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Published online by Cambridge University Press: 21 December 2022
Trilogues represent a decisive stage in the European Union (EU) legislative process and often settle the substantive content of EU legislation. During trilogues, negotiations move fast and new solutions are actively identified by the negotiators. The (lack of) transparency of trilogues has been repeatedly criticised in recent years, yet the EU institutions have defended their “space to think”. Relying on a set of interviews with trilogue participants, this paper mirrors the institutional practices in the final stages of EU law-making against the requirements of openness in the EU Treaties, which aim to strengthen “democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act”. The paper argues that, despite noble proclamations, the EU’s legislative practices are characterised by institutional discretion and the lack enforcement of transparency requirements. The paper describes how trilogues are conducted and how questions involving risk management and technically complex issues are assessed in this process. Greater transparency would also help to ensure that risks and alternatives are properly assessed and would thus contribute to better-quality risk regulation in the EU.
1 Case T-710/14 Herbert Smith Freehills LLP v Council [2016] ECLI:EU:T:2016:494, para 56.
2 See, in particular, European Ombudsman strategic inquiry on the transparency of trilogues, Case OI/8/2015/JAS.
3 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p 43, Preamble.
4 Most recently Case C-157/21 Poland v Parliament and Council [2022] ECLI:EU:C:2022:98, para 52.
5 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECLI:EU:C:2008:374, paras 45–46 (emphasis added).
6 See Council Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents [2001] OJ L 145, Art 12(2).
7 Council Decision 2009/937, Rules of Procedure of the Council of the European Union; European Parliament, “Rules of Procedure” (9th Parliamentary Term, 2021) <www.europarl.europa.eu/doceo/document/RULES-9-2021-09-13_EN.pdf> (last accessed 21 March 2022).
8 The rich literature on transparency and the arguments against it are described and discussed in the Introduction to P Leino-Sandberg, M Hillebrandt and I Koivisto (eds), (In)visible European Government: Critical Approaches to Transparency as an Ideal and a Practice (UACES Contemporary European Studies; London, Routledge forthcoming 2023). See also S Novak, “Invisible Practices: The Transparency Dilemma in EU Institutions” in the same volume.
9 European Ombudsman, Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of Trilogues [2016] Case OI/8/2015/JAS, para 49.
10 European Commission, Opinion of the European Commission in the European Ombudsman’s own-initiative inquiry OI/8/2015/JAS concerning transparency of Trilogues [2015].
11 ibid.
12 European Parliament, Opinion of the European Parliament in the European Ombudsman’s own-initiative inquiry OI/8/2015/JAS concerning transparency of Trilogues [2015].
13 On these, see also M Hillebrandt and P Leino-Sandberg, “Administrative and Judicial Oversight of Trilogues” (2021) 28 Journal of European Public Policy 53.
14 For a discussion, see E Korkea-aho and P Leino-Sandberg, “Introduction” in E Korkea-aho and P Leino-Sandberg (eds), Law, Legal Expertise, and EU Policy-Making (Cambridge, Cambridge University Press 2022).
15 The interviews have been transcribed and anonymised and are saved with the metadata removed on a safe cloud server in accordance with the requirements of the data management policy of the University of Helsinki and the Academy of Finland. The method has been explained in more detail in P Leino-Sandberg, The Politics of Legal Expertise in EU Policy Making (Cambridge, Cambridge University Press 2021) ch 1.
16 D Curtin and P Leino, “In Search of Transparency for EU Law-Making: Trilogues on the Cusp of Dawn” (2017) 54 Common Market Law Review 1673.
17 H Farrell and A Heritier, “The Invisible Transformation of Codecision: Problems of Democratic Legitimacy” (SIEPS Report 2003/7), 6.
18 Case T-755/14 Herbert Smith Freehills LLP v Commission [2016] ECLI:EU:T:2016:482, para 56.
19 See E Bressanelli, A Heritier, C Koop and C Reh, “The Informal Politics of Codecision: Introducing a New Data Set on Early Agreements in the European Union” [2014] EUI Working Papers RSCAS 2014/64.
20 Joint declaration on practical arrangements for the codecision procedure (Art 251 of the EC Treaty), [2007] OJ C 145/5.
21 Interinstitutional Agreement Between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making Interinstitutional Agreement of 13 April 2016 on Better Law-Making [2016] OJ L 23, Arts 32–50.
