Transparency in the EU institutions

Glossary

Lobbying

Lobbying can generally be defined as any attempt to influence a politician or public official on a specific policy issue.

Revolving doors

Movement of individuals from the public sector to the private or voluntary sector within the same field, and vice-versa, leading to potential conflicts of interest.

Corporate capture

Although different definitions of ‘corporate capture’ exist, the Alliance for Lobbying Transparency and Ethics Regulation in the EU considers corporate capture evident when a particular policy area exhibits certain key tendencies, which suggest that decision-making in that area has often been captured by corporate interests. It identifies ten typical situations of corporate capture:

1) The outcome is policies and regulations that are in industries’ interests, and often against the public interest;

2) Industry/corporations have privileged access to decision making and regulation over a long period (they are often long-term trusted partners);

3) There are formal and informal channels of communication between industry and policy-makers (social events, club memberships, receptions);

4) Revolving door cases and/or other conflicts of interest occur;

5) Policy issues are removed from the public (high technical complexity, low public awareness);

6) Contacts do not usually happen in a transparent way;

7) The policy debate is framed in industry’s interests, through the use of concepts like ‘sound science’, innovation, better regulation, competitiveness, etc.;

8) There is heavy industry lobby strength, with practical evidence of big expenditures, many staff, etc.;

9) It is usually not illegal but illegitimate, and undermines public trust in democratic decision-makers;

10) The industry/corporation often has a certain power over decision-makers (financial or jobs arguments, the need for data, expertise, etc.).

Permanent Representations (PermRep)

The Permanent Representations of the Member States of the European Union represent their Member States in all the preparatory meetings of the Council, as most of the real decisions within the Council happen before the formal meeting of the Ministers.

Trilogue

Informal meetings between the European Parliament, the Commission and the Council over a legislative file to find an agreement between the Council and the Parliament on a common text to be submitted to formal approval by both institutions. In the trilogues, the Commission acts as a mediator.

European Ombudsman

The European Ombudsman is an independent and impartial body that holds the EU’s institutions and agencies to account and promotes good administration. The Ombudsman helps people, businesses, and organisations facing problems with the EU’s administration by investigating complaints about maladministration by EU institutions and bodies, as well as by proactively looking into broader systemic issues.

Content

Glossary
What do the Treaties say about transparency of the EU institutions?
How can I request documents from EU institutions?
How can I identify who is working for the EU institutions?
What is the Transparency Register?
What are the transparency issues of the main European institutions?
What is the European Ombudsman?
Example of a successful call for transparency
Recommendations
To wrap up
Take the quiz!
Materials and resources

Expected learning outcomes

To be able to request access to documents from the European institutions.
To be able to identify the key people responsible for a legislative or policy file within the institutions.
To explain the role of the Transparency Register.
To explain the current transparency issues of the main European institutions.
To know the powers of the European Ombudsman.

Glossary

What do the Treaties say about the transparency of the EU institutions?

Art. 15 of the TFEU prescribes that the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible. The Parliament shall meet in public, as well as the Council when considering and voting on a draft legislative act. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, based on rules set up by the institutions in order to exercise such a right. General principles to limit this right due to public or private interests shall be approved by the Council and Parliament via a legislative act (a regulation). The Court of Justice of the European Union, the European Central Bank and the European Investment Bank are bound by the provisions of Article 15 only when exercising their administrative tasks.

How can I request documents from EU institutions?

The procedure to request a document from the Commission, Parliament and Council is laid down in the regulation 1049/2001. The request must be done in written form (including electronic), in any official language of the EU. The request has to be precise enough for the institution to identify the document (the institution can ask for clarification if needed), and the reason for the request is not necessary. Once the request is received and registered, the applicant receives confirmation of receipt: the institution has 15 working days (extendable to another 15 working days for long documents, with prior notification and stating the reason for the extension) to provide the document or state why they refuse to provide it.

In case of refusal (or if no answer is given within 15 working days), the applicant has 15 working days to appeal to the institution: the institution has 15 working days (extendable to another 15 working days, with the same conditions as above) to provide the document or give a reasoned refusal. In case of refusal, or if 15 working days pass with no answer from the institutions, the applicant can bring the case to the European Ombudsman or to the Court of Justice of the European Union, which however can come with important legal costs in the event of losing the case. When stating the second refusal, the institution shall communicate to the applicant the existence of such possibilities of remedy. Requests for information are free of charge.

