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EU: The Council challenges the right of the European Ombudsman to conduct an inquiry into secret "trilogues" (in which most EU legislation is decided)

24 September 2015

In May 2015 Emily O'Reilly, the European Ombudsman, began an Own-initiative Inquiry on the "transparency of trilogues (pdf).

"Trilogues" are meetings of the two EU co-legislators: the Council of the European Union (the 28 EU governments) and the European Parliament (with the European Commission in attendance). The purpose of trilogues is to speed up decision-making by agreeing new legislative measures quickly at 1st reading.

The two main aims of the Ombudsman's Inquiry are:

"the disclosure of documents relating to so-called "trilogues" and the:

"transparency of trilogues in general."

The Ombudsman said in the letter to the Council that: "This is a matter which has been drawn to my attention by several MEPs, MPs from some Member States as well as by business and civil society groups."

The Council agreed its response to the Ombudsman at COREPER on 16 September (pdf):

The Council reply letter to the Ombudsman (pdf).

On the second aim of the Inquiry - the transparency of trilogue meeting - is defined by the Council as "informal meetings" of the three institutions. The Council questions the remit of the Ombudsman which it says is limited to "(mal)administration" as distinct from legislative matters, which is the preserve of the co-legislators.

One the first aim - the disclosure of documents under discussion - the Council is:

"by contrast.. ready to engage in a fruitful debate with the Ombudsman"

However, the Council invokes Article 4.3 of the Regulation on public access to EU documents (1049/2001):

"The General Secretariat of the Council, after final adoption of a legislative act, makes any ST document relating to this act available to the public via the public register...[but]

the General Secretariat services will carry out consultations with the author of the document if required and then assess whether the disclosure of the requested document would undermine the protection of one of the interests identified by Article 4 of the said Regulation. A particular attention will be paid to the existence of the risk that disclosure may seriously undermine the on-going decision-making process. In such a case, access will be refused unless an overriding public interest can be identified." [emphasis added: "an overriding public interest" is never admitted]

This response by the Council leaves no room for "a fruitful debate" as it simply seeks to preserve the status quo.

Steve Peers, Professor of Law, University of Essex, comments:

"The Council's objection to the Ombudsman's competence is totally unfounded.

The Ombudsman is clearly not questioning the substantive outcome of the political negotiations in trilogues, or the decision to hold trilogues in particular cases, or the existence or organisation of the trilogue system as a whole. The investigation only concerns the transparency of trilogues, and access to trilogue documents. Access to documents is clearly a question of (mal)administration, and the overall rules and practice on transparency (ie, whether there is a register of ongoing trilogues) necessarily hugely influence the specific issue of access to documents in practice. So there should be no doubt whatsoever about the Ombudsman's competence to hold the investigation.

As to the substance of the Council's argument, it is equally unfounded. It entirely ignores the practical problems that the obscure organisation of trilogues has upon their transparency, and it equally ignores the case law of the CJEU requiring great openness in the legislative process (Turco, Access Info)."

Tony Bunyan, Statewatch Director, comments:

"The notion that trilogue meetings are "informal" is laughable.

When the two co-legislators - the Council and the European Parliament - meet in secret trilogues it is in effect the "EU legislature". The agreed "compromise" text is formally transmitted by the Council Presidency to the Chair of the parliament Committee. The text cannot be changed - not a dot or comma - by the parliament's Committee or by its full plenary session.

Closed trilogue meetings can last several weeks, no agendas or Minutes are produced and the documents under discussion are not made publicly available by the institutions - until after the adoption of a new measure. Moreover, the Commission has failed to to forward a proposal to implement Article 15.3 of the Lisbon Treaty which requires "the publication of documents relating to legislative procedures"

Over 80% of all new EU laws are agreed in these secret trilogues - they should have no place in a democracy worthy of the name - they should be in the open with full public access to documents so that we can see what is being decided in our name."

As part of the Inquiry the Ombudsman has organised a Consultation meeting (link) on 28 September 2015 (10.00 - 12.00 in Room JAN 4Q1 of the European Parliament in Brussels.

Statewatch was amongst the first to criticise secret trilogues: See:

- Secret trilogues and the democratic deficit (September 2007, pdf)

- European Parliament: Abolish 1st [and 2nd] reading secret deals - bring back democracy “warts and all” (pdf)

- Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments (pdf)

- This is not the first time that the Council has challenged the remit of the Ombudsman: (1997): How the Council switched on Statewatch's complaints