Legislation in the “black box“ of the EU council – where secrecy feeds mistrust

Flickr/European Parliament
European Ombudsman Emily O’Reilly

Rights undermined 

Now, she has started against the most
obstinate and unshiftable bar to greater European democracy: the
European Council, the institution where governments of member states
decide on the union’s legislation. In the eyes of Ms O’Reilly, the way
in which this institution functions “undermines citizens’ right to hold
their governments accountable”.  This is best seen in what she believes
is the “disproportionate secrecy” of events in the Councils of Ministers
and their 150 working groups, in which delegates of national ministries
negotiate laws. She says this makes it nigh on impossible for citizens
to follow law-making discussions between national government
representatives in the Council.

„Black Box“ secrets 

Similarly, Dutch parliamentarians
recently labelled the Council a “black box”. Through its informal
bodies, they said, such as the Eurogroup of finance ministers of the 19
eurozone countries, national parliaments become sidelined and are
continually confronted with done deals.

O’Reilly makes official something that
rapporteurs have long lamented. That Europe’s most powerful legislative
body violates a central principle of democracy: the obligation to
legislate openly and transparently. And the reason is the unwillingness
of national government representatives to disclose their respective
positions or their manoeuverings in Council bodies. This has the extra
advantage that those in government can blame Brussels for controversial
projects, even when their own officials have been directly involved in
the negotiations. A classic example was the promise made by former
German Finance Minister Wolfgang Schäuble to combat the organised tax
evasion of the super rich, even while his officials in the relevant
Council working group voted against an EU-wide obligation to name the
actual beneficiaries of letterbox companies.

Ms O’Reilly has warned that such
behaviour stokes concerns about the democratic legitimacy of the Union
and promotes anti-European resentment. Before the next elections, (she
continues,) the Council should therefore make all its negotiating
documents publicly accessible, so as to refute the arguments of
right-wing populists and reduce the alienation of citizens.

The wilfull impotence of the European Parliament

As commendable as that may be, it is also
astonishing not to say disappointing that O’Reilly’s initiative is
necessary at all. After all, it is the task of the European Parliament
to enforce this. If all MEPs were to take their job as elected
representatives seriously, they would have already forced the Council to
put an end to its practice of secrecy. Formally, they have the power to
do it. In the final instance, parliament can block the budget. But the
conservative and liberal majority of MEPs refuse to stand up for for the
interests of all EU citizens and for the common European good. Instead,
most act only as representatives of their national parties, and thus in
majority as an extension of their respective governments.

This was revealed once again in
mid-February when they opposed the establishment of EU-wide candidate
lists for the next European elections in 2019. In particular, German CDU
MEPs preferred to vote unanimously in favour of continuing to fill the
European Parliament with nationally-elected representatives.

It is to be feared thus that the
initiative of Europe’s best citizens‘ representatives will fail, because
the majority in parliament will not launch the power struggle necessary
to take on the governmental technocrats in the Council. But then those
responsible should not complain if mistrust towards them continues to

Kant had a point

Two centuries ago, the great philosopher
Immanuel Kant wrote “all actions relating to the rights of other people
whose maxim is not compatible with publicity are wrong. For a maxim to
which I cannot publicly subscribe without provoking the resistance of
all against my intent, this counter-action of all against me can have no
other reason but the injustice with which it threatens everyone.”

That is as true today as it was then.