Saturday

3rd Dec 2022

EU ombudsman urges Council to publish secret documents

  • Emily O'Reilly argues that the legislative procedure should be more transparent (Photo: European Parliament)

The EU ombudsman on Tuesday (13 February) called on the Council of EU, where national governments meet, to record member states' positions and to open up preparatory documents to the public.

The EU's public advocate argues that making governments negotiating in Brussels more accountable to their citizens will help curb the rise of populism in the EU.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

Following an investigation into the transparency practices of the council launched in March 2017, ombudsman Emily O'Reilly has found that the institution "undermines citizens' right to hold their elected representatives to account".

The ombudsman said that the council systematically failed to record the member states' positions during discussions on draft legislation.

She also found that the council "disproportionately" marks documents as 'LIMITE', not for circulation, or limited in French.

"The approach falls short of what is expected of the council in terms of legislative transparency," the ombudsman noted.

"For the most part, it is not possible at present for EU citizens to keep themselves informed, in real time, on legislative matters being dealt with by the council," the investigation has found.

The ombudsman called on the council to "systematically" record member states' positions in working groups and in EU ambassadors' meetings, and to make these documents "proactively available to the public in a timely manner".

According to its own internal rules, the council - for now - cannot proactively publish member states' positions, even though a European Court of Justice ruling in 2011 said it should not refuse access to countries' proposals or amendments.

O'Reilly is also asking for clear and publicly available criteria on the use of 'LIMITE' status, which the council now uses as a default option, something that a Dutch parliamentary attorney described as unlawful.

"The current widespread and arbitrary practice, of marking most preparatory documents in ongoing legislative procedures as 'LIMITE', constitutes a disproportionate restriction on citizens' right to the widest possible access to legislative documents," the ombudsman's investigation has found.

The ombudsman wants answers by May this year.

Blame Brussels – no more

The Council of the EU is one of the most opaque institutions in Brussels. It is one of the co-legislators alongside the European Parliament.

Before ministers formally take decisions, EU ambassadors and national experts in different working groups haggle over the proposed legislation.

EU ambassadors meet regularly, their discussions are not recorded, and member states' individual positions are concealed, so as to give them the widest possible room for manoeuvre out of the public's eye before the formal vote.

The exception to this is when a member states' political interest is to publicise a disagreement and put pressure on the opponents.

Governments sometimes also make use of the secrecy by distancing themselves from common decisions they have supported, thus shedding political responsibility.

Before a compromise reaches the ministers' tables, there is very little public oversight on how different interests and arguments shaped the draft legislation.

The blurred workings of the council expose the EU as an easy target for populists, who aim to reinforce the image of Brussels issuing "diktats" created by faceless bureaucrats that are out of touch with public opinion.

"In the past, this 'blame Brussels' phenomenon, which misrepresents the reality of how EU legislation is agreed, has raised concerns about the democratic legitimacy of the Union. This in turn helps to promote euroscepticism and anti-EU sentiment," O'Reilly's investigation states.

Opening up the council to the public would tie the countries' hands tighter, but might quell populists' arguments against the secretive EU and "help reduce citizens' alienation".

"It's almost impossible for citizens to follow the legislative discussions in the council between national government representatives. This 'behind-closed-doors' approach risks alienating citizens and feeding negative sentiment,"O'Reilly said in statement.

She added that making the institutions more transparent before the European elections in 2019 could send "an important signal" on being more accountable and open.

"If citizens do not know what decisions their governments are taking, and have taken, while shaping EU laws, the 'blame Brussels' culture will continue. EU citizens have a right to participate in the making of laws which affect them, but to do so, they need more openness from their governments in Brussels," O'Reilly said.

EU ombudsman asks Tusk for more transparency

Emily O'Reilly wants the European Council president to ask the council to join the transparency register, publish information on meetings with lobbyists and publish more notes on the EU leaders' work.

Ombudsman probes secret Council lawmaking

Emily O'Reilly has launched an inquiry into whether the EU Council, where member states are represented, allows sufficient public scrutiny of the drafting of laws.

MPs demand Council become more transparent

Three Dutch MPs, on behalf of 26 national parliamentary chambers across the EU, are demanding more transparency. 'The Eurogroup is the most opaque of them all,' complained Dutch MP Omtzigt.

Getting secret EU trilogue documents: a case study

On Thursday, the European Parliament will vote on a political deal on organic farming, following 19 months of behind-closed-doors negotiations. EUobserver here details a five-month odyssey to get access to the secret documents that led to the deal.

Portugal was poised to scrap 'Golden Visas' - why didn't it?

Over the last 10 years, Portugal has given 1,470 golden visas to people originating from countries whose tax-transparency practices the EU finds problematic. But unlike common practice in other EU states with similar programmes, Portugal has not implemented "due diligence".

Stakeholders' Highlights

  1. Nordic Council of MinistersCOP27: Food systems transformation for climate action
  2. Nordic Council of MinistersThe Nordic Region and the African Union urge the COP27 to talk about gender equality
  3. International Sustainable Finance CentreJoin CEE Sustainable Finance Summit, 15 – 19 May 2023, high-level event for finance & business
  4. Friedrich Naumann Foundation European DialogueGender x Geopolitics: Shaping an Inclusive Foreign Security Policy for Europe
  5. Obama FoundationThe Obama Foundation Opens Applications for its Leaders Program in Europe
  6. EFBWW – EFBH – FETBBA lot more needs to be done to better protect construction workers from asbestos

Latest News

  1. EU must break Orbán's veto on a tax rate for multinationals
  2. Belarus dictator's family loves EU luxuries, flight data shows
  3. How Berlin and Paris sold-out the EU corporate due diligence law
  4. Turkey's EU-funded detention centres ripe with abuse: NGO
  5. In green subsidy race, EU should not imitate US
  6. EU Commission proposes suspending billions to Hungary
  7. EU: Russian assets to be returned in case of peace treaty
  8. Frontex leadership candidates grilled by MEPs

Stakeholders' Highlights

  1. European Committee of the RegionsRe-Watch EURegions Week 2022
  2. UNESDA - Soft Drinks EuropeCall for EU action – SMEs in the beverage industry call for fairer access to recycled material
  3. Nordic Council of MinistersNordic prime ministers: “We will deepen co-operation on defence”
  4. EFBWW – EFBH – FETBBConstruction workers can check wages and working conditions in 36 countries
  5. Nordic Council of MinistersNordic and Canadian ministers join forces to combat harmful content online
  6. European Centre for Press and Media FreedomEuropean Anti-SLAPP Conference 2022

Join EUobserver

Support quality EU news

Join us