Editorial: Transparency, Accountability and the Privileges of Power

• Published date: 01 May 2016
• Author: Carol Harlow
• DOI: http://doi.org/10.1111/eulj.12174
• Date: 01 May 2016

Editorial: Transparency, Accountability and

the Privileges of Power

Carol Harlow**

When I first turnedmy attention to the subjectof accountability in the EuropeanUnion, in

aseriesoflecturesfortheEUIAcademyofLaw

1

at the turn of the century, the term,

together with itstwin ‘transparency’, was just becoming common currency,and both were

steadily gaining recognition (at least in the English-speaking world) as significant bench-

marks for democratic governance. The European Commission took note of this develop-

ment in the 2001 White Paperon European Governance,

2

its response to the allegations of

incompetence,malpractice and corruption that had broughtit so low and led to the resig-

nation of the Santer Commission in 1999. ‘Accountability’and ‘openness’were singled

out, together with effectiveness, participation and coherence, as key principles underpin-

ning democracy and the rule of law at every level of government, with special relevance

to the EU as it sought to move to a more democratic system of governance.Cynics might

have noticed the limited nature of the Commission’s commitments; openness meant little

more than an undertakingto ‘actively communicate aboutwhat the EU does’in language

that was ‘accessible and understandable for the general public’. Accountability required

Institutions and Member States to ‘explain and take responsibility’f or what they were

doing plus a commitment to ‘greater clarity and responsibility’from all those involved

in developing and implementing EU policy at whatever level. Concrete suggestions for

implementation of these assurances were few.

My somewhat legalistic study highlighted the weakness at Union level of the classical,

external accountabili ty machinery of parliamen ts and courts, although in f act the

European Parliament wa s beginning to develop w hat has since become a sign ificant

scrutiny capability, building on its powers of budgeting and audit to keep an eye on the

burgeoning networkof agencies and other administrative entities that handleCommunity

funds. In this arduous tas k, it was assisted by inter nal Commission reform s, by a new

financial regulation that came into force in 2002 andby the European Court of Auditors.

The Parliament’sscrutiny work was, however, undermined by the limitationson its legis-

lative powersand consistently undervaluedthrough the emphasis on so-called‘democratic

deficit’. No role fornational parliaments had as yet evolved and, as academiccommenta-

tors constantly noted , a very real accountabi lity gap was opening up, w hich allowed

Community actor s to escape account ability at both lev els of the dual-l evel system.

Legal accountability to the Court of Justicewas more advanced, although undoubtedly

weakened by the inbuilt bias of the Court’s mission statement to ensure tha t the law is

observed in the interpretation and application of the Treaties and the consequential inte-

grationist mind-set. Commentators noted the Court’spreferencefor‘light touch review’:

the standard of ‘manifest error’t hat it used, its deference to Commi ssion discretion in

* Professorof Law, London School of Economics and Memberof the Advisory Board of theEuropean Law

Journal.All the links to internet sitesto be found in the footnotes werelast checked on February 25th,2016.

1

C. Harlow, Accountabilityin the European Union (Oxford University Press, 2002).

2

European Commission, ‘WhitePaper on European Governance’,COM(2001) 428 final, (2001)OJ C 287, of

12.10.2011, 1–29, available at http://tinyurl.com/zfcabtm.

European LawJournal, Vol. 22, No. 3, May2016, pp. 273–278.

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