A year into our investigation, the Council has some answers

Credit: European Union
Portugal assumed presidency of the Council in January 2021

For about a year now, Investigate Europe has been investigating the lack of transparency in EU law-making in the Council of Ministers.

The Council of Ministers is the EU’s main legislative body, made up by the national governments. There is a permanent president of the European Council (Belgian Charles Michel holds that position currently), a rotating presidency of the Council (which the Portuguese government took over from Germany in January 2021) and a general secretariat with 3,000 civil servants. The political power of the institution lies with the national governments, which might explain why the institution is reluctant to answer questions or take responsibility.

While individual civil servants from the Council’s general secretariat as well as national diplomats have provided useful background information, the Council itself, as an institution, has been hard-pressed to accept an interview with our journalists and provide answers to the many points of criticism.

Investigate Europe was not granted an interview with president Michel, nor with any other person who has the authority to speak on behalf of the Council or the European Council. We received written answers to our questions, attributed to the institution as a whole, long after our requests were sent. 

Investigate Europe sent written questions to the Council on November 16, 2020, requesting answers by November 25. The answers only came on December 16, after several follow-up reminders and well after Investigate Europe’s publication deadline (see below for full correspondence).

Trying to talk to the Council is like screaming in to the woods.

The Council’s interactions with Investigate Europe (refusal to meet in person, responding very late, and not engaging in the substantive matter of the discussions) is reminscent of a 2017 episode, when the Dutch delegation to Cosac (the association of European Affairs Committees of the national parliaments) wrote a report criticising the lack of legislative transparency in the Council. The report proposed that all legislative documents in the Council systematically be made public without any delay and that Member States’ positions should be noted in these documents.

The proposals were put in a letter dated December 20, 2017, signed by national parliamentary chambers from 20 EU countries, asking the Council to provide information on how it planned to implement the proposals.

Among other things, the national parliaments called on the Council to ensure that “[…] the minutes of the meetings must provide details on the files discussed, the points of discussion, submissions made by the Member States and any voting results, either formal or interim/informal, even if no progress was made.”

The letter was addressed to several top politicians in the Council – including Donald Tusk (then president of the European Council), Estonia’s prime minister Jüri Ratas (holder of the rotating Council presidency) and Jeroen Dijsselbloem (president of the Eurogroup, the informal group made up by the Euro countries’ finance ministers) — as well as then European Commission president Jean-Claude Juncker.

Due to the refusal of the Council’s responsible officials to answer our questions in time, and based on two sources who were familiar with the Cosac letter, Investigate Europe has previously stated in articles that the Council did not at all reply to this letter. Today, after receiving the late response from the Council, we know this to be incorrect.

The Council did, in fact, reply to Cosac on two occasions. However, in the replies, the Council did not engage in discussions about the proposals from the national parliaments, even though the letter specifically included a request for input from the Council.

On May 16, 2018, European Council president Donald Tusk’s communication advisor Paweł Graś wrote a reply which does not even mention the concrete proposals.

On June 12, 2018, representatives from the Dutch and Danish parliaments sent a follow-up letter to Donald Tusk, writing that the latest Cosac meeting had “concluded that the letters we received did not in substance engage with the four proposals that have been put forward by national parliaments. Delegations also noted that the Eurogroup has not provided any reply so far”. On November 8, 2018, communication advisor Paweł Graś replies again without discussing the recommendations.

Both replies from the Council to Cosac came only after five months. And the Council couldn’t find the time for the Cosac representatives to meet with the president of the European Council in order to discuss the matter of legislative transparency.

Below are the written questions from Investigate Europe and the answers from an unnamed representative from the Council:

Investigate Europe: In 2017 the European Ombudsman conducted an own-initiative inquiry about legislative transparency, resulting in draft recommendations to the Council issued on 9 February 2018. The Council did not formally reply to the Ombudsman during the foreseen three months. Why?

The Council: The Council did not reply within the foreseen three months. The reason for the delay was the exhaustive scope of the draft recommendations, the essential internal consultations and approval procedure by the Working Party on Information, the Permanent Representatives Committee and finally the Council, which could not be finalised within the foreseen three months. The Council asked the Ombudsman for an extension of the deadline on 23 April 2018, which she refused on 7 May 2018.

The General Secretariat of the Council did, however, analyse the Ombudsman’s draft recommendations and its findings, including a recommendation to revise the rules for “limité” documents were considered (please see the answer below).

[Editors note: The GSC did not ask for an extension of the deadline, but only informed the Ombudsman the Council would not answer in time, knowing that the timetable of the parliament due to the coming election did not allow for a later delivery of the report. In the same letter the Council promised to send an answer “by early July”. But that never happened, confirms the Ombudsman’s office.]

