Editorial: Transparency, Accountability and the Privileges of Power

Published date01 May 2016
Date01 May 2016
Editorial: Transparency, Accountability and
the Privileges of Power
Carol Harlow**
When I rst turnedmy attention to the subjectof accountability in the EuropeanUnion, in
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 signicant bench-
marks for democratic governance. The European Commission took note of this develop-
ment in the 2001 White Paperon European Governance,
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. Accountabilityand opennesswere 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 Commissions commitments; openness meant little
more than an undertakingto actively communicate aboutwhat the EU doesin language
that was accessible and understandable for the general public. Accountability required
Institutions and Member States to explain and take responsibilityf or what they were
doing plus a commitment to greater clarity and responsibilityfrom 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 icant
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
nancial regulation that came into force in 2002 andby the European Court of Auditors.
The Parliamentsscrutiny work was, however, undermined by the limitationson its legis-
lative powersand consistently undervaluedthrough the emphasis on so-calleddemocratic
decit. 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 Courts 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 Courtspreferenceforlight touch review:
the standard of manifest errort 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.
C. Harlow, Accountabilityin the European Union (Oxford University Press, 2002).
European Commission, WhitePaper on European Governance,COM(2001) 428 nal, (2001)OJ C 287, of
12.10.2011, 129, available at http://tinyurl.com/zfcabtm.
European LawJournal, Vol. 22, No. 3, May2016, pp. 273278.
© 2016 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK
and 350 Main Street,Malden, MA 02148, USA

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