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The Security Exceptions to Transparency in the Compound EU Legal Order

European Union
Executives
Foreign Policy
Security
Vigjilenca Abazi
Maastricht Universiteit
Vigjilenca Abazi
Maastricht Universiteit

Abstract

The European Union has significant executive powers in security policies and an increased role as an international security actor. For example, the EU has six military missions and eleven civilian missions spread across Africa, Asia and Europe. The EU’s powers in security are exercised by a wide array of institutions and a growing number of agencies and administrative bodies. The Council, as a leading executive institution with salient operational powers, decides over the imposition of sanctions to third countries and the blacklisting of terrorists in Europe. Law enforcement agencies like Europol provide intelligence analysis leading to more than 18,000 cross-border investigations by coordinating EU databases of citizens’ personal data and criminal history cross 28 EU Member States. These powers in security develop both within and outside the EU legal remit. More importantly, it is the EU executive actors that drive the growth of these powers making decisions mostly behind closed-doors and maintaining an unilateral control over public and privileged access to information. This dominant mode of secrecy in decision-making raises questions of democratic accountability, and especially transparency as a crucial element in order for accountability mechanisms to actually function. Challenges to democratic accountability particularly arise due to the discretion of the Council in maintaining the exceptions to public transparency in issues of security and international relation as well as its internal rulemaking leading to a fully-fledged regime of official secrets that make access to information for the European Parliament sometimes impossible. This paper examines how the EU executive institutions balance between security and transparency by looking at the security exceptions to the Transparency Regulation and the establishment and administration of EU official secrets. The paper aims to highlight how the remit of EU secrecy has grown while taking into account that the workings of the executive power at the supranational level is scattered and fragmented. In bringing these strands together, the paper draws broader questions of democratic accountability of the EU compound legal order based on the rule of law and transparency as a constitutional principle.