By Ruairi Doyle
‘Trilogue’ is the name given to informal meetings which take place between representatives of the Parliament, Commission, and Council. The aim of these meetings, as defined in Lelieveldt and Princen’s The Politics of the European Union, is“to identify points of agreement and differences, and find a compromise on a legislative text” (Lelieveldt and Princen, 2015, p. 90). While this definition may seem relatively innocuous, trilogues have been at the heart of a great deal of discussion and debate.
Trilogues have become a key aspect of the co-decision procedure (a legislative process which requires approval from both the Council and the EP in order for legislation to pass), which since becoming the Ordinary Legislative Procedure (OLP) in 2009, is now how the vast majority of legislation is passed (Lelieveldt and Princen, 2015, pp. 82-91). The number of trilogues taking place has increased considerably since the introduction of “fast track legislation” in 1999, which allowed the possibility to conclude co-decision after the first reading (Reh et al., 2013, p. 1112), with a reported 1,500 being held during the 2009-2014 parliamentary term (Cooper 2016).
This shift towards informal decision making has been key to refuting both concerns and expectations regarding co-decision. When co-decision was first introduced, concerns were expressed that it would prove to be an overly complex and slow procedure, while in reality it turned out to be highly efficient. On the other hand, it was expected that co-decision would increase accountability, inclusiveness and transparency, while in reality the process has become more secluded from the public and parliamentarians (Reh et al., 2013, p. 1113).
Various different theoretical frameworks have been used to try to explain why trilogues (and informal decision making in general) have become so prevalent in EU legislative decision making. Functional institutionalism (a theory drawn from rational choice institutionalism) argues that trilogues take place in order maximise efficiency, notably by limiting the transaction costs which prolonged formal negotiations would incur. A distributive bargaining theory focuses on the balance of powers between institutions, which are taken as ‘competence maximisers’, aiming to use informal negotiations such as trilogues to try and influence policy outcomes in their favour. Finally, sociological institutionalism focuses on the socialisation of actors from different EU institutions to explain the rise of informal decision making (Reh et al., 2013, pp. 1122-1126 ).
The EU’s official justification for trilogues is more or less in line with the functionalist argument (which is also the argument best supported by empirical evidence) (Reh et al., 2013, p. 1136 ) The EU has long been criticised for being an inefficient decision making body, and trilogues are a way of disproving this to an increasingly Eurosceptic public (Cooper, 2016). They take place to try and speed up the decision making process, by reaching informal agreements before official negotiations or talks begin between the Council and Parliament.
If talks are successful, they generally lead to an early agreement (EA), an agreement reached either in the first reading or early in the second (Rasmussen and Reh, 2013, p. 1006). And indeed, since “fast track legislation” was introduced in 1999, there has been a sharp increase in the number of early agreements which have been reached, as the figure above demonstrates (European Parliament, 2014).
In the 2009 -2014 Parliamentary term, first reading agreements alone represented 85% of adopted co-decision files (European Parliament, 2014), and in 2016 not a single Bill ended up in a second reading agreement, only the second time that’s happened (Nielson, 2017).
Reaching these early agreements undoubtedly enhances the efficiency of the decision making process, as the average duration of a co-decision procedure fell from 22 months in the 6th EP (2004 – 2009) to 19 months in the 7th EP (2009 – 2014) (Rasmussen and Reh, 2013, p.1006).
But despite playing an important part in increasing the efficiency of the EU’s legislative output, trilogues have been subject to considerable criticism, from both the general public and from EU Parliamentarians. This criticism is generally centred around the lack of transparency and secluded nature of trilogues.
Neither the EP nor the Council announce when these meetings take place, and none of the official documents from the meetings are released, meaning the public is ultimately unaware of how a decision was made (Cooper, 2016). Trilogues are not only closed to the public, but details regarding meetings are also not disclosed to members of Parliament who are not directly involved in the discussions taking place, which has led to certain MEPs criticising the process (Rasmussen and Reh, 2013, p.1006).
Critics have argued that this secretive and secluded process results in lack of accountability (Reh et al., 2013, p. 1113), as the public is unaware of which actors may have pushed for a certain decision, and limits democratic oversight. This can ultimately undermine trust in EU institutions (Cooper, 2016), and their democratic legitimacy. The EU has long been criticised for having a perceived ‘democratic deficit’ (Lelieveldt and Princen, 2015, pp. 284-285), and trilogues have now become an integral part of this discussion.
Trilogues and early agreements have also been criticised for granting too much power to certain actors. The most important actors in the legislative process, known as the ‘relais actors’, are the parliamentary rapporteurs and the Council Presidencies. Critics have argued that they are given a disproportionate amount of power when trilogues are relied upon to reach early agreements, due to the informal and secluded nature of trilogues, which presents them with unique opportunities and fewer constraints. The expectation is that this is particularly likely to occur when rapporteurs represent big parties in parliament, or when the presidency represents a big member state, as they will have greater bargaining power (Rasmussen and Reh, 2013, pp. 1006-1008).
A study conducted by Anne Rasmussen & Christine Reh however found no empirical evidence to support this criticism. Their study revealed that when co-decision was concluded early (and therefore trilogues had taken place), legislative outcomes were not located any closer to the policy positions held by the party group of the Parliament’s rapporteur or by the Council Presidency, than when co-decision went to second or third reading (Rasmussen and Reh, 2013).
Ultimately, the debates surrounding trilogues are very much representative of a wider dilemma the EU is faced with. On the one hand it must ensure it can function as an efficient policy and decision making boding, while also trying to address its perceived democratic deficit, by ensuring the decision making process remains as inclusive and transparent as possible.
Bibliography:
Cooper, H. (2016). ’Where European democracy goes to die’, Politico ,12 July. Available at: http://www.politico.eu/article/where-european-democracy-goes-to-die-european-parliament/. (Accessed 25 October 2017)
European Parliament (2014)‘The European Parliament’s Legislative Activity’, European Parliamentary Research Service Blog, May 8. Available at: https://epthinktank.eu/2014/04/15/the-european-parliament-2009-14-five-years-work-in-figures/ep-legislative-activity-2/. (Accessed 25 October 2017)
European Parliament (2014) Activity Report on Codecision and Conciliation. Available at: http://www.europarl.europa.eu/code/information/activity_reports/activity_report_2009_2014_en.pdf. (Accessed 25 October 2017)
Lelieveldt, H., and Princen, S. (2015). The Politics of the European Union, 2nd Edition. Cambridge University Press.
Nielson, N. (2017). ’Secret EU law making takes over Brussels’, EUobserver, 24 January. Available at: https://euobserver.com/institutional/136630. (Accessed 25 October 2017)
Reh, C. et al. (2013). ‘The informal politics of legislation explaining secluded decision making in the European Union’, Comparative Political Studies, 46(9), pp.1112-1142. Available at: http://journals.sagepub.com/doi/pdf/10.1177/0010414011426415. (Accessed 25 October 2017)
Rasmussen, A. and Reh, C. (2013). ‘The consequences of concluding codecision early: trilogues and intra-institutional bargaining success’, Journal of European Public Policy, 20 (7), pp. 1006-1024. Available at: http://www.tandfonline.com/doi/pdf/10.1080/13501763.2013.795391?needAccess=true. (Accessed 25 October 2017)
Biography
Ruari Doyle is a third year student at UCD studying history and politics. He was born and grew up in Brussels, where he was often close to various EU buildings and institutions, so EU politics is something he has always had an interest in. This blog post was completed for the UCD Politics module: Politics and Policy of the EU.
Brussels Insider 2021-2022 