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EU co-decision procedure & the dismantling of democracy

A major constitutional change in the development of the powers of the European Parliament was introduced by the Maastricht Treaty – opposed by Bill Cash and eurosceptic MPs – under the co-decision legislative procedure. The new legislative procedure was then extended and adapted by the Treaty of Amsterdam and Nice. The legislative powers of the European Parliament were substantially increased. In fact, the co-decision procedure, when first introduced it applied to 15 legal bases and it now covers 43 areas under the first pillar. It is now the normal legislative procedure, which means that the Council and Parliament act as co-legislators on a Commission-originated proposal with no legislative role provided by the national Parliaments.

Under the co-decision procedure Council and Parliament act as co-legislators on the basis of a Commission proposal. Hence, a Commission legislative proposal only becomes law if both of them approve it. The European Parliament is, therefore, on equal footing with the Council, which acts by majority of all the Member States. The European Parliament has a stronger negotiation position as it can use its right of rejection to negotiate compromises with the Council. The European Parliament can accept, amend or reject the content of a legislative proposal. The European Parliament can make changes to the Council common position that make a substantial difference to the content of the legislation. The European Parliament has been promoting European integration. It always votes for further harmonisation of the EU Member States laws.

The European Parliament is the only EU institution directly elected therefore it is has been said that co-decision enhances democracy in the EU. However this procedure is, in fact, undemocratic. We have been assisting with the proliferation of informal meetings and early agreements through the co-decision procedure. Such informal trilogues are aiming at reaching an agreement before the Council adopts its common position or the European Parliament adopts its position in name of the efficiency of decision making. The debates on European legislation are not open or transparent since important decisions are made behind close doors with no accountability.

The co-decision procedure has enhanced the efficiency of decision-making but it disregards transparency and accountability. The Commission has a monopoly of legislative initiative in all the areas which are subject to the co-decision procedure. In the majority of the cases co-decision goes hand in hand with qualified majority voting in the Council.

The Commission’s legislative proposals are forwarded to the European Parliament and to the Council. The relevant parliamentary committee for examination of the Commission proposal appoints a rapporteur who is responsible for presenting a draft report to the committee proposing amendments to the proposal. The proposals are far too complicated for anyone other than experts in the EU to further it, which is also undemocratic. The parliamentary committee responsible votes on the Commission’s proposal as amended on the basis of a simple majority. The committee proposes to the plenary either the approval or the rejection of the Commission proposal, or the tabling of amendments. Further amendments to the report may be tabled by political groups or at least 37 Members and put to the plenary’s vote.

The Commission may alter its legislative proposal in order to incorporate European Parliament amendments if it believes it will improve the initial proposal or are likely to facilitate an agreement. However, the European Parliament most of the time votes to tighten the Commission’s proposals such has happened on pesticides ban Regulation and the working time directive.

The Council’s preparatory work takes place within working parties. The working parties consist of officials from the Member States who prepare the dossiers at technical level and they are chaired by the Member State holding the Presidency of the Council. This preparatory work runs simultaneously with the European Parliament’s activity.

The Permanent Representatives Committee or “Coreper” consists of theMember States’ ambassadors to the European Union (“Permanent Representatives”) and national civil servants. It is chaired by the Member State which holds the Council Presidency. Coreper assists the Council in dealing with proposals for legislation. Coreper prepares every Council decision taken at Ministerial level. It seeks to reach agreement at its own level on each dossier otherwise it may suggest solutions to the Council. The Council of Ministers adopts the decisions prepared by Coreper either without debate, when an agreement has already been found (“A” item), or with debate (“B” item). This, too, therefore is undemocratic.

The act is adopted, by a qualified majority, if the Council accepts without amendments the Commission’s proposal, which the European Parliament has not amended or the Council accepts all the European Parliament’s amendments which the Commission has incorporated into its amended proposal otherwise the Council adopts a common position. The Council adopts a Common Position when it does not agree with the European Parliament. The Council goes from the general approach, before the European Parliament adopts its opinion, to a political agreement, then to a common position unless the European Parliament amendments coincide with the general approach which allows the act to be adopted. The general approach speeds up work and makes easy an agreement on first reading. The next step of the preparatory work is the political agreement which contains the broad guidelines of the future common position. The working party finalises the details of this agreement which are formally adopted as a Common Position by the Council of Ministers at a subsequent meeting, mostly without a debate.

