By Joe McNamee

In 2016, the EU Ombudsman Emily O’Reilly made some recommendations to improve the transparency of the “trilogue” process. Trilogues are informal negotiations conducted between a small number of representatives of the Council of the European Union, the European Parliament and the Commission, and they are increasingly used to circumvent the traditional, treaty-based decision-making process of the EU in almost all legislative files.

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The current trilogue process is a gift to corporate lobbyists. Documents are not public, but are made informally available to lobbyists. Dates of meetings are not public, but are made informally available to lobbyists. Trilogues have no pre-agreed end-date, meaning that the public is not informed of a decision being made until after the decision is made.

Unsurprisingly, the Ombudsman, whose mission is “to serve democracy by working with the institutions of the European Union to create a more effective, accountable, transparent and ethical administration” launched an enquiry in 2015, including a consultation, to which EDRi responded.

A draft response to the Ombudsman from the EU Council, the EU institution consisting of the EU Member States, was leaked in July 2017. The Council rejects the notion that the (mal)administration of the EU institutions includes the legislative work of the EU institutions – a point that the Council and the European Parliament made when the enquiry was launched. In the Council’s words “the notion of (mal)administration has to be distinguished from the exercise of legislative activity”. The Council goes on to say “The organisation of the legislative process cannot be considered an administrative activity – and therefore cannot give rise to possible instances of maladministration – but ought rather to be regarded as an essential aspect of the exercise of the legislators’ prerogatives”.

Totally missing the point that pasting together an ad hoc, informal, chaotic process to replace the treaty-based decision-making process is not the same as making a political decision, the Council goes on to praise the Ombudsman’s “self-restraint” in how she has handled complaints regarding political decision-making. The Council then goes on to state its “confidence” that the Ombudsman will take these considerations into account when completing her work on this issue.

While the opposition to transparency from a traditionally closed institution may not be that surprising (even if its arguments are bizarre), it might come as a bigger surprise that the European Parliament takes a similar approach. The then President of the European Parliament, Martin Schulz, attacked the enquiry quite energetically and entirely wrongly when it was launched in 2015. Quoted in Politico, he complained that trilogues were about “substantive choices on the preferable legislative options” and the prerogative of Parliamentarians.

Or, to quote Through the Looking Glass…

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Ombudsman opens investigation to promote transparency of “trilogues” (28.05.2015)
https://www.ombudsman.europa.eu/en/press/release.faces/en/59975/html.bookmark

EU Ombudsman demands trilogue reform, following our advice (27.07.2016)
https://edri.org/eu-ombudsman-demands-trilogues-reform-following-our-advice/

The Council of the European Union Draft reply to the Ombudsman’s inquiry (14.07.2017)
http://statewatch.org/news/2017/jul/eu-council-ombudsman-inquiry-8808-REV-1-17.pdf

Schulz warns watchdog over transparency probe (12.01.2015)
http://www.politico.eu/article/schulz-warns-watchdog-over-transparency-probe-lobbying-european-parliament/

(Contribution by Joe McNamee, EDRi)

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