KU Leuven Master of European Studies: Transnational and global perspectives Centre for European Studies Blijde Inkomststraat 5 3000 LEUVEN, BELGIË

Informal decision-making in

the European Union

An exploration of power dynamics in

trilogue negotiations

Tobias Röcker

Presented in fulfilment of the requirements for the degree of

Master of Arts in European Studies

Supervisor: Dr. Johan Adriaensen

Academic year 2014 - 2015

11086 words

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Informal decision-making in the European Union an exploration of power dynamics in trilogue negotiations

Abstract

Most decision in the Ordinary Legislative Procedure of the European Union are made in informal

trilogue negotiations. Delegations of the European Commission, the Council of the European Union

and the European Parliament negotiate fast track legislation that bypasses the formal decision-making

process. Recent literature presents various methodological approaches to the power distribution in

trilogues, albeit the shortcoming of a comprehensive theoretical framework. This paper tries to fill that

gap by analysing the power implications of the shift from the formal procedure to informal trilogues.

A deductive research based on political theory develops specific power mechanism. This allows a

differentiated perspective adequate to the manifold character of trilogues and presents a contribution

to the theoretical foundation of research on power dynamics in trilogues.

Key Words: Trilogue; Informal decision-making; Co-decision; Power dynamics; Interinstitutional

bargaining; EU legislation;

Content

Abstract .................................................................................................................................................... i

List of Abbreviations .................................................................................................................................ii

1. Introduction ..................................................................................................................................... 1

2. Attributes of Power ......................................................................................................................... 3

3. A trilogue, is a trilogue, is a trilogue ................................................................................................ 4

4. Implications for the European Commission .................................................................................... 7

4.1. In the Room Bonus .................................................................................................................. 8

4.2. Power to formulate the proposal ............................................................................................ 9

5. Implications for the Council of Ministers ...................................................................................... 10

5.1. The tight hands of the Council Presidency ............................................................................ 11

5.2. Access to information advantage .......................................................................................... 12

5.3. Personnel Turnover of Negotiators ....................................................................................... 13

6. Implications for the European Parliament .................................................................................... 15

6.1. First move advantage, patience and the power to delay ...................................................... 16

6.2. Relais actor and the powerful rapporteur ............................................................................. 17

7. Other Actors .................................................................................................................................. 20

8. Conclusion ..................................................................................................................................... 22

9. Bibliography ................................................................................................................................... 24

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List of Abbreviations

CoR Committee of the Regions

Council Council of the European Union

EA Early Agreement, a conclusion of the legislative process after the first reading.

EESC European Economic and Social Committee

EU European Union

EP European Parliament

OLP Ordinary Legislative Procedure

TEU Treaty of the European Union

TFEU Treaty on the Functioning of the European Union

Acknowledgements

I would like to thank my advisor Johan Adriaensen for his guidance, supervision and support.

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1. Introduction

Who decides in the European Union? This seemingly simple question any schoolbook provides an

answer for turns out to be a very difficult question the academic community is only beginning to

address. In the formal decision-making process of the Ordinary Legislative Procedure (OLP) a proposal

of the European Commission takes a variety of steps, including readings in the European Parliament

(EP) and the Council of the European Union (Council). Both chambers can amend the proposal and

neither can conclude against the will of the other. Importantly, two interrelated trends challenge this

formal process: The increased use of informal trilogue1 negotiations between the three mentioned

institutions outside the formal process; and the rapid rise of fast track solutions, so-called ‘Early

Agreements’ (EA), where Council and EP conclude a file at first reading, which was the case for 85% of

legislative files in the OLP during the last legislation period. (European Parliament 2014a, 8) Over the

past years, trilogues not only became an established instrument in EU legislative decision-making, but

a ‘hidden’ standard procedure. This presents a very significant change to the structure of EU legislative

decision-making. In this explorative study, I analyse power dynamics in trilogue negotiations. They are

elementary to our understanding of why a decision is taken in a certain way. Relative power

distribution in trilogues is not only relevant for the scientific debate on EU legislation, but also for

practitioners and ultimately for the accountability of our elected representatives and the legitimacy of

the European Union.

The academic society still struggles to address the phenomenon accurately. The literature on power in

trilogues can be structured following their methodological approaches to measure power, as

suggested by (Thomson 2015, 203f): A first group bases its research on interviews with practitioners.

While this approach can provide valuable insights, Thomson notices that practitioners, under similar

conditions, subjectively come to very diverging interpretations of power distribution. A second

approach uses the amount of successful amendments of the EP as indicator. Thomson criticises this

approach based on his conflictual understanding of power, where a successful EP amendment would

only account for power if introduced against the interest of the Council. In the light of early

agreements, I want to add that the amendments introduced by the EP often represent a pre-

negotiated agreement. Its adoption therefore cannot measure the EP’s relative power. Another group

that is not mentioned by Thomson compares Early Agreement results to files that have been concluded

at later stages, for example (Rasmussen and Reh 2013). Problematic is that the use of trilogues is not

a necessary condition for an EA, and trilogues also take place at later stages. Furthermore, with 85%

of files concluded early, the comparison lost much of its explanatory value. As part of the final group,

1 (fr) Trilogue, also (en) Trialogue and (de) Trilog. Within the EU institutions, both the English and French term are used. Consistent with most academic literature, I will use the originally French name “Trilogue” in English.

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Thomson favours and practices a fourth option, a modelling approach based on a spatial

representation of the different policy positions of the actors involved. Thereby, the initial position of

an institution’s required majority is compared to the legislative outcome to measure an actor’s power.

The closer an outcome to the initial position of a co-legislator, the more powerful this institution was

in the negotiations. I am sceptical of this approach for two reasons: Firstly, it takes trilogues as a ‘black

box’ and implies a causal relation from the observed outcome to initial power. This carries the risk of

neglecting interfering variables, specification error and spurious relationship. For example, a middle

ground agreement of two powerful political parties can be very close to the initial position of a small

centre party, which does not mean that centre party was powerful. Secondly, his approach does not

account for different culture on political communication in the institutions when determining the

initial positions. I expect a bias in favour of the Council, whose proposals are formulated more

agreement oriented and therefore are already closer to the outcome than the public debate in

Parliament. Support for this critique comes from a Council official who indicates in an interview: “the

EP plays the game by starting with an extreme position on which it is quite easy to then give way as a

‘concession’.” (Roederer-Rynning and Greenwood 2015, 8) Given these methodological challenges, an

empirical overall assessment of the actor’s power in trilogues adds little value to our understanding of

trilogues.

