General Court of the EU: judgment on right to access documents relating to ongoing trilogues

On 22 March 2018, the General Court ruled in case T-540/15 De Capitani v. European Parliament, which concerned the complaint brought by Mr De Capitani against the decision by which the European Parliament rejected his request for access to documents containing information about the positions of the institutions on ongoing co-decision procedures, particularly to the multi-column tables drawn up in connection with trilogues (tripartite meetings between the European Parliament, the Council of the EU and the European Commission to negotiate common positions on legislative proposals). While the European Parliament granted Mr De Capitani access to five documents in full, it did not disclose the parts of two documents which contained provisional compromise texts and preliminary positions of the Presidency of the Council of the EU, on the basis that the disclosure would have specifically and seriously undermined the inter-institutional decision-making process in the context of ongoing legislative procedures.

The General Court ruled that trilogue documents are subject to the same rules of access to documents, since the openness of the legislative process contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens. Since inter-institutional negotiations can be a decisive stage in the legislative process, an exemplary adherence to the public’s right to access that work is required, calling for a strict application of the exceptions provided for in the Access to Documents Regulation. Therefore, the General Court concluded that access to documents relating to ongoing trilogues must in principle be granted on specific request, unless the institution proves that it is reasonably foreseeable and not purely hypothetical that full access to the documents at issue is likely to undermine, specifically and actually, the decision-making process.

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