Law-making in Secret-2: Update

DemocraticThe European Union declares that it is a democratic institution; we have previously reported our disagreement in detail (see, for example, Themes-15: Democracy). Here is further evidence, drawn from EUObserver [1], which describes ‘trilogues’, the short-cut the EU makes to its ordinary process of making laws, ignoring its own treaties [2].

In most representative democracies legislation is proposed by the government or the voters’ representatives and the resulting bill will receive several readings (usually at least two) in the corresponding parliament. The EU finds this inconvenient.

The ordinary legislative procedure starts with a bill initiated by the European Commission. (see Article 294 TFEU, page 173; extracts in the footnote below [3]). The bill then goes back and forth through the European Parliament and the Council of Europe (which represents the member states). If agreement is not reached at the first reading then the bill, possibly amended, should be given a second reading.

In 2004 more than half of the Commission’s proposed acts went to a second reading; by 2014 the number of such referrals was zero. The value of a second (and sometimes a third) reading is that the discussion is opened more widely. However, the ordinary legislative process, which can be lengthy but transparent, is now by-passed by a series of ‘trilogues’.

Trilogue mtgRather than the lengthy and more transparent process, many bills are passed at first reading after closed-door negotiations between small groups of MEPs and national diplomats with an EU commission official as mediator.”

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.” (EUObserver)

This trilogue process can enable a bill to be passed on the first reading, without the inconvenience of a second public reading. However, short-cutting the ordinary legislative process reduces the amount of debate within the Union’s institutions and makes it more difficult for the public to learn what is going on. Lobbyists and other private interest groups have more ready access to the internal discussions. (When our Prime Minister attempts to shorten Parliamentary debate he is condemned by EU leaders although he is breaking no rules.)

The closed-door talks are off limits to the public. Minutes are usually not taken…. If any notes are taken, obtaining them is also difficult because the meetings do not formally exist.” (EUObserver)

The secretive discussions are now the more usual way that the EU reaches an agreement, or imposes its will on the Council and Parliament. Those who favour the trilogue process argue that it is more efficient. The EU favours ‘efficiency’ more highly than its treaty commitments to democracy and transparency.

Here is what Klaus Welle, Secretary-General of the Parliament, responded when asked by EUObserver to release records of trilogue discussions: “If intermediary positions adopted by the delegations or the institutions or suggestions they put forward over the course of the negotiations were made public before the completion of the legislative procedure, there would be a high and concrete risk that those positions and suggestions be used to undermine the provisional agreement.” (see Freedom from Information and Expensives-2, in which the European Ombudsman has her say).

Klaus Welle-2

These documents contain sensitive political information such as delegations’ positions during particularly difficult, complex and protracted negotiations,” wrote Ramon Chismol Ibanez, Director of Information and Knowledge Management at the Council (he sees no irony in his job title).

When EUobserver argued that following the logic of Welle and his colleagues the decision-making process would only become public after the proposed regulation had already been adopted, the Commission responded that there was no overriding public interest in providing access to such records.

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.”

If citizens, via the media, are not able to know the steps leading up to the final compromise text, they are not well-informed enough to tell their MEPs or national governments representing them in the council whether they would like the legislative proposal to be supportedIn other words: we citizens just have to remain in the dark and trust the institutions are doing the right thing.” (EUObserver)

However, it is possible that the situation may change in future; in another case the ECJ ruled that the Parliament must, in principle, give citizens access to trilogue-related documents if requested, even if the discussions are still ongoing. The EU judges said that openness in the legislative process would lead to greater trust among citizens.

ECJ rules-2

It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole,” said the court in its ruling.

We will see if the Commission decides to obey the ECJ ruling and follow the procedures described at length in their treaties, thereby favouring accountability and transparency above efficiency.


[1] EUObserver has published several articles on the theme of trilogues. The first was published on 4/04/2014: https://euobserver.com/investigations/123555, a second on 24/01/2017: https://euobserver.com/institutional/136630, a third on 19/04/2018: https://euobserver.com/institutional/141625 and the most recent on 14/08/2019: https://euobserver.com/institutional/145649. Each is worth reading in full for the detail. We reported on the second article in our post Law-making in Secret.

[2] From the Official Journal of the European Union (7/06/2016)

From Article 16 (Treaty on European Union, TEU):

8. The Council shall meet in public when it deliberates and votes on a draft legislative act.

[3] From Article 289 (Treaty on the Functioning of the European Union, TFEU page 172):

1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.

From Article 294 (TFEU page 173):

1. Where reference is made in the Treaties to the ordinary legislative procedure for the adoption of an act, the following procedure shall apply.
2. The Commission shall submit a proposal to the European Parliament and the Council.
First reading
3. The European Parliament shall adopt its position at first reading and communicate it to the Council.
Second reading
7. If, within three months of such communication, the European Parliament:
(c) proposes, by a majority of its component members, amendments to the Council’s position at first reading, the text thus amended shall be forwarded to the Council and to the Commission, which shall deliver an opinion on those amendments.


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