This article is part of our special report Lawmaking in the dark.
EU laws go through a roller-coaster of opacity, with lawmaking only becoming visible in some parts of the process. But a new regime could extend this transparency from conception to birth.
Europe’s populist movements vary widely across the continent in both style and substance. But one thing they have in common is the vilification of the European Union as an elite club that makes laws behind closed doors.
The image of unelected bureaucrats making secret deals in smoke-filled rooms has gained increasing traction in recent years. These claims are greatly exaggerated, as Emily O’Reilly, the European Ombudsman, pointed out earlier this month at the Irish Institute of European Affairs.
“The EU institutions are frequently much more transparent than those in many EU member states, in the sense of opening up their processes and deliberations to public view,” she said.
“They have also become much more transparent in recent years.”
But the public perception is a problem, she says, and it is based on real transparency problems in large parts of the EU lawmaking process. Yes, national media is to blame for not transmitting the information that is available to the public. But it is also true that the vagaries of EU lawmaking make much of this information hard to come by in certain parts of the process, even for Brussels insiders.
It is often difficult to assess who is having meetings with decision-makers, and in many cases, who those decision-makers even are.
As we will explore in the rest of this Special Report, EU legislation is conceived in darkness, gestated in sunlight, and then returns to darkness for its birth.
In and out of the sunlight
EU laws can only be proposed by the European Commission, the bloc’s executive branch. The drafting of these laws takes place largely behind closed doors. There are public consultations to gather the feedback of stakeholders, but the Commission does not comment on the drafting process and the people crafting the decisions are unknown civil servants.
The proposal sees the light of day when the Commission puts it forward, and it passes to the elected co-legislators, the European Parliament and the Council of Ministers. They can then adjust the proposal or reject it.
The two co-legislators are like night and day in terms of transparency. The Parliament holds public debates and publishes all documents. The votes are on the record, so people know which MEPs have voted for what.
The Council, made up of the ambassadors (permanent representatives) of each of the 28 EU member states, holds meetings entirely in secret. Which country has voted for what is usually not a matter of public record. And though it is the elected national ministers who technically make the final decision, in reality, it is usually faceless civil servants at the perm reps who are actually calling the shots. And it is often almost impossible to find out who those people are.
“Although it is a co-legislator, the Council tends to think and act within a traditional international diplomacy framework,” said O’Reilly. “Evolving negotiations remain largely secret, as do member states positions.”
The Council’s position comes into the sunshine once a ‘general approach’ has been agreed by the countries, usually around the same time that the Parliament has voted on its position. Both positions are public.
The process is then plunged into darkness once again. Negotiations take place between the MEP in charge of the file and the EU country holding the rotating presidency of the Council – at the moment Estonia. These negotiations are called ‘trilogues’.
“The trilogues are a black box,” says Vitor Teixeira, a policy officer with Transparency International EU. “You don’t know how each country comes to the position that they have. You also don’t know which lobbyists meet which perm reps. You also don’t know how the changes come about. You only see the beginning and the end.”
The talks were never meant to be a central part of the lawmaking process. “The trilogues were initially a way to smooth out the edges,” he says. “They came after a relatively long legislative process, after second reading. But nowadays most legislative processes go to trilogue immediately after first reading. The process is exempt from the traditional transparency process. The discussions in plenary are webstreamed. The discussions in trilogues are not.”
Transparency to come
The problem of opacity in some parts of the process, especially the trilogues, is well-known in Brussels, and when Jean-Claude Juncker became president of the European Commission in 2014, he vowed to do something about it. He appointed Commission First Vice President Frans Timmermans from the Netherlands, a leading country on transparency, to put a new system in place.
A voluntary register of lobbyists has existed for the Parliament and Commission since 2011. Last year, Timmermans proposed to make it mandatory, and extend it to the Council. Negotiations on this proposal are ongoing, but according to EU sources, a Council position may be agreed next week.
