The big lesson after ten years of EU transparency reforms? You will never get it right

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.

Credit: El País.

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?

Not quite. After ten years of reform attempts, the European institutions sullenly seem to have reached the conclusion that they apparently can never do anything right. The mantra seems ‘damned if you do, damned if you don’t’. In some respects, transparency may have increased; yet above all, the institutions have dug themselves into their trenches even further. And they mostly seem to be doing this to each other, in front of a critical and vocal audience.

Case: making lobbying transparent

Let me illustrate this point by way of a short case study. It is October 2014 and Frans Timmerman is being heard by the European Parliament as part of his appointment procedure for the office of first Vice-President of the European Commission, with ‘better regulation’ as one of his dossiers. During the hearing, Timmermans promises to give the question of transparency high priority. And indeed, a month later, an action plan appears. All contacts with lobbyists are henceforth to be made public. “The public says to government, “show me!”, Timmermans states on this occasion, “And we want to show you”.

Timmermans’ announcement leads to a vehement tug-of-war. Within a month, campaign groups such as ALTER-EU (Alliance for Lobbying Transparency and Ethics Regulation) are putting Timmermans in the pillory. As it turns out, a newly published gentlemen’s agreement between the Commission and the Parliament remains limited to a promise not to receive lobbyists that are not on the register. And anyway, these NGOs scoff, the transparency register “is just the tip of the iceberg, as many parts of the lobby industry […] boycott the existing register”. It soon emerges however that the plan was drafted by the previous Barosso Commission; meanwhile, Timmermans continues the work on his own plan. Throughout 2015, the NGO criticism, now joined by critical comments by the European Ombudsman and various prominent MEPs, continues.

After ten years of reform attempts, the European institutions sullenly seem to have reached the conclusion that they apparently can never do anything right. The mantra seems ‘damned if you do, damned if you don’t’.

Then in March 2016, Timmermans releases a policy draft for a new lobby register for public consultation. He calls on the Council to join this initiative. ALTER-EU quickly follows suit with a report criticising the lack of transparency in the Brussels delegations of the 28 Member States. In September 2016, the draft text for an interinstitutional agreement is published. The pressure works, and eventually the Council comes to the negotiating table – be it only after 19 months of internal bickering.

Meanwhile, a group of 100 (!) NGOs seeks to keep the pressure on the negotations to ensure mandatory rules with a wide scope of application. To this end they write an open letter to the Parliament, in which they argue that the institution “must do more to improve lobby transparency”. The NGOs also think that the MEPs should first have their own house in order to advocate transparency in the other European institutions more convincingly.

And then, after a year of negotiating in an atmosphere of division and mutual distrust… the talks collapse.

The moral of this story?

To conclude that Commissioner Timmermans spent his entire last term as a Commissioner talking about lobbying transparency without getting it done, would be to miss the larger point of this story. Arguably, he stuck to his guns all along, but was simply defeated by an unyielding Council majority.

The reality is, that everyone comes off looking bad. The Commission, for failing to bring the negotiations to a successful end. The Parliament, a self-professed transparency champion, for standing by and waiting for the other institutions to damage themselves, while failing to make the lobbying transparency rules binding on its own house until January 2019 – richly late for a self-professed transparency champion.

The Council, meanwhile, fearing encroachment on national prerogatives, really wanted nothing to do with lobbying transparency, but was shamed into participation, and its last feasible tactic became delay and obstruction.

In short: as an institution relating to transparency as a regulatory issue, you can never quite do it right. If you fail to talk the transparency talk, you’re slammed. If you’re the best student in class, there’s still a lot more work you could do. And if you insist it was another’s bad faith that killed off any progress, why should we believe that you preach transparency just as enthusiastically behind closed doors as on your social media accounts? In short, you are damned if you don’t do transparency, as you are if you try it.

The X factor? Interinstitutional relations

When it comes to government transparency, it is often assumed that the main conflict is that between the public (sometimes via NGOs) and government. While this fault line is indeed partially determines the extent of transparency, another possible explanation is often overlooked: that of interinstitutional relations. Particularly in the EU, where institutions are engaged in a constant battle for citizens’ approval and trust, these are a potential factor of weight.

When we look at the development of most policies related to transparency, we see that they are indeed strongly tied up with inter-institutional competition. Transparency can be used as an alternative to privileged access rules when these are considered insufficient. This is a strategy that has in recent years been pursued by various MEPs. Thus, Sophie in ‘t Veld sought access to documents of the Council and the Commission, while Heidi Hautala, Michèle Rivasi, Benedek Jávor and Bart Staes forced access to documents held by the European Food Safety Authority. This strategy offers the complainant to place another institution (sometimes literally) in the dock to publicly shame it for its secrecy – a very common competitive instrument.

A further institutional strategy is to use transparency as a form of meta-regulation based on constant monitoring. This  trend is most evident in traditional principal-agent relations, such as those between the European Parliament and the Council vis-à-vis the Commission (think of the Comitology Register which was introduced in 2011 to control the circuit of policy experts). But also less conventional institutional actors have started to flex their muscles. Thus, the European Ombudsman explored the limits of her mandate by investigating the transparency of the legislative process, while, the EU’s national parliaments, united in the COSAC platform, wrote a letter to the Presidents of four European institutions to raise various issues related to transparency which they felt had “been neglected for far too long”. The problem with some of these meta-regulatory efforts is that they largely lack teeth, adding to frustration on all sides.

Particularly in the EU, where institutions are engaged in a constant battle for citizens’ approval and trust, institutional relations are a potential factor of weight in the transparency policy dynamic.

