An article by TrUE researchers Maarten Hillebrandt and Päivi Leino-Sandberg was recently published in the Journal of European Public Policy. The publication analyses the role played by the European Ombudsman and the Court of Justice in overseeing the fulfillment of transparency obligations in trilogue negotiations.
TRANSPARENCY AND OPENNESS of Union decision-making procedures are foundational values of the EU[1] and essential to a system under the rule of law. But are the existing EU standards of transparency adequate to ensure that these values translate to legitimate exercise of public powers on the European level? In view of today’s challenges, is the EU’s approach to transparency sufficient, given that it is an atypical constitutional structure exercising sovereign powers across multiple levels of government and in constant need of explaining itself?
By Herwig Hofmann and Päivi Leino-Sandberg
The Council’s ongoing transparency overhaul continues to attract public attention.
Last summer, the Council entered a reorientation process of its internal access to documents policy. The internal reforms, which are still ongoing, were sparked by a highly critical report published by the European Ombudsman, as well as a court judgment which found current access practices in informal trilogue negotiations on legislative dossiers between the Council and the European Parliament to contravene EU transparency law. A recent confirmatory application (appeal) decision highlights the public attention for these reform negotiations.
A recent article in Politique Européenne by Maarten Hillebrandt (Bielefeld University) deals with the question of the development of transparency policy in the Council of the European Union. The development path of transparency in the Council is often regarded by outsiders with scepticism. After all, before 1992, the EU’s most ‘intergovernmental’ institution was known for its pervasive diplomatic secrecy. According to insiders, twenty-five years on, continuous external pressure would have made the Council considerably more transparent, in spite of all its resistances. This characterisation of a transparency-hostile Council overrun by external ‘transparency forces’ may however be too schematic.
The Court of Justice of the EU dismisses in full the Council’s appeal against an earlier judgement in the much publicised Access Info Europe case.
The long awaited judgement of the Court of Justice of the EU (CJEU) in the Access Info Europe appeal was finally handed down last week, on 17 October. After losing a case against Access Info Europe (AIE) in front of the lower General Court, the Council appealed. The CJEU now has found that the General Court’s judgement was correct and must therefore be upheld. In total, three separate pleas in law filed by the Council were refuted.
On its website, AIE director Helen Darbishire commented: “If the Council applies this ruling to all similar documents, this would finally provide a similar level of transparency at the EU level as one would normally find in national legislative processes.” On Twitter, AIE spoke in equally superlative terms, saying that it was “More than satisfied! The decision we hope will open the door to a more participatory and transparency EU!” The Council, meanwhile, has not given the case any attention on its news homepage.
The Council of the European Union defends its appeal in Luxembourg. On Thursday 21 February, the litigating parties in the Access Info Europe case appeal convened at the Court of Justice of the European Union in Luxembourg for a hearing. This marks the next step in this case, since the the Council contested the General Court’s ruling by bringing an appeal.
The GC’s 2012 judgement in Access Info Europe caused a stir by affirming the NGO’s assertion that citizens need to be able to attribute policy positions to member states in order to participate meaningfully in European democracy. The practice by the Council to disclose arguments put forward without revealing their originating member states had been in place for some years before AIE challenged it. It is seen by the Council as an acceptable compromise between the requirements of democratic participation and those of effective decision-making. Ironically, Access Info Europe was in the process of mapping member state positions in the reform of the access to documents regulation for a report that it was writing, when it stumbled upon this practice.
Talks on the revision of the European access to documents regulation have collapsed. The Danish presidency has been unable to reconcile the widely diverging views of parties around the table.
Last week, as the Danish presidency presented a compromise proposal, the atmosphere became particularly vicious. The ministers of justice of Sweden and Finland in an open letter stated that “needless to say” they rejected the Danish proposal and called on the EP to do the same. Days later, a Commission spokesman accused “nutty NGOs” of wasting officials’ time, calling on them to “grow up”. This in turn sparked off a response of indignation from transparency NGOs such as Access Info Europe, which is a longstanding advocate for more transparency in the EU. Over the weekend, talks between the Council and the EP collapsed over widely diverging views on what the reformed regulation should look like. Finally yesterday, the Danish presidency announced officially that it will abondon its efforts to promote the compromise draft.
The Danish presidency which took over on 1 January, will attempt to make further progress with the embattled transparency dossier.
The Jack of transparency has been out of the box in the EU ever since the Commission presented a proposal to revise the current law on access to documents, in 2008.
Yesterday, the European Parliament formally passed its first reading in the revision procedure on Regulation 1049/2001.
Regulation 1049/2001 has been in place for over ten years now, and has regulated the public’s access to community documents. When adopted, it significantly improved citizens’ access to the EU, making the institutions more transparent. Since then, it has functioned grosso modo to the satisfaction of both citizens and the institutions. (more…)
Not only in the EU is a debate (or should we say, battle) still ongoing over the meaning and usefulness of transparency. Also in the Netherlands has a member of government sought to reopen a fundamental discussion on the current WOB-regime.
WOB is the Dutch equivalent of FOI and comes from the Dutch term Wet Openbaarheid van Bestuur (Law of Administrative Openness). A recent series of public statements made by the Dutch Minister for Home Affairs Donner suggest that the Dutch Government might consider rolling back the current arrangements. (more…)