Instead, this paper takes a theoretical approach to the question: How does the increased use of

trilogues change power dynamics in EU legislative decision-making? The deductive research is

explorative, because it tries to open the black box and differentiates power mechanism within trilogues

by applying political theories. It is comparative in the sense that it emphasizes the difference to formal

OLP. It is comprehensive as it deals with the particularities of the various actors involved and is based

on an extensive review of the literature on trilogues. Theoretical models can structure and enhance

our understanding of a phenomenon and be a guide for empirical research. I suggest to analyse

different power mechanism separately. Different mechanism might work in opposite directions,

outweighing each other, which causes challenges for encompassing them empirically. This work

explores different theoretical approaches to power dynamics in trilogues in form of deductive

research. It will thereby contribute to the theoretical foundation of research on trilogues. I will not

develop causal hypothesis, since empirical evidence for each mechanism could be found using

different indicators or methodologies. Instead, a statement on the direction of each power mechanism

is presented. I shall then try to deduce conditionality and limitations of each mechanism. In a next step,

empirical support or variations of a mechanism are discussed, based on an extensive review and critical

assessment of the existing literature. The paper does not engage in the related normative debate on

the implications of trilogues for the democratic legitimacy of the European Union, compare (Huber

and Shackleton 2013; Lord 2013; Reh 2014). Furthermore, I neglect the question why trilogues occur

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and how this informal procedure evolved, see (Reh et al. 2011) for an evaluation of different

theoretical approaches.

The structure essentially evolves from general reflections on power and trilogues to concrete proposals

how to incorporate specific power aspects by using political theory. Chapter two elaborates my

understanding of power where I shall argue that a broader power definition is necessary to adequately

address the various power implications related to the shift towards trilogues. Chapter three introduces

the background and characteristics of trilogues, as well as the main differences to the formal OLP of

the European Union. In the second part of the thesis, the structure follows the involved institutions

with a separate chapter on the European Commission, the Council of the European Union and the

European Parliament. Each chapter begins with the general power implications of the increased use of

trilogues, before elaborating concrete power mechanism deduced from standard theoretical models

which shape the institution’s power in trilogues. A final chapter elaborates power effects on the

excluded actors, before concluding the thesis.

2. Attributes of Power

The philosophical debate on power has various facets that evoke different associations. In the context

of trilogues, most scholars go back to Max Weber and his definition from 1922: “[Macht ist] die Chance,

innerhalb einer sozialen Beziehung den eigenen Willen auch gegen Widerstand durchzusetzen,

gleichviel worauf diese Chance beruht.”(Max Weber, as quoted in Nohlen and Schultze 1985, 523) Dahl

adapted the Weberian approach of an asymmetrical relation between actors: “An actor has power

over another to the extent that she can get him to do something that he would not otherwise

do.”(paraphrase of Dahl 1957 in Saar 2010, 1099). Core aspects of this approach are the conflict of

interests, the focus on a conscious actors’ behaviour, and a causal relation from one actor’s power to

the other actor’s action and its effect. Scholars have mostly analysed power in trilogues in the tradition

of Weber and Dahl, for example (Bailer 2010; Costello and Thomson 2013; and less explicitly

Rasmussen and Reh 2013). I think, this narrow view on power in trilogues has several weaknesses: It

only analyses cases in which open confrontation occurs, but a very influential aspect is the actual

formulation of amendments, or the formation of the actors will in the first place. Moreover, cases

where the two main legislators strongly disagree are generally underrepresented in the EU legislative

process. (Costello 2011) It further focuses on formal or constitutional rights as resource for power,

therefore restricts the analysis to the EP and Council as formal legislators and neglects actors who do

not vote on the proposal. It cannot accurately account for the power of the European Commission in

the OLP. Also, the consultation of the European Economic and Social Committee (EESC) and Committee

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of the Regions (CoR) is thereby completely neglected in the trilogues debate. Finally, the emphasis on

actors’ behaviour neglects more structural aspects of the power dimension in trilogues.

In this thesis, I adapt a broader definition of power that extends the Weberian understanding. Power

does not only result from the action of one participant shaping a second one’s actions, or as Lukes

formulates it in response to Dahl: “power is a dispositional concept, identifying an ability or capacity,

which may or may not be exercised.” (Lukes 2005, 109) For the purpose of this work, I shall define

power as the ability to shape the outcome of the legislative process. This is to say, a broader set of

aspects should be considered. Power could for example also be exercised through setting the agenda,

defining the legal basis and level of decision-making, influencing the actors’ preferences, deliberative

contributions, formulating proposals or shaping the space of options available. Equally, the structure

of a procedure can have implications for the relative power of the actors. The increased use of

trilogues, as a structural change in EU decision-making, has such power implications for the options of

actors within that framework. The term ‘power dynamics’ emphasises that power is not static but

changes under different conditions or in different constellations. I use the term ‘power mechanism’ to

describe such a potential shift of power under certain circumstances. Other terms such as control or

influence are used in the common sense of the word, not as variation or differentiation within the

power concept.

A decision-making sphere is regarded as informal to the extent that it is outside the formal sphere

foreseen in that case. The rules of interaction generally emerged in the process of interaction of the

involved actors, yet outside the control of a single actor. These rules may not be part to formal dispute

resolution in case of non-compliance. It has already been the case in the European Union that informal

rules evolved on the basis of formal treaties, which were formalized and turned into treaty regulations

at a later point. (Heritier 2012) For the arguments presented in this thesis, I assume rational actors

who try to maximize their utility. This is not to say that human behaviour always works this way or that

the power mechanism can determine the outcome of the legislative process. The theoretical models

should rather be perceived as a potential explanation that help us understand certain aspects of

trilogue negotiations. It opens the box and looks inside the negotiations.

3. A trilogue, is a trilogue, is a trilogue

Unique in nature and rich in variation, all trilogues have one thing in common: they bring together

representatives of the Commission, the EP and the Council to facilitate coordination and compromise

between the three institutions of the European Union. They are mostly used in the framework of the

co-decision procedure, which has become the Ordinary Legislative Procedure (OLP) under the Lisbon

Treaty. The different stages of the OLP are defined in Article 294 of the Treaty on the Functioning of

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the European Union (TFEU). There are several possibilities to conclude legislation on the basis of a

proposed legislation, introduced by the Commission:

A: The Parliament adopts a position with a simple majority in first reading, which the Council

approves.

B: The Council does not approve EP’s position and adopts its own position in first reading. The

Council must inform the Parliaments of its reasons and the Commission shall inform the EP of

its position. If the EP approves of the Council’s position or does not take any action2 within

three months, the act is concluded. (Otherwise, a simple majority in the EP is required to stop

the act and an absolute majority is required to further amend the position in second reading.)

C: If the Parliament agrees with absolute majority on new amendments in second reading, the

Commission again gives its opinion. If the Commission agrees, the Council can conclude the

file with Qualified Majority Vote (QMV). In case of a negative opinion from the Commission,

the Council still can conclude the file, but unanimously.

