Negotiations in the Ordinary Legislative Procedure: The Perspective of the European Parliament

Abstract

The ordinary legislative procedure of the EU consists of a process where the European Council proposes legislation and the European Parliament and the Council adopt it together. This codecision procedure was created by the Maastricht Treaty and balances three European interests: The European Parliament must protect the interests of the citizens; the Council must protect those of the Member States and the Commission must promote the general European Interest. The ordinary legislative procedure consists of three readings. First, the Commission submits a proposal to the EP and the Council. The plenary will then adopt or reject the proposal, with or without amendments. If the proposal cannot be adopted at the first reading, a second reading follows. The EP receives the Council’s position and must make a decision within 3 months after that. If the proposal is still not adopted, a Conciliation Committee is composed, that has the task of reaching an agreement based on the positions of the EP and the Council. In the past years, a trend can be seen where more and more proposals are concluded in the first reading. This shows the flexibility of the codecision procedure and the willingness between institutions to cooperate. The author concludes by stating that the European Parliament has become a real actor within this ordinary legislative procedure. She, however, warns about the potential lack of transparency that can take place within these trilogue discussions between the EP, EC and the Council. The European Parliament has taken new procedural measures to address this issue.

Administrator, Committee on Civil Liberties, Justice and Home Affairs, European Parliament, Brussels.

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

1 Introduction

In view of democracy and the rule of law in the European Union, I thought it would be good to write about the European Parliament and its role as a negotiator in the ordinary legislative procedure, which in practice is still often referred to by its former name ‘codecision’ since this volume focuses on democracy. The ordinary legislative procedure and its dynamics remain a fascinating theme even after 20 years of application. Under the EEC Treaty of 1957, the Parliament was only consulted on proposals and its opinions could just be put aside. Thanks to different Treaty amendments, it now has become a full co-legislator with the Council. The interinstitutional negotiations in ordinary legislative procedure take place through so-called ‘trilogue negotiations’, which are not mentioned in the Treaty. These trilogues have become an important element in today’s decision-making process. Having had the privilege of attending many of these negotiations, at different stages of the procedure (from first reading until conciliation), I gradually came to better understand the dynamics of this process. In this contribution, I would like to share some of my impressions.¹

Under the ordinary legislative procedure, the European Parliament and the Council together adopt legislation proposed by the European Commission. It was the Maastricht Treaty which some 20 years ago² introduced the codecision procedure, which gave the European Parliament substantial influence on the decision-making process.³ The ordinary legislative procedure involves balancing three legitimate interests at European level: it is the European Parliament’s task to defend the citizens’ interest, it is the Council’s task to defend the interests of the Member States, and it is the European Commission’s task to promote the general European interest. Negotiations are necessary to balance these interests and to reach agreement.⁴ Codecision at its introduction mainly concerned the area of the internal market, including the free movement of persons. It also included some ‘new areas’ as environment and consumer protection, covering some fifteen Treaty articles in total. Its object was to address the wish of the European Parliament to participate in the decision-making process on an equal footing with the Council. Subsequent Treaty amendments (the Treaty of Amsterdam created 24 new provisions and the Nice Treaty created an extra 11) extended the scope of the codecision procedure, but the most substantial progress was made with the entry into force of the Lisbon Treaty in 1999. The European Parliament is now genuinely a co-legislator with the Council: ‘The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions (…).’⁵

