The cornerstones of the OGP – openness, civic participation and strong governance – are major challenges facing the European Union today, which is not yet a member of the partnership. Given this, France Strategie organized a roundtable on the EU at the fourth annual OGP summit, looking at how Brussels can draw on the principles of the OGP to increase its citizens’ trust in its institutions. As Lead Chair of the OGP Steering Committee, France hosted the summit in Paris from 7 to 9 December 2016.
To open the roundtable, Jean Pisani-Ferry, commissioner-general of France Stratégie asked Emily O’Reilly, EU ombudsman, and Daniel Lebègue, president of the French chapter of the NGO Transparency International, for their views on the issues surrounding open government and the EU, namely conflicts of interest, transparency and encouraging an active citizenry. Moreover, he put to them the question of whether the OGP movement could help shore up trust in EU institutions.
As ombudsman for the EU, O’Reilly’s job entails taking complaints from members of the public, NGOs and businesses in relation to allegations of poor behaviour or maladministration of any of the European institutions, from the Commission to the Central Bank.
Power in check
She emphasised conflicts of interest are central to her work, whether it’s on the level of EU officials or commissioners or agencies and other bodies, such as the Food Safety Authority or the Medicines Agency. Nevertheless, she added that in general the EU’s rules in the matter were quite strict. The EU Commission, she pointed out, now publishes on its website details of senior officials who have left public service to work in the private sector.
An example of a recent of potential conflict of interest O’Reilly had acted on was former Commission president José Barroso’s decision to take up a senior position at US bank Goldman Sachs. Indeed, there was a substantial negative reaction from civil society across the EU and anger from EU staff itself, who launched a petition that acquired quite a number of signatures. O’Reilly used her position to pressure current Commission president Jean-Claude Juncker to have the ethics committee look into Barroso’s decision to work for a bank that had a central role in bringing about the 2008-09 financial crisis.
Moreover, Juncker proposed extending the period following a president’s term where they have to obtain authorization from the Commission before taking up a position in the private sector.
“The problem with this was it played into a populist agenda,” O’Reilly said of Barroso going to work for Goldman Sachs.
She added a main focus of her work as EU ombudsman is making the Brussels’ decision-making process more transparent, for instance, revealing the deal-making between the Parliament, Commission and the Council.
Lebègue pointed out that since 2014 there has been a procedure for commissioners and their advisers to declare their interests, a code of conduct and an ethics committee. What’s more Brussels also set up an online database of information on lobbying activity, the Transparency Register. Individuals and organizations must sign up to it if they wish to access officials in the Commission. The latter has proposed extending it to cover all EU institutions.
However, he stressed that this is only half the battle. “With regard to conflicts of interest, they can’t just be limited to commissioners and their advisers. All the EU’s public actors are concerned by it, including parliamentarians and the EU Council.”
They should all have to provide a declaration of interests and assets, as is the case in France, he continued, where some 14 000 policy makers are held to this, with MPs and ministers making theirs public. Brussels’ rules stop far short of this.
He also highlighted that many meetings with officials, such as MPs or Commission directors, are not recorded on the register. Transparency International, which works to combat corruption and related criminal activities, is pressuring for a common registry at the executive, parliamentary and administrative levels.
Lobbying of public officials is not necessarily negative, he said, but it should be transparent to preserve the public interest. Moreover, the EU should be exemplary in this area.
Registers and other such measures need to have the adequate resources and follow-up, O’Reilly put forward.
Trade deals have also been the focus of public ire in recent years. The proposed Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU illustrates the perception that such deals are opaque and undemocratic.
O’Reilly explained that when she took office in 2013 she was aware of the contention surrounding the trade negotiations – e.g. concerning such highly topical and sensitive issues as corporate tax evasion – and she carried out a public consultation and made a series of recommendations to the Commission, to which they acted positively, “making things more transparent”, in particular by making negotiation documents public, though they can only be consulted with a pencil and paper – electronic devices are forbidden. She mentioned there was shock from the Commission regarding the public reaction, that they underestimated the impact of social media and people’s ability to engage directly regarding the TTIP.
Not surprisingly, it was one of the investigations she had the most resistance from Brussels. However, she was able to convince them that it was part of her mandate, i.e. she was making the law-making accessible to the public.
The key is finding the right balance to allow the deliberative process to move forward, she added.
Lebègue pointed out that the accountability of public figures is fundamental to functioning democracies – and is a cornerstone of the OGP – with certain exceptions, namely with respect to national defence, security and trade secrets.
The Commission, the Parliament and member states have been faced with making important decisions on trade secrets, whistleblowers and protecting investigative journalists for the past three years but have avoided tackling the latter two thorny issues, Lebègue underlined. The 2016 Trade Secrets Directive addressed them poorly and there are currently no plans to do so.
Transparency alone is not enough to ensure good governance; citizens must participate actively in the democratic process. As Lebègue put it, open government and participatory democracy must complement each other.
O’Reilly maintained it is vital for the EU Commission to be actively involved in open government at a time when citizen distrust is so high.
Transparency International is pushing for the EU to join the OGP to send a strong signal in favour of openness. But the Commission claims the EU cannot become a member because of legal reasons. That said, it has not categorically ruled out the possibility of joining the OGP.
In the meantime, Lebègue stressed, though, that the EU does have practices that are exemplary in their openness. For example, it regularly holds open consultations before drawing up draft directives and recommendations, something that is not the case in many member states. However, millions of EU citizens still do not have an active voice. The question then is how to give them one in an open manner before civil society representatives, corporate interests, unions and NGOs monopolize the dialogue and debate.
In addition, the right to petition also exists in the EU. This powerful democratic tool of openness, which is widely ignored and little used, is another example of open government in the EU that needs to be developed.