Standard-setting bodies should be paying close attention.
The rule of law, a fundamental pillar of liberal democracy is sacrosanct. Courts in Europe are watchful guardians against opacity and protective of the need to uphold European Law.
So too are transparency campaigners, and civil rights activists, even though at times they may disagree with the court’s judgments. On this occasion, however, they were pleased.
The General Court of the European Union ruled on January 23rd, 2023 that European Union member states must grant public access to documents circulated in their working groups for adopting laws.
The matter was litigated by a former official at the European Parliament, Emilio De Capitani, who initiated the action in light of the Council's refusal to make available documents used for approving an amendment to an EU law on annual financial statements.
The Council was of the view that disclosure of the documents at issue would seriously undermine, in a concrete, actual and non-hypothetical manner, the legislative process concerned.
The General Court however rejected those arguments and found "that as the principle of openness is of fundamental importance in the European Union legal order, the principles of publicity and transparency are inherent in the legislative procedures of the European Union."
The back story to this 2023 action was De Capitani’s 2018 victory, when in common cause with the arguments of transparency campaigners, and civil rights activists, he asserted that the documents used in fora known reportedly as 'trilogues', should be available for public scrutiny.
The issue was the decision-making power that EU States and the European Parliament have to approve the final iteration of legislation that is proposed by the European Commission before it becomes law.
This process has a discrete but not unexpected feature, that facilitates horse trading of interests when negotiations are finely balanced and at times heated, as delegations press their positions to arrive at the final version of text that will eventually become the law of the Union.
So, the victory assured that the public would be fully informed, should they be so interested, about what was advocated by their representatives, in private, and what they articulate for national and local consumption in public.
Two days later on January 25th, 2023, the Court of Appeal in Malta ruled that it was not the intention of the legislator to create a law that was out of line with other EU Member State laws, and therefore in breach of Malta’s obligations under EU law, by restricting the right to submit a request for information pursuant to Malta’s 2008 Freedom of Information Act 2008, on the grounds of residency.
The matter began in August 2019 when an Italian citizen filed a request for information on the return of migrants under Malta’s 2008 Freedom of Information Act.
His application was refused by the Maltese Ministry of Home Affairs and National Security on the basis that an “eligible person” to make the request under the Act had to either be a Maltese citizen or a citizen of a Member State of the European Union who has been resident in Malta for at least 5 years.
The Italian citizen successfully appealed in March 2022, to the Information and Data Protection Appeals Tribunal on the basis that the residency and citizenship requirements contravene international standards and European law, amount to discrimination, and violate Malta’s constitutional obligation to protect the right to freedom of expression and information.
However, the Ministry pursued the matter to the Court of Appeal where the action was rejected on the basis that the Maltese government was discriminatory and violated the rights of EU citizens when it refused to register an information request by a non-Maltese citizen.
More substantively, the Court noted that the Ministry’s strict interpretation of the law would make it practically impossible for anyone not living in Malta to submit a request. This interpretation, the Court said, is discriminatory and directly impacts not only the right to freedom of information but also on the freedom of movement of EU citizens.
Both decisions confirm that EU citizens be they on the continent or in the territories have a right to access and receive information from government agencies.
This begs the question as to whether this doctrine is also applicable in a similar fashion to access to documents used in the decision-making processes of intergovernmental standard-setting bodies.
No doubt, the recent decisions by European courts on transparency and access to information have far-reaching implications, challenging the interpretation of EU laws and raising questions about the applicability of this doctrine to intergovernmental standard-setting bodies.