To the attention of
Secretary General of the
Dear Secretary General,
Following Your letter (doc A(2015)4931- on June 3, 2015) I hereby submit a confirmatory
application of my request of access to preparatory documents (and in particular the
multicolumn tables) linked with so called “trilogues” drawing to early agreements in the
“ordinary legislative procedures” still pending before the EU co-legislators on April 15,2015.
In fact the only information I have obtained from the EP is the list of the pending legislative
procedures for which an early agreement is currently negotiated and no multicolumn
document has been transmitted (even if reference has been made to the existence of 119
I therefore reiterate my request for these legislative preparatory documents and in order to
take in account your concerns on the number of documents involved I herewith narrow down
and limit my request to the legislative procedures whose legal basis fall in the freedom
security and justice area (Title V) TFEU and on art. 16 TFEU (data protection).
I take also this occasion to explain why I consider your refusal to give access to multicolumn
documents unjustified from a constitutional, institutional and operational point of view. On Constitutional Grounds:
Although access should already be granted on the basis of the principle of widest possible
access contained in Regulation 1049/01, from a constitutional point of view, your letter does
not take in account the fact that since the entry into force of the Lisbon treaty EU legislative
activity should comply with transparency standards that are even higher than previously
foreseen by Regulation 1049/01 (and the latter should be interpreted accordingly).
Is worth recalling that since 1st December 2009 :
- the scope of what should be considered of legislative nature is now defined by the treaty
(and no more by the Council as previously stated by art. 207 of TEC ;
- the European Parliament and the European Council should not only vote but also
publicly debate legislative measures (art. 16.8 TEU and 15 TFEU). In the Council case the
Treaty clearly states that it “..shall meet in public when it deliberates and votes on a draft
legislative act. To this end, each Council meeting shall be divided into two parts, dealing
respectively with deliberations on Union legislative acts and non-legislative activities”.
The same obligation of transparency applicable to the European Parliament and the Council
when acting alone shall be respected when they establish an interinstitutional dialogue linked
with a legislative procedure. If this was not the case the EU institutions could create a sort of
grey zone to circumvent their constitutional obligations and making it impossible for EU
citizens (and national parliaments) to understand how the different positions inside the
European Parliament or the Council are evolving during the procedure.
This can of course not be accepted and would be contrary to the Lisbon obligations. To put it
simple : citizens (and national parliaments) should understand if the members they have
elected in the Parliament or the State of which they are citizens, is acting in a way that they
can agree on.
The possibility to have access to legislative preparatory documents and therewith enable the
traceability and understanding of - and debate and accountability relating to - legislative
negotiations is moreover squarely acknowledged by the Court of Justice of the EU to be an
essential aspect of the normative choice the EU has made in favour of transparency and the
democratic entitlement of citizens to know and be able to participate and debate.
Moreover, it is not without reason that art. 294 of the Treaty describes in a very detailed way
how the EU institutions should interact during the different phases (“readings”) of the
legislative procedure and requires that each institution adopts in turn publicly, its position by
also explaining (in the case of the Council and of the Commission) the reasons justifying it.
Now, the current daily practice of hidden negotiations during early agreements makes the
provisions of Article 294 meaningless and it is particularly worrying that this already
happens during the first legislative phase when the European Parliament has to play the
guiding role and can require the Council to abide with the highest legislative transparency
Under this perspective the fact that votes on negotiations mandates are taken publicly in the
EP (as orientation) and in the Council (as general approach) is only a first initial step in the
right direction. However it remains useless if all the subsequent dialogue does not follow the
same level of transparency. As things stands now the EU citizens are acquainted only of the
legislative compromise once reached by the two co-legislators months (if not years) later.
But at that moment it will be not only impossible to disentangle the positions of each actor
but also to influence a different outcome as everything will be settled by a single vote in the
Committee and in the Plenary.
This situation has become particularly worrying as early first and second readings now cover
almost 90% of EU legislative procedures.
