It does not happen often that EU directives attract so much public attention that it leads to protests on the streets.
Yet this is what happened in Berlin and other European cities last March, when protesters called on the European Parliament to reject the EU’s copyright reform.
Specifically, they wanted MEPs to delete article 13 from the bill, because they feared it would lead to internet companies installing upload filters.
But the protest came “way too late” said German researcher Alexander Hoppe.
By March, negotiators from the EU institutions – European Parliament, European Commission, and Council of the EU (representing national governments) – had already agreed to a compromise deal.
They did so behind closed doors in the so-called trilogue process, which in recent years has become the default way of adopting legislation in the EU.
In most cases, the commission proposes bills, which then need approval by both parliament and council. Trilogues were introduced to prevent legislative files from endlessly going back and forth between parliament and council.
Hoppe spent the last three years doing a PhD on trilogues at the University of Utrecht in the Netherlands, where he spoke to EUobserver on Tuesday (13 August).
“I hardly remember any other file that has caused so much public upheaval as the copyright directive. There were actual protests. But it was simply too late. It happened after there was agreement in trilogues,” said Hoppe.
“This trilogue process takes so much resources and time, and it’s so difficult to find any compromise that work for the institutions, that once there is an agreement, the incentives for any institution to change something are zero,” he said.
The impression that MEPs could have just deleted article 13 was wrong, he added, because if they had done so, that would have thrown the negotiations back to the starting point.
“This is a very important norm or principle that everybody follows: nothing is agreed until everything is agreed,” said Hoppe.
He interviewed more than 40 people who had been involved in trilogue negotiations, for four different pieces of EU legislation.
“Not everybody agreed to talk. Some openly said: ‘I don’t want to talk about trilogues, that’s too sensitive for me.’ But it was relatively easy to set up the interviews – easier than I expected,” he noted.
Trilogues are often criticised for being shrouded in mystery.
A key element is the so-called four column document, which is a table listing the views of the EU institutions per paragraph of the proposed directive or regulation – with the fourth reserved for possible compromise amendments or negotiations instructions.
In 2016, the Court of Justice of the EU ruled that these documents should be made public if citizens asked for them via an access to documents request.
But Hoppe acquired them through other means.
“From experience, it just takes a lot of time. Time that I did not necessarily want to invest in that,” he said.
He managed to convince sources within the institutions to share the papers with them.
Interviewees actually told him that the informal ways of getting documents leaked seemed to work well.
“There is a very dense information network in Brussels,” he said.
“If you are in Brussels … if you want to follow what happens, there are ways of doing it,” he added.
In fact, sometimes lobby organisations will have better information on bilateral discussions related to trilogues than some of the negotiators, he said.
“We even heard of cases that institutional actors got the information on what happened in bilateral talks via lobby groups or interest representation groups. In these cases, these lobby groups were better informed on what was going on than actors in the trilogue,” he explained.
Waiting for the database
Of course, he said, there should be more transparency, and EU institutions should follow up on their 2016 promise to have a joint database with all trilogue-related documents.
“We need a central database for all the information on trilogues. Even we researchers struggle finding the information on single files,” he said.
Spokespersons for the parliament and council told EUobserver on Tuesday that work on the central database, which would cover the whole legislative process, was ongoing.
A parliament spokeswoman said the three EU institutions have agreed on the content of what should be in the database.
“Discussions however still continue concerning the most suitable solutions for the technical implementation of the portal, on the institution or body responsible for the technical development, as well as on its governance,” she said.
Both spokespeople were unable to give an official starting date.
Although the joint database is still not online, Hoppe stressed that in the past 20 years, the EU has already opened up a lot.
“Yet the perception of the transparency problem has not changed. That [publishing documents] seems not to be the solution to what we call the transparency problem of the EU,” he said.
He said national parliaments should also become more involved in following trilogue negotiations.
An important realisation to Hoppe was that the success of trilogue talks depended in part on the individual personalities of the negotiators.
If they managed to create an atmosphere of trust amongst themselves, they would seem more willing to compromise.
One of the case studies Hoppe investigated, was the proposal for a reformed posted workers directive.
“In these negotiations, at one point all the negotiators – except for one or two parliamentary actors who didn’t play a big role – were female,” said Hoppe.
“In more or less every interview, this came up. Everybody said it was helpful, nice for the atmosphere that the whole file was negotiated by women of roughly the same age group. There was no macho theatre. That seemed to have made a difference,” he said.