EU “trilogues” consultation: A foot in the door for transparency

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Last Tuesday the Petitions Committee of the European Parliament held an extensive public hearing on transparency and accountability in the EU. The European Ombudsman’s office participated and shared some preliminary thoughts from their investigations into lobbying practices and decision-making procedures. The current EU Ombudsman is Emily O’Reilly; she and her team are in charge of processing all complaints and concerns which European citizens voice against the EU establishment.

Access Now has been monitoring these proceedings with a special eye to detail; in March of this year, we submitted comments to the Ombudsman’s investigation of the “trilogues” — the shady decision-making process which dominates the current legislative process in Europe.

So why is transparency so important to us? We firmly believe that anchoring government decision-making processes in transparent approaches is essential to the integrity of any government; it allows us to make an impact and input to policies as they are being made and shaped.

Here’s a look at the trilogues consultation and our recommendations for increasing transparency in the trilogues decision process.

An inquiry into the transparency of trilogues

The EU Ombudsman initiated an inquiry into the transparency of trilogues in May 2015. Following her own investigation, she invited citizens and interested parties to provide their opinion on the transparency of these proceedings, and as we note above, we provided our opinion in March.

What’s a trilogue?

In a nutshell, the trilogue discussions are a process established to ease negotiation between EU’s three legislative bodies; the Commission, the Parliament, and the Council. They are intended to simplify the communication between the bodies, creating procedural shortcuts to speed the passage of legislation (click here for EDRi’s illustration of the GDPR trilogue). While the concept is laudable, in practice the trilogues have led to legislation going “underground” and out of sight — unaccountable by civil society, academics, and other parties with a vested interest in how Europe’s legislative process is run.

This is why the media often labels the trilogue negotiation process a “black box” of European decision-making. It lacks transparency and democratic accountability. The process was not established by the treaties or procedural rules, yet it remains an overwhelmingly dominant feature in the legislative process, allowing decision-makers to negotiate European legislation behind closed doors. This stands in contrast to the relative transparency and accountability that takes place before a trilogue starts. Starting from the Commission’s consultation to the launch of the trilogue, the institutions typically publish impact assessments, proposals, revisions, reports, and amendments, and also organise relevant workshops and debates. The amendments process could use more transparency, but that it a relatively small problem compared to what civil society groups and other stakeholders experience once the trilogue processes start. There, we are utterly in the dark.

Notably, there is little tangible proof that the trilogue process does anything to expedite the lifecycle of legislation, even though that is ostensibly its purpose. In fact, legislative productivity has not changed; what has changed is how we now arrive at legislative compromise.

Consultation on the trilogues

In the consultation, the Ombudsman sought stakeholder opinions on the transparency of the trilogue process, not explicitly the trilogue mechanism itself. This is an interesting approach.  If we increase transparency, would it improve the process as a whole? The consultation is meant to establish a new threshold for determining which documents should be made available to stakeholders, and when.

Our suggestions to improve transparency are:

1.)  Political meetings should be opened to the public. The government could either open meetings for registered attendees, or use video-streaming just as the European Parliament does.

2.) Meetings should be documented and the documentation made available online. The government should keep minutes of meetings, and create a transparent register of everyone who attends or contributes to a negotiation. This documentation should then be made available over the internet for stakeholder accountability.

3.) Pre-negotiation texts should be released. The government should make these texts available beyond a select few stakeholders — not simply for the sake of transparency, but to increase the public’s understanding of how EU institutions conduct internal dialogues on pending legislation.

4.) An independent cross-institutional committee should evaluate any challenge the public makes to the trilogue process — whether it’s questioning the attendance roster for certain meetings, or challenging the secrecy of texts that ought to be publicly available.

The transparency of decision-making processes is essential for democratic stakeholder engagement, trust, research, and accountability. We welcomed the opportunity to contribute to the consultation, and we commend the Ombudsman for her work on this issue. We hope that this work will continue in helping us shape constructive discourse and an effective stakeholder engagement within the EU’s digital agenda.