D: If the Council does not agree with the EP’s amendments in second reading, the file goes to

the Conciliation Committee in order to formulate a joint text. This joint version can be adopted

in third reading by a simple majority in the EP and QMV in the Council. (Summary on the basis

of TFEU 2009, Art. 294)

Originally, trilogues were first introduced to prepare the Conciliation Committee in option D. Now,

they can take place at any stage of the OLP, even before the first reading in EP. Since option A was

introduced with the treaty of Amsterdam in 1999, the number of legislation concluded early grew

steadily. During the last legislative term of the EP, 85% of legislation under the OLP was concluded at

first reading, another 8% of files were concluded following option B, which is also called early second

reading agreement. (European Parliament 2014a, 8) Some authors (including official EP sources) define

‘Early Agreements’ (EA) as combining both option A and B, e.g. (Bressanelli et al. 2014; Rasmussen and

Reh 2013). Subsequently, 93% of co-decision files were EAs during the last legislation period. From a

power perspective, it is however important to distinguish between them, since option B can mean that

no trilogue agreement was possible prior to the first reading in EP, or that EP plenary voted against the

negotiated compromise in first reading. It has further been suggested to differentiate between Early

Agreements as a result of trilogues, and Early Conclusions in general. “Even though a vast majority of

the procedures concluded at first reading are EAs, there are still a considerable number of first reading

files which do not result from informal negotiation in trilogue.” (Bressanelli et al. 2014, 9) In this paper,

Early Agreements therefore refer to option A agreements as a result of trilogue negotiations, if not

explicitly indicated differently. Between 2009 and 2014, over 1500 trilogues were held on approx. 350

2 This aspect is recurrent source of confusion. Some arguments suggest that a simple majority in first reading is followed by a higher threshold and absolute majority in second reading, e.g.: “For the rapporteur’s party group, it is easier to muster the necessary votes [in EAs]; the Council Presidency can argue that a negotiated compromise will be more difficult to find at second reading.” (Rasmussen and Reh 2013, 1010) However, a file does not need an EP majority in favour of the Council’s proposal in order to pass in second reading.

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different legislative files. (European Parliament 2014a, 24) In that time frame, only 24% of legislative

files were concluded without the use of trilogues. (Brandsma 2015, 17) It is therefore just to say that

trilogues are at the very core of EU legislation and its informal negotiations became the standard

decision-making procedure.

Trilogues have no legal basis in the Treaties of the European Union or Treaties on the Functioning of

the European Union. In 2007, Council and EP structured the use of trilogues in a joint declaration on

practical arrangements. Herein, both sides express that trilogues have proven to be beneficial and that

its practice at all stages of co-decision should be further encouraged. Both sides further declare to

strive for an adoption at first reading (option A) wherever possible. Negotiated deals are not legally

binding until formally adopted by the OLP, yet a result in trilogues is confirmed by a letter of either

Council or EP with details on the agreed amendments and confirming the chamber’s “willingness to

accept the outcome, subject to legal-linguistic verification, should it be confirmed by the vote in [the

other chamber’s] plenary.” (Joint Declaration, European Parliament 2014b, Annex XXI, 263)

The character of trilogues can vary, depending on the seniority of participants and at which step in OLP

they take place. While the negotiation mandates in the late stages are very detailed, trilogues on Early

Agreements take place before the EP plenary has voted on a common position, which gives the

negotiators more flexibility. (Stie 2010, 269) We can further differentiate between technical trilogues

and the main political trilogues, as well as ‘shadows meetings’ and ‘speed-dating meetings’ before

trilogues begin. (Roederer-Rynning and Greenwood 2015) In the first, positions are compared and less

disputed or technical differences are resolved on a working level, working on the famous 4-collumn

sheet, which contains the Commission proposal, (suggested or actual) EP amendments, the mandate

of the Council Presidency and the results of the technical trilogue. Politically sensitive aspects that

could not be resolved on the working level will then be discussed at the main political trilogues. The

negotiations take place behind closed doors with a restricted number of participants. Each institution

defined the constellation of their delegation and on their mandate in its own rules of procedure. (Joint

Declaration, European Parliament 2014b, Annex XXI, Art. 8, 263) For a political trilogue, the number of

participants varies between 30 person for a normal file and up 100 individuals on issues of high political

interest. The Council sends the smallest delegation, consistent of civil servants of the Council

Presidency at the level of Committee of Permanent Representatives (COREPER). The delegation of the

Commission is comparably strong, 8-12 people, always including a high ranked official of the respective

directorate-general. (Roederer-Rynning and Greenwood 2015) The respective Committee of the

European Parliament is represented in the trilogues. The rapporteur leads the negotiations, the Chair

or an appointed Vice-Chair of the Committee presides over the negotiation team. It further consists of

at least one shadow rapporteur from each political group, and in case of an issue where two or more

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committees have competences, further rapporteurs of the associated committees join, especially in

the case of conciliation procedure. (European Parliament 2014b, Art. 73, 74, 54)

Subsuming the main differences to the formal OLP, trilogues take place with the declared aim of an

Early Agreement. Most negotiations start prior to the first reading in the EP, before a formal position

has been adopted in the EP or Council. Trilogues are informal in the sense that they have no legal basis

in the EU treaties. Rules and norms guiding the trilogues developed in the process and are now semi-

formalised in the form of a joint statement and the EP’s rules of procedure. A negotiated agreement

has to be officially passed by both parent chambers respecting the OLP regulations. Access to the

negotiations is restricted to a very limited amount of people. Their membership is not registered or

published. Information on the discussed aspects is not transparent or officially documented. While it

enhances the efficiency of the legislative process, the use of trilogues is criticised for its lack of

transparency, input legitimacy and limited public accountability. (Lord 2013) The second part of this

thesis will now explore which power implications the increased use of trilogues for EAs has on the

various actors and introduces, by deductive reasoning based on political theory, specific power

mechanism which increase or restrict the actors’ power in trilogues.

4. Implications for the European Commission

Many would argue that the Commission is one of, if not the most powerful institutions in the European

Union. It enjoys a high visibility in Europe and represents the EU in international trade negotiations. In

the legislative process, it is the exclusive right of the Commission to formulate proposals (TEU Article

17(2)) for most policy areas. However, this does not mean that every legislative file is introduced based

on the Commission’s initiative. The Council (TFEU Article 241) and the EP (TFEU Article 225) can

request, and a citizen’s initiative (TEU Article 11(4)) can invite the Commission to submit a legislative

proposal. To that extend, the Commission’s agenda-setting power is important, but not exclusive.

