Global Freedom of Expression

De Capitani v. Parliament

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    March 22, 2018
  • Outcome
    Decision Outcome (Disposition/Ruling), Access to Information Granted, Law or Action Overturned or Deemed Unconstitutional
  • Case Number
  • Region & Country
    Belgium, Europe and Central Asia
  • Judicial Body
    Court of Justice of the European Union (CJEU)
  • Type of Law
    Administrative Law
  • Themes
    Access to Public Information

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Case Analysis

Case Summary and Outcome

The Court of Justice of the European Union (General Court) ruled that the European Union Parliament’s refusal to provide a citizen with access to certain documents could not be upheld because the Parliament did not demonstrate that it was reasonably foreseeable (and not purely hypothetical) that access would undermine, specifically and actually, the decision-making process of the EU institutions. The individual in question sought access to documents that disclosed the provisional compromise texts of proposed legislation drawn up in the context of informal meetings, called trilogues, that sought to increase the likelihood of agreements being reached at various stages of the EU’s co-legislative process. The General Court held that these trilogues constituted a decisive stage in the legislative process, and that there could be no general presumption of non-disclosure of the relevant information. The General Court also rejected the argument raised by the Parliament that its refusal fell within a derogation to the EU law on public access to the EU institutions’ documents because disclosure of the information would undermine the effectiveness of the legislative process. The General Court clarified that derogations from the principles of openness and transparency in the legislative process had to be interpreted strictly and it annulled the refusal of the Parliament to disclose the relevant information.


In June 2015, Mr. Emilio De Capitani submitted an application to the European Parliament seeking access to documents drawn up by, or made available to, the European Parliament and containing certain information relating to attempts to reach early agreements in the co-legislative process. His application was made pursuant to Regulation 1049/2001 regarding public access to the European Parliament, Council and Commission documents.

The co-legislative process adopted by the European Union begins with a legislative proposal being made by the European Commission, and can then involve up to three readings before the European Council (ministers from member state governments) and the European Parliament (elected representatives) whereby they try to reach an agreement on the terms of the proposed legislation so that it can be adopted (i.e. it can only be adopted with the agreement of both the Parliament and the Council). Informal tripartite meetings (trilogues) are often held between representatives of the Parliament, Council and Commission to reach a prompt agreement on draft legislation to try to increase the chances that an agreement will be reached at a given reading.

Mr. De Capitani asked for access to multi-column tables submitted to trilogues for ongoing co-decision legislative procedures concerning the area of freedom, security and justice (Title V of the TFEU) and protection of personal data (Article 16 of the TFEU). These columns set out: (i) the text of the Commission’s proposal, (ii) the position of the Parliamentary Committee and the amendments it proposes, (iii) the position of the Council, and (iv) suggested draft compromises.

In Decision A(2015) 4931, the Parliament informed Mr. De Capitani that seven multi-column tables had been identified. Mr. De Capitani was given full access to five of these multi-column tables but was only given access to the first three columns of two of the tables. The Parliament reasoned that the fourth column on the latter two tables contained provisional compromise texts and preliminary positions of the Presidency of the Council, the disclosure of which would “actually, specifically and seriously undermine the decision-making process of the institution as well as the inter-institutional decision-making process in the context of the ongoing legislative procedure.” [para. 6] Moreover, the Parliament contended that the documents related to police co-operation, which was a very sensitive area, and the disclosure would have harmed the trust between the Member States and the EU institutions as well as the Parliament’s internal decision-making process. The Parliament further stated that disclosing such information as negotiations were still ongoing would likely lead to public pressure being placed on those in the negotiating teams during the trilogues, and would also make the Presidency of the Council more wary of sharing information and co-operating with the Parliament negotiating team. Furthermore, it was argued that the disclosure of positions that have not yet become final risks giving an inaccurate idea of what the positions of the institutions actually are. The Parliament also considered there to be no overriding public interest that outweighed the public interest in the effectiveness of the legislative procedure, and that the principle of transparency could not, in itself, constitute an overriding public interest.

Mr. De Capitani brought a case to the General Court of the Court of Justice of the European Union, the competent judicial body for cases against EU institutions, challenging the Parliament’s refusal to grant full access to the documents. He called on the General Court to annul Decision A(2015) 4931, and order the Parliament to pay costs. He argued, among other things, that the Parliament did not sufficiently demonstrate that access to the documents would specifically, effectively and in a non-hypothetical manner seriously undermine the legislative process. He further maintained that the decision undermined the principle of widest possible access to EU legislative documents.

Decision Overview

The General Court of the Court of Justice of the European Union (Court) began with an overview of the law (Article 4(3) Regulation 1049/2001) relied upon by the Parliament to refuse disclosure of the fourth column of the relevant multi-column trilogue tables. Article 4(3) of Regulation 1049/2001 stated that “[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.”

The Court recalled that the rationale for providing the right of public access to documents of the Parliament, Commission and Council under Regulation 1049/2001 was related to the democratic nature of those institutions, and that the purpose of the regulation was to give the public a right of access that was as wide as possible. In light of this, derogations such as the one provided under Article 4(3) of Regulation 1049/2001 had to be interpreted strictly. Accordingly, in order to rely on Article 4(3), the institution had established that “access to the documents requested was likely to undermine specifically and actually the protection of the institution’s decision-making process, and that the likelihood of that interest being undermined was reasonably foreseeable and not purely hypothetical.” [para. 63] Furthermore, the disclosure had to “seriously” undermine the decision-making process, according to Article 4(3) of Regulation 1049/2001, which the case-law of the Court interpreted as meaning that it had to have a substantial impact on the decision-making process.

