Enforcement of the ECJ judgment on the 'Turco' case (debate) 
President
The next item is the debate on:
the oral question to the Council by Marco Cappato and Michael Cashman, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, Anneli Jäätteenmäki and Costas Botopoulos, on behalf of the Committee on Constitutional Affairs, on the enforcement of the ECJ judgment on the 'Turco' case - B6-0470/2008), and
the oral question to the Commission by Marco Cappato and Michael Cashman, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, Anneli Jäätteenmäki and Costas Botopoulos, on behalf of the Committee on Constitutional Affairs, on the enforcement of the ECJ judgment on the 'Turco' case - B6-0471/2008).
Marco Cappato
Mr President, Commissioner, ladies and gentlemen, our fellow Member in the previous parliamentary term, Maurizio Turco, now an Italian Radical MP, submitted an application - an application that any ordinary citizen can make - requesting access to Council documents in which the names of national delegations that had adopted certain positions during the debate were censored. The Council refused to grant the request and access to a legal opinion was also denied.
The appeal before the Court of First Instance, which in the meantime had forced the Council to make available the identity of the national delegations, found against Mr Turco and for the Council, in order to prevent a ruling from the Court of Justice on the matter. However, an appeal brought before the Court of Justice overturned the original judgment.
The Court simply said that access to documents, particularly those with legislative implications, had to be compulsory because access to documents was democratic and that any exception was to be limited, since this clearly was in the public interest. Public and legal debate on documents increases the legitimacy of the institutions and bolsters public confidence in them.
The question that we are asking today, in brief, is this: how does the Commission and how do the European institutions intend to follow up this judgment? In other words, will they use it as an opportunity for a thorough review of the procedures allowing immediate access to documents?
I know that we are talking about an ordinary citizen, that this is an application that any citizen could have made, and not a reform following an institutional debate. However, I believe that this is precisely where the strength of Mr Turco's initiative lies, since it shows how an individual case can do much more than institutional initiatives allow.
We must have every possibility of publishing these documents. People need to know, for example, that today, during the European Commission press conference, it was confirmed that the Commission has still not requested information from the Italian Government on a matter that Maurizio Turco himself raised, namely discrimination in religious education in Italy.
How can this information not have been requested? It is a concrete example of mechanisms where the functioning of the European institutions becomes inscrutable for citizens. Therefore, this should be used as an opportunity for a radical overhaul of document access and publication procedures.
Anneli Jäätteenmäki
author. - (FI) Mr President, the legislative process in democratic countries is open and public. Citizens can find out how their members of parliament have voted and what lies behind a decision. That is unfortunately not the case in the EU. We cannot boast that the EU is democratic and open and that our citizens can access the documents which are the basis of legislation. We have therefore actually asked the Commission what it intends to do first to change the rules and practices as a result of this court decision, so that openness, transparency and democracy might be implemented, and what the Council has planned to do to implement openness and democracy and also to make national opinion visible after a decision. Unless opinion is open and public, people will not be able to control what those that represent them do. It is high time we took prompt action to ensure that the EU can at long last say, and be proud to do so, that we have democracy and openness and transparency of legislation.
(Applause)
Jean-Pierre Jouyet
Mr President, Commissioner, Madam Vice-President, ladies and gentlemen, I know how attached you are - particularly you, Mr President - to the issues of transparency, and the Presidency is with you on this. It is very important that our citizens can understand how European decisions affecting them are taken - this is the case for European legislation - and we must of course make progress in this area.
I welcome your question because it allows us to examine the difficult subject of public access to legal opinions. This is the subject of the judgment, but our entire transparency policy must be assessed in the light of this judgment.
The Turco judgment is important because it is the first time that the Court of Justice has ruled on individual cases, as you said, of legal opinions and the conditions of their access by the public. In its judgment, the Court issues a reminder of the importance of the openness and transparency of the legislative process to allow citizens to be more involved in decision-making. It also concludes that Regulation 1049/2007 on public access to documents in principle imposes an obligation to disclose the opinions of the institution's legal service relating to the legislative process.
To answer your question, Mr Cappato, the Council took the necessary measures to enforce this Court judgment in early July 2008. The Council executed the judgement and made the document requested by Mr Turco public. It then decided to adapt its practices to the Court judgment, taking into account this principle as laid down in the judgment.
It is true that there are exceptions - although it was the Court itself that defined them in the context of this judgment - concerning opinions that are particularly sensitive or have a particularly wide scope. In any event, as you know, any refusal of the Council must be substantiated.