22 Interview with a deputy permanent representative (Respondent 15).
23 Interview with a member of the Commission Legal Service (Respondent 48).
24 Interview with a deputy permanent representative (Respondent 15).
25 Council Decision 2009/937, Rules of Procedure of the Council of the European Union, Art 5(2).
26 Council of the European Union, “Comments on the Council’s Rules of Procedure European Council’s and Council’s Rules of Procedure” (Publications Office of the European Union 2016), pp 38–39.
27 See the House of Lords European Union Committee, “Codecision and national parliamentary scrutiny – Report with Evidence” [2009] 125 HL Paper, p 14.
28 Interview with an MEP (Respondent 41).
29 ibid.
30 Interview with a political adviser to an MEP (Respondent 42).
31 Case T-540/15, De Capitani v European Parliament [2018] ECLI:EU:T:2018:167, para 68. See P Leino-Sandberg, “The Politics of Efficient Compromise in the Adoption of EU Legal Acts” in M Cremona and C Kirkpatrick (eds), EU Legal Acts: Challenges and Transformations (Oxford, Oxford University Press 2018).
32 On this, see Leino-Sandberg, supra, note 15.
33 Interview with an administrator at the European Parliament’s Committee on Legal Affairs (Respondent 33).
34 Interview with a member of the Council Legal Service (Respondent 8).
35 Interview with a legal adviser at a Member State EU Representation (Respondent 11).
36 Case T-710/14, Herbert Smith Freehills LLP v Council [2016] ECLI:EU:T:2016:494, paras 58–59. See also Case T-755/14, Herbert Smith Freehills LLP v Commission [2016] ECLI:EU:T:2016:482, para 55. See also Leino-Sandberg, supra, note 15, p 76.
37 Interview with an administrator in the European Parliament’s Committee on Legal Affairs (Respondent 37).
38 Opinion of the European Parliament, supra, note 12, p 4.
39 Opinion of the European Commission, supra, note 10.
40 Opinion of the European Parliament, supra, note 12, p 4.
41 Interview with an administrator in the European Parliament’s Committee on Legal Affairs (Respondent 37).
42 Interview with a deputy permanent representative (Respondent 15).
43 Interviews with two members of the Council Legal Service (Respondents 6 and 8).
44 Interview with a deputy permanent representative (Respondent 15).
45 S Garben and I Govare, “The Multi-Faceted Nature of Better Regulation” in S Garben and I Govare (eds), The EU Better Regulation Agenda: A Critical Assessment (London, Hart 2020) pp 3, 9.
46 P Leino, “Secrecy, Efficiency, Transparency in EU Negotiations: Conflicting Paradigms?” (2017) 5 Politics and Governance 6.
47 Interview with a deputy permanent representative (Respondent 15).
48 Interview with an administrator in the European Parliament’s Committee on Legal Affairs (Respondent 37).
49 Interview with a member of the Council Legal Service (Respondent 6).
50 Interview with a legal adviser working for a Member State government (Respondent 24).
51 ibid.
52 Interview with a deputy permanent representative (Respondent 15).
53 Interview with a member of Commission Services (Respondent 16).
54 Interview with an administrator at the European Parliament’s Committee on Legal Affairs (Respondent 37).
55 Interviews with a deputy permanent representative (Respondent 15) and an MEP (Respondent 46).
56 S Garben, “An ‘Impact Assessment’ of EU Better Regulation” in S Garben and I Govare (eds), The EU Better Regulation Agenda: A Critical Assessment (London, Hart 2020) pp 217, 229.
57 Decision of the European Ombudsman, supra, note 9, para 19.
58 Interview with a deputy permanent representative (Respondent 15).
59 Interview with a member of Commission Services (Respondent 34).
60 European Parliament, “Rules of Procedure”, Rule 71.
61 ibid, Rule 121.
62 ibid, Rule 122.
63 Council, “Rules of Procedure”, Art 7.
64 Council, “Rules of Procedure”, Annex II. Such documents include “other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions”.
65 European Commission, “Register of Commission Documents” <https://ec.europa.eu/transparency/documents-register> (last accessed 21 March 2022).
66 European Parliament, Rules of Procedure, supra, note 7, Rule 74(1).
67 Interview with a member of Commission Services (Respondent 34).
68 ibid.
69 Interview with an MEP (Respondent 41).
70 ibid.
71 Interview with a policy adviser to a political group and former political adviser to an MEP (Respondent 43).
72 Interview with an MEP (Respondent 41).
73 Interview with a political adviser to an MEP (Respondent 42).
74 ibid.
