Emilio De Capitani — The lone legal battler fighting ‘confidentiality by default’

Thousands of documents are produced and handled by the EU institutions daily — yet only a portion of those end up in the public register of documents, due to a culture of secrecy rooted in the EU’s tradition of behind-closed-doors decision-making. 

Transparency veterans such as Emilio de Capitani, an Italian former senior official in the European Parliament known for his work on transparency and civil liberties, are trying to tear down this model.

Access to documents is guaranteed in Article 42 of the EU’s Charter of Fundamental Rights and Article 15 of the Treaty on the Functioning of the European Union (TFEU). Regulation 1049/2001 was meant to operationalise and implement these constitutional provisions and increase the openness of the European policy-making machinery — but over time, this piece of legislation has been eroded by delays, loopholes and broad exemptions.

Legal battles in European courts and complaints to the European Ombudsman by rights groups, MEPs, academics, journalists, and ordinary citizens, have sought to ensure compliance with EU law.

And a familiar face in those EU courts is De Capitani, who tried to become the European Ombudsman last year. De Capitani has regularly challenged EU institutions that refused to provide or hindered access to documents. 

Transparency scored a win in 2023, when the General Court slammed the EU Council for blocking access to working group documents, ruling in favour of De Capitani’s legal challenge, paving the way for others to access these technical documents.

The former parliament official also brought an action before the General Court against the European Parliament's decision to deny access to the 'trilogue' negotiations in 2016, and won — making a legal case for the publication of the infamous 'fourth column' negotiating texts. Still, he regrets that they are accessible only on request. “Delaying accessibility hinders the implementation of the principle of participative democracy,” he tells EUobserver.

Journalists frequently encounter long delays when navigating the freedom of information (FOI) process — an issue raised by the EU Ombudsman, who found in 2023 that the European Commission missed deadlines in 85 percent of access to information requests.

Together with the NGO Access Info and Päivi Leino-Sandberg (a professor at the University of Helsinki), De Capitani recently launched a legal challenge against the commission, arguing that its new rules of procedure on access to documents violate EU law.

“The EU institutions still consider citizens more as a 'public' to be entertained and potential followers, rather than true citizens”

The principle of legislative transparency in Article 15.2 of the TFEU is often underestimated, the 78-year-old former parliamentary official says, slamming his former employer and co-legislator for following secrecy practices installed in the European Council.

“Fifteen years after the Lisbon Treaty, the European Parliament still seems unaware of this Copernican revolution and prefers to follow the council’s practice of limiting access to legislative preparatory works under the pretext of protecting the decision-making process,” he says.

Breaking down a culture of what De Capital terms “confidentiality by default” is not an easy task. However, concerns are widespread and rising that transparency within the EU institutions has been significantly eroded over the past few years.

“Transparency has indeed worsened,” the former parliament official tells EUobserver, arguing that “the EU institutions still consider citizens more as a 'public' to be entertained and potential followers, rather than true citizens.”

In this context, the retired lawyer argues that the commission’s proposal to limit access to documents in the name of information security (‘INFOSEC’) is a “true scandal”. The so-called INFOSEC proposal has raised alarms among transparency advocates, who see it as a major step backwards in the decades-long battle to promote EU openness and democratic accountability.

And looking ahead, De Capitani warns of the lack of a legal basis for aligning national legislation on access to documents, which turns the implementation of EU policies at the member-state level into a black box.

Last year alone, De Capitani filed over 60 access-to-documents requests. He says the European Parliament claimed most were already in its public register, while the Council eventually released the documents but didn’t publish most of them publicly. 

This means that documents are scattered across different platforms or are only accessible to those who ask. But De Capitani argues they should all be published on the EU Law Tracker or the parliament’s Legislative Observatory.

“Without a common informational platform, how can EU media and civil society interact in a timely manner with the EU institutions?” he wonders. The reality is — they (we) can’t.

“The institutions have spent a lot of public money creating a platform to discuss the future of Europe — maybe it would make sense to expand its scope to include the present as well,” he adds, referring to the Conference on the Future of Europe, the EU-wide initiative launched in 2021 to engage citizens in shaping the bloc’s long-term vision, but which turned into something of a damp squib.

One of those citizens’ proposals called for “ensuring transparency of decision-making by allowing independent citizens’ observers to closely follow the decision-making process, guaranteeing broader right of access to documents”. But if transparency was the promise, it seems the EU is still keeping it well-hidden.

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