Trade secrets trialogue underlines the EU’s democratic deficit

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Secret trialogues highlight the EU's democratic deficit, says ClientEarth. [Angus Veitch/Flickr]

Trialogues – secret three-way talks between the major EU institutions to finalise EU law – are a far cry from how lawmaking is supposed to work, underline the bloc’s democratic deficit and breach the Treaties, writes Anaïs Berthier.

Anaïs Berthier is a Senior Lawyer at ClientEarth.

On Tuesday (15 September), the European Parliament, the Council and the Commission began a talk behind closed doors. No outsiders can listen in, and information on what was said and who said it will not be released until the directive is adopted – when it’s too late to intervene.

This is the reality of a trialogue. It’s a far cry from how lawmaking is supposed to work. Trialogue meetings are nowhere mentioned in the Treaties. They are a pure invention of the institutions. They take place behind closed doors, among a handful of high-level officials. Yet they have become a systemic part of the EU legislative process.

This week, it is the draft Trade Secrets Directive being debated by the select few. Secretive meetings to discuss a law that helps industry keep secrets and classify ever more information as confidential – how very fitting.

The Commission’s proposal aims to harmonise protection against industrial espionage and unfair competition across the EU. That’s a laudable goal. However, its actual impact is much wider, and more dangerous. The draft law allows industry to sue public authorities, journalists and whistleblowers when they reveal business information, helping ensure secrets affecting public health and the environment never see the light of day. This encourages companies to continue business as usual, rather than move towards greener production. It will result in more pollution and greater threats to public health. 

Trialogues breach the EU Treaties                                          

The EU’s founding treaties contain detailed rules on how laws should be made. The Treaty on the Functioning of the EU is very specific on the order of stages in the legislative process, requiring the European Parliament to adopt its position before the Council does. The European Parliament (EP) is supposed to adopt its first reading position in plenary. The Council must then either adopt the position of the Parliament, or adopt its own position and communicate it to the Parliament, leading to another round of negotiations. This allows the public to get information on the position of each political group and institution – and to react.

Ignoring this requirement, trialogues take place before the EP has held a plenary vote on the law in question. The political process is concluded through trialogue meetings and formally validated by first-reading votes in the EP and the Council. In effect, trialogues fuse the two stages of the legislative process into one, highjack the discussion that’s supposed to take place between MEPs in the EP plenary, and replace it with a completely opaque talk between the Commission, the Parliament and the Council. This kills public participation, preventing access to the information required to make the legislative process truly democratic.

Trilogues also keep members of the EP in the dark. Instead of a genuine and open debate among MEPs, they are given basic updates from the meetings. This puts them in a much more difficult position than under the normal lawmaking process. Expressing a position or disagreement with a compromise reached by the EP and the Council is much more politically difficult than discussing the issues in an MEP-only debate before Council has had its say. Add to that the fact that the meetings are sometimes attended not by MEPs, but only by their assistants, and the process becomes even less representative and legitimate.

In the face of this opacity and affront to EU democracy, politicians, businesses and civil society have made their displeasure known. As a result, in May, the EU Ombudsman started investigating the lack of transparency within trilogues. The Ombudsman has sent a letter to each of the three institutions expressing her concerns and asking them to reply to a series of questions. She called on them to “[conduct] trilogues … in a manner which can be reconciled with the requirements as to the transparency of the legislative procedure, set out in Articles 15(2) and (3) TFEU”.

>>Read: Secretive ‘trialogue’ talks to agree EU law face investigation

We look forward to hearing the EU institutions explain how trialogues comply with the requirement to act transparently, “to promote good governance and ensure the participation of civil society” and “to conduct their work as openly as possible”. To ensure that “every citizen shall have the right to participate in the democratic life of the Union” and that “decisions shall be taken as openly and as closely as possible to the citizen”.

Legislating for more industry secrecy

MEPs in the EP’s Legal Affairs Committee made several positive amendments to the draft Trade Secrets Directive. Even so, the proposal still poses a serious risk to the public’s right to freedom of information and expression.

The suggested amendments help safeguard access to information, including greater protection for public authorities and whistleblowers disclosing information in the public interest. They also ensure more protection for journalists and limit the scope of the directive. We expect member states and the Commission will oppose some of these amendments and pressure the Parliament to drop them from the final text.

Unfortunately, we do not expect the process to be more transparent this time around. In fact, the next time information about the secretive talks that shape the directive is released, it will probably already be law. This highlights the EU’s democratic deficit, and never more so than when the debate is on the right to keep secrets.

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