Michael Roth, German Minister of State for Europe: ‘Confidentiality is needed for the difficult search for compromises.’

German Federal Foreign Office/Michael Farkas

Minister Roth, the EU Ombudsman Emily O’Reilly says that « it is virtually impossible for a citizen to know how a European law comes about and what the position of which government is on that law. This undermines citizens’ right to hold their elected representatives to account ». Is she right?

No, she is not right. Citizens have a wide range of opportunities to get an impression of legislation in the EU. After all, the European Parliament and the Council decide jointly on the European Commission’s legislative proposals. There is still room for improvement, of course, but interested citizens and journalists can gain an intensive insight into how laws are made in Europe and how democracy works in the EU.

As a journalist, if I want to report on which governments prevent certain laws simply by forming a blocking minority in the Council, I have no legal, easy way of finding out which ones they are. And citizens are not able to do so either, because the positions of national governments in the committees of the Council are secret.

Our position is never secret ….

…no, but those of many others are.

There are very different transparency requirements in the Member States. I would not separate the European level from the national level. It is true that parts of the Council’s work are public and other parts are not.

The representatives of 20 national EU parliaments from their association, COSAC, have called for the Council to make the minutes of the negotiations in the Council bodies publicly available. This includes the statements or positions of individual government representatives. Why is the German government so vehemently opposed to this demand?

Within the framework of the German EU Presidency, we are currently helping to ensure that the Council makes a large number of documents available to the public via the network, provided that they do not contain interim results of negotiations. The Federal Government is already obliged to make all documents and bases for decisions accessible to the Bundestag so that the national parliament can participate in EU legislation.

But the media, and citizens, are not allowed to learn much about it. We have applied to your ministry, the Federal Foreign Office, for access to the files on the Council negotiations on improving transparency. But in the copies we received, all the passages describing the positions of the other countries were blacked out. As justification, the ministry wrote that the Federal Government must « be able to conduct negotiations without unauthorised influence from outside the ongoing discussions ». Isn’t « unauthorised influence » on legislation by citizens a characteristic feature of democracy?

These are negotiating positions where, understandably, no information is given on interim results. This is perfectly usual and normal in other political negotiation processes. But not because one does not want to involve the citizens, but because these negotiation processes take place in a very fragile, highly controversial environment, and interim results are not yet finalised. We have confidentiality principles here, but they also apply to complicated negotiations at the national level. Just think of the negotiations in the mediation committee between the Bundesrat and the Bundestag, where interim results are not made public permanently.

Certainly, but there, the initial positions are well known. Why not make the positions of all national governments public after the first meeting of the competent Council body on a new legislative proposal?

We want more Council meetings to be open to the public and interested citizens and the media to participate in them.

I have minutes of Council meetings which show that the representative of the Federal Government was explicitly against giving an NGO access to three-year-old working documents for a law, simply because they contained the position of the individual governments at the time.

Here too, it was probably a matter of interim results. But of course we also want to provide information on how decision-making processes take place and how the Federal Government positions itself.

A legislative proposal can be prevented or diluted in the Council by a blocking minority representing only 35 per cent of the population. And that blocks dozens of important legislative proposals. If we have to submit to a minority, should we not at least be allowed to know who the members of these blocking alliances are?

The Treaties provide for a staggered voting system based not only on the population shares of member states, but also on the number of member states themselves voting for or against a legislative proposal. This dual system guarantees that blocking minorities cannot simply come about and that efforts must be made to obtain majorities. It is true that not all votes will then be public, but we are trying to make significant progress within the framework of the Treaties.

But that is the important part without which a Europe-wide democratic discourse cannot even begin to develop. One example: the Council has been negotiating for eight years on a legislative proposal to introduce a women’s quota on the supervisory boards of public limited companies, and the decision is repeatedly postponed because this blocking minority exists. It is public knowledge that the German Federal Government is against it. But who are the other eight governments blocking it, along with the Germans? That information cannot be found through regular channels. Shouldn’t citizens be able to find out who is responsible for blocking this directive?

As far as the directive on the introduction of a women’s quota on supervisory boards is concerned, the Federal Government is not against it across the board; we cannot agree among ourselves. The Social Democrat-led ministries are in favour, the others against. That is why we are abstaining and that is no secret at all. On your question: we are committed to making more of the work in the Council public. But for what you criticise, I see little scope at present. This concerns the preparatory meetings in the working parties and the Council of Permanent Representatives, which are not open to the public. Confidentiality is needed there in order to have a protected space for the difficult search for compromises.

