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Summary of the decision in strategic inquiry OI/2/2017/TE on the transparency of the Council legislative process

This strategic inquiry concerned the transparency of discussions on draft legislation in the preparatory bodies of the Council of the EU (the ‘Council’).

In order for European citizens properly to exercise their democratic right to participate in the EU’s decision-making process, and hold those involved to account, legislative deliberations must be sufficiently transparent.

When the 28 Member State governments in the Council formally adopt EU legislation, meetings and any legislative discussions are public. However, before the Council reaches a formal position, discussions take place in more than 150 preparatory bodies. It is at this level that most changes to draft legislation are proposed and compromises between Member States are sought.

However, preparatory bodies do not meet in public. Citizens can exercise their democratic right to follow legislative discussions only by accessing records of these discussions. This requires that legislative discussions in preparatory bodies be properly documented and that timely access to the relevant documents be easily available.

Against this background, the Ombudsman opened this strategic inquiry in March 2017. She put specific questions to the Council, launched a public consultation and inspected legislative files of the Council.

The Ombudsman found that the Council’s current practices constitute maladministration. She specifically criticised the Council’s failure to record systematically the identity of Member States taking positions in preparatory bodies, and the widespread practice of restricting access to legislative documents while decision-making is ongoing (the so-called ‘LIMITE’ marking).

On 9 February 2018, the Ombudsman made three specific recommendations and several suggestions to the Council on how to improve the transparency of its legislative process.

The Council did not reply to the Ombudsman recommendations within the legally-prescribed timeline of three months. The Ombudsman therefore closed the case, confirming her findings, her recommendations and her suggestions for improvement. A Special Report to the European Parliament will follow.