Wednesday

27th Oct 2021

Interview

EU has 'zero incentive' to break open 'trilogue' deals

  • Protesters took to the streets last March in several EU cities, including Vienna, to call on MEPs to reject article 13 from the new copyright directive (Photo: Michael Gubi)

It does not happen often that EU directives attract so much public attention that it leads to protests on the streets.

Yet this is what happened in Berlin and other European cities last March, when protesters called on the European Parliament to reject the EU's copyright reform.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

  • Alexander Hoppe in Brussels, in 2018 (Photo: Peter Teffer)

Specifically, they wanted MEPs to delete article 13 from the bill, because they feared it would lead to internet companies installing upload filters.

But the protest came "way too late" said German researcher Alexander Hoppe.

By March, negotiators from the EU institutions - European Parliament, European Commission, and Council of the EU (representing national governments) - had already agreed to a compromise deal.

They did so behind closed doors in the so-called trilogue process, which in recent years has become the default way of adopting legislation in the EU.

In most cases, the commission proposes bills, which then need approval by both parliament and council. Trilogues were introduced to prevent legislative files from endlessly going back and forth between parliament and council.

Hoppe spent the last three years doing a PhD on trilogues at the University of Utrecht in the Netherlands, where he spoke to EUobserver on Tuesday (13 August).

"I hardly remember any other file that has caused so much public upheaval as the copyright directive. There were actual protests. But it was simply too late. It happened after there was agreement in trilogues," said Hoppe.

"This trilogue process takes so much resources and time, and it's so difficult to find any compromise that work for the institutions, that once there is an agreement, the incentives for any institution to change something are zero," he said.

The impression that MEPs could have just deleted article 13 was wrong, he added, because if they had done so, that would have thrown the negotiations back to the starting point.

"This is a very important norm or principle that everybody follows: nothing is agreed until everything is agreed," said Hoppe.

He interviewed more than 40 people who had been involved in trilogue negotiations, for four different pieces of EU legislation.

"Not everybody agreed to talk. Some openly said: 'I don't want to talk about trilogues, that's too sensitive for me.' But it was relatively easy to set up the interviews - easier than I expected," he noted.

Mysterious trilogues

Trilogues are often criticised for being shrouded in mystery.

A key element is the so-called four column document, which is a table listing the views of the EU institutions per paragraph of the proposed directive or regulation - with the fourth reserved for possible compromise amendments or negotiations instructions.

In 2016, the Court of Justice of the EU ruled that these documents should be made public if citizens asked for them via an access to documents request.

But Hoppe acquired them through other means.

"From experience, it just takes a lot of time. Time that I did not necessarily want to invest in that," he said.

He managed to convince sources within the institutions to share the papers with them.

Interviewees actually told him that the informal ways of getting documents leaked seemed to work well.

"There is a very dense information network in Brussels," he said.

"If you are in Brussels ... if you want to follow what happens, there are ways of doing it," he added.

In fact, sometimes lobby organisations will have better information on bilateral discussions related to trilogues than some of the negotiators, he said.

"We even heard of cases that institutional actors got the information on what happened in bilateral talks via lobby groups or interest representation groups. In these cases, these lobby groups were better informed on what was going on than actors in the trilogue," he explained.

Waiting for the database

Of course, he said, there should be more transparency, and EU institutions should follow up on their 2016 promise to have a joint database with all trilogue-related documents.

"We need a central database for all the information on trilogues. Even we researchers struggle finding the information on single files," he said.

Spokespersons for the parliament and council told EUobserver on Tuesday that work on the central database, which would cover the whole legislative process, was ongoing. A commission spokeswoman confirmed this on Wednesday, after publication of this article.

A parliament spokeswoman said the three EU institutions have agreed on the content of what should be in the database.

"Discussions however still continue concerning the most suitable solutions for the technical implementation of the portal, on the institution or body responsible for the technical development, as well as on its governance," she said.

All spokespeople were unable to give an official starting date.

Although the joint database is still not online, Hoppe stressed that in the past 20 years, the EU has already opened up a lot.

"Yet the perception of the transparency problem has not changed. That [publishing documents] seems not to be the solution to what we call the transparency problem of the EU," he said.

He said national parliaments should also become more involved in following trilogue negotiations.

Personality matters

An important realisation to Hoppe was that the success of trilogue talks depended in part on the individual personalities of the negotiators.

If they managed to create an atmosphere of trust amongst themselves, they would seem more willing to compromise.

One of the case studies Hoppe investigated, was the proposal for a reformed posted workers directive.

"In these negotiations, at one point all the negotiators - except for one or two parliamentary actors who didn't play a big role - were female," said Hoppe.

"In more or less every interview, this came up. Everybody said it was helpful, nice for the atmosphere that the whole file was negotiated by women of roughly the same age group. There was no macho theatre. That seemed to have made a difference," he said.

Getting secret EU trilogue documents: a case study

On Thursday, the European Parliament will vote on a political deal on organic farming, following 19 months of behind-closed-doors negotiations. EUobserver here details a five-month odyssey to get access to the secret documents that led to the deal.

Interview

Academic to probe EU's secret law-making

A German PhD candidate has recently started conducting interviews about how the EU's behind-closed-doors 'trilogues' actually work. "Now the fun work starts," he says.

Secret EU law making takes over Brussels

The public was denied a second round of scrutiny on every EU law passed last year, figures obtained by this website show. Transparency campaigners are livid.

Catalan MEPs lose immunity, slam 'political persecution'

Catalan separatist MEPs Carles Puigdemont, Toni Comín and Clara Ponsatí lost their parliamentary immunity - a result they have hailed as a "political victory" for bringing the conflict between Catalonia and Spain closer to the heart of Europe.

12-month Future EU Conference is 'impossible', expert warns

The debate about the much-delayed Conference on the Future of Europe so far has been locked in endless institutional infighting over who should lead the event - lowering the expectations about what can be achieved in the coming months.

MEPs chide Portugal and Council in EU prosecutor dispute

The Belgian and Bulgarian prosecutors who were appointed had also not been the experts' first choice. Belgian prosecutor Jean-Michel Verelst has challenged the council's decision at the European Court of Justice.

Stakeholders' Highlights

  1. Nordic Council of MinistersNew report reveals bad environmental habits
  2. Nordic Council of MinistersImproving the integration of young refugees
  3. Nordic Council of MinistersNATO Secretary General guest at the Session of the Nordic Council
  4. Nordic Council of MinistersCan you love whoever you want in care homes?
  5. Nordic Council of MinistersNineteen demands by Nordic young people to save biodiversity
  6. Nordic Council of MinistersSustainable public procurement is an effective way to achieve global goals

Latest News

  1. How to break the political deadlock on migration
  2. Hedegaard on the hazards of stalling climate action
  3. Belarus exiles in EU fear regime-linked murderers
  4. No place for Polish 'war' rhetoric, Commission says
  5. Nine countries oppose EU gas market reform
  6. EU-UK impasse on top court in post-Brexit customs talks
  7. Erdoğan orders out US and EU ambassadors
  8. EU banks play 'major role' in deforestation, report finds

Join EUobserver

Support quality EU news

Join us