Ref. Ares(2014)4214115 - 15/12/2014
COMMISSION EUROPÉENNE
SECRÉTARIAT GÉNÉRAL
SEC(2014) 610
Bruxelles, le 18 novembre 2014
OJ 2106
DEBAT D'ORIENTATION SUR LA TRANSPARENCE
Note de cadrage de
M. le PRESIDENT et du 1er VICE-PRESIDENT, en accord avec Mme MALMSTRÖM
Destinataires : Membres de la Commission
Directeurs généraux et chefs de service
ORIENTATION DEBATE ON TRANSPARENCY
Transparency in the European policy-making process is essential to build
understanding of
and trust in the European institutions and the policy process. The European institutions need
to be open about how policy is made and who influences it. In line with Article 11 of the
Treaty on European Union, the European institutions shall maintain an open, transparent and
regular dialogue with representative associations and civil society. This is a core element of
delivering a
more democratic European Union which has legitimacy and support in the eyes
of citizens, one of the four key parameters of change this College is committed to in line with
the Political Guidelines.
The European Commission should
lead by example in this area, through concrete actions to
increase its own transparency and by encouraging the other institutions to provide a
comparable level of transparency.
The College is invited to give its orientations for a first set of measures to promote greater
transparency as set out below. These orientations will be translated into concrete decisions in
some of these areas for adoption by the College at its next meeting on 25 November, so that
the measures can enter into force on 1 December. In other areas work will continue on the
basis of the orientations given with a view to presenting concrete proposals in early 2015.
1. Publication of information on meetings held with professional organisations or self-
employed individuals
The European Commission and the other EU institutions interact with a wide range of
professional organisations or self-employed individuals on a regular basis. This interaction is
legitimate and allows policy-makers to better understand the context and implications of the
decisions taken.
The Political Guidelines contain a new
commitment to transparency of contacts between
stakeholders and lobbyists and Commissioners and Commission staff. The Mission Letters
include a further commitment to make public via the respective websites all the contacts and
meetings Commissioners hold with professional organisations or self-employed individuals
on any matter relating to EU policy-making and implementation.
To implement this in a consistent and effective way, the College should agree on a set of
common rules.
1
These should provide clarity on:
-
scope of application within the Commission: the commitment to provide
information in relation to Commissioners should extend to contacts with their
Cabinets, since the Cabinets are emanations of the Commissioner.
-
definition of stakeholders and lobbyists: in line with the Mission Letters,
publication of interaction with professional organisations or self-employed
individuals should be mandatory. This would cover contacts with those organisations
and representatives that should be registered in the Transparency Register1.
-
nature of information to be made public: since the access to documents regime
already covers written contacts, the focus could be on bilateral meetings in person.
For these meetings the date, location, name of the Commissioner/Cabinet
Member/Director General, name of the professional organisation or self-employed
individual and the subject of the discussion could be made public. For reasons of
proportionality, contacts at public events, spontaneous encounters taking place at the
occasion of other events and purely private or social contacts could be excluded.
Protection of personal data rights should be respected.
-
timing of publication: the minimum would be to require ex-post publication within a
set period (e.g., two or three weeks after the meeting). Beyond this, it could be decided
that ex-ante information on confirmed future meetings may be provided on a non-
mandatory basis.
-
exceptions: for reasons of credibility, the starting point should be the maximum
openness on meetings. Any exceptions should be clearly defined and justified by a
legitimate need for confidentiality. This could be the case for example in the
competition area where disclosure of a meeting would be market sensitive.
Parallelism with the limited exceptions set out in the access to documents regime
could be considered here. The integrity of legal procedures should be protected as a
general rule. The protection of the person could also be invoked to restrict the
information given on some meetings.
At services' level, in line with the Political Guidelines, the same approach should be applied
to meetings of professional organisations or self-employed individuals with Directors-General.
