On knowledge as power: transparency of EU law-making procedures

One of the great achievements of the Lisbon Treaty, flagged around its adoption and entry into force, was how the new Treaty would make EU law-making much more transparent. So far, this has remained an unfulfilled promise. Access to documents relating to the EU legislative procedure, in particular trilogues, the informal three-party meetings between the European Parliament, the Council and the Commission used at every stage of the EU legislative procedure, has become particularly topical during the past months.

First, the new Interinstitutional agreement (IIA) on Better Regulation, provisionally approved in December 2015, addresses this question. Second, on 15 December 2015, Emily O’Reilly, European Ombudsman, launched a public consultation on transparency of trilogues, stressing their role as the forum where the deals are done and the subsequent need to consider the proper trade-off between the Europeans’ right to open EU law-making processes and the space to negotiate. Finally, Emilio De Capitani, the previous head of the LIBE Committee Secretariat, has brought an appeal against the European Parliament’s decision to refuse full access documents relating to a legislative proposal. De Capitani argues in essence that granting access to them would not specifically, effectively and in a non-hypothetical manner undermine the legislative decision-making process, and that notably after the Lisbon Treaty, legislative preparatory documents are subject to the principle of widest possible access.

The recent events raised a number of fundamental questions relating to how we understand the function of transparency in law-making that claims democratic foundations. Moreover, since EU law-making is currently not backed up by any shared interinstitutional space where documents and meeting schedules would be recorded in real time, following legislative procedures requires a serious amount of detective work for those with an interest in following them, and increases reliance on a culture of leaks. In brief, exercising your democratic rights should not be this difficult.

Access Info: News, 23.03.18: The General Court of the European Union rules in favour of greater openness of the EU legislative process https://www.access-info.org/article/30467

ECJ: Press Release, No,35, 2018 (22.03.18): The European Parliament must in principle grant access, on specific request, to documents relating to ongoing trilogues https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-03/cp180035en.pdf

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