The Council has received a number of specific requests relating to the legal opinions of the Council's legal service, and has applied the Court's principles. That said, you will not be ignorant of the fact that public disclosure of the internal legal opinions of an institution can affect the legitimate interest of the institutions to request and receive objective and independent opinions. We need to find a balance between the two. This is why the legislator was explicitly keen to protect the confidential nature of legal opinions, and this is a factor that remains in our opinion.
I recognise that these are very technical responses, and I apologise for that. However, these are the official answers given on behalf of the Presidency. Aside from that, I now have an opportunity to review the transparency policy. We need to distinguish between several aspects of this policy. First of all, in terms of direct access to working documents - this is the point of your question - I can confirm that the Council fully applies the provisions of Article 12 of Regulation 1049/2001 and Annex II of the Council Rules of Procedure, which requires a public register to be kept and specifies the arrangements for direct access to Council documents by the public.
I do not wish to bore you with too much technical information or too many figures. However, the fact remains that the figures tell a story, since the register made available to the public contains references to more than a million documents produced since 1999. You will no doubt tell me that quantity does not mean quality.
It seems to me that what matters is the readability and mediatisation of decisions taken by institutions. This is what Mrs Wallström is working on in the context of the legislative procedure, and the inter-institutional agreement on better lawmaking includes general commitments on transparency. Measures have already been taken under this agreement. All Council deliberations within the framework of the codecision procedure are open to the public and the Council regularly holds public debates on important issues that concern the interests of the EU and its citizens.
In order to improve public access to deliberations, the Council also has a website from which provides a link to the video streaming of Council proceedings, which, as I am sure you will agree, is an important point and a particularly exciting one at that.
The Council presidencies also have a role to play. Like the websites of previous presidencies, the French Presidency has invested a great deal in its website http://www.ue2008.fr"
which is multilingual and has web TV with several channels, similar to the one launched, I am glad to say, by the European Parliament.
The third and final point is that we need to be able to satisfy requests for information from the public. To do this, a public information service has also been created - and it is this point that strikes me as the most important - because the area in which we are least well equipped is doubtless the practical information that we give to the public. This is why citizens have a right to be concerned and why they complain that the system is too opaque. This is because we have inadequate resources and websites that are not coordinated enough and do not allow the public to stay up to date on legislation. It is on this last point that the Council must focus its efforts.
These are the points that I wanted to make. Transparency is absolutely key. We have reached an important agreement on communication with the Commission and European Parliament with a view to increasing this transparency, and it is my belief that the interinstitutional negotiations that we had with Mrs Wallström and with the Vice-President of the European Parliament allow us to go forward under the best possible conditions.
This is a collective task and we must now make sense of it. Bear in mind that we have a political ambition to further this transparency, in the information and communication policy, particularly in terms of the practical information about legislation that must be given to citizens. To do this, we must make greater use of new information technologies. I know that this is a concern that is shared by Parliament, by the Commission and by the Council.
Margot Wallström
Vice-President of the Commission. - Mr President, I would like to thank the Honourable Members very much for their questions.
Of course, as we have already heard, this Turco judgement by the Court of Justice is a very important one. The Commission fully agrees with the Court when it recalls the great importance of an open legislative process. Needless to say, we will respect this judgement and take it fully into account in our daily work.
I want to be as clear as possible, but I will have to be rather brief in my replies to your five specific questions. The first one concerns better lawmaking, our interinstitutional relations and Regulation 1049/2001. This Turco judgement concerns access to documents by the public. There is no direct link to our interinstitutional cooperation. For that we have our framework for enhanced interinstitutional cooperation, which I believe works very well. Our two institutions have a good track record of working together in the legislative process to meet the better lawmaking objective.
Regarding your second question on accessible information on current public consultations, I would like to start by mentioning the PreLex database, as we call it in our jargon. The aim behind this database is to facilitate access to pre-legislative documents through a single entry point. In practice, it is a portal containing links to key pre-legislative documents. This database is operated by the Official Publications Office and it is based on information supplied by the Commission. More importantly, it is directly accessible to the public on the Europa server.
Regarding public consultations launched by the Commission, there is also a single access point on the Europa server. That is your voice in Europe. This website facilitates access to consultations and provides general information on the Commission's different consultation processes. It also gives comprehensive information on open public consultations and on related consultation documents and questionnaires. In addition, this access point also gives information on the follow-up, such as consultation reports and published contributions.
Regarding your third question about the TRANS-JAI project, I would simply like to assure you that full public access with dedicated servers - entitled 'public go live' - for the TRANS-JAI web portal is planned for March 2010.
