De la « capacité de négocier »: un concept opaque peut-il justifier une transparence limitée du processus législatif européen ?

The legislative process of the European Union is based on negotiation within and between legislative institutions. At the same time, the institutions face increasing demands for transparency in their work. The Court of Justice of the European Union and the European Ombudsman regularly have to assess cases in which the institutions have refused to give access to legislative documents. A common argument for not releasing a document is that the “capacity to negotiate” is hampered by too much transparency. The purpose of this paper is to explore what it is about this “capacity to negotiate” that impedes transparency. The article employs two methods. First, an analysis of the case law and the decisions of the Ombudsman shows that “capacity to negotiate” is an ambiguous concept that does not encompass anything specific enough to understand how it is incompatible with legislative transparency. Secondly, the analysis of negotiation practices in the Council of the European Union reveals that they are based on a strong asymmetry of information between negotiators: for strategic reasons, they tend to conceal their interests. It is in this sense that the “capacity to negotiate” is intrinsically incompatible with transparency. The conclusion asks about the conflict between these practices and the democratic demand for transparency.