Ombudsman says Member States must open up their opaque negotiations on EU laws

In the Netherlands the discussions in the parliament and other documents that are part of the legislative process contain important information relevant for interpreting the rules and can be found through the website with parliamentary information. Such information is lacking in the EU.

Now there is criticism of the European Ombudsman, the press release says:

Ombudsman says Member States must open up their opaque negotiations on EU laws
13 February 2018 – Press release no. 2/2018

Following a detailed inquiry, the European Ombudsman, Emily O’Reilly, has found that the Council of the EU – through practices that inhibit the scrutiny of draft EU legislation – undermines citizens’ right to hold their elected representatives to account. This constitutes maladministration.

The Ombudsman specifically criticises the Council’s failure systematically to record the identity of Member States taking positions during discussions on draft legislation, and the widespread practice of disproportionately marking documents as not for circulation, or “LIMITE”.

The approach falls short of what is expected of the Council in terms of legislative transparency.

The Ombudsman is now asking the Council systematically to record Member State positions in Council working parties and in COREPER ambassador meetings and, in principle, to make these documents proactively available to the public in a timely manner. Ms O’Reilly is also calling for clear criteria for using the ‘LIMITE’ status and that the status be reviewed before a law is adopted.

“It’s almost impossible for citizens to follow the legislative discussions in the Council between national government representatives. This ‘behind-closed-doors’ approach risks alienating citizens and feeding negative sentiment,” said Ms O’Reilly.

“National government representatives involved in legislative work are EU legislators and should be accountable as such. If citizens do not know what decisions their governments are taking, and have taken, while shaping EU laws, the ‘blame Brussels’ culture will continue. EU citizens have a right to participate in the making of laws which affect them, but to do so, they need more openness from their governments in Brussels.

“Making the EU legislative process more accountable to the public, by being more open, would send an important signal ahead of the European elections in 2019,” said the Ombudsman.

The Ombudsman’s Recommendation and list of suggested improvements can be found here. The Ombudsman expects the Council to reply by 9 May 2018.

The Council is co-legislator along with the European Parliament. Before the national Ministers meeting in the Council reach a formal position on a draft law, preparatory discussions take place in the Council’s meetings of national ambassadors and in the over 150 Council working parties attended by national civil servants.

During the course of her inquiry, the Ombudsman put 14 specific questions to the Council and her office inspected the documents of three Council files to get an insight into how documents are produced, circulated and published.

The office also organised a public consultation, which received 21 submissions including from members of the public, national parliaments, civil society and academics.

The Ombudsman’s inquiry also showed, for example, that in order to get a full picture of all documentation concerning one piece of legislation, four different searches in the Council document register are needed for negotiations in preparatory bodies and two searches in other sections of the website for discussions at Council level.

The following suggestions for improvement are given by the Ombudsman:

The Council should:

1. Conduct a review of how it meets its legal obligation to make legislative documents directly accessible. This review should be concluded within 12 months of the date of this Recommendation and should lead to the adoption of appropriate new arrangements within a further 12 months.
2. Adopt guidelines concerning the types of documents that preparatory bodies should produce in the context of legislative procedures and the information to be included in those documents.
3. Update the Council’s rules of procedure to reflect the current practice on the disclosure of legislative documents containing Member States’ positions, as outlined by the 2016 Dutch Presidency of the Council.
4. List all types of documents in its public register, irrespective of their format and whether they are fully accessible, partially accessible or not accessible at all.
5. Improve the user-friendliness of the public register of documents and its search function.
6. Develop a dedicated and up-to-date webpage for each legislative proposal, following the example of the European Parliament’s Legislative Observatory.

More information:

Addition 27 February 2018
Read also: Van black box to glass box: campagne voor een transparanter Europa. The paper from the Dutch COSAC delegation on EU transparency ‘Opening up closed doors – paper on EU transparency’ was presented.

Addition 27 March 2018
On 22 March 2018 the General Court of the European Union published a press release titled “The European Parliament must in principle grant access, on specific request, to documents relating to ongoing trilogues”. The judgment is to be found here.

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten,, kantoor Rotterdam, telefoon 088-6272287, fax 088-6272280, e-mail ||| Weblogs: algemeen: || modernisering ondernemingsrecht: ||| Motto: goede bedoelingen rechtvaardigen geen slechte regels
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