Since the entry into force of the Lisbon Treaty, the ordinary legislative procedure applies to 85 areas of activities. The new competences are found in the area of freedom, security and justice, international trade, as well as in agriculture and fisheries. Under the ordinary legislative procedure, the Commission submits its proposal in parallel to the European Parliament and to the Council. Both institutions sign the final legislative act that is co-produced by the two parties. The ordinary legislative procedure may consist of up to three ‘readings’ and can be closed at each of these three stages. The Lisbon Treaty has not changed the former codecision procedure considerably. The European Parliament and the Council still adopt legislation together, the Council acting mostly by qualified majority, on a proposal from the Commission. One new post-Lisbon element is that it is not only the Commission that can propose legislative proposals. In specific cases legislation can also be adopted on the initiative of a group of Member States, on a recommendation from the European Central Bank, or at the request of the European Court of Justice. Another new element is the right for national parliaments to send the Presidents of the European Parliament, the Council, and the Commission a ‘reasoned opinion’ on draft legislative acts, indicating whether they comply with the principle of subsidiarity. Furthermore, the Treaty now states that the European Parliament adopts at first and second reading a ‘position’, as the Council does, and not just an ‘opinion’ (Article 294, para 3, TFEU).

This contribution starts in Sect. 2 by discussing the ordinary legislative procedure in theory, as set out in Article 294 of the TFEU. Section 3 discusses how the ordinary legislative procedure works in practice, highlighting the important role of interinstitutional negotiations and early agreement. Then, Sect. 4 focuses on trilogue negotiations. Section 5 outlines some thoughts about transparency and democratic legitimacy of the procedure as applied in practice, and is followed by the conclusions (Sect. 6).

2 The Ordinary Legislative Procedure in Theory

The ordinary legislative procedure consists of the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission (Article 289, para 1 TFEU). It is to be distinguished from the special legislative procedure, under which legislation is adopted by the European Parliament with the participation of the Council, or––more often––by the Council with the participation of the European Parliament (Article 289, para 2 TFEU). The ordinary legislative procedure may consist of up to three ‘readings’.

2.1 First Reading

Nearly all legislation is adopted upon a proposal by the Commission. According to the Treaty, the Commission ‘shall submit a proposal to the European Parliament and the Council’ (Article 294, para 2 TFEU). Within the European Parliament, a Commission proposal is referred to the ‘responsible committee’. It depends on the subject matter which committee is responsible.⁶ The responsible committee appoints a ‘rapporteur’ from a specific political group, whose main task is to lead the proposal through the different stages of the procedure. The rapporteur may propose amendments to the Commission proposal, which will be laid down in a ‘draft report’. Members from other political groups may also propose amendments and these amendments will be put to the vote together, firstly at committee level (the outcome is a ‘report’) and then in the plenary. The plenary will then adopt the position of the European Parliament, rejecting or approving, with or without amendments, the Commission’s proposal. During the first reading there are no time limits within which the European Parliament should adopt its position. It is possible, although rare that the Parliament rejects the Commission proposal at first reading.⁷ Once the European Parliament has adopted its position at first reading, it shall communicate it to the Council (para 3). If the Council approves the European Parliament’s position, i.e. if it accepts all amendments made by the European Parliament or agrees with the original proposal in case the European Parliament did not amend it, the act will be adopted in the wording which corresponds to the position of the European Parliament (Article 294, para 4, TFEU). If the Council is unable to fully accept the outcome of the European Parliament’s first reading, it will adopt a ‘Council position’ and communicate that to the European Parliament (Article 294, para 5, TFEU). Both the Council and the Commission must inform the European Parliament fully of the reasons which led them to adopt their respective positions (Article 294, para 6, TFEU). During the first reading, the Commission may alter its proposal with a view to facilitating agreement (Article 293, para 2, TFEU).

