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29 jan 21
29 jan 21
Blog: The Secrecy Reflex

The European Commission has a nasty reflex of keeping things secret. Let’s be clear about the meaning of this reflex: secrecy is nothing less than a habit of evading accountability. A grave problem, because accountability is one of the most important aspects of a democracy, and transparency is the key to achieve it. At the moment, the Commission is experiencing the importance of transparency first-hand, as it pushes to make its contract with vaccine producer AstraZeneca public. Why? Because it feels the pressure of the public gaze, and wants both sides of the contract to be held equally accountable.

This vaccine-procurement episode is a rare exception to the rule. In general, the Commission does not seem to feel accountable to anyone. This Commission systematically refuses access to information to the European Parliament, thus effectively making scrutiny impossible. The same Parliament that voted her in, only fourteen months ago. A little reminder of Article 17,8 of the EU Treaty: ‘The Commission, as a body, shall be responsible to the European Parliament’. Being accountable entails giving the European Parliament all the information it needs to exercise full and meaningful scrutiny.

Before the spat with AstraZeneca, there was repeated refusal by the Commission to be more transparent about the details of the large scale purchase of Covid vaccines. Apparently, they were completely fine with a situation in which citizens did not know how their tax money was spent, and the European Parliament as the budget authority was unable to scrutinise the actions of the Commission. What changed? Was it just the pressure being suddenly put on, as a result of falling delivery rates at AstraZeneca? Or did the European Commission have a democratic epiphany? Sadly, there is little reason to believe the latter.

Take for example the area of security policies; the lack of transparency there is equally alarming. The European Parliament has passed numerous laws creating new powers for law enforcement and security authorities. But there is now way to scrutinise the implementation of the laws, since the Commission refuses to disclose details of the application by the member states. This effectively means no check on proper implementation, effectiveness and in the end: necessity and proportionality.

The excuses for secrecy are becoming ever more creative and frankly, pathetic. Only eight member states are able to read the biometric data in passports and exchange information with other member states. The Commission refuses to disclose which member states they are, arguing that if criminals know which country has not implemented, they will make use of that weak link. You cannot make this up. Three quarters of the total number of member states is not a weak link; it’s a gaping hole that needs to be accounted for!

And it gets more and more creative. Like a secrecy addict who cannot kick the habit, new excuses are found each time. Recently the Commission refused to disclose information on the state of implementation of the PNR (passenger data) Directive by Hungary, as this would allow ‘to draw inferences on the relative development of passenger name record processing capabilities in the concerned Member State’, fearing the criminals might adjust their methods on the basis of such information.

Instead of showing determination in addressing the weaknesses, the Commission prefers to keep them a secret, even to the European Parliament. The lack of transparency is compounded by the unlimited discretion of the European Commission when enforcing EU law. It is the Commission, and the Commission alone that decides on the launch, abortion or duration of an infringement procedure or alternative enforcement instrument. Pending an infringement procedure no information can be disclosed at all. But infringement procedures can run for years on end, which means information that is vital for the European Parliament, is kept secret for as many years.

The secrecy reflex in the Commission will prove to be highly problematic in the context of the application of the EU-UK Trade and Cooperation Agreement. Once the European Parliament has given its consent to the Agreement, it has no more powers to force the hand of the Commission. And history shows that review clauses, consultation of Parliament and other promises to involve Parliament are worth zero in practice.

The European Union is rapidly gaining more powers, a.o. in the emerging Health Union, and through the unparalleled financial package including own resources and eurobonds. Parliamentary scrutiny is more needed than ever, but in practice it is alarmingly weak. Not only does a lack of transparency prevent effective scrutiny by Parliament, it also forces Parliament to legislate in the dark, unable to take well informed and evidence based decisions on new legislative proposals. The European Commission flouts the Treaties with impunity, ignoring the indignation of Parliament. It is time for the European Parliament to draw a line and demand transparency. Not in the least for its own good.

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