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Council of the European Union
Directorate-General Communication and Information - COMM
Brussels, 16 February 2021
SGS 21 / 000068
Mr Peter Teffer
Your Confirmatory Application 01/c/01/21
Dear Mr Teffer,
Please find enclosed the reply from the Council to the confirmatory application you introduced on
on 6 January 2021 as well as a link to the full version of document WK 10915/20 and partially
accessible versions of documents WK 11807/20, ST 12384/2020, ST 12384/1/2020 REV 1,
WK 13001/20, ST 13041/20 and WK 14199/20.
Statutory remedy notice
Pursuant to Article 8(1) of Regulation (EC) No 1049/2001, we draw your attention to the possibility
to institute proceedings against the Council before the General Court1
or to make a complaint to
The conditions for doing so are laid down in Articles 263 and 228 of the Treaty
on the Functioning of the European Union respectively.
Link to the documents: https://we.tl/t-YQRAN8y3pT
1 For deadlines and other procedural requirements conc
erning the institution of proceedings at the General
Court, please refer to the fol owing page: http://curia.europa.eu/jcms/jcms/Jo2_7040/en/
2 Any complaint to the Ombudsman must be made within two years of receiving the institution's final
position on the matter. The Ombudsman's online complaint form is available at:
Rue de la Loi/Wetstraat 175 - B-1048 Bruxelles/Brussel - Belgique/België
Tél./Tel. +32 (0)2 281 58 25 - www.consilium.europa.eu
REPLY ADOPTED BY THE COUNCIL ON 15 FEBRUARY 2021
TO CONFIRMATORY APPLICATION 01/c/01/21,
made by email on 6 January 2021
pursuant to Article 7(2) of Regulation (EC) No 1049/2001,
for public access to trilogue documents related to the proposal for a Regulation amending
Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions
from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle
repair and maintenance information
The Council has considered this confirmatory application under Regulation (EC) No 1049/2001 of
the European Parliament and of the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145 of 31.5.2001, p. 43) (hereafter referred
to as "Regulation (EC) No 1049/2001") and Annex II to the Council’s Rules of Procedure (Council
Decision 2009/937/EU, Official Journal L 325, 11.12.2009, p. 35) and has come to the following
On 23 November 2020 the applicant introduced an initial application for access to documents
"related to the trilogue negotiations on the Proposal for a Regulation of the European
Parliament and of the Council amending Regulation (EC) No 715/2007 on type approval of
motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro
5 and Euro 6) and on access to vehicle repair and maintenance information. These should
include at least: ST 12384 2020 INIT (30-10-2020), ST 12384 2020 REV 1 (03-11-2020)".
On 6 January 2021, the General Secretariat of the Council (GSC) replied to this application by
refusing access to documents ST 12384/20 and ST 12384/20 REV1 grounding its decision on
the exception to the right of access relating to the protection of the institution's decision-
making process (Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001).
On the same date, the applicant submitted a confirmatory application against the decision of
the GSC to refuse access to the documents in question and not to provide access to other
documents related to the trilogue negotiations. The applicant contests the refusal of access to
the two documents, referring to the judgement of the Court of Justice of the EU in case
T‑540/15, known as the case "De Capitani v European Parliament". In substance, the
applicant states that trilogue documents are part of the legislative process, that citizens have a
right to access them and that this access, far from undermining the decision-making process,
allows citizens to follow the process in detail and the divergences between various points of
view to be known and openly debated, thus ensuring the legitimacy of the whole process.
The Council has reassessed, in full consideration of the principle of transparency underlying
Regulation (EC) No 1049/2001 and in the light of the applicant's comments, whether public
access can be provided to the relevant trilogue documents. The Council has come to the
conclusions set out below.