The need to recognise the position taken by each institution during the first two legislative
readings is not contradicted but confirmed by the fact that Article 294 of the Treaty foresees
a “conciliation” mechanism. The latter can be considered as the exception which confirm the
rule of individual responsibility of each institution. It can be triggered only as ultima ratio in
case of persistent divergences between the co-legislator after the EP second reading and is
framed by the Treaty on a mandate limited in time and by requiring that, for instance all the
member states should be represented (when instead during early “trilogues” they remain
hidden behind the Council Presidency…).
Given this, according to the Treaty, exceptional nature of the conciliation procedure, your
statement that the “multi-column” documents during the earlier phases of the legislative
procedure (first and second reading) are stemming “…from the conciliation
procedure” (which is a specific feature of the third reading) create a confusion between
procedural phases that art. 294 TFEU separate in a very strict way .
But even more worrying is your statement according to which “full disclosure of the
compromise proposals before agreement, without a prior individual assessment of each
requested document, might affect the required mutual trust between the institutions and thus,
the negotiating process, thereby diminishing the chances of reaching an overall
W hen legislative negotiations are at stake , the Lisbon Treaty makes no more reference to the
possibility of avoiding request for access to documents with the need to preserve “the
effectiveness of the (Council) decision making process” ( as it was previously stated in
Article 207 of the TEC referring to Council legislative role). By deleting these words it has
been made clear that legislative transparency is the pre-precondition of such an effectiveness
because it makes possible a wider participation, also of the national parliaments and of civil
society to the EU legislative process (see art 11, 12 of the TEU and art.15 of the TFEU as
well as the protocol 1 and 2 to the Treaty). From an Institutional perspective
It seems that until now the European Parliament Plenary has been rather consistent in favour
of generalised transparency on legislative procedures notably when it voted on the revision of
Regulation 1049/01 in December 2011 as well as when, on 11 March 2014, it called on “…
the Commission, the Council and Parliament to ensure the greater transparency of informal
trilogues, by holding the meetings in public, publishing documentation including calendars,
agendas, minutes, documents examined, amendments, decisions taken, information on
Member State delegations and their positions and minutes, in a standardised and easy
accessible online environment, by default and without prejudice to the exemptions listed in
Article 4(1) of Regulation (EC) No 1049/2001;”
(See par.28 of the European Parliament
resolution of 11 March 2014 on public access to documents for the years 2011-2013
eference=2013/2155(INI)\'>). Since then has the European Parliament changed its mind ? From an operational perspective
According to the EP the early first and second reading agreements now cover more than 90%
of the legislative procedures and 1557 trilogues meetings already took place during the last
term (2009-2014). However as far as I know no records are currently accessible on these
essential phases of the legislative process . I do believe that this is a clear violation of EU
citizens right to access legislative preparatory works .
A first possible step to overcome such a massive lack of information should be to grant the
timely access to the different versions of a multicolumn documents before and after each
Transparency being the rule to be followed during legislative procedures, this also means
that there is no ground or reason for the EP to ask the opinion of the Council to diffuse a
document (or a column in a multicolumn document) representing its position/suggestion,
once it has transmitted it to the EP.
If in in exceptional cases (what in legislative works appears rather unlikely to happen) the
Council consider that a special treatment is needed it is up to him to justify it and to the EP to
evaluate if the request can override the right to access of the EU citizens.
If a general obligation exists for EU officials this is to swiftly put the preparatory documents
(trilogues related documents included ) on the institution’s register as already clearly required
by Regulation 1049/01.
I finally note that for the reasons set out in the above, there is also an overriding public
interest in granting access. Indeed, the interest in contained in the Lisbon Treaty and is also
clear from the case law of the Court regarding access to legislative documents (Turco, Access
I Thank you in advance for considering my more limited request and the arguments set out in
the above for granting access.
Fundamental Rights European Experts Group