Perhaps the most direct impact of transparency concerns inter-institutional negotiations. Here, transparency may be employed as a bargaining chip to move another dossier forward. Exactly: the traditional “log rolling” that public policy scholars have studied since forever. Transparency rules may also be used as leverage to extract concessions, such as when an institution sues, or threatens to sue another, until it concedes some other valuable point to the extorting institution.

These last strategies also indicate that transparency has gradually run into clear limits: the institutions have proven progressively worse at competitive cooperation. Whether it concerns the legislative process, lobbying, personal expenditure, or administrative documents, most reform efforts of the past decade have failed, indicating that logrolling and leveraging attempts have lost their productive edge. This can be chiefly attributed to two factors. First, there is a growing awareness within the institutions that transparency may have unforeseen long-term effects. This means that they are increasingly reluctant to make concessions. Second, transparency reform suffers from the lock-in effect, which means that transparency advocates prefer the imperfect but cumulative status quo to the (real) risk of “transparency backsliding” resulting from reforms.

Ironically, the one area in which the institutions, until very recently, managed to cooperate relatively well, has been in informal trilogue negotiations. Ironically, because the cooperation consisted of a cartel-like reductive interpretation of the existing transparency rules. As the landmark De Capitani v Parlement case of last year attests, the Court struck this position down. Hence, the institutions are since March 2018 required to provide direct access to trilogue negotiating documents.

And the Lisbon Treaty?

So what is the impact of the Lisbon Treaty on the described dynamic? There are two possible answers to this question.

The first is: this impact is very limited – in a direct sense. The provision on access to documents in the Amsterdam Treaty (1999) were largely directly transposed into the Lisbon Treaty (TFEU article 15(3)). The only difference is that the access to documents obligation were now expanded to all of the Union’s bodies and agencies (previously, they only applied to the institutions).[1] If anything, the Lisbon Treaty has brought more obvious constitutional overtones to the notion of legislative transparency. This has strengthened the Court of Justice’s reliance on democratic argumentation in questions of legislative transparency. Yet this process was already ongoing before the Lisbon Treaty, and was hardly influenced the latter.

Ironically, the one area in which the institutions, until very recently, managed to cooperate relatively well, has been in informal trilogue negotiations. Here, the cooperation consisted of a cartel-like reductive interpretation of the existing transparency rules.

In addition, however, the Lisbon Treaty also introduced a host of –sometimes significant- changes to institutional prerogatives. Together, these ‘tweaks’ exercise a clear indirect influence on inter-institutional relations. To offer but a small sample of treaty instruments:

  •  Article TFEU 218(10) now offers the Parliament the right to be immediately and fully informed at all stages of all ongoing international negotiations. In the case of most draft international agreements (Common Foreign and Security Policy related agreements excepted) it can back this prerogative up with an outright veto. After the Parliament demonstrated that it would not shun this lever by striking down the SWIFT and ACTA agreements, the Ombudsman praised the Commission for its handling of the transparency question during the Brexit negotiations.
  • The control of the Commission’s implementing powers has also been strengthened (TFEU article 293(3)), which led to a joint Parliament-Council regulation setting up a comitology register.
  • In a similar fashion, TEU article 12 and protocol 2 attached to the Lisbon Treaty now provide the national parliaments with a clearer profile in the EU decision-making process. Thus, they can now ask the Commission to review legislative proposal on the basis of subsidiarity concerns using the yellow and orange card procedures.
  • Finally, the Ombudsman mandate was broadened to newly bring the European Council, all bodies and agencies, as well as questions pertaining to the Common Foreign and Security Policy within her mandate (TFEU article 228). Needless to say, this expansion includes transparency questions.

Clearly, not all of these expanded powers were designed with the idea of transparency in mind. Yet in some instances, this does not prevent the actors in question to use their new podium to take an active part in the transparency debate.

Conclusion

Based on the past ten years, we may thus conclude that EU institutions are mostly great proponents of transparency – where it concerns other institutions. Where it concerns their own backyard, they are less prepared to change. To some extent, this wariness is understandable: even when they’ve already come a long way from the ‘opaque’ early days of the Union, they hardly gain much praise for their increases in transparency. In fact, mostly the opposite is the case: every measure reveals a weakness, and often the other institutions are eager to point it out.

But just as doing transparency wins them little in the way of plaudits, not doing it is no longer an option either. Especially after Lisbon, the genie is out of the bottle, and can no longer be put in. The gradual constitutionalisation of checks and balances generally undermines straight refusals of transparency. This is particularly apparent in the area of legislation, where arguments against disclosure have steadily lost credibility in front of the wider audience.

The arguments in favour of broad transparency can thus no longer be ignored. But neither should we lose sight of the inter-institutional dynamic of transparency reform. The stakes involved in it are often such, that we cannot simply wish they will go away. In spite of Lisbon, ‘doing transparency’ will thus entail muddling through, one confrontation at a time. Whether this will produce solutions that are workable, legitimate, and convincing in these times of digitised and fractured audience democracy? That is the one million euro question. Either way, the Lisbon Treaty will not stand in the way.

This blog post is an expanded version of a short lecture given at the RENFORCE Conference “The Treaty of Lisbon at 10: Fit for Purpose?”, held in Utrecht on 6 December 2019. It first appeared in Dutch translation on the political science blog Stuk Rood Vlees.


[1] Ten years later, formal ‘Lisbonisation’ of the relevant law has still not occurred – although it is understood that bodies and agencies must adopt internal policies to align with the law applicable to the institutions.

Tags: , , , ,

Comments are closed.