Op-Ed: “The Intricacies of Trilogue Transparency” by Tanja Ehnert
The lack of trilogue transparency is an issue that has occupied civil society, academics, the EU courts and the European Ombudsman for some time. This is hardly surprising, given the important part these tripartite negotiations play in the EU legislative process. Trilogues are informal meetings between representatives of the European Parliament, the Council of the EU and the European Commission. During a trilogue, the EU co-legislators try to reach agreement on a legislative proposal, which is then voted on according to the formal legislative procedure. As trilogues have proven to be very effective at finding compromises, most legislation is now adopted this way.
Precisely because trilogues play an important part in the legislative process, they must adhere to the highest standards of transparency. This not only enables the public to hold the co-legislators to account for their actions, it also allows citizens to exercise their treaty-based right to participate in the democratic life of the EU. The principle of legislative transparency is enshrined in the Treaties and is reflected in the EU’s law on public access to documents, Regulation 1049/2001, which states that “legislative documents” must be directly accessible to the public, unless their disclosure would undermine one or several public or private interests explicitly protected.
As trilogue meetings are not held publicly, the only way for the public to follow the tripartite negotiations is by accessing relevant documentation. One key tool in this context is the ‘four-column’ document. This document combines the initial positions of the three institutions − set out in the first three columns − with a fourth column, which is normally used to track the evolving positions of the institutions in ongoing trilogues, to take stock of provisional compromises found or to record comments made by the institutions during the negotiations. The institutions taking part in a trilogue share such content with each other.
The issue of trilogue transparency and, in particular, the disclosure of the fourth column of trilogue documents reached the General Court in 2015 by means of an action for annulment, Emilio De Capitani v European Parliament (T-540/15). In order to preserve the efficiency of the legislative process ‘at a very sensitive stage in interinstitutional negotiations’, the three institutions taking part in trilogues urged the General Court to find a general presumption of non-disclosure regarding the fourth column of trilogue tables while negotiations are ongoing. They took the view that disclosing provisional compromises would lead to public pressure on the negotiating teams and make the co-legislators more wary of sharing information and cooperating with each other. It was also argued that ‘nothing is agreed until everything is agreed’.
The General Court rejected these arguments. In its landmark ruling of 2018, the Court found that ‘the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights’. In particular, this would imply having access to all columns of the ‘four-column documents’, which track the positions of the institutions expressed during trilogue negotiations. Access to such documents should be denied based only on an individual assessment of the documents in question and ‘in duly justified cases’.
Earlier this year, the European Ombudsman received a complaint on the issue, after the Council refused to grant full public access to four-column documents relating to trilogue negotiations on draft legislation for motor vehicle emissions. The Council granted access to only parts of the fourth column, arguing that disclosing the remaining parts could undermine the ongoing decision-making process. The complainant turned to the Ombudsman, with the request to examine the Council’s redactions in view of the Court’s case-law and the particular public importance of the legislative proposal.
The Ombudsman opened an inquiry and used her inspection powers to analyse carefully the four-column documents at issue. She found that the redacted parts of the fourth column in these documents do not contain, as they usually do, the provisional compromises or comments that the institutions have put on the negotiating table, but that they contain the Council’s strategy for the ongoing negotiations with Parliament – its ‘red lines’ and areas of flexibility. The Ombudsman was able to confirm that the Council had redacted only its strategy regarding those parts of the legislative process on which provisional compromises had yet to be found.
The inquiry gave the Ombudsman the opportunity to reflect on the issue of trilogue transparency and, in particular, the public interest in the disclosure of trilogue documents while negotiations are ongoing. The Ombudsman had already called for more trilogue transparency following a major inquiry that she conducted on her own initiative in 2016. In this new inquiry, taking the 2018 judgment into account, the Ombudsman considered that, in order for the public to participate in trilogue negotiations and, hence, influence the legislative process at this crucial stage, it must be in a position to access the positions, proposals and/or comments that the institutions have put on the negotiating table, and to know the preliminary results of trilogue negotiations. This would allow the public to know as much as the negotiating partners about each other’s positions. To this end, the public should, in principle, have access to four-column documents that track the progress of negotiations.
In the case brought to the Ombudsman’s attention, however, the documents were of an entirely different nature. Instead of containing content shared between the participating institutions, the four-column documents held by the Council set out the Council’s negotiating strategy, which the Council had not shared with the European Parliament or the Commission while negotiations were ongoing. The Ombudsman thus acknowledged that releasing the Council’s negotiating strategy before it was deployed by the Council could seriously undermine the Council’s negotiating position and, thus, the decision-making process. As such, she considered the redactions justified in that context.
This inquiry exemplifies the intricacies of trilogue transparency. While there is, generally, a clear public interest in disclosing documents related to the legislative process, so that citizens can effectively scrutinise it (as repeatedly emphasised by the Ombudsman), in exceptional cases non-disclosure may be justified for a limited period of time to ensure the proper functioning of the negotiations. Indeed, also in this inquiry, the Ombudsman said that restrictions on access should be limited in time and that, once provisional compromises on the relevant parts of the documents are found, these parts, including the Council’s negotiating strategy regarding those provisional compromises, should, in principle, be disclosed. In that way, the public can scrutinise the Council’s negotiating strategy ex post, so as to hold the institution to account for its actions during the negotiations.
Tanja Ehnert is Inquiries Officer at the European Ombudsman. She holds a PhD in European law from Maastricht University and is the author of the book ‘The EU and Nanotechnologies: A Critical Analysis’ (Modern Studies in European Law), Hart Publishing, 2017.