October 29, 2019
by Herwig C.H. Hofmann and Päivi Leino-Sandberg(*)
Transparency and openness of Union decision-making procedures are foundational values of the EU and essential to a system under the rule of law. But are the existing EU standards of transparency adequate to ensure that these values translate to legitimate exercise of public powers on the European level? In view of today’s challenges, is the EU’s approach to transparency sufficient, given that it is an atypical constitutional structure exercising sovereign powers across multiple levels of government and in constant need of explaining itself?
The European Council’s strategic agenda for 2019-2024 identifies respect of the principles of democracy, the rule of law, and transparency as a key focus, instructing each institution to “revisit its working methods and reflect on the best way to fulfil its role under the Treaties”. We whole-heartedly agree: there is an urgent need for such soul-searching reflection. The EU institutions’ implementation practices do not always live up to the Treaties’ values and transparency objectives. Rectification of that failure is of paramount importance to the future of the EU.
Regrettably, the mission letter of Věra Jourova, Commission Vice-President-designate for ‘Values and Transparency’, provides no concrete actions to deliver on the commitments included in the strategic agenda to develop the potential of the EU as a modern, open legal system connected to its citizens. To help fill that lacuna, we propose a set of ideas and concepts to create a new agenda for transparency in the EU. This agenda should be realized within the new legislative cycle beginning with the new Commission coming to office in late 2019.
We identify two dimensions of transparency that must be addressed: (a) access to documents and (b) intelligibility of decision-making procedures. Without these, the possibility of holding those exercising powers to account do not exist. A lack of transparency is one of the breeding grounds for mis-information campaigns and conspiracy theories, reducing the public to recipients of rumors and falsified information designed to sway emotions. Functioning transparency arrangements, instead, offer reliable information sources and contribute to accountability through public debate, democratic participation and effective judicial review.
Both legislative and non-legislative action will be necessary. We concentrate our thoughts on three areas for specific actions: First the EU needs to enhance access to documents and information across the board, irrespective of which policy area or type of decision-making procedure they relate to. Second, modern information technology must be used to enhance access while also addressing the great challenges that it creates to transparency in particular in the context of the increasing use of automated decision-making systems based on large EU databases. Third, transparency depends also on clarity and intelligibility of the system. The great potential to enhance transparency by simplification of the legal system by a Regulation under Article 298 TFEU must be used.
Defending and improving the right of access to documents
Article 15 TFEU clearly states that the obligation to grant access to documents has the objective to “promote good governance and ensure the participation of civil society”. The Treaty identifies transparency not merely as a tool for ensuring accountability. It is also vital for public participation and broader legitimacy of EU decisions. Accordingly, an agenda for transparency in the EU must build on the fundamental individual right of access to documents (Article 42 of the Charter) “whatever their medium”.
The current institutional practice to allow only limited access to legislative documents while making access to non-legislative documents increasingly difficult or impossible contravenes both the wording and the spirit of the principle of transparency enshrined in the Treaties.
The distinction between legislative and non-legislative documents does not stand scrutiny in light of EU constitutional provisions. Institutions and bodies of the EU have an obligation to guarantee ‘widest possible’ access to documents. While legislative documents, as the general rule, should always be available, this does not in any way imply that administrative or executive matters, in contrast, are to be conducted in secrecy.
We see some problems and many solutions.
A lack of transparency in the decision-making process by ‘informal’ EU bodies is one area of concern. For example, attempts to justify the secrecy of the Eurogroup’s activities with technical excuses, such as ‘it is not a formal institution or decision-making body of the Union’ and the opaque nature of its procedures, is simply indefensible. Transparency in the acts of a body whose decisions have far-reaching consequences for people’s lives is the very first condition of its legitimacy. Explaining what the Eurogroup is, what it does, and on what political grounds or legal basis would go a long way toward instilling trust in the EMU in the EU’s citizenry.