When the Commission proposes a new law, the Council is not obliged to take a decision on it within a set deadline. As a result, dozens of legislative proposals are stuck in the Council and are effectively buried, such as this law on a quota for women on supervisory boards. Shouldn’t be a deadline for the Council to decide?

We also have projects in Germany that take a very long time. After four years at the latest, however, all legislative projects expire automatically, and then you have to start all over again. This principle of discontinuity has proved its worth because it creates pressure. But it does not exist in the EU so far.

The German government also leads such blocking minorities. In the case of the directive on tax transparency for transnational corporations, for example, this has been the case for four years. In autumn 2019, when a majority emerged, the Federal Minister of Economics and Technology called his Croatian colleague before the vote, after the latter had indicated to the Council of Permanent Representatives that he wanted to vote in favour. After the call, however, the Croatian minister indicated his opposition at the legislative Council meeting and the vote failed. Shouldn’t citizens be able to be reliably informed about such manoeuvres?

I am not familiar with this special process, but the Länder in the German Bundesrat also often discuss their voting behaviour in advance and coordinate their actions.  To examine only transparency in the Council when it comes to the public’s support for, and participation in, EU legislation ignores the central role of the European Parliament. This offers a maximum of transparency. Looking only at the Council does not do justice to the now-strong parliamentary democracy in the EU.

That is true, but it is our job as journalists to investigate the critical points. After all, the Ombudsman, Mrs O’Reilly, and COSAC, the Association of National Parliaments, did not produce their critical reports arbitrarily, but because there is a major problem.

They apply standards to the Council as if it were the second chamber of a national legislator. But the Lisbon EU Treaty has brought us to a kind of intermediate stage. The system does not function in the same way as a national state structure. The Council represents the governments of the member states. As the representative of the Council Presidency in the EU Parliament, I can comment on everything at any time, a right that the Bundestag would certainly not give the President of the Bundesrat. This makes it clear that we in Europe are still a long way from the classic two-chamber system that exists in many member states and I personally support that.

The consequence, however, is that European legislation runs like the negotiation of international treaties. This legislation using the methods of diplomacy breaks with the requirement for transparency, which is part of democracy.

We certainly have complex procedures, but the EU is also a complex structure with many conflicting interests. Your reference to blocking minorities gives the wrong impression that minorities can always block everything. We have this requirement for a qualified majority, but that is not undemocratic — quite the contrary — because it allows a balance to be maintained between the member states. 

There would again be a sufficient majority in favour of the aforementioned directive on tax transparency of groups. But because the Federal Government is not in agreement — similar to the directive on the quota of women on supervisory boards — it is not even putting the law on the Council’s agenda for a vote. In this way, it prevents a law from being passed for which there would be a qualified majority. Does this not violate the Presidency’s duty of constructive conciliation?

I cannot comment on the specific case, you will have to ask the Federal Ministry of Finance. But we take our task as Presidency very seriously.

Some countries, such as the Netherlands, take a very different approach to the issue. The Netherlands, for example, requires the government to present its position on every EU legislative proposal to Parliament in writing and to report on progress every three months. Dutch diplomats report that other EU countries are systematically evaluating it through their diplomats in The Hague, and that the Netherlands is at a disadvantage in the negotiations. Does the AA (Auswärtiges Amt — German Foreign Ministry) also have such observers in The Hague?

I am pleased when national parliaments actively participate in EU legislation, as the Bundestag does. And of course, we are monitoring the debates in the national parliaments in all Member States. We want to know how our partners deal with EU proposals. But if you assume that our aim is to weaken other countries, that is nonsense.

We do not imply anything, we only report what we have been told.

In any case, democracy in Europe requires not only a strong European Parliament or a transparent Council, but also the participation of national parliaments, and there are very big differences between member states in this respect.

However, all of this is always accompanied by a lack of decisive information for the public, i.e. which national government takes which position.

I am surprised at your perception that the EU is secretive about its legislation. This paints a distorted picture of a Europe — that is highly dangerous and plays into the hands of nationalists and populists, one of pure backroom politics where deals are made that have nothing to do with democracy. I would like to strongly oppose this impression that the EU is undemocratic. I take a completely different view. Unlike in the past, there is now broad reporting and much more exchange and critical discussion with civil society, even during legislative processes. And that is exactly what we all need for a common, critical European public. The Council is not a parliament, but we are trying to develop procedures to achieve greater openness there too. In doing so, we are trying to make significant progress within the narrow framework of the European Treaties.