• Déposer une plainte
  • Demande d'information
60th Rome Treaty anniversaryL’Europe est à vous - Le portail des services publics européens et nationaux en ligne

Transparency 360 degrees

Langues disponibles : en

Brussels, Belgium, 07 November 2017

Thank you very much for the invitation to speak to you on how the transparency landscape currently looks in the EU institutions and on what proposed reforms may or may not bring, and particularly in relation to the revision of the transparency register.

I think we can agree that there is a certain irony in the fact that this event is held in the same week as the so called Paradise Papers leak - over 12 million documents exposing global tax avoidance schemes and global tax avoiders.  When I consider how many months my office, and indeed people here, spend trying to extract very often innocuous pieces of information from the EU institutions one wonders whether technology will be the ultimate game changer of transparency and not just regulatory revision. As the EU institutions still haggle over when talks about the transparency register revision will begin, at the touch of a hacker’s button tonnes of information probably incapable of being released under most transparency regimes is all there at our fingertips.

At the moment, the focus on the Paradise Papers concerns named individuals and corporations and the countries and vehicles that enabled the avoidance schemes. Media outlets – for fear of being sued otherwise – are careful to say that the schemes are legal while those who facilitated the schemes are equally quick to point out that they were following accepted regulatory laws and practices.  The question of interest of course is, how did those perfectly legal regulatory practices come about? To what extent did lobbying play a role and if it did, then how transparent was it at the time?

The really useful purpose of those leaks – just like the Panama Papers, just like Lux Leaks – is that they enable us to see the path that leads to the real world consequences of tax avoidance. At a time when so many world leaders and so much of civil society are lamenting rising levels of inequality and linking that to the rise of populist parties and populist politicians, the leaks can lay at least some of the answers before them – the enabling of the super-rich to become even more super-rich by diverting money away from revenue collection that may have contributed to alleviating inequality.

The invitation to this event speaks of “unparalleled interest in public affairs and access to government”. And that is certainly true. It becomes especially true at a period such as this one marked by political uncertainty, an increasingly fractured political centre,  the Orwellian type encroachment of technology into politics itself and into its manipulation, the routine, casual, denigration of expertise of knowledge and most of all by people’s fear of the future, of what lies ahead for their families.

All of us therefore in a position to do so have a responsibility to be rigorously honest about what we do and how we do it, a responsibility not to allow misinformation and distortion to create a further fracturing of our societies, further polarisation of our communities and above all, further inequality between the insiders and those increasingly excluded from the possibility of having real control over their lives and futures. Because it’s not just the right thing to do, it’s not just a selfless act – it’s an act, in these troubled times, arguably of self-preservation.

It might seem a stretch to link these abstract global challenges to the rather more prosaic task at issue here today which is how to speed up the revision of the Transparency Register.  But with increasing discussion of the roots of inequality as it relates to taxation for example and tax avoidance in particular, and with the capacity of EU regulators and the EU institutions generally to exert some positive influence on that, it stands to reason that a fundamental element of any future move must include how lobbying is dealt with within the institutions. But I use the words ‘some influence’ as obviously much control lies within individual states and the degree to which the Council can and should become involved in the register is of course, much contested.

Let me also acknowledge however that many lobbyists, and those under the umbrella of EPACA, do welcome many elements of proposed reform and EPACA wants to move towards a mandatory register. You recognise that without one, that without more consistent and well monitored rules, that some lobbyists will continue to have an unfair advantage when it comes to access and that unethical practices by a small few damages the reputations of many others.  Even from a purely self-interest perspective, stricter controls on, and transparency of, lobbying are good for lobbyists.

As I have said many times in the past lobbying has a legitimate and important role in providing information during the policy-making process. Officials cannot possibly hope to know every possible outcome of a proposed regulation or even how a proposal can be enhanced in the public interest, and responsible, transparent lobbying can fill that public interest slot.

What is not acceptable is undue influence - when privileged space is given to certain interests, where lobbying is not transparent. The practical consequences can be significant: one business sector gains an unfair advantage over another, innovation may be stifled unfairly, environmental standards are set a little lower; consumer rights are weakened; or, in the case of the tobacco regulation, health clauses diluted.

