Transparency principle as an evolving principle of EU law: Regulative contours and implications

Since the nineties, transparency has gained significant attention in the eu context, being mainly viewed as a response to the lack of legitimacy and as a mean to cope with the democratic deficit. Furthermore, the notion of transparency has emerged in a wide range of other areas, ranging from legislation on financial matters to social law and to recruitment by the EU Institutions1. Despite the divergences in the way it is applied in various areas, one can recognize a common-core element in the notion of transparency, which can be described as the opposite of opaqueness and secretiveness. In this context, the definition given by the Advocate General R.J. Colomer in the case C-110/03 (Belgium v. Commission) can be regarded as satisfactory to describe the general contours of that loose notion. According to this definition, transparency is concerned with the quality of being clear, obvious and understandable without doubt or ambiguity2. Beyond that general definition, the precise meaning of transparency depends on the context in which it is used and the function that it is expected to fulfil. Furthermore, what is highly interesting is how the notion of transparency is applied at the distinct but interrelated levels of governance within the framework of the European Union. In particular, at the EU level, transparency applies directly to the relationship between the EU and the Member States and the relationship between the European institutional organs and individuals, including the business sector, and indirectly to the relationship between the authorities of the Member States and the citizens or businesses. The main aim of this paper is to focus upon those aspects of transparency which have a normative effect both on the institutional organs of the EU, when acting either in a legislative or an administrative capacity, and on the member-states and their administrations. Subsequently, beyond the scope of this paper are those aspects of transparency that emerge in certain areas of European Economic Law, such as the state aid and the public procurement law, and relate to the obligations of the public authorities to facilitate or supervise market transparency, mainly by providing adequate information to market participants.