Secret EU lawmaking: the triumph of the trilogues
By Benjamin Fox
The setting could not be less spectacular – one of the more nondescript rooms in the European Parliament's glass towers overlooking Place Luxembourg in Brussels, where a handful of officials gather with armfuls of papers.
At intervals, members of the Parliament's catering staff silently walk round the room offering tea and coffee. Unless you were involved, you wouldn't know that the meeting – one of around 1,000 so-called 'trilogue' meetings to take place in 2013 – was actually happening.
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At this particular gathering to discuss plans to re-write the EU's accounting directive in March 2013, MEPs from the Parliament's legal affairs committee – Klaus Lehne, Arlene McCarthy, Eva Lichtenberger, Alexandra Thein and Saj Karim – made a breakthrough.
They secured rules that will shine a light on the payments made to governments by companies working in the controversial extractive industries – rules that should help prevent corruption and dodgy dealing between companies and governments.
An Irish government official, whose country has been tasked with leading the talks (because Ireland held the rotating EU presidency at the time), agreed that, without exception, all payments over €100,000 must be publicly disclosed. This will apply to every individual project or contract undertaken by a company.
The new reporting requirements will mark a sea-change in how the industry is regulated yet the trilogue meeting where it happened remains a closed process.
Search for any mention of trilogues in the EU treaties and you will draw a blank.
This is because despite being an accepted part of the lawmaking landscape, in legal terms trilogues don't exist.
All trilogue meetings are informal and the timing of the meetings are not known to most MEPs, let alone the ordinary public. There are no formal minutes taken. Some are over within a few minutes. Others can go on all day and well into the night.
The last trilogue on the single resolution mechanism (SRM), the final, and arguably most controversial piece of banking union legislation, lasted 16 hours through the night on 19 March as lawmakers sought (successfully) to close a deal in time for the end of the parliamentary term.
Despite the sense of intrigue that should surround a lawmaking process that few people are aware is happening, attending the average trilogue meeting would be a perfect cure for insomniacs, as civil servants and politicians drone through a bill line by line, article by article.
But they matter. If the EU's bi-monthly leaders' summits are the glamorous (in the loosest sense of the word) side of the EU, the trilogue meetings are the main engine driving the sausage factory that churns out EU laws in Brussels.
The triumph of the trilogue
In terms of numbers, the volume of legislation does not appear to have changed much in the past two legislatures. MEPs and ministers adopted a total of 447 laws in the 2004-9 parliament. By November 2013, politicians had signed off on 395 files and, even with a wild flurry of activity as they seek to conclude as much legislation as possible before May's elections, the total number of files is likely to be around 500.
But what has changed is the way the laws are agreed.
The formal structure for breaking the impasse between the institutions mentioned in the treaties is the conciliation committee.
The conciliation committee, which also features MEPs together with European Commission and EU Council officials, but which is chaired by one of the parliament's vice-presidents, kicks in at the final stage of the lawmaking process – the third reading.
But in the post-Lisbon treaty era, in which lawmakers are actively encouraged to go faster in agreeing legislation, the conciliation process has been almost eliminated in recent years. In the 1999-2004 parliament, 89 of the 403 pieces of EU law were completed after conciliation. In the first half of the current parliament term, the figure was down to a mere 4 percent.
Around 80 percent of EU laws are now agreed at first reading, with research by the parliament estimating that the average law agreed at first reading takes 14.4 months from start to finish.
The trilogue process, which starts as soon as the institutions agree an initial position on a law, is designed to speed the process up.
Set up to broker agreements between MEPs and ministers, the number of trilogue attendees varies from file to file but the format remains the same. As a rule the rapporteur, shadow rapporteurs from other political groups and committee chair, comprise the Parliament's negotiating team on a law.
Meanwhile, at other seats around the table are officials from the European Commission and either the minister or senior civil servants from the country holding the EU Council presidency.
The participants are invariably armed with four-columned documents representing the starting position of the three institutions, with the fourth column left for the compromise text that is meant to emerge.
Though they might not say so publicly, most MEPs and their staff, who frequently find themselves at the heart of lawmaking, enjoy the experience. For professional politicos, the novelty of piloting a piece of law through from the commission proposal to the end result adopted by MEPs and ministers takes a while to wear off.
Despite the ostensibly dubious health and social benefits of sitting in a poorly lit room for hours on end haggling with men and women in grey suits over the EU's milk quotas, many enjoy the sense of "being where the action is".
Perhaps they have to. The staff of one MEP reveal that their boss attended over 40 trilogues in 2013. On average, around 25 separate trilogue meetings take place each week that the parliament is sitting. Tough work if you get it.
But some claim that the parliament goes into the average trilogue at an immediate disadvantage. The commission, they say, often sees itself not just as a broker between the two legislative bodies, but depending on which approach suits it best, decides whether it wants to behave like a "political executive" or as an "impartial civil service".
French socialist Liem Hoang Ngoc, who locked swords with the commission over plans to increase the independence and transparency of the EU's statistical agency Eurostat, says that the EU executive tried to appoint itself as "judge and jury" on the bill.
"It used the full extent of its powers, including threatening to withdraw the legislation and requesting a unanimity vote at the council, to prevent the council from signing off on the agreement," he says.
"The civil servants we have been dealing with over the last few months seem to have some difficulties in grasping the concept of representative democracy."
In one sense, the commission has an inbuilt advantage. As the EU's civil service, it is the one of the three institutions with the most permanence. Both MEPs and government ministers have to seek re-election. The rotating council presidencies only last six months.
