Lifting the lid on the secret EU 'trialogues' where laws are decided behind closed doors

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When the European Union finalises legislation adopted by its executive body, the European Commission, the definitive texts of the directives are thrashed out in secret, closed-door meetings known as “trialogues”, unknown to the general public, where no minutes are kept. The trialogues – sometimes called trilogues – bring together, and without democratic control, representatives from the EU’s three major institutions: the Commission, the European Council of Ministers and the European Parliament. Mediapart's Brussels correspondent Ludovic Lamant reports.

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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.

A confidential working document from a trialogue meeting in September 2016. A confidential working document from a trialogue meeting in September 2016.
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.

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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.

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