Thank you for inviting me to address you today on the transparency of the decision-making process in the Council of the European Union - or, to be more precise, on the transparency of Member States’ decisions on EU laws and policies.

The fact that I am speaking to you via videoconference from my home office is only a small indicator of the extraordinary times we continue to find ourselves in as our societies face the consequences of COVID19.

Although we are collectively coming out of confinement to return to a normal life, we are still very far from being able to define with certainty what a normal life means now.

The past months have shown us the benefits of a responsible and well-functioning administration and, conversely, the tragic consequences when states do not make decisions based on facts and the public interest.

These months have also brought the benefits of transparency from the abstract to the concrete. It is no exaggeration to say that decisions made today have an impact on life and death and should be subject to rigorous public scrutiny.

While the importance of transparency may be more evident in times like the one we are going through, it should also be the general principle of good administration in “normal” times. It is on this premise that my work as European Ombudsman is based.

I would like to take this opportunity to explain the role of the European Ombudsman, who is not always well known outside the sphere of the European Union.

The European Ombudsman was created by the Maastricht Treaty. I am elected by the European Parliament and carry out my duties independently.

My main task is to help citizens who have problems with the European administration, for example the Commission, the Council, the Parliament, the Central Bank or even the regulatory agencies. I receive around 2,000 (two thousand) complaints a year from citizens, NGOs (non-governmental organisations) or businesses and I open around 400 investigations.

In 2019, 118 (one hundred and eighteen) complaints came from France and I opened 26 (twenty-six) investigations. Such investigations may cover matters such as disagreements on EU contracts or grants, refusals of access to documents, violations of fundamental rights, suspicions of conflicts of interest or lack of due diligence in infringement proceedings conducted by the Commission.

My overall objective is to ensure that citizens are served by an efficient and accountable European administration.

To do so, I make extensive use of my right to conduct investigations on my own initiative. This power means that, instead of waiting for a problem to be submitted to me in the form of a complaint, I can proactively open an investigation - this is particularly useful for tackling systemic problems within the EU institutions.

I used this to examine the transparency of expert groups advising the European Commission; how meetings of euro finance ministers are prepared; and how the Medicines Agency manages meetings with pharmaceutical companies before they formally request market access for their products.

I also used it to open an inquiry into legislative transparency in the Council. I consider this inquiry to be one of the most important work I have done as European Ombudsman as it is essentially the fundamental right of citizens to participate in the democratic life of the European Union. In order to exercise that right, they must first and foremost have access to decisions taken at EU level and to the way in which they are taken.

This remark seems to be self-evident. But at the moment, it is practically impossible for a Frenchman - or any other citizen - to know how a law came into being and what was the position of the French government - or any other government - on that law.

Consider how a law moves from an initial draft into EU legislation. The draft is drafted and published by the European Commission. It then passes to the two legislators - the European Parliament and the Council (or the member states). The treatment of the law at the level of Parliament is easy to follow - the law goes through different committees and is finally voted in plenary session.

The same cannot be said of the Council. Once a bill enters the Council, it essentially disappears from public view and is managed by one or more of the 150 (one hundred and fifty) Working Groups, composed of national civil servants. These Working Groups modify and shape the bill, which is then transmitted to ambassadors and finally to ministers. Most of the important changes are made at Working Group level and when citizens see the law, it is, for the most part, already finalised. As the positions of the Member States are not recorded, it is not possible to know the position of a particular government on the law. Now imagine telling your voters that it is not possible to know the government’s position on a national law. That would be unthinkable. There is no valid reason for this to happen at European level.

And this is particularly damaging for the EU, which already suffers from the perception that its decision-making process and institutions are far from citizens. It is difficult to dispel the impression that you “understand” the European Union if you cannot meaningfully participate in the democratic life of the Union.

In concluding my investigation, I recommended to the Council that it systematically register the positions of the Member States in the Working Groups, that it define criteria for marking documents as not publicly available and that it regularly review the status of these documents. My suggestions were then strongly supported by the European Parliament.

The response of the Member States was very disappointing. Although ten governments are taking the lead in pushing for more transparency – which I welcome – the others have not made any significant commitments in this regard. Unfortunately, France is one of the countries that still needs to support the idea of greater public access to the EU decision-making process.

And as you all know, the major Member States – particularly France – have a particular responsibility when it comes to boosting ideas. I hope that Germany, which is also not one of the ten, will consider my proposals carefully when it takes over the EU presidency in the second half of this year.

It is useful for us to ask ourselves why there is such reluctance for more transparency in the Council. The main argument is that governments need space to negotiate and compromise. If my proposals were that the negotiations should be made available on the internet, that argument would be well founded. In this case, I am asking that the public have access to a government's position on a particular law before that law is finally passed.

This is a basic proposal. But it faces a culture of decision-making based on a long tradition of behind-the-scenes diplomacy, and based on the fact that trade-offs and compromises must not be made public. Although this has always been questionable from the point of view of public access, it is all the more so now given the scope and breadth of EU legislation and policies. Other surveys I conduct on the transparency of national government decisions in Brussels concern how fishing quotas are allocated annually and Member States’ positions on the risk of pesticides to bees. In each of the investigations, the complainants - in one case a French NGO (non-governmental organisation) - approached me because they were not able to find enough information.

In camera decision-making is politically opportune as it allows national ministers to blame "Brussels" without fear of contradiction when European policies are less popular.

The public, however, has the impression that an unidentified entity - and not its own government - is making the decisions. Populists and Eurosceptics exploit this understandable confusion with great efficiency.

The COVID-19 pandemic - which does not take borders or nationalities into account - has once again shown us the benefits of European cooperation and of the European Union itself. The recent proposal by France and Germany for a recovery pact is further proof of this.

The pandemic will continue to have profound consequences for our societies, our economy and our finances for many years to come. On top of that, all other problems, such as the climate crisis, technological progress and migration have not disappeared.

The European Union’s response in all these areas will be strengthened if public trust in the European administration remains strong and if citizens see why and how decisions are taken. Transparency in the Council, the EU co-legislator - or the Upper House - would go a long way towards achieving this goal

Thank you for your attention.