It is currently difficult for the public to follow how EU laws are made. This is because the Council - where Member States are represented - remains relatively inaccessible. Documents are difficult to get hold of and Member States’ positions on a given law are not public. The EO opened an own-initiative inquiry into Council legislative transparency and has called for a series of transparency steps to be taken.
There are two co-legislators in the EU - the European Parliament and the Council of the EU. While it is easy to follow how a draft law progresses through the various committees in Parliament until the final vote in plenary, the same cannot be said of the Council, where Member States are represented.
Once a draft law is proposed by the European Commission, it essentially disappears from public view as it makes its way through various Council working groups before being agreed at the political level.
The lack of transparency means that citizens do not know what their government’s position is on a given draft law. The EO’s inquiry and subsequent proposals for change are meant to shed light on the legislative process so citizens can better hold their governments to account.
Among the Ombudsman’s recommendations are that the Council systematically record Member State positions both in its preparatory meetings and in COREPER (ambassador) meetings; and that it draw up clear criteria for the classification of Council documents as the current practice severely limits their timely accessibility.
The Ombudsman also proposed that the Council set up a dedicated webpage for each legislative proposal and that it make its public register of documents more user-friendly.
Recording Member States’ positions on a draft law will also help bring the ‘blame Brussels’ culture to an end as it will be clear how governments shaped a given law or policy. The general public will be the main beneficiary of a more transparent legislative process, while EU democracy as a whole will be strengthened.
The ultimate aim is to change the culture in the Council so that Member States accept that increased public oversight on how EU laws evolve is good for the political and democratic esprit of the European Union.
What Makes Your Project Innovative?
In EU Member States it is normal for citizens to know their government’s position on draft laws. At the EU level, Member States tend to approach law-making in international diplomacy mode. In other words, deals and compromises are made behind closed doors with the expectation that details on national positions remain undisclosed to the public. The EO’s innovation is to challenge this way of thinking and make it possible for citizens to closely follow the evolution of a draft piece of legislation to its final shape.
What is the current status of your innovation?
The EO's inquiry in the legislative transparency of the Council of the EU began in 2017. and was closed in 2018. However, the case status can be considered to be ongoing as the process of cultural change that the Ombudsman is asking for takes time to occur. Since closing the inquiry, the Ombudsman has received the overwhelming support of the European Parliament for her transparency proposals in this area. The EO will continue to monitor how the Council implements her proposals.
Collaborations & Partnerships
The EO held a public consultation on how to improve legislative transparency in the Council and took the responses on board when drawing up proposals to improve accountability. The use of public consultations by an Ombudsman can help illustrate the strength of public interest in an issue and therefore increase the pressure for change.
Users, Stakeholders & Beneficiaries
While certain stakeholders who rely on knowing the status of draft laws - such as journalists and civil society organisations - are likely to be directly affected by increased transparency in this area, the benefits will also be felt by EU citizens as a whole as the law-making process will become more familiar and easier to understand.
Results, Outcomes & Impacts
The EO sent a Special Report to the European Parliament, asking for its support for her measures. Her three Recommendations and six proposals to make it easier for citizens to follow law-making in the Council were strongly endorsed in plenary in January 2019. This sent an important political signal ahead of the European Parliament elections in 2019. As of the time of writing, the Council has not yet formally replied to the EO’s proposals.
Challenges and Failures
One factor that had to be taken into account was that transparency means different things to different Member States. What is seen as a normal level of law-making transparency in one country may be seen by another as too little or too much. In addition, Member States have been shaping EU laws in this manner for several decades so instilling change agreed by all takes time.
The EO anticipated these issues by making proposals that would be of real benefit to the public while still being feasible for Member States. For example, governments would still have space to negotiate on laws even after the implementation of all of the EO’s suggestions. The EO also anticipated that the Council would ask for longer than the given time (3 months) to come back with a response to her proposals, and noted in the original proposal that no extension of deadline would be granted. When Council did ask for a deadline, the EO decided to turn directly to the European Parliament for support.
Conditions for Success
One of the first and most important steps was to build a strong accurate case for opening the inquiry. This entailed looking into how exactly a draft law makes its way through the Council, and detailing how decisions are made and recorded. This meant that not only the Ombudsman’s team but, as importantly, the public could see where the problems were and where potential changes needed to be made.
Other conditions for success were the public consultation (to which the EO received several valuable replies and which lends a certain public pressure for change) and the regular press work to highlight the different steps of the inquiry, why we were doing them and what we hoped to achieve.
There is no reason why the pillars of this investigation
- thorough preliminary research
- listening to stakeholders
- holding a public consultation
- eliciting the support of the local parliament or assembly
- maintaining media interest through interviews and press releases and via social media
cannot be replicated in a similar inquiry by ombudsman offices elsewhere if there is a need to open up opaque decision-making processes.
The lessons taken from this inquiry are similar to those arising from other inquiries, namely that it takes time to change culture in a public administration and that sometimes success comes only incrementally.
As with other major inquiries of this nature, EO case-handlers took time to explain what the EO wanted from the inquiry and why; and also took time to listen to explanations as to why things were done in a certain way. Even if the EO ultimately found that certain processes had to be changed, the exchange of views helped to foster a constructive atmosphere.
https://twitter.com/EUombudsman/status/1085890156433793030 http://www.europarl.europa.eu/news/en/press-room/20190111IPR23224/ep-urges-council-to-become-transparent-expands-ombudsman-s-recommendations ; https://twitter.com/aidanosullivan/status/1085864668323815425
5 March 2019