Compromise in trilogues

by | 28 May 2024 | Governance

The documentary (in French) will remain available until October 27, 2024 on the ArteTV streaming platform: “The compromise – Behind the scenes of power” plunges us into the mysteries of the negotiation around the due diligence directive (CS3D in English for “Corporate Sustainability Due Diligence Directive”). The European counterpart of the due diligence law which was adopted in France in 2017.

She makes us follow the young Dutch socialist MP Lara Wolters, rapporteur of the bill, supported by the Finnish ecologist Heidi Hautala and the Frenchwoman Manon Aubry of The Left in the European Parliament.

There is much to say about the adoption of this text last March and the last minute opposition it encountered, particularly in the Council.

But it is also in the form that the documentary is fascinating, lifting the veil on the process of the making of the law in Europe.

As in season 2 of the series “Parliament”, we are immersed in the strangeness of the “trilogues”.

It was an institutional agreement of June 2007 entitled “Joint declaration on the practical modalities of the co-decision procedure” which established the trilogues, even if they had been born de facto well before.

The Treaties, for their part, had envisaged a classic parliamentary shuttle between the two co-legislators (the Council of the European Union which represents the Member States and the European Parliament representing the citizens). A possible meeting of a conciliation committee, similar to the French joint commission, could theoretically complete the process.

Initially, we are well within the functioning of the Treaties. The European Commission sends a proposed text to the Parliament and the Council of the Union who then develop their position: in Parliament, by holding hearings and debates in parliamentary committee on the report which will act as a road map (c is what the documentary tells very well); in the Council, within the Committee of Permanent Representatives Coreper) which strives to find a majority within the 27

The trilogues, which are also called “informal interinstitutional negotiations”, then aim to develop the positions of each of the institutions into a common position. Season 2 of the Parliament series brilliantly illustrates these closed-door discussion sessions between representatives of Parliament and the rotating presidency… under the gaze of the Commission.

Does this process ignore democracy?

The question focused around a very specific instrument, the “four-column document”

“Four-column documents” are central to this democratic issue. The first column contains the initial proposal from the European Commission, the second and third present the positions of the Parliament and the Council respectively, and the fourth shows the compromise reached, which will then be validated in the final text. What is therefore crucial is to be able to access the second and third columns to understand how the text has evolved.

In a judgment of March 22, 2018 De Capitani/European Parliament, the Court of Justice of the Union observes that “the trilogue meetings are held behind closed doors and the agreements reached during them are usually reflected in the fourth column of the trilogue tables, are subsequently adopted – most often without substantial modifications – by the co-legislators.” She concludes that “transparency in the legislative process which, by allowing divergences between several points of view to be openly debated, contributes to giving the institutions greater legitimacy in the eyes of the citizens of the Union and to increasing public confidence in these institutions.”

For these reasons, the Court annulled the decision by which Parliament had rejected the request by Mr. Emilio De Capitani, an Italian professor of European law, for access to documents, considering “that none of the reasons invoked, taken in isolation or in their taken together, demonstrates that full access to the documents in question was likely to undermine… the decision-making process in question.”

Since this decision, and even though Parliament has granted other requests for access to trilogue documents, the Council has less energy…

So, if you don’t have the courage to start requesting these documents, discover the discussions around CS3D on Arte-TV?

Iconography : Lara Wolters. Extract from the documentary « Le Compromis. Dans les coulisses du pouvoir », from Fanny Tondre and Yann Ollivier ã  ZADIG PRODUCTIONS/FACTSTORY/ARTE