To facilitate such exchanges with the institutions, two NGOs (Access Info Europe and mySociety) have developed the platform AsktheEU.org: after the login, it is possible to browse any European bodies and agencies, and send the request directly via the website; when the institutions reply, a notification will arrive to the applicant. From the website, it is also possible to request the appeals. The platform is free of charge and operates in English, French, German and Spanish. It also provides guidance on the different steps that can be taken to follow up on a file.

How can I identify who is working for the EU institutions?

The European Union has an official directory of the people who work for the institutions, both from the political and administrative sides. The directory is called EU Whoiswho, and is organised according to the institutions, and includes all the EU bodies and agencies. However, the level of transparency between the different institutions is very different. For instance, for the European Parliament, the e-mails of the Members of the European Parliament (MEPs) are indicated, but not the names or e-mails of their parliamentary assistants (the assistants’ names are indicated in the pages of the MEPs in the European Parliament’s website, but not their e-mail addresses); for the Council, only the general e-mails of the Permanent Representations of the Member States of the EU are shown, and not the details of the staff that concretely follow the file (more details are indicated on the PermRep website, but the level of detail varies – see CSE analysis); for the Commission, while displaying the e-mails of their officials was recently introduced, the information has been restricted for the levels below the Heads of Unit, while before it was visible.

In this regard, Civil Society Europe and Social Platform, together with many other NGOs, wrote to the European Commission asking for the restoration of the names of the civil servants, as a matter of transparency and equality (organisations with more resources and previous access to those civil servants would already have those contacts) and the European Ombudsman opened an inquiry into it. For what regards the transparency of the Permanent Representations of the Member States to the EU, beyond the EU Whoiswho, Civil Society Europe provided an analysis of their transparency, in terms of the accessibility of their civil servants.

What is the Transparency Register?

The Transparency Register is a database of interest representatives (organisations, associations, groups and self-employed individuals) who conduct activities to influence EU policy-making. It also gives information about the sources of funding of those registered. While registration is voluntary, being registered is required for a series of actions, such as meetings with Commissioners, their cabinets and Directors-General on policy issues, meetings with the General Secretariat of the Council, to receive the accreditation to enter the European Parliament, as well as to participate in stakeholder meetings organised by the Commission and to participate in public online consultations. The Register, however, requires CSOs to disclose their entire budget and funding sources, while other groups only need to provide an estimate of their lobbying budget. In contrast to the United Nations or the Council of Europe, the EU does not have a list of recognised NGOs to engage them in specific dialogue with the institutions; as the transparency register covers all sector representatives, the distinction between civil dialogue and lobbying becomes blurry.

What are the transparency issues of the main European institutions?

Within the Commission, the obligation to disclose the meetings with interest representatives is applied only for the top levels, but not for the lower levels, e.g., Directors and Heads of Unit, who however are those that are mostly directly involved in the policy files. While the Parliament has in place some rules regarding transparency, they are not thoroughly carried out: for instance, MEPs that hold an institutional role, such as Committee Chairpersons or (shadow) rapporteurs, are obliged to disclose their lobby contacts, but research by Transparency International showed that this rule is not thoroughly implemented; furthermore, the transparency with which MEPs and political groups disclose their meetings varies widely, according to another report by Transparency International. In September 2023, the European Parliament adapted its Rules of Procedures, which now require all MEPs to disclose their meetings, including with third-country representatives.

The Council of the EU is considered a rather untransparent institution in its internal processes. Many of its documents are given the status of ‘limité’, which limits the possibility of having access to them. In addition, those that are published do not indicate the position of the different Member States on the different legislative files at the preparatory stage (when the same files are discussed in the EP committees), making it very difficult for citizens to know their governments’ position, and to hold them accountable for their decisions. Within the Permanent Representations, only the permanent representative and their deputy have to publish their lobby meetings, and that is only when they hold the rotating Presidency of the Council. Particularly untransparent are the meetings of the trilogue, where the Council and the Parliament discuss their positions on a legislative file to find a common text, with the mediation of the Commission: meetings of the trilogues happen behind closed doors, and most of its documents (including the negotiating positions) are not publicly available.

Furthermore, EU policies have been accused of being ‘captured’ by corporate interests, when the economic interest organisations have privileged formal and informal access to policy-making, including due to the practice of ‘revolving doors’ between public positions (as civil servants or political representatives) and the private sector. To monitor the meetings of the Commission and the Parliament with interest representatives in a user-friendly way, Transparency International EU launched the Integrity Watch EU, allowing us to see which types of interest get more access to EU institutions.

