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17th Apr 2021

Ombudsman probes secret Council lawmaking

  • The EU ombudsman asked the council to clarify how documents from the various meetings of national civil servants and ambassadors are handled in accordance with EU transparency standards. (Photo: consilium.europa.au)

The EU ombudsman has decided to look into how European law is made in the EU Council, the institution that represents national governments and has been called a "black hole" by transparency NGOs.

“In the current political climate, it is vital to ensure clarity for EU citizens on the shaping of EU laws," Emily O'Reilly said on Tuesday (14 March), while announcing an inquiry.

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  • Emily O'Reilly is worried about secret lawmaking. (Photo: European Union)

"This would help to clear up some popular misunderstandings about who exactly develops and agrees new laws, and separate out in the public mind the responsibility of ‘Brussels’ from the responsibility of the member states,” she said in a statement.

As the first step in her investigation, O'Reilly asked the council to clarify how documents from the various meetings of national civil servants and ambassadors are handled in accordance with EU transparency standards.

Questions include when and how the positions of individual countries on draft laws are recorded and how the body has implemented a 2013 European Court of Justice ruling on council transparency.

“There appear to be different practices in preparatory meetings in relation to the documenting of outcomes or compromise proposals, and when these documents are published," O'Reilly noted.

She went on to say that "While there must be scope for flexibility, such documents are nonetheless the only way the public can follow the process and see the changes made to draft EU laws in the council."

The ombudsman also asked how the council decides on which documents should be classified as "LIMITE", which is the lowest level of secrecy classification.

Last week, a Dutch parliamentary attorney said that the council's rule of thumb to mark all internal documents as LIMITE was "incompatible with European transparency law".

The council should reply to the ombudsman's letter before June.

Trilogues

The abstruse nature of the council is a burning issue, as national capitals are becoming ever more powerful in setting the EU political agenda.

Transparency has also been curbed by the trend of passing almost all bills in first and "early second reading" in the European Parliament. The process means hammering out laws behind closed doors and people have to rely on leaks and inside sources to understand what is happening.

Most decisions are taken during trilogues, informal meetings that bring together the co-legislators, despite the fact that such meetings are not formally enshrined in the EU Treaties.

The ombudsman published the results of an inquiry into the transparency of trilogues last summer.

In a letter dated 14 February and published on her website,O'Reilly asked the council to inform her before November of progress made on in the discussions related to her strategic inquiry.

The article was corrected on 14 March to say the ombudsman had published a letter to the Council on her website, rather than that it was leaked by Statewatch.

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