by Andreia Barbosa, PhD student at the Law School of UMinho
It is clear from Article 1 of Protocol No 14, annexed to the Treaty on the Functioning of the European Union, that Eurogroup meetings take place informally.
Informality is reflected in two aspects. First, according to the terms in which the meetings are held, that is, as to the procedure adopted therein. In fact, there is no set of rules defining the procedure to be followed, for example, to ensure the involvement of all actors and to determine the order in which such interventions can be carried out and the duration they may have. Secondly, the terms in which «decisions» are taken and how they are made known to the public. It is through press conferences that the outcome of the meetings is presented to citizens of the Union (and when they are).
It should be noted that we refer to «decisions» as a result of Eurogroup meetings, even though we know that the formal, final, and binding decision on the subject is actually taken at the Ecofin meeting. However, we are also aware of the fact that the votes made at Ecofin express the outcome of the previous Eurogroup meeting. The final decision of Ecofin was born in the Eurogroup.
So, the informality resulting from Article 1 of Protocol No 14 actually means «opacity». Contrary to the idea of necessary transparency and publicity in all decision-making centers, no minutes or documents are signed in the Eurogroup, there are no transcripts or records relating to the respective meetings. No database has ever been set up to add up the «decisions» taken. The proposals under discussion, the presented votes, the conflicts of interest that have arisen and the commitments made are not known. Moreover, the acts of the Eurogroup can not be syndicated before the Court of Justice of the European Union, even though they are not documented, neither on paper nor in audio or video.
Although a certain procedural informality is admitted (but still susceptible of criticism), it does not seem to admit an opacity in the decisions. In abstract, a procedure can be informal and simultaneously transparent. In particular, the functioning of the Eurogroup may be informal, but its «decisions» should not be opaque. And the lack of transparency that exists goes beyond mere confidentiality.
It has been hypothesized that the opacity underlying the functioning of the Eurogroup may be due, at least in part, to the terms in which the meetings take place, when they are initiated and hence affected from the outset by Troika representatives (when meetings) or by the representatives of the most influential Member States. These interventions influence those of the other ministers. Perhaps with the fear of revealing to the citizens (or, more coldly speaking, the electorate) represented by their Ministers (and also by the Commission) the fragile and influential position they have in the Eurogroup, it is simply chosen to bring nothing or very little to the public. However, apart from not being legally reasoned, this is obviously not an argument heavy enough to justify the absence of verified transparency. It would be like admitting that there is a flaw and nothing to do to correct it.
Another reason which seems to us to be the cause of secrecy will be the fact that in the Eurogroup there are essentially technical issues that are not understood or understandable by European citizens. However, that assumption can not serve as a basis for their «decisions» to be unavailable to the public. In fact, what are the subjects that are discussed in European bodies which do not concern legal, financial, economic or other technical matters, that only a small proportion of European citizens have the understand? Very few, if any. And even assuming that the majority of European citizens are not aware of the issues under discussion in the Union, they should have, if they wish, the opportunity, in accordance with the democratic principle, to have access to them, forming their own opinion.
The principles of good administration, transparency and democracy stemming from the Charter of Fundamental Rights of the European Union, which are taken together, require more clarity and publicity in relation to the decision-making process and the decision itself. This should be especially so in a context where the ideas of «accountability» and «good governance» have gained prominence due to the widespread financial crisis. Given the real relevance and extent of Eurogroup meetings, it seems to us that it should not be considered as a «mere discussion forum», which can operate with «closed door» simply because it has no legal basis in the European Treaties. The «decisions» of the Eurogroup have a really significant impact on the Union and can not therefore fall outside the scope of the abovementioned principles.
Even if the Eurogroup does not have legal personality and although it does not form part of the list of institutions, bodies, offices and agencies of the Union, we still believe that it should be subject to compliance with the principles of good administration and transparency. In the event that Protocol No 14 is not amended in order to impose on the Eurogroup an action that respects good administration and transparency, we believe that the link with the aforementioned principles already exists by virtue of the breadth a with which they must be applied. If this is not the case, this will be another example where the Policy replaces the Law, when, in fact, the first must be submitted to the second.
It should also be pointed out that it will not be for lack of technical means that «decisions» are not transmitted. In fact, the necessary technical resources are available to give effect to the aim of transparency: the room where Eurogroup meetings are held is equipped with the necessary equipment, such as microphones, cameras and screens, which reproduce in real time all the speeches made.
On the other hand, considering the idea of informality, according to which the procedures to be adopted depend on the will of the Eurogroup itself, it should, on its own initiative, act with total transparency, safeguarding the right of European citizens to good administration. If procedural freedom exists, then let it be applied for that purpose. Moreover, there is nothing to prevent Finance Ministers participating in the Eurogroup from make known the contents of the meeting with their representatives. However, this is an alternative that should be subsidiary, as it may burden Eurogroup participants, who will have the responsibility to record, on their own, the content of the meetings. Transparency and publicity should be guaranteed in the same way as for all other European institutions.
In our view, the requirements of good administration and transparency at this level will, in particular, dictate that: (i) the process by which «decisions» are taken is understandable (which may justify a possible lessening of the idea of Informality, in the sense that the procedure followed at the meetings is minimally defined, although it may be amended in accordance with the specific circumstances); (ii) the «decisions» themselves are duly substantiated; (iii) «decisions» are published (all data or elements which have served as the basis for the decision taken must also be available for consultation on a free access platform and without the need for prior registration – ie no need to introduce user data); (iv) the meetings are open and public (in the sense that they can be transmitted live, via television or radio), ensuring that all interested parties can follow them; and (v) proposals that concern and directly affect citizens are presented before the meetings are held for public debate, not in the sense of a referendum, but for public opinion to be formed and can be taken into account by the Eurogroup.
It seems to us, therefore, that the mantle of secrecy that covers the decision-making process in the Union, and in particular the Eurogroup, must be lifted for the transformation of an «informal Eurogroup» into a «Europeanized Eurogroup», principally oriented.
Picture credits: Eurogroup meeting (…) by EU Council Eurozone.