IE: In the Ombudsman report, three recommendations were given to the Council: Systematically record the identity of Member States expressing positions in preparatory bodies; develop clear and publicly available criteria for the application of the “limité” status, and systematically review the “limité” status of documents at an early legislative stage.

In your view, to what extent has the Council followed these recommendations? If it hasn’t followed the Ombudsman’s recommendations, why not?

The Council: The Council and Coreper always produce records or minutes of their meetings. The working methods contained in the Council Rules of Procedure and internal instructions do not oblige Working Parties to produce outcomes of proceedings. Working Parties do however have a practice of directly integrating the results of discussions in revised compromise texts. In those cases no Outcome of Proceedings are produced. Occasionally, some Working Parties produce Outcomes of Proceeding, that include delegations’ positions where appropriate.

As regards the criteria for the use of limité marking, these are derived from the provisions of Annex II of the publicly available Council Rules of Procedure, which are restrictive in nature and amongst other things refer to the exceptions provided for in Regulation 1049/2001.

In particular, Article 11 of Annex II of the Council Rules of Procedure provides for several categories of documents that are made directly accessible to the public. Following pilot initiatives under the Finnish and the Croatian Presidencies, Coreper endorsed in July 2020 an approach on “strengthening legislative transparency” (please see public document 9493/20) under which further categories of documents in legislative files are made public proactively. This recent development was welcomed by the European Ombudsman as a very positive step.

The General Secretariat of the Council is currently reviewing its Document Management system, including the use and review of limité markings and making stakeholders’ comments and observations publicly available. Current guidelines for handling of documents internal to the Council are set in document 7695/18 (public).

IE: The first recommendation from the Ombudsman is that the Council should systematically record the identities of member states expressing positions in preparatory bodies. This recommendation is in line with the judgment in the European Court of Justice on the Access Info case from 2011. Do you believe that the Council is following this judgment? If so, how?

Council: The Council fully respects the Court ruling as regards the requests made under Regulation 1049/2001(which was the subject of the quoted Court case), for access to documents containing positions of delegations in preparatory bodies, by not refusing access on the basis of such content. It should be noted that the quoted ECJ judgment does not require the Council to systematically record Member States’ positions in the outcome documents of Council preparatory bodies.

[Editor’s note: It is true that the ECJ judgment does not explicitly require the Council to systematically record the positions of Member States, as the court did not explicitly address that question. However, the general point that the ECJ made is not compatible with the practice of the Council, according to law professor and former ECJ advocate general Miguel Poiares Maduro, who spoke with Investigate Europe.

“The Court is very clear that the general principle is transparency and that includes the possibility to access documents revealing the proposals and positions of Member States at a preparatory level. The Court is also very clear that such transparency, including knowing the positions of national governments, is particularly important in the legislative process,” said Maduro.

“It is for this reason that the Court also imposes a very high threshold for the Council to meet in order to prevent access to information on the legislative process. It seems to me that it is clear that the Council will, at the very least, need to meet such threshold if it would want to deny access to the positions and proposals of Member States. In order to do so and in order for citizens to be able to challenge that, it is a logical conclusion that the Council needs to record such proposals and positions. If it does not do it, it is, in fact, ex-ante, depriving the Regulation and the case law of the Court of its useful effect,” he says.]

IE: Do you expect more cases being brought to the ECJ on this specific issue?

Council: No.

IE: Many EU legal experts that we have talked to say that the current practice in the Council does not follow the EU treaty’s Article 10 (“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen”) nor the EU regulation 1049 and the case law of the ECJ. What is your position on this? Please elaborate.

The Council: The Council’s public register listed on 31 December 2019, 420 763 original language documents (3 109 922 documents including all language versions) of which 70 % are public and can be downloaded. Every year over 20,000 original language documents are added. This tool is increasingly comprehensive and includes research features that are constantly being improved.

The Council and the Presidencies furthermore strive to take a pro-active approach by informing citizens on every important step in the legislative process for example by making available:

– progress reports on legislative and other files, which are very often issued at the end of each Presidency (every six months),

– negotiating mandates,

– outcomes of trilogues etc.

The Council is committed to respecting EU Treaties and EU legislation including Regulation 1049/2001. This is shown by the very limited number of Court cases to which the Council has been subject.

[Editor’s note: Former ECJ advocate general Miguel Poiares Maduro says that it is unlikely that all limité files would fall under a category in which the Council would be able to restrict transparency.

“The case law is clear that the principle is access and publicity and that can only be denied if a very demanding burden is met by the Council. It seems to me unlikely that such a threshold will be met by 30% of the cases as the statistics given to you by the Council indicate. But this can only be accessed on a case-by-case basis. The case law requires that case by case assessment of the justification put forward by the Council,” he says.]

