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Centre Charles De Visscher pour le droit international et européen

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Institut pour la recherche interdisciplinaire en sciences juridiques et criminologiques

Centre Charles De Visscher pour le droit international et européen

CJEU, 29 October 2025, De Capitani v. Council of the European Union, T-590/23, EU:T:2025:1001

cedie | Louvain-la-Neuve

cedie
15 December 2025

Reasserting Transparency Standards in EU Legislative Procedures in the De Capitani v. Council Saga

New Pact on Migration and Asylum – Transparency Principle – Access to Documents – EU Legislative Process – Democratic Accountability.

This case note analyses De Capitani v Council (T-590/23), in which the General Court reaffirmed the strict standards governing access to legislative documents under Regulation 1049/2001. The request concerned internal Council documents relating to two central files of the Pact on Migration and Asylum – the proposed Regulation on Asylum and Migration Management and the revised Eurodac Regulation – both due to enter into force in June 2026. The Court held that the Council must provide specific and evidence-based justifications when invoking the decision-making exception, rejecting generic claims of negotiation sensitivity. While the judgment strengthens the constitutional basis for legislative openness, it also exposes the Council’s continued reliance on opaque internal practices. Thus, the decision consolidates the transparency acquis but also underscores the limits of judicial review in countering deeply rooted institutional resistance.

Fatima Zahra El Harch

On 29 October 2025, the General Court issued its ruling in De Capitani v Council (T-590/23), reaffirming the transparency principles of EU legislative procedures under Regulation 1049/2001. The Court imposed a higher standard on the Council when invoking exceptions to disclosure, requiring concrete and foreseeable evidence that specific documents would harm the European Union’s decision-making process. This ruling affirms the constitutional foundations of the transparency principle embedded in the EU Treaties and the Charter of Fundamental Rights, which are essential to the Union’s democratic legitimacy.

The significance of the judgment is heightened by the fact that the documents at issue concerned two core legislative proposals of the new Pact on Asylum and Migration – namely the Regulation on Asylum and Migration Management and the revised Eurodac Regulation – set to enter into force in June 2026. Given the sensitivity of this policy field and the rights at stake, as well as its prominence in the political debate ahead of the 2024 European elections, the applicant sought access also to allow voters to understand the Council’s position on these pivotal reforms. 

However, the Court’s judgment also reveals a culture of confidentiality within the Council that resists transparency. While judicial review strengthens transparency norms, substantive reform remains limited. This case thus forms part of a broader body of jurisprudence that advances the constitutional status of legislative transparency as a means of enhancing democratic accountability in EU governance.

A. Facts of the Case and Ruling

1. Facts of the Case

The case is part of an ongoing dispute between Mr. Emilio De Capitani, a former Secretary of the European Parliament’s Civil Liberties Committee (LIBE), and the Council of the European Union concerning access to documents drawn up within the framework of ongoing EU legislative procedures. On 6 March 2023, under Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents, the applicant submitted a request for access to 33 internal Council working documents, known as “WK documents”, which were circulated among Member States’ delegations during various legislative negotiations. These documents, containing Member States’ observations and political inputs on evolving compromise drafts, formed the backbone of the Council’s internal coordination ahead of interinstitutional trilogue negotiations. 

The Council disclosed 27 documents in full and three in partially redacted form but refused access to three others. Relying on Article 4(3) of Regulation 1049/2001, the Council argued that releasing these documents, at such a preliminary and sensitive stage of negotiations, would expose delegations to external pressures, jeopardise the trust required for consensus building, and thereby seriously undermine its decision-making process. Two of the three undisclosed WK documents were related to two key legislative proposals within the Pact on Migration and Asylum: the proposed Regulation on Asylum and Migration Management and the revised Eurodac Regulation. On 14 July 2023, the Council confirmed its refusal at the confirmatory stage and did not address the applicant’s separate contention that the documents already disclosed should have been proactively published in the Council’s public register pursuant to Articles 11 and 12 of Regulation 1049/2001. 

2. The Ruling 

The General Court annulled the Council’s decision refusing access to three internal working documents, emphasising the strict application of Regulation 1049/2001’s principles on public access to documents. The Court held that the Council failed to provide sufficiently precise and concrete evidence demonstrating a real and foreseeable risk that disclosure would seriously undermine its decision-making process (§§ 101–106). The Court rejected the argument that the preliminary or ongoing nature of legislative negotiations justified refusal of access, clarifying that such an exception must be narrowly interpreted and substantiated by concrete facts rather than general assertions about sensitivity (§ 106). The mere fact that the documents contained preliminary or intermediate comments from Member State delegations or reflected ongoing discussions did not alone establish a risk to the decision-making process (§ 110).