This leads to your fourth question on the transparency principle and the principle of good administration. Of course these principles are closely interlinked. We are always committed to providing as much information as possible to the public. This is particularly the case for procedures which concern citizens and their rights and for the workings of the institutions, which we all know are sometimes not so easy to understand. The Commission's website gives information on its organisation and procedures, and we have an easy-access 'Who is who' directory of the Commission staff and the different directorates-general.
Your last question, number 5, concentrates on the public register of documents and the Ombudsman's draft recommendation in the 'Statewatch' complaint. A public register of documents has been up and running since 3 June 2002, as required by Regulation 1049/2001. Since then, the Commission has also put in place a dedicated register for comitology procedures and a register on expert groups. We are doing our utmost to modernise our internal IT systems but, as you know, unfortunately these things do not happen overnight. But one thing is clear. This is ongoing work. We always take into account the need to increase the coverage of this public register.
More specifically, on the Ombudsman's draft recommendation in this case, the Commission has of course submitted a detailed opinion to him. In that opinion we acknowledge that we still have to increase the coverage of our public registers and we confirm our commitment to further develop our public registers in the interests of enhanced transparency. On one point we were unable to share the Ombudsman's view. He concluded that the Commission should - and I quote - 'include references to all the documents within the meaning of Article 3(a) in the register'. I can share the aim and the ambition of this conclusion, but unfortunately it is impossible to achieve. It is simply impossible to reconcile the wide and imprecise definition of 'documents' in Article 3(a) of Regulation 1049/2001 with one single, fully comprehensive public register. Instead we have to provide the links or make different entry points.
I could, of course, mention that I have made the register of my own correspondence directly accessible on the web, and I could mention other examples of what can be done proactively outside the formal legislation, such as improved registers, greater user-friendliness and accessibility, active dissemination and quicker publishing of documents. But all this is not our topic for discussion today. I am sure we will have other opportunities to discuss these important issues in depth.
Charlotte Cederschiöld
on behalf of the PPE-DE Group. - Mr President, a precondition for the credibility and legitimacy of the EU is a set of working rules on transparency and the protection of data and information.
Transparency in the decision-making process is especially needed when European democracy is questioned. Member States have different experiences. More exchange of experience can lead to better administration in the EU, but also in the Member States. We have come very far since 2001 when the EU legislation on transparency was decided.
Most Member States already have some kind of Freedom of Information Act - Sweden and Finland since 1776, other countries like Ireland since a few years ago. It takes time - you have to respect that - to find common behaviour and attitudes. One national formula cannot be applied over the whole EU. The cultures are too diverse. Open government is essential in a representative democracy. The whole process is influenced by the fact that the digital revolution is transforming our society into an information society.
One important point that has to be better developed in Regulation No 1049 is the balance between confidentiality and transparency. We need an open decision-making process respecting the overriding public interest without infringing institutions' or the individual's rights to confidentiality. Judicial interpretation of complex matters, for example competition cases, cannot be left to the judgement of tabloids.
The Turco judgment can contribute to the development of better lawmaking. Which practical consequences will the Commission and Council draw from the Turco case?
Michael Cashman
on behalf of the PSE Group. - Mr President, as the original rapporteur on Regulation No 1049/2001 I find this a very interesting debate. What I find strange - since I know the participants in the debate here tonight are committed fully to openness and transparency - is that the argument as to why not enough has been done is 'we need more time'. This is unacceptable.
Only 30% of the European population have faith in the European Union. Why? Because they feel absolutely disconnected from what is done in their name. And the amazing thing is that we have a positive story to tell. Why is it that the institution has to be dragged screaming and kicking to the European Courts in order to do the right thing?
We need to do more than just explain. Commissioner Wallström, I know you are as exasperated and exhausted by these arguments as I am, but it is not enough to say we need more time. We actually need to demonstrate to our citizens that we will not only explain to them why we do what we do, but how we do it and the legal advice upon which we operate. Because, unless we do that, we will disconnect people from the European project.
It has been argued here tonight that this is impossible with regard to some matters, owing for example the imprecise definition of 'documents'. It is not imprecise at all. It is in fact well defined. It means all documents held, received or produced by the three institutions or the agencies set up by them. And 'documents' itself is clearly defined. So let us have the courage to have an open register. Not the maze that we have at the moment where, when you go into one register, you do not get access to all of the other registers or all of the other links.
At the moment we have citizens who go into a maze. Let us allow citizens to come into the door of the three institutions and let us expose ourselves to the scrutiny of public opinion. I tell you now that unless we do the right thing, the judgement will be made in the June election in favour of those extreme parties who are not in favour of the EU or the EU institutions. Time is running out. Act now. It is not impossible.