However, the problem is that most of the time the acts are adopted without a formal vote. As regards “A points” there is no vote at all as the agreement was reached by Coreper therefore the Council presidency simply mentions that they have been adopted. As regards “B points” usually the Presidency notes that the required majority has been achieved. Hence, if any Member States objects the act is adopted without the Council formally voting.

Co-decision was allegedly introduced in order to strengthen the democratic legitimacy of the European Union but it is both undemocratic and has harmful consequences for transparency and accountability. It should be recalled that the Treaty of Amsterdam – also opposed by Bill Cash – introduced the “early agreements”, the possibility of bringing co-decision dossiers to a conclusion at the end of the first reading without the need for the Council to adopt a common position.

In 1999, under Tony Blair’s Government, the European Parliament, the Council and the Commission adopted a Joint Declaration on practical arrangements for co-decision when the Treaty of Amsterdam came into force. The Institutions confirmed “(…) that the present practice of contacts between the Council Presidency, the Commission and the chairmen of the relevant committees and/or the rapporteurs of Parliament and between the co-chairmen of the Conciliation Committee (…) should be extended to cover all stages of the co-decision procedure.” It does not mention the word “trilogue.” The Declaration provides that “The institutions shall cooperate in good faith with a view to reconciling their positions as far as possible so that wherever possible acts can be adopted at first reading” and that “They shall establish appropriate contacts to monitor the progress of the work and analyse the degree of convergence.” In 2007 the European Parliament, the Council and the Commission reviewed their Joint Declaration which specifically provides that “Cooperation between the institutions in the context of co-decision often takes the form of tripartite meetings (‘trilogues’). This trilogue system has demonstrated its vitality and flexibility in increasing significantly the possibilities for agreement at first and second reading stages, as well as contributing to the preparation of the work of the Conciliation Committee.” Moreover, it reads “Such trilogues are usually conducted in an informal framework. They may be held at all stages of the procedure and at different levels of representation, depending on the nature of the expected discussion.”

The co-decision procedure entails, therefore, a flood of informal meetings in which legislative decisions are taken behind close doors with no scope for public supervision.

Usually, on the beginning of each period of the EU presidency, the chairman of Coreper has a preliminary contact with the several chairmen of the parliamentary committees and rapporteurs involved in co-decision matters in order to discuss their situation and establish a timetable for priority work which will be carried out during the sixmonth presidency. Obviously, if a certain legislative proposal it’s a priority of the presidency, it will push for a first reading agreement. Such discussion involves matters going through a first reading which may be concluded at first reading. They also discuss matters going through a second European Parliament reading for which informal negotiations between the European Parliament and Council may avoid conciliation as well as matters for which conciliation proves necessary.

The Commission’s proposal is examined by the Presidency at working party level. The Council working party follows the progress of work within the relevant parliamentary committee. As soon as it is known the delegations positions on the main issues the chairman of Coreper initiates contacts with the European Parliament rapporteur and with the Chairman of the parliamentary committee. These meetings are also attended by the Commission officials, where the Presidency is assisted by the DG in charge of the dossier. The aim is to identify the different positions establishing, in this way, an initial assessment of the possibilities of concluding the procedure at first reading. Hence, the trilogue meetings take place even before the parliament’s rapporteur or the Council presidency has a mandate. Coreper immediately starts assessing the possibilities for an “early agreement” and may draft proposals for a compromise. Obviously, such meetings continue as informal negotiation meetings for which Coreper, in principle, has given a mandate to the Presidency.

Informal tripartite meetings are therefore organised and attended by the Chairman of Coreper, the Parliament’s rapporteur and the Commission. Leaders of the political groups may also be involved. The Presidency has an enhanced power and influence. Coreper may have a marginal role if the Presidency tries to dominate the policy making process in the attempt to reach early agreements. The European Parliament considers the trilogues an excellent opportunity to increase its influence over the legislative process.

The Parliament and Council seek to reach an agreement on a proposed piece of legislation before the Council adopts a formal Common Position, or the Parliament adopts its official opinion. Usually, takes place between the committee vote and the relevant plenary session.

When an agreement has been reached through informal negotiations, there is a practice, confirmed on the Joint Declaration, whereby the Coreper chairman writes a letter to the chair of the relevant parliamentary committee with the details of the agreement indicating “(…) the Council’s willingness to accept that outcome, (…) , should it be confirmed by the vote in plenary.” A copy of such letter is forwarded to the Commission. The compromise reached on trilogues meetings needs to be endorsed by the Parliament’s political groups, as well as representatives of the Council before being tabled to a first reading plenary vote.

