Nathalie Griesbeck, a Member of the European Parliament (MEP) who represents the French centre-right UDI-MoDem party alliance, travels to meetings of “the trialogue” as if she were heading off to war. “I go there with all the legitimacy of the mandate given to me by the European Parliament,” she said. “That mandate is my solid base. I don’t let go. It is my amour as a parliamentarian, to engage battle in face of the council and the commission.”
Like all her colleagues who have taken part in triaologue (also called trilogue) meetings, Griesbeck knows that it is there, in these closed-door sessions where no minutes are taken, where the final form of the most controversial legislation adopted by the European Union (EU) is played out. This year, these notably included the directive on Trade Secrets , the data protection reform, the suppression of mobile phone “roaming” fees, the EU Passenger Name Record (PNR) directive (which involves the exchange of information about air passengers), and the so-called “economic governance six-pack” for reinforcing budgetary discipline among eurozone countries.
All of these were hammered out and shaped during the secret trialogue meetings. It is here where deals are thrashed out and a directive takes on a political character, becoming a bit more left-leaning or, as is mostly the case, a bit more right-leaning.
The ritual is an informal one and the formal existence of the trialogues does not even feature in European treaties. The European Commission itself describes trialogues as “informal tripartite meetings attended by representatives of the European Parliament, the Council and the Commission”. Present at these meetings, which are held in rooms within the European Parliament, are a number of MEPs (mostly the most influential among them), European Commission officials, experts and advisors, and diplomats from the European Council of Ministers, which represents the leaders of governments of EU member states.
Their goal is to to reach a compromise, in private, on the final terms of EU legislation. Their meetings may sometimes last a period of minutes or, when disagreements set in, many long hours and overnight sessions. On average, four trialogue meetings are necessary before agreement is reached, although at times the number is more. Almost 400 trialogue meetings have taken place during the course of the current European Parliament, since the last elections held in the summer of 2014. There were more than 1,500 such secret, legislation-shaping meetings during the mandate of the preceding parliament.
Enlargement : Illustration 1
The confidential document reproduced above shows a table in which the three European institutions confront their views for each article of a text of legislation under discussion. The table is typical of all those used in the meetings: the first column is for the European Commission, the second for the European council of ministers and the third is for the European Parliament committee concerned by the text. In the case of the document above, the parliamentary committee concerned is that of Civil Liberties, Justice and Home Affairs (LIBE).
“It is our view that the trialogues have, regardless of intent, become a means for EU institutions to bypass democratic good practices, prevent public participation and are contrary to the principles of transparency and accountability recognised under the EU treaties, including citizens' right to access public documents,” wrote 33 organisations from around Europe concerned with defending civil rights and promoting the transparency of institutions, in a joint letter addressed in September 2015 to the heads of the three bodies that take part in the trialogues. “Trialogues lack transparency, accountability and undermine democratic principles,” they insisted.
French EELV Green party MEP Pascal Durand is also scathing of the secrecy of the negotiations. “We are in a mongrel regime, between democracy and commercial negotiation,” he said of the trialogues.
EU Ombudsman Emily O’Reilly shared some of the criticism in her introduction to a report of her “strategic inquiry” into the transparency of the trialogues, published in July this year. “The EU Court of Justice has stated that the ability of EU citizens to find out the considerations that underpin legislative action is a precondition for the effective exercise of their democratic rights,” she wrote. “While the EU legislative process in general is quite transparent, including in comparison to many Member States, this part of the process has raised concerns about the balance between the efficiency of the Trilogue process and its transparency.”
For both the public and journalists, even the planned dates of upcoming trialogue meetings are impossible to establish, just as the list of participants also remains hidden.
A number of NGOs have expressed concern that the secrecy of the meetings reinforces the grip that private-sector lobbying groups have on political decision-making. “Because the negotiating drafts are 'confidential', this means that only lobbies with enough power, people and influence can a.; obtain these drafts, b.; comment on them quickly enough and c; have their comments taken seriously by the negotiators,” said Joe McNamee, executive director of EDRi, an association of European organizations which defend rights and freedoms in the digital environment, and a co-signatory to the September 2015 letter addressed to the heads of the European commission and council, and the European Parliament president. “It is almost a truism to say that industry lobbies have vastly more potential to achieve this than the small, underresourced general interest NGOs in Brussels. This also shows the absurdity of the system - the documents are de facto confidential to the public but not to the big lobbies.” [1]
Alberto Alemanno, a lecturer in law at the Paris business school HEC, agreed. “The lobbies have no difficulty in getting hold of confidential documents,” he said. “It is normal that places for negotiation exist between these different players, but that cannot be carried out when there is a political cost for those who are not represented – the NGOs and citizens.”
