Administrative and judicial oversight of trilogues

ABSTRACT

The system of informal legislative negotiations between the European Parliament, the Council and the Commission now exist for about two decades. While so-called ‘trilogues’ aim to enhance the efficiency of the legislative process, their relative lack of transparency has led them to be criticized for undermining the possibilities of member state parliaments and citizens to meaningfully oversee, debate and participate in EU legislative decision making. We explore to which extent efforts to address these shortcomings have been successful, focussing on the oversight role of administrative and judicial actors, in particular the European Ombudsman and the Court of Justice. We argue that both the institutional structures and agendas of these actors influence the way they confront the question of trilogue transparency. Whereas the Court’s focus is on safeguarding EU constitutional principles relating to democracy, the Ombudsman increasingly takes an expansive view of the concept of maladministration.

KEYWORDS:

• Trilogue procedure
• transparency
• administrative and judicial oversight
• European Ombudsman
• Court of Justice of the European Union

Acknowledgements

We are grateful to the anonymous referees, whose comments helped us to improve the paper. We further thank the participants of the workshop ‘Inside the “Black Box” of Legislative Trilogues’, held at Utrecht University on 18-19 September 2019, and the conference ‘Transparency in the EU: mechanisms and practices’, held at Lille Catholic University on 19-20 November 2019, for their thoughtful comments and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributors

Maarten Hillebrandt is a post-doctoral researcher at the University of Helsinki, Finland.

Päivi Leino-Sandberg is a professor of Transnational European law at the University of Helsinki, Finland.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Note that as of 1 September 2016, the practice of issuing critical remarks has been abandoned by the European Ombudsman. See European Ombudsman Implementing Provisions, https://www.ombudsman.europa.eu/en/legal-basis/implementing-provisions/en.

2 The cut-off point for data searches is 1 December 2019.

3 See however Curtin and Leino (2017), Brandsma (2019) and Greenwood and Roederer-Rynning (2019).

4 In 2018, the issue of access to information or documents came up in 134 or 24.6 per cent of cases. This figure remains close to that of 2001, when 84 or 29 per cent of cases dealt with alleged information of transparency deficits (European Ombudsman 2002: 271 and 2019c: section 4.3).

5 That the Ombudsman considers the exceptions under Regulation 1049/2001 to be potentially applicable to legislative documents is shown by two recent decisions in which she respectively approved of the application of an exception to one such a document, and called for a revision of an applied exception in relation to another (respectively European Ombudsman 2019b and 2019a). In these cases, against the respectively the Commission and the Council, the Ombudsman again applies a strictly legal interpretation of the principle of legislative transparency.

6 The Court subsequently went on to retract the reversed burden of proof.