75 Interview with a member of Commission Services (Respondent 34).
76 Interview with an MEP (Respondent 41).
77 Interview with a political adviser to an MEP (Respondent 42).
78 Interview with a member of Commission Services (Respondent 34).
79 Interview with an MEP (Respondent 41).
80 Interview with a member of Commission Services (Respondent 34).
81 ibid.
82 Interview with an MEP (Respondent 40).
83 Interview with an MEP (Respondent 41).
84 Interview with a member of Commission Services (Respondent 34).
85 Interview with a policy adviser to a political group and former political adviser to an MEP (Respondent 43).
86 Interview with a member of Commission Services (Respondent 34).
87 ibid; GJ Brandsma, “Transparency of EU Informal Trilogues through Public Feedback in the European Parliament: Promise Unfulfilled” (2019) 26 Journal of European Public Policy 1464.
88 Interview with an MEP (Respondent 40); P van Nuffel, “The European Union Co-Legislator in Action: Some Thoughts on Trilogues, Transparency and the Trias Politica” in R Leysen, K Muylle, J Theunis and W Verrijdt (eds), Semper perseverans – Liber amicorum André Alen (Cambridge, Intersentia 2020) pp 921–35.
89 See also W Dinan, “Lobbying Transparency: The Limits of EU Monitory Democracy” (2021) 9 Politics and Governance 237, 245.
90 Interview with an MEP (Respondent 41).
91 However, the Green group is known to employ substance experts who work in key “committees, and who are good at explaining to politicians what kind of devils are hidden in details, and why a certain amendment is being proposed. … [S]ome of them are so good that they are also relied on by other groups.” Interview with an MEP (Respondent 46).
92 Interview with a policy adviser to a political group and former political adviser to an MEP (Respondent 43).
93 Interview with a political adviser to an MEP (Respondent 42).
94 Interview with an MEP (Respondent 41).
95 Interview with an MEP (Respondent 46).
96 ibid.
97 Interview with an MEP (Respondent 41).
98 Interview with a political adviser to an MEP (Respondent 42).
99 Interview with an MEP (Respondent 40).
100 Interview with an administrator at the European Parliament’s Committee on Legal Affairs (Respondent 37).
101 Interview with a political adviser to an MEP (Respondent 42).
102 ibid.
103 ibid.
104 Interview with an MEP (Respondent 46).
105 See M Craig, “Lobbying at the European Parliament – Two Legislative Cases: F-gases and REACH” (2008) Greens – European Free Alliance.
106 Interview with an MEP (Respondent 46).
107 European Parliament, Rules of Procedure, Rule 11.
108 European Parliament, “FAQ: Transparency” <www.europarl.europa.eu/news/en/faq/25/transparency> (last accessed 21 March 2022).
109 Interview with a deputy permanent representative (Respondent 15). See also Curtin and Leino, supra, note 16.
110 On this, see van Nuffel, supra, note 88.
111 Interview with a deputy permanent representative (Respondent 15).
112 ibid. For an account of decision-making in the Council, see Leino-Sandberg, supra, note 15, ch 6.
113 Interview with a deputy permanent representative (Respondent 15).
114 ibid.
115 ibid.
116 Interview with a legal adviser to a Member State representation (Respondent 12).
117 Interview with a member of the Council Legal Service (Respondent 6).
118 Interview with a deputy permanent representative (Respondent 15).
119 Interview with a member of the Council Legal Service (Respondent 6).
120 Case C-57/16 P, ClientEarth v Commission [2018] ECLI:EU:C:2018:660, para 90.
121 ibid, para 86.
122 ibid, para 88.
123 ibid, para 108.
124 Case C-409/13, Council v Commission (macro-financial assistance) [2015] ECLI:EU:C:2015:217.
125 van Nuffel, supra, note 88.
126 Commission, “Rules of Procedure”, Art 9.
127 Commission Decision of 31 January 2018 on a Code of Conduct for the Members of the European Commission, Art 5(3).
128 See, eg, European Commission, Minutes of the 2313th meeting of the Commission held in Brussels on Wednesday 30 October 2019, Doc. No. PV (2019) 2313 final, 26 November 2019.
129 L Panning, “Building and Managing the European Commission’s Position for Trilogue Negotiations” (2020) 28(1) Journal of European Public Policy 32, 48.
