Back in April, the General Court found the Council guilty of withholding an opinion by its own legal service that raised concern about the rule of law conditionality. Now the Council has announced it will appeal the ruling by presenting the same arguments already rejected by the court.
Law professor Laurent Pech, who brought the case before the Luxembourg EU court, is positive that the Council will lose once more.
He told Politico: “I am pleased to see the Council appealing the General Court’s judgment in my case as this will give an opportunity to the Court of Justice to adopt the General Court’s reasoning and in doing so, adjust its previous case law to the new constitutional framework organised by the Lisbon Treaty.
“It is time for the Council to accept that transparency must be the principle when it comes to the EU’s ordinary legislative procedure and not simply pay lip service to this principle.”
The legal opinion withheld by the Council was from 2018, when the rule of law conditionality provision was still a key element of the Commission’s proposal for the current Multiannual Financial Framework.
The top EU court’s ruling piles pressure on the Council – limiting the options for them to classify legal advice by its own lawyers as secret.
In its appeal application, the Council wrote: “Given the wide implications of this judgment for the work and the decision making process of the Council, an appeal against the General Court’s judgment before the Court of Justice would appear to be justified.”
But the court had already said that any impact on decision-making was “purely hypothetical.”
The Council was not the first EU institution to be found guilty of lacking transparency this year.
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The Ombudsman found the Commission failed to provide full transparency and accountability on the collection of Covid data from member states throughout the pandemic.
When the row broke out with AstraZeneca over demands to make its vaccine contract public, “suddenly the Commission was calling for transparency,” Ms O’Reilly said.
She added: “They saw the value in transparency because it was in their interest.
“So they need to perhaps spend as much time and attention looking at the public interest when releasing this.
“It can’t be the institutions who control the tap … the public interest has to override everything.”
In the report, she continued: “Too often, national authorities struggled to report complete data to the ECDC or did not even answer its appeals for important data.
“It also had no comprehensive set of data on hospital and other critical medical resources across the Member States.
“Transparency and accountability should be the bedrock of an institution that has a role in protecting public health.
“Much more should have been done to communicate with the general public to explain how and on what scientific evidence the ECDC made its assessments.”