Transparency and openess
Openness is about being able to see through and into the decision-making process and about having access to follow relevant meetings.
Transparency is about having adequate access to the relevant documents and databases. Having access to documents may be direct access to the internet or in having the right to ask an institution for a document and to receive it or to have the request rejected with an argument, which can be tested.
Article 15 TFEU in the Lisbon Treaty - previously Article 255 TEC - deals with transparency and requires institutions and agencies to ”work as openly as possible”. The European Parliament and the Council of Ministers (but not the Commission) shall meet in public ”when considering and voting on a draft legislative act”.
This was also decided by the European Council in June 2006. However, the Governments will not yet open the law-making committees and give citizens a real insight into how their laws are decided in these committees that adopt 85% of all EU-rules.
The Lisbon Treaty has introduced the ordinary legislative procedure on the rules of implementation of the transparency rules. This still requires a proposal from the Commission supported by a qualified majority in the Council of Ministers.
The European Parliament may then propose amendments and reject a new proposal but cannot enforce rules on more transparency in the other institutions - even if the Parliament almost unanimously agreed on the need for reforms.
By 2014, the Transparency regulation 1049/2001 was still not revised.
See also Transparency initiative
The European Commission Financial Transparency System:
A book ”Transparency” with the many small and bigger victories for transparency can be found at www.Bonde.com
Look also at: http://ec.europa.eu/transparency/regexpert/search.cfm?l=B
The full list with 3,094 secret working groups from 2004 can be found under Working groups in the Commission
COMMENT ON TRANSPARENCY
by Jens-Peter Bonde
In the EU, most laws are still prepared and decided behind closed doors in the Commission and the Council of Ministers. The Commission uses around 3,000 secret working groups to assist in the preparation and implementation of new legislation. The list of working groups is now partly available on the Commission website.
According to a letter from the Commission in May 2009, their website included 983 working groups. Including sub groups, there are more than 1,600. There are also 271 comitology committees.
85 % of all EU laws are decided in 275 working groups in the Council. A list of the working groups can be found at the website of the Council.
All deliberations in the Commission and Council working groups are kept secret. Neither the public nor members of the European Parliament have access to the documents from these many important working groups.
In the formal Council of Ministers some meetings are now held in public. Votes on legislative proposals under the so-called ordinary legislative procedure are now published.
The real negotiations are concluded on closed tripartite meetings in which specially designated members of the European Parliament have access. Indeed, there were 1000 such meetings in 2013, but there are no agendas, working papers or reports to the public, and there are no journalists present.
In 2008 the Council published the result of 147 votes. 128 were unanimous so no differences in opinions could be seen. Only in 19 of 536 Council decisions were we allowed to see the 8 countries voting against a file and the 32 countries showing abstentions.
Among 14,472 possible votes (536 x 37 member states) we could only see 8 no votes. This is 0,0006 % of the possible number.
The Council adopts most laws without formal votes because ministers' aides know the outcome if they would vote. However, we, the voters, do not know what they said and how they voted on the rules that are binding on us.
In the European Parliament, all official negotiations are public. Voters and journalists can follow any discussion in committees and in plenary, but not in the real decision-making tripartite meetings with the Commission and the Council of Ministers, and not during the so-called third reading in the Conciliation Committee, where members of the European Parliament can have a real impact.
After a meeting of the so-called conciliation committee with an equal number of representatives of the member states and the European Parliament a compromise between the Commission, the Council and the European Parliament will be found and afterwards adopted by a simple majority in the Parliament and a qualified majority in the Council.
80 % of the laws under the ordinary legislative procedure are nowadays adopted in first reading with informal compromises reached at the tripartite meetings between representatives of the Commission, the Council and the European Parliament.
These very important negotiations are also secret for other members of the European Parliament. In the Council most laws are decided without formal votes because they know the outcome if they voted. However, we, the voters, do not know what they said and voted on the rules binding on us.
