The EU's Transparent Bid for Opacity by Jacob Soederman


- The Prodi Commission's recommendations on transparency make the Santer Commission look good.

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THE WALL STREET JOURNAL EUROPE, Thursday, February 24, 2000



Does the European Union really believe in openness?

Last year when the Santer Commission was forced to resign - en masse and in disgrace - the air was thick with calls for less secrecy, less influence-peddling, more transparency, more accountability, a service-minded mentality among EU civil servants, and so forth. Now those calls are few and far between. And with the release of the Prodi Commission's proposal on transparency, things may well get worse.

It need not be thus. Though transparency can be a slippery term, many countries have adopted - and stuck to - high standards of openness in their public affairs. In the U.S., freedom of information has been the rule for more than 25 years. In Europe, a strong tradition of open government exists in the Netherlands and the Nordic countries, while Ireland recently enacted a law on freedom of information.

The EU, too, has seen some important advances. In 1993, the Maastricht Treaty established an Ombudsman's office to investigate citizens' complaints about EU maladministration and instructed the Commission and the Council of Ministers to adopt rules on public access to documents. Under former President Jacques Santer, the Commission actually released most documents that complainants asked for, while the Council set up a register of documents and published many of them on its website. And on my initiative as Ombudsman, all European institutions - including the European Central bank - adopted clear and liberal rules on access to documents.

Things began to wrong, however, in 1997, following the Amsterdam Treaty. Although the treaty gives EU citizens a right of access to documents, that right was made subject to "general principles and limits on grounds of public or private interest," to be laid down in a regulation drafted by the Commission. When the Prodi Commission released its (secretly drafted) proposal to the public a few weeks ago, no commissioner was present to defend its merits - no surprise, considering how few it contains.

Take the rules governing access to documents sent to the EU. At first sight, the Commission's proposal appears to make these documents available to the public. But read a little further and what you find is a list of exemptions from access without precedent in the modern world. For example, access can be refused on such grounds as "the stability of the Community legal order," "the deliberations and effective functioning of the institutions" and "infringement proceedings, including the preparatory stages." And these are just the new rules: former exemptions still apply. Should the Parliament and Council adopt the Commission's proposal, there probably won't be a document in the EU's possession that couldn't legally be withheld from public scrutiny.

Of course, none of this is to suggest that citizens and corporations shouldn't have the right to ask that their affairs be dealt with in confidence. But such confidentiality should only be permitted on clearly established legal terrain, particularly in areas covering commercial confidentiality and medical secrecy. Otherwise, the possibilities for favoritism and corruption become all but boundless.

Alas, what the present system seems to do is offer token measures of transparency while making it possible for some of the Commission's most important work - as well as its more venal aspects - to remain cloaked in secrecy. Former Research Commissioner Edith Cresson once defended such a system by saying that it makes public administration more effective. That argument looks especially rich in light of the shenanigans that went on during her tenure on the Commission.

Then too, one of Mr. Prodi's own Commissioners has dismissively suggested that the concern for openness is just a manifestation of "Protestant Puritanism." Perhaps. But I've found that most European citizens, regardless of their religious beliefs, insist that government should be honest and accountable. Indeed, just about all EU officials that I've dealt with are highly educated, public-spirited, and incorruptible. Why should their activities be kept secret from ordinary citizens? Surely most of them would welcome a good law on public access.

Such a law needs to include three things. First, it must cover all documents, without exception. Second, each European institution should have a central, public register of all documents. This should include confidential documents, but in a form that does not disclose confidential information. In fact, the current draft does mention registers, but does not oblige the Commission to maintain a public register of all incoming and outgoing documents, without which it's impossible to know just what the Commission is actually up to. Finally, the list of exclusions should be short, precise and easy to implement. It should make clear which types of documents must always be made public and which may be kept secret. The category of documents over which the institution has discretion should be kept as small as possible.

The Commission's draft regulation has now been sent to the Council and to the European Parliament. I hope that one or both of them will establish a working group including experts in administrative law from countries that have a long experience of legislation on access to documents. This is one way to produce a law giving effect to the promise of an accountable and responsive EU.

On a recent visit to Tuscany, I overheard a professor make the ironic remark that "we had a principle in the old days that we applied the laws for citizens, but interpreted them for friends." Given that we are now presumably in a new Europe one would hope that such a perverse principle no longer applies.

Does the European Union really believe in transparent administration? Does it really want to erase the legacy of corruption and cronyism bequeathed to it by its predecessors? I certainly hope that the answer to both these questions is a resounding yes. Because if it is not, Europeans are sooner or later bound to ask: Just whom does Brussels really serve?

Mr. Soederman is European Union Ombudsman.

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