Secrecy Rules in EU Despite European Court Judgment

28 March 2014

By Staffan Dahllöf

This article first appeared March 26 in Wobbing EU.

EU ministers have postponed implementing a judgement on transparency and rejected disclosing alternatives discussed – and leaked. Six member states vote against secrecy. The European Ombudsman has been asked to step in.

More than five months have gone since the European Court of Justice in October last year decided that the public has a right to see what positions Member States hold in the Council working parties before a final decision is taken by ministers. Effectiveness of the legislative decision-making procedure cannot be used as an argument to blank out the identities of the member states’ positions, the Court said. This judgement was hailed as a victory for openness by Access Europe, the Madrid-based NGO that brought the case to trial.

Won’t Say

So now we are all able to see how Bulgaria argues on asylum seekers protection, or how France objects to new environmental rules?

Nope. At least not yet.

The Council of the EU (formed by governmental representatives) has so far not only postponed the implementation of the judgement. The Council still refuses to disclose what alternative measures have been put on the agenda, shown in a document requested by this

”Free From Pressure” in February was told by the General Secretariat of the Council that a disclosure of a document discussed by EU-ambassadors in Brussels after the judgement would be ”premature” and would ”impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this delicate issue.”

A confirmatory application, which is EU-lingo for an appeal, did not help. The Council majority stuck to the argument that options on how to implement the judgement should ”be allowed to take place free from external pressures and influence.” Openness for the sake of citizens’ participation is a matter best discussed behind closed doors, we are told. (For the arguments in full see Documents at

Six in Favour

The Council was not unanimous in its rejection.

Six member states voted against, indicating that full access to the document should be granted; Denmark. Estonia, Netherlands, Slovenia, Finland and Sweden.

But what’s the fuzz really about? Why is this a sensitive issue?

The ruling by the Court gives the Council two basic options, this website assumed in a posting in February: The Council can either adopt new routines where member states’ positions are kept in the clear, or delete any references to national positions in the documents. This has shown to be a correct understanding.

Show or Cease to record

Since our last posting a full version of the requested document was published by civil right watchdog Statewatch (see Documents in EU Wobbing site).

A central paragraph (which we are not supposed to see) reads: ”Coreper (the EU-ambassadors) is therefore invited to determine whether the practice of the Council should now be either: a) to give access as a matter of course to references to the identities of individual Member State when giving access to documents recording the positions taken in on-going legislative procedures; or b) In view of the impact on Member States’ negotiating flexibility, to cease recording the identities of individual Member States in such documents.”

Perhaps needless to say, but the second alternative – not to put on record who has said what – would be highly impractical for deliberations and negotiations that can last for years. The Council thus does not seem to have any real choice but to adapt to the Court’s ruling, unless the ministers would chose to openly obstruct the EU-judges in Luxembourg.

Two Questions for O’Reilly

After the final rejection, two complaints have been filed to the European Ombudsman:

 –  A questioning of the Council’s refusal of access bearing in mind that the core of the issue is a court judgement in favour of transparency. The Ombudsman is asked if the negative response to the request can be justified.

–  A request for the Ombudsman’s opinion on how long the Council can delay the implementation of the judgement of the Court. Could this be seen as ”contempt to court”?

The Ombudsman does not have the power to change decisions taken by EU institutions but his, now her, opinions has in many cases had impact, not the least in transparency matters.

The present Ombudsman Emily O’Reilly took up office last year after having served as national ombudsman and national information commissioner in Ireland for ten years.

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