Law and Rights
Steve Peers
The EU is often accused by critics of a lack of openness and transparency ? and often such criticisms are justified. This is particularly the case as regards the EU legislative process. In principle, this process ought to resemble the open process seen in national legislatures, with full public access to the drafts of legislation that passes through the legislative chamber(s).
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- Protecting The Rule Of Law In The Eu: Should It Be The Commission's Task?
Steve Peers For some time now, in particular in light of disputes about the behaviour of governments in Romania and Hungary, there has been concern about the protection of the rule of law within the European Union. While the EU can sanction infringements...
Law and Rights
Access to documents: the Council might not implement a key CJEU judgment
Steve Peers
The EU is often accused by critics of a lack of openness and transparency ? and often such criticisms are justified. This is particularly the case as regards the EU legislative process. In principle, this process ought to resemble the open process seen in national legislatures, with full public access to the drafts of legislation that passes through the legislative chamber(s).
However, despite the adoption of a general Regulation on access to documents in 2001, this aspect (among others) of EU transparency is problematic. The reason for this is that, within the Council, some Member States wish to keep their positions secret, at least while the negotiations are ongoing. Of course, this profoundly undermines the argument that citizens of each Member States, via national parliaments, can hold each individual government accountable for its action within the Council. For some Member States, though, accountability would bring embarrassment.
The CJEU, in accordance with its prior case law emphasising the importance of transparency in the EU legislative process, ruled in the Open Access Info judgment last year that the names of Member States in principle had to be released to the public. This ruling would seem to be straightforward enough. But the Council is trying to wriggle out of it.
According to an internal Council document discussed by Member States? EU ambassadors (Coreper) last week, the Council is considering three options: referring always to Member State positions; making no reference to Member State positions; or continuing an unsystematic approach to this issue. The first option (full transparency) is rejected, because it sometimes this will not be ?appropriate?, ie it might embarrass Member States. The second option is rejected, because it will be useful to have a record of Member States? positions. So the suggestion is for the third option.
If this third option is chosen, what seems likely to result is that whenever a Member State believes that its position might be embarrassing, it will ask that there should be no listing of its name in the footnotes. Moreover, the Council document does not foresee any active transparency, ie disclosing a document with Member States? positions as soon as it is drawn up. The new rules (when agreed) will only apply to documents when an individual requests a copy of them. By the time that the Council replies to such a request, discussions on a particular issue could have moved on and so there will not be an opportunity to have a public debate on whether a particular Member State?s position is justified.
So the whole process of challenging the Council in Court as regards this crucial aspect of EU legislative decision-making is ultimately likely to have only limited practical effect. Perhaps the next step in this battle will have to be non-judicial: either a demand by the European Parliament that the Council open up its legislative proceedings further (or at the very least, that both institutions open up the secretive ?trialogue? process); or a complaint to the European Ombudsman that the Council should proactively make all its legislative documents public without individual request.
Barnard & Peers: chapter 3, chapter 8
- On Knowledge As Power: Transparency Of Eu Law-making Procedures
Päivi Leino (University of Helsinki) 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...
- The Commission?s Power Of Initiative: The Cjeu Sets Important Constraints
Steve Peers As every EU politics or law student learns, a key feature of the Commission?s role as the ?motor? of EU integration is its near-monopoly on making proposals for EU action. But does that near-monopoly ? which the Commission likes to...
- More Research Is Needed: The Eu?s Attempt To Attract More Non-eu Researchers And Students
Steve Peers The economies of the EU?s Member States, like other advanced developing countries, increasingly need highly-skilled workforces. But since the EU?s current laws have only had a modest impact on attracting more students and researchers...
- In Vino Veritas: The Cjeu Again Strengthens The Eu?s External Role
Steve Peers Only a few Member States produce good wine; but it is quaffed enthusiastically in all of them. That simple fact lies at the heart of today?s judgment in Germany v Council, in which the CJEU, consistently with a string of recent judgments,...
- Protecting The Rule Of Law In The Eu: Should It Be The Commission's Task?
Steve Peers For some time now, in particular in light of disputes about the behaviour of governments in Romania and Hungary, there has been concern about the protection of the rule of law within the European Union. While the EU can sanction infringements...