Access to Documents in the EU Foreign Affairs Council: Compound Exceptionalism

Maarten Hillebrandt

It is commonplace in today's transparency research to observe that, over the past quarter-century, a global transparency wave has swept through public institutions. This 'transparency effect' seems to have permeated institutions in the expectation that openness will deliver better governance and lead to more democracy. In the Council of the European Union, the trend towards greater transparency is well-documented. Gradually, the Council has developed a legal transparency framework while proactive and requested document disclosure have both gone up. These developments may lead us to conclude that the EU, too, has embraced the 'transparency logic'. This conclusion however is drawn at a general level that does not engage with the Council's institutional internal complexity. In reality, the Council is a composite institution that carries out multiple functions using different legal and non-legal instruments. The question is raised whether the 'transparency effect' is noticeable throughout the Council, or whether its progressive extension is resisted by competing factors such concerns of third parties or internal organizational arrangements.This paper considers transparency developments (understood as public access to documents) in the Foreign Affairs Council (FAC), as part of a larger longitudinal cross-case comparative analysis. A policy area that has historically been largely separated from the 'Community method' in the Union's founding treaties, the FAC has tended to favour intergovernmental over supranational modes of decision-making, relying extensively on an argument of exceptionalism. This argument however requires unpacking to do justice to the constitutional complexity and diversity of EU foreign policy making, which ranges from the imposition of sanctions to the negotiation of international trade agreements.The current case study offers a historical analysis of key changes in FAC transparency, applying a mixed methods framework that combines insights from the fields of European law and public administration. It is based on 30 semi-structured interviews with officials, stakeholders and experts (14 from the field of transparency and 16 from the field of foreign affairs) as well as legal and policy documents and descriptive quantitative data.

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