Furthermore, the Court pointed out that the Council’s refusal decision lacked detailed reasoning about the specific content and context of the documents, providing only general and abstract claims without addressing how disclosure would impair the legislative process (§ 119). The Court found no tangible evidence that access would undermine trust between Member States or impact negotiations adversely (§§ 112–114). 

Concerning the applicant’s claim about the Council’s failure to publish accessed documents in its public register, the Court concluded that this issue did not constitute a challengeable act under judicial review, thereby dismissing this claim as inadmissible (§ 58). The Court found that the contested decision concerned only the refusal to grant access to specific documents and did not include any explicit or implicit decision on the publication of those documents in the register. Furthermore, silence or inaction by the Council on publication could not be construed as an implied refusal. The Court also clarified that the right of access to documents under Article 21 of Regulation 1049/2001 does not include the right to have documents published in the public register, which is governed separately under Articles 11 and 12 of the Regulation and lacks direct enforceability through an action for annulment (§§ 42–58).

B. Discussion

1. Background: Foundations and Development of EU Legislative Transparency

The judgment De Capitani v. Council (T-590/23) is the latest in a series of cases that have become the primary means through which the General Court has clarified transparency obligations in the legislative process of the European Union over the past decade. Notably, Mr. De Capitani has brought three cases, and his sustained litigation strategy has played a central role in shaping the Court’s approach to access to documents in the context of trilogues and Council preparatory work. This trilogy is unified by the applicant’s challenge to the systemic opacity of trilogue negotiations and Council preparatory work and the Court’s repeated assertion that the principle of openness applies to all legislative activities, regardless of the informal or politically sensitive nature of the procedures through which compromises are made. 

Before examining the contribution of the present judgment to this judicial saga, it is useful to recall the normative foundations of the transparency principle in EU law. The right of access to documents is primarily based in Article 15(3) of the Treaty on the Functioning of the European Union (TFEU), which grants every Union citizen and any natural or legal person residing in the EU a general entitlement to access the institutions’ documents, regardless of medium. This right is reinforced by Articles 41 and 42 of the Charter of Fundamental Rights, which define transparency as an aspect of good administration and a democratic right based on Article 10(3) of the Treaty on European Union (TEU). As has been widely noted in the literature, the European Union is an organisation “founded on the principle of transparency”. This principle has been progressively affirmed since the Maastricht Treaty and elevated to a general treaty objective with the Lisbon Treaty’s entry into force (on the topic see, ex multis, Paul Craig).

Today, transparency is established in Articles 1(2) and 10(3) TEU, Article 15 TFEU, and Article 42 of the Charter. The Court of Justice has consistently interpreted primary and secondary law considering this overarching constitutional mandate, emphasising transparency as a structural condition for legitimacy, efficiency, and democratic accountability (as affirmed in Schecke [joint cases C‑92/09 and C‑93/09], among other cases). The operational regime is established in Regulation (EC) No 1049/2001, which sets out the principles, conditions and limits governing the public’s right of access to institutional documents. Because the Regulation pursues the objective of ensuring the widest possible access, the Court has consistently held that the exceptions set out in Article 4 must be interpreted and applied restrictively, and only where institutions demonstrate a specific, genuine and reasonably foreseeable risk of harm. This jurisprudence – developed through cases such as Sweden and Turco (joint cases C‑39/05 and C‑52/05), and De Capitani – anchors the strict scrutiny applied in access to documents cases. 

Against this legal and constitutional background, the first two De Capitani judgments mark decisive moments in the judicial articulation of legislative transparency. The first judgment (De Capitani I, T-540/15) held that four-column trilogue documents qualify as legislative documents within the meaning of Article 15(2) TFEU and Regulation 1049/2001 (§ 75). By rejecting the depiction of trilogues as informal and politically delicate arenas immune from transparency obligations, the Court recognised their centrality in the ordinary legislative procedure and insisted that they fall squarely within the principle of widest possible access. This ruling challenged long-standing administrative practices and dismantled the institutional presumption that trilogue negotiations are intrinsically confidential (see Francesca Martines).