The informal trilogues meetings deals are very difficult to change. The co-decision measures at the committee and plenary stages in the European Parliament are public, as are the debates and the votes but this means nothing as these trilogues remove from the arena of public scrutiny the agreements reached in secret meetings. If an agreement is reached in secret trilogues it is presented to the relevant committee and plenary which, usually, do nothing else but to confirm the agreement.

The informal trilogues bypass the formal machinery. The early agreement is based on informal negotiations than on the formal co-decision procedure. Hence, if such agreement is reached the European Parliament and Council sign up a deal that has already been negotiated by a small group of people. The trilogues are considered an essential part of the legislative procedure. These informal negotiations have been considered as necessary to reach an agreement on legislative proposals. The legislative procedures are speed up. An “early agreement” between the Council and the European Parliament leads to “fast track legislation.” No doubt that they increase the efficiency of decision making however that also weakens and undermines the democratic accountability.

Lack of transparency and lack of democratic legitimacy are intrinsic to these behind close doors deals. The negotiations through trilogues are conducted on an informal and secretive basis. Nobody has an idea of what is going on at those meetings. These meetings documents are not made public. There is no public scrutiny. The trilogues meetings documents are not listed in the public Registers of documents because they are discussed in “informal” meetings.

The co-decision procedure with the inclusion of the trilogue meetings and the early agreements could not have been more undemocratic. It shows how bad things have become, particularly as the unelected European Commission has the sole right of initiating legislation.

Early agreements jeopardize national parliamentary control. Under the co-decision procedure it is more difficult for national parliaments to supervise how EU affairs are conducted. There are also serious consequences for democracy at the national level. An agreement is reached before the European Parliament or the Council has adopted a formal position on the legislative proposal. The negotiations are informal so it is very difficult for national parliamentary committees to assemble information, and to decide speedily enough in order to have any impact on the final outcome of an early agreement dossier. It is almost impossible for the European Scrutiny Committee to analyse legislative proposals brought through under early agreements as decisions are taken before the Member States have even decided on a Common Position.

The UK has fond itself in a position where it has no choice but to accept the “early agreement.” There is no veto therefore it is force to accept a legislative measure.

If no agreement is reached at the European Parliament’s first reading, contacts are carried on in order to an agreement to be reached at the common position stage. Consequently, if an agreement is reached the chair of the relevant parliamentary committee writes a letter to the chair of Coreper indicating his recommendation to the plenary to accept the Council common position without amendment, subject to confirmation of the common position by the Council.

If no agreement is reached the Council adopts a Common position and the European Parliament has three-months to take action on it. The relevant parliamentary committee adopts “the recommendation for second reading”, which is normally the one defended at first reading. Generally, the amendments include amendments adopted at first reading and not accepted by the Council or are concerned with a part of the common position which is substantially different from the Commission’s initial proposal or introduce a compromise between the Parliament and the Council. The parliamentary committee responsible votes on the proposed amendments by simple majority. The common position is approved and the act is therefore adopted if the European Parliament endorses the common position or fails to adopt amendments as a result of not obtaining an absolute majority of its Members. Rejection of the common position requires the votes of an absolute majority of the component Members of the European Parliament. The European Parliament may adopt amendments to the common position by an absolute majority of its component Members then the text amended is forwarded to the Council and the Commission.

Consequently, the Presidency ensures that the working party starts examining the European Parliament amendments. The competent working party prepares a position which is submitted to Coreper and adopted by the Council. The act is adopted in the form of the common position amended if the Council agrees to accept all the amendments of the European Parliament. If the amendments are not accepted, the working party examines possible compromise texts and proposes them to Coreper.

During the European Parliament second reading the Presidency establish contacts with European Parliament representatives aiming at facilitating the acceptance of the Council common position. Consequently, informal negotiation meetings are organised along the lines of those during the first reading. According to the Joint Declaration when an agreement at second reading seems to be possible, informal contacts should be established in the period between the political agreement and the formal notification of the common position.

If an agreement is reached through informal negotiations in trilogues the chair of Coreper sends a letter to the chair of the relevant parliamentary committee with the details of the substance of the agreement indicating the Council’s willingness “to accept that outcome (…) should it be confirmed by the vote in plenary.” Consequently, the compromise amendments are then tabled in parliamentary committee or before the plenary session. The political groups coordinate their votes in order to adopt the amendments negotiated with the Council. Trilogues are not formally binding as the Council nor Parliament are obliged to accept the agreements reached in these meetings. However, Council and Parliament usually stick to the agreement. If the European Parliament votes in accordance with the agreement reached, the Council will adopt the act and the procedure will end. The legislative act is then sign by the Presidents and Secretaries-General of the European Parliament and of the Council, and is published in the Official Journal.

