Secrecy Tracker. AI secrecy, anonymous lobbyists & a silent Commissioner

Welcome to the new edition of Secrecy Tracker, the newsletter from the journalists of Investigate Europe, EUobserver and Follow the Money. In it we explore the questionable ways in which EU institutions handle their legal obligation to be open and transparent. This edition is authored by Investigate Europe's Harald Schumann.?

Paradoxically, anti-European right-wing parties have found an unlikely and (probably) unwitting ally in the strongest EU institutions: the Commission and the Council of the European Union.

The bond that unites the unlikely allies is the ongoing practice of secrecy, by which the officials and political leaders of the two institutions systematically obstruct the work of us journalists. As a result, citizens and voters are far too little informed about what 'they in Brussels' actually do and therefore do not understand the EU. This is the main reason for the broad mistrust of the EU, on which the narratives of neo-nationalists are built. They defame the EU as a project of international elites who do not care about the interests of ordinary citizens. And as if to confirm this false and misleading propaganda, the secrecy practised by the Council and the Commission prevents us from informing citizens in time and in sufficient detail for them to get involved. Yes, to get involved, because that is what really makes a democracy come alive and prevents citizens from feeling powerless and at the mercy of others.

This right is actually guaranteed by the European treaties. "Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen," Article 10 of the EU Treaty states. And the "Treaty on the Functioning of the EU" promises: "In order to promote good governance and to ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible."

But the commissioners and the civil servants of the Member States in the Council systematically break these principles in order to negotiate the EU's laws and rules among themselves, undisturbed by critics.

This is once again confirmed by our experiences of the past two months.

The struggles to monitor the AI Act

The Council's handling of Investigate Europe's research into the European Artificial Intelligence Act is a case in point. The part of law on the prohibitions to the application of AI came into force on 2 February 2025.?

IE's reporter Maria Maggiore wanted to find out how the negotiations between the EU governments went. Principally, to know which countries had successfully lobbied to water down the law, which gives law enforcement greater powers to deploy AI-powered surveillance against citizens. In order to do so, IE retrieved from various sources around 100 documents from secret meetings in the Council. This included the countries' positions, which the Council actually delivered, except one: that of France.?

The French government sent a letter to the General Secretariat of the Council in 2022, when the negotiations were getting into full swing, forbidding the sharing of its positions with the other countries and then, with the public. The reason? An alleged risk to national security in divulging what position Paris had on the use of facial recognition in public places, or biometric recognition systems to identify 'the race, sexual or religious orientation, religion, of an individual', all practices that have been authorised for law enforcement since early February.

The requests for access to documents and, after the refusal from the Council's secretariat, the appeal through the confirmatory application procedure were of no use: the responsible "working party", i.e. the committee of representatives for the national governments, did not change their minds: the alleged risks for national security were without further explanation declared too high. So, the most important document was sent, but with the main parts deleted.

It was of no use pointing out that the European Court of Justice (T-163/21) recalled in 2023 that 'in a system based on the principle of democratic legitimacy, co-legislators must be answerable for their actions to the public'. When a country, like France, demands not to publish its positions, in the name of a hypothetical risk to national security, even two years later and with a European regulation now approved, the institutions bow down. In the end, the reporters managed to get minutes of the secret meetings from other sources and could reveal who is responsible for the loopholes in the AI Act. But the success has a bitter aftertaste, because it demonstrates how the basic journalistic task to inform the public about legislation is blocked at the EU level by the very institutions, which are obliged to promote it.

The vdL text message mysteries

Perhaps even more absurd is the game of hide and seek surrounding the text messages that Commission President Ursula von der Leyen sent to the boss of the pharmaceutical company Pfizer when the Commission was negotiating the billion-euro contract for the delivery of the Covid-19 vaccine with the company.

A judge at the EU's General Court has called the Commission's arguments in the case brought by the New York Times and its journalist Matina Stevis-Gridneff over Ursula von der Leyen's text messages with Pfizer CEO Albert Bourla "bizarre". The Commission refuses to grant access to the text messages, in which von der Leyen reportedly negotiated a multi-billion-euro-vaccines deal with Bourla, claiming that they are insignificant. But at the case's hearing in November, the Commission's representative Paolo Stancanelli admitted that the Commission's legal service had not actually seen the messages, and did not know whether they still existed. That level of stonewalling caused audible exasperation even in the usually sober judges. A ruling in the case, which Follow the Money (FTM) has written about extensively, is expected later this year.

