HOW TRANSPARENT IS THE EU LEGISLATIVE AND REGULATORY SYSTEM ?

Transparency of the EU legislative procedures

Although all EU institutions are subject to the principle of openness, public access to the deliberations of the EU institutions varies greatly in the EU. Currently enshrined in Article 1 TEU (“decisions are taken as openly as possible to the citizen”) and Article 15 TFEU ([the] “EU’s institutions shall conduct their work as openly as possible”), the openness principle expresses the precepts of good governance and, as such, is instrumental to the enjoyment of the newly Treaty-sanctioned right to participate in the democratic life of the Union. Under the Treaty on the Functioning of the European Union (TFEU) Article 11 (3), the Commission is required to carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. Most of the Commission’s legislative work prior to the transmittal of legislation to the Parliament involves exchanges with the public and is easily accessible, the Commission’s rules of procedures provide that meetings of its College of Commissioners “shall not be public and discussions shall be confidential”. The rationale for this is to ensure the collegiality of an organ whose members should act independently from the Member State of origin.

In the EP, all debates of the Parliament and its committees are public, with two exceptions. Parliamentary committees holding meetings may decide “to divide the agenda for that meeting into items open to the public and items closed to the public”. Secondly, the TFEU provides that “the consideration by the Committee on Legal Affairs of requests relating to procedures on immunity shall always take place in camera.”

The Council, after years of a policy of limited openness, is now required to meet in public when considering and voting on a draft legislative act. As a result, the Council’s Rules of Procedure sharply differentiate between legislative and non-legislative activities. While the meetings discussing non-legislative proposals are – unlike those relating to legislative acts – in principle not public, the Council’s rules of procedure provide that, should these proposals be “important and concern the adoption of rules legally binding in or for the Member States, the Council’s first deliberation on important new proposals shall be open to the public”. It is up to the national government holding the Council’s rotating presidency to decide which proposals count as “important”, but the Council may overrule this. Moreover, besides the publicity of these specific decision-making issues, there are several other categories of debates by the Council that may be held in public when they focus “on important issues affecting the interests of the European Union and its citizens”. In general, the Council’s debates are made public through audiovisual means through the broadcasting of the major meetings.

Transparency of the EU regulatory process

Historically, the operation of hundreds of committees operating within the European Commission’s walls has always been difficult to detect from the outside world. Being aware of this, the Commission has undertaken some reforms aimed at enhancing the overall level of transparency surrounding the adoption of non-legislative acts through the establishment of an improved search engine. This enables the public to retrieve policy documents subject to the EU rulemaking process and their committees.

For implementing acts, there is a “Comitology Register” that has been operational for several years. It contains a list of all comitology committees (including the appeal committee); agendas of committee meetings; summary records of the meetings and the lists of authorities representing the Member States; draft implementing acts submitted to committees; the results of voting; the final draft implementing acts following delivery of the opinion of the committees; information concerning the adoption of the final draft implementing acts by the Commission and statistical data on the work of the committees.

 For delegated acts, the Commission has established a Register of Expert Groups and Other Similar Entities to offer the public an overview of the consultative entities that aid the Commission in the preparation of delegated acts (among other things). For each group, the register provides standard information such as the Commission department running the group, as well as the group's mission, tasks and membership.

Transparency, Public Participation and Impact Assessment of Legislative and Regulatory Proposals

In the European Union, opportunities for public consultation are usually provided for all legislative measures and significant non-legislative measures. These opportunities are concentrated in the pre-proposal phase in which the Commission undertakes impact assessment of (most) legislative proposals.

Major legislation that goes from EU Commission to Parliament and Council is the product of an elaborate administrative process that generally will include “early” warnings in the form of public Commission Roadmaps; extensive stakeholder consultations; fully-fledged Impact Assessment (IA); Impact Assessment Board (IAB) review; Inter-Service Consultation (ISC), and final adoption by the EU College of Commissioners.

Delegated acts and implementing measures are subject to IA when they are expected to have significant economic, social or environmental impacts. However, as their number remains limited today, only a few IAs have been carried out thus far.