How transparent is EU law-making? Do answers to the Ombudsman’s enquiry go far enough?
The response of EU institutions to the European Ombudsman’s (EO) own inquiry on transparency in trilogues has poured cold water on the hopes of those who share concerns about the lack of fully transparent law-making in the EU.
While focused on contesting the admissibility of the inquiry, the European legislator has sought to preserve the status quo and thus, has failed to tackle the underlying necessity of “unpacking” the principles of openness and transparency in EU law-making.
What is going on behind so-called trilogues?
Trilogues are generally known as informal meetings between the EU institutions aimed at speeding up decision-making by agreeing quickly on new legislative measures at 1st reading. Contrary to this general assumption, trilogues are not informal, but have become the norm for thrashing out agreements on most EU legislation.
These meetings are in the public eye for their opacity and have raised the concerns of a broad spectrum of civil society and EU citizens, whose right to participate in the democratic life of the Union is being infringed.
There’s evidence of this in the large number of replies the EO received in her public consultation from individuals, NGOs, business associations and other organisations. ClientEarth also responded to the questions posed by the EO as part of our contribution to the public consultation.
Efficiency at what cost when transparency and public participation are undermined?
Public discussion of legislative proposals is the essence of any democratic decision-making process. This is why EU citizens must be directly involved during the legislative process and able to scrutinise the performance of their representatives.
However, the most wide-spread practice is to hold trilogue negotiations before all MEPs discuss the Commission’s legislative proposals. Although the Parliament by then has not adopted its first reading position officially, the Council and the Parliament have already agreed on the final text of the legislation. As a result, the whole debate shifts from the plenary to closed-door meetings where only very few members of the Parliament take part. This prevents an in-depth discussion of proposals by the elected representatives. Furthermore, it means that the public cannot scrutinise the positions held in the course of the meetings by the MEPs rapporteur and shadow rapporteur, the Commission and the Member States within the Council.
The disclosure policy of trilogue-related documents is also being contested. Contrary to the general rule of openness in legislative activity, neither the position of the three institutions nor the minutes of trilateral negotiations are disclosed to the public while the legislative process is ongoing. This prevents public participation from taking place.
In the current post-Lisbon context much of EU law is still hammered out in closed-door trilogues. Whereas the efficiency of these meetings is undeniable (around 80% of legislative proposals are now agreed at first reading), the necessary balance between cost-time efficiencies and the principles of accountability, transparency and public participation remains to be determined.
EU institutions tell the Ombudsman not to meddle in secretive trilogues
It is against this background that the EO opened her inquiry in May 2015 and asked a set of questions to the co-legislators and the Commission, notably about their disclosure policies on trilogue documents.
The institutions presented a united front against the EO and challenged the admissibility of the inquiry. They argued that the organisational aspects of the legislative procedure fall outside of her mandate because the way these meetings are organised pertain to the Council’s and the Parliament’s political responsibilities as the EU co-legislators, and not to their administrative activity.
Trilogues cannot therefore give rise to maladministration with regard to any aspect of their conduct, except with regard to the handling of requests for access to documents used during trilogue meetings. The institutions also pointed out that the Ombudsman did not identify any concrete instance of maladministration. Despite their concerns on the admissibility of the complaint, the institutions have accepted that the Ombudsman investigates on the transparency of trilogues.
Shedding some light on the issue: the future of trilogues
In July 2016, the EO communicated her decision to the institutions. She made several proposals to increase transparency in trilogue meetings, including a proactive disclosure of possible lists of documents tabled during trilogue negotiations and the so-called “four-column documents.” These contain the position of the institutions and the compromise text of legislative proposals. The EO asked them to inform her of any action they have taken in this regard by December 2016.
The Union institutions cannot simply ignore the growing demands of civil society actors and individual citizens to have a say in the Union’s functioning and to hold the decision-makers accountable. They must consider carefully the Ombudsman’s proposals and commit to avoid blind-spots in EU deal-making.
Transparency is a key element in ensuring that these rights are made effective and in legitimising the laws passed by the EU. It constitutes the best mean to overcome the so-called “democratic deficit” and to make the EU closer to citizens.
The institutions must take the measures of the growing gap between citizens and the Union and they need to address it.