Another highly problematic area is constituted by the fields today covered by ‘general presumptions’ of secrecy. The Commission has successfully carved these out with the approval of the Court of Justice for nearly all areas of Commission investigations, even for highly political matters such as infringement procedures against Member States violating EU law. Transparency-conscience observers continue to be dismayed by these Court-approved presumptions. Not only have they proved impossible for individuals to rebut, but they also reach to areas that are vital to democratic processes within the Union. One can only speculate what it means to the Commission’s mode of operation to know that it is well-shielded from public scrutiny in key areas of its competence. We find this detrimental to accountability.
Legislative documents continue to be difficult to access especially while procedures are pending. In many instances the institutions continue to be reluctant to deliver even on the most basic demands imposed on them by the Treaties and the Court. For example, it remains excruciatingly difficult to obtain trilogue-related documents, legal advice and Council working party documents, Commission documents relating to legislative procedures or those relating to the Parliament’s shadow meetings or decision making within political groups.
Access is highly limited as regards documents in the context of delegated acts and comitology procedures relevant for the specification of legislative requirements. Also, EU agencies today host a great deal of valuable information and manage this often with fairly limited legal guidance for dealing with the balancing of interests they are called to do.
Improving public access to documents in order to strengthen the rule of law at the EU level does not require new legislation. The existing Regulation 1049/2001 already contains the tools necessary. From our perspective, improving access to documents requires decisive policy action in four straight-forward steps. These are, in our view, first, improving and centralizing document registers, second, making information pro-actively available and, third, ensuring that there are clear rules on classified versus non-classified documents. Fourth, no institution should be able to hide behind privacy protection when conducting public affairs.
The basic requirement of access to documents are well-kept document registries that span EU institutions and bodies in all areas of EU action. EU institutions are obliged, by virtue of Regulation 1049/2001, to set up comprehensive and public document registers. In practice, none of them live up to this requirement. The institutions are frequently complaining about excessive requests and the administrative burden that relates to managing requests that are broad and generally formulated. What they seem to fail to consider is how their poor registration practices contribute to their burden.
Functioning public registers are vital for reducing the depth of in-transparency and enabling civil society to follow and request specified information. In that regard, all EU institutions, bodies, and agencies should be obliged to introduce modern document management software that supports both document registration and tracking documents as well as ensures that confidential information is correctly identified and pre-screened.
The basic standard of a registered document should be proactive accessibility. In the ‘Interinstitutional Agreement of 13 April 2016 on Better Law-making’, the European Parliament, the Council of the European Union, and the European Commission contemplated a ‘Joint Legislative Portal’: that is, a “dedicated joint database on the state of play of legislative files” (paragraph 39). Unfortunately, after making that commitment, no further progress has been reported. The Commission has even advised that its own explorative efforts focusing on its various public and nonpublic document registers and databases might not be complete until 2023.
Modern standards of a democratic society require nothing less than the EU institutions place documents pro-actively on-line. Using modern IT to ensure timely, accessible pro-active publication of documents is in line with the right of citizens to access such information as it arises. The current reactive approach allows institutions and bodies to wait for potential ex-post access-requests with the consequence of then having to deploy its administrative resources in a scramble to trace the documents requested, often with great delays in time and often questionable results.
The new gold standard is the new EFSA regulation (2019/1381), which requires timely and pro-active publication of documents in the field of food safety procedures. Importantly, the EFSA standard requires information to be made available during decision-making procedures and not only after relevant decisions have been taken.
Registration and providing pro-active access are often further hampered by classification of documents as secret. There is a clear connection between the institutions’ classification practices and public access. We believe that the institutions should have clear rules on classification of documents, establishing that certain categories of the latter would none-the-less be registered and making classification practices subject to public scrutiny, which they currently escape.
A new balance also needs to be found between data protection and access to documents. Article 86 GDPR specifically calls for necessary “reconciling” of access to public documents and data protection rules. A particular problem has arisen with the over-extension of privacy protection when individuals exercise public functions or give expertise. Information submitted in a public or expert hearing in a legislative or non-legislative dossier must in principle be open to the public and the EU should align itself with the established jurisprudence of the European Court on Human Rights in this field.
