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380

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A

MERICA

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).