The trialogues have long existed, but there has been an acceleration in the numbers of such meetings since the adoption of the Treaty of Lisbon entered into force in December 2009. At the time, the treaty was designed to reinforce the powers of the European Parliament through the broadening of what is called the “codecision procedure” which removed the European Council’s monopoly on legislative decision-making. In many cases, the council now required the consent of the European Parliament. In theory, it addressed the lack of democratic legitimacy of decisions taken in Brussels. But the multiplication of trialogue meetings has almost reduced that potential advance to nothing.
In sum, the increasing reliance on trialogues to reach a compromise at all costs between the different EU institutions has trampled over the spirit of the treaties, a paradox highlighted by Christine Reh, a Reader in European Politics with University College London. “Over the last two decades, the European Parliament has been empowered to make European Union legislation more inclusive, transparent and accountable,” argued Reh in an article for the Journal of European Policy in July 2014 entitled 'Is informal politics undemocratic? Trilogues, early agreements and the selection model of representation'. “Yet, co-legislation has increased informalization and seclusion, as an ever-larger proportion of legislative acts is pre-agreed between Parliament and Council prior to first reading,” she wrote.
-----
1: In the very first few hours of publication of this article, this quote was originally translated from French, but appears here precisely as it was given by Joe McNamee in English in an interview conducted with Ludovic Lamant by email.
“The functioning of the European parliament is transparent, and we know who votes for what,” said French Green MEP Pascal Durand. “But what parliament votes for in plenary sessions at [its base in] Strasbourg is not yet the text of legislation. What has been voted then has to be re-discussed with others.”
Enlargement : Illustration 2
For it is the European Commission, the EU’s executive body, which is the only body entitled to take legislative initiatives. The proposed legislation is then submitted to the European Parliament, which adopts a position on the text during a plenary session in Strasbourg. The European Council of Ministers does the same during a consultation meeting of ministers concerned from the 28 member states. Thus at the end of the consultations, a common position needs to be found that reunites all three.
Article 294 of the 2007 Treaty on the Functioning of the European Union (TFEU) allows for a “Conciliation Committee” to meet in the event that there is continuing disagreement between the European Council and the European Parliament after the second passage of a legislative text before parliament. But in reality, many texts are sent for debate at a trialogue meeting as of the first reading in parliament. The time-saving in reaching a common agreement between the three institutions is clear. Once the trialogue talks have concluded, the text of compromise (or immediate agreement) will then be re-submitted to parliament, during which no amendment can be added, and also to the European Council, where the 28 member-state ministers concerned by the issue must approve the text with at least a qualified majority.
“The trialogues are not black boxes, they’re political balances of power,” commented Belgian socialist MEP Marie Arena, who has twice served in trialogues as the European Parliament’s rapporteur for two controversial legislative texts. “The real problem is that it’s the double language of some states. They say one thing in public and argue the opposite in these meetings. It is not a case of a deficit of democracy, but rather one of a lack of political courage.”
One of the legislative texts that Arena was involved in as parliament’s rapporteur at the trialogues was the European directive concerning maternity leave, which was to set out a minimum guaranteed period of leave in every member state. Several states opposed the move and, playing at delaying tactics, refused to negotiate. Five years after the first trialogue negotiations failed, the proposed directive was eventually abandoned in 2015. “It is completely anti-democratic,” said Arena.
In the spring of this year, Arena obtained success in reaching a compromise on a directive concerning “conflict minerals” , which imposes “due diligence” checks on metal-importing EU firms to ensure that their trade is not funding regional conflicts and - or - human rights abuses. During a plenary session of the European Parliament, a majority was reached in favour of an ambitious draft text, which demanded that every player along the import chain of gold and tin should ensure that the goods were not “blood minerals”. After its submission to a trialogue debate, and following the resistance of several countries, including Italy, the text was softened, and imposed the requirement only on certain players along the chain. However, the final terms of the directive were more radical than those initially contained in the commission’s proposal.
