The system of informal legislative negotiations between the European Parliament, the Council and the Commission now exist for about two decades. While so-called 'trilogues' aim to enhance the efficiency of the legislative process, their relative lack of transparency has led them to be criticised for undermining the possibilities of member state parliaments and citizens to meaningfully oversee, debate and participate in EU legislative decision making. We explore to which extent efforts to address these shortcomings have been successful, focussing on the oversight role of administrative and judicial actors, in particular the European Ombudsman and the Court of Justice. We argue that both the institutional structures and agendas of these actors influence the way they confront the question of trilogue transparency. Whereas the Court's focus is on safeguarding EU constitutional principles relating to democracy, the Ombudsman increasingly takes an expansive view of the concept of maladministration.

Legal advisers working in the institutions of the European Union exercise significant power, but very little is known about their work. Notwithstanding the handful of cases where legal matters find their way into the news, legal advice remains invisible in EU policy making. For more than ten years Päivi Leino-Sandberg was a part of the invisible community of EU legal advisers, and participated in the exercise of their power. In this book, she shares her insights about how law and lawyers work in the EU institutions, and what their role and impact is on EU decisions from within the decision-making structure. She draws on interviews with over sixty EU lawyers and policymakers: legal experts who interpret the Treaties within the Institutions, draft legislation and defend the Institutions before the EU Court. Telling the true stories behind key negotiations, this book explores the interplay and tensions between legal requirements and political ambitions.

In the final days of 2020, the European Union and the United Kingdom concluded a Trade and Cooperation Agreement (TCA) covering a broad range of policy areas, including cooperation of law enforcement authorities and social security systems. The EU-UK TCA is unique as concerns the circumstances of its negotiation and adoption, as well as its substance. However, contrary to the argument of the EU institutions, the agreement will have broad implications for the understanding of the EU's external competence and Member States' ability to act in areas that are national competence and rely on national budgets. We are critical of the legitimacy of the TCA's conclusion process, consider that the lack of a deep constitutional analysis of the consequences of EU-only conclusion of the TCA, and of the TCA itself, are problematic, and believe that the choices made are likely to create difficulties for the implementation and enforcement of the agreement.

Trilogues represent a decisive stage in the European Union (EU) legislative process and often settle the substantive content of EU legislation. During trilogues, negotiations move fast and new solutions are actively identified by the negotiators. The (lack of) transparency of trilogues has been repeatedly criticised in recent years, yet the EU institutions have defended their “space to think”. Relying on a set of interviews with trilogue participants, this paper mirrors the institutional practices in the final stages of EU law-making against the requirements of openness in the EU Treaties, which aim to strengthen “democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act”. The paper argues that, despite noble proclamations, the EU’s legislative practices are characterised by institutional discretion and the lack enforcement of transparency requirements. The paper describes how trilogues are conducted and how questions involving risk management and technically complex issues are assessed in this process. Greater transparency would also help to ensure that risks and alternatives are properly assessed and would thus contribute to better-quality risk regulation in the EU.

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