Further power resources of the European Commission are its network connections to other EU

institutions, national administrations and private actors, and its information advantage and technical

expertise. It publishes Green and White Paper to announce its intentions and gather feedback, and

anticipates the different positions in the legislative proposal. (Wonka 2015)

However, under co-decision, where Council and EP can formally amend, change and conclude a

proposal against the will of the Commissions, many scholars have difficulties to deal with the power of

the Commission. Thomson and Costello for example introduced a power model that has the lowest

mean model error if the Commission has zero power in OLP. (Costello and Thomson 2013, 1032) They

ascribe no power to the Commission, even though they recognize that the Commission has an

undoubted influence on the adopted content. This is mostly resulting from a conflictual power

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definition that focuses on diverging interests and on formal decision-making power. I criticize this

narrow power definition in the context of trilogues, yet “most analysts view this procedure as a game

between the Council and the EP only.”(Thomson 2015, 198) Furthermore, the Commission has lost

some formal powers with the increased use of trilogues. The treaties provided the Commission with a

formal consultation right in the OLP (TFEU Article 294). In option B and C, the Commission publishes

its opinion on the proposed amendments, its support or opposition would impact on the necessary

voting majorities. In the context of trilogues, where 85% of files were concluded as an Early Agreement

(option A), the Commission de facto loses this formal consultation right and the power to influence the

voting requirements. “Thus, with the advent of closer collaboration between the Council and the

Parliament, the Commission has increasingly found itself shunted to the side. This was the primary

motivation for the Commission to dream up the White Paper on Governance in a not fully disguised

influence attempt to wrest back some of the political power it lost as a result of this informal accord

between the Council and the Parliament.” (Stacey 2012, 401) Yet, the Commission is part of the

trilogue negotiations and its role should be analysed respectively.

4.1. In the Room Bonus

‘I am in the room when the negotiations take place and can speak during the discussion, before the

results are formalised.’ It is arguably less difficult to defend or explain a position, raise an argument or

share concerns about a new proposals if it is done before an agreement is reached or clear positions

are formulated. While the formal consultation power is limited, the informal ability to comment on

the amendments and influence EP and Council might even increase with trilogues. The European

Commission benefits from a ‘in the room bonus’ that allows it to react on critical aspects. This power

mechanism can especially be used when negotiations go strongly against the Commission’s initial

intention. One could even call it a “deliberative veto power” if the Commission raises legitimate

concerns. Its wide technical expertise supports this mechanism.

It is indeed one of the main differences between the trilogues’ informal practices and formal OLP that

“the Commission is involved in this process even when the formal rules do not give it decision power.”

(Thomson 2015, 199) Indeed, there are indicators that the Commission takes actively part in trilogues

and that its image of the neutral mediator between Council and EP that brings in expertise is not always

true. In its last report on co-decision, the European Parliament raised concerns: “given the

Commission's important and active role during Council working party (and even Coreper) discussions,

its status as 'honest broker' during trilogue negotiations is sometimes questioned in practice.”

(European Parliament 2014a, 17) This complaint presents a strong indication that the Commission

might play a more active role in trilogues than current discussion acknowledges. Depending on its

preferences the Commission might even side with either the Council or the EP resulting in a two against

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one dynamic. A qualitative analysis of the Commission’s practices in trilogues is necessary to explore

the concrete form and occurrence of this power mechanism.

4.2. Power to formulate the proposal

‘I can decide how the discussed proposal looks like in the first place, whether it is closer to the Council

or the EP’s position.’ It appears evident that formulating the proposal gives a lot of influence over the

actual legislative text, but it is difficult to grasp this

aspect with political theory. One approach to

model different actor’s preferences is spatial

theory, see e.g. (De Mesquita 2014, ch 3). An easy

model normally consists out of one or two policy

dimensions, the actor’s position and a status quo.

The assumption that an actor prefers any proposal

that is closer to his position than the status quo,

enables to draw a circular line of indifference. An

actor can theoretically agree to any proposal

closer than the line of indifference. The win-set

describes an area in which the required majority

of actors prefer a proposal to the status quo. Since

any point within that win-set is a potential outcome, the power to formulate the proposal is decisive

for the result. The graph demonstrates one potential constellation in spatial theory. In this example,

the Commission has the choice to introduce either proposal 1 or proposal 2. Spatial theory allows us

to model this specific power of the Commission. The Commission holds the exclusive power to

formulate the proposal. The power increases, the bigger the win-set and potential compromise

between the EP and the Council is. It remains to see whether the Commission makes active use of this

power mechanism, and strategically prepares the proposal. Qualitative research in this direction can

be very promising. This mechanism enables us to demonstrate a strong power of the Commission in

the OLP, as well as under trilogues. Especially with the broader power definition applied in this paper,

the Commission is a powerful actor in trilogues that cannot be neglected. This power to formulate the

proposal would be higher in the informal sphere, if trilogues lead to less substantial changes to the

proposal, as one EP activity report suggests: “the Commission often pushes for an early adoption

because it will be able to demonstrate efficiency and hopes that its proposal will be adopted with as

few changes as possible.” (European Parliament 2012, 5) It is not yet clear if trilogues or EAs lead to

qualitatively less changes to the proposal and respectively increasing the ‘formulation power’, which

should be subject to future research.

Figure 1: formulating a proposal in spatial theory, own illustration

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This chapter suggested that the Commission’s power is underestimated by most analysis of trilogues

due to a narrow power definition. Compared to OLP, the Commission has lost formal rights, yet the

power gains from being part of the negotiations such as the ‘in the room bonus’, suggest a more

prominent role than currently ascribed by most analysts. The power related to the ‘formulation of the

proposal’ has not been fully recognized by the literature on trilogues. The chapter demonstrated that

the Commission cannot be simply neglected with regard to the power dynamics in trilogues. Further

research should also take into account that the Commission is not a unitary actor, but consists of

different DGs and Commissioners form the 28 MS. Potential internal conflicts are diverging interests

of DGs, disagreement within the College and the national interest of Commissioners. Yet, only a small

amount of legislative proposals are discussed in the College of Commissioners, with the remaining

being mostly technical and of low political salience or of little interest to other DGs. (Wonka 2015, 96)

While academics analysing trilogues start to differentiate between different Committees in EP and

Council constellations, little attention has been drawn so far to intra Commission aspects of co-

operation and coordination in the context of trilogues.

5. Implications for the Council of Ministers

The Council of the European Union (Council) brings together the governments of the 28 member states

(MS) represented by their ministers in different constellations. The Council presidency, which rotates

between MS on a semi-annual basis, chairs the Council meeting (with exception of the Foreign Affairs

Council) and represents the Council as chief-negotiator in trilogues. Historically the main legislator, the

Council is often presented as “upper house” in the bi-cameral decision making structure of OLP.

Scholars found the Council to be more powerful than the EP in the bi-cameral OLP, mainly due to the

different voting structure (Bailer 2010; Burns, Rasmussen, and Reh 2013; Costello and Thomson 2013;

Hagemann and Hoyland 2010). Indeed, Council does not decide like the EP with simple or absolute

majority, but by Qualified Majority Voting (QMV) or unanimity. The QMV, which is defined in Article

16 TEU as “at least 55 % of the members of the Council, comprising at least fifteen of them and

representing Member States comprising at least 65 % of the population of the Union” (TEU, Art 16.4;

see also TFEU, Art 238), is supposed to be the default voting mechanism: “The Council shall act by a

qualified majority except where the Treaties provide otherwise.” (TEU, Art 16.3) While in OLP, the

Council de jure is in many situations not explicitly required to unanimity and therefore shall act by

QMV (compare chapter 3) it de facto has adapted a ‘culture of consensus’ and is taking decisions by

so-called ‘apparent consensus’, a technique that makes actual votes very rare. (Mühlböck 2012, 573;

Naurin 2015, 144) This provides each MS with a ‘quasi’ veto power. (Bailer 2010)

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The general impact of the increased use of trilogues on the Council should be researched more

thoroughly. Häge and Naurin argue that co-decision leads to an increased politization of the Council.