The Court then went on to consider the nature of trilogue meetings. It noted that the aim of such meetings was to reach a prompt agreement on a set of amendments acceptable to the Parliament and the Council, which must subsequently be approved by those institutions. It noted that they were regarded by the Parliament itself as “decisive phases of the legislative process” following which 70 to 80% of the European Union’s legislative acts are adopted. [para. 70] The Court concluded that they contributed significantly to increasing the possibilities for agreement at the various stages of the legislative process. The Court also took  account of the fact hat the meetings were held in camera and that the agreements reached in those meetings, usually reflected in the fourth column of the multi-column tables, were subsequently adopted (mostly without substantial amendment) by the co-legislators. In light of this, the Court found that the trilogue tables formed part of the legislative process.

The Court then went on to consider the argument, endorsed by the Parliament, that there is a general presumption of non-disclosure according to which an EU institution can refuse to grant access to the fourth column of ongoing trilogue tables. The Court was not convinced by such an argument. The Court pointed out that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] It drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of democratic rights. The Court concluded that the principles of publicity and transparency were inherent to the EU legislative process. It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It concluded that no general presumption of non-disclosure could be upheld in relation to the fourth column of the trilogue tables concerning an ongoing legislative procedure. In doing so, it observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83]

The Court then went on to consider whether the Parliament properly relied on the derogation set out under Article 4(3) of Regulation 1049/2001. The Court noted that the case did not concern direct access to ongoing trilogue work but, instead, solely concerned access to the fourth column of the documents at issue following a request for access.

The Court disagreed with the argument relied on by the Parliament in its decision that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation, which was a sensitive area. The Court observed that 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. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.” [para. 89] The Court also reasoned that the legislative proposal in question regarded a draft law of general scope, binding in all of its elements and directly applicable in all the Member States, and it directly affected the rights of EU citizens (namely their right to personal data). [para. 90] Therefore, it could not be regarded as sensitive by reference to any criterion.

The Court also took the view that the fourth column of the trilogue document concerned abstract and general matters without any mention of sensitive information (e.g. in relation to the fight against terrorism or organized crime, or concerning police data in respect of persons). Instead, the fourth column contained a limited number of rules of general nature, agreed drafting amendments, and an indication of points that would be subject to further discussion. The Court concluded that the information in the fourth column was no more sensitive than the information in the first three.

Although the Court agreed that the information in the documents related to a matter of some importance, the information contained in the fourth column did not seem particularly sensitive to the point of jeopardising a fundamental interest of the EU or of the Member States if disclosed.

The Court then went on to consider the Parliament’s argument that disclosure would increase public pressure on those in the negotiating team. The Court began by noting that co-legislators are accountable to the public for their actions. It added that “[i]f citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information. Furthermore, Article 10(3) of the [Treaty of the European Union] states that every citizen is to have the right to participate in the democratic life of the Union and that decisions are to be taken as openly and as closely as possible to the citizen. Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.” [para. 98] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99] The Court concluded that there was no such tangible evidence presented in this case.

The Court also rejected the Parliament’s argument that the information contained in the fourth column was preliminary in nature and was likely to evolve over time. The Court noted that this alone cannot be relied on to justify non-disclosure since Article 4(3) of Regulation 1049/2001 makes no distinction according to whether the information was produced or received at an early, late or final stage of the decision-making process, or whether in a formal or informal context. The Court also noted that the public is capable of grasping that the author of a proposal at a preliminary stage is likely to amend its content subsequently. Therefore, the preliminary nature of the discussions and the fact that there was no agreement or compromise reached concerning some of the proposals was insufficient to demonstrate that the decision-making process would be seriously undermined.

The Court then considered the argument that disclosure would result in a potential loss of trust between the EU institutions and that co-operation between them would likely deteriorate. The Court noted that the institutions were under a duty to practice “mutual sincere cooperation” (Article 13(2) Treaty of the European Union). Furthermore, the risk was purely hypothetical in the absence of specific evidence demonstrating that disclosure would have undermined the loyal co-operation incumbent on the institutions.

The Court considered the argument raised by the Parliament that the refusal was only of a temporary nature, and that the information could be disclosed (depending on the case) once the work is completed. The Court noted that trilogues can be prolonged for a significant period of time “during which the trilogue work remains a secret from the public.” [para. 107]

Finally, the Court reiterated that the work of the trilogues constituted a decisive stage in the legislative process and that, for this reason, “the refusal to grant the access at issue cannot legitimately be justified by its temporary character, without exception and without distinction. Such a blanket justification, capable of being applied to all trilogues, could de facto operate to all intents and purposes as a general presumption of non-disclosure, reliance on which has, however, been rejected.” [para. 109]

The Court concluded that the grounds relied on by the Parliament to refuse disclosure of the relevant parts of the trilogue tables did not meet the terms of the derogation set out under Article 4(3) Regulation 1049/2001. The Parliament’s refusal was, therefore, annulled. The Parliament was also ordered to pay Mr. De Capitani’s costs.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The decision expands expression since the General Court of the Court of Justice of the European Union (Court) annulled a refusal of the European Parliament to grant access to certain information drawn up in the context of informal meetings held during ongoing legislative procedures. In its judgment, the Court highlights the importance of openness and transparency in the legislative process and recognizes that these informal meetings, which were often secretive, formed a decisive part of this process. The Court also provides robust recognition of EU citizens’ rights of access to information on ongoing legislative procedures and highlights the importance of timing when providing such access. The judgment recognizes that the right of access is crucial to the strengthening of the legitimacy of EU institutions, and allows citizens to exercise their democratic rights in the context of the legislative process.

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Related International and/or regional laws

Case Significance

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