What is the European Ombudsman?

According to Art. 228 of the TFEU, the European Ombudsman is a completely independent figure that investigates cases of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. The Ombudsman can conduct inquiries when finding grounds for it, either on their own initiative or when asked for directly by any citizen of the Union or any natural or legal person residing or having their registered office in a Member State, or by an MEP.

The only exception is when the alleged facts are or have been subject to judicial proceedings. When the Ombudsman confirms the presence of a case of maladministration, they address it to the concerned institution, which has three months to reply. After that, the Ombudsman writes a report and forwards it to the concerned institution and the European Parliament, and informs the person who filed the complaint about the outcome of the inquiries. The Ombudsman submits to the Parliament an annual report with the outcome of their inquiries. The Ombudsman is elected by the Parliament at the beginning of each parliamentary term and for the duration of that legislature term, and is eligible for re-appointment.

It is possible to make a complaint to the European Ombudsman within two years of the date when the person affected became aware of the facts, and the person must have previously tried to solve the issue with the institution in question. More information can be found in the ‘Make a complaint’ section of the European Ombudsman website.

Example of a successful call for transparency

In 2023, the Court of Justice of the European Union ruled on a case involving access to documents related to legislative procedures within the Council. The applicant, Mr. Emilio De Capitani, sought access to certain documents from the Council’s ‘Company Law’ working group concerning the amendment of Directive 2013/34 on annual financial statements. The Council had denied access, citing concerns that disclosure would undermine its decision-making process. The General Court stressed that while access is regulated, it is not an absolute right, and certain documents can be withheld to protect the decision-making process. However, in this case, the General Court found the Council’s refusal lacked specific and concrete reasons. It underlined the significance of transparency for upholding democratic accountability within the EU’s legislative framework (CJEU, 2023). This decision had a positive effect on transparency and access to Council documents. NGOs (such as the European Environmental Bureau) have experienced a higher success rate when requesting access to Council documents since the Court judgement. (EnTrust Report on practices of enhanced trust in governance, 2023, p. 67).

Recommendations

Ensure consistent, accessible, and appropriate public communication that includes enhanced public access to documentation.
A thorough critical review of exceptions that limit document availability on request should be made, and the public should have broader access to EU institution documents, aligning with European standards. This should include web streaming of the preparatory Council of the EU works and minutes, disclosing the positions of Member States, and the relevant trilogue documents.
Develop an inter-institutional agreement between all the EU institutions on common and specific measures to increase internal transparency and accountability to the public. Such measures should include a common code of conduct for the EU officials; measures to prevent maladministration, corruption, and revolving doors; publicity of the meetings of the EU decision-makers and officials of all ranks, including meetings conducted online or via phone, as well as those labelled informal.
Strengthen the powers of the European Ombudsman, including monitoring the follow up on the above-mentioned proposed inter-institutional agreement.

To wrap up

Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to access documents of the Union’s institutions, bodies, offices and agencies, whatever their medium.
The request has to be submitted in written form, and the institution has 15 working days to reply (extendible for another 15 days). If they are refused access to the document, the applicant has 15 working days to appeal. If no positive solution is given within 15 working days (extendible for another 15 days), the applicant can go to the Court of Justice, to the European Union, or the European Ombudsman.
The platform AsktheEU.org helps manage the requests for access to the documents of EU institutions.
The EU Whoiswho register is a database with the contacts of the EU public officials. However, the level of detail varies across the institutions.
The Transparency Register lists the interest representatives that do activities to influence EU policy-making. Even if the registration is voluntary, it is required to have access to the Parliament’s premises and the Commission’s and the Council’s top officials.
There are serious issues of transparency in the meetings of the EU public officials with interest representatives, as well as in gaining access to key Council’s and trilogue’s documents. This leads to the risk of ‘corporate capture’ of the institution’s policies.
The European Ombudsman is an independent figure, appointed by the European Parliament, who investigates cases of maladministration of EU institutions. Any citizens and residents (including legal entities) in the EU can make a complaint to the Ombudsman.

Materials and resources

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Contact

info@civilsocietyeurope.eu

Project information

Project Type: Collaborative Project

Call: H2020 SC6 GOVERNANCE-01-2019: Trust in Governance

Start: February 2020

Duration: 48 Months

Coordinator: Prof. Dr. Christian Lahusen,
University of Siegen

Grant Agreement No: 870572

EU-funded Project Budget: € 2,978,151.25