The rules for non-disclosure of internal documents of the Council of Ministers of the European Union, including documents concerning new European legislation, are contrary to the Lisbon Treaty. That is what the parliamentary counsel concluded in an advice to the House of Representatives. A strong information position for MPs is one of the spearheads of the House of Representatives, hence the House asked the parliamentary counsel to prepare a legal analysis of public access to internal Council documents. This was done on the basis of the findings of the rapporteur on the provision of EU information, Mr Pieter Omtzigt MP (CDA).
Many internal Council documents are not disclosed, on the basis of internal rules of the Council of Ministers of the EU. This holds true, for instance, for new legislation on counterterrorism, migration or international trade agreements. According to the parliamentary counsel the Council must decide for each internal Council document whether it should remain confidential or can be made public. At present, it is laid down in the internal rules that so-called "LIMITE" documents (documents intended for internal distribution) are always confidential.
Internal EU rules held up to the light
For example, the House of Representatives receives internal negotiation documents about EU legislation as confidential information only; MPs are not allowed to quote from these documents during debates. According to a report from the standing committee on European Affairs on the provision of EU information this hampers the House in adequately scrutinizing the Brussels decision making. Neither can citizens follow the negotiations. That is why, in January 2017, the House of Representatives asked the parliamentary counsel to hold the EU rules concerning the disclosure of internal Council documents to the light. The parliamentary counsel concluded that these internal EU rules are no longer legally sustainable, in the light of the case law of the European Court of Justice. The parliamentary counsel also examined whether the House has the possibility to institute legal proceedings against the rules. The conclusion is that the House does not have the possibility to do so. However, the Dutch government could argue in favour of amending the rules in Europe.
Increasing the transparency
In addition, the parliamentary counsel sums up a number of possibilities to increase the transparency of the European legislation process. For instance, an individual MP can make a request for access to internal Council documents on the grounds of the EU-regulation regarding public access to EU documents, the European equivalent of the Dutch Government Information (Public Access) Act. Moreover, MPs can raise the issue with their colleagues of the European Parliament or the European Ombudsman.
Rapporteur on the provision of EU information
Mr Pieter Omtzigt, MP for the Christian Democrats (CDA) is rapporteur on the provision of EU information on behalf of the standing committee on European Affairs. In a position paper Mr Omtzigt has brought forward four proposals to enhance the provision of information on European dossiers.
On 16 November 2016, the standing committee on European Affairs had a debate with Mr Bert Koenders, minister of Foreign Affairs, about the report. It was agreed that henceforth the House is allowed to consult external experts about confidential EU documents and that the Cabinet will bring up the need for more transparency about EU legislation in Europe.