On the importance of transparency
Why is transparency so important? Transparency is vital in ensuring the participation of citizens and promoting good governance. If we want real democracy in the EU we also need real transparency. We should live in a Union in which “decisions are made as openly as possible“.
Although according to the Treaties democratic and open decision making is a cornerstone for EU, its implementation is far from perfect. At the same time there is wide criticism of EU and its democratic accountability. We have to fight for a more democratic EU, which means fighting for transparency. People have to have the feeling that they can influence decisions made on EU level. Citizens’ involvement should be seen in a positive light!
Transparency means that decisions are taken and their enforcement is done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is distributed and that it is provided in easily understandable forms and media. Access to document and transparent decision making are inherently linked to the rule of law and human rights. They enable individuals to exercise their rights.
Finland has a long history of promoting transparency. In December 1766 one of the greatest achievements of Anders Chydenius, a Finnish priest and Member of Parliament, saw daylight, when King Adolphus Frederick of Sweden issued His Majesty’s gracious Ordinance Relating to Freedom of Writing and of the Press. The King declared that it was “Our gracious will and command that all Our loyal subjects may make use of a complete and unrestricted freedom to make generally public in print everything that is not found to be expressly prohibited in […] this gracious ordinance […]”. The main principle of this legislation, the principle of open government and public access to government documents, became part of the constitution, thus playing an important role in the building of democracy both in Finland and in Sweden. This principle has prevailed over centuries.
To us, transparency is a principle of general importance for governance, and a principle that needs to evolve in time in order to meet new challenges. The state of openness in the European Union, and the potential effect of the Union’s secretive administrative culture on our national practices has always been a matter of a great concern for us. Therefore we have worked hard since our accession in 1995 for more transparency. First achievement was the Amsterdam Treaty where the principle of EU citizens’ right to access to documents was included.
My work on transparency
As a MEP and rapporteur in the Legal Affairs Committee I worked hard to get a real legal framework for transparency in the EU. The result of the good team work with colleagues was the Regulation 1049 in 2001. It is a law that gives the citizens of the EU the right to access any document (apart from exceptions) held, received or produced by the EU institutions, bodies and agencies. Its main ambition is to make the EU lawmakers and all our institutions more accountable to the citizens. The regulation has enhanced transparency, but still a lot needs to be done.
It is with very mixed feelings that I follow the state of transparency in the Union. For example Regulation 1049/2001 establishes that access to all documents, irrespective of their subject-matter, is to be considered on a case-by-case basis, assessing the actual harm that their release might cause to the protected interests. The principle of individual examination is absolutely crucial, since the possible harm of release can only be examined if the contents of the document are studied. Regrettably, this principle has been blurred in the case law of the Courts.
We have to be bold and ready to challenge the current situation. I for example have taken the Council of Ministers to the European Court of Justice, as the Council denied me access to a document on arms export rules. The ECJ ruled in my favour in 2001: the “Hautala case” states that the Council should have given at least a part of the document. I was in 2011 the Civil Liberties Committee rapporteur on the implementation of the Regulation 1049/2001 regarding public access to documents during 2009-2010. We succeeded in forming a common position in the European Parliament that the Commission should revise the rules on public access to documents, highlighting several problems in the implementation of the Regulation 1049 and the existing case-law.
For the the past couple of years I have been the Finnish Minister for International Development. In this post I highlighted the linkages between transparency, good governance and development. Greater transparency helps developing countries to improve their governance systems and thus, grow in an economically inclusive and sustainable way. A full openness in the official aid system is also needed so that citizens can exactly see what is being spent, on what and where.
It is paradox that people who live in a country full of diamonds and oil suffer from poverty. Therefore we worked to improve transparent natural resource management. For example Finland supports the Extractive Industries Transparency Initiative (EITI) which aims at strengthening governance by improving transparency and accountability in the extractives industry.
Current challenges with regard to access to documents.
Unfortunately now returning to the Parliament (and ready to again fight for transparency) I see that the situation since my mentioned report has not improved substantially. There is still the need to revise the Regulation 1049 in a better way than proposed by the Commission in 2008 and 2011. However especially the member states are blocking reforms. This is the case even if the Lisbon Treaty would give a strong support for strengthening transparency as the obligation to grant access to documents bind a bigger number of EU bodies than before .
Many of the demands of the report from 2011 and from the report prepared later by Michael Cashman are very topical:
• The revised regulation 1049 should narrow its exceptions. The concrete cases that were collected for my report in 2011 demonstrated that existing exceptions (such as the “space to think”) are widely used while being ambiguous. It is important to note the case , where the Court decided that the NGO Acces Info had the right to request the positions of 27 governments (on public access to information) even if the decision was not yet made.
• All in all it is impossible for citizens to influence decision making if they get the needed information only when the decisions have been already made. Therefore more transparency is needed in the preparatory work of Commission’s expert groups and committees, Council’s legislative work and the trilogues between the three institutions. Also legal advice should not be automatically exempt from public as stated in the case Council of the European Union v Sophie in’t Veld: “[the Council] must first explain how disclosure could specifically and actually damage the [public] interest.“
• There can’t be any “general presumptions” of secrecy. Otherwise the Regulation is emptied of substance.
• We need also better rules for classification, more transparency in delegated legislation and administration , mandatory lobbying register in all institutions and an easy single place on internet where EU citizens can find the documents.
• Finally as the international agreements have binding effects they should not be automatically treated as non-public. The most acute case is TTIP: the reading rooms solution is not enough. The Court has confirmed in the Mauritius case the importance of timely and full information for the Parliament in the matter of international treaties, such as TTIP: “If the Parliament is not immediately and fully informed at all stages of the procedure [..] it is not in a position to exercise the right of scrutiny which the Treaties have conferred on it.“
We have moved from the age of believing that access to information is granted to the loyal subjects as an act of grace, to a time where citizens have the right to know. The whole legitimacy and democracy of EU rests in transparency. Citizens don’t have power without the access to documents. Our role in the EP is to defend the rights of citizens in the spirit of the Lisbon Treaty and make openness possible. To defend transparency is to defend EU.