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Opening up secret trilogue decision-making awaits court decision
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On 15 April 2015 Emilio de Capitani (Freegroup, link) applied to the European Parliament for documents summarising negotiations between the Council of the European Union and the European Parliament in secret trilogue meetings, namely:

"multicolumn tables (describing the Commission proposal, the Parliamentary Committee orientation, the Council internal bodies suggested amendments and, if existing, suggested draft compromises) submitted to trilogues for the current pending co-decision procedures"

The parliament refused access largely on the grounds that the multi-column documents in its possession had been produced by the Council and therefore could not be released. They also claimed that there are a large number of such documents - exactly!

Having been refused access to the requested documents Emilio de Capitani took the case to the Court of Justice of the European Union (CJEU) where the case is pending.

See: Challenge to secrecy of EU decision-making: How the EU “legislative triangle” is becoming a “Bermuda, triangle" (EASFJ, link)

The EU Ombudsman Inquiry

In July 2016 the European Ombudsman completed an Own Initiative Inquiry on the transparency of trilogues vis-a-vis the Council, the Commission and the European Parliament. Statewatch said that this was: A missed opportunity to open up secret trilogue decision-making in the EU (July 2016).

The Ombudsman did not find grounds for maladministration but sent eight further "proposals" and asked for replies by 15 December. The Council of the European Union replied on 7 December 2016: Decision of the European Ombudsman on Own-initiative inquiry OI/8/2015/FOR concerning transparency of trilogues (LIMITE doc no: 15107-16, pdf).

The Council defends its position on trilogues and the "Space to think"

In its response to the Ombudsman the Council asserts that "trilogues" were introduced by the Amsterdam Treaty in 1999 and states that its position is:

"It is for the co-legislators to decide whether to seek an agreement at this stage or to resort to the full range of the legislative procedure (second and third readings). It is also for them to decide if and when in this process to engage in negotiations."

Trilogues are closed meetings of the Council of the European Union and the European Parliament with the European Commission in attendance. The "co-legislators" are Council and the parliament. During its meetings none of the document are made public - especially the "four-column" documents which summarise the state of play. In addition to formal trilogue meetings there are also "informal" trilogues and so-called "technical" trilogues attended only by the main Rapporteur from the parliament and excluding the Shadow Rapporteurs from the political groups in the parliament.

The Ombudsman concluded that "four-column" documents should only be made public after the trilogues are completed. Once agreed in trilogues the final text is referred back to the parliament for formal adoption - in practice the parliament is not allowed to change a dot or comma when agreeing on new measures in its plenary sessions.

It is noteworthy that the Council makes no reference to Article 15 of the Lisbon Treaty which has not yet been transposed - the Lisbon Treaty was adopted in December 2009. This Article says that all documents concerning legislative procedures should be made public.

Thus it is no surprise that the Council welcomes the Ombudsman's finding defending the "space to think" in secret:

"the Council welcomes that you acknowledge that the Institutions need a space for exchange and explanation in a spirit of trust and confidence. Any measure aimed at enhancing the transparency of the trilogue process should therefore avoid making the process too rigid and formal..."

The Council's response says that the three institutions are discussing:

"the publicity of calendars, agendas, and lists of participants. We will do this while at the same time recalling, in line with our observations the opening of the inquiry, that these proposals concern the organisation of the legislative process, which is an institutional prerogative of the co-legislators." [emphasis added]

The publication of a calendar of meetings and agendas is normal practice in the Council except when it comes to trilogues.

They conclude by saying:

"Finally, your two remaining proposals, namely the identification and publication of four-column tables and the publication of lists of documents tabled during trilogue negotiations, touch on matters currently before the Court of Justice. The Council will therefore await the Court’s decision before deciding which steps to take on their implementation." [emphasis added]

This is a reference to Emilio de Capitani's case before the Court of Justice of the European Union (CJEU).

Background: Statewatch was amongst the first to criticise secret trilogues:

Secret trilogues and the democratic deficit (September 2007, pdf)
European Parliament: Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf)
Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf)
A missed opportunity to open up secret trilogue decision-making in the EU (July 2016).

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