Jurisprudence Research

New publication: recent case law impacts on the Council’s ability to negotiate in secrecy

Recent cases at the Court of Justice on Regulation 1049/01 on public access to Parliament, Council and Commission documents set new limits to confidentiality in the Council’s legislative and international negotiations, as Vigjilenca Abazi and Maarten Hillebrandt argue in a recent case note.

The case note, entitled “The legal limits to confidential negotiations: Recent case law developments in Council transparency: Access Info Europe and In ‘t Veld”, wash published in the Common Market Law Review.

The article deals with some important recent trends in the EU’s case law on transparency, notably the Access Info Europe case and the In ‘t Veld case, brought by a Spanish NGO and a Dutch MEP respectively. In several (expected and unexpected) respects the authors find that the Court sets a higher standard of openness than was the practice up until now. The Court for the first time explicitly affirmed that even in international relations the institutions are obliged to explain whether disclosure could specifically and actually undermine a protected interest. Furthermore, all documents pertaining to legislation, regardless of the stage of negotiations, must be open and include the identity of the politically accountable decision-makers. This means that the two cases could be game changers for the future degree of transparency in similar Council decision-making procedures.

At the same time, the authors acknowledge the Council’s rather intricate viewpoint on the proper place for a “space to think” and “space to negotiate”. The Council’s defense of relative confidentiality on the basis of arguments of necessity and exceptionalism may, for the foreseeable future, dampen the effect of the court’s two rulings.   The article can be accessed here.