The Council of the European Union classified its own reaction to a landmark transparency ruling by the EU's Court of Justice in Luxembourg. The Court had held that citizens have a right to know; the Council declined to disclose how it would meet that requirement.
The Court's ruling
On 17 October 2013 the European Court of Justice held that the "effectiveness of the legislative decision-making process" was not a valid reason to keep member states' positions secret. The case had been brought by Access-Info Europe, a Madrid-based NGO. The Court found that the public generally has a right to know the proposals and arguments put forward by member states, even at an early stage, and that this does not jeopardise the decisions taken in the EU.
A lower instance, the General Court, had put the point plainly in an earlier ruling: "Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently." The documents at issue concerned member states' positions on a revision of the EU's own access rules — meaning citizens had not been meant to know who argued for which amendment. Helen Darbishire, executive director of Access-Info Europe, called the final judgement "a significant victory for transparency and participatory democracy".
A redacted response
When the documents presented to and discussed by the Council were later requested, the central document arrived with every relevant paragraph deleted. The General Secretariat of the Council explained that full disclosure would be "premature" and would "impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this delicate issue".
Those were the very arguments the Court had already rejected, now recycled. In effect, how the ruling on transparency would be implemented was being kept from view using reasoning the Court had deemed irrelevant. The same pattern of secrecy persisting after a judgement is examined in secrecy rules despite a court judgement.
How the ruling moved through the Council
The judgement was formally reported to the Working Party on Information, a preparatory body under the Council of ministers, and placed on the agenda for a December meeting of member states' ambassadors in the committee known by its French acronym COREPER, the second-highest level in the Council. No decisions were taken, and the redacted document gave no indication of the options on the table or how member states reacted to them.
Two options, one impractical
The ruling left the Council with two basic choices: adopt new routines that keep member states' positions in the clear, or strip any reference to national positions from its documents. The latter would be highly impractical, since negotiations in working parties can run for years before ministers take a final decision, and rotating presidencies rely on central records of what was agreed.
Open questions
The situation raised further questions: how long the Council could postpone implementing the decision, what would happen if it tried to circumvent the ruling, and who ultimately holds authority over citizens' democratic rights — the judges in Luxembourg or the member-state governments. A confirmatory application, a formal appeal, was filed seeking the full withheld document; such appeals are handled at the highest level, by the Council of ministers.
According to the Council's press service, the Lithuanian presidency had informed delegations that, from 11 December 2013, requests for access would receive a positive answer, with national positions available as a general rule — in the register by default or on request. To a degree this held true: an open document on negotiations over new data-protection rules could be found in the register with national positions in the clear. Yet transparency was far from the general rule. Access-Info Europe did eventually receive the document it had sought on member states' views of the 2008 access-rules reform, a file that had seen no movement since negotiations broke down in June 2012.
Frequently asked questions
What did the 2013 Court of Justice ruling decide?
It decided that the public generally has a right to see member states' proposals and arguments during EU law-making, and that protecting the "effectiveness" of decision-making was not a sufficient reason to withhold them.
Who brought the case?
Access-Info Europe, a Madrid-based transparency NGO, brought the case. Its executive director, Helen Darbishire, described the outcome as a victory for participatory democracy.
What is COREPER?
COREPER is the Committee of Permanent Representatives — the member states' ambassadors to the EU. It is the second-highest level in the Council and prepares the work of ministers.