Ombudsman’s view on transparency in Council of EU’s COVID-19 decision-making

On Monday 27 July 2020, the European Ombudsman opened a ‘strategic inquiry’ on her own initiative, on whether the changes made by the Council of the European Union in its decision-making processes fulfilled the requirements of openness and transparency (namely to ensure democracy and public scrutiny) when meeting, deliberating and voting on draft EU legislative and non-legislative acts (Case OI/4/2020/TE). She has now come to a Decision which makes suggestions for improved transparency.

At the outset of the COVID-19 pandemic, the Council of the EU applied a temporary derogation from its Rules of Procedure that enabled it to organise virtual rather than in-person meetings, and take most decisions by ‘written procedure’, due to travel and social distancing restrictions (Council Decision 2020/430). That derogation was extended seven times, and remains in place to date. It will apply until at least May 2021.

Initial concerns of the Ombudsman about this change in procedure were that the remote meetings were not held in public as required, that very little information about them was made public, and that there was no information on how the Council’s preparatory bodies were continuing their discussions on legislative and non-legislative files. The Ombudsman sought information on specific files, for example those relating to the SURE Regulation 2020/672; the air travel support Regulation amending Regulation 1008/2008; and on a measure to provide financial assistance to the EU’s neighbourhood partners (Decision 2020/701).

The Ombudsman has recognised that certain changes were made to the procedure to be more in line with transparency requirements: the Council later began web streaming certain remote meetings, making relevant documentation public, and publishing agendas of national civil servants.

However, she has further suggestions for improvement. The Council:

• should make public documentation regarding all ministerial videoconferences (including records in the Council meeting calendar) that took place at the beginning of the COVID-19 crisis, between March and June 2020;
• should have published the Council’s March 2020 options paper ‘Exceptional measures on the continuation of decision making in the Council’  (together with Decision 2020/430) earlier (it has now been published) as that makes transparent the Council’s considerations and options in taking far-reaching decisions, enabling public scrutiny.
• should provide an explanation of how proactively publishing the options paper would have risked undermining one or several of the interests protected by the exceptions foreseen in Regulation 1049/2001;
• should consistently web stream and publish the required documentation on remote ministerial meetings, as long as these meeting arrangements remain in place due to the pandemic.
• Considering the increased use of WK documents reduces the transparency of working party discussions, the Council should list in its public register all types of documents at the time they are issued, regardless of their designation and whether it is possible to access the document (or parts thereof) or not.
• make publicly available internal guidance from the Council’s General Secretariat, which issued instructions to working parties during the COVID-19 crisis, for example, on how to issue agendas or conduct and record written consultations.

Read the Decision in full here.