EU Court Champions Public Access to Draft Legislation

(CN) – Emphatic that provisional legislative proposals are public records too, the European General Court chided EU Parliament on Thursday for denying full access to meetings of what is known as a “trilogue.”

As explained in a footnote from the court’s press release, a “trilogue is an informal tripartite meeting” involving representatives from the European Parliament, the European Council and the European Commission.

Later in the ruling, the court notes that “the work of the trilogues constitutes a decisive stage in the legislative process.”

When a trilogue meets, its work is generally formalized in a four column table. The first three columns are dedicated, respectively, to a given legislative proposal, the position of parliament and any amendments it proposes, and the position of the council.

The fourth column meanwhile details the provisional compromise text or the preliminary positions of the council presidency.

Brussels-based Emilio De Capitani requested access to such tables in a letter to the EU Parliament three years ago. Asked to narrow his request, De Capitani sought documents from trilogue work related to personal-data protection and another area of law that includes policies on border checks, asylum and immigration.

Seven tables were responsive, the parliament told De Capitani, but it produced only five in full. For the other two, it disclosed the tables with their fourth columns redacted.

Claiming that disclosure would undermine the decision-making process, the parliament noted that the withheld material from the fourth column “contains provisional compromise texts and preliminary positions of the Presidency of Council.”

It also highlighted the sensitivity of negotiations on data protection and police cooperation, noting that one of the partially withheld case involves the management board of the EU law enforcement agency better known as Europol.

A five-member panel of the European General Court sided with De Capitani on Thursday.

“The fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents,” the decision states. “To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.”

Indeed, the scope of these issues make public interest more compelling, the judges added.

“As regards the assertion that the policies on the management and storage of data held by Europol are of a particularly sensitive nature, the Court notes that the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the member states, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever,” they wrote.

The Luxembourg-based court also said that parliament must offer more concrete evidence to support its claim that “discussions surrounding the composition of Europol’s management board are of a very sensitive nature.”

“The court points out that this matter seems rather institutional or organizational in nature,” the opinion states. “Although such a matter may prove delicate, or even difficult, on account of the interests at stake, it cannot, however, be considered to be particularly sensitive in the absence of concrete evidence supporting such an assertion.”

Before issuing today’s ruling, the court reviewed the withheld documents in full. It said they show “that the provisional proposals or agreements entered into the fourth column of those documents concerned abstract and general matters without any mention whatsoever of sensitive information relating, for example, to the fight against terrorism or organized crime or concerning, in any way, police data in respect of persons, operations or concrete projects.”

Finding that parliament infringed EU law, the court annulled the contested decision and awarded costs.

“The court finds that no general presumption of non-disclosure can be upheld in relation to the fourth column of trilogue tables concerning an ongoing legislative procedure,” the opinion states.

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