Transparency in the EU: As clear as mud
Civitas, 6 July 2011
EU member states are pushing forward with a decision which could reduce transparency at the EU level, writes Lucy Hatton. A recent ruling by the General Court of the EU, which would enhance the transparency of the deliberations in the Council of the EU, is set to be appealed against by a majority of EU member states (including the UK). The decision to challenge such a case is a damning verdict on the Treaty of Lisbon’s attempts to improve the democratic accountability of the Council: the most secretive of all EU institutions.
The Treaty of Lisbon (2007) was promoted by its supporters as creating “a more democratic and transparent Europe” and all deliberations on legislative matters, the Treaty claimed, were to be held in public. Article 16 A of the Treaty states that: “the Council shall ensure publication of the documents relating to the legislative procedures”. In its 2009 annual report, even the Council itself noted that it will “meet in public when it deliberates and acts on a draft legislative act.” The report goes on to say that “[t]his principle also contributes to widening access to Council documents since documents relating to items discussed in public Council sessions are automatically made public.”
However, this has not been the case. When a Spanish NGO requested the release of documents by a particular Council working group, the release was resisted for some time, and, when eventually permitted, the documents were heavily censured.
Ironically, the documents the NGO requested related to an amendment to an EU Commission legislative draft regarding the EU’s transparency rules. The participants of the working group wanted the rules on transparency to be watered down, to preserve their ability to engage in highly secretive diplomatic negotiations on EU legislation. When finally released, the censored document had the names of the countries that supported this amendment blacked-out.
The request by the NGO for the full document eventually reached the General Court of the EU, which, thankfully, ruled that the documents had to be released, and in full, without the censures. A rare display of common sense on this issue, it seems. Disappointingly, a majority of the member states didn’t see it the same way. According to reports, 20 EU member state delegations are now planning to challenge the General Court’s ruling and want to take the matter to the European Court of Justice. They claim that the ruling could create a dangerous precedent, requiring all members of, activities undertaken, and decisions made in working groups to be disclosed in the future. They maintain that their secrecy needs to be protected in order to enable freer discussion and efficiency, which would be hindered if there was increased scrutiny of the deliberation process. Ministers insist that, should they lose the case, they will simply rely on verbal agreements in their discussions and limit what is recorded on paper, thereby continuing to operate in secret.
But surely setting a precedent of opacity and secrecy around deliberations is an even more troubling prospect than being able to see who argues what in the 150 Council working groups? It is in these groups that the fundamentally important negotiations on EU legislation take place, not in the final voting sessions, the details of which the Council does now report.
Unfortunately, it is not only the Council that is recoiling at the prospect of increased transparency – the European Commission recently announced a proposal to ‘extend’ the rules on public access to documents to bring them into line with the Lisbon Treaty. However, it has been noted that in doing so, access will actually be restricted in comparison with the current rules. Two years on from the implementation of the Treaty, it seems that its principles have been forgotten.
All member states should take a leaf out of Finland’s book. Finland’s remarkable history and strong tradition of freedom of government information led to its abstention from the vote on the appeal of the General Court’s ruling, and it has stated that it has no objection to the positions of its representatives being made public knowledge. Only by adopting this position of true transparency will the Council achieve the level of accountability that European citizens deserve, and that they were promised in the Lisbon Treaty.