The Treaty on the European Union opens with a bold statement, declaring that it marks a new stage in the process of creating an ever-closer union among the peoples of Europe, in which decisions are taken as openly as possible and as close to the citizen as possible.2 The principle of transparency is thus established already in the opening paragraph of the TEU, suggesting that it is of fundamental importance to the EU and its legal system. Indeed, and as noted by Buijze, the principle is thought not only to contribute to good governance, but also to be essential to the legitimacy of the EU, and as such it is of fundamental value.3 The goals envisioned in Article 1 of the TEU are confirmed by Article 15(1) TFEU, which declares that âIn order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.â The wording suggests that the principle of transparency does not reflect an individual right but is rather considered as a means of safeguarding democracy and ensuring an administration that works effectively. However, this is only part of the truth. The principle of transparency is a composite term and serves to protect a number of interests. As Buijze notes, it has also been derived from the principle of effective judicial protection and the rights of the defence, and has been used in conjunction with the principles of legal certainty and sound administration. In those cases, transparency is essential to safeguard individual rights of all sorts.4 In addition, the right of access to documents has been written into the Charter, and is thus considered a fundamental right in and of itself. As such, it belongs to the individual. Transparency can thus be a means of safeguarding the public interests of democracy and legitimacy, but also to protect individual rights. The following section provides a brief presentation of how the principle of transparency and the rules on public access to documents have emerged and developed in the EU legal order.
A.Historic Background to the Principle of Transparency and the Right of Public Access
As noted by Lenaerts, the Founding Treaties were silent on issues concerning democratic legitimacy, and the early days of the European cooperation were weak in terms of democracy, accountability and accessibility to public scrutiny. Over time, the absence of any reference to the concept of democracy led some scholars to argue that the Community suffered from a âdemocratic deficitâ.5 However, while the concept has its roots in the 1970s, it was two decades later that the debate on the perceived democratic deficit really gathered speed.6 Without analysing the debate in detail, the criticism mainly consisted in a concern that the EU suffered from a lack of accountability, democracy and accessibility of the ordinary EU citizens to the EU institutions. The debate was fuelled by a number of events that took place at both Member State and institutional level during the 1990s.
The first of these events concerned European integration and the public reception of the Maastricht Treaty, which had been agreed by the Member State governments in 1991. As noted by FĂžllesdal, European governments had long pursued European integration, assuming that the public gave them a âpermissive consensusâ toward deeper cooperation.7 The popular and legal reception of the Maastricht Treaty challenged this assumption. Referendums on the Treaty were held in Denmark, France and Ireland, and the results of these referendums sent shock waves across the Union and led to a heated public debate on the proper ends and institutions of the EU. In Denmark, the Danish people voted against the treaty in 1992. After the defeat in the first referendum, Denmark negotiated and received an opt-out from the single currency, and the Maastricht Treaty was accepted by another referendum the following year. In France the treaty created serious cleavages within political parties, and barely passed in a referendum 51 to 49 per cent, prompting Mitterand to suggest that a long-term oversight of the EU institutions lay in the lack of talking to the people.8 In the UK, the treaty was passed only with great difficulty in 1993.
Second, when allegations of corruption forced the Commissioners to resign in March 1999, this added fuel to an already heated debate. In the media, the EU was described as having been decapitated:
Europe was left decapitated last night as the entire European Commission resigned en masse after a devastating report by an independent committee of inquiry which found that they had âlost control of the administrationâ.9
Tomkins provides an illustrative presentation of the events leading up to this âdecapitationâ. In 1998, the Commissionâs own anti-fraud unit, known as UCLAF,10 disclosed that ÂŁ600 million of the Commissionâs humanitarian aid budget for the years 1993 through 1995 could not be accounted for. According to UCLAF, this had not come to light previously because the Commission had failed to keep the European Court of Auditors (ECA) properly informed. Furthermore, Tomkins notes, in its report for the financial year 1997, published in November 1998, the ECA stated that approximately ÂŁ3 billion (representing 5 per cent of the EUâs budget) had âgone walkaboutâ. This included some ÂŁ600 million that had been allotted to repairing and making safe the nuclear power plants of the old Soviet bloc. This money, the ECA declared, had been âeither wasted, lost, embezzled or unspentâ. There were also allegations that Commission officials had attempted to suppress any investigations into fraud, and that some of them were in the habit of awarding lucrative contracts to family members.11 These events were closely monitored by the media, which no doubt added fuel to any criticism of the EU machinery.
Third, in 2001, it was Irelandâs turn to vote against a treaty proposal. In a referendum on the adoption of the Treaty of Nice, the Irish voters said no, and it was only after the negotiation of a number of amendments that the treaty was approved by the Irish people in October 2002.
These developments sparked a number of actions at EU level. In response to the bitter criticism following the Danish referendum, where the EU institutions were accused of âinstitutional autismâ, the Council and the Commission produced non-binding codes of conduct on public access to documents, and in 1995, the first European Ombudsman was appointed. The Ombudsman was entrusted with the task of ensuring accountability and empowered to investigate complaints of maladministration against the EU institutions. Furthermore, the right of access to documents and openness in decision-making were both formally introduced by the Treaty of Amsterdam.12 As to the âprinciple of opennessâ, the treaty modified Article 1 TEU so as to make clear that the EU institutions are bound to take their decisions âas openly as possibleâ.13
Another response to the perceived democratic deficit and lack of accountability was the Commissionâs own White Paper on European governance presented in 2001,14 in which it proposed a number of measures aimed at regaining the citizensâ confidence in the EU and its institutions. The White Paper declared that it was now time to take action and that the Union should â already within the existing treaties â start adapting its institutions and establishing more coherence in its policies so that it would become easier to see what the Union was doing and what it stood for. A more coherent Union would be stronger at home and a better leader in the world, the Commission declared. It further acknowledged that many Europeans felt alienated from the Unionâs work. According to the Commission, this feeling of alienation reflected particular tensions and uncertainty about what the Union was and what it aspired to become, about its geographical boundaries, its political objectives and the way these powers were shared with the Member States. Reforming governance addressed the question of how the EU used the powers given by its citizens, and the goal was thus to open up policy-making to make it more inclusive and accountable. A better use of powers should connect the EU more closely to its citizens and lead to more effective policies, the White Paper declared. The White Paper thus stressed the importance of inclusion, participation, and a deeper knowledge among the citizens about the EU and its goals.
At European level, the principle of transparency and the rules on public access were developed as a response to a perceived democratic deficit, where the EU administration was considered alienated from the EU citizens and where the people of Europe not only felt distant from the power, but also lacked trust in the EU institutions. The rules on public access should bring the EU closer to the citizens and ensure accountability. The efforts to implement the principle of transparency within the EU legal order had been done in two ways, first by granting citizens a right of access to documents and second by shedding some light on the traditionally opaque EU decision-making process.15 As will be discussed further in chapter 2, the principle of transparency is applied not only to bring EU citizens closer to the decision-making process. The right of access to documents is now also a fundamental right protected by the Charter, and the principle of transparency operates as a prerequisite to the effective exercise of the rights of defence in administrati...