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(CN) — A push for more transparency in EU lawmaking got fresh momentum on Wednesday, when Europe’s second-highest court struck down the Council of the European Union’s attempt to keep key asylum-reform papers secret.
The EU’s General Court sided with Emilio De Capitani, a longtime transparency advocateand former European Parliament official, who wanted access to two internal “WK” working documents linked to the bloc’s Migration and Asylum Pact.
The judges found the council’s explanation for keeping them secret too vague and speculative, saying there was no real evidence that releasing them would cause any harm. In the end, the judges threw out the council’s decision, calling it a clear breach of EU transparency rules.
The council brings together ministers from all 27 EU countries to agree on laws and align national policies. Its lineup changes depending on the topic, with finance ministers meeting for economic issues and environment ministers for green policies.
The drafts, shared in the council’s asylum and justice working groups, captured each country’s written comments — the clashes, trade-offs and tentative compromises — on two major proposals: One updating Eurodac, the fingerprint database used to track asylum-seekers, and another setting up a new system for managing asylum and migration.
The council’s secretariat rejected De Capitani’s request in July 2023, claiming that publication would “seriously undermine its decisionmaking process” by exposing negotiation tactics and weakening its hand in talks with Parliament. De Capitani countered that argument — and the judges agreed — saying the public has a right to know how EU laws take shape, especially on issues as politically charged as migration.
The court also dismissed the idea that early technical talks should be automatically shielded from view. It said such preliminary comments are “part of the normal legislative process."
“Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently,” the judges wrote.
The two files once deemed too sensitive to share were released during the case itself, after the migration pact was formally adopted in 2024, effectively undermining the council’s own argument.
De Capitani also took aim at what he called the council’s habit of keeping “WK” papers off its public register, even after giving people access on request. But the judges didn’t bite. They said the council’s silence on whether to post those files online wasn’t enough to count as a formal decision that could be challenged in court.
Belgium, Finland and Sweden lined up behind De Capitani, echoing their own push for more openness in Brussels. France backed the council, arguing that disclosure could expose sensitive migration details and complicate talks. The judges listened but weren’t persuaded, saying the council hadn’t shown any real risk to EU interests or the trust among member states.
What the judges made plain was that the council can’t hide behind general fears or political sensitivities to keep documents secret. EU institutions, they said, have to spell out exactly how disclosure would cause real harm, not just assume it might. In this case, the council fell short.
The decision builds on De Capitani’s earlier win in 2023, when the same court ruled that secrecy needs solid, evidence-based justification. With this new judgment, the court doubles down on that message and makes it clear that in EU lawmaking, transparency isn’t the exception, it’s the norm.
Päivi Leino-Sandberg, a professor of transnational European law at the University of Helsinki, said the ruling “is pretty identical to what the court already said in an earlier De Capitani case a few years ago.” She noted that “the council has recycled similar arguments about early-stage or technical discussions, while the court once again made clear that those exchanges are a routine and necessary part of how EU laws take shape.
Leino-Sandberg added that while the ruling doesn’t break new ground, it “illustrates the institutions’ persistent reluctance to apply the court’s case law beyond the individual cases already decided,” leaving citizens to fight the same transparency battles again and again.
De Capitani, his legal representatives and the council did not immediately respond to requests for comment.
While one procedural claim was tossed, the council was told to cover its own legal costs and pay half of De Capitani’s fees.
The case isn’t quite over yet. The council still has about two months to appeal to the EU’s top court. If it doesn’t, this ruling will stand as the final word.
Courthouse News reporter Eunseo Hong is based in the Netherlands.
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