How the Commission give favours to Musk and Zuckerberg

Even when the public interest is extremely high and the citizens across the EU are eager to learn how the Commission deals with a frontal attack against the European laws, the commissioners keep the public in the dark. The case in point is the handling of the investigations against US social media networks. Meta CEO Mark Zuckerberg courted controversy with his Trump-appeasing announcement to scale down fact-checking on his platforms and fellow billionaire Elon Musk threw his weight behind far-right party AfD in the ongoing German election campaign – an endorsement amplified by X's algorithms, which allegedly give Musk's posts an extra boost.

This sounds like exactly the sort of issues the EU's Digital Services Act are meant to address. And yet, the Commission is accused of dragging its feet on enforcing the new law. What are the social media giants really telling Brussels behind closed doors? The Commission isn't telling us, claiming a "general presumption of non-disclosure" for DSA case files – and thus doing Musk and Zuckerberg a big favour.

Our friends at FTM found that hard to accept, and made a complaint to the European Ombudsman. FTM's Alexander Fanta believes that the Commission's blanket refusal to disclose anything about its investigations is not based on a valid legal precedent, but instead is "a self-serving way to deny public scrutiny". The ball is now in the Ombudsman's court

Anonymous lobbyists and millions of secret documents

This does not mean the public critique of stubborn secrecy is useless. Under pressure from the Ombudsman, the Parliament and the Court of Auditors, the Commission recently took a big step in the right direction and has made the influence of lobbyists on the EU's central authority much better visible. Since 4 December an additional 1100 Commission officials in management positions are obliged to publish their meetings with lobbyists of all kinds in the transparency register. Until then this obligation only applied to EU Commissioners, their cabinet members and Director-Generals (around 400 individuals). It is also no longer just required to publish that a meeting took place, but also the main arguments and conclusions must be made transparent as minutes.

But still the seemingly intended transparency is quite limited. At the same time the Commissioners and their president von der Leyen approved new rules of procedure for their work, which deliberately reduce the level of transparency and make it even more difficult for us to inform the media.

Not only do the Commissioners explicitly maintain that they may continue to keep secret the names of the lobbyists with whom they and their officials meet. In addition, Article 4 of the annex to these rules contains a list of topics on which they deny access to all related documents as a matter of principle. These include almost all core areas of the authority's tasks, such as:

?? checking whether the Member States are complying with EU laws and may have to be prosecuted for breach of the treaty;

?? ongoing court proceedings;

?? opinions of the Legal Service;

?? state aid cases;

?? procedures under the Digital Markets Act and Digital Services Act;

?? competition cases (including merger control procedures and cartel investigations);

?? trade defence cases, foreign subsidy cases, foreign direct investment cases, financial market supervision and resolution cases, and comparable administrative procedures;

?? European Anti-Fraud Office (OLAF) investigations;

?? and investigations of the Investigation and Disciplinary Office of the Commission.

In other words: whenever the Commission has to fulfil tasks that absolutely belong in the public discourse, citizens and journalists should not have the right to know what exactly the officials are doing in all these cases.

The rule-change has drawn the ire of transparency campaigners at environmental group Client Earth, which has announced it will challenge the Commission's new rules of procedure under the Aarhus Convention for access to environmental information.

"At a time when democracy and the rule of law are under threat worldwide, transparent decision-making is of utmost importance," ClientEarth lawyer Ilze Tralmaka said in a recent press release. "But instead of opening up, the European Commission has chosen to hide more and more information – in violation of its own laws."

The procedure under the Aarhus Convention gives the Commission the right to respond to ClientEarths's challenge within the next 22 weeks. Should the Commission refuse to respond to the concerns, the environmental NGO may sue the Commission in the Court of Justice of the European Union.

Silence from the Transparency Commissioner

Is the Commission not thereby fuelling the very prejudices and resentments that Europe's right-wing parties use to incite citizens against the EU? We would have liked to discuss this and many other questions with Commissioner Maro? ?ef?ovi?, who as Vice-President is responsible for the rules on transparency in the EU institutions. However, even the Commissioner responsible is apparently afraid of critical discourse.?

It was a classic journalistic disappointment: the interview transformed into a bureaucratic exercise. One day after the new European Commission took office on 1 December, we put in a request for an interview with Maro? ?ef?ovi? via his cabinet. Hopes were high for an enriching encounter with the long-time European Commissioner, newly responsible, among other things, for transparency. The Slovakian is known to have blazed the trail promoting the common transparency register 15 years ago, when José Manuel Barroso presided over the European Commission. But one month later and with no response, we were less optimistic. We contacted the cabinet again in January, hopeful European Commission staff might have made some New Year's resolutions. Still no answer. We turned to the press service, who did get things moving. But the face-to-face meeting soon turned into a written question-and-answer document. In the end, we received a six-page document with rather empty answers that were attributed not to the Commissioner, but to a spokesperson.

The episode demonstrates that the ladies and gentlemen at the top of the EU have not yet understood their duty to protect European democracy.

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