2.2 Second Reading

If it proves impossible to adopt the act at first reading, a second reading follows. Within a period of 3 months after receiving the Council’s position at first reading, the European Parliament must approve, reject or amend the Council’s position. This period of 3 months can be extended by 1 month at the initiative of the European Parliament or the Council (Article 294, para 14, TFEU). If the European Parliament approves the Council position (this is called ‘endorsement’) or has not taken a decision, the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council (Article 295, para 7(a) TFEU). A simple majority of the members present during the vote in the plenary is sufficient to approve the Council’s position. The European Parliament can also reject the Council’s position; in this case the proposed act shall be deemed not to have been adopted. A rejection requires an ‘absolute majority’, that is a majority of the component members of the European Parliament (Article 294, para 7(b), TFEU).⁸ Finally, the European Parliament can propose, by absolute majority, amendments to the Council’s position. The amended text is forwarded to the Council and to the Commission, which shall deliver an opinion on those amendments (Article 294, para 7(c) TFEU). The Council then has a further 3 months (or four if there is an extension) to conclude the second reading. If the Council approves the amendments of the European Parliament, the act in question is adopted. If the Council does not approve all the amendments, its President will convene, in agreement with the President of the European Parliament, a meeting of the Conciliation Committee (Article 294, para 8 TFEU). The Council acts by a qualified majority, but it must act unanimously on the amendments on which the Commission has delivered a negative opinion (Article 294, para 9 TFEU).

2.3 Conciliation and Third Reading

The Conciliation Committee is composed of equal numbers of representatives of the Council and the European Parliament, and it has the task of reaching agreement on a joint text on the basis of the positions of the European Parliament and the Council at second reading. The Commission takes part in the proceedings of the Conciliation Committee but it can no longer formally influence the decision-making process.⁹ If the Conciliation Committee does not approve a joint text, within six (or eight) weeks of being convened, the proposed act shall be deemed not to have been adopted. If the Conciliation Committee does approve the joint text, the European Parliament and the Council have a period of six (or eight) weeks to adopt the act. The European Parliament acts by a majority of the votes cast (simple majority) and the Council by qualified majority. If they fail to do so, the proposed act shall be deemed not to have been adopted.

3 The Ordinary Legislative Procedure in Practice: Negotiations and Early Agreements

The description of the ordinary legislative procedure above is not sufficient to fully understand how things work in practice. The Treaty does not mention what has become very important in practice: i.e. negotiations between the European Parliament, the Council, and the Commission. Reading Article 294 TFEU may give the impression that the Council only starts its work once it has received the position of the European Parliament. In reality, however, the Council also starts working when it receives a Commission proposal, and one of the Council’s ‘working parties’––composed of national officials, colleagues from the Council’s general secretariat and highly specialised––will review the proposal in parallel with the responsible parliamentary committee.¹⁰ Once the European Parliament has adopted a report and the Council working group has examined the proposal for the first time, interinstitutional negotiations may start (see Sect. 6), with a view to reaching a first reading agreement. If this proves possible, the European Parliament recommends to the parliamentary committee/plenary to endorse the compromise package as agreed with the Council, and the Council commits itself to approve this position.¹¹ The chair of COREPER shall forward details of the substance of the agreement by a letter to the chair of the relevant committee. The letter indicates the willingness of the Council to accept the outcome should it be confirmed by the vote in plenary.¹²

In the course of the first reading negotiations on the Regulation on macro-financial assistance to third countries––an international trade file––an interesting question came up. After several quite intensive rounds of trilogue negotiations, at a point where the European Parliament and the Council were about to strike a deal, the Commission decided to withdraw its proposal. The withdrawal was announced in a letter which only refers to Article 293 para 2 TFEU as its basis, without any further specifications. In informal meetings held afterwards it became clear that the withdrawal had to do with ‘institutional’ reasons related to the Commission’s right of initiative. This exceptional event had quite an impact politically on the interinstitutional relations and questions were raised whether the Commission had the right to do this at this specific moment (it withdrew the proposal on the day the compromise would be sealed in trilogue). In my opinion, as the file was in first reading, the Commission could withdraw its proposal as one could argue that a withdrawal should be seen as the corollary of the right of initiative. However, Article 293, para 2, TFEU to which the Commission referred in its letter, does not provide for a withdrawal explicitly. As a withdrawal for institutional reasons is exceptional and here its timing was also quite unfortunate it would in my opinion have been appropriate, also in view of Article 296 TFEU and the (general) principle of loyal cooperation as set out in Article 4, para 3 TEU, that the Commission would have motivated its decision properly and formally.

