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Viewpoint: By agreeing to negotiate new laws in secret trilogues is the European Parliament deepening the "democratic deficit"? (by Tony Bunyan)

01 August 2006

The European Parliament (referred to as "parliament" hereafter) and the Council of the European Union (the 27 governments) are currently discussing a revision of the "Joint Declaration on practical arrangements for the codecision procedure".

The parliament has two different powers over new measures: a) codecision (under Article 251, TEC) was introduced in the Maastricht Treaty (1993) whereby the Council and parliament have to agree on the adopted text. In the Council qualified majority voting applies. This covers all "first pillar" measures (economic and social) and most immigration and asylum measures (since 2005) and b) consultation where the parliament is asked for an Opinion which is routinely ignored (Article 250, TEC). Unanimity in the Council is required. Consultation covers Title VI of the TEU on police and judicial cooperation ("third pillar").

Within the codecision process there are a number of stages. The ultimate stage is where there is no agreement between the Council and the EP and a "Conciliation Committee" is set up. This has equal numbers of Council representatives and MEPs - the Council voting by qualified majority and the EP by a majority of members.

A Conciliation Committee is only set up after the parliament has gone through a number of stages: committee stages, first and second reading (in plenary sessions).

The Council and the parliament are co-legislators on the basis of a Commission proposal under codecision. First, the parliament adopts its Opinion then the Council adopts a Common Position (having seen the parliament's views) - this is known as "first reading" by both parties. When the Council has adopted its Common Position the parliament can make amendments which the Council can accept or reject in the "second reading".

However, since the Amsterdam Treaty came into effect in 1999 a plethora of informal and semi-formal meetings have taken over from the formal process above in many instances.

This feature looks at this development and draws on articles by Henry Farrell and Adrienne Heritier ("The invisible transformation of codecision: problems for democratic legitimacy", 2003) and by Anne Rasmussen and Michael Shackleton ("The scope for action of European Parliament negotiators in the legislative process: lessons of the past and for the future", 2005). It then looks at the proposed revised "Joint Declaration" on codecision between the Council and the parliament.

Codecision and legitimacy

The process is confusing enough for the outsider or interested researcher (let alone the media). This is further complicated as there are two different kinds of "trilogues" in the codecision process. The first kind of "trilogue" prepares meetings of the Conciliation Committee and takes place between representatives of the Council, Commission and the parliament.

While the differences on codecision measures at the committee and plenary stages in the parliament are public, as are the debates and the votes, these trilogues remove from public view "compromises" reached in secret meetings between the institutions. These semi-formal trilogues involve the Vice-Presidents, committee chair and rapporteur of the parliament and the Council Presidency and the working party.

Far more insidious is the second form: informal trilogues. These secret meetings try to avoid any meaningful public and open sessions in committee and plenary in the parliament.

They seek to reach an "early agreement" between the Council and the parliament and often lead to "fast track legislation" or "1st reading compromises".

Farrell and Heritier argue there is an additional factor, namely that the larger member states:

use their clout in parliament to manipulate the legislative process in a non-accountable, and non-democratic fashion

An associated factor - particularly in justice and home affairs matters - is the "unholy alliance" of the two largest groups in the parliament, the