Eva-Britt Svensson
on behalf of the GUE/NGL Group. - (SV) Mr President, the Court of Justice plays a central role in the EU system and the Court has the power to interpret political decisions. When EU legislation is to be interpreted, the Court of Justice's decision prevails, irrespective of the aim of the legislature or the intentions behind the legislation. We saw this in the judgments on Laval, Rüffert and others. In those cases, the Court's decision went against workers.
In the Turco case, on the other hand, the Court's decision is positive. I welcome this, but my basic criticism still holds, that the Court of Justice determines EU policy and the Court always has the last word in any disputes.
In the Turco case I welcome the fact that the Court recognised that citizens' control of the legislative process takes absolute precedence. This is a step in the right direction, but unfortunately I must say that there are very many steps still to be taken before the EU leaves behind its closed working methods where only those on the inside can see the way forward. This is ultimately a question of democracy, participation and transparency.
It is important for account to be taken of the Turco judgment in the current review of the so-called public access regulation.
Costas Botopoulos
(EL) Mr President, the Turco judgment is a significant step forward for law and democracy. It explains the concept of public interest as stated in Regulation 1049/2001 governing public access to documents. This concept is to be interpreted such that the right to broader knowledge of the facts leading to decision-making is considered to be more important than, and to outweigh, internal procedure secrecy whereby a decision is taken.
In other words, according to the Turco judgment, it is important that citizens should not only know - as they have a right to do so - how or why a decision is taken, but also be aware of the documents on which a decision is based, so the documents have to be as widely known as possible.
Now this leads us in tabling today's oral question to call on the departments of the Commission and the Council to take this decision into account. As the President-in-Office has said, let us interpret Regulation 1049/2001 in the light of this new case law.
Some problems might, of course, also arise in connection with what is known as document secrecy, especially in the case of the opinions of the Legal Department. I know only too well, as I am a lawyer. Never let us say, though, that such documents should remain secret in case they cause problems. Instead, I believe that we should call on a radical change in the culture of transparency. Transparency means balance and respect for procedure, not fear of knowledge.
Let me end with one final remark: we really must see the difference here between what happens in practice in the Council and what happens in our own institution. In Parliament, access to meetings and documents is almost total. I think the Turco judgment provides an opportunity to bring the Council into line with this, too.
Mairead McGuinness
Mr President, I want to pick up on this point about 'disconnect' which Michael Cashman rightly raised. Certainly in the Lisbon Treaty debate in Ireland there was a huge disconnect. But let us not blame ourselves here too much, because Member States have a great capacity to blame Europe for things they are uncomfortable with, even though they have agreed to them here. I think it is time we all grew up - all our elected politicians, governments, opposition and everyone in this House - and tell the truth.
I am dispirited to read this magazine this week where an unelected, unaccountable member of a wealthy elite is giving out about the unelected elite in Brussels. He has some cheek! But unless we do what Michael Cashman says and tackle him and his ilk upfront, the European elections in June will be a disaster for the people of Europe, and it is about time those of us who believe that said it loudly.
Anneli Jäätteenmäki
author. - (FI) Mr President, this court decision is important and categorical. It clearly shows that the legislative process in the EU must be under the democratic scrutiny of the people and that protecting the institutions in the decision-making process is of secondary importance. It is a clear argument.
Against this background, I am really rather disappointed with the responses. When I heard the Council's response, it was emphasised several times that transparency and openness were important, but there was not much else. What has been done? The Commission, meanwhile, has asked for more time.
The attitude the EU institutions have adopted towards the court decision I think is really interesting. What if our citizens were to adopt the same attitude towards the court decision as the Commission and the Council and did not care about the decision at all? It just would not happen.
Marco Cappato
Mr President, ladies and gentlemen, the Council Presidency has mentioned the figure of a million published documents. When it comes to access to documents, there must be quality as well as quantity, but it is not just about quality. If we are going to be honest, there is a problem with the type of documents: meeting documents or documents that accompany the decision-making process.
It is this that is missing today. I will give you an example: Coreper I documents, which are so difficult to find, or documents on foreign policy, which are treated like diplomatic documents, and so are not in the registers. These are all documents that are vital for learning about the decision-making process.
I have only given you one example in the short time available to me. In view of the answers that we have been given, I believe that this should also be seen more as an opportunity than a risk for the functioning of the European institutions.
Jean-Pierre Jouyet
Mr President, Commissioner, ladies and gentlemen, what emerges clearly from our debate is that we must truly increase transparency and communication, because there is indeed a lack of understanding, as you have pointed out, among our citizens about how Europe works.