“When a trialogue begins we know in advance that in any case we’ll have to drop something from our position,” said Arena, who sees the conflict minerals directive as the proof that there are margins for manoeuvre in making parliament’s voice heard. French Green MEP Pascal Durand took part in a trialogue negotiation over the directive to give shareholders voting powers on company directors’ pay. He argues that the trialogues increase the trend for a soft compromise on what is initially ambitious legislation. “At parliamentary level, we fought, with the socialists, to obtain a fairly well-balanced compromise,” he recalled. “But after that, it was necessary to restart discussions with the council, in all opaqueness, and fight for another compromise. In the end, what’s left?” With parties of the Right representing the majority in parliament, and also among the governments of the member states, to succeed in getting a left-leaning text adopted in Brussels appears to be “mission impossible”.
“But that’s not the fault of the trialogues, it is the reality of the ballot box in a Europe that leans to the Right,” argued Marie Arena. “It is logical that the member states have their say on directives that we adopt. If one wants Europe to be completely rejected by citizens, the best way of going about that would be to say that decisions will be taken alone in Brussels, and that the [member state] capitals no longer have their say.”
But for some, the issue of the trialogues is a serious one about the democratic process, the European Parliament (MEPs) is weakened in face of the European Council of Ministers (the member state governments). “Structurally, these meetings enormously favour the council,” said an official with the European Parliament and a veteran participant in triologue meetings, speaking on condition his name was withheld. “Because everything is held behind closed doors, the states say what they like. And the council is much better prepared than the members of parliament who have fewer advisors on subjects that are often technical. It is not a true negotiation. It comes down to identifying where the European Parliament will agree to drop things, article by article.”
It is all the more of concern given that most of the sensitive texts of legislation over the past few months were swiftly sent into negotiation at trialogue meetings, even at the expense of skirting around the parliamentary debates. An example of this is the avalanche of proposed anti-terrorism legislation, where the pressure of member states is very strong, as with the PNR directive. “It’s true that things are pretty ‘rock n’roll’ at the moment,” said centre-right French MEP Nathalie Griesbeck. She and her parliamentary group are pushing for public access to the working documents of the trialogues and the publication of each member state’s position before negotiations begin. “We step into the breach each year with proposals for amendments on this, but the two large political groups don’t want that,” said Griesbeck, referring to the conservative European People’s Party block, the EPP, and that of the Socialists and Democrats, the S&D.
Other MEPs have gone a step further and are calling for public access to all of the workings of the trialogues. Questioned on the issue by Mediapart, the European Council underlined that in 2015 it had accepted to release 84% of all documents of various types that were the subject of public requests for consultation (see below). But that still left 1,731 requests that were refused, and another 1,094 that were only partially revealed.
Enlargement : Illustration 4
Those in Brussels who support a status quo repeat the same well-used arguments. “If you increase the transparency of the trialogues, other informal places will be created elsewhere to compensate, and that will only displace the problem,” said one EU source, whose name is withheld.
“Today, the European machine could not function without the trialogues,” said Italian jurist Alberto Alemanno, who also runs a Brussels-based NGO, The Good Lobby , which provides other NGOs with expert volunteers. “But given the massive use made of this mechanism and the issues it raises in terms of democratic control, it must be integrated into the institutions.” Several propositions to improve the functioning of the trialogues are under consideration by the European Parliament (see an example here). Meanwhile, the parliament, the European Council and the European Commission must respond by December 15th to the concerns raised in the ombudsman’s report, although it is currently difficult to forecast what changes might transpire.
The attitude of Martin Schulze, the German Social Democrat president of the European Parliament since 2012, does not incite optimism among those seeking a reform of the trialogue process. Schulze last year effectively told ombudsman Emily O’Reilly that she had no right to investigate the secretive trialogues (see the parliament’s official response to O’Reilly’s investigation here).
In June this year, Schulze ordered a parliamentary commission to cancel an invitation it had made to a former head of the parliament’s Committee on Civil Liberties, Justice and Home Affairs, Emilio De Capitani, to speak at a debate on “Transparency and Freedom of Information within EU Institutions”. Schulz said the reason for banning De Capitani, who is now a visiting law professor at Queen Mary University of London, was that he was still involved in an ongoing case he had brought against the parliament before the European Court of Justice (ECJ) over its refusal to grant him access to documents from a trialogue meeting. De Capitani is demanding that the CEJ order parliament to hand over the secret documents (see the CEJ summary of the case here).
Schulze’s resistance to attempts to make the trialogue process more accountable is in line with the thinking behind the pragmatic coalition struck in parliament between the PPE block of conservatives and his own S&D block. Like the trialogues, the coalition of the parliament’s two most important political forces allows the European machine to keep working at a time of growing contestation of the EU, all at the price of the quality of democratic debate.
-------------------------
- The French version of this article can be found here.
English version by Graham Tearse