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Statewatch News online: European Parliament report condemns informal negotiations with the Council

28 March 2012

European Parliament report condemns "informal" negotiations with the Council - validity of the "trilogues" on access to EU documents thrown into question

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A report issued by the three Vice-Presidents of the European Parliament on the "co-decision" process has condemned "informal" negotiations over which there is little or no formal accountability to the parliament.

Their report throws into question the "trilogue" meetings which the parliament has been holding with the Council since January over the new code of access to EU documents. It is precisely the kind of "informal", secretive, negotiations which the report says excludes civil society and undermines the parliament. The report says there where such negotiations are to be entered into a formal EP delegation should be established with "all negotiations.. based on an appropriate mandate", with the lead Committee setting out the form and timetable for reporting back, a procedure for making "the documents arising from the negotiations public" and ensuring that all the committees involved (in this case five) being able to have a say.

The five "trilogue" meetings on the new code of access have manifestly failed to meet these standards.

As far as can be ascertained the EP delegation has never been formally appointed, no mandate has been laid down, no form of reporting or timetable has been set out for reporting back to the committees, no steps have been taken to ensure that all the documents have been made public, and "trilogue" meetings have been held when a number of MEPs could not attend (for example, a meeting in Brussels when the MEPs are in Strasbourg for a plenary session). The 5th "trilogue" meeting is being held today (26 March).

Tony Bunyan, Statewatch editor, comments:

"This report confirms our worst fears. The "trilogue" meetings between the European Parliament and the Council over the new code of access to documents are part of a pattern to reach "compromises" behind closed doors.

Civil society groups called for an end to secret negotiations at a conference in the parliament last month. They told the representatives of the Council, Commission and European Parliament that they should either scrap all their drafts and go back to the drawing board or go straight to the co-decision process. The parliament has been trying to informally negotiate with the Council for over four months (since 16 November last year) - it should immediately withdraw from the "trilogues" and formally adopt its first reading position at the very next plenary session."

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In January the three Vice-Presidents, Renzo Imbeni, James Provan and Ingo Friedrich, responsible for the "co-decision procedure" issued a report which warned of the dangers for the parliament of informal agreements to resolve differences with the Council without proper parliamentary control.

There are two procedures involving the European Parliament's role of new measures put forward by the Council or the European Commission. The first is "consultation" where the parliament has to be consulted and its views may or may not be taken into account. The second is "co-decision" where the parliament, the Council and the Commission all have to agree on a new measure. "Co-decision" applies on most measures put forward by the Commission (except those on immigration and asylum under Title IV TEC which is still under "consultation").

The procedure for "co-decision" is set out in Article 251 of the Treaty establishing the European Communities (TEC). A proposal is put forward by the Commission and the European Parliament adopts a first reading position (by putting forward amendments to the Commission proposal). The Council (the 15 EU governments) can then either agree with the parliament (in which case the measure can be adopted quickly) or adopts its own "common position". If the latter happens the Commission tells the parliament of its reaction to the Council's common position and the parliament can then agree with the Council or propose further amendments within three months (second reading position). Within three further months the Council can either agree with the parliament's amendments or reject all or some of them in which case a "Conciliation Committee" is formed with representatives of the three institutions - this committee has six weeks to agree a final text or the measure fails.

Under the Amsterdam Treaty (and later under the Treaty of Nice) the number of issues covered by "co-decision" was extended. The report by the Vice-Presidents of the parliament opens by noting that the "character" of the co-decision procedure "is undergoing very rapid change" with an important "change in the behaviour of the Council". In the past, the report says, the Council "tended to pay limited attention to the parliament, keeping it at arm's length", now:

"all parts of the Council - Presidency, Coreper and Secretariat - have adopted a conscious strategy of developing contacts with the parliament. It regularly establishes contact with rapporteurs early in the procedure and has deepened relations with committee chairs. And it now enters into informal negotiations as soon as and as often as it can with a view to reaching as many agreements as possible before conciliation, whether at first reading or second reading."

The report of the Vice-Presidents recalls a report sent to the Nice Summit which called for "appropriate trialogue format(s)" to be held with "appropriate contacts" which they say means transferring the "techniques of conciliation" (ie: negotiations during the final Conciliation Committees under Article 251) to the earlier stages of the first and second readings.

The report sees "two manifest dangers" (emphasis in original) in this new Council methodology. First, the parliament could simply become the "16th Member State" with:

"reduced opportunities for wider societal and political interests to introduce their points of view into the decision making process. Governmental interests as expressed in the Council would tend to prevail more often."

Or, put another way, civil society is excluded.

Second, the "open and public debate" in the committee and plenary stages of the parliament would be "reduced" by "informal negotiations taking place elsewhere".

The Vice-Presidents' report says that any "shortening of the legislative procedure should be the subject of an express political decision" (emphasis in original). The main point of contact with the Council during the first and second readings, the report says, should be through the committee meetings. Only when a formal Conciliation Committee is sitting is a delegation authorised to act on behalf of the parliament as a whole. Instead of setting up "informal" trilogue meetings the Council should "appear in front of our committees". If the Council can achieve its ends through informal meetings then it will "never consider coming to committees with any seriousness."

The report says there should be two procedures laid down by the Conference of Committee Chairs. First, a procedure for the "fast-tracking" of "technical and politically non-controversial" measures. Second, for all other measures an EP delegation should be "established", committees should decide what kind of contacts should be made (eg: trilogues), "all negotiation should be based on an appropriate mandate", the form and a timetable for reporting back should be agreed, these report-backs should be in committee ("in public") and the documents made available, and that all the committees concerned should be involved (eg: the "Hughes" or "enhanced Hughes" procedure which involves a number of committees.

Full text of the Vice-Presidents' report: Report (Word 97) Report (pdf)

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