"The Commission is supposed to be the facilitator of the trilogues, but in reality it sees itself more and more as the ‘ruler’", says Daniel Gueguen, a seasoned Brussels lobbyist and expert in business of EU law-making.
The commission also has two legal trump cards: it can withdraw its proposal, and can insist that legislation can only be adopted with the unanimous support of council.
It also has an inbuilt expertise advantage from having more technical staff and experts than the other institutions.
"The legal affairs committee is criminally understaffed," one parliament official quips. As a result, he says, it was the EU executive which took the lead in the accounting directive negotiations, drafting compromises.
"It was impossible for the parliament's committee to match them so we asked them to propose possible compromises simply because they had the resources," the official adds. .
"Legislation in a black box"
Others complain that democracy and transparency are the losers. The two points at which MEPs vote for laws, in committee before and at the end of the trilogue process, and the final vote among all 751 deputies, are both in public, but this only camouflages the fact that most of the negotiations are held behind closed doors with no public access.
For their part, national parliaments complain that the process makes it even tougher for them to influence the process. Back in 2009, a report by the UK parliament's EU committee noted that the use of informal trilogues "makes it harder for national parliaments to conduct effective scrutiny of EU legislation".
Meanwhile, a report published by the same committee last month describes them as "something of a 'black box' for those not directly involved in them".
During an evidence session with two MEPs, Elizabeth Symons, a member of the British upper house, remarked: "We have gone through this enormously complex edifice and at every point my heart sinks as I recognise the dilution of the relationship between the electors and the decision-takers."
And it is not hard to have some sympathy with this stance.
Only a handful of committee members are involved in a trilogue process, and the deal that emerges at the end invariably bears little resemblance to the documents agreed by lawmakers in the parliament and council.
Meanwhile, Gueguen argues that there are other unwelcome side-effects from law-making by trilogue.
"While trilogues accelerate the decision-making process, they do so through the lowest common denominator. As a result, all the key issues get pushed into secondary legislation (delegated and implementing acts), where the procedures are equally opaque and complex."
Democracy in danger?
For one parliament official, trilogues are "an arrangement that has evolved in a way that isn't favourable to the parliament. It just simply gives way too much power to the council and commission".
"The commission is able to go to the [council’s] Coreper working group meetings, the EP is not there, so you clearly have the council and commission on one side and the parliament on the other," he says, adding that "the parliament's answer to this is simply that the council and commission don't sit next to each other in the trilogues".
"Members here tend to get institutionalised," he says. "They take pride in building a network, of meeting ministers and commissioners, and so there is this culture of being nice to each other."
But this is not a view shared by everybody.
In a report on the effects of the Lisbon treaty on the power dynamics between the institutions, Portuguese centre-right MEP Paulo Rangel says that "the commission has, in practice, lost some of its political influences within the EU institutional architecture".
Meanwhile, British centre-left MEP Arlene McCarthy, a former chair of the assembly's internal market committee and rapporteur on the bloc's bank bonus legislation, is more positive about the process.
"The parliament punches its weight much more now than it used to and where it works as a team," she says, "particularly if we go into a negotiation with four or five key priorities and have a clear hierarchy of these and how to get them".
Improving the system
"At the end of the day political decisions in this parliament are not taken by negotiations because they've all got to go back to the political groups," says McCarthy, who puts the burden of responsibility on shadow rapporteurs to make sure that colleagues in their political group know how negotiations are going.
McCarthy also has little sympathy for deputies who complain that they have little idea on what they are being asked to vote for.
"MEPs should know what's going on from their shadow rapporteur," she adds, commenting that "there is no reason why you can't have people informed on the main issues."
"It's largely up to the shadows to take a mandate from their group and to get support from their group because at the end they've got to sell it to their group before the final vote."
The parliament's internal rules also require that committees are regularly updated on the progress of negotiations. Rule 70, agreed in 2013, states that "documents reflecting the outcome of the last trilogue shall be made available to the committee".
McCarthy also questions the idea that MEPs should dot every i and cross every t, arguing that they should focus instead on the main political objectives of a bill.
"We shouldn't spend so much time on technical detail. Our job is to set a political framework. The political priorities are what we are good at," she argues.
The public interest test
It would be easy to dismiss the trilogue process as secretive and undemocratic, and it is certainly an oddity that the EU treaties contain not a single mention of the mechanism which is now a driving force for the vast majority of the bloc's new laws.
Moreover, for institutions which constantly trumpet how transparent they are, it is hard to justify the secrecy that surrounds the trilogue process. It is not as if lobbyists, NGOs and journalists do not get access to the decisions that are made. One commission official comments that it is common practice for parliament officials to leak the outcome of trilogues to sympathetic lobbyists within hours of their conclusion.
An old saying, much beloved of political hacks, is that the process of making laws and sausages are things which nobody wants to really know about.
Moreover, if trilogue meetings and their minutes were opened up to the public, lawmakers would just find another way of negotiating in secret.
In truth, the trilogue meetings themselves are just the tip of the iceberg when it comes to secret lawmaking. The papers held by one official working on the accounting directive detail a plethora of meetings with officials and so-called 'non-papers' with offers and counter offers of compromise texts bouncing between the institutions.
But that is not to say that improvements to the transparency and accountability of the system could not be made.
For his part, Dick Roche, Ireland's former Europe minister, admits to having "a feeling of unease" about the democratic implications of lawmaking by trilogue, but describes the process as "an understandable but pragmatic response to enormous pressure".
To McCarthy, what matters most is that parliament, and the other EU institutions, are able to assess whether good law has been made. "We should pay more attention to the transposition of law," she states. "We have to be able to demonstrate that we legislated in the public interest."