The trouble with trilogues – when things start falling apart

The palaver last weekend after the European Commission’s press service revealed that it intended to withdraw at the last minute an anti-greenwashing bill has reignited a debate about the integrity of the EU legislative process.

The problem is rooted in the fact that the European Commission – often referred to as the executive arm of the EU and tasked with ensuring implementation of, and compliance with, European law – also has sole prerogative for proposing new laws.

The two bodies that complete the holy trinity of EU government – the directly elected European Parliament and the Council of Ministers – do not enjoy that right. They can (and in resolutions and summit conclusions, frequently do) ‘call on’ the Commission to propose a law. But the Berlaymont is not obliged to comply.

So the main arena where the two legislative bodies get to put their stamp on EU law is in back-room negotiations between MEPs and diplomats, with the Commission acting as umpire or ‘honest broker’ – hence the Brussels neologism ‘trilogue talks’.

Playing the game

As countries like Russia or, closer to home, Hungary have shown us, democracy is not merely a matter of having the right institutions in place, a written constitution (the EU has to make do with its treaties, after efforts to forge a European basic law collapsed in 2004) and an election win.

Democracy also requires that politicians observe democratic customs and norms. Put simply, that they play the game.

The trilogue process does not even have the benefit of being codified in law. It is a custom that has arisen because the alternative – endless readings and re-readings of bills conducted at least partly in public – would probably drag on for years before hitting a brick wall.

Lately, several governments haven't quite been playing the game. Germany – egged on by the now moribund liberal FDP, a junior coalition party at the time – reneged in 2023 on a trilogue agreement to end the sale of petrol and diesel cars by 2035, until the Commission served up a plate of face-saving fudge.

Viktor Orbán’s Hungary pulled a similar stunt last year when, after realising it carried the casting vote, it flipped on an agreed Nature Restoration Law. A “disgrace”, cried Ireland’s environment minister Eamon Ryan. It only made it into the Official Journal after Austria got off the fence.

Now, with a deforestation regulation postponed before even taking effect, many fear the nature law is in the Commission’s sights as it presses on with the ‘simplification’ Green Deal legislation.

Ireland had warned that “backtracking on agreed negotiations and compromises would jeopardise Europe’s democratic institutions and call into question the entire EU policy-making and decision-making processes”.

Now the denizens of the Berlaymont have been accused of not playing the game – by pre-empting the outcome of a final trilogue session and threatening to withdraw a Green Claims Directive that it feared was not shaping up as it wanted (that is, exempting the vast majority of EU firms).

‘Abuse of power’

“This is a clear case of the Commission abusing its power in a partisan way against European citizens’ best interests,” parliamentary rapporteur Tiemo Wölken said, pointing the finger at President von der Leyen, her Environment Commissioner Jessika Roswall, and their political family the European People’s Party (EPP).

After the Commission’s unexpected intervention, Italy withdrew its support and the EU Council could no longer support the bill in its current form. With the EPP and right-wing allies having already threatened to reject any trilogue deal in parliament, it was effectively dead in the water anyway.

A meeting of EU diplomats on Wednesday saw several countries raise doubts about trust and the credibility of the legislative process while some pointed to an increasing tendency of the EU executive to try and bury files, according to a source close to the meeting.

It remains to be seen whether the incoming Danish presidency of the Council of the EU can salvage something from this mess, but in some ways the damage is already done.

For its part, the Commission has reiterated since Friday that it reserves the “right of initiative” – to propose or withdraw legislation at will. Spokespeople have papered over the inconvenient fact that the EU Court of Justice ruled a decade ago that the right of initiative does not amount to a right of veto.

Whether the European Commission’s belated justification for its “intention” to withdraw – that the legislation was incompatible with a deregulatory ‘simplification’ agenda that had not yet been dreamt up when the bill was tabled in 2023 – would have stood up in court, we will probably never know.

But if the rules of the game have been changed, it’s time somebody told us.