Better transparency and better communication go hand in hand. As I said, this is the basis on which we signed a political agreement with Mrs Wallström and Mr Vidal-Quadras to communicate better on the ground. Mr Cappato and Mrs Jääteenmäki are right that we must be more transparent and explain how we work. This is why the Council will make a special effort with new technologies.
Even after reading the arguments given to me, I agree with Mr Cappato about the fact that producing millions of documents does not mean better transparency. What matters is providing documents that people ask for, and documents that are good quality. The COREPER I documents that you mentioned, for example, are available online. These have not always been ready in time due to a lack of technological resources. Now we have this technology and we will ensure that we resolve the problem you raised.
To be honest, we must also strike the right balance with the legal basis, with genuine transparency and with the proceedings actually involved. There are a number of proceedings and diplomatic issues that are actually quite difficult and where freedom of speech, of expression, of decision-making, must be guaranteed. I may seem too conservative to you, but I think that we also need to address this balance.
The French Presidency has embarked upon a review of Regulation 1049/2001 and we need to act quickly. Mr Cashman is absolutely right in this respect. With his help and coordination we are acting swiftly, and we hope to make solid progress by the time the French Presidency comes to an end.
As I said, we need to make sure that, as Mr Cappato pointed out, we put quality before quantity, because there is such a thing as too much information. Citizens are then faced with the problem of sifting through information. This also exists at European level. We must be able to freely help citizens sift through information.
What does this mean? It means, as I said in my presentation, ensuring that citizens are fully informed about practical information, about their rights, about the outcome of decisions, about the way in which these are taken and about the legal basis. From that point of view, there is no doubt that we need to reflect on the resources available to the Council.
Within the Commission, I think you have been confronted with the same situation when, for example, you have to explain the legal basis for decisions, particularly concerning SMEs, but you only have one or two people in the Member States or institutions who can answer these questions, and those people are on holiday. The end result is that citizens and small businesses are forced to wait two or three months before they receive a response. To me this seems equally as serious as access to official documents.
Finally, we need to give our debates political meaning. At a time when we are preparing for the European elections, I know that the European Parliament is fully committed to this, and you can count on the French Presidency to ensure that this duty of transparency, this duty of explanation, this practical and concrete obligation is applied because, if we do not, and this is where I agree with Mr Cashman, it will be the extremists who win the next European elections, and this is something that we do not want.
Margot Wallström
Vice-President of the Commission. - Mr President, first of all, the Turco judgment will be respected and implemented by the Commission too, of course. The Court judgment actually said that in this case the Council was wrong, that the Council has to correct its procedures, and I am sure that the Council will follow the judgment.
That is the starting point of this discussion. However, it has been partly confused with the discussion we had on Regulation No 1049/2001. The Turco judgment is one thing, and then there is Regulation No 1049/2001. As you know we presented a proposal and are in the process of dealing with Regulation No 1049/2001 and how that regulation should ultimately be designed.
I think there must also be some confusion about what I said. I did not ask for more time. I was explaining the fact that the modernisation of our information technology tools has to be done continuously, it cannot be done overnight. We already have a register. We are complementing the register with a number of things, such as comitology and all the expert groups. However - and I was very honest in trying to answer one of the five questions - I am not convinced that the best thing is to have one register. It is like having a telephone book for the whole of Europe instead of trying to have different national telephone books.
Are you sure that this is better, to have one huge telephone book for the whole of Europe instead of having different entry points? Because the definition you asked for today in your specific question is the definition which is in a certain paragraph, which also includes audiovisual form. This is a very wide definition. Are you sure it will be helpful to citizens to have one huge entry point for all of this?
Let us discuss that, but I am not sure that there is one simple solution like that. So we do not share that view. Modernising our tools in this area is a constant thing that we have to discuss all the time, because things happen so quickly. But we seem to share the same objectives of having openness and transparency and access to documents. That is the starting point and that is what we will continue to fight for and we will of course follow the Turco judgment.
On the specific issue where I mentioned that we have a target date for 2010, that is on a very specific project and I was just giving you the date for this. But in general we do not and should not need to ask for more time. This is something we have to do on a daily basis: to provide more openness, more transparency, to serve citizens because they need to know, and it has to be part of the culture and the attitude of all the institutions.
Along with your fellow Members I was able to applaud your good speech, Mr Cashman, because it contains the starting point for what is required now: to open up, to create access. I think that having our deliberations in the open will also help people to make their own informed judgment of what is going on and of why we have so many important things on our agenda.
President
The debate is closed.
