This article is part of the D’Kart Spotlights: AGENDA 2025, in which experts from academia and practice comment on aspects of the Competition Policy Agenda presented by the Federal Ministry of Economic Affairs and Climate Action (BMWK). The contributions already published can be found here.
DMA and DSA have been agreed upon. But what they look like in concrete terms we only know through leaks. Alexander Kirk takes a look at the decisive trilogue process, sees weaknesses but also strengths and offers some reform proposals.
“Laws are like sausages. It’s better not to see them being made.” This statement is (probably incorrectly) attributed to Otto von Bismarck. A reference to meat products does no longer seem to fit the zeitgeist of a Competition Policy Agenda of a Green-led ministry with a vegetarian at its head. Bismarck would certainly not have had laws passed by a European association of states in mind. And yet there is a connection between the phrase and the agenda of the Ministry for Economic Affairs and Climate Action (BMWK). It states: “The BMWK will work to make legislative procedures on competition law at the EU level more transparent and participatory and to improve the institutional balance between the EU Commission, the Council and the European Parliament.”
European legislative procedure with a view to the DMA
How the European legislative procedure works in competition law (and beyond) could be observed recently in the context of the Digital Markets Act (DMA). The ordinary legislative procedure (Art. 294 TFEU) was applied, as the regulation is based on Art. 114 TFEU. The Commission submitted a draft in December 2020. After deliberations in the Committee on the Internal Market and Consumer Protection and contributions from a number of national parliaments, the European Parliament adopted a position at first reading exactly one year after the Commission’s initiative. Almost simultaneously, the Council also presented its position. Thus, in December 2021, three versions existed – all building on the original Commission proposal. Hereinafter, Art. 294 TFEU provides for a ping-pong game between Parliament and the Council, in which each institution responds to the proposals of the other through formal decisions.
The trilogue procedure
But this will probably not happen. On March 24, the Council, Parliament and Commission agreed on a joint legislative text as part of the so-called trilogue. The trilogue is an informal negotiation between the co-legislators Parliament and Council. The Commission is involved as the creator of the original text; it also has participation rights in the legislative process. The exchange can be sought at any stage of the legislative process. It serves to accelerate and simplify and to avoid the lengthy and late “official trilogue procedure” through a conciliation committee (Article 294 (10) TFEU). In the shadow of the cumbersome formal procedure, the three bodies involved in the legislation have institutionalised the informal exchange. It gives credit to the functioning of the procedure if a complex matter such as the DMA is brought from proposal to (preliminary) agreement within 15 months. Between 70 and 80 percent of legislative acts are the result of a trilogue. The trilogue is initiated as early as possible in order to conclude the legislative process within the Parliament’s first reading. The number of legislative acts adopted in this way has increased substantially in recent years (from 28% of acts completed at first reading in 1999-2004 to 89% in 2014-2019). Thus, the parliamentary plenum deals with a legislative act for the first time when it has already been negotiated.
The trilogue procedure is not to be found in EU primary law. However, it is taken up in other European legal acts: The Rules of Procedure of the European Parliament are most specific. Here, some self-governing parameters for “interinstitutional negotiations within the framework of the ordinary legislative procedure” can be found. In summary: Negotiations must be based on a parliamentary decision (Art. 71); if Parliament has already formulated its position in a decision on the proposal, a decision by the relevant committee is sufficient to start negotiations (Art. 72). The negotiating team, headed by the rapporteur, includes at least the shadow rapporteurs of each political group wishing to participate. After the trialogue, a report is made to the committee responsible, to which the provisional agreement is also submitted. The committee has to take a decision before the matter goes to the plenum (Art. 74).
Meanwhile, the 2016 Interinstitutional Agreement on Better Lawmaking, jointly drafted by the Parliament, the Commission and the Council, remains extremely vague on the issue of transparency: “The three Institutions will ensure the transparency of legislative procedures (…), including an appropriate handling of trilateral negotiations.” (para. 38). What the agreement considers adequate information of the public becomes clear in the next sentence: it is intended to announce an agreement at a joint press conference.
Concerns: lack of transparency, concentration, informal legislative procedure
While Parliament’s efforts to provide the informal process with some framework, the inter-institutional agreements emphasise precisely the informal nature of the trilogue. This makes the process contestable: It lacks the eyes of the public, the plurality of parliamentary procedure, and the path set by the primary law.
First, on the matter of transparency: Negotiations take place behind closed doors, this is not changed by reports to committees. Parliament and the European Council are each supposed to meet in public during the legislative process, see Art. 15 (2) TFEU, but when sitting together they do not do so. A core feature of the democratic process is missing: its occurrence before the eyes of the citizen. Transparency is also not achieved by occasional leaks of negotiation statuses. On the contrary, unequal access to information gives well-connected stakeholders – especially lobbyists – greater opportunities to exert influence.
An immediate review of the results is also not possible: It usually takes two months for the outcome of the negotiations to be translated internally into all Union languages. Accordingly, there is still no publication of the outcome of the negotiations on the DMA of March 24. The press statements, that the interinstitutional agreements provide for, do not ensure transparency: After the joint press conference on the DMA, in which the co-legislators celebrated themselves for getting their job done, the results of the negotiations remained completely open.
