Ref. Ares(2019)5790906 - 16/09/2019
Brussels, 24 February 2014
GENERAL SECRETARIAT
European Commission
B-1049 Brussels, Belgium
By email: xxxxxxxxxx@xx.xxxxxx.xx
RE: GestDem 2013/6264 -
Confirmatory application for reconsideration of the
Commission’s decision to deny ClientEarth’s full access to the documents
adopted within trilogue meetings relating to the review of the EIA Directive
In conformity with Article 7(2) of Regulation (EC) No 1049/2001 of the European Parliament and of
the Council regarding public access to European Parliament, Council and Commission documents
(hereafter the "Regulation"), ClientEarth hereby submits a confirmatory application with regard to
the partial refusal to disclose the requested documents.
(1) The Commission provided partial access to the reports prepared after the trilogue meetings with
the Council and the European Parliament as well as to the GR fiches used within the Commission
in view of the meeting on inter-institutional relation group on the topic. However, so many parts
of the documents have been deleted that the information provided does not allow us to know
the content of the discussion that took place within these meetings. The partial access provided
therefore amounts to no access to information on the positions adopted by the EU institutions
within the review of this directive and on the decisions that are being made on this crucial
matter.
(2) The detailed discussion that took place between the Council, the European Parliament and the
Commission during the trilogue meetings that is kept confidential by the Commission is precisely
what the public should have access to. The Commission does not provide any solid explanation
as to how disclosing the positions of the different institutions would seriously undermine their
decision-making process. This is purely hypothetical, the Commission's only justification to
refuse full access to the requested documents is that the decision-making procedure is still on-
going and the agreement on the file is still pending, awaiting the vote of the European
Parliament’s plenary. However, the only fact that the review of the Directive is not over and that
discussions are still taking place is no legal ground to withhold the requested information. The
required test provided by Article 4(3) of Regulation 1049/2001 is that disclosure would seriously
undermine the decision-making process of institutions. Yet, the Commission does not put
forward any arguments demonstrating that it would be the case, it only makes an affirmation.
The Commission uses the Council’s refusal to disclose their relevant documents and in
accordance with Article 4(4) of Regulation 1049/2001 and states that “according to the
Commission’s own analysis, the reasoning relied on by the Council is valid” without providing
their own analysis. No justification and solid reasons are thus provided.
(3) The internal decision-making process of the Council and of the Commission would not be
seriously undermined by disclosure of documents containing the discussions on the adoption of
an EU directive.
(4) The process leading to the adoption of the reviewed directive is a legislative process. Article 12
(2) of Regulation 1049/2001, stresses the fact that "legislative documents" should be made
directly accessible through the public registers.
(5) In Cases C-39/05 and C-52/05, the Court draws from recital 2 and 6 of the Regulation’s
preamble to conclude that “openness in that respect contributes to strengthening democracy by
allowing citizens to scrutinize all the information which has formed the basis of a legislative act.
The possibility for citizens to find out the considerations underpinning legislative action is a
precondition for the effective exercise of their democratic rights.
It is also worth noting that, under the second subparagraph of Article 207(3) EC, the Council is
required to define the cases in which it is to be regard as acting in its legislative capacity, with a
view to allowing greater access to documents in such cases. Similarly, Article 12(2) of Regulation
No 1049/2001 acknowledges the specific nature of the legislative process by providing that
documents drawn up or received in the course of procedures for the adoption of acts which are
legally binding in or for Member States should be made directly accessible1.”
(6) This is confirmed by Article 4 of Regulation 1367/2006 in environmental matters.
(7) The Commission must therefore act openly and transparently within these trilogue meetings in
which the three institutions decide what EU law will provide.
(8) The trilogue procedure is not provided by the EU Treaties and is kept completely confidential. It
is now commonplace and increasingly occurs before the EP has held a plenary vote on the piece
of legislation, as it is the case for the adoption of EIA directive. Yet, Article 1, 6(1) and 11 TEU
and 15 TFEU as well as Article 42 of the Charter of Fundamental Rights and Freedoms make
clear that the institutions must act openly and transparently and as closely as possible to the
citizens. Therefore, the confidentiality that the Commission and the Council impose within
legislative processes at EU level is in breach of these provisions and founding principles of the
EU. Information must precisely be provided while the legislative process is on-going to allow
transparency and public participation. Disclosing the information once the law is adopted is not
complying with either the Aarhus Convention, Regulation 1367/2006 or Regulation 1049/2001 as
interpreted by the EU courts.
1 Joined cases C-39/05 P and C-52/05P, Sweden and Turco v Council, [2008] ECR I-0000, paras. 46-47.
(9) It is common practice at national level in democratic states that the adoption of laws is
discussed in public. The position of each institution is publicly debated. There is no reason
justifying a difference at EU institutional level. On the contrary, EU directives and regulations
apply to 28 Member States, their adoption should therefore be subject to full transparency and
openness.
(10) Moreover, even if the decision-making process at stake would be undermined, there would
anyway be an overriding public interest in disclosure. The review of the EIA directive will affect
the lives of every single person living in the EU and possibly abroad, in impacting the
environment they live in as well as their health. Knowing how the industrial projects’ impacts on
the EU people’s environment will be assessed and possibly avoided, compensated for or not on
the basis of the decision adopted in these trilogue meetings is a right of citizens. Being able to
comment, participate, oppose or support decisions being adopted on these matters is also a
right that needs to be upheld by institutions involved in this process. The Commission and the
Council must act transparently to ensure their accountability and the democratic character of the
adoption of decisions at EU level.
(11) Keeping the Commission’s and the Council’s positions confidential prevents the organization of a
democratic debate. The positions of the Member States, national governments, on the proposal
of the Commission simply cannot be kept confidential as these institutions are accountable to
the EU citizens with regard to the decisions they adopt in “Brussels” in the area of EU law. These
discussions must not take place behind closed doors. The upcoming elections of the European
Parliament and the discussions which started on these elections, very clearly demonstrate that
citizens all over the EU need and require greater transparency and more democratic behaviour,
in order to keep confidence in the EU institutions and their activities. The secrecy which the
Council and the Commission maintain with regard to the content of trilogue meetings, will just
increase the anti-EU attitudes of parts of the public, and neither help the Council nor Member
States nor the EU as a whole.
(12) The Commission therefore breached Article 4(3) of Regulation 1049/2001. For all these reasons,
ClientEarth hereby requests that the Commission grants full access to the requested documents.
Yours sincerely,
Contact:
t.