Päivi Leino (University of Helsinki)

A key promise made during the adoption of the Lisbon Treaty was increased transparency in EU law-making. However, this has not yet been realized. Access to documents related to EU legislative processes, especially “trilogues” (informal meetings between the European Parliament, the Council, and the Commission), has become a significant concern. This issue is highlighted in the new Interinstitutional Agreement (IIA) on Better Regulation, the European Ombudsman’s public consultation on trilogue transparency, and a legal appeal by a former LIBE Committee Secretariat head against the European Parliament’s refusal to grant full access to legislative documents.

These developments raise critical questions about transparency in democratic law-making. The current lack of a central platform for EU legislative documents and schedules makes it challenging to track legislative processes, often turning it into a game of detective work and reliance on leaks. This significantly hinders the exercise of democratic rights.

The legal framework of law-making in the EU

The Lisbon Treaty clearly mandates the Council and European Parliament to operate openly, publishing documents related to legislative procedures. Regulation No 1049/2001 further emphasizes this by stating that legislative documents should be directly accessible unless specific exceptions apply. This implies automatic disclosure, not upon request. The landmark Turco ruling by the Court of Justice underscores this by stating that greater transparency enables citizen participation, enhances administrative legitimacy, and ensures accountability. It emphasizes that open access to information underlying legislative actions is crucial for citizens to exercise their democratic rights effectively.

However, EU institutions, particularly the Council, have struggled to uphold this standard, often resorting to justifications that dilute the principle of transparency. The Council’s stance, limiting transparency to documents used in formal ministerial meetings, essentially renders the principle ineffective. This interpretation restricts access to documents generated during the crucial early stages when significant decisions are made at lower levels by civil servants and ambassadors. Furthermore, the Council’s argument that the early stages of the legislative process, particularly the first reading, require less transparency is contradicted by the fact that most legislative files are finalized during this stage.

While the ‘space to think’ exception in Article 4(3) of Regulation No 1049/2001 allows for non-disclosure if a decision is pending, the Parliament argues that this is outdated in the context of legislative matters and proposes either excluding legislative documents from this exception or completely removing Article 4(3).

The Court, in the Access Info Europe case, ruled against the Council’s attempt to withhold a document containing Member State positions, emphasizing that transparency can only be restricted if there’s a genuine risk of undermining the legislative process. The Court maintained that proposals and amendments from Member States are part of the normal legislative process, not sensitive information requiring secrecy.

Despite the Court’s consistent support for transparency in legislative documents, its rulings hold limited influence if institutions can choose to apply them selectively.

Access to trilogue documents

Trilogues have become the central platform for legislative negotiations between EU institutions, exemplifying informal decision-making often praised for its efficiency. These informal meetings, not explicitly mentioned in the Treaties, have become the primary venue for achieving interinstitutional agreement, particularly during first reading deals. They provide a highly effective means of reconciling institutional positions, enabling quick closure of a majority of legislative files early in the process.

However, this efficiency comes at the cost of democratic scrutiny. During the trilogue phase, decision-making is concentrated in the hands of a select few representatives from each institution, largely hidden from public view. While a joint declaration suggests announcing trilogues held within the Parliament and the Council when feasible, it makes no provision for public access to information during the crucial negotiation phase. This lack of transparency has rightfully raised concerns among civil society representatives who see it as prioritizing efficiency over formal, transparent law-making.

This opaqueness also affects access to information within the institutions themselves. The informal nature of trilogues empowers those privy to information at the expense of those who are not. Within the Parliament, first reading agreements grant significant power to rapporteurs, who control information dissemination. In the Council, deals are often finalized before reaching ministers, as Coreper settles the Council’s position based on trilogue outcomes. This lack of transparency makes it difficult, particularly for national parliaments, to effectively scrutinize legislative proposals and amendments, especially given the rapid pace at which they are agreed upon.

