How Transparent are EU ‘Comitology’ Committees in Practice?

• Author: Albert Meijer,Deirdre Curtin,Gijs Jan Brandsma
• Published date: 01 November 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00446.x
• Date: 01 November 2008

How Transparent are EU ‘Comitology’

Committees in Practice?

Gijs Jan Brandsma, Deirdre Curtin and Albert Meijer*

Abstract: Much of the debate on transparency is normative in nature: more transparency

is ‘good’ from the perspective of democratic accountability. After all, without information

on what decisions are being taken and by whom, it will not be possible for various

accountability forums to hold actors to account. This article goes beyond the rhetoric on

the need for more transparency in the political system of the EU and examines, in practice

as a matter of empirical research, how much transparency there really is. It also goes

beyond a purely legal approach to access to information that depends upon the active

participation of citizens and others in challenging refusals by specific institutions to grant

access to specific documents. We are interested rather in the question as to what extent the

institutions are systematically and pro-actively providing access to their documents via

the internet. We focus on the Register of Comitology of the European Commission as a

relatively limited case study and, within this context, limit ourselves further to a study of

all the documents published in the latest year for which a benchmark was available—2005.

Are all comitology documents that exist in fact made available through this public

register?

I Introduction

The political system of the EU is not traditionally known for its ‘transparency’, either

in terms of its institutional design or in terms of the full range of its rule-making

outputs. On the contrary, for many years, even legislation was discussed and adopted

behind closed doors by the highly secretive Council of Ministers. Another bastion of

secretive decision making has been the so-called ‘comitology’ committees (see below

for a detailed description). In this regard, it has been consistently argued that ‘good

governance’ as well as a perspective inspired by constitutionalism and one inspired by

democratic accountability mandates more transparency at the European level of who

acts where and in what regard.1The lack of transparency has been a persistent subject

of much of the—legal and political—scholarly writings on the subject of comitology in

particular.

* Respectively PhD candidate, Professor of International and European Governance, and Senior Lecturer

at the Utrecht School of Governance, University of Utrecht. Deirdre Curtin is also Professor of European

Law at the University of Amsterdam.

1See, in general terms, C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market

(Oxford University Press, 2002), in particular the introduction by C. Joerges, ‘The Laws Problems with the

Governance of the European Market’, at 3–34.

European Law Journal, Vol. 14, No. 6, November 2008, pp. 819–838.

© 2008 The Authors

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

In recent years, however, the transparency of the political system as a whole has

increased considerably for several reasons. First, EU-level legislation granting a public

right of access to the documents of certain EU institutions has given individual citizens

and other actors the legal right to obtain a wide range of documents on request, without

the need to provide any reasons.2This includes access to preparatory documents of the

institutions themselves, as well as documents from the many committees operating

under the auspices of the three main law-making institutions (the Commission,

the Council of Ministers and the European Parliament). This legislation has, in

addition, been applied voluntarily by a wide variety of other institutions and

(quasi-)autonomous actors.3Second, and as a response to this gradually changing

culture shifting from ‘secrecy’ to (more) ‘openness’, there has been a pro-active effort

by the core institutions to make information on their decision-making committees and

their wider information processes more easily accessible to the ‘public’ via the internet

in particular. This has resulted in the—relatively recent—establishment of a number of

general document registers of specific institutions (most impressively that of the tradi-

tionally highly secretive Council of Ministers).4The combined result of these two

developments has, among other results, given researchers the tools to build up a picture

of the inner workings of various (sub-)institutions based on a range of empirical data

that is immediately accessible via the internet. In addition, other more specific improve-

ments have been made, such as the recent opening up of those Council meetings

adopting legislative measures to the public.5

Much of the debate on transparency in the EU has been rather general in nature to

date, with a strong emphasis on the formal legal dimension and access to documents

in particular. Access to documents has not only acquired the status of a rather fun-

damental norm in the EU legal and constitutional system, it has also become highly

‘legalised’, with many of the most crucial issues as to the meaning of the exceptions,

the relationship with national legal provisions and the relationship with other legal

rights that also enjoy a fundamental status (eg privacy and data protection6). The

court(s) in Luxembourg, which were once seen as the unsung hero of those seeking to

open up the inner institutional workings of the EU, have come under fire recently for

what is perceived to be an unnecessarily generous interpretation of the scope and

meaning of several key exceptions to the legal right.7It is sometimes argued, more-

over, that the legal regulations on access to documents are not that significant when

2See Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Com-

mission documents, [2001] OJ L145/43. See further European Commission, Green Paper, Public Access to

Documents held by the Institutions of the European Community A Review, COM (2007) 185 final

(18 May 2007).

3See further J. Helliskoski and P. Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation

No. 1049/2001 on Access to Documents’, (2006) 43 Common Market Law Review 735.

4The three law-making institutions are under a legal obligation to establish such registers: see Article 11 of

Regulation 1049/2001, op cit n2supra. The register of the Commission and that of the European

Parliament have both been the subject of critique from the non-governmental sector in particular as being

incomplete and not easily accessible. A recent case has been brought to the Ombudsman by Statewatch,

claiming that the Commission is in breach of its legal obligations to provide a proper register of

its documents. See further the press release available at http://www.statewatch.org/news/2007/apr/

statewatch-ombuds-cases-april-2007.pdf.

5See further the website available at http://ue.eu.int/uedocs/cms_Data/docs/pressdata/en/gena/88199.pdf.

6See further H. Kranenborg, Toegang tot documenten en bescherming van persoonsgegevens in de Europese

Unie: over de openbaarheid van persoonsgegevens (Kluwer, 2007).

7See further Helliskoski and Leino, op cit n3supra.

European Law Journal Volume 14

© 2008 The Authors

820 Journal compilation © 2008 Blackwell Publishing Ltd.