Massimo Frigo, Senior Legal Adviser of the International Commission of Jurist’s Europe Programme*
Occasionally, cases concerning seemingly insignificant administrative matters evolve into pivotal judgments, shaping the continuous development of our democratic legal frameworks. A prime example in the US is Marbury v. Madison, a case initially garnering limited public interest due to its focus on judicial appointment procedures. Nonetheless, it ultimately established the crucial precedent of constitutional review within the US legal system.
In a similar vein, the European Union witnessed a comparable case on March 22nd: Emilio De Capitani v. Parliament. This case, though intricate in its details, delves into the core procedural aspects of one of democracy’s cornerstone institutions: Parliament.
The EU’s Legislative Process
It’s important to acknowledge that the European Union, in contrast to the United States, is not a sovereign state. However, it wields increasing legislative authority across various domains, including fundamental state functions like justice and home affairs—encompassing immigration, asylum, border management, and law enforcement collaboration.
The EU’s legislative process can be broadly summarized as follows: The European Commission, an entity comprising supposedly impartial experts chosen by the European Council (consisting of the heads of state or government from the 28, soon to be 27, member states) and endorsed by the European Parliament (the sole institution directly elected by EU citizens), possesses the right to initiate legislation.
Once a proposal is presented, the co-legislators engage in deliberations, propose amendments, and ultimately decide whether to approve or reject it. The European Commission retains the prerogative to withdraw the proposal at any stage, effectively terminating the process.
Within the EU, legislative power is shared between the European Parliament and the Council of the European Union. The latter comprises government representatives from EU member states, often drawn from ministries with expertise pertinent to the legislation under consideration. These two bodies must achieve consensus on the legislative text and any potential revisions before jointly enacting it into law. This process may transpire over one or two reading sessions.
Over the past few decades, a pragmatic approach known as “trilogues” has emerged to streamline the legislative process, previously referred to as “co-decision” and now termed the “ordinary legislative procedure.” Trilogues involve private gatherings of delegates representing the Council of the EU, the European Parliament, and the European Commission, with the aim of forging compromises and producing a mutually acceptable text. This agreed-upon text is then subject to formal voting by their respective committees and plenary sessions for final approval.
A defining characteristic of these trilogues is their opacity; public access to these meetings and any related documents outlining proposed compromises is strictly prohibited. Moreover, once an agreement is struck, both the Parliament and the Council consistently demonstrate a high likelihood of approving it into law without further alterations. This underscores the pivotal role trilogues play in the legislative process and highlights their inaccessibility to EU citizens and civil society.
The Case
Mr. De Capitani lodged a legal challenge with the General Court of the European Union, the court of first instance for cases against EU bodies. His grievance stemmed from the Parliament’s refusal to grant him access to a specific portion of a document related to the legislative process, despite consultations with the Council and the Commission. This restricted section, the fourth column of a tabled document, contained information on compromises achieved or proposed during the trilogues. The first three columns, in contrast, presented the initial proposal alongside the positions of the respective institutions.
The Judgment
The General Court, in its ruling, asserted that “contrary to what the Council maintains …, … the trilogue tables constitute an integral part of the legislative process” (paragraph 75, De Capitani).
It emphasized that “78. … it is precisely transparency in the legislative process that contributes to enhancing the legitimacy of the institutions in the eyes of EU citizens and fostering their trust by facilitating the open debate of divergent viewpoints. In reality, it is the absence of information and discourse that is likely to breed suspicion among citizens, not only regarding the lawfulness of individual actions but also the legitimacy of the entire decision-making process….”
The Court refuted the EU institutions’ argument that non-disclosure was warranted because the document pertained to draft legislation in the realm of police cooperation. It firmly ruled that “89… the mere fact … that the documents in question relate to the area of police cooperation cannot in itself suffice to establish the special sensitivity of those documents. To hold otherwise would amount to exempting an entire field of EU law from the transparency requirements applicable to legislative action in that field.”
Furthermore, the Court emphasized that “90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever…”.
Subsequently, the Court addressed the assertion that granting access to these documents could intensify public pressure on EU institution representatives participating in the trilogue process: “98… in a system founded on the principle of democratic legitimacy, co-legislators must be held accountable to the public for their actions. For citizens to be able to exercise their democratic rights, they must be in a position to scrutinize the decision-making process within the institutions participating in the legislative procedures and to have access to all relevant information…. Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since… such agreements are generally subsequently adopted without substantial amendment by the co-legislators.”
Finally, while acknowledging the potential for limited circumstances (“duly justified cases”) where non-disclosure by co-legislators, including Parliament, might be permissible (paragraph 112, De Capitani), the Court rejected the Parliament’s argument that disclosing trilogue documents would undermine their nature as “spaces for reflection.” It unequivocally reminded the Parliament that these meetings constitute indispensable components of the legislative procedure, not “spaces for reflection,” and as such, must adhere to the requisite standards of transparency (paragraph 105, De Capitani).
Conclusion: Towards a More Democratic EU?
In the present day, the European Union grapples with a less-than-favorable reputation regarding transparency, accountability, and democratic processes. Its institutions have faced criticism from various quarters for their perceived lack of transparency and the bureaucratic nature of their procedures. Admittedly, many of these attacks are rooted in populist fear-mongering, aiming to exploit a convenient scapegoat for political expediency, garnering votes and, consequently, power. However, as evidenced by the issues raised, certain criticisms of the EU’s structure, particularly concerning its legislative process that directly impacts the lives of nearly 500 million people, cannot be easily dismissed as baseless political rhetoric.
The De Capitani ruling injects a much-needed dose of transparency into these institutions and, crucially, demonstrates that while some EU institutions might be susceptible to criticisms regarding transparency and adherence to the rule of law, internal mechanisms, notably the EU courts, exist to address such concerns.
It is important to note that this ruling remains subject to potential appeal before the Court of Justice of the EU. Nevertheless, the pivotal question at hand is whether and how the ruling will be enforced. Will the Parliament, the Council (representing the governments of the member states), and the Commission embrace greater openness to democratic scrutiny within their legislative processes?
The answer to this question carries significant weight for the EU’s ability to effectively counter criticisms regarding its adherence to the rule of law and democratic accountability. This is precisely why this case represents a watershed moment for the EU’s rule of law framework. A substantial portion of the EU’s legitimacy as a supranational entity grounded in the rule of law hinges on the actions its institutions choose to take next. Therefore, it behooves us to remain vigilant observers.
*Reblogged with permission from the Opinio Juris blog
Barnard & Peers: chapter 5, chapter 9
Photo credit: Walsall College