Harvard Law School Jean Monnet Chair

Restrictive Exceptions to the General Principle of Transparency?

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2.3. Restrictive Exceptions to the General Principle of Transparency?

Geoffrey Edwards argues that the European people need to have more than a minimal knowledge of the European institutions, procedures, norms and values in order to accept them. Thus, openness and transparency are an integral factor in the process of legitimisation and the EU must be seen as more efficient, democratic and effective, both in terms of policy-making and policy implementation.60 The same applies even for the legitimisation process of the ECB. According to the European Ombudsman, public access to documents should be the core rule and all exceptions implemented restrictively.61 Still, given while the EMI was active, the recommendations of the Ombudsman only concerned the administrative documents of the ECB predecessor. All documents connected with monetary policy could remain confidential unless the Council decided otherwise.62 The ECB has confirmed that the same limitation is applicable to its archives.63 For the time being even all voting records and motivations remain confidential.64

Restrictions on transparency contradict the idea of democracy by hindering the right of the people to have access to governmental acts and their entitlement to use such information to expose possible incidents of public misconduct or maladministration.65 The independent status of a central bank is usually motivated by the need to lead the market in an unprecedented way. Thus, the democratic legitimacy of the monetary policy within the EMU framework cannot be realised on the basis of traditional, democratic methods but through a combination of different supervisory and accountability arrangements66, which contribute to creating legitimacy. Transparency plays a central role in these arrangements.

The ECB has chosen to arrange press conferences, release a series of publications, publish results of its research and update a web site of its own.67 Bringing in the defence side, according to the President of the ECB, Dr Willem Duisemberg, the EC Treaty contains various provisions to ensure the democratic accountability of the ECB. One of these cornerstones is the presentation of the Annual Report to the European Parliament and the Council, others include a number of other reports and its information policy, an area where even the internet is being actively used.68 In addition, the Bank has strengthened its relationship with the European Parliament which, according to the EC Treaty, can hold general debates on the basis of the ECB reports.69 In practice the President has regularly attended hearings organised by the Committee on Economic and Monetary Affairs and answered questions asked by the Parlamentarians, welcoming their delegations to its premises in Frankfurt.70 According to Duisenberg, these practices secure the Bank’s ability to stand in comparison with other Central Banks in the field of transparency.71 This is undoubtedly true. The question is, however, whether the Bank can stand in comparison with other organs with a law-making competence? The answer to this question must be negative.

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