Ombudsman inquiry and the new IIA

The European Ombudsman’s inquiry into trilogue transparency is therefore very timely. Despite pushback from the Commission and the Council, who question the Ombudsman’s mandate in this matter and argue that trilogues are internal preparatory steps, the need for increased transparency in the EU legislative process remains crucial, especially given its ongoing struggle with democratic legitimacy.

The new IIA offers a glimmer of hope. It includes a strengthened commitment from the three institutions to ensure transparency in legislative procedures, including trilateral negotiations. The agreement promises improved public communication throughout the legislative process and a commitment to explore platforms and tools that enhance transparency, including a joint database for tracking the progress of legislative files. However, these promises hold little value unless accompanied by a genuine change in institutional attitudes.

These recent developments highlight that knowledge is power. Those who possess information are often reluctant to share it. This necessitates a deeper political debate about how to safeguard the exercise of democratic rights within the EU. This includes scrutinizing how technocrats within these institutions impact transparency by deciding which documents are publicly available and how requests for access are handled. The overarching question is whether efficiency should consistently supersede other objectives, such as ensuring a transparent and democratic decision-making process.

Photo credit: pressgazette.co.uk

[1] Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf, Article 28-28a.

[2] http://www.ombudsman.europa.eu/en/press/release.faces/en/61593/html.bookmark .

[3] Case T-540/15, De Capitani v European Parliament.

[4] Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Maurizio Turco v the Council, paras 45-46

[5] See also Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014). Available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf .

[6] See the Council reply to Confirmatory application No 05/c/01/12 by Ms Anneli Jäätteenmäki, MEP.

[7] For the Council’s reply to ClientEarth, see http://register.consilium.europa.eu/pdf/en/10/st12/st12068.en10.pdf .

[8] The figures can be found on the Parliament’s website http://www.europarl.europa.eu/code/about/statistics_en.htm .

[9] The ‘Hautala / Sargentini report’, Public access to documents 2009-2010 European Parliament resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009-2010 (2010/2294(INI)) P7_TA(2011)0378.

[10] Public access to European Parliament, Council and Commission documents (recast), P6_TA(2009)0114 A6-0077/2009 .

[11] C-280/11 P Council v Access Info Europe.

[12] Even if the General Court recently made a true bummer relating to impact assessments, which play a key role in the early stages of the legislative procedure; see T-424/14 ClientEarth v. the Commission.

[13] See Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014); available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf

[14] ‘Shifting EU Institutional Reform into High Gear: Report of the CEPS High-level Group’, pp. 1-24, Report available at http://www.ceps.eu/book/shifting-eu-institutional-reform-high-gear-report-ceps-high-level-group .

[15] See in greater detail, Päivi Leino “The Politics of Efficient Compromise in the Adoption of EU Legal Acts” in Marise Cremona (Ed.), EU Legal Acts: Challenges and Transformations, Collected Courses of the Academy of European Law (Oxford University Press, forthcoming 2016.)

[16] Joint declaration on practical arrangements for the Codecision procedure. OJ 2007 C 145/02 .

[17] See Bressanelli, Héritier, Koop and Reh, ‘The Informal Politics of Codecision: Introducing a New Data Set on Early Agreements in the European Union’, EUI Working Papers RSCAS 2014/64.

[18] See e.g. Bunyan, ‘European Parliament: Abolish 1st [and 2nd] reading secret deals – bring back democracy ‘warts and all’’, Statewatch analysis available at: http://www.statewatch.org/analyses/no-84-ep-first-reading-deals.pdf

[19] Discussed in Hix and Hoyland, ‘Empowerment of the European Parliament’, 16 Annu. Rev. Polit.Sci (2013) 171, at 184. For rules concerning the Parliament’s representation and position-building, see European Parliament Rules of Procedure, Rule 70.

[20] House of Lords Report with Evidence. Codecision and national parliamentary scrutiny, HL Paper 125 (2009) 15-16.

[21] The opinions are available on the Ombudsman website, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61592/html.bookmark .

[22] Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final.

[23] Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf .