Pierre Sellal, France’s former Permanent Representative to the EU: ‘You should not ask each delegation to strictly record its position’

Credit: August-Debouzy

What is your position on the issue of transparency?

Over the very long period I spent in Brussels, I noticed a rise in the theme of transparency, whereas this concept was totally non-existent at the beginning of the 1980s. It was even considered — not necessarily wrongly — that, in essence, the diplomatic exercise of European negotiation could not be mixed up with a discussion in the public arena, with complete transparency of the work and negotiations. The essence of a European decision lies in the fact that it is based on a compromise. My personal position is that the democratic challenge is to ensure that European decisions are understood and accepted by citizens, businesses and all those to whom they are addressed. On the other hand, I am reserved and sceptical about the transparency of the discussion itself. What is important is that the citizens know what the government was supposed to defend and understand what the final decision is.

Which is to say?

Above all, I would like to emphasise my experience as chairman of various Coreper (the Permanent Representatives Committee, which is responsible for preparing the work of the Council of the European Union and is made up of representatives of EU member countries with the rank of ambassador, editor’s note). When European Ombudsman Emily O’Reilly [who investigates cases of maladministration within the institutions and bodies of the European Union] says that the positions of the Member States in the preparatory bodies should be duly recorded, I am concerned because the aim of a group chairman, a Coreper chairman and a Council chairman is not to force delegations to adopt positions. When you chair the Council, you must note at some point that a consensus can emerge. Above all, you should not ask each delegation to strictly record its position. If you do so, you are dead. Each delegation will have reconciled its position in writing — it will no longer be able to deviate from it. The whole objective of the Presidency, the whole diplomatic technique that very strongly characterises the way of working at the level of the European Council, is to ensure that positions are not frozen by too strong a national identification. If you force delegations to record their positions, you cannot achieve this result.

Because, at the national level, they don’t wish to be seen as accepting a compromise?

Exactly. They will be blamed for giving in. Furthermore, I have experimented with this gradual introduction of the ideas of transparency into the work of the Council. Above all, I have seen the failure of it. Every time transparency was introduced into one segment of the Council’s work, it meant that the real negotiations were taken elsewhere. The best example was the compulsory introduction some 15 years ago of making the legislative part of the Council’s work public. What was the result? The Council’s agenda was made up of non-negotiable items. Either the discussion took place at the level of the permanent representatives before the Council, or, when there was a genuine desire for a discussion between ministers, it was put on the agenda for what was called the ministers’ lunch, i.e. the time when the ministers are alone, when there are no cameras and no publicity. This led, in many cases, to absolutely grotesque Councils where we had two hours of round-table discussions where each delegation read its paper and then we would leave very early for lunch and the ministers would only leave at 5 or 5.30 pm, once the discussions were over.

Emily O’Reilly was heard by the French Senate last May, where she explained that decisions taken behind closed doors allow the blame to be pinned on Brussels. This blame-game is familiar rhetoric in France, especially with unpopular decisions.

It is important for the Presidency that reports on the work of the Council to say, “on this matter, we have decided by consensus” or “we have decided by qualified majority” and to specify which delegations have expressed disagreement. This is so as not to allow a government to say “I opposed to the end” when it did not. And then, above all, politically in his [or her] country, it is up to the minister to explain [and] to account for what he has done in the Council.

It’s interesting that you talk about people who might say “I opposed it all the way” even when it’s not completely true. Do you have any recent examples?

I haven’t been at the controls for three years, so I don’t have any recent examples to give you. But there is another phenomenon —when a delegation says that it is fighting [hard] to obtain such a decision [even] when it does not intervene. Fishing, for example, is probably the most difficult subject where positions are initially antagonistic: everyone tries to have more fishing quotas than their neighbour. The total allowable catch — the volume of fish to be caught — is limited. Often, at the beginning of the negotiation, the total of the requests for quotas from the delegations represents 150 or 200 compared to a total of 100, so everyone has to go back on their position. This is the area par excellence where you cannot have any transparency. It’s extraordinarily difficult to ask the Minister of Fisheries to say “to get a little more shrimp, I gave up a little cod”, otherwise he gets agonised by insults from the cod fishermen. But in the end, after two days and two nights of negotiations, you have an agreement that equalises the respective advantages of the fishing states. [In] this kind of negotiation, if you put transparency into the process, if you put all the positions on record, you don’t get any result.

