10.Under the Lisbon Treaty, there is a general obligation for all EU institutions to conduct their work as openly as possible, an obligation with which they are supposed to comply. Legislative acts should be considered by the Council and the European Parliament in public and they are under an obligation to ensure the publication of the documents relating to the legislative procedures. The Council Rules of Procedure require that certain other legally-binding rules should have their first deliberation in public. They also provide for the advanced circulation of the provisional agenda of Council meetings to members of the Council, the Commission and national parliaments.
11.Article 12(2) of the EU’s Access to Documents Regulation states that legislative documents should be made directly accessible unless one of the broadly-drafted exemptions applies. The institutions should refuse access to a document where disclosure would undermine the protection of:
a)the public interest as regards:
b)privacy and the integrity of the individual;
c)commercial interests, including intellectual property;
d) court proceedings and legal advice; or
e) the purpose of inspections, investigations and audits.
There is a further exclusion, designed to protect the EU institutions, covering documents prepared for institutional use, where a decision has not yet been taken. Such documents can be refused even after the decision has been taken “if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.”
12.The recently agreed Interinstitutional Agreement on Better Law-Making includes various high-level commitments to transparency and to the co-legislators’ (Council and European Parliament) exercise of their powers on an equal footing. However, the high-level commitment to ensure the transparency of legislative procedures” is supported only by concrete commitments to provide greater information on the various steps in the legislative procedure rather than substantive information as to how the legislation is evolving and at whose behest.
13.The application of legislative transparency requirements has been a source of debate and challenge. In the Access Info case, an NGO, Access Info Europe, successfully challenged the Council’s refusal to grant access to a legislative document including footnotes indicating the positions of individual Member States. The Council had argued that the necessary room for manoeuvre “would be reduced if the identity of the delegations were disclosed too early in the procedure, in that it would have the effect of triggering pressure from public opinion, which would deprive the delegations themselves of the flexibility needed to ensure the effectiveness of the Council’s decision-making process.” The Court of Justice rejected this argument, stating that “the requested documents could not be regarded as sensitive” as there was not a genuine risk that fundamental interests might be harmed.
14.Significantly, the Court of Justice highlighted, in its Turco ruling concerning the extent of access to Council legal service opinions, the links between openness and public trust in decision-making, and set a high threshold for access [emphasis below added]:
“[Openness] enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity […]. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.”
15.Despite these rulings, the Council’s approach is that application of Treaty provisions on publicity of its meetings are restricted to documents that are submitted to the Council for preparation of its deliberation or vote. In contrast, the European Parliament has raised concerns that the ‘space to think’ exception in Article 4(3) of the Access to Documents Regulation, concerning situations where the decision has not yet been taken, is outdated in respect of legislative matters.
16.The evidence revealed a difference of views on the status of the Council as a legislature (whether or not it should be considered on a par with the European Parliament and other national legislatures) and whether it should, or could, operate, at least in legislative mode, with a degree of greater transparency similar to that of the United Kingdom Parliament.
17.Professor Simon Hix, Harold Laski Professor of Political Science, London School of Economics, acknowledged that the Council had an executive role as well as a legislative role, but considered: “In a democratic system, we hold the executive branch to different standards of transparency than we do a legislative branch and legislative procedures.” He described the EU system as “a bicameral legislative process where the right of initiative is the Commission, and then we have two branches of the legislature: the Council when acting as a legislature and the European Parliament.”
18.On the other hand, the Rt Hon Sir Edward Davey, former UK Minister and Secretary of State, did not see the Council as part of a bicameral legislature alongside the EP. This view was shared by Anne Lambert, former UK Deputy Permanent Representative to the EU (2003–2008). Mr Andrew Lebrecht, former UK Deputy Permanent Representative to the EU (2008–2012), agreed:
“The Council is not like a parliament. It is not directly elected like the European Parliament is or like the two Houses of Congress are. The members of the Council are all representatives of sovereign governments who are accountable to their national parliaments. In that context … the accountability and the transparency is primarily a matter for the British Minister who is in the Council or his representatives if it is in Coreper, back to the Government in London and from the Government in London to Parliament.”
