Transparency is a regularly cited and praised principle (under the rule of law) in the life of any public institution, including the EU institutions. The European Court of Justice, the European Parliament, and the European Ombudsman often assess its realization in practice. Oftentimes other EU institutions, such as the European Parliament (EP) share strong, critical opinions about the transparency of the legislative procedure in the Council of the European Union (Council). It is unusual for these institutions to monitor the transparency of the decision-making of the EP, even though the Parliament is considered a co-legislator – the two being on equal footing in this system. Is the EP a “glass house” and the Council “a black box”? Or do issues of transparency paradoxically surface in the legislative process of the EP as well? This post formulates this argument into the paradox of transparent opacity and explains what the author means by this paradox.
Strong positions on transparency between EU institutions
The EP has often shared its position on the transparency of the workings of the Council and the European Commission. In its report adopted on the 13th of July 2023 regarding public access to documents, the Parliament has called on the Council to “meet in public when it deliberates and votes on a draft legislative act […] [and] the Commission, the Council and the EU agencies and bodies too often insist on in camera meetings without proper justification”. The European Court of Justice has also assessed the situation of the principle of transparency in the Council.
The European Ombudsman has examined the level of transparency in the Council in many reports, among them in the special report OI/2/2017/TE regarding transparency in the decision-making process in the Council. The Ombudsman herein states that for European citizens to be able to practice their democratic rights and participation in democratic processes, legislative deliberations need to be sufficiently transparent. According to the report, the practice of the Council constitutes as maladministration, as it is not possible to record the identity of Member States expressing their positions, while the possibility of accessing documents regarding ongoing legislative procedures is restricted. The European Ombudsman also argues that in comparison to the workings of the EP, the Council is less transparent than the European Parliament, as the Parliament publishes draft reports, amendments, adopted texts, and roll-call votes as a regular practice.
Sometimes the European Commission comes under the scrutiny of the European Ombudsman and the European Parliament as well, but considerably less so than the Council. There are many civil society organizations and individuals filing public access to documents requests and analyzing transparency in the Council and in the Commission. The Ombudsman has asked all three EU institutions to improve their practice regarding the transparency of trialogue negotiations. When it comes to transparency in the legislative process, however, the European Ombudsman rarely addresses the European Parliament. However, this is to some extent understandable due to the origin, purpose, and election (by the Parliament) of the ombudsman. Regardless, the question arises: is everything in order in the European Parliament regarding transparency during the legislative process or do we experience the paradox of ‘transparent opacity’ in the process?
Transparency as a principle in the Treaties
According to Article 10 (3) TEU, every citizen has “the right to participate in the democratic life of the Union” and Article 1 TEU “EU decisions must be taken “as openly and as closely as possible to the citizen”. Article 11 TEU states they need to be able to “make known and publicly exchange their views in all areas of Union action”. Article 15 TFEU states that EU institutions are obliged to act publicly and individuals and natural or legal persons residing or having its registered office in an EU country can access documents.
Members of the European Parliament are directly elected since the adoption of the European Electoral Act in 1976, first applied in 1979. Citizens need to be able to follow the decision-making process in the EU institutions and therefore in the EP as well. This includes the preparation, drafting, negotiating, monitoring, etc. of legal acts and also receiving information on who is selected as vice-president, rapporteur, or shadow-rapporteur, who is able to influence decisions and the positions of political groups during the decision-making process. The citizens are represented by the European Parliament (Article 14 TEU), which also leads to the conclusion that they need to be able to get access to information about what happens in the European Parliament. According to the Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament, “transparency requires the disclosure of information on policy-making”, it is necessary to build accountability and trust in decision-makers. “The notion of integrity of public institutions implies the use of their powers for officially authorised and publicly justified purposes”. Open decision-making is necessary for good administration and good governance, for independent and accountable institutions. Transparency, therefore can be supported by many, further arguments.
