THE IMPORTANCE OF TRANSPARENT AND ACCOUNTABLE PUBLIC ADMINISTRATION FOR EUROPEAN DEMOCRACY
As an oversight institution, the European Ombudsman plays a key role in holding EU institutions and agencies to account, promoting good administration, and proactively looking into how the EU administration deals with pressing issues, such as COVID-19 crisis measures or migration. The European Ombudsman’s Emily O’Reilly (2013-present) argues that accountability and transparency are core obligations of the EU institutions, even more so in an EU where its legislation and policy decisions increasingly impact the personal and economic well-being of European citizens. She considers improving the EU institutions’ commitment to these values central to EU democracy.
By Emily O’Reilly, European Ombudsman
Accountability critical to citizen trust
Much speculation surrounds the composition of the next European Parliament as we move towards elections later this year in an increasingly unstable world and with multiple threats to our democratic systems. The right to vote underpins democratic freedoms and the rule of law but the degree to which people believe that voting can affect legislative and policy outcomes is likely to be a key determining factor for turnout — and results — in 2024.
The development and maintenance of a strong culture of government accountability and transparency is critical to citizen trust. Without them, citizens cannot verify whether their elected representatives are working solely in the public interest. Weak public scrutiny of laws and regulations leads to damaging accusations of an out of touch administration, with decisions inappropriately or improperly influenced by special interests.
This logic also applies to civil servants, whose work informs, prepares, and executes new legislation and government programmes. In a healthy democracy, an independent public administration is an important check on executive overreach, ensuring that the exercise of political power respects fundamental rights and important norms of transparency and impartiality. Civil servants are also involved in the delivery of vital public services such as the collection and publication of economic data, critical new research in areas of significant public interest and the enforcement of health and environmental standards.
For these reasons, people must be able to verify that their public administration is open, efficient, meritocratic, and above all else, working in their best interests.
Bridging the gap between the EU and its citizens
Fortunately, public administration at EU level is largely characterised by these qualities. The European Ombudsman’s biennial Award for Good Administration consistently finds and rewards outstanding work undertaken by EU public officials. I presented the 2023 overall award to Eurojust and the Prosecutor of the International Criminal Court for the collaborative drawing up of guidelines for the documentation of evidence of war crimes and crimes against humanity for possible future prosecution. Past awards have included work on rare diseases and the handling of the COVID-19 pandemic.
High standards of transparency and government accountability are of particular importance for the European Union administration. As a relatively young supranational entity, the EU does not benefit from the cultural and historical ties that bind citizens to their nation states. Most Europeans understandably still feel closer to their nation or region than they do to the European Union and with that comes a deeper and more intimate understanding and knowledge of their own national governments and institutions but not those at EU level.
Nonetheless, the work of that EU level administration is increasingly impacting the personal and economic well-being of European citizens, including in the domains of monetary policy, environmental protection, public health and defence. The COVID-19 and Ukraine crises have reinforced that influence through initiatives and policies such as vaccine procurement, the funding of post-COVID economic recovery, the managing of the energy crisis, and the EU’s support for Ukraine following the Russian invasion.
Against this backdrop, oversight institutions can play a key role in helping to bridge the awareness and comprehension gap between EU citizens and the EU institutions. And in so doing to bring greater accountability to bear on those institutions. As European Ombudsman, I do this by working to ensure that the EU’s public administration is as transparent, accountable, and trustworthy as possible and by constantly reminding the institutions of the responsibility they have to ensure citizen trust and confidence in the EU as a whole by behaving in an open and transparent way.
We do this is through individual complaints, including on issues such as access to documents, the failure to explain policy or other decisions, the denial of grants or other benefits, ethical concerns around ‘revolving doors’ or conflicts of interest, and the alleged denial of fundamental rights. In The importance of transparent and accountable public administration for European democracy 113 recent times, access to documents and other complaints have reflected the current concerns and involvement of the EU including vis-a-vis defence, environmental, and energy matters.
I also have considerable powers to act strategically on my own initiative. My Office can act quickly when we identify an area of potential concern, without having to wait for an individual complaint. We can also anticipate future topics of public interest, which can help ensure that EU institutions are transparent from the outset when it comes to legislating in new areas or administrating new programmes.
Positive changes towards greater transparency
Use of these powers has helped us effect positive change when it comes to EU transparency. The Council of the European Union has now created an online public repository of Eurogroup documents to help citizens follow decision-making around Eurozone economic policy. The European Medicines Agency now grants greater access to documents concerning clinical trial data.
We have also issued guidelines for the EU administration on documenting work-related text and instant messages and made suggestions to the European Commission on how to ensure greater transparency and accountability around the over €700 billion Recovery and Resilience Facility. Given the unprecedented size and scope of this programme, it is crucial that the EU provide accessible information about the loans and grants it supports to reassure the public that Member States are distributing and spending this money in full compliance with their funding conditions.