19.Professor Hix suggested that the distinction between the Council’s legislative and executive functions should be clearer. The Council’s Rules of Procedure state that agendas should be divided into two parts. The first part should be entitled “Legislative deliberations” and the second “Non-legislative activities”. Professor Hix argued that this was insufficient and that the Council should meet on different days or in different sessions when considering legislative and non-legislative matters respectively and that different sets of rules on transparency should apply.
20.Dr Sara Hagemann, Assistant Professor, European Institute, London School of Economics, agreed “that, in certain settings, the Council will need to deliberate behind closed doors” but that there should be “full disclosure” when the Council is acting under the ordinary legislative procedure.
21.Several witnesses considered that greater transparency would threaten the effectiveness or quality of decision-making. Sir Edward Davey said: “My general principle is that I am in favour of transparency” but “there are occasions … where that is inappropriate.” He gave the controversial example of negotiations on the Transatlantic Trade and Investment Partnership (TTIP): “you would not necessarily want every bit of negotiation, deliberation and working group on the TTIP files … to be on camera. It is a question of what and when.” The Rt Hon Dame Margaret Beckett MP, former UK Minister and Secretary of State, commented that in the case of the Foreign Affairs Council: “if you tried to have full transparency on all of these delicate negotiations you would not necessarily make very much progress”. She also cited negotiations to reform the EU’s sugar policy as an area on which progress would have been impossible in “full public gaze”. The Minister for Europe, The Rt Hon David Lidington MP, agreed that “transparency has to be balanced with the need for a degree of confidentiality in negotiations and careful handling of sensitive information.”
22.Isabel Winnwa, Doctoral Fellow, Bamberg Graduate School of Social Sciences, University of Bamberg, set out a number of potential disadvantages of more transparency, including the financial costs in providing more information and that it might constrain compromise, particularly on highly political sensitive issues.
23.On the other hand, some witnesses linked public accountability and trust in EU decision-making to strong transparency, as they were in the Turco case (see para 14). Dr Hagemann told us: “Transparency can have the advantage that, from one meeting to another, for example, it is very clear who was on each side or who had which proposals for amendments.” Isabel Winnwa considered that transparency would “lessen the impression of the general public and national stakeholders that governments are deciding above their heads” and “ultimately strengthen the public’s faith in the EU and demonstrate the value of EU decision-making”.
24.Witnesses also debated the extent to which more transparency would increase public awareness. Dr Hagemann and Dame Margaret Beckett considered that there was likely to be little interest among the public in getting insight into the deliberations at the level of working groups, which are largely technical, but that there could be some merit for researchers and other interested parties in greater transparency of that stage of the process.
25.We note the range of views on the status of the Council as a legislative body, or as an executive Cabinet, or as a vehicle for multinational negotiations. In addition we note there are a range of views on the desirability or efficacy of transparency. It is nevertheless the case that, since 2009, there has been a change in the culture under which these negotiations take place, and there have been improvements in the way information about Council decisions has been made public. The European Union and its Member States have already committed in a variety of ways and at different times to the principle of transparency, although such transparency may not be delivered in practice.
13 Article 15(1) TFEU.
14 “Legislative acts” means EU legislation in which the EP has a major role in the legislative process
15 Articles 15(2) and 15(3) TFEU.
16 of 1 December 2009 adopting the Council’s Rules of Procedure
17 Decision 2009/937, Article 8.
18 Decision 2009/937, Article 3.
19 Regulation (EC) No of 30 May 2001 regarding public access to European Parliament, Council and Commission documents
20 Case Council v Access Info Europe
21 C-280/11 P, para 24
22 C-280/11 P, para 63
23 Joined Cases Turco v Council
24 Paivi Leino, ‘On knowledge as power: transparency of EU law-making procedures’, EU Law Analysis, 10 January 2016.
25 European Parliament resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009–2010, , paras 14 and 25-29.
31 Council Rules of Procedure, Article 3(6)
37 Minister for Europe ()
38 Isabel Winnwa ()
40 Isabel Winnwa ()
41 Qq 9 [Dr Hagemann], 112 [Dame Margaret Beckett]
24 May 2016