The second judgment (De Capitani II, T-163/21) extended this reasoning to internal Council WK documents. Although often portrayed as merely technical papers, WK documents structure the Council’s internal deliberations, shape its negotiating posture, and influence the evolution of legislative compromise (§§ 36–38). By bringing these materials within the scope of legislative transparency and subjecting refusals of access to rigorous harm-based scrutiny, the Court exposed and corrected a structural blind spot in the chain of legislative accountability. It has been emphasised that WK documents often constitute the only written evidence of member state positions within the Council. Their opacity has long impeded meaningful democratic oversight of the legislative process (see Meijers Committee).

2. Reaffirming Transparency: The Constitutional and Pragmatic Impact of De Capitani III on EU Legislative Openness

It is within this jurisprudential continuum that the present judgment, De Capitani III (T-590/23), must be understood. Its principal contribution lies in reaffirming that institutional reliance on the exception for the protection of the decision-making process must satisfy a heightened standard of reasoning. Generic assertions concerning negotiation sensitivity or the need to preserve a “space to think” are no longer adequate. To deny access lawfully, the Council must demonstrate how disclosure of the specific documents at issue would concretely and foreseeably undermine ongoing deliberations. In this respect, the Court discourages recourse to broad functionalist arguments invoking efficiency, informality or external pressure as quasi-automatic grounds for secrecy (on this, see Novak, Hillebrandt). The judgment thus further solidifies the principle that transparency constitutes the normative baseline for legislative materials, not a discretionary privilege contingently granted by the institutions. This tightening of the legal standard is particularly significant considering the factual and political context of the dispute. 

The applicant emphasised that disclosing the documents in question would have allowed EU citizens to understand the Council’s position on migration, a highly salient policy area identified as a central priority of the Commission and especially consequential in the lead-up to the 2024 European elections. The applicant further argued that the stalemate created by Parliament after the Council failed to adopt a position on the amended proposal for the Eurodac Regulation and other migration-related legislative files illustrates how legislative transparency is essential to the democratic process. These elements underscore that the Court’s clarification of the legal test is instrumental to safeguarding meaningful democratic participation in areas of acute political relevance, not only doctrinal. The constitutional significance of this development becomes especially evident within the post-Lisbon Treaty framework. Articles 10 and 11 TEU redefined transparency as a foundational dimension of the legitimacy of Union decision-making. Yet, the increasing reliance on trilogues, together with the widespread use of informal internal documents that remain inaccessible to the public, has progressively concentrated decisive political choices within restricted negotiating arenas operating under conditions of minimal public scrutiny. Francesca Martines has observed that trilogues have evolved into an interinstitutional convention that performs a quasi-constitutional function in the legislative process, despite lacking formal Treaty codification. Their informality has not prevented them from significantly influencing both the substance and the timing of legislative outcomes. Against this backdrop, the Court’s jurisprudence may be understood as an attempt to ensure that the opacity inherent in such informal mechanisms does not erode the democratic foundations of the Union’s legislative procedure.

The significance of the De Capitani litigation extends beyond the legislative sphere. A comparison with recent cases concerning executive transparency, such as the Stevi and New York Times v Commission (“Pfizergate”) judgment, reveals a common pattern. In both domains, judicial review has emerged as a crucial mechanism for counterbalancing institutional tendencies toward secrecy. As has been argued, litigation has become a vehicle through which legal accountability triggers broader political accountability, compelling institutions to confront the consequences of their information management practices (see Maria Patrin). Nevertheless, the limitations of judicial review remain evident. The Court adjudicates refusals of access on a document-by-document basis, without authority to mandate systemic changes to the Council’s record-keeping or proactive publication policies. 

As a matter of fact, the refusal to acknowledge any challengeable omission concerning the register underscores the persistent fragility of proactive transparency within the current regulatory framework. Institutional compliance, moreover, continues to be largely minimalistic and formalistic. Following its earlier judicial defeats, the Council adjusted certain operational practices while preserving the core of its long-standing culture of secrecy (as will be discussed below). A similar dynamic emerged in the aftermath of the Pfizergate case, when the Commission responded not by embracing broader openness but by amending its internal rules so as to narrow the very definition of what constitutes a “document” (on this topic, see Access Info Europe).