1 http://ec.europa.eu/transparencyregister/info/homePage.do
2
2. Towards
a
mandatory
transparency
register for the three institutions
The Political Guidelines commit the Commission to working towards
a mandatory lobby
register also applicable to the European Parliament and the Council. The Mission Letter of
First Vice-President Timmermans mandates him to lead this work.
The existing joint Commission/Parliament Transparency Register has been in place since
2011 and the Commission's own register since 2008. The register has had a significant impact:
there are now more than 7000 registered entities. But the register as it exists today relies on
encouragement and incentives to attract professional organisations or self-employed
individuals, and there is no effective sanction mechanism for those who do not register but
continue to actively seek to influence European policy-making.
In 2015 the Commission will propose an
interinstitutional agreement to the European
Parliament and the Council to create a mandatory register covering all three institutions. To
prepare this, the First Vice-President intends to engage in exploratory talks with the other
institutions to scope key issues such as the scope of application and the precise legal effects of
the register. The starting point from the Commission side should be maximum ambition to
ensure the same high standards apply in the three institutions.
The Commission should
lead by example. As a rule, Commissioners must not meet
professional organisations or self-employed individuals which are not registered in the
Transparency Register, as set out in the working methods of this Commission.
3.
Commission expert groups
In the course of its preparatory work on policy-making and implementation, the Commission
has recourse to groups of experts who provide technical advice on a range of issues.
Information on these expert groups and their composition is made availably through a
public
register on the respective website2. However, concerns have been expressed, inter alia by the
European Parliament, that there is insufficient information about the
interests of experts who
are appointed in a personal capacity.
It is important to identify and eliminate any potential conflicts of interest in the functioning of
expert groups. A proposal is under preparation to require that experts appointed in a personal
capacity – who are required to act independently and in the public interest – submit
declarations of interest allowing the Commission to identify and address any potential
conflict of interest. The declarations would be published in the register of expert groups.
The approach will need to balance the public interest with the right to personal
data
protection of the individuals concerned. The opinion of the European Data Protection
2
http://ec.europa.eu/transparency/regexpert/
3
Supervisor should be sought on the proposed approach. As soon as this opinion is received
and taken into account, a proposal will be brought to the College.
4.
Specific enhanced transparency arrangements for TTIP
The negotiations with the US on TTIP have, over the last year, become the object of increased
public scrutiny and a certain amount of concern in public opinion. It is important to ensure
that the general public has accurate and full information of the EU's intentions in the
negotiations, to address the concerns and to evacuate misperceptions. The European
Parliament has also called for greater transparency, in particular as concerns access to
negotiating documents.
In line with
President Juncker and First Vice-President Timmermans public commitments to
increase transparency, and in order to win public trust and support for the TTIP, the following
transparency initiatives could be considered to ensure greater access to trade documents by
the general public and the European Parliament, and legitimacy EU trade policy at large:
1) A first priority could be to provide
more extensive access to TTIP documents, notably by
making public all the EU negotiating texts that the Commission already shares with Member
States and Parliament (e.g. formal negotiating proposals on the "rules" part of the trade
agreement). However, there should be no intention to publish any US documents or common
negotiating documents without the explicit agreement of the US. The EU market opening
offers on tariffs, services, investment and procurement should not in principle be made public
either, as they are the essence of the confidential part of the negotiations. This approach
would also still allow the Commission to retain those negotiating documents the release of
which could otherwise harm EU international relations, provided however that one of the
exceptions in Regulation 1049/2001 can be showed to be met on a case by case basis. That
being said, once this policy of publishing EU negotiating texts is introduced for TTIP, the
Commission will also have to make public, upon requests for access to documents based on
regulation 1049/2001, the same type of documents drawn up in other international
negotiations (both in the area of trade and in other EU policy areas).
Introducing this priority will have a direct impact on the Council, since publishing EU
negotiating texts will de facto make public also the content of negotiation directives decided
by the Council (which have been published by the Council as regards TTIP, but are not yet
published for other negotiations). Therefore, provided this priority is endorsed in the College's
orientation debate, Commissioner Malmström will seek the views of the Council on it at its
meeting on 21 November and report back at the College meeting of 25 November.