It is only if no agreement can be found that the European Parliament will adopt a position that has not been previously agreed with the Council. In this situation, it can be safely excluded that the proposed act will be adopted at first reading. The negotiations will continue normally and if they prove successful, the result may be a so-called ‘early second reading agreement’ where Council’s position has been negotiated together with the European Parliament. In such a case a letter will be sent by the chair of the relevant parliamentary committee to the chair of COREPER. The chair shall indicate in this letter his recommendation to the plenary to accept the Council Position without amendments.¹³ The advantage of negotiations in an (early) second reading for the European Parliament is that the Parliament’s position is based on the plenary vote which provides for a broad mandate. If no agreement can be found, the Council will either adopt a Council position not agreed with the European Parliament, or it will not act at all (Fig. 1).

Fig. 1

Percentage of state of conclusion

In recent years, more and more files tend to be concluded at an early stage of the procedure. So far in the current 7th legislature (2009-2014), 81 % of the files (308) have been concluded at first reading and 16 % at second reading, 10 % were ‘proper’ second readings and 6 % were so-called ‘early second readings’. Only 3 % of the files went to conciliation. Thus, 87 % of the files were concluded at an early stage of the procedure. In comparison, during the 6th legislature (2004–2009), 72 % of the files (454) were first reading agreements, 23 % of the files second reading agreements, and 5 % went to conciliation. During the fifth legislature (1999–2004), 28 % of the files (403) were first reading agreements, 50 % second reading agreement, and 22 % went to conciliation.

The question arises as to how this trend towards first reading agreements can be explained. One possible answer may be that there is an increasing familiarity with the ordinary legislative procedure––and in particular with the possibility of concluding negotiations in first reading following a simple majority vote in European Parliament by all institutions involved. Sometimes, it is also feared that files with controversial issues may be blocked in the Council. Also, there are more and better contacts between the institutions whose representatives start talking to each other earlier in the procedure. Furthermore, there is the agenda-setting at the highest level for politically sensitive issues. Finally, the Council Presidencies seem eager to reach agreements during their Presidencies and seem to favour first reading negotiations, for which the arrangements are more flexible than arrangements in later stages of the procedure (e.g. in the first reading there are no time limits). The European Parliament tends to try and use this eagerness and the internal debating in the Council to get better results in the negotiations. In addition, the Commission often pushes for an early adoption because it will be able to demonstrate efficiency and perhaps hopes that its proposal will be adopted with as few changes as possible.

4 Trilogue Negotiations

An interesting and short film can be found on the Website of the European Parliament at EuroparlTV: ‘How it works: trilogue’. http://europarltv.europa.eu/en/player.aspx?pid=772450bd-0a08-4555-8946-a18d00ef94b2. Accessed 22 December 2014.

The negotiations between the European Parliament, the Council, and the Commission take place in so-called ‘trilogue meetings’. The practical role of these meetings is acknowledged in the ‘Joint Declaration on the practical arrangements for the co-decision procedure’ adopted by the three institutions,¹⁴ which provides for practical guidelines on the different stages of the ordinary legislative procedure.¹⁵ It reminds in its para 1 that the: ‘current practice involving talks between the Council Presidency, the Commission and the chair of the relevant committees and or rapporteurs of the European Parliament has proven its worth. In para 2 the institutions confirm ‘that this practice (…) “must continue to be encouraged” (…) with a view of making more effective use of the codecision procedure as established by the EC Treaty’. Paragraph 4 states: ‘the institutions shall cooperate in good faith throughout the procedure with a view to reconciling their positions as far as possible and thereby clearing the way, where appropriate, for the adoption of the act concerned at an early stage of the procedure’.

Paragraph 7 of the Joint Declaration states that: ‘the cooperation between the institutions in the context of codecision often takes the form of tripartite meetings (‘trilogues’). 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 (…)’.¹⁶

These trilogues have become a crucial element in the interinstitutional cooperation. The importance is also underlined in the Joint Declaration ‘… 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’.¹⁷ The Rules of Procedure of the European Parliament provide for explicit rules on these trilogue negotiations, e.g. with regard to the mandate for the negotiations, the composition of the negotiating team and how and when to provide feedback to the committee (see Sect. 6).

