CM2515 Meijers Committee on ‘Working Documents’ and transparency of the legislative process in the Council of the EU

In spite of successive clarifications offered by the case-law of the Court of Justice (CJEU, hereinafter: the Court), the question of which legislative documents are or are not to be made public has been controversial for a long time in the Council of the EU. The introduction of the ‘Delegates Portal’ in 2015 replaced all categories of informal Council documents with the ‘working document’ (WK) label. The lack of full transparency with regard to this document category undermines the comprehensiveness of the Council’s register, as well as previous efforts of the institution for greater transparency, such as the creation of the EU law tracker. Considering that the Council has over 150 preparatory working parties and committees, WK documents are highly important both for the activities of the institutions and for citizens to grasp the nature of decision-making processes, particularly those of a legislative nature. This aspect has been highlighted multiple times by the Court, in line with the obligation of the Council to disclose documents related to the legislative process (Article 15(3) TFEU). This note examines the current state of transparency in the legislative process in the Council, highlighting the potentially detrimental consequences of the use of WK documents for legislative transparency. Based on its analysis, the Meijers Committee offers five recommendations for enhancing transparency, democratic legitimacy and alignment with the principle of good administration:  

1. The Council should include information on its recourse to WK documents in the annual report of the Council on the implementation of Regulation 1049/2021, including at least overall annual numbers of WK documents and the proportion of WK documents relating to legislative decision making;
2. The Council should enter each individual WK documents in its register, rather than in lists of distributed WK documents;
3. The Council should invite COREPER to establish criteria for labelling a certain document as WK rather than as ST documents, relating inter alia to permissible purposes and duration of application and envisaged relation to Regulation 1049/2001, in order to prevent overuse of the former label;  
4. The Council should invite COREPER to require that each WK documents is accompanied by a short justification for their classification;
5. The Council should enable better follow-up on access to documents judgements through systematic implementation reports.