The principle of transparency in EU law

Abstract

‘The principle of transparency in EU law’ explores a variety of transparency obligations in European law, and offers a comprehensive framework to classify and understand those obligations. The principle of transparency is ubiquitous and multifaceted. The obligations derived from it range from a duty to allow access to documents held by the EU-institutions to a prohibition to change the terms of a contract concluded after a procurement procedure. But although transparency is a diffuse concept, it has a distinct core: the concept refers to the availability, accessibility and clarity of information. However, the concept of transparency does not in itself determine the target and the timing of transparency obligations, nor does it tell us much about the acceptability of exceptions, and whether information should be provided pro-actively or on request. The author provides a method to determine the exact nature of the transparency obligations that can be derived from the principle of transparency in concrete situations. She explains how the application of the EU principle of transparency is affected by the manner in which transparency contributes to the realisation of a variety of goals, the context in which it is applied, and the presence of conflicting interests. The key to understanding the principle of transparency is appreciating its instrumental value. By being transparent, governments can promote democracy and individual rights, and improve economic performance. These goals are realised by means of two related but distinct mechanisms. First, transparency aids people in decision-making. Second, it allows them to see what is going on inside government. As such it is a precondition for any attempt to affect what is going on inside that government. Understanding how transparency functions is insufficient though: whether there is an obligation to be transparent is determined by the normative framework that governs the relation between the government and its citizens. This framework differs depending on whether this relation is perceived as one involving the citoyen, homo economicus, or homo dignus. For the citoyen, the overarching principle governing its relation with the government is democracy. For homo economicus, it is the promotion of the internal market and the Treaty freedoms. For homo dignus, it is the respect for human rights. The contents of the principle of transparency are determined by these higher-order principles. Because of that, we can only derive those particular transparency obligations from it that do in fact contribute to the realisation of the state that is embodied in those higher order principles. Because transparency always functions in the same two distinct ways to bring about its positive effects – it facilitates decision-making and allows outsiders to see what public authorities are doing – our understanding of the manner in which it functions provides us with a way to determine what concrete transparency obligations we can derive from the principle of transparency, provided we know what effects the law requires us to achieve by its observance.