Transparency of decision-making in the Council of the European Union Contents


“The European project derives its legitimacy from democratic, transparent and efficient institutions.” (European Council, 2001)1

1.The transparency of EU law-making is of direct relevance to UK citizens given that, under Section 2 of the European Communities Act 1972, EU law must be applied in the UK. An EU regulation is of equal significance to a UK citizen as an Act of Parliament. We think it right that UK citizens be clear how the laws affecting them are made.

2.The extent to which UK law is affected by EU obligations is open to debate. In an attempt to help those wishing to comprehend the very different claims made, the House of Commons Library2 calculated that, over the period 2010–13, the average number of EU-based UK measures was up to 59%.3 The Library noted, however, that the limitations of data make it impossible to achieve an accurate measure4 and that the proportions differ by year and by policy area.

3.The EU legislative system is very different from that of the United Kingdom.5 In the United Kingdom, once agreement is reached on the principle of legislation in second reading, detailed amendments are considered in public both in committee and at report stage. It is clear exactly what amendments are being put forward, who supports them and, if the matter comes to a vote, how each Member voted. While there are subtle differences in procedure, this basically applies in each House. The arrangements for securing agreement from one House to amendments made in the other are similarly transparent. This is not to say there are no conversations behind the scenes, or there are never negotiations about wording designed to ensure an amendment gathers as much support as possible, but all crucial elements of the process are fully open.

4.At the outset of our inquiry, we were not able to find a clear explanation of the detail of the Council legislative process and the expectations about when and by whom information should be released. That has been remedied, in part, by the evidence we have taken, including the Government’s memorandum.6 We have compiled an overview of decision-making in the Council and current transparency arrangements, set out in Appendix 1. We hope that it is of some help in explaining the process. The flow chart below shows the Council decision-making process in detail.

More than 150 Working Groups and Committees Members? Officials from each Member State Role? Undertakes detailed 'technical' examination. Attempts to reach agreement at its level on as many issues as it is able. AGREED ON AT WORKING GROUP? YES Goes to COREPER as 'I item' (no discussion) NO Goes to COREPER as a 'II item' (for discussion) COREPER
Most senior 'preparatory' body Role? Formally tasked with preparing the work and carrying out the tasks assigned by the Council. Seeks to eliminate remaining differences before passing file to Council for formal agreement. Combines technical expertise with political consideration. Meterns Group Members? Personal assistants of Coreper I members + one Commission representative Role? Finalise list of 'I Items' and prepare Coreper I discussions on 'II Items'. Provides initial idea of position each MS will adopt. Antici Group Members? Personal assistants of Coreper II members + one Commission representative Role? Finalise list of 'I Items' and prepare Coreper II discussions on 'II Items'. Provides initial idea os position each MS will adopt. TWO FORMATIONS: COREPER I Members? Deputy Permanent Representatives from each MS Areas? Most OLP files. Agriculture, fisheries, competitiveness, transport, telecomms, energy, environment, education, youth sport, culture, employment, social policy, health and consumer affairs COREPER II Members? Permanent Representatives from each MS Areas? Covers poltically sensitive areas or institutional and general issues: general affairs, foreign, economic and financial Agreed on at COREPER? YES Goes to Council as 'A point' (no discussion) NO Goes to Council as 'B point' (for discussion) COUNCIL
One legal entity but 10 formations (for example, General Affairs, Competitiveness, Justice and Home Affairs) Members? Ministers Role? Political responsibility and make formal decisions Takes formal vote May register a formal declaration Current transparency arrangements (what is made public and when) Dates of forthcoming meetings and agendas published in advance 'Outcomes of proceedings' (minutes) may be published (at working Group's discretion) between 1 day and 2 weeks after the meeting. Level of detail varies. Dates of forthcoming meetings and agendas published Coreper summary records (minutes) compiled and made public by Council Secretariat Timing of publication and level of detail varies. When Ministers discuss or vote on draft legislative acts: must meet in public; meeting outcome is published in the form of a press release; voting results published; and minutes published (in all cases where Council deliberates or debates in public).

5.As we discuss in this Report, while there is some transparency in EU law-making, much of the process depends on negotiation within the Council, or between the Council and the European Parliament with the assistance of the European Commission (the “trilogue” process). Often this negotiation is conducted by officials, working to ministerial instructions, either at Coreper, the Committee made up of Member State Ambassadors to the EU, or lower down, in working groups. Agreements will then be presented to Council for endorsement. Details of amendments proposed and rejected in such negotiations are not routinely made public by the Council itself, although individual governments may make information available to their parliaments and to their citizens.

6.There are nonetheless commitments to, and claims made for, transparency at EU-level in the Treaty, secondary legislation, the Council Rules of Procedure, rulings of the Court of Justice and the recently adopted Interinstitutional Agreement on Better Law-Making. We set out information on the current commitments in Chapter 2 and in Appendix 1. In its scrutiny reform inquiry in 2013,7 our predecessor Committee explored concerns about the transparency of Council decision-making, relating particularly to the evolving positions of Member States on dossiers that are eventually agreed by consensus. Recent developments, some of which remind us of earlier commitments, have prompted us to review the state of play on this issue:

Our inquiry

7.We launched our inquiry on 24 March.12 We held four oral evidence sessions and received two pieces of written evidence, including a submission from the Minister of Europe with whom it had proved impossible to schedule a meeting. We are very grateful to all those who contributed to our inquiry.

8.This inquiry was primarily a scoping exercise to identify key issues which we will consider further in the course of our regular scrutiny of the Government. It is focused on transparency in Council proceedings: while this sometimes entails discussion of the relationship between the Council and the European Parliament, this is incidental to our work.

9.In Chapter 2 of this Report, we set out the current principles and obligations applying to Council transparency. We go on to consider, in Chapter 3, how these are applied in practice. Finally, in Chapter 4, we consider our own role and that of the Government in improving Council transparency.

1 Laeken European Council Declaration, 2001

3 This was calculated by dividing directly applicable EU regulations and EU-related UK Statutory instruments by the directly applicable EU regulations and all UK Statutory Instruments

4 For example, the calculations may include EU Regulations applicable to all Member States that have no effect in the UK, such as those relating to olive and tobacco farming, which would therefore artificially inflate the results. On the other hand, the calculations do not include ‘soft law’, such as guidelines, which may have been incorporated into UK law. Furthermore, the calculations do not consider the significance of any EU Regulation or EU related statutory instrument (implementing a Directive) which may be making minor, updating amendments or removing regulation.

5 For an explanation of how laws are made in the United Kingdom, see the UK Parliament website

6 Minister for Europe (TRA0003)

7 European Scrutiny Committee, Twenty-fourth Report of Session 2013–14, Reforming the European Scrutiny System in the House of Commons. HC Paper 109, para 99

8 European Parliament decision of 9 March 2016 on the conclusion of an Interinstitutional Agreement on Better Law-Making between the European Parliament, the Council of the European Union and the European Commission, P8_TA-PROV(2016)0081, paras 38–39.

9 Wider Parliamentary interest in the issue has been demonstrated recently by the moving of a motion by Caroline Lucas MP to bring in a “Ten- Minute Rule Bill” on Transparency and Accountability (European Union). HC Deb, 3 May 2016, col 52

11 Submission of the European Scrutiny Committee to the EU Ombudsman’s Inquiry into Trilogues

12 House of Commons, European Scrutiny Committee, Terms of Reference, Inquiry into Transparency of EU Council decision making

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24 May 2016