On Friday 10th May, the European Ombudsman raised hope for open law making for secondary legislation (link).
Today, most lawmaking by the EU is done by way of secondary legislation. It’s more or less carried out in secret.
First, the Commission refuse to release how each Member States vote in the Committee.
Second, they don’t disclose the individual positions expressed by Member State representatives within the scope of committee proceedings.
Third, they are reluctant to provide the documents, including the impact assessment (sometimes even to the Member States) or guidance documents, before formal adoption.
To get hold of what really happened in the Committee you’ll need to read Politico or get the informal minutes of a member state more supportive of open government.
It’s not that the Commission doesn’t have this information. They have a non-public meeting summary that spells out what really happened in the meeting.
The Ombudsman’s Response
The Ombudsman rejected the Commission’s cases for secrecy.
First, the Ombudsman’s view is that in comitology, the Commission is acting in its legislative capacity (para 33). The documents, including guidance, are by analogy legislative documents (para 32).
Second, the European Ombudsman dealt with the Commission’s current practice of making sure that the summary records do not contain the individual positions expressed by Member State representatives within the scope of committee proceedings.
This practice was rebuffed.
“Nor is there any other provision in the Comitology Regulation, which would impose confidentiality requirements on committee proceedings. On the contrary, Recital 19 of that Regulation makes it clear that public access to information on committee proceedings should be ensured in accordance with the EU law on public access to documents” (para 44).
Third, she argues that there is no legal basis whatsoever for their current practice.
“This means that the confidentiality provisions in the comitology rules of procedure, most notably Article 10(2) (stating that summary records of meetings shall not mention the individual position of the members in the committee’s discussion) and Article 13(2) (stating that the committee’s discussions shall be confidential), are not themselves founded in the Comitology Regulation” (para 45).
Finally, in response to the oft-repeated reasoning for non-disclose, the Ombudsman disposes of the pleadings curtly:
“The Commission has not established that the external pressure to which Member State representatives might be subjected in the event of disclosure of the documents in question would be such as to risk impeding its capacity to act in a fully independent manner and exclusively in the general interest. The Commission has also not demonstrated that disclosure would seriously affect, prolong or complicate the proper conduct of the decision-making“[37] (para 45).
This is a powerful Recommendation. It will be interesting to see how the European Commission respond to it.