130 Interview with a political adviser to an MEP (Respondent 42).
131 Interview with a member of Commission Services (Respondent 34).
132 Interview with an MEP (Respondent 46).
133 Interview with a political adviser to an MEP (Respondent 42).
134 Interview with a former member of the European Commission (2014–2019) (Respondent 60).
135 Interview with a Director-General of the Commission Services (Respondent 58).
136 Leino-Sandberg, supra, note 15, section 5.2.4.
137 European Ombudsman, supra, note 9.
138 ibid, para 54.
139 J Greenwood and C Roederer-Rynning, “In the Shadow of Public Opinion: The European Parliament, Civil Society Organisations, and the Politicisation of Trilogues” (2019) 7 Politics and Governance 316.
140 Curtin and Leino, supra, note 16, 35.
141 Case T-540/15, De Capitani v European Parliament [2018] ECLI:EU:T:2018:167.
142 ibid, paras 83–84.
143 ibid, paras 98–99.
144 ibid, para 90.
145 ibid, para 86.
146 On this, see C Eckes and P Leino-Sandberg, “The European Commission’s Assessment of EU Withdrawal from the Energy Charter Treaty: Legal Analysis or Confidential Strategy?” (European Law Blog, 28 September 2022) <https://europeanlawblog.eu/2022/09/28/the-european-commissions-assessment-of-eu-withdrawal-from-the-energy-charter-treaty-legal-analysis-or-confidential-strategy/> (last accessed 28 November 2022).
147 van Nuffel, supra, note 88.
148 E Rebasti, “Return to de Capitani: The EU Legislative Process between Transparency and Effectiveness” (2021) 9 Politics and Governance 296, 297.
149 European Ombudsman, The Council of the EU’s refusal to provide full public access to documents related to trilogue negotiations on motor vehicle emissions [2021] Case 360/2021/TE.
150 Recommendation of the European Ombudsman in case OI/2/2017/TE on the Transparency of the Council legislative process [2018] Case OI/2/2017/TE.
151 ibid, paras 2–3.
152 Letter of the Ombudsman Complaint 1450/2015/PD dated in Strasbourg, 21 October 2015 (on file with author).
153 Case T-264/04 WWF European Policy Programme v Council [2007] ECLI:EU:T:2007:114.
154 Recommendation on the European Commission’s refusal of public access to text messages exchanged between the Commission President and the CEO of a pharmaceutical company on the purchase of a COVID 19 vaccine (case 1316/2021/MIG).
155 Council of the European Union, “Strengthening Legislative Transparency” [2020] ST 9493/20 “I” Item Note. See also Finland’s Presidency of the Council of the European Union, “Openness and Transparency” [2019] EU2019.FI 14856/19, p 9.
156 Rebasti, supra, note 148, 298.
157 E de Capitani, “Council’s New Legislative Transparency – Actual Progress or Window Dressing?” (Agence Europe, 17 July 2022) <agenceurope.eu/en/bulletin/article/12529/31> (last accessed 8 April 2022).
158 European Parliament, “Understanding Trilogue: Informal Tripartite Meetings to Reach Provisional Agreement on Legislative Files” (2021) European Parliament Research Service Briefing Paper PE 690.614, p 9 <www.europarl.europa.eu/RegData/etudes/BRIE/2021/690614/EPRS_BRI(2021)690614_EN.pdf> (last accessed 21 March 2022).
159 The Parliament’s Public Register has a category “1.4.17. Interinstitutional negotiations documents (column tables/agendas/miscellaneous)”, but it cannot be clicked open for a search <https://www.europarl.europa.eu/RegistreWeb/search/simpleSearchHome.htm> (last accessed 9 March 2022).
160 European Parliament resolution of 17 January 2019 on the Ombudsman’s strategic inquiry OI/2/2017 on the transparency of legislative discussions in the preparatory bodies of the Council of the EU (2018/2096(INI)), paras 14–15.
161 European Ombudsman, “Follow-up from the European Commission to the Decision of the European Ombudsman following her strategic inquiry OI/8/2015/JAS concerning the transparency of Trilogues” [2018] Case OI/8/2015/JAS.
162 For a summary of the proposals, see “European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions” <ec.europa.eu/commission/presscorner/detail/en/IP_21_3541> (last accessed 23 June 2022).
163 Reply from the European Parliament’s Citizen Enquiry Unit, dated 12 April 2022 (on file with author).
164 The suggested filters included “9th parliamentary term”, “the ordinary legislative procedure ((COD)-extension of the procedure number)” and the “procedure status (ongoing)”.
165 ibid.
