Transparency in the early stages of the EU decision-making process. Secrecy at the cost of democratic participation, or transparency at the cost of efficiency? Comments on T-540/15 De Capitani and C-57/16P ClientEarth
April 24, 2019
By Jasmin Hiry
Doctoral candidate, University of Luxembourg
With the Treaty of Amsterdam, the right of access to documents was formally embedded into primary law. In light of the huge amount of judgments rendered by the Court since then, this does not seem to be an easy right to protect. Since the beginning, the institutions seemed to struggle to find the right balance between on the one hand transparency and openness and on the other, in particularly in light of ongoing decision-making processes, secrecy for the sake of coming to a quick and efficient decision. A few months ago, the CJEU rendered two crucial judgments in this regard. While the institutions in both T-540/15 De Capitani and C-57/16P ClientEarth tried to put more emphasis on secrecy for the sake of efficiency, the Court tilted the balance back in favour of transparency and openness, the precondition for democratic participation. This trend is to be welcomed, however, already at this stage, it is clear that the matter has not yet been fully solved. The Court left room for secrecy and only future battles for transparency will be able to clarify the exact limits of secrecy in this context, to prevent the institutions from further undermining the right to access to documents. The following comment therefore aims to put both judgments into perspective and to assess them in light of the future challenges for transparency in the European Union.
Both judgments clarified the meaning of article 4(3) of Regulation 1049/2001. In principle, this Regulation aims to grant widest possible access to documents of the European Parliament, the Council and the Commission. Article 4 lists the exceptions to this general principle. Article 4(3), in particular, aims to protect the so-called “space-to-think” where the institutions have not taken a decision yet. Access to such documents shall be refused where the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. If the institutions wish to refuse access, they therefore need to show that disclosure would create a reasonably foreseeable and not purely hypothetical prejudice to the decision-making process, which cannot be outweighed by an overriding public interest in disclosure.
In certain situations, the Court had previously accepted for the institutions to rely on a so-called general presumption of confidentiality. In requests relating to ongoing administrative and judicial, notably not legislative, proceedings, the Court acknowledged that disclosure of such documents would seriously undermine the institution´s decision-making process. The institutions are therefore not obliged to carry out an individual assessment of the documents requested, but may refer the applicant to the general presumption acknowledged by the Court. It would then be for the applicant to prove an overriding public interest in disclosure to rebut this presumption. Without having access to the particular document, this is certainly a difficult if not impossible task.
It is against this background that the Court was to decide on the access to ongoing trilogue documents and impact assessments of the Commission prior to the submission of a proposal.
Mr De Capitani had requested access to multi-column tables drawn up in connection to ongoing trilogues in the field of police cooperation from the European Parliament. It is to be remarked that in the trilogue phase there are no joint or agreed minutes or reports of the meetings. Instead reporting takes place within the individual institutions according to their respective practices. The multi-column table, as the only jointly drafted report, is therefore a crucial document to track the progress of these meetings.
The Parliament only granted partial access to Mr De Capitani as it denied access to the fourth column which includes arguably the most crucial information – the compromise text of the institutions. In denying access, the Parliament argued that disclosure at this early stage and the sensitive area of the subject matter would seriously undermine the ongoing legislative procedure. The applicant challenged this refusal arguing that the Parliament had misinterpreted article 4(3) of Regulation 1049/2001.
The beauty of the judgment rendered by the General Court on 22 March 2018 certainly lies in its clarity and systematic analysis of the provision in question. The Court first ascertains whether the institution could have relied on a general presumption of confidentiality. Much to the relief of the applicant and advocates of transparency, the Court does not find such a general presumption for the fourth column of trilogue tables concerning an ongoing legislative procedure. The Court comes to that conclusion by relying on three main arguments. It firstly points out that the Regulation stipulates for even wider access to documents where the latter are part of the legislative procedure (§77-81). Trilogue tables, according to the Court are indeed part of the legislative process in light of the high percentage of acts, which are adopted subsequent to a trilogue meeting (§68-72). Ironically, the Court also refers to the Parliament´s own resolutions in which the latter pointed out that trilogue documents “are related to the legislative procedure and cannot in principle be treated differently from other legislative documents” (§73, 74). In a second step, the Court relies on the fact that up until present, the CJEU only accepted general presumptions in limited cases, none of which included the legislative procedure. Since trilogues relate to all fields of legislative activity, shielding them from disclosure would effectively make a whole stage in the legislative procedure intransparent (§82). Thirdly, the Court stresses the fact that while the principles of effectiveness and integrity of the legislative process might well be crucial principles, they cannot undermine the principles of publicity and transparency, which furthermore are to underlie the legislative process (§83).
