Justin Greenwood, Gijs Jan Brandsma, Ariadna Ripoll Servent and Christilla Roederer-Rynning / Oct 2020
Advocacy plays a systemic role in all political systems, but more so in the EU because of the absence of an active civil society. Instead, organised civil society plays the role of a surrogate for an otherwise missing citizenry, bringing technical and political information to EU institutions. Almost all EU legislation is now made at first reading between the Parliament and the Council, mostly prepared in secluded ‘trilogues’. This presents a challenge for a surrogate democracy in an increasing search of legitimacy, based around input from organised civil society.
Trilogues – a 3-way dialogue between EU institutions ahead of bicameral legislative agreements – have no mention in the Treaties. They originated as facilitating mechanisms to achieve First Reading Agreements, which were foreseen in the 1997 Treaty of Amsterdam, addressing the cumbersome (and now largely disused) Conciliation Procedure. In their original format, they were driven by bilateral, informal and secluded talks between the Presidency and the EP Rapporteur, ‘pre-cooking’ to such an extent that trilogue discussion became a rehearsed theatre. This created obvious problems for transparency and accountability. And First Reading Agreements are themselves problematic, because issues fail to get the proper airing which a second reading provides for.
There are now several layers of trilogues: typically around four political trilogues, held over an average of 11 months, nudged along by ‘technical’ trilogues at the more administrative level, which are themselves assisted by inter-institutional inter-secretariat discussions.
EU institutions have progressively responded to these concerns by proceduralising their involvement in trilogues, based in the first instance around oversight and the pluralisation of decision-making actors, and in the EP some forms of transparency. Nonetheless, the Ombudsman’s own-initiative report in 2016 remained highly critical of transparency arrangements, boosted by the landmark 2018 De Capitani case in the European Court of Justice. The European Parliament has rules for participation codified in its Rules of Procedure, whilst the Council has a series of informal norms, based around the relationship between the Presidency and member-states. But still the basic properties of trilogues remain highly problematic for a democracy: they are informal institutions, and secluded. Access to what goes on depends entirely upon the quality of networks by organised advocates, but even those lose track of what goes on, particularly in the fast pace of the latter stages of trilogue agreements. And when the key Trilogue participants present their agreement to their respective institutions, it is mainly done so as a fait accompli, despite the recent addition to the EP Rules of Procedure allowing the Plenary to amend components of the agreement.
The Ombudsman’s report disappointed many transparency advocates, in advocating retrospective transparency of trilogue documentation. She had tried to balance transparency with ‘the space to think’ for EU institutions, and recommended an inter-institutional database of trilogue documents, particularly based around the ‘4 column’ documents (internally) produced to record the progressive composite agreements. The institutions agreed in outline but have failed to come up with anything concrete. A bigger challenge for them was the De Capitani ruling, which ruled that trilogues were subject to the same transparency requirements as the rest of the legislative process, and which required the publication of trilogue documents as they emerged. Once more, nothing has happened; all EU institutions like them, because they are an efficient form of agreement and facilitate early legislative agreements, and have therefore dragged their feet over reform. They argue that further transparency would simply have the effect of displacing discussions into even more informal venues, at the cost of EU democracy.
The EP has developed some transparency norms over the years. Its negotiating position (developed in the EP Committees) is public, and subject to approval by the plenary. The team of Rapporteurs and Shadow Rapporteurs are required to report back on the progress of political trilogues, but many such reports are either perfunctory or even non-existent. The EP has progressively increased its trilogue delegation, with Shadow Rapporteurs and observers from their teams, comprised of assistants and political party fonctionnaires. The Council also has norms of Presidency report-backs, although these too are perfunctory, rarely create discussion, and at the level of Coreper 2 only in the Working Groups of the Council. The Presidency’s approach to negotiations is set by a ‘mandate’ created in COREPER, and for more sensitive matters in the form of a ‘General Approach’ formulated at Ministerial level. The Commission too has a series of rules for institutional participation, based on the reconciliation of departments with different interests, and it too is engaging on a series of reforms based around the Executive Vice President’s Better Regulation task group, itself partly displaced by the Covid crisis. But despite these, the beating heart of trilogues remains the ‘pre-cooking’ between the Presidency and Rapporteur, not always reported back to those who oversee them.
Organised advocates – lobbyists – all seek further transparency despite being able to make trilogues permeable through their networks; even the smallest of NGOs can quickly find out what’s going on if they have a Brussels office. Yet reform now seems stalled and is likely to have been displaced by Covid. Most importantly, they remain informal institutions, in that they depend on formal endorsement by the respective bicameral institutions. Their permeability is no substitute for formal and functioning transparency, a pre-requisite to the drive for a participatory democracy that the EU has sought to achieve in the hope of further legitimacy amongst EU civil society.
The four authors collaborated on a research project ‘Inside the Black Box of Trilogues’ from 2016-2019, funded by the national research councils of Germany, the Netherlands, and the United Kingdom.