IE: Looking at the annual reports of the council’s implementation of regulation 1049/2001 (the years 2017, 2018, 2019), around 40-60 per cent of all the legislative documents were not made directly public by the Council (marked as “limité”). After access-to-information requests, more than half of these limité documents were made public. It seems that the Council is being overly restrictive when it decides which documents it should make immediately public or not, and that this habit is not changing over time. Why? How do you explain that this is still the case?

Council: Marking documents as “limité” is restricted to certain uses. Sometimes the use of the marking “limité” is justified for a certain period of time only and the documents are made public as soon as the marking is no longer justified. Certain justifications under Art.4 of Regulation 1049/2001 cease to apply after a certain lapse of time or event. Documents initially marked “limité” are often subsequently released in view of the progress made in the decision-making process, which no longer justifies withholding disclosure.

The ongoing review of the use of the “limité” marking will also look into the question of enabling an easier, quicker and more pro-active release of “limité” marked documents.

IE: Often, access to legislative documents are denied on the basis of “disclosure of the document would seriously undermine the institution’s decision-making process” (article 4.3 in the 1049 regulation). But the whole point that the Ombudsman and the 20 national parliaments (the Cosac letter) are making is that citizens need to know the political options before the final deal is done, in order to participate. So, in your view, in what way can citizens “participate in the democratic life of the EU” [article 10 of the EU treaty] without this “undermining the institution’s decision-making process”? Please elaborate.

The Council: The institution’s decision-making process is protected by Regulation 1049/2001 (please see its Article 4(3) that aims at protecting the decision-making process from external pressure). If positions and options on sensitive issues would become public prematurely, delegations may come under additional pressure.

Regulation 1049/2001 expressly states that institutions should grant wide access to documents, especially legislative documents, while preserving the effectiveness of the institutions’ decision-making process. Case-law also confirms that it remains open to the institutions to refuse, on account of the protection of their decision-making process, to grant access to certain legislative documents in duly justified cases (please see De Capitani judgement, paragraph 112). Therefore an interpretation according to which institutions have an obligation to automatically disclose all documents on an ongoing legislative decision-making process is contrary to the Court’s interpretation of Regulation 1049/2001.

Citizens and interested parties have the possibility to participate in the democratic life of the EU by reacting at a very early stage of the legislative procedure, for instance when the European Commission launches public consultations, hearings, impact assessments etc. in other words even before a piece of draft legislation is submitted to the Council and the European Parliament.

In conformity with the requirements of the Treaties, discussions in the Council on legislative files are held in public sessions of the Council. Furthermore, the Council informs pro-actively citizens on every important step in the legislative process e.g. by making public progress reports and negotiating mandates, which clearly precede a final legislative decision.

This enables citizens and national parliaments to hold their governments accountable and intervene directly through national channels and/or address their MEP.

One should also be mindful that an essential aspect of democracy in the EU is the fact that national governments of the Member States have obligations towards their national Parliaments. In application of the different Constitutional requirements, national governments are accountable towards their national parliaments, and a large part of the democratic control you mention occurs through that mechanism.

IE: Let us just take one concrete example of the problem that we journalists encounter when it comes to lack of transparency in the council. For almost 8 years, the legislative proposal about women on company boards has been stuck in the Council. When we request information about which member states constitute the blocking minority, we don’t get this information officially, only through leaks. Is it reasonable that such basic information is kept secret? And for how long can the Council sit on a file and still deny access on the basis of the file being ongoing? Is there no time limit?

The Council: There is no time limit for the Council to discuss a legislative proposal. If the Council does not consider a file ready for a debate in Council, the Council has not necessarily had notice of member states’ positions. Any member state or the Commission can however request an item to be examined by the Council. Adding an item on the Council agenda requires a simple majority and in case of legislative files, debates are public.

Marking and unmarking documents with “limité” is subject to certain restrictions but there is no time-limit on making such a decision. Current guidelines for handling of documents internal to the Council are set in document 7695/18 (public).

IE: Among other things, the report from Cosac states: “If our citizens don’t have access to what is going on in their government, how can they possibly cast an informed vote?” Is it your assessment in the Council that European citizens today have enough information about their government’s actions in the Council to cast an informed vote?

The Council: The Council strives to inform citizens on every important step of the legislative process, including by granting access to documents that include positions expressed by member states, unless their divulg[ing] would seriously undermine the institution’s decision-making process. The criteria for determining whether such documents should be made public are set in the provisions of Annex II of the Council Rules of Procedure.

Providing information to citizens on national government’s internal discussions and positions is also the responsibility of national governments themselves, as they are accountable to their national parliaments and citizens.