After retirement, De Capitani could have spent his days in his olive grove in Tuscany. Instead, in 2015, he decided to start a trial against his former “home” — the European Parliament — alleging that it hid important documents about legislative negotiations with governments. In the years since, ‘Mister Transparency’s’ battle has continued in Brussels. Excerpts from an interview:

Why did you decide to sue “your” institution, the European Parliament?

It seemed to me a moral duty to point out the smears of the system, even as a simple citizen. The problem is that the European Parliament — which had supported the great novelty of the Lisbon Treaty, to make the legislative debates in the European institutions public — voted, in 2011, for a reform of the European Regulation on access to documents, with the removal of the confidentiality clause. But then, the same Parliament has aligned itself with the practice of confidential negotiations, as if the meeting between institutions can be considered [in the same vein] as an informal meeting at the bar. We are discussing new laws, which will have an impact on all of us.

Did the Court of Justice agree with you?

The Court recognised that even if presented as ‘informal‘, the trialogues are now an integral part of the legislative process and therefore the right of access by citizens (as well as, of course, by national parliaments) must be recognised. Unfortunately, two-and-a-half years after the ruling, the calendars of trialogues and the related documents are still not published.

Why is the Parliament behaving like the Council?
 There is a 2010 decision of the Bureau — an internal body where the vice-presidents of the Assembly sit — which prohibits the publication of the documents of the trilogues (negotiation meetings between the three Institutions: Commission, Council and Parliament). That is why I decided to sue the Europarliament. The plenary, on the other hand, has on several occasions reiterated that all documents must be public. I say this with regret: the European Parliament has behaved like the Council since the Lisbon Treaty’s arrival in 2009.

What is wrong with the way in which the Council works?

The vast majority of the Council decisions are the result of daily negotiations at the level of 150 working groups in which ministerial officials from the 27 countries cooperate, culminating in the weekly meetings of ambassadors, called “Coreper”. It is therefore not surprising that after so much work, Ministers simply endorse these decisions as A-points (i.e. without debate) when they are submitted to the Council.

The novelty of the Lisbon Treaty was precisely that the Council must now act as a co-legislator and not just as a “Super-Government” even though all its members are members of the national executives and therefore imbued with the “executive privilege” culture that allows them to hide part of their decisions. A change of culture is not a simple matter, I understand, but the time has come to make a move.

Permanent representations in Brussels told us that progress has been made: some debates are now being streamed online, many documents are published in the Council’s website and the European Parliament follows all the steps of negotiation. They point out that you have to see the glass half full.

This ‘more than a glass-half-full’ is a description from Disneyland. Reality is quite different. There are some ministerial debates being streamed, but these cover less than 10 per cent of the legislative dossiers. Ministers only read pre-pasteurized pieces, which, in comparison, make Politburo meetings look like the Crazy Horse show. As for the documents on the Council’s website, they will appear only months — if not years — later on the Council’s register, in violation of art. 11 of the 2001 Regulation.

What happens in the 150 Council working groups?

The reports of those meetings are not public and in most cases, we do not even know which delegations have taken the floor. It is therefore not possible to trace the positions of the various countries and not even possible to understand whether a majority is being formed or whether, on the contrary, there is what is called a “blocking minority” of a few countries. 

The information that arrives in our national parliaments is therefore distorted, untimely and breathtaking. The obligation of confidentiality in the treatment of “LIMITE” documents — as they are called — also applies to National Parliaments. This leads to the paradox that a principle of legislative transparency provided for in the Treaties and in the Charter of Fundamental Rights, is emptied of its scope by another principle that I would define as more silent than legal. To complete the picture, there is also the problem of language: almost all documents are in English, and only after a few weeks, sometimes in French. Since these documents are often hundreds of pages long, one can understand that national parliamentarians prefer to pretend not to see because they will be outdated after a few weeks.

Diplomats say that confidentiality in a negotiation is crucial and if the meetings are made public, the negotiations would ‘move to the bar’ and therefore the result would be the same. Is that so?

That is the diplomat’s perfect reasoning. The Council works with the diplomatic method and therefore, in the search for consensus, which means the smallest denominator, the Europarliament, spends time confronting and voting, between majority and opposition. So the legislative process is linked to voting, not to diplomatic consensus.

The Council’s current way of working — in the search for consensus and unanimity — not only lacks sense, but is also against the letter and spirit of the Lisbon Treaty, which has made the Council a fully-fledged co-legislator, and no longer an international organisation in which the Consensus method should be preferred. Legislation requires transparency, clarity of voting and predictability of results. These things in the diplomatic method of “here I say it and here I deny it” do not work. They have to change the way they function.

Is transparency also power?

Yes, take Michel Barnier’s example, with the Brexit negotiations. It was transparency on every meeting, in every intermediate step, that created a united front from the European countries, compared to London.

In your opinion, is it time to amend the Lisbon Treaty?

I don’t think so. This treaty has enormous margins for innovation, and the fact that we have invented the trialogues — and that these are now the rules — shows that we can build, if there is good faith, very efficient mechanisms. The important thing is that there is also transparency so that the European Union also wins the hearts and minds of its citizens.