Where European democracy goes to die

Where European democracy goes to die

EU leaders are fast-tracking legislation. Critics say lawmaking is pushed out of public view.

By HARRY COOPER 12/7/16, 5:25 AM CET Updated 12/7/16, 7:53 AM CET

http://www.politico.eu/article/where-european-democracy-goes-to-die-european-parliament/

The EU is pushing more of its lawmaking out of public view.

Its stated motivation is to prove to an increasingly Euroskeptical public that it can move quickly when it needs to. Critics say it’s dumping oil on the Euroskeptic pyre.

Next week, the heads of the Commission, Parliament and the sitting president of the Council are expected to embrace “priority treatment” for about 40 draft laws, including the end to mobile roaming fees in Europe and eurozone budget reform.

In effect, that means legislators, under pressure from EU leaders, will be forced to agree on the most sensitive issues in closed-door “trilogues,” confirming a recent trend that has seen less public scrutiny of far-reaching legislation in parliamentary committees and the plenary.

Concerned about how key negotiations are being pushed into the shadows, transparency campaigners and corporate lobbyists have formed an unlikely coalition in response.

In the past, EU laws proposed by the Commission generally went through up to three rounds of debate and amendment between the Council and the Parliament before entering the statute books. This meant all 751 MEPs had the opportunity to scrutinize draft laws, and the positions of individual governments were fixed before final negotiations began.

In recent years legislators have preferred to finalize legislation as early in the process as possible. “First readings” save time by keeping sensitive negotiations free of political grandstanding, the institutions argue.

However, critics charge that this approach to lawmaking limits democratic oversight and undermines trust in EU institutions, as neither the Council nor the Parliament announces when these closed-door meetings take place or make public any of the documents from the sessions. The absence of a paper trail makes it almost impossible to know why or how decisions were taken.

“If you drink with the right person, then you can get the information” — Sven Giegold, Green MEP

“The meetings are a major transparency black hole where large concessions are won and lost with very little oversight and without public disclosure,” said Alberto Alemanno, a professor in EU law at HEC Paris. “Originally a short-cut for overworked MEPs and officials overwhelmed by co-decision files, trilogue has become the norm for thrashing out agreements on most EU legislation.”

Alemanno said that, during the last legislative term, there were 1,500 trilogue meetings and that, as a result, more than 80 percent of Commission initiatives were adopted at first reading.

The Parliament’s former administrative chief of the Civil Liberties Committee, Emilio de Capitani, was among the first to orchestrate an informal meeting between the institutions — what later evolved into the trilogues — to meet a tight political deadline in 2001 on the creation of the European Data Protection Supervisor. However, de Capitani says that he helped open Pandora’s Box and is now suing his former employer in the European Court of Justice for violating the transparency provisions of the Lisbon Treaty.

The Parliament defended the practice last year when it rejected de Capitani’s demands for access to sensitive meeting documents, saying in an email seen by POLITICO: “Full disclosure of the compromise proposals before agreement … might affect the required mutual trust between the institutions and, thus, the negotiating process, thereby diminishing the chances of reaching an overall agreement.”

Many MEPs agree, saying the secretive process ensures legislation gets done faster. “It isn’t perfect but it’s more efficient than the formal procedure,” said Czech Liberal MEP Dita Charanzova, a member of the Internal Market Committee.

Avoiding trench warfare

MEPs often rely on the expertise of companies and activists to evaluate highly technical draft laws. But that gives corporate lobbyists and well-connected civil society activists lines into the negotiating rooms, and thus privileged access to sensitive information outside the public eye.

“If I wanted to know what the ECR (European Conservatives and Reformists) or the EPP (European People’s Party) were cooking, I would call the lobbyists and they would often have the papers before the people in the room,” said Green MEP Sven Giegold, who is a member of the powerful Economic Affairs Committee. “If you drink with the right person, then you can get the information.”

A case in point is the Money Market Fund Regulation, which was agreed informally between Parliament and Council negotiators last month after five closed-door meetings. The proposal, which will affect a financial market in Europe worth a €1 trillion, must be rubber-stamped by a majority of the plenary in Strasbourg next month, even though only five or six MEPs were involved in the negotiations themselves.

“Up until the trilogue itself, it’s a fairly open process,” said Martin Bresson, a senior advisor at the global consulting firm FleishmanHillard, who worked for the Danish government on banking regulation before moving to the world of lobbying. “But in the trilogue, it’s 100 percent a lottery to see if the amendments you’ve submitted to MEPs survive.”

And even lobbyists can struggle to navigate this stage of the legislative process, he said. “The lack of transparency … means you have to be well-connected to a fairly small group of people.”

Europe’s largest business lobby, BusinessEurope, argues that the meetings should only be used for “legal and technical fine-tuning.”

But Bresson doesn’t want to get rid of the closed-door meetings altogether. Without them, he said, “you would just have trench warfare, a phony war just exchanging principles.”

NGO activists, who tend to be closer to left-wing MEPs, can also benefit. “Lobbyists from multinationals or industry associations are not privileged over NGOs, which are very active in trilogues thanks to their well-developed networks within the EU institutions,” said Professor Daniel Guéguen, head of strategy at Pact Europe, a consultancy that advises companies how to navigate Brussels.

Change afoot

There’s now a rising tide of criticism from stakeholders both inside and outside the EU institutions about how the informal meetings have become a fact of life.

By the end of this month, the European Parliament will have to respond to demands made by the European ombudsman, Emily O’Reilly, earlier this year to “de-mystify” the negotiation process. She wants sensitive documents published and agendas made available online, among other things.

Her move has been welcomed by an unlikely alliance of corporate lobbyists and transparency campaigners, who are also demanding that meetings are made more open.

“We are not categorically opposed to negotiations behind closed doors,” said Daniel Freund, a campaigner at Transparency International. “But it needs to be clear what goes in and what comes out.”

Europe’s largest business lobby, BusinessEurope, went further, arguing that the meetings should only be used for “legal and technical fine-tuning … Political debates must be fought out in the open,” said Christian Feustel, a senior policy advisor at the organization.

MEPs will vote on changes this month that would force sensitive meeting documents to be published and give the full Parliament the opportunity to prevent a committee beginning negotiations with governments.

“It’s not easy to regulate informal activity with formal rules of procedure,” said U.K. MEP Richard Corbett, who drafted the proposals. “But at least [the changes] would even things up between the big corporates and the NGOs.”