(Häge and Naurin 2013) I further suggest an argument for a “supranationalization” effect. I expect the

General Secretariat of the Council to take a more important role in granting continuity and building up

expertise in assisting and supporting trilogue negotiations, whereby trilogues will strengthen

supranational departments within the Council. Yet, the Secretariat describes its role so far as servant

to the Presidency and claims to not be directly involved in trilogues. (Roederer-Rynning and

Greenwood 2015, 13) Roederer-Rynning and Greenwood discover a trend that the Presidency in

trilogues is more often assisted, either by COREPER, which increases the control and influence of big

MS, or by so-called ‘sherpas’, advisors of the heads of MS governments from the European Council.

While the intra-institutional changes in the parliament as reaction to an increased number of trilogues

is well researched, this is not yet the case for the Council. This chapter will now explore three power

mechanisms that can influence the Council’s power in trilogues.

5.1. The tight hands of the Council Presidency

‘My hands are tight, I cannot make any concessions in this point. Otherwise, the proposal would not

get approval by the Council.’ It is common in politics to claim constraints by domestic parliaments or a

superordinate chamber, in order to strengthen the bargaining position. “Negotiators have an

advantage if they can credibly claim that their parent chamber will not accept significant deviations

from the position they are advocating.”(Costello and Thomson 2011) The underlying theoretical

argument was first introduced by Thomas Schelling. He found that domestically weak governments

have a stronger negotiation position internationally, which he called the ‘paradox of weakness’.

Putnam built on this conjecture and argued that governments play “a ‘two-level game’ and try to

exploit domestic opposition strategically against an international treaty” (Schneider, Finke, and Bailer

2010), a concept that has been applied in the context of the Council decision making.

In the context of trilogues, both the EP’s rapporteur and the Council Presidency can claim those

restrictions by their parent chambers, in order to strengthen their bargaining position. Yet, the Council

Presidency is in a favourable position to use this mechanism, due to several reasons: First, the different

voting requirements in Council and EP make it easier for the Presidency to claim constraints. Especially

when (de facto) deciding with unanimity, the opposition of a single MS is sufficient. The opposition of

a single party group in EP, on the other hand, presents no problem as long as the required majorities

can be assured. Second, the Council has a small delegation in trilogues, represented by the Presidency,

whereas the different EP party groups are in the room as shadow rapporteurs. Constraints within the

EP can therefore be addressed directly in the negotiations, while the Presidency would have to

renegotiate within COREPER separately. A third, directly linked aspect is the in-transparency of

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COREPER negotiations, making it difficult for the EP to see if claimed constraints are actually true. This

is also reflected in a fourth aspect, the negotiation mandate of the Presidency: There is a recent trend

away from deriving the mandate out of a multilateral process, towards bilateral procedure between

the Presidency and each MS, as a response to increasing communication across Council and EP due to

trilogues. (Roederer-Rynning and Greenwood 2015, 12) Thus, the Schelling conjecture puts the

Council Presidency in a stronger negotiation position vis-à-vis its counterpart at the EP, since it can

claim constraints more easily and more credibly. While some of the claimed constraints also apply to

the formal OLP, this mechanism is important for informal negotiations. Especially aspects two to four

do not occur in formal OLP, when officially voted positions are discussed in readings. However, in a

European Union which can be described as a ‘hyper-consensual’ system of government, (Hix 2006)

where flexibility and openness to concession of all actors is important, a clear overuse of the

mechanism could revoke a blocking attitude in the EP.

How regular and substantial the Council Presidency claims constraints in the spirit of the Schelling

conjecture is yet to be investigated through interviews with practitioners. While the Presidency always

played an important role within the Council, Farell argued that trilogues further increased the role of

the Presidency.(Farrell and Héritier 2004) However, empirical studies have shown that the preferences

of the Presidency do not influence the decision to start informal negotiations (Bressanelli et al. 2014;

Reh et al. 2011) nor is the policy outcome closer to the President’s position (Häge and Naurin 2013).

5.2. Access to information advantage

‘I can predict how you will react to a proposal. I know the crucial aspects where you disagree internally,

your red lines and the concessions you are willing to make.’ Access to information on the other side’s

position can increase your power in negotiations. Economists and political scientists have applied

Game Theory to model decision making, assuming rational choice and utility maximisation. In a full

information game, the strategy of an actor can be modelled by backwards induction, predicting his

action starting from the potential outcomes of the game. Information asymmetries can be included in

the model by assuming incomplete information, which limits the actor’s ability to predict the other

side and take preferences of other actors into account. In that sense, the lack of information can reduce

your power in negotiations. (Morrow 1994, ch 6 and 8)

In the context of trilogues, Benedetto first introduced the argument that Council holds an information

advantage over the EP. With the Council meeting in secret, the “EP has to bargain information-

blind.”(Benedetto 2005, 70) A way to proof that the information advantage empirically changes the

actor’s power to shape the outcome was introduced by Hoyland, who argued that MEPs from parties

that are represented in their national governments had better access to information than other MEPs.

(Hoyland 2006) The information power mechanism should be measurable following the hypothesis

13

that a rapporteur from a government party could deliver negotiation outcomes that are closer to the

EP’s ideal position. Empirical test finds a small positive correlation (Costello and Thomson 2011). These

findings suggest that information indeed can have an influence on the negotiation power. The Council

benefits from an information asymmetry, which increases its power vis-à-vis the EP. This mechanism

can especially increase the Council’s power, when the EP is internally divided. Respectively, when the

Council is internally divided, the power of the EP does not measurably increase.3 (Costello and

Thomson 2013, 1028) The information advantage is especially important in direct trilogue

negotiations, where the Council can influence the EP more directly by making concrete offers.

However, we must acknowledge that “information asymmetries are more complex than generally

alleged.”(Roederer-Rynning and Greenwood 2015, 15) An increased contact between Council officials

and MEPs might also benefit the EP to some extent.

An alternative argument on the impact of the information asymmetry mechanism is provided by

Hansen. He argues that EAs are the most cost-effective solution. The fact that some files are concluded

at later stages could only be explained by to incomplete information. “If all actors have complete

information with regard to the preferences of the other actors, first-reading non-agreement under co-

decision should not occur. […] If the EP has incomplete information, non-agreement may occur due to

the EP overestimating its ability to extract concessions from the Council.” (Woien Hansen 2014, 477) I

disagree with Hansen’s theoretical assumption that full information would necessary lead to Early

Agreements. The game theoretical context of trilogues is arguably a repeated game, where situational

non-cooperation can be part of a long-term strategy of a rational actor. (Morrow 1994, ch 9) Yet,

incomplete information should be included in game theoretical models that represent trilogues.