As Masters of the Treaties, the Member States also have the right to be informed about the decision-making process in the EU institutions, since the decisions of the European Parliament can influence the whole institutional system of the EU. It may be derived from different national (i.e. Member State) laws (incorporating the principle of transparency through the rule of law) and the treaties as well on the same basis that national parliaments need to be able to monitor the work of the European Parliament. Thus, the rule of law (including transparency) applies to the EU institutions as well. The principle of equality of Member States before the Treaties and the principle of sincere cooperation (Article 4 TEU) can also be interpreted as grounds for the obligation of EU institutions to work transparently, especially where Member States are not represented in the institutions.
Transparency (transparent opacity) as a paradox in the European Parliament
To assess the European Parliament’s level of transparency, it is necessary to describe its organizational structure. Like with other parliaments, the operation and structure of the European Parliament is also divided mostly into committee meetings and plenary sessions. Reports are prepared in the committees, which are organized thematically, and after their adoption on the committee level, they are finally adopted in the plenary session. In the plenary, all MEPs may participate with a right to vote, may speak, and table amendments along with other MEPs, while in committees usually only the members of the committee may speak and vote (although the right to vote is transferable). MEPs not part of a certain committee can only sign amendments along with members of that committee.
Resolutions and reports adopted by the plenary are positions of the European Parliament on certain issues, or in legislative procedures, legislative positions. Reports are usually prepared by committees and their adoption. Reaching the plenary phase may take longer, while resolutions may be prepared hastily during or shortly before a plenary session, without the involvement of a committee. Resolutions may be tabled by a certain number of members, but they have a reasonably higher chance of success if tabled by a political group, especially if a larger group in a stronger position tables them. Committee meetings and plenary sessions are accessible via live feed or on the official website of the European Parliament. At times, some committee meetings or other meetings on the committee level are organized in camera, without the participation of the public.
It becomes evident after a quick look at the organigram of the Parliament that there must be a significant agenda-setting power hidden somewhere: the power to decide what will be included in the agenda of committee meetings or plenary sessions. A following question might be who decides about the content of the draft proposals and who has the most influence over the texts.
The agenda of committee meetings is set by the coordinator’s meeting of each committee, where the political groups delegate their members. This is the body that has most of the powers on committee level and decides about
- the agenda of committee meetings,
- who can become rapporteur or be accepted as shadow rapporteur of an opinion,
- when and on what topic can a hearing be organized,
- who can be invited as experts, or even
- when to postpone a meeting.
It is safe to state that this is a body with strong powers, however, it holds all meetings in camera. The public has no possibility to find out the justification for why a certain report has ended up in which group, why a certain person has been chosen as rapporteur, or why a certain report is more urgent than another. On top of this, the negotiations between the rapporteur and shadow rapporteurs are also organized behind closed doors, even though this is where political groups share their positions and this is where the most influential changes to the draft reports are decided. Committee members may table amendments to the draft report, but the so-called ‘compromise amendments’, which either incorporate most amendments or force them to fall, (i.e. predetermining the result of a committee vote) are decided with the exclusion of the public (as non-public informal committee-related activities).
The situation is not much different on the plenary level. The Conference of Presidents, incorporating the President of the European Parliament and the heads of the political groups, also holds all meetings in camera. This is the single most important body in the structure of the European Parliament. This is where decisions about the plenary agenda, urgent requests, allowing certain reports to be drafted, and fundamentally the most important decisions of the house on the highest level are met. The highest-level political deals are struck in this body.
An argument raised by some against the lack of transparency is the possibility of making political deals, connecting files and decisions that would not be connected normally in order to gain negotiating leverage. If these bodies have such strong competencies and the citizens have the right to follow the decision-making process of the EU institutions, why is it not possible to broadcast these meetings online, as it is done with committee meetings and plenary sessions? There are further decisive decision-making bodies meetings in camera, such as the Bureau, the college of quaestors, or semi-official bodies under and around committee level (for example the working group on the Rules of Procedure of the European Parliament), not to mention unofficial groupings of MEPs, like ‘friendship groups’. The work of the Legal Service of the European Parliament is also not transparent to the public, even though they give advice to the President and the Committee Chairs and to the political bodies on substantial issues, often influencing the future of a legislative file on the agenda.