If the Council does not approve all the amendments of the European Parliament, the President of the Council, in agreement with the President of the European Parliament, convenes a meeting of the Conciliation Committee within six weeks. Informal trilogues take place between the end of the Council’s second reading and the convening of the Conciliation Committee in order to prepare the work of the latter. The European Parliament appoints its delegation to the Conciliation Committee and gives a mandate to its negotiators. The Council’s negotiating positions are drawn up in advance by Coreper which constitutes the Presidency’s mandate.

The European Parliament’s representatives are the chair of the parliamentary committee and the rapporteur, assisted by members of the European Parliament’s conciliations secretariat. The Council is represented by the Chairman of Coreper.They explore possible ways of compromise in an informal manner and report to their delegations. The outcome of these trilogues is then submitted to Coreper. The negotiations are focus on all the amendments adopted by the European Parliament at second reading on the basis of the Council’s common position. If an agreement is reached within the Conciliation Committee, the Council Secretariat, or the European Parliament Secretariat prepares the draft legislative text. The Conciliation Committee approves the compromise in the form of a “joint text”. The Council’s delegation acts by a qualified majority and the European Parliament’s delegation acts by a simple majority of its component members. The Conciliation Committee meetings are just formality as much of the bargaining takes places in the informal trilogues before them. The joint text is forwarded to the Presidents of the European Parliament and of the Council. No amendments may be tabled to the compromise. If within six or eight weeks the European Parliament, by a majority of the votes cast and the Council, by a qualified majority, adopt the act in line with the joint text the legislative procedure is ended and the act is submitted directly for the signature of the Presidents and Secretaries- General of the European Parliament and of the Council, and is published in the Official Journal.

According to the Joint Declaration, “The working documents used during the conciliation procedure will be accessible in the Register of each institution once the procedure has been concluded.” Therefore, such documents are only made public only after the measure in question had been adopted.

Originally, the trilogues and early agreements procedure were intended for noncontroversial or technical dossiers however, it has been expanded to highly controversial measures. In fact, it now applies to any co-decision measure. During the Maastricht period 40 per cent of co-decision required the conciliation procedure but this has dropped to 20 per cent. The total number of first reading deals is increasing considerably. Since the entry into force of the Amsterdam Treaty until 30 December 2007, 654 co-decision procedures have been completed, 285 files were concluded on first reading, 263 were concluded on second reading and 106 were concluded by the Conciliation Committee.

The number of fast-track deals is increasing and the process is not transparent. There is always a pressure during each six-month EU presidency to wrap up a piece of legislation at the expense of open political debate.

In the run up to the 2009 elections there is a wish to complete as many dossiers as possible before the legislative break. The European Commission has recently published its 2009 work programme and it will try to ensure the full adoption of these measures before the European Parliament elections. Experience from previous elections indicates that the EU institutions will be under pressure to adopt as many legislative proposals as possible before May 2009.

Obviously, the trilogue meetings and early agreements would be fully used at the expense of a proper debate and analysis of the legislative proposals. The European Parliament and the Council of Ministers will work towards reaching a first reading agreement on the different proposals therefore the proper consideration of the vital details of the legal texts would be sacrificed in a blind rush to complete as many legislative proposals as possible before the European Parliament is dissolved for elections. The Lisbon Treaty increases substantially the policy areas subject to co-decision.

The Lisbon Treaty has not substantially changed the procedure. Whereas under present Article 251 (2) (b) (c) it is required, at second reading, that “absolute majority” of the European Parliament component members to reject or to adopt amendments to the Council common position under the Lisbon Treaty it is solely required simple majority. It will be easier to pass legislation. The Lisbon Treaty will abolish the Maastricht Treaty pillar structure and move Police and Judicial Cooperation in Criminal Matters to the Treaty on the Functioning of the European Union (EC Treaty).

The Lisbon Treaty will have several implications for police and judicial cooperation in criminal matters as co-decision, qualified majority voting and the ECJ’s jurisdiction will be extended to those areas. The secret trilogues and first reading deals would be extended to police and judicial cooperation on criminal matters.

All this demonstrates just how undemocratic our legislative system has become. No proper scrutiny and no real accountability. It is at best a system of incomprehensible complacency.


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Bill Cash has been the Conservative Member of Parliament for Stone since 1997 and an MP since 1984.

He is currently the Chair of the European Scrutiny Committee and the founder member of the European Foundation...

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