In a trilogue, the Council Presidency, the Commission and the European Parliament, negotiate a possible compromise text.¹⁸ The Commission shall facilitate such contacts and shall exercise its right of initiative in a constructive manner with a view to reconciling the positions of the European Parliament and the Council (…).¹⁹ The number of participants varies but generally the institutions try to limit the number. Most of the trilogues take place inside the European Parliament and are so far not open to the public. Many of them are conducted in English as well as are the documents used in the trilogue. This may sometimes be problematic in particular if the main negotiator(s) (mostly on the European Parliament side) do not feel comfortable working in that language. Interpretation facilities are available although nowadays with the number of codecision files under negotiations (around 124 files in first or second reading²⁰) it has become more and more of a problem. Normally the Council Presidency and the European Parliament will set the agenda of a trilogue together. The representation of the institution varies (and may also change during the negotiation process). The Council will normally be represented by the chair of the working party, generally an experienced civil servant. The Commission will be represented by the relevant officials (mostly at head of unit level) and European Parliament will be represented by politicians (the rapporteur, chair or vice-chair and shadow rapporteurs²¹). The three delegations will be supported by staff. The Council negotiating team consists of desk officer(s) from the General Secretariat of the Council, the legal service, the codecision unit, as well as lawyer linguists. The Commission negotiating team consists of colleagues from the relevant Directorate General, the legal service and the General Secretariat. The European Parliament team will be supported by the administrator(s) responsible for the file, staff from the different political groups, a colleague from the codecision unit, the legal service, as well as lawyer-linguists. It is a setting which provides for efficient decision-making but which fits uneasily with a parliamentary style of open public debate.²²

The difference in representation between the institutions (politicians vs. officials) may sometimes be problematic as these actors do not necessarily speak the same language. Generally, one can say that Parliament’s negotiators will be focused more on the political elements of a file, while the Council and Commission would tend to look more to the technical elements. This was also what happened in the negotiations on the revision of the rules regarding novel foods.²³ The European Parliament aimed to achieve a ban on food derived from cloned animals, including food derived from the descendants of clones. It supported its request for a ban on the basis of ethical, animal welfare and public opinion arguments. Council and Commission opposed the European Parliament’s arguments stating that such food is safe to consume. They also focused on practical difficulties of traceability as well as on trade relations as the requests of European Parliament would lead to a ‘trade war’. The European Parliament reacted to such arguments by stating that possible trade implications (although far from sure to happen) should not be an obstacle if the overwhelming majority of citizens simply opposes cloning for food. In a last attempt to find a compromise the European Parliament suggested moving from a ban of the food from the descendants of cloned animals to a labelling scheme covering at least the first generation after the cloned animal. It was thought that with a label such food will not be bought and therefore it would not be done as there would be no commercial interest. Council opposed this, with the exception of fresh bovine meat, on grounds of feasibility of labelling.

The statements made by the representatives of the three institutions after failure of the negotiations clearly show the controversy. The Hungarian Minister of rural development, said on behalf of the Presidency: ‘The EP chose to go down the road of political grandstanding instead and tried to push the Council to accept a misleading, unfeasible “solution” that in practice would have required drawing a family tree for each slice of cheese or salami.’ Similarly Commissioner Dalli commented: ‘I remain convinced that the only way to guarantee a good deal for EU consumers and food business operators is to deliver a proposal that is based on common sense and one that is both practicable and enforceable including on the issue of labelling.’ The European Parliament’s main negotiators commented:

It is deeply frustrating that Council would not listen to public opinion and support urgently needed measures to protect consumer and animal welfare interests. The European Parliament had overwhelmingly called for a ban on food from cloned animals and their descendants (…). We made a huge effort to compromise but we were not willing to betray consumers on their right to know whether food comes from animals bred using clones. Since European public opinion is overwhelmingly against cloning for food, (…) a commitment to label all food products from cloned offspring is a bare minimum. Council would only assure its support to label one type of product: fresh beef.

