Negotiation involves strategically addressing an issue in a way that all parties find acceptable. In a negotiation, all parties try to influence and convince the others in accordance with their interests. At the international level, negotiation is a solution-seeking process based on power, and a specific dispute can either be completely resolved or may not be completely resolved by all parties' satisfaction.
As one of the most influential organizations, for the European Union to function, negotiations are crucial. The formation of the union has brought significant effects on the policy-making process. Unlike most of the exclusively state-dominated international organizations, legislation in the European Union is carried out as a political process where power is distributed among institutions. In this sense, there are some differences between EU negotiations and traditional international negotiations. The Member States must influence negotiation processes to be able to shape the formation and implementation of common policies. This 101 series is dedicated to discussing the negotiation process within European Union.
Negotiations within European Union 101 is divided into five chapters:
Negotiations within European Union: Trilogue Negotiations
Negotiations within European Union: Hard Bargaining versus Problem Solving
Negotiations within European Union: Discussion of IGC 200
Negotiations within European Union 101: Trilogue Negotiations
The formal legislative process of the European Union operates through the agreement of all three main institutions’ (the Commission, the Parliament, and the Council) agreement on a related proposal. As a natural result, receiving the consent of all parties involves time-consuming negotiations with a vast amount of workload. Since negotiations come to a halt frequently, this process was criticized for disrupting the functioning of the Union and raised concerns about the efficiency of decision-making to address public issues on time. Therefore, legislators devised an informal process to expedite and facilitate negotiations. However, this brought various shortcomings as well and raised questions about the democracy and rule of law within the Union. The usage of this mechanism significantly increased and became common practice within and among institutions. This informal process is called trilogue negotiations. 'In the period since the early 2000s, legislative negotiations in the European Union (EU) have undergone increasing informalization' (Laloux, 2019, p. 2). The lexical definition of trilogue is a meeting of three parties yet, in this article trilogue negotiation refers to both intra-institutional and inter-institutional informal decision-making processes, which might include more than three actors. After examining the formal and informal decision-making process, this article emphasizes two opposing views regarding democratic legitimacy concerns regarding the use of trilogies.
The ordinary legislative procedure, also known as co-decision procedure, involves negotiations within and among the institutions in a formal setting. Since this formal mechanism of decision making explained in detail in the first and second articles of this series, a general definition is provided in this article. The Commission submits a proposal to the Parliament and the Council, which can be amended or accepted as it is. If the Parliament and the Council cannot reconcile during the first reading, there will be a second reading and mediation. This procedure directly explained and introduced in Maastricht Treaty and became the main method for passing resolutions upon the agreement of the Member States. As successive increments were added, co-decision came to encompass 44 policy areas, covering at least 50 per cent of the commission's proposals under the first pillar (Judge & Earnshaw, 2011, p. 54). Since the scope is expanded, the shortcomings in the negotiations became tedious, causing co-legislators to search for different ways to facilitate the process.
Trilogues are private and cloistered meetings in which the delegates of the legislative institutions negotiate in an informal setting. The outcome of these negotiations is intended to be formally adopted by the European Parliament and the Council of the European Union later, thus accelerating the legislation process. After the Treaty of Maastricht, legislative powers of the Parliament increased as the range of areas subject to qualified majority voting was expanded. In addition to the concerns of the Member States caused by qualified majority voting, co-decision procedure with the Council and the Parliament increased the likelihood of conflict, resulting in a more complicated legislation process. That is why, it can be said that unexpected consequences of the formal change of the Maastricht Treaty is the main explanation for the creation of informal trilogues (Laloux, 2019, p. 2). Initially, trilogues were devised as an aid to simplify and fasten the negotiation process among and within the institutions. In the presence of obstacles to the implementation of the formal procedure, informal trilogues expedited and facilitated the process.
Over time, the institutions of the European Union and the Member States realized the capacity of trilogues to reduce the struggle during negotiations and made a resolution pass in the first reading, which was discussed in the first article of this series. As a result, trilogue negotiations have become more and more common in EU legislative decision-making. In the period since the early 2000s, legislative negotiations in the European Union have undergone increasing informalization and during the eighth EP legislature, the vast majority of EU legislation was based on such informal negotiations (Laloux, 2019, p. 2). Since trilogues are a part of the informal process, they are not incorporated into treaties, meaning that their content and outcomes are not directly agreed upon. Therefore, the tendency towards the trilogues raised concerns about democratic legitimacy and transparency in the decision-making process.
The formal and informal negotiations are compared in various aspects including their efficiency, outcomes and effects, yet no consensus has been reached. Nevertheless, a simple and accurate comparison can be made in terms of the way they are structured. First of all, as it was stated above, informal negotiations are not incorporated into treaties, unlike the formal process. In terms of legal perspective, no rules apply during informal negotiations. This brings out the difference between the results. Without a legally acceptable indication approved by the parties, the agreements made through informal negotiations are not valid. The final difference is transparency. The identities of negotiators and the topics discussed during informal negotiations are secluded and not documented, whereas formal negotiations require documentation and are relatively open to the public.
In general, trilogues are perceived as democratically illegitimate since transparency is one of the most important components of democracy and rule of law. According to Curtin and Leino, reputable professors specialized in European Law, when the institutions exercise legislative functions they are in fact exercising highly political functions that define the fundamental policy choices of the Union’s action and This requires not only passive transparency in the form of access to documents but also proactive transparency by the institutions themselves (Curtin & Leino, 2017, p. 4). A democratic system is unlikely to function properly without ensuring that citizens are actively participate in the decision-making process and inspect it closely and thoroughly.
The European Union has been promoting transparency and inclusiveness and aimed to pave the way through the Maastricht Treaty. However, trilogues became more and more common in the Union as an unwanted result. On the other hand scholars like Florin Popa, who is also policy officer at European Commission, argue that the Union is not simply an extension of state-level administration and its tasks differ according to policy areas and can extend to exclusive responsibilities (Popa, 2010, p. 97). Therefore, the role of informal consultation, negotiation and exchange of expertise remains significant even if inter-institutional decisions are taken based on formalized procedures stated in the treaties (Popa, 2010, p. 98). Yet, there is no consensus on the debate over the formal and informal decision-making process.
Curtin, D. M., & Leino, P. (2017). In search of transparency for EU law-making: Trilogues on the cusp of dawn. Common Market Law Review, 54(Issue 6), 1673–1712. https://doi.org/10.54648/cola2017146
Judge, D., & Earnshaw, D. (2011). ‘relais actors’ and co-decision first reading agreements in the European Parliament: The case of the advanced therapies regulation. Journal of European Public Policy, 18(1), 53–71. https://doi.org/10.1080/13501763.2011.520877
Laloux, T. (2019). Informal negotiations in EU legislative decision-making: A systematic review and Research Agenda. European Political Science, 19(3), 443–460. https://doi.org/10.1057/s41304-019-00213-5
Popa, F. (2010). Formal and Informal Decision-Making at EU Level. Cogito, 2(4), 97-109. https://www.proquest.com/scholarly-journals/formal-informal-decision-making-at-eu-level/docview/1269659332/de-2
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