Transparent opacity as a layered paradox – Issues for the Future
The Conference on the Future of Europe, organized by the Commission, Council, and Parliament, and favored by the Parliament in resolutions, has also organized a lot of meetings in camera. The conference had a so-called digital platform, a plenary session, working groups, and citizens panels, but the most important decisions were met in the Executive Body. The Executive Body has adopted the Rules of Procedure of the Conference, has decided about the everyday workings of the Conference, directing the whole exercise. It has decided on the selection of the members of the Conference bodies, the main topics, dates, and format of sessions, basically keeping the Conference under manual control. Its members were political leaders from all three institutions. In spite of this, only the other bodies were working transparently, like the Conference Plenary, where members usually had only one minute to discuss topics regarding the future of the whole integration. What was the reason for the meetings of the Executive Body conducted in camera and how has it influenced the outcome of the Conference? This information is important, as in the final report there are substantive proposals for the reform of the EU, even proposing the modification of the Treaties.
Another interesting transparency issue is the application (to the EP) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents. However, due to the nature of the topic, this will need further, future assessment.
Furthermore, there are reforms underway currently in the EU institutions in general as well as in the European Parliament. The president of the Parliament has published a 14-point plan, where proposals regarding transparency seem to be playing a key role. The modifications are still in progress, involving the so-called “Transparency Register”, applied by the European Parliament, European Commission, and the Council, in which organizations striving to influence the work of the institutions need to register along with a requirement that meetings between certain members of the institutions and the interest representatives need to be published. Recent events – like the so-called ‘Quatargate scandal’ also mentioned in the introduction – have shown that there is a lack of transparency in this field as well.
Unraveling the paradox
The principle of transparency, referenced in numerous Parliament resolutions and reports is an obligation and principle, which is not only important in the workings of the Council, but in the functioning of the European Parliament as well. As the European Ombudsman has described the content of this principle, “it is related to the capacity of EU citizens to know, during the process, how any particular legislative process is progressing, to know the various options that are being discussed and which positions are being promoted or opposed (…). Ensuring that EU citizens are kept informed on the progress of legislation is not simply something to be desired; rather, it is a legal requirement. This kind of transparency is meant to apply during the entire legislative process, and not simply retrospectively after the particular legislative matter has been concluded. This is crucial for citizens to be able to enjoy their treaty-based right to participate in the democratic life of the Union.”
Applying this standard to assess the transparency of the European Parliament, we can establish that citizens have no real possibility to follow:
- how the content of legislative reports are progressing in negotiations between groups on the committee level,
- where their content is mostly influenced,
- why a certain political group has received rapporteurship of a certain report, or
- which groups and for what reasons have supported agenda-setting decisions.
It is necessary to review the norms regarding the transparent functioning of the European Parliament in order to avoid the currently apparent paradox of what I called ‘transparent opacity’, by which I mean the prima facie visible lack of transparency that seems to be the direct result of deliberate institutional and procedural design, as evidenced by the examples presented.
As the European Ombudsman – elected and monitored by the European Parliament – deals mostly with cases regarding other institutions, the Member States’ national parliaments as directly elected legislative bodies could help to introduce reforms on the transparency of the legislative process and could propose reforms to enhance relevant transparency, demanding political groups to publish the justification of the decisions and the positions of political groups in the bodies meeting behind closed doors (in camera), deciding about the agenda and the content of documents. Member States have a clear role in controlling the functioning of the EU according to their position in the EU’s legal system and there seems to be room for growth in the field of transparency.
Such reforms would help to push the “glass house” out of the “black box”-like paradox of ‘transparent opacity’ and open its windows to the public.
Árpád Lapu is a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and researches in the field of social sciences.