5.3. Personnel Turnover of Negotiators

‘Experience is not something you can learn from a book.’ Personnel continuity throughout the

negotiations is related to a familiarity with the respective discourse and the other actors’ situation and

personality, as well as the culture of trilogue negotiations. The lack of personnel continuity, in form of

a high turnover can limit the institution’s relative negotiation power. Scherpereel and Preez call this

power mechanism ‘the peril of amateurism’. (Scherpereel and Perez 2015, 3) In the context of

trilogues, the Council lacks this continuity for several reasons. First, the turning presidency makes one

Member State responsible for leading the trilogue negotiations for the very short term of half a year.

In the so-called ‘presidency trios’, three successive presidencies coordinate their action to increase

continuity. Yet, legislative files that overlap with presidential terms have two or more different chief

3 The absence of such an effect for the EP might, next to the information asymmetry, also be due to the high voting requirements of QMV or unanimity in the Council, where a compromise is only possible if the internal division of the Council can be solved. “Division in the Council may make it easier for Council representatives to persuade MEPs not to amend the Council negotiations.” (Hagemann and Hoyland 2010, 824)

14

negotiators for the Council in trilogues. This structural aspect of rotating presidency prohibits

personnel continuity and leads to ‘speed-dating’ meetings (Roederer-Rynning and Greenwood 2015,

9). Secondly, while the rapporteurs and shadow rapporteurs of the EP are responsible for various files

throughout their political career, a Council official would theoretically have to wait for fourteen years

until her country was to hold the presidency again. Subsequently, a learning procedure for the Council

would have to be organized inter-personally and across Presidencies. Thirdly, there is a high turnover

of the Council constellation at a minister level. During a presidency trio of 18 months, about half the

national minister represented in the Council changed. (Scherpereel and Perez 2015) The Council’s

bargaining power vis-à-vis the EP can be reduced by the personnel turnover mechanism. This is

especially be the case if experts from national administration with little procedural knowledge on the

European Union and especially on trilogues are tasked with the negotiations. An additional challenge

presents itself for small countries holding the presidency, where the negotiators lack the capacities

and workforce to get familiar with all details of a file. The effect of this mechanism is arguably stronger

in trilogues with direct interaction and a reduced number of actors. Applying a wider power definition

including the actor’s ability to influence the actual formulation the loss of expertise further reduces

the actor’s power in the spirit of this mechanism.

Empirically, an indication for the personnel turnover mechanism has been found for the third

argument. There is a significant correlation between the annual turnover rate in Council constellation

at the minister level and the bargaining success of the Council. It has been argued that “the Council

does not always dominate the EP or the Commission; its bargaining strength depends, among other

things, on levels of personnel continuity at its highest level.” (Scherpereel and Perez 2015) However,

the authors lack to provide the theoretical link between turnover in the parent chamber and the

success of the negotiating Presidency in trilogues. Further research should especially look at the

personnel turnover within the negotiation team and at a working level. A high continuity at this level

could limit the overall effect of the turning Presidency. Another approach might compare cases where

trilogues were only held during one presidency, to cross-presidency negotiations.

To conclude the three power mechanism discussed, the Council holds a strong bargaining position.

While the ‘tight hands’ and ‘access to information’ mechanisms rather put it in a favourable position

compared the EP, the personnel turnover due to the rotating Presidency, can present a disadvantage.

Quantitative analysis regularly give the Council a dominant role and high degree of bargaining success

(Burns, Rasmussen, and Reh 2013; Costello and Thomson 2013) Yet, these outcome analysis need to

respond to the critical aspects raised in the introduction and link its explanations closer to concrete

power mechanisms, like the three discussed above.

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6. Implications for the European Parliament

Over the past decades, the power of the European Parliament has grown steadily. Today, it has

budgetary and legislative functions, exercises political control and elects the President of the

Commission (compare TEU Art. 14), to which end it introduced the position of ‘Spitzenkandidaten’

during the last elections, claiming the power to propose the candidate that formally lies with the

European Council (TEU Art. 17(7)). This is just one example showing how the EP actively seeks to

further increase its power. It is able to do so in the informal sector mostly due to “the incompleteness

of the treaties, the EP’s hinder power, and the opportunities to increase the overall efficiency of EU

decision-making.“ (Crum 2012, 355) Formal treaty amendments to change an established informal

procedure would require a strong assent of all member states. (ibid 360) In a number of policy areas,

the legislative competences of the EP increased from consultation to the co-decision mode, which

became the Ordinary Legislative Procedure (OLP) with the treaty of Lisbon. As a result, the EP is

increasingly perceived as ‘equal’ to the Council of the European Union.

In line with the overall trend, the Parliament was also able to increase its influence in trilogues. In the

beginning, the Council understood trilogues as a way to indicate what it was willing to accept while the

EP saw itself as co-equal legislator. (Heritier 2012, 345) A case study suggests that the EP now has more

power in trilogues than in formal OLP: “The EP’s influence during co-decision was indeed found to be

larger when agreement was reached at early stages in informal trilogue negotiations than when

agreement was reached through the formal mechanism of conciliation.”(Häge and Kaeding 2007, 357)

Recent data-sets allow to differentiate between the various EP Committees, e.g. (Bressanelli et al.

2014). Indeed, the different Committees enhanced their positions by adapting internal rules, such as

taking breaks in trilogues to align EP positions for important points. A successful example is the ECON

committee, who established that the EP would document the negotiated compromises by refusing “to

consider four-column documents authored by Council services.” (Roederer-Rynning and Greenwood

2015, 11) The quick rise of trilogues went hand in hand with a critical debate, especially in the EP,

about transparency requirements, legitimacy and democratic accountability in EU decision-making,

and their right balance to efficiency of the process. (Huber and Shackleton 2013; Lord 2013) As a

consequence, the European Parliament adjusted its rules of procedure. The most recent changes in

2012 increased the authorization aspect through a clear mandate, and structured feedback

strengthened the accountability, as well as more transparency on how the decision to start trilogues

is taken.4 (Reh 2014)

4 The debate on the right use of trilogues might lead to additional changes in the nearer future. One example discussed aims at increasing the transparency and accountability: “Commission Vice-President Šefčovič proposed that the institutions consider establishing a public register on trilogues, which could make available to the public, inter alia, information on files under negotiation and the composition of negotiating teams, and, once agreement

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6.1. First move advantage, patience and the power to delay

‘You are under time pressure. If you want to find an agreement now rather than later, you have to give

me something in return.’ It is often the case that a result now has more value for an actor than the

same result in the future. This time aspect can be modelled in Game Theory using a ‘discount’ δ, ∈

