We won Case T-201/21 Covington & Van Vooren vs European Commission. But why did we litigate? Why did we ask to see how the member states voted on an EU implementing act? A short background story, worth a few minutes of your time if interested in the EU as a democracy…
In 2017, the European Food Safety Authority (EFSA) adopted an opinion expressing safety concerns over Hydroxy Anthracene Derivatives (HADs). HADs occur naturally in plants like cabbage, sprouts, rhubarb, etc. They taste bitter and are a defence mechanism of the plant against bugs. In humans, in high concentrations HADs have a laxative effect.
In 2018, the Commission starts work on banning foods with high concentrations of HADs and laxative effect, through a draft Implementing Act. To be adopted, these kinds of administrative Acts require a positive vote by a Committee composed of the 27 EU Member States.
By 2020 the draft Implementing Act had expanded in scope and would ban certain HADs altogether. The ban itself is being challenged in four parallel annulment proceedings (with hearings taking place over the next few weeks), but that’s another story.
Not all member states agreed with the expanded scope of the draft implementing act. There was quite some back and forth in the Committee, but by 5 November 2020, the Commission pushed for a vote, using the written procedure (remember that, this matters).
The voting sheet for November 2022 shows that 22 member states voted in favour and five member states against. This means that a Qualified Majority Vote (QMV) had been reached, although a “blocking minority” against the draft Act was just a hair away. And so the draft ban became law in April 2021.
But for those who’d closely followed the process, something was off. Through informal conversations, it seemed that at least one member state had abstained? Why did this not show up in the voting sheet? And could this abstention have tilted the blocking minority the other way- so that the Act would not have been adopted? These questions were why we filed the access request under the EU Transparency Regulation. We wanted to see which member states voted in what way, to double check if and how QMV had indeed been reached. Then the plot thickened. We were refused access to 21 votes in favour, not 22 as indicated on the voting sheet. So this suggested that there was an abstention counted as a vote in favour- but by which country? When our request for access to the member states twenty-two individual votes was refused, we decided to litigate and brought Case T-201/21.
Public vote = democracy 101
In T-201/21, we had argued that the vote of a member state in an EU context is intrinsically public. As the exercise of sovereignty by a country, leading to legally binding acts, it cannot be considered an “opinion” that the Commission can refuse to disclose. Unfortunately the General Court did not accept our argument. The Court considers that a vote in comitology is “preparatory” to the final implementing act, and therefore access can be refused. But the Court did agree there is no general presumption that the member states’ votes are confidential. For the Court, any refusal to release the votes should be duly justified as to how it negatively impacts the decision making process. Let’s see what happens next- will this go on appeal or will we see the votes? In our view, anyone should be able to check the member states’ votes on any binding EU act. That is just democracy 101.