In refusing to accept a general presumption, the Court takes away the option of the Parliament to bypass the obligation to carry out an individual assessment. It therefore further ascertains whether the assessment carried out by the institution was sufficient to find a reasonably foreseeable prejudice to the decision-making process. As the Parliament refused access by mainly referring to general considerations not linked to the specific documents requested, it does not come as a surprise that the Court finds the individual assessment not giving rise to a sufficient risk (§98-110). While the Parliament also invoked specific considerations linked to the documents, such as the sensitive area to which the latter related, the Court does not accept these considerations as the content of the fourth column does not appear particularly sensitive as compared to the third three columns to which access had been granted (§95).
For those reasons, the Court concludes that the Parliament infringed article 4(3) of Regulation 1049/2001 in refusing access to the documents requested by Mr De Capitani. The Court thereby denies to accept a blanket justification for the institutions to refuse access to documents in such situations. On the contrary, it places the burden of proof on the institution and stresses that the prejudice to the decision-making process must be reasonably foreseeable and not purely hypothetical.
Only a few months later, the Court was given the chance to further elaborate on that matter. ClientEarth, a non-profit organization active in the field of environmental protection, had requested access to impact assessments (IA) from the Commission. These IAs related to access to justice and inspections and surveillance in environmental matters. The Commission denied access to both of them arguing that the IAs were carried out with view to adopting a legislative initiative and disclosure at this stage would seriously hamper the decision-making process. The General Court, which rendered its judgment in late 2015, had found in favour of the Commission, even accepting a general presumption of confidentiality for IAs at this stage of the decision-making process. According to the General Court, the Commission needs to be fully independent and free from external influences in its decision of whether and which proposal to adopt. Disclosure at this stage would therefore generally call the Commission´s independence into question.
As ClientEarth appealed against this judgement, the Court of Justice, sitting in Grand Chamber, was given the chance to re-evaluate the General Court’s finding. The central question of the judgment rendered on 4 September 2018 was whether the general presumption of confidentiality of IAs would be upheld. In answering this question, the Court of Justice firstly elaborated on the general nature of IAs. Strictly speaking, the legislative procedure only starts with the submission of a Commission proposal, which is why the nature of IAs, which are conducted prior to the proposal, is somehow dubious. The Court relies on a broad definition of legislative documents, also employed by Regulation 1049/2001 (article 12(2)), according to which legislative documents cover “not only acts adopted by the EU legislature, but also, more generally, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States” (§85). In this respect, IAs are crucial as they are frequently conducted with view to the adoption of a legislative initiative. The Court points out that “although the submission of a legislative proposal by the Commission is, at the impact assessment stage, uncertain, the disclosure of those documents is likely to increase the transparency and openness of the legislative process as a whole” and gives citizens an effective means to make their views known before choices are definitely adopted (§92). The Court therefore concludes that impacts assessments are to be considered as legislative documents for the purpose of Regulation 1049/2001, and consequently wider access should be granted to such documents.
The Court continues to evaluate the General Court´s finding as regards the general presumption. While the Commission needs to be independent in its decision to initiate a proposal, according to the Court of Justice the impact assessment procedure is not a type of procedure that would preclude full transparency. Impact assessments are conducted to ensure that indeed the Commission can make a more objective choice (§103). Furthermore, it is rather the lack of public information which is likely to give raise to the public doubting the independence of the institution (§104). The General Court had pointed out that the Commission needs to be free from external influences and pressures. The Court of Justice agrees that disclosing the IAs at this stage might give raise to the public trying to influence the Commission, but stresses that there is nothing in the treaties to suggest that the Commission needs to reply to each and every remark it receives (§105-108). Moreover, while the Commission must enjoy space to deliberate, the General Court erred in finding that this protection generally requires confidentiality. The Court of Justice thereby sets aside the General Court´s ruling and continues to render the final judgment.
Following the same approach the General Court took in De Capitani, the Court of Justice continues to check whether the individual assessment carried out by the Commission was sufficient to find a serious risk to the decision-making process. The Commission had relied on general considerations such as the risk of external pressure, which the Court denies, as it did not accept a general presumption (§120). The specific considerations invoked by the Commission include the early stage of the IAs and the sensitive nature of the matter, illustrated by the fact that member states had raised differing opinions in this regard. The Court finds that the Commission has not substantiated any of these grounds with further evidence, which is why none of the grounds invoked can be interpreted as giving rise to a serious prejudice to the decision-making process (§121-127). The Court of Justice therefore finds that the Commission infringed article 4(3) of Regulation 1049/2001 by refusing to grant access to the impact assessments requested and annuls the Commission´s decision.