The diplomats with whom we were able to discuss this issue tell us that on the question of transparency, France is one of the countries that is holding back the most.

Traditionally, the founders were on this line. France is the natural spokesperson for this line. It has constantly resisted — in the name of the considerations I mentioned — the idea that the Council’s functioning should be made transparent. In general, our partners generally agreed with us, telling us that, internally, there was a lot of pressure. They understood our positions and sometimes encouraged us, under the radar, to maintain them. For countries that really practise very strong transparency at the internal level, given that European law nowadays has a very strong hold on national political life, it seems necessary to apply the same methods at the European level. But the decision at the national level is, by definition, taken in a national framework — in a vertical, determined political mode, associating the executive and the Parliament. Whereas in Brussels, you have an extraordinarily delicate process, with 27 or 28 Member States plus the institutional interplay of the Commission, the Council and the Parliament. This makes things much more difficult.

How do these meetings take place once the doors are closed?

Coreper is very special, because it is an institutional body that makes a powerful contribution to European decision-making, and at the same time, it is made up of representatives of the States. Each has the primary task of defending national interests. All the richness of this job, all its difficulty, all its subtlety, consists of articulating the two levels: how to defend these national interests while being aware that it is a question of participating in a European decision-making exercise. The ideal, which everyone pursues, is that this European decision should comply with national provisions. It is very rare that the adequacy is 100% complete. And there is always a moment in a difficult discussion in Coreper, between the permanent representatives, when someone says, “I have told you what my instructions were, I am going away from them for a moment, you will not say so, this is how far I could go in the search for a compromise.” [When] you make that public, you could have someone say “in whose name did this permanent representative official — paid by our taxes, appointed to defend our national interest — agree to discuss something else?” This type of scenario necessarily takes place behind closed doors.

You say that if everything is transparent, the discussion will come to nothing and everyone will stick to their positions, but at the moment, for example, there are also discussions that have been stalled for some time. In this case, there is no transparency and it is still blocking. Why is that?

It would be necessary to see what is happening with each specific negotiation. However, decisions are made much faster today than they were 20 or 30 years ago. The average negotiation time for a directive or a regulation today is 18 months to two years.

In 1981, when I first came to Brussels, there was still no qualified majority for all matters relating to the internal market, legislative harmonisation and harmonisation of rules. In my portfolio as a negotiator at the time, I had particular directives on the mutual recognition of accredited professions: doctors, architects, hairdressers. When I got the file for the hairdressers’ directive, it was in its 14th year of negotiation. Why is that? Because the decision was taken unanimously, and therefore a delegation could camp on its position for an indefinite period of time. I remember the young French negotiator who said: “Hairdressers are part of the cultural heritage, they handle blunt objects so there are issues of safety and public health, there is no question of opening the French market to Italian figaroes”. France has blocked this directive for 14 years! So we have considerably accelerated the decision-making process. Thanks to qualified majority voting and the fact that there is a dynamic today that pushes decisions to be taken.

What about “host deals”, when for example, the French say to the Germans, “We let you have less strict emissions on cars but in exchange, we want more money for the CAP”?

It is never explicit and direct. But it is constant. It’s mostly at Coreper that this happens. At the weekly Coreper meeting: you have 20 or 30 points coming up. Out of these 20 or 30 points, four-fifths do not give you any problem: you have no direct interest, or you are in the majority, so it doesn’t matter. You have one or two points on which you have to take a very strong political credit to get support from your colleagues. Very naturally, you make this the main point of the day. And you are much less insistent on less sensitive issues. You don’t say it, but everyone around the table can see that you have gone very hard on this subject, it shows that you care, and that on the other hand, on such and such a subject, because you can’t burn your cartridges, because you can’t get satisfaction on everything, you drop a little bit of ballast. Sometimes, if you really have two very important subjects to defend, you feel that it will be difficult to defend them with equal energy, and the day before, you ask the Presidency to defer one of the two points to the following week. That’s part of the negotiating techniques in Brussels.