The reality is of course that laws are often rather the result of political “deals” than the product of open democratic discourse. However, in the parliamentary process, the path to a decision remains more traceable. It becomes clear who lobbied for what, whose idea prevailed and which alternative went unheeded. This is different in secret negotiations: Who can rule out the possibility that the scope of a law depends on who has the greater perseverance at the negotiating table? Can it be that the oftentimes decisive twist to a law for almost 450 million citizens is added in secret?
A related issue is that the trilogue procedure leads to a concentration of decision-makers and ideas: The position of the 27 member states is concentrated on a representative of the European Council Presidency, that of the 705 members of the Parliament on a handful of (cross-party) committee members. The plurality of opinion inherent in parliamentary process is first narrowed to one committee, then to a few negotiators. The concentration on a few negotiators and the lack of public observation also facilitate the exertion of influence by “assertive special interests,” as the agenda states elsewhere. This is all the more true because in some cases completely new elements are introduced for the first time in the trilogues – decided by a few negotiators and with no or imbalanced participation of stakeholders and experts.
Lastly, the trilogue “procedure” is not merely an occasional exchange; rather, it institutionalises a shadow legislative process. There is a reason why the process for the creation of laws is prescribed at the highest normative level both at European and national level: The conditions of its creation affect the outcome. The democratic process legitimises the result. This is especially true in the eyes of the citizens, who can follow the path of a law all the way to the black box trilogue but are then only presented with the result of silent compromises. The participation called for in the agenda is only possible on the basis of transparency. Trilogues are also not friendly chats among colleagues involved in legislation or a preparatory meeting at a lower level of administration, but negotiations between the EU’s highest institutions aiming to finalise legislation. Of course, the outcome of the negotiations remains preliminary and non-binding. In practice, however, the agreement reached is usually rubber-stamped by the co-legislators without any significant changes.
Efforts of the European institutions and their constraints
Such criticisms prompted the European Ombudsman to open a procedure in 2015, which ended a year later with a call for better transparency. The Parliament has also made several efforts in this direction in recent years. In a resolution drafted by the now State Secretary Giegold as rapporteur, Parliament reminded the European Council and the Commission of their commitment to more openness. However, the limits of parliamentary effort became apparent when it denied a citizen access to trilogue documents. This was countered by the General Court in 2018. Against the resistance of Parliament, the European Council and Commission, it granted the plaintiff citizen access to the documents of an ongoing trilogue procedure in the Capitani/Parliament case, in particular to the decisive four-column tables on which, in addition to the positions of the negotiators, possible compromise proposals are listed.
Room for improvement
The General Court’s decision is a major step in the right direction. However, an individual claim to access that must be asserted anew at every time cannot guarantee the necessary transparency. European primary law requires openness and transparency (cf. Art. 1(2), 10 TEU). These principles are “inherent to the EU legislative process” (Capitani/Parliament – para. 81).
However, demonising the trilogue system does not help to solve the underlying problem. De lege lata, European legislation is a matter of three actors. The procedure for communication provided for by primary law is not very practicable. The answer must be to maintain the exchange, but to pull it out of the closet and to direct it onto regulated tracks. Article 295 TFEU provides for the possibility of agreements between the three actors, so why not introduce “rules of procedure for interinstitutional exchanges”? These could regulate core parameters: Where and how are the negotiations publicly announced? Who participates? How do coordination processes work? How can stakeholders and experts be involved? Who must be informed on an ongoing or timely basis? By which time must an agreement be published (also prior to the official translations)? Is there a possibility to keep sensitive topics secret in exceptional cases? While the previous interinstitutional agreements do not address this issues in any way, the aforementioned provisions of Parliament’s Rules of Procedure provide some initial guidance.
Even if the step to public negotiations proves to be too steep, it is crucial for transparency that all actors make their position public at the beginning: It becomes visible on which positions the parties entered the negotiations and how these were reflected in the outcome. The Commission makes its stand official through its proposal; the Parliament does so only after the first reading (Art. 294 (3) TFEU); the European Council through its reaction thereto (Art. 294 (5), (6) TFEU). However, if trilogue negotiations were only possible after discussion and decisions by Parliament and the European Council, this would conflict with the goal of expeditious lawmaking.
A first compromise would be to publish an official table with the positions of the three actors before the trilogue, which exists internally anyway. This would be nothing more than an implementation of the General Court’s ruling (just going beyond the binding effect). In the case of important legal acts, it is up to the Parliament to first adopt its own version in plenary, partially to give it more weight in the negotiations. This is what happened with the DMA.
While the BMWK’s agenda is limited to making the legislative process on competition law more transparent and participatory, a broader approach must be taken as every European law passes through the trilogue system. While the first reform of the process requires considerable coordination among the three institutions, it does not require any change in primary law, which already provides the means for interinstitutional self-regulation. The courage towards more openness will be rewarded with greater legitimacy of the legal act and confidence of the Union’s citizens in the Brussels processes.
Alexander Kirk is a fully qualified lawyer and a researcher at the Chair for Civil Law, German and European Competition Law at Heinrich Heine University Düsseldorf. He is pursuing his doctoral studies with Professor Rupprecht Podszun.