In search of transparency for EU law-making: Trilogues on the cusp of dawn

Abstract

Who controls the information that is part of the EU legislative processes and is the process as a whole under control? This article explores the legal framework and the applicability of that framework to evolving informal practices by the three key institutions (EP, Council, Commission) involved in the EU legislative process. Given the legislative deadlock on an updated transparency regulation, there are challenges relating to the opacity of Council and Member State positions, legal advice and the so-called four-column documents, which are used to map out progress in interinstitutional negotiations. Currently, the institutions themselves keep control and adopt the relevant rules as a matter of internal (or interinstitutional) working arrangements. We argue that when the institutions exercise legislative functions they are in fact exercising highly political functions that define the fundamental policy choices of the Union’s action. This requires not only passive transparency in the form of access to documents but also proactive transparency by the institutions themselves.

Transparency and the efficiency of multi-actor decision-making processes: an empirical analysis of 244 decisions in the European Union

“…Others have indicated that there are plenty of normative reasons to increase the transparency of decision-making, including in the EU case (e.g. Curtin and Leino, 2017; Hillebrandt and Novák, 2016). This study suggests that the normative argument that transparency is undesirable because it slows down decision-making processes does not have an empirical basis.…”

“…Hagemann and Franchino (2016) did carry out an empirical plausibility probe of their argument that the publication of votes and legislative records does not slow down decision-making, but any such documents are usually only made available when the decision-making process has already been completed (cf. Curtin and Leino, 2017; Novák and Hillebrandt, 2020).…”

“…The EU’s institutions have hitherto upheld a policy of not releasing documents pertaining to the content of trilogue meetings before legislation has been finally adopted (Curtin and Leino, 2017). However, the EP formally requires its chief negotiator in trilogue meetings to report back to the responsible EP committee after each and every trilogue, and these committees do meet in public (European Parliament, 2017: rule 69f).…”

Crisis of democratic legitimacy of the decision-making process of the Union and the role of the European Parliament

“…If the negotiation is successfully concluded, the act after the discussion of the trilogue will be adopted as the position of the EP at first reading following the positive vote of the Council thus ending the procedural process and what we call first reading agreements (Obholzer, Reh, 2012;Curtin, Leino, 2017;Brandsma, 2019;Gabral, 2020) 74 .…”

Administrative and judicial oversight of trilogues

“…Over its two-decade career, the trilogue method of legislation has become the target of increased criticism (De Leeuw 2007;Häge and Kaeding 2007;Stie 2013;Reh 2014;Roederer-Rynning and Greenwood 2015;Curtin and Leino 2017;Brandsma 2018). The modus operandi of trilogues is particularly deemed controversial for its inability to uphold basic principles of democratic law making (De Ruiter 2013: 1210Reh 2014: 826).…”