Finally, the CJEU itself should become more transparent to the benefit of the citizens. The CJEU is the highest Court in the EU, balancing often highly politically charged questions. Free, fair and public procedures are all key elements of the rule of law. While adjudicating matters that are of European (and even global) importance, CJEU hearings are only accessible to persons physically able to attend them and they are based on arguments of which the public has only the most cursory of information in the Official Journal. The CJEU transparency policies are strikingly limited when taking into account the importance of the outcome of its decision-making, and the practices of other international and national courts. ‘Justice must not only be done, but seen to be done’ is always a good guideline for legitimate decision-making. To achieve that goal, the CJEU must make a serious commitment to transparency.
Embracing digitalisation as an opportunity to enhance transparency
One of the difficulties of ensuring transparency lies in the complexities of multi-level decision making structures. In reality, de-centralised decision making is based on common data bases to implement EU law and policy in policy areas such as Schengen, immigration, or food safety. Software searching and processing information in such data bases is becoming increasingly sophisticated. Where software is based on complex algorithms, the input into decision making, the weighing of factors which have been taken into account and their relation to decision-making output often remain unclear. These developments get amplified with increasing deployment of machine learning technology and emphasize the need to ensure appropriate transparency requirements in order to ensure that new ways of decision-making and managing data comply with the rule of law and accountability of administrative actors in the scope of EU law.
When individuals are faced with decisions taken by Member State authorities that are based on composite procedures involving input from other Member States or EU bodies, they often find it extremely difficult (if not impossible) to identify, much less challenge, the validity or legality of the ‘foreign’ components of those final decisions. This problem is exacerbated in areas where software steps in the place of administrative rule-making as a bridge between (abstract) legislative provisions and (concrete) single case decision making. If software is not transparent in what it does to take decisions, which information was taken into account and how that information was balanced, both transparency and reviewability of action is lost.
We believe that the new EU transparency agenda must be used to ensure accessibility of information in decision-making procedures irrespective of whether the decision-making is paper-based or electronic, and irrespective of how many elements of a decision-making process are conducted by computers. The ability to clearly explain the relevant software algorithms and their specific role in EU decision-making processes, with a focus on making decisions relying thereon both comprehensible and reviewable, is the new frontier for transparency and openness in the EU.
Simplifying and clarifying responsibility and procedural rights – making the system more intelligible
Transparency also sets structural demands on EU decision-making systems. They need to be intelligible. The EU’s specific multi-level system provides different admixtures of cooperation procedures among EU bodies and the Member States in legislative and administrative decision-making procedures. Such complexity, together with the citizenry’s general lack of familiarity with such cooperative procedures, dictates heightened levels of transparency, so that affected parties can trace who is taking which decision by what means, on the basis of what input, and with what consequences, as well as to understand how to seek recourse in the event of an erroneous, unsubstantiated, or improper decision.
The structural complexity of decision-making procedures within the multi-level legal system and the new threats to transparency within the legal system require a fundamental rethinking of approaches. The vast majority of the EU’s complex decision-making procedures is regulated in policy-specific legislative acts. Solutions can develop in specific policy areas, as the example of the new EFSA Regulation of June 2019 shows.
But, transparency problems are inherent and systemic and they will continue to haunt EU law as long as each EU act builds on specific procedural decision-making provisions. Much could be gained from the EU’s adoption of a highly visible and broadly accessible set of procedural rights and principles that would be applicable across all EU policy areas.
To our knowledge, the only legal basis in the Treaty of Lisbon that has not yet been used is Article 298 TFEU. This Article would enable the adoption of an EU regulation on administrative procedures, something that the European Parliament has repeatedly (2001, 2013 and in 2016) called for. Simplification would bring clarity as to individual rights and duties in various steps of decision-making procedures including basic rights of good administration already included in Article 41 of the Charter: the right to be heard, access to one’s file and the duty of reasoning. In this context, also responsibilities relating to who grants access to documents and which body is in charge of correcting incorrect information about a person could be clarified.
The drafts provided by the European Parliament (2016) and by the ReNEUAL (Research Network on EU Administrative Law) address these questions effectively. In these model rules, the new regulation would apply to single case decision making, administrative rule-making and administrative contracts. It would apply to EU institutions and bodies and the Member States when acting in the context of EU controlled composite procedures. An EU regulation on administrative procedures would need to be written with requirements of transparency and the challenges of the digital age in mind. It would need to address information sharing, automated decision making and composite procedures.
