Faced with a legitimacy crisis caused by the Lux Leaks tax rulings’ scandal, which broke just a few weeks after the start of the Juncker Presidency, the Better Regulation initiative represents the EU’s renewed commitment to transparency. The Commission’s 1st Vice-president, Frans Timmermans, promised to provide a set of “measures which will open up the EU’s decision-making process, allowing for more transparency and scrutiny, and providing more opportunities for people to give their views”[1].
For the EU’s commitment to transparency to be credible, however, a real and concrete effort is needed from the Commission. The recent controversy over the opacity of the Trans-Atlantic Trade and Investment Partnership negotiations as well as the correspondence between the European Commission and tobacco lobbyists are two examples that leave a black mark on the Commission’s commitment to transparency. More concretely, the continued existence of trilogue discussions – the mysterious and exclusive talks where the final negotiations and decisions on almost all EU legislation take place, which are not open to the public and have faced severe and continued criticism leading to the EU “watchdog”[2] Ombudsman Emily O’Reilly launching an investigation;[3] – does not really help Timmermans’ “transparency crusade”.
How will the Commission cope with such a threat to its credibility? Timmermans’ recipe for success is ensuring that “all the windows will be open and the kitchen and cooks will be visible”[4] –a metaphor that certainly expresses the right message but that still raises numerous questions.
In practical terms, the Timmermans’ better regulation agenda is composed of a set of tools which aim to improve the EU law-making process. In order to achieve this aim, the Commission introduced a new agreement between the EU institutions designed to make cooperation between them smoother and clearer. With this proposal, changes are proposed in all the four stages of the legislative cycle—from drafting, adoption, implementation of EU legislation to its ex-post evaluation. One of the most common criticisms is the lack of transparency in the adoption (legislative ordinary procedure) and implementation (comitology) stages of the EU legislative process. The Commission’s response to this is the introduction of impact assessments, in case the co-legislators intend to introduce amendments which could substantially modify its original proposal. For the implementation stage, meaning the adoption of delegated and implementing acts, the Commission also proposes the introduction of 4-week public consultation.
But will these changes really contribute to greater transparency? With the introduction of impact assessments, it seems not only that the democratic mandate of the European Parliament is called into question but that the core transparency issue, which lies in the secretive nature of the trialogue meetings, won’t be tackled. Furthermore, with the introduction of public consultations in comitology procedures, not only there is still little room for action for the European Parliament but, more importantly, there is no real improvement to transparency.
Although the content of the Better Regulation package is more ambitious than previous initiatives[5], the transparency issue still raises a number of questions. Will the increase in consultations and impact assessments really boost the dialogue at all stages of the legislative process? Shouldn’t transparency be an everyday concern, rather than a periodical exercise carried out through consultation questionnaires? And most importantly, are EU institutions sufficiently equipped to deal with this change? Systematic consultation and impact assessments require an amount of resources, costs of compliance and internal reorganisations that neither the Commission nor the co-legislators seem to have at the moment. Will all these “measurement tools” be outsourced to external entities? If yes, how will then transparency be ensured? Ultimately, these were all questions which might have been raised during the public hearing organised by the Legal Affairs Committee of the European Parliament on October 13, but which had to be cancelled due to the absence of the 1st Vice-president Timmermans. The European Parliament is actually working, within an ongoing own-initiative and non-binding report on transparency[6], on a proposal which calls for the publishing of the minutes of the trilogue meetings. It will be interesting to see if this proposal will find a consensus within EU institutions. What can be said, at least, is that this proposal strikes at the heart of the transparency issue of EU affairs.
[5] Communication from the Commission of 5 June 2002, Action Plan “Simplifying and improving the regulatory environment” [COM(2002) 278 final.