In light of transparency both these judgments are to be welcomed as they did not accept a general presumption of confidentiality for either multi-column tables relating to ongoing trilogues nor for impact assessments conducted with view to the potential adoption of a legislative initiative. Had the Court accepted such a finding, the burden of proof would have shifted to the applicant to prove an overriding public interest in disclosure to rebut the presumption. As mentioned before, without knowing the content of the particular document this is a difficult task, and according to Advocate General Bot this would even be incompatible with article 42 of the Charter. It is worth stressing that in neither of the two judgments does the Court go as far as to make a reference to article 42 of the Charter, which plainly lays down the right of access to documents and might have further strengthened the Court’s arguments. Arguably, such a reference might have also opened a door the Court is not yet ready to open.
For now, following these judgments, the institutions need to carry out individual assessments of the documents requested and prove that the harm to the decision-making process is reasonably likely to validly refuse access. It is therefore harder for the institution to refuse access, but it is not impossible. As the Court stresses in De Capitani, the institutions retain the discretion to refuse access in duly justified cases. It will have to be seen what the Court considers to be a duly justified case. Particularly in light of the fact that article 4(3) of Regulation 1049/2001 does not exclude the legislative procedure, highlighted by the Court in De Capitani (§112), there might well be situations in which the institutions may refuse access to legislative documents, where there are compelling reasons to do so. It will be vital to determine these situations and construe them as narrowly as possible, as in general, the adoption of legislative acts is to be particularly transparent. It is a positive step that the Court rendered the judgments discussed above in the way it did, but in light of the legal framework, it is hard to imagine whether and how it could have ruled differently. According to article 16(8) TEU and 15(2) TFEU both the Council and the Parliament are to meet in public when considering, deliberating and voting on draft legislative acts. The aim of this obligation is to ensure accountability of the institutions towards the citizens, and for the latter to take part in the democratic life of the Union (article 10(3) TEU). The practice of trilogues effectively leads to a situation, where the institutions deliberate and vote in public only after a deal has been made. This renders the obligation to deliberate in public somehow superfluous in light of the citizens’ right to democratic participation.
Had the Court accepted a general presumption of confidentiality for the multi-column tables related to ongoing trilogue meetings, it would have indeed accepted the legislature’s try to escape transparency in this early, yet decisive stage of the legislative procedure. While opponents of the trend of increasing transparency hold that it will be exactly this trend that will alter the Union to be less transparent, as the legislature will find different fora to make its secret deals, this should not be advanced as an argument to exempt the legislature from its obligation to act in a transparent and open manner. While this might be a practical risk, it is no justification to misapply the law as it stands. On the contrary, this risk should be taken as a trigger to reflect on the aim of the legislative procedure, namely the adoption of legislative acts in a transparent and efficient manner. The ordinary legislative procedure, which sets out the adoption of legislative acts within up to three readings and the option of a conciliation meeting, can be said to be a decently efficient procedure. If the legislature would not consider the procedure to be efficient enough, as it seemingly does as it hides in trilogue meetings to conclude deals even more efficiently, it should rather consider to change the procedure than to circumvent it and thereby neglect a crucial value the legislature itself had imposed on the Union – transparency and openness.
The same goes for the impact assessments conducted in view of the adoption of a legislative proposal. As the Court rightly held, these assessments are part of the legislative process and should in this vein be open to public scrutiny. Refusing public access to this phase of the legislative procedure renders the procedure itself less transparent and minimizes the potential of the citizens’ right to democratic participation.
Irrespective of how predictable these judgments have been, and while they are generally to be welcomed, they also raise further questions. Mr De Capitani had only requested access to the multi-column table of the trilogue meetings – would the Court have decided differently had he requested access documents relating to trilogue works in general? If the impact assessment in question would not have been conducted with a view to adopt a legislative proposal, but with view of the adoption of a non-legislative act, would the Court have rendered a different judgment? After all the Commission may still change its opinion and an intended proposal for a non-legislative act might become a proposal for a legislative act.
For the future, that is to say until the Court gets another chance to further clarify the matter, it is to be hoped that the institutions, when faced with such requests, would on their own decide in favour of transparency, rather than once more leaving it up to the Court to step up for transparency.Frédéric Allemand