2) A second priority could be to ensure
classification of information (recourse to 'Limited'
marking' instead of 'Restreint UE' classification where legally possible), and keeping such
information classified only up to the point when it is shared with the other party.
4
3) A third priority could be to
provide broad access to all MEPs (and where necessary
certain categories of staff members advising MEPs) subject to appropriate modalities to be
agreed with the Parliament to ensure the confidentiality of the information provided, including
by taking the appropriate steps in the event of unwarranted disclosure of the documents
themselves or their content. This implies extending the use of a 'reading room' to those MEPs
who had no access to
'Limited' and 'Restreint UE' documents so far. For MEPs with a
direct "need to know" because of their specific responsibility in monitoring the negotiations,
paper copies of classified documents will continue to be available as until now.
Moreover, additional steps to enhance transparency around EU trade negotiations, with a
special focus on TTIP, could also be taken forward in the immediate future by:
• publishing and updating on a regular basis a list of TTIP documents shared with the
European Parliament and Council;
• reporting more extensively on the outcome of negotiating rounds (as has been done
recently for the last TTIP rounds);
• preparing additional on-line material that explains our negotiating positions and
approaches;
• increasing engagement with Civil Society and the general public at political and
working level, in Brussels and within Member States;
• increasing communication and outreach efforts (including in social media) alongside
increased engagement with citizens.
5
Annex - useful references
Political guidelines:
"I am also committed to enhanced transparency when it comes to contact with stakeholders
and lobbyists. Our citizens have the right to know with whom Commissioners and
Commission staff, Members of the European Parliament or representatives of the Council
meet in the context of the legislative process. I will therefore propose an Inter-institutional
Agreement to Parliament and Council to create a mandatory lobby register covering all
three institutions. The Commission will lead by example in this process."
President Juncker's opening speech at the European Parliament Plenary on 15 July 2014:
[On TTIP]:
"And let us ensure that these negotiations are as transparent as possible. I say
this to you: if we do not publish the relevant documents – and I do not mean documents on
negotiating strategies – this agreement will fail. It will not be accepted by public opinion, it
will not be accepted by this Parliament, it will not be accepted by our national parliaments if
there is a mixed agreement. So let us be more transparent, because in fact we have nothing to
hide. Let us not give the impression that we are not being upfront, let us operate transparently
and make the documents public."
Mission letters:
"You will have seen that the Political Guidelines include a new commitment to transparency.
Transparency should be a priority for the new Commission and I expect all of us to make
public, on our respective web page all the contacts and meetings we hold with professional
organisations or self-employed individuals on any matter relating to EU policy-making and
implementation. It is very important to be transparent where specific interests related to the
Commission’s work on legislative initiatives or financial matters are discussed with such
organisations or individuals."
Working methods of the European Commission 2014-2019:
"A commitment to transparency should characterise the work of all the Members of the
Commission and of their Cabinets. While contact with stakeholders is a natural and important
part of the work of a Member of the Commission, all such contacts should be conducted with
transparency and Members of the Commission should seek to ensure an appropriate balance
and representativeness in the stakeholders they meet.
As a rule, Members of the Commission must not meet professional organisations or self-
employed individuals which are not registered in the Transparency Register.
As of 1 December 2014, all Members of the Commission are expected to make public, on their
respective web pages, all the contacts and meetings held in their capacity with professional
organisations or self-employed individuals on any matter relating to EU policymaking and
implementation, unless compelling reasons of public interest, such as those
provided for in Article 4 of Regulation 1049/2001 (access to documents), require
confidentiality. Transparency is of particular importance where specific interests related to
6
the Commission’s work on legislative initiatives or financial matters are discussed with such
organisations or individuals.
Access to documents is governed by Regulation 1049/2001. Members of the Commission and
services should respect the deadlines set by this regulation at all times."
7