GENERAL CONTEXT OF THE PROPOSAL
Commission Regulation (EU) 2016/646 ("RDE 2 Regulation") set out conformity factors used
to assess the compliance of light passenger and commercial vehicles with the emission limits
laid down in Regulation (EC) No 715/2007, while performing a real driving emission (RDE)
test. Conformity factors were initially adopted by the Commission in the framework of
comitology and intended to progressively reduce the discrepancy between NOx emissions
measured in real driving and those measured in a laboratory.
The Proposal for a regulation of the European parliament and of the Council amending
Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions
from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle
repair and maintenance information (hereafter referred to as "the Proposal
") was presented by
the Commission on 14 June 2019 following the judgment of 13 December 2018 of the
General Court delivered in the direct actions T-339/16 (Ville de Paris/Commission
(Ville de Bruxelles/Commission
) and T-391/16 (Ayuntamiento de Madrid/Commission
submitted against Commission Regulation (EU) 2016/646.
The General Court ruled in its judgement that the Commission had acted outside of its powers
in setting the conformity factors for nitrogen oxides (NOx) emissions via comitology
procedure instead of ordinary legislative procedure. The General Court annulled those
provisions in Commission Regulation (EU) 2016/646.
The Proposal includes the same conformity factors for NOx as in the partially annulled
Commission Regulation (EU) 2016/646. It provides for a two-step procedure, namely
temporary conformity factors during a first step, and the final conformity factors during a
second step. In addition, the Proposal empowers the Commission to further review the
conformity factors and to adapt them to technical progress.
Within the Council, after extensive discussions in the Council's Working Party on Technical
Harmonisation (Motor Vehicles), the Permanent Representatives Committee agreed on a
mandate for informal negotiations with the European Parliament on 11 December 20191
first informal trilogue with representatives of the European Parliament and the European
Commission took place on 9 October 2020. On 4 November 2020, the Presidency received a
revised Coreper mandate for the second informal trilogue on 10 November 2020. A third
trilogue took place on 2 December 2020, where Council's compromise proposals and
flexibilities on the main unsettled political issues, such as provisions on a lower value of the
"error margin" for NOx, on yearly reviews of the error margin, on the possible use of
delegated acts in connection with downwards revisions of the error margin, were not
sufficient to reach an agreement with the European Parliament. Moreover, currently both co-
legislators remain apart on phase-out of conformity factors and have not agreed on
implementing vs. delegated acts in relation to specific procedures, tests and requirements for
type approval in Art. 5 (3) of Regulation (EC) No 715/2007.
The mandate agreed by Coreper is reflected in public document ST 15042/19.
ASSESSMENT OF THE REQUESTED DOCUMENTS UNDER REGULATION
10. In its initial decision, the GSC considered that the exception related to the protection of the
ongoing decision-making process justifying refusal to grant access applied to documents
12384/2020, 12384/2020 REV1
in their entirety and therefore fully denied access to their
11. Nonetheless, the Council fully acknowledges the principle of transparency, particularly in
relation to decision-making processes of a legislative nature, since openness in that respect
contributes to strengthening democracy by allowing citizens to scrutinize the information
which has formed the basis of a legislative act.
12. Taking into account the above considerations, the Council has now reassessed the request on
the basis of the reasons stated in the confirmatory application and the content of the
documents assessed at the initial stage. In addition, it has identified other documents relevant
for the trilogues phase of the legislative procedure and carefully scrutinized their content. In
doing so, the Council has particularly taken into consideration that all requested documents
relate to an ongoing legislative procedure.
A. Documents to which full public access is granted
13. The Council has come to the conclusion that full public access can be granted to document
dated 13 October 2020, which is a working document prepared by the
Presidency for the Council's Working Party on Technical Harmonisation (Motor vehicles)
containing the first 4-column document setting out the negotiating positions of the three
institutions at the beginning of trilogue negotiations.
B. Documents to which partial access is granted pursuant to Article 4(6) of Regulation
(EC) No 1049/2001
14. The Council has furthermore considered that, in view of their content, parts of documents
, 12384/2020 REV1
, WK 13001/20
, 13041/20, WK 14199/20
under the specific exception applying to the protection of the decision-making process of the
institution (Article 4(3) first subparagraph, of Regulation (EC) 1049/2001) and that only
partial access can be granted to them.