This example clearly is one in which the three institutions did not reach a common understanding.

It is more and more a trend that the Ambassador (or his/her deputy) from COREPER is brought into the negotiations as from a certain stage. Also the Commission brings in senior management or the competent Commissioner at some point in the negotiations. Bringing in the political level may sometimes be helpful in bringing a file forward, as between these actors there generally will be a more common understanding. The Council Presidency’s negotiation team works as a sort of filter. Its key negotiator will have to go back to the Council (and/or to the working party or Coreper) to report what has happened in the trilogue and get a mandate (or updated mandate) therefrom. There is a certain unbalance between the Commission and the Council’s teams, on the one hand, and the European Parliament’s team on the other hand in the amount of information available. The meetings of the Council working party (and/or COREPER), in which the mandate of the Council’s negotiating team will be established or updated, are not open to European Parliament’s team, but the Commission is participating. On the other hand the parliament’s committee meetings are open to Council’s and Commission’s representatives.

It sometimes happens that a Presidency shows a certain ‘fatigue’ when going through the text for the first time with the EP team. Although it is understandable––often the Presidency already faced intensive discussions on the same issues in the Council Working Party––this may give EP Members the impression that some things are already pre-cooked between the Commission and the Council Presidency especially, when it is not always so clear to what extend the European Parliament’s amendments were discussed within this frame. Also, it sometimes is unclear whether a position taken by a Council Presidency indeed is a position that represents the (majority opinion) of the Council, or whether it is rather a Presidency proposal (‘testing’). After the trilogue, the European Parliament’s negotiating team will have to provide feedback to the parliamentary committee.

5 Transparency and Democratic Legitimacy of Trilogue Negotiations? Rule 70 and 70a and the Code of Conduct

The trend of having more agreements at an earlier stage of the procedure not only demonstrates the flexibility of the codecision procedure itself, but also shows the trust and willingness between the institutions to cooperate. At the same time transparency and accountability are very important in conducting these negotiations. This is of course particularly salient in the EU context given the wide-ranging nature of its legislative and executive powers.²⁴ Article 10, para 3, TEU states that ‘(…) Decisions shall be taken as openly and closely as possible to the citizen’. Transparency and participation can also be seen as a means of applying the principle of democracy more fundamentally.²⁵ With specific regard to trilogue negotiations, criticism is sometimes voiced because of a potential lack of transparency.²⁶ Rule 70 of European Parliament’s Rules of Procedure and the European Parliament’s Code of Conduct for negotiating in the context of codecision procedures (approved by the Conference of Presidents in September 2008) try to address these legitimate concerns and are useful tools in addressing them.

The Code of Conduct gave rules for the decision of the parliamentary committee to enter into negotiations, the composition of the negotiating team and its mandate, and the consideration by the committee of any agreement reached. In addition, it entailed provisions on the documents used in trilogues and on the administrative assistance to be provided for the negotiating team.

On 6 May 2009 the plenary adopted a revision of the Rules of Procedure to incorporate the Code of Conduct, which is annexed to the Rules. Rule 70 (Interinstitutional negotiations in legislative procedures) provided that ‘negotiations with the other institutions aimed at reaching an agreement in the course of a legislative procedure shall be conducted having regard to the Code of conduct’. The second paragraph of Rule 70, however, stipulated that before entering into negotiations ‘the committee should, in principle, take a decision by a majority of its members and adopt a mandate, orientations and priorities’.