According to euobserver.com there were 1000 trialogue meetings in 2013 opening for a real influence for the participating MEPs.
When the decision is voted on as a so-called roll-call vote citizens can see how their MEP has voted.
In the European Council, the Court and the Central Bank all deliberations are secret.
National parliaments discuss EU proposals in their European Affairs committees. The Danish Folketing made these deliberations public from 6 October 2006.
Anyone interested may visit the committee room or follow these discussions on TV. In addition, mandates for the ministers` negotiations in the Council are normally given in public. The Danish government can, however, ask the Committee to make the meeting closed under special circumstances.
The German Bundestag has a written agreement from 2006 with the German government regarding full access to all documents from the secret Council meetings in Brussels.
No other national parliament has the same degree of access to the legislative process.
The European Parliament failed to obtain a similar agreement with the Council of Ministers when a unanimous Reform Working Group in the European Parliament put the proposal forward.
As a general principle, the citizens do have access to documents. But there are important derogations including the very elastic nature of the institutions being entitled ”to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks” and ”the protection of personal data”, reasons which was first used by the Commission to refuse access to the Commissions lists of experts.
In the European Convention of 2002, 90 % of the members signed a petition to call for more openness and transparency, particularly as a general principle where derogations could then be decided by qualified majority. All representatives from the national parliaments, 15 of 16 representatives from the European Parliament and 23 of 28 governments signed the petition.
No other proposal in the Convention had achieved a similar broad support. Still it was not included in the proposed constitution nor the later draft Lisbon Treaty.
ACCESS TO DOCUMENTS
Most progress on access to documents and transparency within the EU has been achieved by active members of the European Parliament and the EU Court promoting transparency in the other institutions - behind their own closed doors.
The Court has forced all the institutions to judge each document individually, instead of just rejecting applications on a wholesale basis. This progress established by the Court is now a part of the regulation on transparency adopted by co-decision and qualified majority in the Council based on former Article 255 TEC.
Applications for access to documents must be processed by the institutions within 15 working days, but in reality they can wait 10 days to register that they have received a letter and can then ask for 15 days more – and sometimes even refuse to give an answer. Individuals then have the right to send a new application to the institution asking it to reconsider its position, and finally, to go to the Ombudsman or the EU Court.
The institutions have improved their transparency by providing citizens with information via the internet. Yet, they continue to hide their internal deliberations on legislation from the public and even from the elected members of the national parliaments and the European Parliament.
When the European Parliament Committees discuss law, proposals it is often based on completely outdated versions. Sitting behind the MEPs are assistants or students from the permanent representations, the EU Commission and the Council, with the updated versions from the last meeting of the relevant Council working group. It is there that the real law making takes place.
According to the conclusions of the EU summit of Seville in June 2002, the Council meetings should be made open to the public. Yet many restrictions have been maintained. Under the Greek Presidency in 2003, for example, only eight Council meetings out of about 170 were open to the public.
VICTORIES FOR TRANSPARENCY
The EU was originally founded as a cooperation between diplomats from the foreign offices of each member state. From the beginning, they practised the beneficial traditions of confidential negotiations in questions of peace and war.
This method is good for finding compromises between states but it is should not be the usual method for law making. It has resulted in continued battles on introducing normal parliamentary democracy and transparency in European law making.
The demand for transparency was first boosted when a small majority of Danes voted no to the Maastricht Treaty on 2 June 1992. The surprise No result was welcomed by many in the European media and resulted in a long range of small and bigger victories for transparency in the following years:
· The telephone book for the Commission was a secret document. Commission President Jacques Santer made it available to the public.
· At that time the agendas for Commission meetings were secret. They were made public by Commission President Romano Prodi.
· Minutes from Commission meetings were also confidential. Prodi had them published on the internet.
· The working groups in the Commission were secret until 2004. The incoming Commission President José Manuel Barroso gave a list of 3,094 up until then secret working groups to a group leader in the European Parliament who published it on his website, and here. See the Bonde list.