15. Document WK 11807/20
dated 27 October 2020 is a note from the Presidency for the
Working Party on Technical Harmonisation (Motor vehicles) containing German Presidency's
compromise proposals in view of a revised mandate and the second trilogue.
16. Document ST 12384/2020
dated 27 October 2020 is a note from the GSC for the Coreper in
preparation for the next trilogue. It contains a Presidency's compromise text set out in the 4th
column of the table in the Annex to the note.
17. Document ST 12384/2020 REV 1
dated 3 November 2020 is a revised version of document
18. Document WK 13001/20
dated 17 November 2020 is a working document prepared by the
Presidency and containing compromise proposals to be discussed at the Working Party
meeting on 18 November 2020 in preparation of the third trilogue.
19. Document ST 13041/20
dated 23 November 2020 is a note by the GSC to the delegations in
preparation for the third informal trilogue. The document outlines the political issues
remaining open after the second trilogue and puts forward compromise proposals for various
provisions in a 4-column table.
20. Document WK 14199/20
dated 4 December 2020 is a working document prepared by the
Presidency for the Working Party on Technical Harmonisation (Motor vehicles) containing a
4-column document following the third trilogue on 2 December 2020.
21. The "WK" documents listed above are internal preparatory documents outlining certain issues
to be considered in the political discussion in the Working Party on Technical Harmonisation
(Motor vehicles). They indicate possible Council’s flexibilities and fall-back options to allow
the Presidency some room for manoeuvre during the respective trilogue meetings with the
European Parliament, options that are contingent to the overall balance of a package deal.
22. The documents listed above set out the progress achieved and the political importance of
some central issues in the proposal. They are intended to transmit a compromise text to
Coreper for a revised mandate or to receive guidance from it for the subsequent trilogues.
They also contain 4-column tables with Presidency's compromise proposals, comments and
suggestions in the 4th column.
23. While the Council underlines the principle according to which, in the course of legislative
negotiations, "nothing is agreed until everything is agreed", it recognises that, to some extent,
the requested documents cover points for which progress has been made in the trilogue
negotiations, which allowed for provisional compromises to be reached. The Council is of the
view that, in order to enhance openness and public participation to the legislative process,
those parts of the requested documents as well as parts which reveal the evolution of the
Council's positions on those points should be disclosed. This is in line with the De Capitani
judgment2, that the applicant invokes in the confirmatory application. However, the Council
also notes that this judgment has not ruled out the possibility for the institutions to apply the
exception related to the protection of the decision-making process, provided for in Article
4(3) of Regulation (EC) No 1049/2001, as regards documents drawn up in the framework of
ongoing trilogues. Any different interpretation would amount to denying the institutions any
discretion to refuse to grant access to such documents on that ground, which is an
interpretation that has been expressly rejected in paragraph 112 of the court's judgement.
Judgment of 22 March 2018, Emilio De Capitani
v European Parliament
24. In that regard, the Council points out that, far from being limited to compromise proposals
that have been negotiated and provisional agreements that have been reached in the
interinstitutional discussions, the requested documents reflect positions that have been drawn
up for internal use in the preliminary discussions within the Council's preparatory instances
with the purpose of forming the Council's negotiation strategy and defining the Council's
positions in the negotiations. In order to allow for an effective political decision-making, it is
of particular importance to ensure workable discussions of the relevant Council preparatory
bodies at each stage of the legislative procedure. Many of the elements set out in the
documents in question are the result of difficult negotiations between the Member States,
taking also into account the flexibility the European Parliament might or might not show
during the negotiations. They give details of progress made and thereby reflect the difficulties
that still need to be addressed, assuming that they were not meant to become public at the
respective stage of the negotiations. Full release of the documents would seriously undermine
the mutual trust and confidence that enable the Council preparatory body to perform their task
effectively. It also entails the risk that Member States become more entrenched in their
positions to the detriment of the possibility of finding possible compromise solutions.