Despite these constraints, the cumulative effect of the De Capitani jurisprudence is nonetheless significant. The trilogy of Court’s decisions articulates a doctrinal landscape in which legislative transparency is treated not as a managerial consideration but as a constitutional requirement inherent in the Union’s democratic model. It confirms that the EU institutions cannot shield politically consequential preparatory materials behind classificatory devices or by appealing to informality (for more on democratic accountability, see Przeworski, Stokes and Manin). At the same time, it contributes to a gradual realignment of the transparency regime, in which judicial interpretation amplifies the democratic ambitions embedded in the Treaties. In this respect, De Capitani III stands as a further consolidation of a broader constitutional project: ensuring that the making of Union legislation becomes accessible to public scrutiny, even when conducted through informal negotiation structures. While the judgment may not impose radical institutional restructuring, it advances a principled understanding of openness that, when combined with sustained legal mobilisation by applicants and civil society actors, may gradually reshape the institutional culture governing EU lawmaking.

3. Concluding Remarks. Transparency in theory and practice: judicial reaffirmation amid institutional resistance

The General Court’s judgment offers a firm restatement of the transparency obligations arising from Regulation 1049/2001 and requires the Council to provide precise, evidence-based reasons when invoking the decision-making exception. Yet, the broader systemic implications of this ruling call for a more cautious and critical assessment. 

The Court’s formulation of the need to demonstrate a real and foreseeable risk to ongoing deliberations – rather than relying on speculative or unparticularised claims of sensitivity – resonates with the constitutional architecture established by Article 15(2) TFEU and by the Charter, both of which establish openness as a foundational condition of the Union’s democratic legitimacy. The requirement of specific, concrete and individualised reasoning is not merely a procedural refinement, but a normative constraint designed to limit the elasticity with which some EU institutions have historically interpreted exceptions to transparency.

Yet, despite the progressive consolidation of this jurisprudential interpretation, the Council continues to operate according to an implicit presumption of confidentiality. This presumption is not merely attitudinal but normatively embedded in the Council’s own internal arrangements. According to the Council’s Internal Guidelines, the transparency requirement laid down in Article 16(8) TEU – those debates on legislative acts be public – applies only to formal ministerial meetings. By contrast, “informal” ministerial meetings fall outside the scope of public access, and, more significantly, the same exclusion applies a fortiori to the meetings of Coreper and the Council’s numerous preparatory bodies, irrespective of their role in shaping the substance of legislative decisions. In practical terms, citizens are denied access to the arenas where the decisive stages of legislative negotiation occur, even though, from a constitutional perspective, the Council constitutes a single legal entity, and preparatory bodies should not be treated as functionally or normatively distinct.

This disjunction reveals a persistent and unresolved tension at the heart of the Union’s constitutional order. On the one hand, the Treaties impose a positive obligation to conduct legislative processes as openly as possible; on the other, the Council continues to invoke exceptional regimes under Regulation 1049/2001 to shield preparatory materials from public scrutiny. Such reliance on confidentiality underscores an underlying reluctance to fully internalise the democratic commitments enshrined in the post-Lisbon framework. The judgment’s characterisation of the Council’s reasoning as “general and abstract” (§ 119) reflects not merely a defect of justification, but a symptom of a broader institutional inertia.

While the Court’s intervention strengthens procedural safeguards, it does not – and structurally cannot – neutralise the administrative and political logics that perpetuate opacity. This raises a more fundamental question regarding the capacity of judicial review to effect systemic transformation in a domain where institutional culture, operational practices and political incentives remain deeply resistant to change. In this respect, the judgment should be understood as both necessary and insufficient: necessary in reaffirming the constitutional hierarchy of transparency norms, yet insufficient in overcoming the long-standing modes of governance that continue to delimit their practical reach. Absent concomitant legislative and institutional reforms designed to align the Council’s internal procedures with the transparency obligations under the Treaties and the Charter, judicial pronouncements risk assuming a predominantly symbolic character. 

Thus, the judgment exposes the structural limits of adjudication in counteracting institutionalised opacity. It points toward the need for a more holistic strategy – one that integrates judicial scrutiny with broader policy, administrative and normative reforms – if the Union is to realise the model of transparent and democratically accountable lawmaking envisaged by its constitutional framework. These concerns are particularly significant in the fields of migration and asylum. Informal and extra-procedural practices have become standard modes of governance, distancing decision-making from democratic oversight and exacerbating risks to the fundamental rights of those affected.

C. Suggested Reading

To read the case: CJEU, 29 October 2025, De Capitani v Council, T-590/23, EU:T:2025:1001

Case law:

Doctrine:

To quote this case note: F. Z. El Harch, “Reasserting Transparency Standards in EU Legislative Procedures in De Capitani v. Council saga”, Cahiers de l’EDEM, November 2025.