General Court recalled, that although the risk of external pressure can constitute a legitimate ground for restricting access to documents related to the decision-making process, the reality of such external pressure must, however, be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure. According to the General Court, this evidence is lacking.
Finally, the Council argued that the requested Council working party documents -in contrast to documents drawn up in the context of trilogues- relate to discussions at technical level in the context of preparatory work of the Council. They have no political implications so long as they are not submitted, as such, to the Committee of Permanent Representatives (Coreper), or subsequently to one of the ministerial formations of the Council. The General Court however considered that, whether or not a document is ‘technical’ is not a relevant criterion for the purposes of the application of article 4(3), first paragraph of the access regulation. Next, and in any event, the actual content of the documents at issue shows that they contain normative proposals for various legislative texts and that they therefore form part of the normal legislative process, which means that they are in no way technical. Besides, the members of Council working groups are given a mandate from the member states that they represent and, at the time of deliberation on a given legislative proposal, they express the position of their member state within the Council. The fact that those working groups are not authorised to adopt the definitive position of that institution does not mean, however, that their work does not form part of the normal legislative process, the General Council held.
The other arguments of the Council were also dismissed by the General Court and the contested decision was annulled.
This article has been published with the kind permission of ECER (Expertise Centre for European Law of the Dutch Ministry of Foreign Affairs). It first appeared in Dutch on the ECER website on 16 February 2023. This version of the article has been translated by the editor of the Open Government in the EU Blog.