March 17, 2016
As a participant of a workshop recently held in Brussels to discuss the topic of the law and politics of confidential EU negotiations, Gianluca Sgueo analyses the debate scholars and practitioners engaged in and discusses the challenges a “multi-layered” EU transparency culture might face.
By Gianluca Sgueo
In a workshop recently held in Brussels and organised by the Centre for European Research in Maastricht, scholars and practitioners met to discuss a fascinating topic: the law and politics of confidential EU negotiations. The debate focused on the challenges brought forth by two opposite – yet both crucial – needs in EU negotiations: secrecy and transparency. The former is defended by policy-makers, whereas the latter is advocated by scholars and civil society organizations.
Among the many captivating hypotheses advanced by participants to justify and explain the “diaspora” between secrecy and transparency of EU negotiations, one was particularly interesting. The thesis, proposed by Graham Smith from the Cabinet of the European Ombudsman, painted the picture of a multi-layered transparency operating at EU level.
A first layer of transparency can be defined as “reactive” – i.e. the practice of disclosing information upon request only. A second layer, named “proactive transparency”, described the case in which EU institutions autonomously provide, in a timely and accessible manner, information about their activities. The difference between reactive and proactive forms of transparency lies in the trigger that activates the decision to outsource relevant information: A request from a stakeholder or an autonomous decision from the concerned institution. Finally, according to this theory, a practice in proactive transparency could lead to a third type – or layer – of transparency, defined as “routinized”. Routinized transparency identifies the case in which information is provided not only on a proactive but also on a regular basis.
The multi-layered transparency described by Graham Smith seems to combine the present status of openness and access to information in the EU legal and institutional systems with regard to a probable future. At present in fact, EU institutions and bodies are mainly set on a reactive and (occasionally) on a proactive approach to outsourcing information. The efforts put in by the European Ombudsman to promote a culture of transparency in EU policy-making are directed towards the scope of transforming the outsourcing of information into a routine operation.
Routinized transparency, however, faces two obstacles. The first consists of its material costs. Although, this is an old counter-argument opposed by pro-transparency advocates, it is yet a valid one. Increased transparency may have a significant impact on the budget and the organisation of public bodies. Demanding for proactive or routinized transparency equals a demand for a shift in the bureaucratic culture of many administrations – a shift that can only be achieved at relevant costs.
A second objection may be made concerning the concrete benefits of routinized transparency. From a scholarly point of view, a journalist or a civil society organization, the more information is made available by an institution the better it is for everyone. They often evoke an interest of the general public to support their demands for increased transparency. Is this really the case? The general public, identified with the majority of EU citizens, has few or no interest at all in the intricacies of EU policy-making. One of the greatest opponents of transparency at EU level are not EU institutions but those who, at least theoretically, could benefit from it.
Gianluca Sgueo, JD Law (University of Rome, La Sapienza) and Political Sciences (University of Viterbo); LLM in European Law (European Public Law Academy, Athens); PhD in Public Law (University of Salento, Italy) is post-doc researcher at the University of Coimbra, Centre for Social Studies. He is Professor in “Media, Activism & Democracy” at the New York University-Florence and Department Director at the Institute for Competitiveness. He is author of the recently published book “Beyond Networks. Interlocutary Coalitions, the European and Global Legal Orders”, Springer 2016.