On 22 March 2018 the General Court of the European Union published a press release titled “The European Parliament must in principle grant access, on specific request, to documents relating to ongoing trilogues“.
It regards the following request:
By letter of 15 April 2015, the applicant, Mr Emilio De Capitani, submitted to the European Parliament, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), an application for access to documents drawn up by, or made available to, the Parliament and containing the following information: ‘justifications for seeking early agreements on the current co-decision procedures put forward in all committees; multi-column tables (describing the Commission proposal, the Parliamentary Committee orientation, the Council internal bodies suggested amendments and, if existing, suggested draft compromises) submitted to trilogues for ongoing co-decision procedures’ (‘the initial application’).
The findings of the Court were:
Findings of the Court
53 In the contested decision, the Parliament refused to grant access to the fourth column of the documents at issue on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, claiming that disclosure of that column would actually, specifically and seriously undermine the decision-making process in question.
54 The applicant challenges the correctness of the contested decision on the ground that, in essence, the reasons underlying that decision are general and hypothetical, and are not such as to establish that there is a likelihood that the decision-making processes in question would be seriously undermined.
55 The Council and the Commission, on the other hand, ask the Court to find that there is a general presumption of non-disclosure according to which the institution concerned can refuse to grant access to the fourth column of ongoing trilogue tables. The Parliament, which did not rely on there being such a presumption in the contested decision, nevertheless endorsed that position.
56 In those circumstances, the Court considers it necessary to set out, as a preliminary matter, the case-law on the interpretation of Regulation No 1049/2001, followed by the principle characteristics of trilogues, before ascertaining, next, whether or not there is a general presumption that the institution concerned may refuse to grant access to the fourth column of ongoing trilogue tables. Lastly, in the event that the Court finds that there is no such presumption, it will consider whether the full disclosure of the documents at issue would seriously undermine the decision-making process in question within the meaning of the first paragraph of Article 4(3) of Regulation No 1049/2001.
In the press release the Court summarizes the judgment as follows:
Next, as regards access to the fourth column of trilogue tables concerning an ongoing legislative procedure and emphasising that the principles of publicity and transparency are inherent to the EU legislative process, the General Court finds that no general presumption of non-disclosure can be upheld on the basis of the nature of a legislative procedure.
The General Court notes in that regard that recourse is frequently had to trilogues and that the legislature itself recognises them as an integral part of the legislative procedure, being used in 70 to 80% of legislative procedures. In addition, trilogue meetings are held in camera and the agreements reached in those meetings, usually reflected in the fourth column of trilogue tables, are subsequently adopted — mostly without substantial amendment — by the co-legislators. Trilogue documents are subject to the same rules as set out above, since it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. Access to such documents must therefore be possible on specific request lodged pursuant to the regulation regarding public access to European Parliament, Council and Commission documents, 3 unless the institution concerned proves that it is reasonably foreseeable and not purely hypothetical that full access to the documents at issue is likely to undermine, specifically and actually, its decision-making process.
The General Court notes in that regard that there can be no possibility of the decision-making process being seriously undermined unless a risk of external pressure materialises through the expression of public opinion. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information. The General Court notes that, in the present case, the legislative proposal at issue concerned the rights of citizens and that the fourth column contained text relating to classic legislative work. The work of the trilogues constitutes a decisive stage in the legislative process, which entails exemplary adherence to the public’s right to access that work and the strict application of the exceptions provided for in the regulation regarding public access to European Parliament, Council and Commission documents.
The General Court therefore annuls the decision by which the Parliament rejected the request for access to the documents on the basis that none of the grounds relied on, considered separately or as a whole, demonstrates that full access to the documents at issue was likely to undermine, under the conditions set out above, the decision-making process at issue.
Addition of 11 April 2018
Tony Bunyan of Statewatch wrote a briefing (pdf) on this subject, “Another step towards ending EU law-making through secret trilogue meetings“.