EU member states’ legislative proposals to be transparent, Curia rules

This is one blow to EU officialdom that will not delight the Hungarian government: the Court of Justice of the European Union (Curia) has declared that comments made at the European Council (EC) sessions shall be made public, increasing the transparency of EU executive decisions.

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The Curia found the blurring of names of member states that had made a proposal to be counter to EU law, upholding the earlier annulment of an EC decision by the General Court that denied Access Info Europe access to certain EU documents.

This decision is highly significant because the EC is the supreme legislator of the EU and enacts all the key norms that directly affect its citizens. When Viktor Orbán intones the enforcement of Hungarian interests, then this is the key place to campaign for those national interests, along with proceedings examining Hungary’s failure to fulfill its EU obligations. This means the real capacity of a government to make proposals for its national interests can be seized up based on preparatory documents (written suggestions, reports, etc). Or rather, until now, just could have been seized up, because EC officials have always refused requests to reveal the debating standpoint of a member state. In practice this meant that the name of the member state that had made the proposal was blurred out from released reports. The recording of only the general viewpoints of ministers, member states and delegations on EC sessions has also resulted in opacity regarding the positions of national governments.

The EU has an inferior record on transparency to the member states, in part because the compromise necessary to establish the rules and guarantees of transparency cannot be achieved without the agreement of the least enthusiastic member state. So, even if Sweden, Estonia or France publicized everything, the Czechs or the Greeks – just to mention the countries that supported the EC in this case – would not support it.

The EC does not publicize much information regarding proceedings pertaining to failure to fulfill obligations, except somewhat selective press releases. This means that simple questions related to the ongoing proceedings against Hungary remain unanswered. And this reputation of the EU institutions does not encourage the requesting of data: when we attempted to obtain the EC’s letters to the Hungarian government, which were in the focus of Hungarian media discourse at that time, our claim was refused.

This is why it was key that Access Info continued to make its requests until the final decision: if we consider that these requests were made in 2008, then those two years that we waited for the ministerial commissioner’s report on the management of the State Opera seems reasonably swift. It recalls the scene in the classic BBC sitcom “Yes Minister” when the senior civil servant Sir Humphrey asks his colleague Sir Arnold about the public administration transparency programme and is told “Sorry but I am not allowed to speak about that.”

The positions of member states on EU transparency can now be made public after five years. Meanwhile the EC must review its own previous practices about releasing data on legislative proposals. Ideally the proposals of the member states will be automatically released, but officials should not make verbatim reports and the Curia says exceptions should be available for sensitive cases. However, if somebody were interested in the government’s position of an EU norm during the legislative process that now directly affects them and of which the government is critical, we would not advise against an information request.

The original Hungarian language article written by Tibor Sepsi was posted on 24 October 2013. Translated by Emese Szilágyi, edited by Dan Nolan.