“We need to take a major step forward on lobbying transparency during this mandate,” Timmermans told EURACTIV. “The Commission has led by example by applying a simple principle when it comes to lobbyists: no registration, no meeting. If all three institutions applied that rule, then not being on the register would cease to be an option for Brussels lobbyists.”
The proposal, however, would only extend to the Council secretariat and the EU country holding the rotating presidency. The EU does not have the authority to impose transparency rules on the 28 perm reps, which are essentially embassies.
As we will explore in this series, the level of transparency for EU governments varies widely. Scandinavia and the Netherlands tend to be the most transparent, while Central and Eastern Europe are the least open.
Last week, the Dutch government published a paper, to be presented to a ‘Bringing Europe Closer to its Citizens’ summit in Tallinn on 26 November, asking the perm reps to sign up to a voluntary code of conduct. The hope is to get all 28 perm reps to sign up, but it may be an uphill struggle.
“In a representative democracy citizens have the right to know whether their legislators voted in favor of or against a law or proposal,” the paper says. “The EU currently does not live up to this democratic standard and the Council, in particular, regularly violates EU transparency regulations.”
It is clear which EU institutions, and which parts of the process, have transparency problems. The question is whether there is the political will to shine more sunlight on these opaque processes.
The European Commission has proposed a mandatory Transparency Register covering all three EU institutions – the European Parliament, the Council and the Commission - on 28 September 2016.
The Commission proposed that all three institutions be subject to the same minimum standards for the first time. Under these proposals, meetings with decision-makers from the three institutions would become conditional on prior registration in the Transparency Register.
The Juncker Commissions' commitment to greater transparency, set out in the Political Guidelines, has already been put into practice in several ways.
Since the Commission introduced this rule for its own interactions with interest representatives in November 2014, there were around 4,000 new entries in the existing Register. Registrants who fail to comply with the Code of Conduct could face temporary suspension of their interactions with the institutions or removal from the Register.
- European Commission, Proposal for an interinstitutional agreement on a mandatory Transparency Register, COM(2016)0627
- European Commission, draft decision of 12 September 2017 on a Code of Conduct for the Members of the European Commission
- European Parliament, Decision on the modification of the interinstitutional agreement (IIA) on the Transparency Register, 2014/2010(ACI)
- European Parliament. Decision of 11 May 2011 on conclusion of an interinstitutional agreement between the European Parliament and the Commission on a common Transparency Register, 2010/2291(ACI)
- European Parliament, Resolution of 8 May 2008 on the development of the framework for the activities of interest representatives (lobbyists) in the European institutions, 2007/2115(INI)
- European Commission, Decision of 25 November 2014 on the publication of information on meetings held between Members of the Commission and organisations or self-employed individuals, 2014/838/EU
- European Commission, Public consultation on a mandatory transparency register
- European Parliament, resolution of 14 September 2017, Transparency, accountability and integrity in the EU institutions
- European Parliament, Committee on Constitutional Affairs draft own initiative report on Transparency, accountability and integrity in the EU institutions, 2015/2041(INI)
- European Parliament, Plenary Debate of 5 October in Strasbourg on the Interinstitutional Agreement on the Transparency Register, 2016/2820(RSP)
- Council, Commission Proposal for an Inter-Institutional Agreement on a Mandatory Transparency Register - Legal analysis, 5151/17, 11 January 2017
- Conference of Presidents of the European Parliament, EP negotiating mandate of 15 June 2017
- European Parliament, EPRS, Public consultation on the Transparency Register: towards a mandatory Transparency Register for lobbyists, At a glance, April 2016
- European Parliament, EPRS, EU Transparency Register, Briefing, May 2016
- European Parliament, EPRS, Transparency of lobbying at EU level, Briefing, December, 2015
- European Parliament, IPOL, Interest representatives' obligation to register in the Transparency Register EU competences and commitments to fundamental rights: in-depth analysis, 2014