Transparency in the EU: Constitutional Overtones, Institutional Dynamics, and the Escape Hatch of Secrecy

Transparency is one of those rare few European institutional principles that, upon their introduction, directly stirred an intense and fundamental debate. It has at times been appraised, contested and nuanced. Part of the ‘buzz’ around transparency has exactly been the product of this apparent ambiguity, which has led it to mean different things to different people. Nonetheless, over a period of 20 years, the legal principle of transparency has come a long way, undergoing a considerable process of development and expansion. Hence, while the academic literature has for long approached EU transparency as a new and innovative legal concept, today its relatively institutionalised status no longer supports such a characterisation. From the outset, the central instrument of transparency has been the right of public access to documents. By conceptualising (as opposed to operationalising) this right rather widely, it became quickly associated with mechanisms of public oversight of the legislative process and decision-makers more generally. The idea of the ‘widest possible access’, which underpinned the principle of transparency from the outset, became gradually developed and clarified through various parallel trends. Progressive changes in the Treaties and in secondary law, as well as, importantly, judicial enforcement, have gradually led to a certain degree of constitutionalisation, albeit in combination with a high degree of institutional stalemate and judicial gap-filling.