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 grow.

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.