I would further argue, as political panic spreads about the potential of new technologies to disrupt even democracy itself, such control and transparency has never before been of greater importance. Benign social media innovations – initially marketed towards teenagers and their overwhelming desire for connection – have now led us into a world where manipulation of our lives, our beliefs, our allegiances and our political choices is capable of being done in a way that defies the comprehension of most ordinary people.

And all of that is becoming the staging ground of one of the next big battles and that is the battle between the legitimate control agents of our lives – essentially our governments that we need to elect with clarity of thought and fact – and the so called technology giants –all those affable, smiling, largely male, geniuses who have created a world with the capacity, it would seem at times, to teeter on the brink of dystopia.

And attempts are being made to take control of that and some of those attempts will be strenuously fought. Why wouldn’t they be? Technology profits – frequently off the back of information we ourselves freely yet largely unknowingly give – are counted now in the trillions.

We have seen – or at least seen reports of - the intensive lobbying of the ePrivacy regulation, essentially about the online security of our data. Much of this is entirely legitimate as companies do need to explain how they work and how they do or could protect user privacy. However, it is obviously in the public interest that we know as much about this as possible, given the growing concerns about the reach and capacities of such technologies.

My role as European Ombudsman – when it comes to transparency – essentially deals with this issue of influence – the extent to which EU institutions ensure independent decision making including through high levels of transparency. I have inquired into the Expert Groups that advise the Commission for example, and deal with complaints that allege at times conflicts of interests between members and outside private interests.

I also looked into the Commission’s revolving doors challenge, which faces many public administrations, - when high-ranking officials leave their posts to take up a private sector post that could see them lobbying their former colleagues.

We are also sensitising officials as to what exactly lobbying and have produced a simple ‘dos’ and ‘don’ts’ guide for public officials to help them navigate this occasionally tricky area.  The Commission has distributed this internally and we would like other institutions to follow this example. 

We have also looked into the transparency of the Trilogues process and are currently looking into what happens to a draft law once it leaves the European Commission and is discussed within the Council. Although it is a co-legislator, the Council tends to think and act within a traditional international diplomacy framework. Evolving negotiations remain largely secret, as do Member States’ positions. Even for those very familiar with the Brussels machinery it is not easy to find out which working group or committee is examining a legislative proposal and what these discussions look like.  

This naturally brings me to the Transparency Register which should be the tool to achieve greater transparency in all of this and particularly in relation to the influencing of the final result of a legislative proposal.

I believe that Register should become a ‘central transparency hub’ allowing us to build a picture of any organisation’s activities , showing what expert group it sat on; who its representatives met; what public consultations it contributed to and so on. A reformed Register should be far better resourced; the accuracy of its data should be improved as should monitoring and sanctioning.

The Commission’s proposal in September 2016 to improve the Register and extend it to the Council was encouraging - although I would have preferred a legislative proposal rather than an Inter-Institutional Agreement.

I note, with regret, that real negotiations on the Transparency Register have yet to start. While I do not want get to into the details of what has or has not been said by the various institutions, as I may in future have inquiries about the implementation of the Register, I would like to call in particular on the Member States to step up and get involved.

Without more transparency at Council level, and indeed in the national capitals and in their Permanent Representative offices in Brussels then a more complete EU lobbying picture will be impossible. As this week’s Paradise Papers global news story has shown again, it is often certain special interests that capture certain national governments in order to block and delay moves to more global tax transparency. These moves, while often legal, are aided by many in the public affairs and legal sectors. These are questions which all of us will have to reflect on more in the coming months and years.

The Institutions, and perhaps the Council in particular, now have a choice to make. Do they sit and their hands and do nothing because to do something is just too difficult? Will it be like the Transparency regulation unchanged since 2001, a year that predated the creation of Facebook, the creation of Twitter, the creation of the IPhone the latter described as the foundational instrument of modern life – the creation of new technologies that have obliterated old notions of communication, of privacy, but more than anything have helped dramatically to reshape the landscape of actual control and influence..

The political desire to do something about global tax avoidance cannot be detached from a parallel desire to do something about the transparency of the influencing process, which is a large part of what enabled the problem in the first place. You really can’t have one without the other.

I believe that if the debate about the register is to be meaningful, if is to result without undue delay in a register that achieves what it should – a well-resourced monitor and control of the influencing of legislation that affects all of our lives, then it is important to continue to draw attention – as I said at the start – to the real life consequences of what happens when that process remains in the shadows.

I wish you well in your discussions today.

Thank you.