Transparency in the work of the EU Council: A Presidency perspective
The European Council has set out four strategic themes for action in the 2019–2024 institutional cycle (see also p. 16 of this Journal). The Presidency of the Council of the EU rotates every six months and is currently held by Finland. This means that Finland is not only chairing the Council meetings but also organising many activities to further develop and implement EU policies. How will the Finnish Presidency put flesh onto the bone and give concrete form to these long-term perspectives? Kaisa Männistö, Counsellor in Legal and Institutional Affairs in the Permanent Representation of Finland to the European Union, zooms in on a key aspect for the Finnish Presidency: transparency. She explains which actions the Finnish Presidency wants to undertake to promote transparency and how it ties in with the rule of law and with protecting citizens and their freedoms.
By Kaisa Männistö, Permanent Representation of Finland to the European Union
Transparency and EU decision making
The transparency principle has taken great strides in the Council of the European Union over the past two decades, having been enshrined in the Treaty on the Functioning of the European Union (TFEU) in 2009, then implemented through the Council’s Rules of Procedure and gradually honed in practice over the years. Transparency has been boosted by technological advances in livestreaming technology — allowing discussions to be broadcast to citizens in real time and by social media permitting the instantaneous transmission and retransmission of key information.
But digital technology has also spawned new challenges: as the quantity and sources of online information have multiplied, checking the veracity of that information has become harder or even impossible. The importance of transparency continues to grow in the new political environment, as today’s hyper-connected citizens demand accountability, trustworthy facts and a greater say in decisions that concern them.
Calls by official actors for greater transparency in the EU law-making process have intensified in recent years. The issue has been highlighted by the European Ombudsman, the European Parliament and COSAC (the Conference of Parliamentary Committees for Union Affairs of the Parliaments of the European Union). In addition, the Court of Justice of the European Union (CJEU) has given judgments demanding greater legislative transparency and underscoring its importance as a way of ensuring democracy and democratic legitimacy in the EU law-making process. In their 2016 Interinstitutional Agreement, the European Parliament, the Council and the Commission committed themselves to increasing the transparency of legislative trilogues in particular.
The Council’s efforts to ensure transparency in the context of the Brexit negotiations were recently acknowledged by the European Ombudsman when she formally closed the Brexit-related transparency initiative that she had opened with the Commission and the Council, noting that ‘the Union has overall pursued a proactive approach anticipating citizens’ and businesses’ legitimate needs for information on the Brexit negotiations.’ (1)
The issue of transparency was also on the minds of the EU heads of state and government in June 2019 when they signed off on their roadmap for the next five years. Warning that ‘the world has become increasingly unsettled, complex and subject to rapid change,’ the Strategic Agenda adopted by the European Council for 2019–2024, pledges that the EU institutions will continue to respect the principles of democracy, rule of law and transparency. It also states that each institution should revisit its working methods and reflect on the best way to fulfil its role under the Treaties.
Transparency in the work of the Council under the Finnish Presidency
A longstanding champion of legislative and administrative transparency, Finland is once again pushing for greater openness as it holds the Presidency of the Council of the EU in the second half of 2019. The Finnish Presidency has stressed that transparency and open communication play a significant role in bringing the EU closer to its citizens and in making it more readily understandable — and that transparency and openness increase trust in the EU, increase its legitimacy and help to ensure accountability.
Exercising its prerogatives as Council President, Finland has introduced a set of specific practices (2) for improving legislative transparency. This means, for example, that progress reports to Coreper (Committee of the Permanent Representatives of the Governments of the Member States to the EU — the Council’s main preparatory body) on legislative files will, as a general rule, be made public during Finland’s six-month term. The Finnish Presidency will also propose to publish all initial mandates to start trilogues once they have been adopted by Coreper. Under the Rules of Procedure of the Council, currently, only mandates adopted at the ministerial level are automatically made public. The experience gained during the Finnish Presidency can inform future discussions on the Council’s long-term approach.
In the current unsettled global political landscape, transparency has also gained new relevance and urgency as a valuable strategy for combating disinformation. Allowing direct and early universal access to documents and debates is not only an effective way of informing citizens but also a way of thwarting efforts by potentially ill-intentioned outside actors to seize control of the narrative. Transparency offers a possible remedy against populism as well. When citizens can see how decisions are actually taken in the EU, they are less likely to be duped by populist myths about the sinister machinations of ‘Brussels bureaucrats.’ Untruths are best countered by facts.
