EU governments must give citizens and journalists access to all related documents during negotiations on upcoming EU laws. This must include individual government’s  opinion on the respective draft law. In a decision made on Wednesday, the judges of the General Court at the European Court of Justice, clearly rejected the previous secrecy of negotiations by Europe’s most powerful legislator.

“In order for citizens to exercise their democratic rights, they must be able to follow in detail the decision-making process in the bodies involved in the legislative procedures and have access to all relevant information,” the judges noted.

The basis for this was a lawsuit filed by Emilio De Capitani, a lawyer and former head of unit in the European Parliament’s Legal Affairs Committee, who has long advocated for greater transparency in the EU institutions. De Capitani had noticed that the legislative chamber of the EU states – the Council – systematically keeps numerous so-called “technical working documents” secret and that these, contrary to the legal obligation, are often not even entered in the official register of documents. It is only when requests for access to documents are made that officials of the 3,000-strong Council Secretariat give the relevant document number, preceded by the letters WK for “working”. At the same time, however, in most cases they deny access to the actual documents.

It is precisely these documents that often reveal which government takes which stance on a pending bill – information that the responsible officials and ministers like to keep confidential in order to avoid having to justify themselves. However, this secrecy makes it possible for laws to be blocked or watered down in the Council by a blocking minority, without any citizen ever knowing which minister from which country is responsible.

Investigate Europe has already succeeded several times in exposing the lobbying influence on individual governments by publishing relevant internal documents. In 2019, for example, the socialist government in Portugal had to give up its blockade against a law on tax transparency for corporations after IE made its opposition public. As a result, there was a sufficient majority in the Council to finally pass the law allowing it to enter into force after a six-year delay.

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De Capitani had previously requested access to the WK documents for the negotiations on this very law, but he was denied. To justify this decision, officials invoked the transparency regulation, which allows documents to be kept secret if their publication would “seriously undermine the decision-making process of the institution”. De Capitani did not accept this and filed a complaint in Luxembourg. He was joined in the suit by the governments of Belgium, the Netherlands, Sweden and Finland, countries that traditionally have a high level of government transparency.

Three years on the judges have now ruled in De Capitani’s favour on almost all points. In a ruling that reads like a lesson in democracy for those responsible, it states that “it should be recalled that in a system based on the principle of democratic legitimacy, the co-legislators [of the EU] must answer for their actions to the public.” That is why the judges reject the sweeping justification of the threat of undermining the negotiations just as sweepingly. Rather, the Council had to “balance the particular interest to be protected by the non-disclosure of the document in question against the public interest in making the document available, which derives from greater openness.”

Finally, this “allows citizens to participate more closely in the decision-making process and ensures greater legitimacy of the administration.” The contested decision “must therefore be annulled”, the judges decided.

Whether this will actually change the practice of secrecy in the Council, however, is by no means a foregone conclusion. In two previous rulings, the Court had made very similar demands, but the majority of member states refuse to follow the rulings. When asked by IE, the Council also did not indicate any willingness to change its secrecy practices.  A spokesperson explained that the Council had “taken careful note of the judgment in the De Capitani case” and would “carefully consider the implications for the future work of the Council”.

Transparency campaigner De Capitani expressed disappointment that the Council has not been obliged by the judges to automatically “pro-actively” publish all documents relating to the negotiations in its 150 committees. Without this obligation, “the ruling is contradictory”, De Capitani told IE. On the one hand, the court requires openness. At the same time, however, the judges left it at that, referring citizens and journalists to the usual process of requesting access to documents. However, one usually has to wait “up to two months for the result, when the hearings have often already been concluded and the decision taken. This is much too late for reporting and public discourse, as befits a democracy,” De Capitani said.

This assessment is shared by the EU experts at Transparency International (TI). The papers on the legislative negotiations must be easily and quickly accessible, explains Shari Hinds, Policy Officer for EU Political Integrity at TI. Her organisation has been demanding for years that the Council should comply with this democratic standard.

De Capitani is determined not to let the matter rest. In order to give the ruling practical value, he announced that from now on he would “submit a request every week for access to all documents of the ongoing negotiations” and on this basis “build a public database on legislation in the EU”.

IE is also currently putting the matter to the test and submitted a corresponding request for access to files on ongoing negotiations. The subject is the planned EU law to safeguard media freedom.