Top European Court Rules in Favor of Transparency

17 October 2013

The European Court of Justice (ECJ) Oct. 17 ruled that the Council of the European Union can’t keep secret the identities of member states making proposals in the context of negotiations on EU legislation.

“This is a significant victory for transparency and participatory democracy,” said Helen Darbishire, Executive Director of Access-Info Europe, the winning plaintiff.

The final ruling by the highest court of the EU repudiates the Council of the EU policy of releasing legislative drafting documents with the names of member states tabling amendments blacked out.

The ECJ decision rejects three arguments made on appeal and supports the reasoning of the decision by the General Court in March 2011. (See previous report.)

The General Court  disagreed with Council arguments that full disclosure of that names would cause serious harm to the decision-making process. “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,” the General Court court said in a detailed ruling.

The ECJ concluded that the Council’s rebuttal arguments “are ineffective.”

Darbishire said, “If the Council applies this ruling to all similar documents, this would finally provide a similar level of transparency at the EU level as one would normally find in national legislative processes.”

Onno Brouwer, the lawyer representing Access-Info Europe, said in a press release: “A normative choice has been made in the EU Treaty for more transparency and legitimacy of the EU decision making. Making the EU legislative process more transparent is crucial to enhance the acceptance by the EU citizens of EU legislation that binds them, and to allow for accountability of Member State positions taken in that context. One often forgets that Member States are key actors in the EU legislative process.”

The Council’s appeal was joined by the Czech Republic, France, Greece, Spain and the United Kingdom. The European Parliament joined the case in support of Access-Info Europe.

The Council was orderd to pay the costs incurred by Access-Info Europe

Court Rejects Appeal

The high court court’s opinion solidly supports the  General Court.

In rejecting the Council’s appeal to overturn the the General Court decision, the high court said in part:

39 Moreover, to the extent that the Council’s criticism could be seen as an attempt to put in question the General Court’s assessment of those arguments, it must be stated that the Council does not, in support of this ground of appeal, put forward anything to refute the General Court’s conclusion that the Council’s arguments at first instance were not sufficiently substantiated to establish that disclosure of the information concerning the identity of the Member States in question would have given rise to a genuine risk of seriously undermining the Council’s decision-making process.

40 Lastly, as regards the argument of the Czech Republic and the Kingdom of Spain that disclosure of the identity of the delegations was not necessary to attain the objective of Regulation No 1049/2001, suffice it to state that, as was pointed out in paragraph 28 above, the aim of Regulation No 1049/2001, as stated in Article 1 thereof, is to confer on the public as wide a right of access as possible to documents of the institutions. It is in the light of that principle that the General Court rightly stated in paragraph 69 of the judgment under appeal that Regulation No 1049/2001 aims to ensure public access to the entire content of Council documents, including, in this case, the identity of those who put forward the proposals, and full access to those documents may be limited only on the basis of the exceptions to that right laid down in that regulation, which must, for their part, be based on a genuine risk that the interest which they protect might be undermined. As the General Court ruled out the existence of such a risk in the circumstances of the case, partial access to the requested document cannot be regarded as sufficient for the purposes of attaining the objective pursued by Regulation No 1049/2001.

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