Emily O’Reilly, the European Ombudsman, presented the event on transparent law-making, which would focus on trilogues. She noted a key part of the democratic society is the transparency of the legislative process, meaning that all representatives can be held accountable for the decisions they take. It allows for citizens to be part of the legislative process and is in line with principles that need to be openly consented to.
Her office is now exploring how this could be applied further to the legislative process in the European Union, and particularly in the area of trilogues. The EU institutions in general achieve high standards in transparency and ethics, but they have decided to open this enquiry as part of a mapping exercise amid concerns expressed across many sectors about the lack of transparency in the process. As there will be greater scrutiny and awareness of EU law-making, there are also going to be more transparency complaints in the future.
The role of the European Ombudsman is to assist the institutions in being as transparent as possible. This is outlined under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Being able access to documents can have benefits for citizens in the democratic legal order, as openness strengthens democracy by allowing citizens to follow the process of decision-making. This allows them to scrutinise decisions in a specific legislative act and to hold their representatives accountable in this process.
This includes knowledge about both the decisions taken and their considerations in the legislative process. This, she said, is even more important in the EU’s process, where people feel particularly far away from the decisions. An Advocate-General of the Court of Justice of the European Union has also said that law-making is an activity that can only occur through the use of a procedure that is public in nature and therefore transparent.
The European Commission published its Better Regulation Agenda in May, which looks at the best available evidence to make the legislative process more effective. Indeed, during trilogues deals are made without taking into account the direct and indirect effects that the new amendments may trigger. However, they also have to be very mindful of protecting the legislative process and remembering that the EU is a representative democracy; representatives are given the responsibility to negotiate with each other on the content of regulation, and so should be allow to do their job. It is not the essence of representative democracy to have debate continually interrupted by external actors.
The European Ombudsman can only make recommendations, and so it is up to the three institutions to determine to what extent they make documents related to the trilogues available. She encouraged the efforts being made to reach a new interinstitutional agreement on better regulation, and noted that the European Ombudsman will be exploring the emerging European citizenship, for which transparency and democratic trust is central.
As for this particular enquiry into trilogues, they are still in the early days. As previously said, this is a mapping exercise to get a full overview of the situation. This will require genuine and constructive input from the three institutions, otherwise the Ombudsman will not be able to offer any constructive recommendations for improvements, and she hoped to see many responses to the public consultation that will be launched. This enquiry does not seek full disclosure, as this is neither required by the law nor would it be helpful, and does not seek to shape the way that trilogues are organised, which is up to the MEPs, Member States and Commission to decide.
The Ombudsman is hoping to learn about:
- what stage of the process certain documents could be released, if at all;
- whether increased transparency would be harmful and only help well-financed lobbyists;
- whether it could bring a halt to the process;
- whether it is possible to give useful advice because it is an ad hoc process;
- whether the lack of transparency is more apparent than real because documents are separately published, and perhaps a single online portal would be better to access documents;
- the difference that technology can make, such as application recently launched by the European Data Protection Supervisor.
These are only some of the possible questions to be asked.
Ms O’Reilly hoped that they would agree that there could be improvements in the trilogue process. In the end this is about public trust, which is even more important than ever.
Malcolm Harbour, former MEP and IMCO Chair, Senior Advisor at the European Policy Centre, said that as a person who has been in trilogue discussions, they can certainly be frustrating but are important for every piece of legislation that is passed. They have become even more important since the clustering of first reading agreements that has taken place at the EU level.
Trilogues are particularly peculiar because they do not involves politicians negotiating with politicians, but rather politicians negotiating with diplomats (in the Council). The dynamic of the trilogue is about trying to understand the pressure that the Parliament is putting on the Member States and its justification for this. There is no immediate feedback from this.
The Commission is present to help a compromise to be reached. Being the chairman of the trialogue is very different to that of a rapporteur, he explained, as the role is to sustain Parliament’s position and to deploy the political resources available. In this role, he had to understand what was not understood by the Member States, what the problems were, and how they talk to the Commission to build with the Member States.
James Crisp, EurActiv, said that people often think that this process is quite ad hoc, and wondered what Mr Harbour felt about this.
Malcolm Harbour, former MEP and IMCO Chair, disagreed, saying that these are quite formal negotiations and that Parliament also has to agree to the outcome under its rules of procedure. The rapporteur speaks to the committee coordinators to explain why they are ready to open negotiations and they decide about what progress could be made without undermining the Parliament’s fundamental requirements.
Council makes the offer to the Parliament, and they have a calendar of dates in order to prepare for the trilogues as well as the associated provisions. These meetings are preceded by technical meetings because there are always a lot of technical issues that need to be resolved. Member States often have different views on how things should be worded, which is not an issue of political principles. These technical issues are normally the first to be signed off and the participants agree on the issues for discussion in that particular trilogue.
This, he said, is a very well-organised process and people who think otherwise have not had the internal experience. The importanct discussion is about which documents are relevant and how this can be made more transparent.
James Crisp, EurActiv, asked the next speaker how the whole trilogue process has evolved to where it currently is.
Alberto Alemanno, Jean Monnet Professor of EU Law at HEC Paris and Global Clinical Professor at NYU School of Law, said that the informalities surrounding trilogues makes the task of reconstructing their origin particularly difficult. Trilogues arise out of the need to create parallel informal dialogues between the three institutions. They have to agree, and so they decide to create an inter-institutional forum. Through this they have created the channels for participation and formalised the process to reduce transaction costs and produced the birth of this particular agreement. The idea was that the Council may adopt what has been amended by the Parliament in one go, but this created a space in which the institutions wanted to discuss the content.
Around 78% of legislation is adopted through trilogues at the end of the first reading, so they play a crucial role in this increase in the first reading solutions. People can no longer say that trilogues do not exist, as formal documents refer to trilogues and even the Court of Justice has examined the right of the Commission to withdraw proposals during this period. However, the institutions need to decide how these are covered and what kind of budget is set aside for them.
What is even more interesting is that one can see the rise of new forms of trilogues. Some people have called for a quadrilogue whereby the Court of Justice could propose legislation, something which is being seen in the ongoing reform of the Court of Justice. One can also see new forms of inter-institutional panels, such as the ad hoc panel on the impact assessment of legislation. It is not clear how these will be accommodated into the practice of trilogues.
They should not be thinking about trilogues as a monolith. While there has certainly been institutionalisation, these can still vary. This makes the definition of the phenomenon even more difficult to capture.