[0; 1] that reduces the actor’s outcome utility u. The smaller the discount δ, the more an actor will

prefers u now to u later.5 In case of an agreement at later stages (time t for each round), both actors

would get a lower outcome utility by the factor (𝛿𝑡 × 𝑢). (compare Morrow 1994, 38) It is thereby

methodologically possible to include the time component into the power equation. At the first stage

of an Early Agreement, with no discount (𝛿0 = 1), we have an equilibrium where the EP gets A from

the bargaining and the Council gets B. The same bargaining result at an early second reading

agreement would subsequently lead to a reduced outcome utility 𝛿𝐸𝑃1 × 𝐴; 𝛿𝐶

1 × 𝐵, at the second

reading in 𝛿𝐸𝑃2 × 𝐴; 𝛿𝐶

2 × 𝐵, and in 𝛿𝐸𝑃3 × 𝐴; 𝛿𝐶

3 × 𝐵 for Conciliation.6 This model can help demonstrate

why both actors have an interest in concluding early. It further influences the bargaining situation in

two ways:

The EP, as the first player to amend, can anticipate future time losses of the Council in its

proposal, offering 𝐴 + (𝐵 − 𝛿𝐶𝐵) for the EP and 𝛿𝐶𝐵 for the Council, which a rational actor

would accept. A counteroffer, introduced by the Council at the second stage would have to

include the discount factors δ2 (with δ1> δ2 in all cases, since δ ∈ [0; 1]). With the lower

discount at later stages, it is however more difficult for the Council to come up with a

counteroffer that forms a potential compromise. I therefore argue that the EP has an

advantage in making the first move because it can add the discount of the Council to its own

outcome.7

on a given file is reached, all relevant documentation. This is an idea that the institutions might reflect upon further together.” (European Parliament 2014a, 51) 5 The term ‘discount‘, officially used by game theory, can be confusing: A small discount stands for rather high time pressure, a high discount for low time pressure. For example, if my discount is δ = 0,5, I value later results half as much (𝛿2 = 0,25; 𝛿3 = 0,125; …) If my discount is δ = 0,9, I value later results only 10% less. 6 To demonstrate the general theoretical effect, the model assumes that the time frame between each round is the same. However, there are different time regulations at the different stages in OLP. “Every phase – except the first reading in the EP – from adoption of the common position by the Council to approval of an agreement in conciliation, is subject to a time limit.” (Heritier 2012, 345) Trilogue negotiations for Early Agreements ergo have no defined time limit, but it would be possible to include a more detailed time discount, e.g. modelled on every week, following the same argument as presented in the text. 7 It has been argued that the main difference between OLP and trilogues is the move from a sequential to a simultaneous normal form game bargaining. While I agree that this shift enables both sides to make numerous counter-offers, I argue that the formalization process remains sequential. This sequential aspect is still the formal framework of the decision-making and is considered by both players when negotiating. However, trilogues are not a pure sequential game either. In a classical Rubenstein sequential bargaining model, compare (Morrow 1994, 145-155) for an introduction, the player making the last offer can claim almost all benefits, including the respective discounts 𝛿𝑥

𝑡 × 100. By backwards induction, the first player makes a similar offer at the beginning. I argue that this does not apply to trilogues for the following reason: The EP and Council formulate a joint text

17

Additionally, if the EP is more patient than the Council, with 𝛿𝐸𝑃 > 𝛿𝐶 , it can ‘punish’ the

Council by concluding at a later stage, or threaten to do so. In repeated games, an actors’

reputation and beliefs become important factors and punishment can be part of a strategy.

In trilogues, we can assume a rather strong time pressure and a low discount δ, which leads both sides

to jointly declare that they want to conclude early whenever possible. (Joint Declaration, European

Parliament 2014b, Annex XXI, 263) It can further be assumed that the Council presidency has a higher

time pressure than the EP if it wants to conclude legislation within its six-month-turn, than the EP.

(similar argument: Rasmussen and Reh 2013, 1020) The European Parliament benefits from its

patience and first move advantage. This power mechanism is arguably omnipresent when negotiating

legislation. Especially towards the end of a Council Presidency when the time pressure rises and their

discount factor δ subsequently decreases, and the EP might claim higher concessions. While this aspect

equally exists under formal OLP, trilogues allow both sides to determine more precisely which offer

the other side is willing to accept.

In the first years of the co-decision procedure, the EP made use of its power to delay and potentially

block legislation. “The EP faced less pressure than the member states governments, especially the

Council presidency, to legislate on key issues, and was willing to obstruct specific items of legislation

in order to assert principles of decision-making by establishing linkages between substantive legislative

issues and institutional principles.”(Heritier 2012, 345) Today, the EP can credibly threaten to make

use of this power and to apply it strategically if it is able to find a common position within the

Parliament. While literature already accounts for this ‘power to delay’ of the EP,8 I argue that a ‘first

move advantage’ is omnipresent in trilogues as one power mechanism. On the other hand, the time

aspect is not only related to benefits in bargaining from early conclusions, but has normative

implications for the political process in the EP. “At an early stage, however, the average

parliamentarian often does not have a sufficient level of information to assess the actual content of

the deals.” (Rasmussen 2011, 44)

6.2. Relais actor and the powerful rapporteur

‘I negotiate on behalf of the entire EP. A powerful position that allows me to influence both the

outcome of trilogues and the opinion of the EP.’ The influential position forming the link between the

home organisation and the inter-organisational negotiations, is called ‘relais actor’. The shift from

formal co-decision to trilogue negotiations will increase the power of some actors within an

organisation, and the organisation will react with institutional rules and attempt to control these

prior to Conciliation, which can be compared to an infinite game, where both actors divide the outcome equally, if they have the same δ. (Morrow 1994, 149) 8 Kardasheva argues for a similar ‘power to delay’ under the consultation procedure. (Kardasheva 2009)

18

actors. This ‘relais actor thesis’ was introduced in 2004 in a study which showed that especially

rapporteurs increased their power since “they have traditionally played a central role in conventional

co-decision dossiers but have far fewer checks on their negotiating authority in early agreement

dossiers.” (Farrell and Héritier 2004, 1200) It inspired empirical research analysing which

characteristics of the rapporteur have an influence on the outcome, as depicted below.

In classical principal-agent theory, the principal delegates a task to an agent, who negotiates on behalf

of that principal. If the principle and the agent have different preferences, the problem of ‘moral

hazard’ can occur when an agent follows his competing self-interest. In order to limit this problem, a

principal should select the right agent, formulate a clear mandate, monitor and control the agent’s

actions and hold him accountable for the outcome. However, these reactions are related to higher

transaction cost and thereby limit the benefits from delegating in the first place. (Quinn 2011)

In trilogues it can occur that the rapporteur who leads the negotiations is not part of the voting

majority. Rapporteurs are generally selected by an auction system. Political groups can bid on reports

corresponding to the number of MEPs in their group. (Benedetto 2005, 71) Subsequently, a rapporteur

can come from any political party group. There is a risk that a rapporteur deviates from the EP’s

common position if he is to negotiate a deal against his own political convictions. To counterbalance

the moral hazard problem, the EP indeed tried to increase its control over the rapporteur by adapting

its rules of procedure. Today, rapporteurs need a mandate by the respective committee to start

trilogue negotiations. The negotiating team reports back at the following committee meeting. In case

of an agreement, the committee must be informed immediately and provided the negotiated text.