We have long identified transparency in the work of the Council as an issue of particular concern. If citizens cannot follow the enacting or influencing of legislation or what their governments agree or disagree on, it becomes easy for politicians to ‘blame Brussels’ for rules that prove unpopular in their countries. This damages the democratic credentials of the EU, suggesting to citizens that their lives are being affected by a remote power structure over which they have little influence.
Following a series of inquiries, some key improvements have been made. The Council proactively publishes progress reports on negotiations on draft laws as well as its mandate for negotiations with the European Parliament since 2020. This is in line with earlier proposals I made following inquiries into legislative transparency in the Council and the transparency of trilogues.
Progress is still slow however such as on the recording of individual member states’ positions on draft legislation. This risks preventing citizens from effectively holding their elected representatives to account for important EU decisions as well as boosting populist narratives about the nature of the EU decision-making process.
Lobbying transparency requires vigilance
Member state governments are not the only influencers of EU legislation. The input of hundreds of external experts, advisers, academics, and consultants shapes the outcome of legislative texts and the implementation of EU policies and programmes. Over 12 000 organisations, business, and individuals are included on the EU’s Transparency Register, each seeking to influence the outcome of a variety of decisions or legislative files in their favour.
While external expertise is often necessary in policymaking and the right to lobby one’s government is a fundamental part of a democratic society, citizens need to be sure that these activities are carried out transparently and fairly. The EU administration must ensure that the legislative outcome is the result of a careful and balanced consideration of viewpoints, and not subject to the outsized influence from the groups with significant financial resources and an influential network.
On expert groups that assist with the preparation or implementation of legislation, there have been positive changes. The Commission has made the selection procedure for members more transparent, introduced a new conflict of interest policy for experts appointed in a personal capacity, and now requires potential experts to be on the Transparency Register.
The influence of lobbying on legislation may require special vigilance however, especially on crucial matters such as the environment and public health. I have recently asked the Commission to do more to ensure transparency across all its departments when it comes to meetings with tobacco lobbyists and to ensure a better representation of interests, including civil society groups, at consultations concerning the implementation of the EU’s Common Agricultural Policy.
Crisis management powers should remain exceptional
The effect that crisis management has had on government transparency and accountability is now an important issue. The EU’s emergency decision-making powers, which allow the Council to act quickly on qualified majority without the explicit approval of the European Parliament, have seen a significant increase in use since 2020. Examples include EU support for short-term work programmes (SURE), the post-pandemic recovery fund, joint vaccine procurement, and joint gas purchases.
These powers exist for good reason and their use undoubtedly helped to prevent or alleviate the suffering of EU citizens. Nevertheless, there is a risk of the normalisation of these measures and the potential to deprive EU citizens of their ability to participate meaningfully in decision making.
The current Commission has explicitly signalled its intention for the EU to act more ‘geopolitically’ to enable it to deal with the problems Europe faces from the shifting of global alliances, trade disputes, climate change, armed conflict, and more. This makes the external dimension of EU politics particularly vulnerable to sidestepping the accountability safeguards found in the EU’s usual rules and procedures.
Access to documents is key to transparency
My role as Ombudsman when it comes to decision making inspired by geopolitical calculations is to remind the EU institutions that the values of trust, transparency, and accountability remain paramount in everything they do. They can ensure this by following an open and service-oriented approach to access to documents requests, which enables journalists, civil society, and individuals to scrutinise their actions. In my experience, this has not always been the case with many instances of the EU institutions misapplying the exemption in the EU’s access to documents. Regulation (EC)1049/2001 of the European Parliament and of the Council for the protection of the ‘public interest as regards international relations’. These include documents concerning energy policy negotiations with the United States, the transfer of EU citizens’ data outside of the EU, and EU sanctions against Russia.
Delays can also undermine citizens’ ability to participate in the decision-making process at key moments. Recently, I found that the legal deadlines for the Commission to review a case in which documents had been denied or only partly released, were missed in 85 % of cases. I made recommendations to the Commission to remedy the situation, but with delays ongoing, I have now asked Parliament for its formal support in this matter via a Special Report.
Ambitions for good public administration must remain high
My overarching role is to help the EU’s institutions, bodies, and agencies set the highest standards in public administration. With strong foundations already in place, they now need to focus on keeping abreast of technological changes such as artificial intelligence, consider the impact of the expansion of EU responsibilities into new areas, and adapt to the evolution in public expectations concerning what constitutes good administration. By continuously working to ensure that the EU institutions are as transparent and accountable as possible, we can show Europeans that the EU is both listening to them and working on their behalf. Democracy is threatened not just by those with autocratic tendencies but also by institutions that fail fully to uphold their public service mandate.