In line with the openness expected from national civil servants in their day-to-day work, the Finnish government has mobilized the entire administration from ministers to public officials in the communication effort related to the EU Presidency. Furthermore, to ensure transparency in lobbying, the Finnish Presidency will publish information on all meetings between ministers and interest groups. The same goes for Finland’s Permanent Representative and her deputy in the Permanent Representation in Brussels.
Finland has pushed for greater transparency throughout its EU membership, including its two previous presidencies in 1999 and 2006. This attachment to the transparency agenda is rooted in positive domestic experience. Finland’s own national approach continues to evolve. In 2013, the country joined the Open Government Partnership (OGP). As part of this initiative, Finland’s Ministry of Finance regularly produces Action Plans for Open Government. The latest plan, published in 2019, pledges to develop an open government strategy, a transparency register and guidelines on the ethical use of artificial intelligence. Finland has pursued open government with two main goals in mind: strengthening trust between actors in society and promoting equal opportunities for participation in society’s operations and their development.
Strategic debates on the future of the EU: improving accountability to European citizens
The institutional hiatus in 2019 offers a valuable opportunity to take stock and plan for the future. From a transparency perspective, it seems logical that when ministers hold broad strategic discussions, charting the Union’s course over the next legislative cycle, citizens should be allowed to hear what is being said. Under the Council’s Rules of Procedure, legislative debates by ministerial-level Council meeting are always made public, whereas the live-streaming of non-legislative debates usually requires a decision by qualified majority. The Finnish Presidency decided that it would actively avail itself of this possibility, especially in the context of forward-looking debates.
The Council began the process of incorporating the European Council’s Strategic Agenda 2019–2024 into its work by holding a series of future-oriented discussions on different themes; at the initiative of the Finnish Presidency, a number of these debates have been conducted in public session. For example, on 8 July 2019, the ministers responsible for Employment and Social Policy debated ’the Economy of Wellbeing,’ a far-reaching horizontal initiative intended to inform EU policy in the coming years. The General Affairs Council has discussed the ‘Implementation of the Strategic Agenda 2019–2024’ on 18 July 2019 and ‘Enhancing respect for the Rule of Law’ on 16 September. The last-mentioned debate had particular resonance in the current political climate.
Transparency and the Rule of Law
Strengthening ‘common values and the rule of law’ is the very first priority mentioned in Finland’s Presidency Programme. It is not just a pet topic unilaterally chosen by Finland but the expression of a common determination to safeguard the basic principles enshrined in the Treaties. The crucial role of the rule of law in guaranteeing the Union’s values is also recognised in the European Council’s Strategic Agenda and enjoys strong support among EU citizens. According to a Eurobarometer survey conducted in April 2019, the importance of the key principles of the rule of law were recognised by over 80% of EU citizens and 89% supported the need for the rule of law to be respected throughout the EU.
But the very notion of the rule of law also needs to be better known if it is to be effectively used and properly defended. As the Commission says in its recent Communication on ‘Strengthening the rule of law within the Union,’ (3) a lack of information and limited general public knowledge about challenges to the rule of law provide a breeding ground for negative developments. Without transparency, the media, NGOs and interested citizens are unable to hold decision-makers to account. In other words, in a healthy democratic system, transparency is needed to uphold the rule of law.
It was with such concerns in mind that the Finnish Presidency decided to shine the light of transparency onto the concept of the rule of law itself, by proposing that the policy debate on enhancing respect for the rule of law that took place in the General Affairs Council on 16 September be conducted in public session — the first time that this subject had been broached by EU ministers on camera. To be sure, certain divisions between the Member States were reported in the press. But an open debate always moves things forward. As the Finnish Presidency has repeatedly stressed, at the end of the day, the rule of law is something that unites the EU instead of dividing it.
(1) Council document XT 21035/19. Letter from Mrs E. O’Reilly, European Ombudsman, received on 6 May 2019 (SI/3/2017/KR).
(2) Openness and Transparency: Finland’s Presidency of the Council of the EU: 11999/19.
(3) COM(2019) 343 final.
This article was first published on the 4/2019 issue of the ECA Journal. The contents of the interviews and the articles are the sole responsibility of the interviewees and authors and do not necessarily reflect the opinion of the European Court of Auditors.