In March 2011, the Conference of Presidents held an exchange of views on the negotiations on first-reading agreements under the ordinary legislative procedure, against the background of the trend of more agreements at an early stage of the procedures. Consequently, the accountability and transparency of these agreements as well as the question as to how these negotiations are conducted have become more important. It therefore tasked the Committee on Constitutional Affairs (AFCO) to review Rule 70 of Parliament’s Rules of Procedure in order to make the procedures relating to the conduct of negotiations on first-reading agreements more effective, more transparent and more inclusive through the inclusion of the key elements of the ‘Code of Conduct’ for negotiating in the context of the ordinary legislative procedures’ in the binding part of the Rules of Procedure, and in particular those parts on:

• the decision of the committee concerned to enter into negotiations;

• the decision for the composition and mandate of the negotiating team;

• the regular report-back to the committee concerned on the progress; and

• outcome of the negotiations, including any agreement reached;

• the re-consultation of the committee on the text agreed before the vote in plenary.²⁷

The AFCO report was adopted by the plenary in November 2012 and the revised Rules 70 and 70a entered into force in December 2012. These rules apply to all negotiations on first, ‘early second’ and second reading agreements. One of the main elements is that the committee should, on a case-by-case basis, take a formal decision (a vote) whether to open negotiations. In most of the cases this means that the committee will adopt a report as well as a decision on whether or not to open negotiations. The decision shall also determine the mandate and the composition of the negotiating team.²⁸ After that negotiations can start immediately. The European Parliament’s negotiating team shall be led by the rapporteur and presided over by the chair of the committee responsible (or by a vice-chair). It shall comprise at least the shadow rapporteurs from each political group. The document generally used is a so-called ‘four-column document’, with the respective positions of the institutions. Each institution designates its own participants to the trilogue meetings. A record of progress is kept by updating the four-column document. After each trilogue the negotiating team shall report back to the following meeting of the committee responsible. If the negotiations lead to a compromise the committee responsible shall be informed without delay. The committee will consider the text and vote on it. If adopted the text is submitted to the plenary.

A first evaluation of the experiences with the new Rules 70 and 70a was made at an internal workshop on 28 June 2013 in the European Parliament, the rules having been in place for 6 months. One can say that the committees quickly adapted to the systematic use of new Rule 70. The procedure of Rule 70a, the so-called ‘exceptional’ procedure²⁹ was used only for a few cases. The new Rule 70 formalises good practices by making the provisions on the reporting back to the committee and the re-consultation of the committee on a text agreed before the plenary vote mandatory. It has enhanced transparency.

6 Conclusions

After 20 years, one can say the European Parliament has become a real actor in the ordinary legislative procedure. Over the years the system evolved and it has become the normal procedure for legislating with the Council. From a practical perspective, although Article 294 TFEU does not mention trilogue negotiations, they have become a very important element in establishing legislation. Nowadays the awareness of the potential lack of transparency of these trilogue negotiations has grown. The European Parliament adopted new procedural rules to address these potential problems. There is in these trilogue negotiations a certain inequality with respect to the information available. It could therefore be considered to open up the Working party (and perhaps sometimes even COREPER) meetings to EP officials when legislation is discussed. With regard to so-called ‘early’ agreements, which are a trend that will perhaps be difficult to change, I think that decisions to open negotiations should not be taken more or less automatically but case by case. The new rules may also contribute to this and provide the possibility of some reflection. Sometimes it may be appropriate to continue discussions in second reading or even conciliation. For some files first reading conclusion may not be the appropriate option.

Case law, legislation and documents

Case law

• European Court of Justice, IATA and ELFAA v. Department of Transport, Preliminary Ruling, C-344/04 200

Legislation

• Treaty on the European Union

• European Parliament’s Rules of Procedure

• Joint Declaration on the practical arrangements for the codecision procedure of 13 June 2007, OJ C 145 of 30 June 2007

• Joint Declaration of the European Parliament, the Council and the Commission on the practical arrangements for the codecision procedure

Documents

• Enrique Guerrero Salom, report on the amendment of Rule 70 of Parliament’s Rules of Procedure on interinstitutional negotiations in legislative procedures A-7-0281/2012 of 25 September 2012

• Official Journal of the European Communities, C 148, 28 May 1999

• Official Journal of the European Communities, C 145, 30 June 2007