25. Moreover, as set out in paragraph 9 above, the ongoing interinstitutional discussions on the
Proposal are complex and require the conciliation of divergent approaches of the negotiators.
The assessments contained in the requested documents are an essential part of the process and
their disclosure could lead to the entrenching of negotiators' positions. This would be
particularly harmful to the prospect of a successful outcome on the file. Should the
information on Council's flexibilities as regards some of the elements of the package be
disclosed, pressure will increase for the Council to concede on some of its elements before
reaching the overall balance on the whole package. Releasing the preliminary negotiation
positions of the Council and revealing the way those are formed would be detrimental for its
position in the context of the subsequent discussions between the co-legislators. In that
respect, suffices it to say that the European Parliament does not share such information with
the Council. Thus, if only its internal views were disclosed, the Council would face an
asymmetric situation where its position and negotiation strategy would be exposed, thus
limiting the leeway of the Council in the upcoming interinstitutional discussions. Similarly,
revealing Council's margins of manoeuvre in the negotiation process could trigger pressure
from the other negotiator(s) on the Council, thus putting it at a disadvantage in further
negotiations to the detriment of the overall balance of the agreement to be reached.
26. Release to the public of the information contained in documents WK 11807/20, 12384/2020,
12384/2020 REV1, WK 13001/20, 13041/20, WK 14199/20
at a moment when the
institutions are seeking to find an appropriate balance of the various interests involved would
severely affect the negotiating process and diminish the chances of the Council reaching an
agreement with the European Parliament. The Council therefore concludes that full disclosure
of the requested documents would seriously undermine the ongoing decision-making process
under Article 4(3), first subparagraph, of Regulation 1049/2001.
C. Assessment of the public interest in disclosure
27. When applying the exception provided for in Article 4(3), first subparagraph, of Regulation
No 1049/2001, the Council has to strike a balance between the need to protect its decision-
making process and the legitimate interest in transparency, taking into account all relevant
aspects and the context in which the documents were drafted, as explained in paragraphs 5-9
above. In this regard, the Council considers that the legitimate public interest in the release of
information does not outweigh the equally legitimate need to protect its decision-making
28. As stated above, the Council fully acknowledges the importance of transparency as a basic
democratic principle. It is in that view that it has decided to grant access to the greatest parts
of the documents concerned by this confirmatory application. However, the Council also
considers that the interest in a public debate on legislative proposals cannot automatically
override the protection of the effectiveness of the decision-making process in all cases.
29. The Council notes that the arguments put forward by the applicant in the confirmatory
application are based on general considerations that cannot provide an appropriate basis for
establishing that, in the present case, the principle of transparency is of especially pressing
concern and could thus prevail over the reasons justifying the refusal to grant full access, as
developed in paragraphs 23 to 26 above.
30. In addition, it does not seem to the Council that public confidence in the EU in general, and in
the Council in particular, would in any substantial way be affected by the decision to postpone
release of limited parts of the documents in question.
31. Taking into account all relevant aspects, the Council concludes, on account of the need to
preserve the effectiveness of its decision-taking, that in the specific case at hand the public
interest invoked by the applicant does not outweigh the interest protected under Article 4(3),
first subparagraph, of Regulation No 1049/2001.
32. On the basis of the above considerations, the Council concludes that full public access can be
granted to document WK 10915/20
33. Partial access is granted to documents WK 11807/20, 12384/2020, 12384/2020 REV1,
WK 13001/20, 13041/20, WK 14199/20
pursuant to Article 4(3), first subparagraph and
Article 4(6) of Regulation (EC) No 1049/2001.
34. The Council notes that its decision is based on the specific examination of the requested
documents and that it can under no circumstances be considered as a precedent for the future,
since each application is assessed and judged on its own merit, pursuant to the established
practice of the Council.