The Commission then opened a database for many of their working groups on the Commission website. In 1994, the European Parliament gained insight in the so-called regulatory committees (comitology).
Most EU subsidies were kept secret for many years. From 30 April 2009, subsidies for European farmers from all member states can be (partly) found on the internet at www.farmsubsidy.eu or the Commission’s own site at
Unfortunately, the EU Court asked the Commission to delete the information on the recipients for reasons of personal data protection. New rules were adopted in 2014 with transparency above certain amounts.
· Commission Vice President Siim Kallas published a ”European Transparency Initiative” in November 2005 with 14 concrete proposals for more transparency which are now mainly implemented with a voluntary register for lobbyists and public databases for subsidies.
· The Council working groups were secret for many years. Now 275 working groups (including sub groups) can be found at the Council website.
· The European Council meeting held on 15-16 June 2006 decided to open up all deliberations in the Council of Ministers for co-decision with the European Parliament.
In 2005, 3,124 laws were adopted but only 57 in co-decision with the European Parliament. 21-22 June 2002 the European Council meeting in Seville decided to open the first and the final deliberations under co-decision.
· Since 15 September 2006 the Commission has sent proposals for new laws to all national parliaments to have their comments on subsidiarity before any formal negotiations can start in Brussels. By April 2009 the national parliaments came back with 450 reactions. Even so it has not led to the change of one single proposal. There were 592 reactions in 2013 and the cooperation between the national parliaments have been improved.
· Since 6 October 2006 the Danish Parliament has opened the doors to their European Affairs committee, also when they are deciding negotiation mandates.
· Much more information can now be found on the internet concerning the different European institutions.
· Citizens have gained a general right for access to documents governed by regulation number 1049/2001, find it here:
http://www.europarl.europa.eu/pdf/cardoc/1049_2001_en.pdf currently under review.
There are many smaller victories on the road towards transparency in the EU. However, there is also a long way to go:
Most EU laws are still prepared and decided by civil servants behind closed doors in Brussels.
TRANSPARENCY IN THE TREATIES
Transparency and access to documents is governed by the Lisbon Treaty Article 15 TFEU, which was first introduced as Art. 255 TEC by the Treaty of Amsterdam. Changes in the regulations require a proposal from the Commission and a qualified majority in the Council of Ministers.
Most progress in the Council has come through Court cases and through changes in the internal rules of the Council. They may be amended by a simple majority of 15 of the 28 member states while a new regulation requires 260 of 525 votes in the Council. This is a representation of 74 % of the weighted votes.
In the Convention on the Constitution, three big member states were against the proposed reform making transparency the general rule and then only require qualified majority behind derogations. The three states are Germany, France and the United Kingdom. With one small country, they could possess a blocking minority in the Council.
The only realistic way towards further reform is therefore to amend the rules in the Council with simple majority of member states – or change the position of the strongest member states. On a personal level, all representatives from the three governments in the Constitutional Convention wanted to sign the petition for transparency.
Several ministers (German foreign minister Joschka Fischer, later French Prime Minister Dominique de Villepin and the UK Minister of Europe Peter Hain) were not allowed to sign by their secretaries, representing the wisdom of their foreign offices at home.
The Dutch representative Gijs de Vries also wanted to sign but was not allowed by his foreign office. The Danish member of the Conventions’ Presidium, former foreign minister Henning Christophersen also refused to sign.
23 governments (including all Turkish representatives) signed the petition for transparency with argued derogations supported by a qualified majority.
In April 2008 the Commission proposed a new regulation on access to documents. The new draft has been heavily criticised by the European Ombudsman and the European Data Protection Agency.
Foreign ministers from Sweden, Finland, Denmark, Estonia and Slovenia wrote a critical joint comment published in European Voice on 5 March 2009. They criticised that whole categories of documents are excluded without any right of access and they mentioned as an example all documents from admi