This article is part of our special report Lawmaking in the dark.
It’s a typical Brussels story. You’ve been following a piece of legislation as it has worked its way through the European Parliament, from committee hearings to plenary vote.
The vote is taken, the legislation passed, and you’re handed a pile of paper with the result. And with that, the pile of paper promptly disappears.
That’s because the lead MEP on the file then takes it from the shiny glass ‘house of a million windows’ at the European Parliament to the Council of Ministers, the body of the 28 national governments, housed in an imposing concrete bunker called the Justus Lipsius Building. And once the MEP enters, they disappear for months.
He or she needs to square the Parliament’s version of the legislation with that adopted by member states – much like the reconciliation process that takes place between the Senate and House in the US Congress. EU legislation is proposed by the European Commission and then adjusted by the Parliament and Council.
This process of squaring the circle is called the trilogues, so called because it is a three-way negotiation between the Parliament, the Council and the Commission, which acts as an arbiter. The 28 member states are represented in the talks by the country which holds the rotating presidency – which is at the moment Estonia.
The trilogues go on for weeks, sometimes months, until the white smoke emerges from the bunker. Only then does the public learn what has been agreed, but with no idea how or why. Sometimes the legislation that emerges from the trilogues bears little resemblance to the one that was adopted in an open, transparent way in the Parliament.
So how did we get here?
The trilogues were originally meant as a means to make minor adjustments to legislation following an extensive legislative process. They were supposed to come after multiple rounds of voting in the Parliament and Council (called ‘readings’), during which time the two versions would come closer together by the transparent actions of legislators.
Now, the lead MEP often heads over to the Council straight after a committee vote, even before the full Parliament has agreed a first reading position.
And that’s where problems begin. The discussions taking place in the Parliament were public. But in the trilogues, with so much of the negotiations behind closed doors, there is no transparency.
Emily O’Reilly, the European Ombudsman, has raised alarm about the situation. “We have looked into the transparency of the trilogues process and are currently looking into what happens to a draft law once it leaves the European Commission and is discussed within the Council,” she told a transparency event earlier this month.
The European Economic and Social Committee recently published a study finding the trilogues to be unacceptably opaque.
On 5 December, Swedish Liberal MEP Fredrick Federley will host an event at the European Parliament asking how the trilogue process can be made more transparent.
“I would claim that the trialogue process is working and the three parties in the EU do often come to agreements,” he says. “But I believe there is a transparency deficit when the citizens are left outside. Documents, agendas and minutes from these informal meetings should be published and accessible.”
But the Parliament knows it can’t be the only one to solve the trilogue problem. The impetus has to come from their negotiating partners in the Council.
So why are the trilogues so secretive? It’s largely because the talks operate under the ethos of the Council, the most opaque EU institution. Because it is a collection of 28 embassies, which are run by the foreign ministries of their respective countries, it is governed by the usual rules of international diplomacy. And that is a world of hyper-secrecy, sometimes just for secrecy’s sake.
In the EU context, this has caused significant problems. The Council is a co-legislator equal to the European Parliament. It is, for all intents and purposes, the upper chamber in the EU’s federal level of government. And yet it behaves more like the United Nations, with each representation closely guarding its secrets and, too often, operating in a zero-sum world.
The consequence is that national governments can take one position in Brussels, then return home and tell their citizens that they took the opposite decision. And because of the opacity of this process, they can get away with it.
This is why the Council has resisted joining the EU’s Transparency Register, which right now only applies to the European Commission and European Parliament. If you are a lobbyist and you want to meet with a commissioner or an MEP, you need to sign up to the register. But if you want to meet with someone from one of the 28 permanent representations in the Council, you don’t.
Last year, the Commission proposed to bring the Council into the register regime. But after more than a year of talks, there is still no agreement between member states in the Council to accept the proposal. The Commission is getting increasingly impatient.
“The Commission put a proposal on the table in September last year,” Frans Timmermans, the Commission’s first vice president, told Euractiv. “It is high time the negotiation started. I don’t think citizens would understand if the EU institutions failed to deliver a mandatory transparency register by the next European elections.”
Estonia has identified getting an agreement on the file as one of the top priorities for its presidency, which ends on 31 December. According to Council sources, a common approach may be agreed by member states this week.
That’s the good news for fans of transparency. The bad news is that the new regime will only apply to the Council Secretariat (the small number of people employed directly by the Council, who are not even involved in taking decisions), the EU country holding the rotating presidency, and the country that will take over the presidency next.
The EU does not have the authority to impose transparency rules on the 28 permanent representations [perm reps] because they are sovereign embassies.
But there is some hope that member states may volunteer to make their permanent representations more transparent. Earlier this month, the Dutch government published a paper, to be presented at a ‘Bringing Europe Closer to its Citizens’ summit in Tallinn on 26 November, asking the perm reps to sign up to a voluntary code of conduct. The hope is to get all 28 perm reps to sign up, but it may be an uphill struggle.
“In a representative democracy citizens have the right to know whether their legislators voted in favour of or against a law or proposal,” the paper says. “The EU currently does not live up to this democratic standard and the Council, in particular, regularly violates EU transparency regulations.”
The first step to making the opaque trilogue negotiations more transparent will be for the Council to sign up to the transparency register. But it will be only a first baby step on the long road it will take to get national governments to be more open about what they do in Brussels.
People in the Council have noted that it’s much easier for the Commission and Parliament to sign up to these transparency requirements because they are single entities. The Council is made up of 28 countries, all with very different traditions when it comes to openness.
That being said, turning 28 different traditions into a common understanding is the story of the European Union. If it can be done with normal legislation, why can’t it be done with transparency? The Dutch hope to convince their counterparts to shine some sunlight on the opaque trilogue process.