While the objective of simplification has figured on the EU agenda for years, the arguments used to reject previous proposals resemble those invoked by the Member States prior to the adoption of national acts on administrative procedure (e.g., by Germany in the 1960s and 70s, by Italy and Netherlands during the 1970s through the 90s, and until very recently, France). However, today most Member States have codified their administrative procedure law providing ample case studies of how to proceed on the EU level.
The Commission remains reluctant to clarify the rights of individuals or the corresponding duties of institutions in this respect. This is particularly embarrassing considering that the Commission is the institution whose work would be most affected by the new provisions. We believe that codification of administrative procedures is urgent, with the legal system of the EU growing increasingly complex, containing ever more redundant multiplications of similar rules, overlapping provisions requiring even for the protection of basic procedural rights of individuals expensive legal expertise. In 2019, there is no acceptable excuse for not including an EU administrative procedure regulation in the Commission legislative agenda. A continued failure to do so undermines in our view the Commission’s commitment to improving EU administration for the benefit of its citizens.
The EU has come a long way since the adoption of its public access legislation (Regulation 1049/2001) in 2001. In many respects, however, the world around the Regulation has changed.
Too often, the institutional reaction has been to focus on ways how to restrict transparency as a bureaucratic nuisance. Slowly but surely, the EU transparency standards are eroding, instead of advancing in pace with societal needs, technical possibilities and the urgency to maintain the EU as a viable and legitimate policy forum for decision-making. Transparency is often selective: it is privilege for the chosen few, by means of access to leakages, that frequently happen.
The EU institutions too often display a lack of understanding of the fundamental nature of transparency by adopting a purely defensive approach. Instead, we need a focus on the legitimacy-strengthening effect of transparency. While transparency might occasionally require an additional effort to be undertaken by the Union’s administration, we believe this to be a worthy trade off in improving the quality of decisions to be taken. It allows to make decision making and public debate more vivid and accessible.
The Treaties are clear about the dual objective of transparency. And it is a good one. An inclusive approach is key to improving the quality of EU decision making. The broader the base of information available to decision making bodies, the more interests can be taken into account in defining the “general interest of the Union” (Article 17(2) TEU).
EU public access policies should be realistic in a world where few things remain permanently hidden. This does not mean that everything needs to be public by default. However, keeping information inaccessible, by declaring it a secret or simply de-facto not giving access, should be limited to carefully considered and reasoned cases applying to individual documents.
If legislative action were considered, it should relate to specifying and harmonizing administrative practices under Article 298 TFEU, including provisions on automated decision-making procedures. This is the locus for simplification and addressing the ‘new frontier’ of regulation regarding digitalization.
Access to data should be organized according to ensure simple accessibility of well-organized data. Modern document management software can help – irrespective of whether a document is in a legislative or a non-legislative procedure. Timely access before a final decision is taken is central to participate in debate. Pro-active publication is a pre-condition for accessibility but will also allow to reduce the time necessary to react to access requests.
Being proactive is unlikely to result in fewer requests from the citizens. For the EU, this is good news. Greater transparency is likely to result in greater interest in the Union. The Union relies on the critical engagement of its citizens. Responding to this challenge is a question of the utmost importance to the EU and should be prominently on the agenda for 2019-2024.
(*) Herwig C.H. Hofmann is Professor of European and Transnational Public Law at the University of Luxembourg; Päivi Leino-Sandberg is Professor of Transnational European law at the University of Helsinki.
 See e.g. Articles 10(3) and 11(2) TEU; Articles 15, 297 and 298 TFEU; Article 42 of the Charter of Fundamental Rights of the European Union (Charter).
 See for example in EU’s traveller risk assessment, screening rules and watchlists established under the EU’s Electronic Travel Information and Authorisation System (ETIAS) as well as its Multiple Identity Detection (MID) system.
 As the ETIAS and MID systems illustrate.Frédéric Allemand