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between the Council and an NGO, in spite of new provisions in
the Treaty of Lisbon, the Council may still conceal information
from the public to protect national executives from the scrutiny of
voters.
6
In sum, nominal transparency as stipulated in Art. 15(2) of
the Treaty of Lisbon has limited implications for the democratic
accountability of the Council.
While ministers from Member States are the only ones with
legal authority to adopt legislative decisions, only a minority of
legislative proposals adopted by the Council even brought to the
attention of ministers. Quite to the contrary, ministers often do not
have an opportunity to decide whether or not to get involved at
the beginning of the negotiation process. In fact, typically, they will
not even be aware that the Commission has introduced a proposal
as the default process works the other way round. National
bureaucrats who do not answer directly to domestic parliaments
decide whether it will be necessary to involve ministers (Häge,
2008: 534-535; Hayes-Renshaw & Wallace, 2006: 1-100).
When legislative proposals adopted by the Council are not
brought to the attention of ministers, but are direct results of
negotiations conducted by bureaucrats in preparatory committees
of the Council, policies are essentially made with little scrutiny.
When the EP’s involvement in legislative decision-making is
increased, national bureaucrats, motivated primarily by blame
avoidance, would feel less sure about reaching final agreements by
themselves and come to welcome the more frequent and direct
involvement of ministers (Häge, 2011: 20-26). In theory,
empowering the EP should ratchet up scrutiny of, and prudence in,
6
In 2011 the NGO Access Info Europe challenged the Council in court for
blocking out the names of Member States when answering public requests
and providing documents. The court ruled in favor of Access Info Europe,
and the Council appealed. The Council argued that releasing the names of
Member States in the early stages of the legislative decision-making process
could restrict the Member State delegations’
room for maneuver as a result
of public pressure. In 2013, the European Court of Justice ruled against the
Council (
Nielsen, 2
013a).