Open Government in the EU

Last week, Advocate General Cruz Villalón delivered his opinion in the Council’s appeal against the General Court’s Access Info Europe judgement of 2011. (For a background to this case, see an earlier post on this website.) AG Cruz Villalón’s opinion, which can be accessed here, marks another move in the longstanding debate about the role of transparency in the Council and, more broadly, in legislative procedures. The AG takes a principled stance in his opinion, which leads to an uncompromising, at times tough attitude towards the arguments put forward by the Council and its supporting intervenors (Czech Republic, Greece, Spain). In paras 59 and 60 of the opinion, the AG brings the crux of the matter down to a single question, which he immediately answers:

Fundamentally, the question at issue is therefore this: does the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’ constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001?

The answer to this question must, in my view, be in the negative.

He then goes on to substantiate this position in the light of transparency’s contribution to the overarching principle of democracy.

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An earlier summary of the EUI seminar of transparency, posted on this website some time ago, has been picked up by Moscow-based archivist and blogger Natasha Hramtsovsky. Her blog features a full translation of the summary in Russian. In an introduction, Ms Hramtsovky remarks:

The described event attracted the attention of several Russian colleagues (see http://svdrokov.blogspot.ru/2013/02/blog-post_11.html), who [...] noted the lack of transparency of the seminar on transparency. This blog by Maarten Hillebrandt is therefore proposed to the reader [...] published [...]on the “Open Government in the European Union» blog.

Anoeska Buijze of the Utrecht Law School defended her doctoral dissertation entitled “The Principle of Transparency in EU Law” at Utrecht’s Academy Building on Friday 15 March. She was awarded cum laude for her considerable efforts at structuring a complex legal concept of EU law.

In her dissertation, Buijze uses a triple concept of the European citizen in order to disentangle the several rationales that underpin transparency at the European level. She recognises the citoyen (the participating citizen in the classical Greek sense), the homo dignus (a rights-bearing individual in the private sphere) and the homo economicus (the individual in pursuit of material welfare). Each of these citizen types, Buijze argues, provides a different rationale for certain types of access to information. She comes to this conclusion through a detailed analysis of a number of fields of law (public access to information, public procurement, electronic communications law, and state aid).  

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The Council of the European Union defends its appeal in Luxembourg.  On Thursday 21 February, the litigating parties in the Access Info Europe case appeal convened at the Court of Justice of the European Union in Luxembourg for a hearing. This marks the next step in this case, since the the Council contested the General Court’s ruling by bringing an appeal.

The GC’s 2012 judgement in Access Info Europe caused a stir by affirming the NGO’s assertion that citizens need to be able to attribute policy positions to member states in order to participate meaningfully in European democracy. The practice by the Council to disclose arguments put forward without revealing their originating member states had been in place for some years before AIE challenged it. It is seen by the Council as an acceptable compromise between the requirements of democratic participation and those of effective decision-making. Ironically, Access Info Europe was in the process of mapping member state positions in the reform of the access to documents regulation for a report that it was writing, when it stumbled upon this practice.

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A seminar was held at the European Union Institute in Florence on 25 January 2013 with the title: “Transparency and Access to the Records and Archives of the EU Institutions”.

The subject of EU transparency enjoys, it seems, never-ending attention from both EU civil servants and politicians, as well as academics. This time, the discussion was connected to developing rules and practices in the related areas of archiving and classification. Archivists, transparency specialists, and academics were invited for an exchange of views that was wide-ranging both in terms of substance as opinion.

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E-transparency is currently one the fastest-growing branches of transparency research. As Albert Meijer of the Open Government research group argues: “Modern day transparency is Internet transparency.” The special workshop Legitimacy 2.0: Transparency Online allows participants to discuss this topic in the context of the philosophy of (social) rights.

The workshop is introduced as follows:

“Transparency is everywhere, or at least talk of it is everywhere. The mainstream view is that transparency furthers accountability and offers an antidote against corruption, both in the private and the public sector. It is not any specific right or principle, rather a feature of institutions embedded in the ideal of open society and often considered a requirement for efficiency and good governance. As essential to guarantee authority and effectiveness of rules, but also democratic participation, it is fundamental to assure obedience to the law and trust in institutions. Conversely, the lack of transparency might contribute to arbitrary power. Does the introduction of ICTs higher the quality of epistemic processes and outputs into the legal and political system? Does greater transparency of the network, e.g., through e-government tools, lead to increased participation, more active and responsible citizen involvement in decision-making, on local, national and supranational levels? What impact does web 2.0 technologies have? What could be the effects of information overload in the long run?

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Issues of integration, especially of economic integration, and the attached debate on national sovereignty are ranking high among the EU’s perceived transparency gaps these days.

With integration under pressure, markets and civil society nervously follow the news. The UK’s current lukewarmness towards the European project and considerations to rephrase the terms of its engagement are one good example. This week, the European Ombudsman riposted the Commission for refusing to disclose a report assessing the access of UK citizens to fundamental rights stipulated in the European Charter of Human Rights (ECHR), FOIANet reports. The Ombudsman was quoted stating:

In view of the importance of the documents concerned for the rights of EU citizens, and the fact that the Commission failed to engage constructively with the detailed analysis put forward by the Ombudsman, this constitutes a serious instance of maladministration.

So far, the Commission has not come up with a response to the Ombudsman’s report, to the detriment of the requesting party, the NGO European Citizen Action Service.

 For the full article, click here.

The following piece was originally posted on the ACELG blog.

By Maarten Hillebrandt

A few weeks ago, the European institutions were shaken by a series of events which, at first sight, could constitute the plot of an institutional thriller. On 16 October, after an investigation into allegations of corruption conducted by the European Anti-Fraud Office (OLAF), the Maltese Health Commissioner John Dalli was asked to resign. The European watchdog acted on a tip from the tobacco producer Swedish Match, and its Director, Giovanni Kessler, called it a “classic” case of lobbying-turned-into-corruption. Undisclosed sources suggest tobacco interest beyond the Swedish producer may be implicated. When the Head of OLAF’s Supervisory Board, Christiaan Timmermans, stepped down within a week after Dalli’s resignation, this further added to the confusion. As an anonymous MEP stated in the EUobserver “There is a feeling that there is something politically delicate for the Commission in this whole business”.

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This short article was originally posted on the blog of the Amsterdam Centre for European Law and Governance (ACELG).

Kadi is back in Luxembourg and with a vengeance! The timing is interesting both for the case itself and more generally for highlighting the use of secret intelligence and evidence to justify detention and other sanctions.

By Deirdre Curtin

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In the 1980s, a committee was set up to deal with the subject of institutional reform. As Ireland was just assuming the presidency (1984), former minister of foreign affairs and senator Jim Dooge was appointed chair of this committee. The Dooge Committee on Institutional Affairs expendiently set out to make a number of recommendations for institutional improvements of the European Community.The Doodge report, which appeared within a few months, laid the foundations for the Single European Act, and after that the Maastricht Treaty, apparently with much of the report’s language being carried over verbatim.  

At the Dooge lecture, professor of European governance Helen Wallace goes back to the committee’s work which ”was made to seem as boring as possible” but in her opinion marks a watershed in the history of European integration. She praises the dexterity and expediency of the committee and its chair, but also argues that its working method marked the end of an era. She compares the SEA and Maastricht Treaty with the language andobjectives of more recent European Treaties, and concludes by addressing the UK’s recent stance in the process of European integration. http://www.youtube.com/watch?v=pAng6aga_Qw -MH