Open Government in the EU

By Maarten Hillebrandt

The Lisbon Treaty recently celebrated its tenth anniversary. The Treaty, which laid the fundament for a reformed European Union, entered into force with the promise that European decision making would become more transparent, and therefore more democratic. The tenth birthday makes up a nice moment to consider what has come of these ambitions.

On 1 December 2009, the day that the Lisbon Treaty entered into force, the European Commission released a long memo to journalists. What should they expect from the new treaty? To no-one’s surprise, the memo was obligatorily jubilant. As a concrete example of improvement, the Commission mentioned that the treaty would bring “more democracy and transparency”. The attribution of policy competences and the decision-making process, particularly where it concerned legislation, would henceforth be more visible and understandable for the public at large. Would Lisbon finally draw a line under the dragging transparency debate?

Last Monday, 13 September 2017, EU Commission President Juncker held his annual state of the Union speech in which he laid out his vision and priorities for the EU in the coming period. Calls for and responses to greater transparency are a recurrent theme in discussions on how to improve the EU.

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On 17 March, two members of the Dutch parliament presented a draft European Information Law.

The draft law, drawn up by members Marit Maij and Anne Mulder, respective members of the then-ruling coalition parties the Social Democrats and the Liberals, intends to regulate the government’s information duties towards the Dutch parliament where it concerns European Union decision making. Whereas the parliament’s right to be informed already existed under Article 68 of the Dutch constitution, it is up until now dispersed in various pieces of parliamentary proceedings agreed at various points in time. The current draft law for the first time sets out to formalise the government’s information duties, codifying existing agreements and adding new ones. As the explanatory memorandum clarifies, information provided to the parliament should in principle be available to the public and open for public parliamentary debate.

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By Päivi Leino-Sandberg

Throughout the process, the general objective remains to ensure democratic legitimacy and accountability at the level at which decisions are taken and implemented. Any new steps towards strengthening economic governance will need to be accompanied by further steps towards stronger legitimacy and accountability. (2)

A new internal note reveals renewed efforts by a small group of member states to take Council transparency forward.

By Maarten Hillebrandt

The embattled EU is currently dealing with issues within, beyond, and on its borders all at the same time. Within its borders, the fresh conservative government of prime minister Cameron has made its first steps to arrange a ‘new deal’ for UK membership, while Hungarian first minister Orban insists that it can -and shall- continue a political debate about the death penalty. Outside of its borders, conflicts in a host of neighbouring countries, particularly Ukraine and Syria, are putting the EU’s security policy under pressure. And on the borders, tens of thousands of asylum seekers and other migrants are attempting the dangerous Mediterranean sea-crossing hoping to reach Italian -and thereby, European- soil.

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Within a month in office, the incoming Juncker Commission announces its first tangible steps to increase disclosure relating to its lobbying contacts.

In an interesting move, Commissioner Timmermans (Better Regulation) two weeks ago circulated an internal note, which was soon leaked to the press, explaining the pending change. The note argued that “while contact with stakeholders is a natural and important part of the work of a member of the Commission, all such contacts should be conducted with transparency and members of the Commission should seek to ensure an appropriate balance and representativeness in the stakeholders they meet.”

As a consequence of this line, the 28 members of the Commission will be required to disclose on their websites all contacts with lobbyists as of 1 December. The EUObserver quoted Timmermans saying: “I think we have moved to a situation now where the public says to government ‘show me!’ And we want to show you”.

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Nearly a year and a half after its drafting, on 9 October 2014, the Council declassified and disclose the Commission’s negotiating mandate for the free trade talks with the United States better known as the Transatlantic Trade and Investment Partnership (TTIP).

Maarten Hillebrandt

The disclosure comes after much public controversy that accompanied the various rounds of talks that have taken place up until now, in spite of the document being leaked at an early stage. Various MEPs, the European Ombudsman, and outgoing Commissioner for trade De Gucht criticised the Council for keeping it under the fold. In its annual transparency report, the EP renewed its pledge to do all in its power to “ensure that future trade negotiations, and in particular the on-going negotiations with the US […] were more transparent and open for stakeholder involvement” (p. 12). The decision to disclose the document at long last has been met with praise by various actors.

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The EP’s two largest political groupings, the EPP (people’s parties) and S&D (social democrats), are keeping the item of public voting in parliamentary committees off the agenda.

Thus reported the EUObserver last week. The proposal entailed a change to the rules of procedure, and would make it compulsory for parliamentary committee’s final votes in legislative procedures to be digitally recorded and made public. The rationale behind this proposal is, inter alia, that many decision-making procedures are barely publicly debated in parliament before they are voted on. Legislative drafts often become directly subject of interinstitutional negotiations between the EU’s two legislative bodies (the EP and the Council), and are discussed in said parliamentary committees, whose meetings frequently take place behind closed doors. The compulsory vote proposal, which has now been put back into drawer, would restore some of the public accountability that is lost in the informal negotiation process.

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In the 1980s, a committee was set up to deal with the subject of institutional reform. As Ireland was just assuming the presidency (1984), former minister of foreign affairs and senator Jim Dooge was appointed chair of this committee. The Dooge Committee on Institutional Affairs expendiently set out to make a number of recommendations for institutional improvements of the European Community.The Doodge report, which appeared within a few months, laid the foundations for the Single European Act, and after that the Maastricht Treaty, apparently with much of the report’s language being carried over verbatim.  

At the Dooge lecture, professor of European governance Helen Wallace goes back to the committee’s work which “was made to seem as boring as possible” but in her opinion marks a watershed in the history of European integration. She praises the dexterity and expediency of the committee and its chair, but also argues that its working method marked the end of an era. She compares the SEA and Maastricht Treaty with the language andobjectives of more recent European Treaties, and concludes by addressing the UK’s recent stance in the process of European integration. http://www.youtube.com/watch?v=pAng6aga_Qw –MH