Secrecy that undermines the right of self-defence

Date: 02/05/1996

Georg M. Berrisch argues that the Commission should have nothing to fear from greater transparency and accountability in its legal and administrative proceedings.

MANY EU citizens consider the European Commission to be a secretive and remote institution. They argue that it is impossible to know who decides what and why, and often believe that political deal-making prevails over the rule of law.

In other words: they complain about a lack of transparency and accountability. Is this criticism justified, or is it due to (probably intentional) misinformation by the media, national politicians and decision-makers? More importantly, what could the Commission do to improve its poor public image in this respect?

Some of the problems are no doubt caused by a lack of knowledge. It is always surprising how little most people, including those holding important positions in private or public life, do - in fact - know about the way both the Commission and the Community in general function.

On the other hand, can one really expect an ordinary citizen who is not professionally involved with the Community to understand the co-decision procedure of Article 189b?

If you know how to find your way around, the Commission can actually be a very important source of information. For example, if you need to know the state of legislation in a given field and call the Commission official responsible, you will rarely be turned away. Normally, the official will take the time to answer your questions and discuss the matter with you.

The same holds true if you have questions concerning the interpretation of unclear provisions of Community law, or doubts about how to deal with a case which is not specifically regulated.

Because Community law is, in many respects, still developing, such questions arise rather frequently and Commission officials are, indeed, generally quite keen to hear about them.

In addition, such enquiries can be made 'off the record'. Of course, the answers you get will not necessarily reflect the Commission's official position nor do they bind it, but they do help.

My impression is that, in this respect, the Commission is more accessible and more helpful than many national administrations. Unfortunately, very few people know that.

However, providing general information on non-controversial issues is one thing, transparency and accountability, particularly in administrative proceedings, is quite another.

Despite some progress over the past decade, the right of defence of private parties who are the subject of such proceedings is still relatively poorly developed. Only very few provisions for this are contained in Community legislation, and other than in Germany, for example, no general administration law exists in the Community.

It is the European Court of Justice and, more recently, the Court of First Instance which have steadily developed the right of defence in a series of important judgements.

One of the crucial issues in this context is disclosure. In order to exercise your right of defence, you must be informed about what you are defending yourself against. Otherwise, you risk missing the point without even knowing it.

Just how much the Commission is willing to disclose still quite often depends on the attitude of the Commission official responsible. Certain officials are more open, others less so. No clear guidelines exist and most people dealing with the Commission believe they are not being offered all the relevant information.

The situation is still worse in those cases designated as proceedings between the Commission and a member state, even though they directly affect private parties.

The most prominent example of this is state aid. The member state, rather than the beneficiary of the aid, notifies it to the Commission and participates in the proceedings. Equally, if the Commission investigates an aid already paid, its inquiries will be directed against the member state and not the undertaking. The Commission is neither under any obligation to disclose information to the company involved, nor to accept its submissions.

The Commission appears to have adopted a more open attitude to this recently. Nevertheless, the situation remains extremely frustrating for the beneficiary because it has to rely entirely on the member state. It becomes even more frustrating if information which it tried in vain to obtain is published in the press.

Furthermore, competitors who complain to the Commission about an alleged state aid have more procedural rights than the beneficiary of that aid. They make direct submissions to the Commission and it has an obligation to provide them with information about the inquiry. There is no reason why the complainant should have more far-reaching procedural rights than the beneficiary, whose very existence may depend on the outcome of the proceedings.

More generally, it no longer seems acceptable that citizens in the member states are not given the chance to defend their interests directly in proceedings where the outcome directly affects them.

There may have been a reason for denying them this right in the early stages of the Community, but if it really wants to become a Community of law and move closer to its citizens, such proceedings should now be abandoned.

Of course, the Commission alone cannot do this because it would require a change in the treaty or secondary legislation. But it could provide respective procedural rights on its own initiative. This would not harm the Commission, would probably only marginally increase its work load, and would certainly win it a lot of credit.

The issue of procedural rights, and in particular disclosure, is, of course, very much an issue of transparency and, ultimately, of accountability.

EU leaders recognised the importance of transparency in the decision-making process during the Maastricht negotiations and annexed a declaration to the final act on the Treaty of the European Union which stresses that transparency in the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration.

Eventually, the Council and Commission developed a code of conduct on access to documents held by the institutions. Certainly, this is a step in the right direction. However, it seems rather doubtful that this initiative alone will be sufficient.

In particular, the code of conduct contains some rather ambiguous exemption provisions which, it appears, the Commission intends to invoke in order to exclude whole categories of documents from the scope of the code of conduct and certainly those which relate to controversial decisions.

A case currently pending before the Court of First Instance will provide guidance on the interpretation of the exemption provisions of the code. If the Commission's view, shared by some member states, is upheld, the code will by no means make the decision-making process more transparent or make the Commission more accountable for its decisions.

The deficiency of transparency and accountability continues to be a problem if Commission decisions are challenged before the Court. The lack of disclosure during administrative proceedings may make it difficult - sometimes even impossible - to gather all the relevant evidence.

In Germany, for example, the administration must submit all the files relating to the case to the Court if its decision is challenged. The other party is given access to these files, with the exemption of those documents containing confidential data. Why not introduce a similar procedure into Community law?

Finally, why does the Commission try to avoid making its decision-making more transparent? What does it really have to fear? In the case of a sound decision, nothing (especially as in most administrative proceedings it enjoys relatively wide discretion). Of course, it would be more difficult for the Commission to cover up bad decisions. But should that be an argument for not doing it?

The Commission could actually gain a lot. Its reputation would no doubt be enhanced if it became more open and accepted that it was accountable for its decisions. Eurosceptic politicians in the member states would find it more difficult to accuse it of secretive behaviour.

But it is probably the member states who have the least interest in the Commission - and the Community at large - becoming more transparent. In fact, two of the member states whose politicians most often criticise the Commission for being too secretive and remote (France and the UK) are supporting the Commission in the pending court case concerning requests for access to documents.

They submit that the Commission should never disclose a document relating to infringement proceedings under Article 169 of the treaty, arguing that since these often have a direct impact on the lives of EU citizens, they must always be conducted in absolute confidentiality.

Their motive would seem to be obvious.

Georg M. Berrisch is resident partner of the Brussels office of the German law firm Schön Nolte Finkelnburg & Clemm.