EU ombudsman urges Council to publish secret documents

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.