eu access to documents May 16, 2013Posted by Bradley in : transparency , trackback
Advocate General Cruz Villalón opined today that the Court of Justice should follow the General Court’s judgment in Access Info Europe v Council: where the Council acts in its legislative capacity “the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’” does not “constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001.” The Advocate General wrote:
‘Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, and this term must apply to the EU, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate…Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made legislation ‘easier’, if easy is taken to mean ‘hidden from public scrutiny’, as public scrutiny places serious constraints on those involved in legislating… to hide from public view the identity of those making the proposals being discussed during one of the stages in the legislative procedure is to deprive the citizen of an item of evidence that is necessary for the effective exercise of a fundamental democratic right, namely the ability effectively to hold politically accountable the participants in the process of shaping the public will into the form of a piece of legislation…. Democratic political debate involves, above all, accountability; and to have accountability it is essential to know the identity of those participating in the debate and, in particular, the terms on which they are doing so.
This is all good stuff, but he also makes some comments about the difference between EU states co-operating to legislate through the Council (where they are acting like a national legislature) and other circumstances where sovereign states negotiate and where a “mind-set of discretion and even secrecy… is justified.”