Towards transparency by design in the EU – Emily O’Reilly


Citizens must have access to information in order to engage in the democratic life of the Union, argues the European Ombudsman.

A meeting of the Council of the EU – positions adopted by member states are not accessible

Twenty years ago, the European Union inaugurated a far-reaching and progressive law, soon known as the “Transparency Law”. Although imperfect, it has become the cornerstone of efforts to make the European institutions more accountable by giving concrete expression to the right of public access to their documents.

Over the years, this right has been enshrined in the treaties while European case law has clarified its scope. Two decades later, the law (Regulation 1040/2001) is well established and used by investigative journalists, civil society interest groups and activists, businesses large and small, and, most importantly, citizens themselves.

Flexible interpretation

Today, however, it is reasonable to ask whether the law and the way in which it is implemented by the European institutions fully comply with another of the rights of the public: the right to participate in the democratic life of the Union.

To participate fully in any democracy, citizens must be well informed. At the very least, they need to know how important decisions are being made, who made them and what the consequences will be. This requires not only modern legislation on access to documents, but also a modern and flexible interpretation of this law.

My office experiences how the law is implemented in practice, because people can turn to the ombudsperson when the European institutions refuse access to documents. Sometimes the institution is justified in its refusal – when disclosure could upset ongoing negotiations or private data could be compromised. More often than not, however, the refusal is based on a narrow interpretation of the law, is too vague, or there is simply such a delay in processing the request that the information sought becomes dated.

Text messages

Modern methods of communication have given another aspect to this debate. The transparency law comes from a radically different era, before smartphones and instant messaging, as well as the emergence of big data. People are increasingly using instant messaging for work-related communications, but it is not clear that the organizational culture and practices within the EU administration have caught up.

A recent complaint illustrated this. A reporter turned to my desk after being denied access to text messages about a Covid-19 vaccine, sent by European Commission President Ursula von der Leyen to the chairman of pharmaceutical company Pfizer.

The commission said it had no record of such text messages. The investigation – which is ongoing – allows my office to examine what policy the committee has on work-related text messages and how it is being implemented. My office is also examining how other major European institutions are dealing with this issue.

While text messaging is a relatively new and important part of this debate – and raises questions about whether the law needs to be changed – the EU administration could introduce some changes immediately. It could simply decide to go towards more proactive transparency, or transparency by design.

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Transparency after the fact

Many of the current issues with public access to EU documents, from inadequate document registers, staff unable to respond to requests for large amounts of documents, or delays in the system, are due to the fact that transparency is an afterthought.

If transparency is not a reflex within the culture of the European administration – even of any public administration – then the tendency to correctly register all documents, in order to publish them on demand, is absent. This means that each access request potentially initiates a long and laborious process, whether the requested document is relatively simple (such as a meeting report) or more complex. This is bad administration from the point of view of transparency but also in terms of efficiency and use of resources.

This question is at the heart of good governance. It is about making the European institutions accountable throughout the decision-making chain.

High public interest

As the EU grapples with the economic recovery from the pandemic, the decisions it makes are of paramount importance for our future well-being. One of the main pointers to the post-pandemic EU is the Recovery and Resilience Mechanism, a vast sum of money to be used to help member states recover from Covid-19 and move towards digital economies and green.

The effectiveness of this fund will depend on there being sufficient accountability for how and where the money is spent. My office has already received complaints about access to documents regarding the way Member States plan to spend the funds and the commitments they have made. We asked the commission to anticipate the great public interest in this matter and to start proactively providing information on the type of documents it has.

While there is currently a lot of interest in the stimulus fund, all major issues generate demands for information from citizens, from decisions on the environment to those on finances and, like last year, on vaccines against. the Covid-19.

Unfortunately, transparency is not yet the default position in EU administration. This means that too many decision-making remains isolated from the citizens.

Blatant example

The most glaring example is the Council of the EU, where the Member States are represented. It remains extremely difficult, even for Brussels insiders, to know what role a national government has played in the development of a given European legislation. This leaves citizens in the rather incredible position of not knowing officially how their government has negotiated, even on issues that are traditionally important to them – for example Spain on fishing quotas, Poland on agricultural policy or the ‘Germany on data protection laws.

This allowed a culture of ‘blaming Brussels’ to flourish, with the feeling among the public that EU laws are ‘made’ for them rather than approved by their own ministers. Change is happening slowly, but the ultimate goal – to register government positions so that they are accessible to the public – has not yet been achieved.

Understanding how policies and legislation are shaped is fundamental to building confidence in public administrations. The EU has a particular responsibility to work hard to foster this trust, as it can seem complex and distant.

To bridge this gap and strengthen its own democratic legitimacy, the EU’s decision-making process needs to be as transparent as possible. This includes document access rules that are flexible yet robust and fit for the times we live in.

Emily O’Reilly is the European mediator.


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