Control is further exercised by the committee chairs and the shadow rapporteurs appointed by the

other political groups, who are also part of trilogue negotiations. (European Parliament 2014b, Art.73)

Trilogues lead to an intra-institutional power shift that empowers the rapporteur within the EP

whenever control is exercised weakly. The flexibility and room of manoeuvre of a rapporteur depends

upon his mandate, the control and accountability. It has been argued that control is tighter if there is

a high legislative conflict between the Parliament and Council, if the size of the EP delegation is more

substantial, and if the mandate is defined more closely.9 (Rasmussen and Reh 2013) The empowerment

of the rapporteur should thus be stronger in cases of low political tension with small delegations, and

at early stages when the mandate consists more of guiding orientations.

Empirical research however suggests that relais actors don’t have more power in trilogues to deviate

from the institution’s joint interest in the sense of the moral hazard problem. It seems that the

9 The role of public interest in a file is not explicit in the literature. While the amount of media attention has no influence on the early conclusion of a file, (Reh et al. 2011) high visibility might well have an impact on the flexibility of the negotiators. (Rasmussen and Reh 2013)

19

outcome of a legislation is not closer to the position of rapporteur or Council presidency if concluded

early, compared to conclusions at later stages. (Rasmussen and Reh 2013) Some models suggest that

rapporteurs with certain characteristics do better in negotiations achieving results are closer to the EP

median vis-à-vis the Council. According to these studies, the best results are achieved by a rapporteur

from a big political group, who does not represent and extreme position, and is not a senior politician

who would have strong influence within his party group. (Costello and Thomson 2011, 341) Yet, these

findings need theoretical support from different power mechanism than the relais actor thesis. In the

light of the presented conditionality of the mechanism, it has been noticed that tighter control, e.g. a

big number of shadow rapporteurs, increases the amount of trilogues necessary to conclude.10

(Brandsma 2015) Another related factor is the number of committees involved in the legislative

process. A file with cross-committee responsibilities is significantly more likely to be concluded in an

EA. (Reh et al. 2011, 1032) Burns argues that shared competences limit the relais actor’s options to

shape legislation, yet she finds empirical support for this hypothesis to be limited in her case studies.11

(Burns 2013)

The European Parliament has demonstrated awareness of the challenges related to principal-agent

theory. Since the rapporteur’s expertise, parliamentary activity and demonstrated party loyalty are

considered in the selection process, it has been argued that “rapporteurs are appointed strategically

to maximize Parliament’s bargaining success.” 12 (Rasmussen and Reh 2013, 1019) Reh argues further,

the problem of adverse selection is limited by ‘gyroscopic representation’, which denotes that the

rapporteurs act in the best interest of the principal because they have been selected due to their

intrinsic motivation and orientation to the good of the whole. Accountability could be increased by re-

selection in case of successful negotiation and quasi de-selection in case of deviation from the common

line. While investing in a good selection is more effective than tightening control, rapporteurs should

not only report back, but justify their actions and be hold accountable in the following committee

meeting. (Reh 2014, 828f) The relais actors are not able to substantially deviate the outcome in one

10 Brandsma introduced a new indicator to the debate, with the amount of trilogue negotiations necessary to conclude. His findings support the control aspect: First, the amount of shadow rapporteurs correlates with the number of trilogues and second “the more a rapporteur’s draft report is criticized by fellow MEPs, the more informal trilogues are required.” (Brandsma 2015, 17) Howbeit, I am sceptical to what extend his indicator, the simple amount of trilogues (regardless of the duration, quality of exchange, or type of trilogue) can account for anything else than the amount of interaction. 11 Interesting for future research is her thesis that in case of conflict between committees, the associated committee has more influence on the relais actor, than the leading committee of which the relais actor is part originally. (Burns 2013) 12 Interestingly, the principal agent theory assumes ideal outcome if principal and agent have the same preferences. However, it might be strategically better not to be perfectly represented. In a game theoretical model on the role of US Congress committees in bicameral negotiations, it has been argued that a deviating agent might be in the principal’s interest. “In the latter role, a committee can be an effective bargaining agent if it is willing to reject proposals that the chamber cannot commit to reject. But this requires the committee to be unrepresentative of the chamber.”(Gailmard and Hammond 2011)

20

direction, in the sense of a conflictual power definition, and the adapted EP rules support this

development. From a broader power perspective, the relais actors’ power e.g. over the adapted

formulation or their influence on rather uncontroversial aspects, likely has increased substantially

through trilogues, as the amount of actors has been reduced. Future research on the relais actor thesis

should take such aspects into account.

Overall, as this chapter pointed out, the European Parliament has demonstrated awareness of the

challenges related to trilogues and aims at increasing its power. I suggested a first move power

mechanism that would empower the EP vis-à-vis the Council. EP-internal power shifts have been

discussed extensively, yet the problem is found to be limited in the Weberian sense of power. The

predicted empowerment of the rapporteur was nullified by tight control and increasing regulations on

the mandate, control by shadow rapporteurs and accountability to the committee. In consideration of

more subtle aspects of a broader power definition, future research might revive this debate. Additional

implications of trilogues on the political culture in the EP leave a broad field for scientific inquiry. A

very interesting thesis by Costello claims that bicameralism and co-decision determine the potential

coalitions in the EP: “so it is increasingly the case that the only coalitions that form in the EP under the

co-decision procedure are those that form an agreement with the Council.”(Costello 2011, 125) I

expect that trilogues on EAs, prior to the adoption of a formal position in the EP, can strengthen such

an effect. Future research on this thesis and the role of trilogues therein might enhance our

understanding how majorities form in the EP.

7. Other Actors

The discussion on trilogues mostly neglects further actors that play a role in the OLP, but are not part

of the trilogue negotiations. This might be due to a narrow power definition and focus on voting power.

However, these actors are confronted with structural power implications that are directly related to

the increased use of trilogues. Especially the increased speed of decision-making, the early start and

lack of transparency of trilogues appear problematic. A comprehensive approach to trilogues should

consider these implications.

National Parliaments have a collective right to check if a legislative proposal in OLP respects the

subsidiarity principle. (TEU Art. 12b; TFEU Art. 69) The respective protocols grant eight weeks, from

the date that the Commission’s proposal is available in all official languages of the EU, to present an

argumentation why the proposal violates the subsidiarity principle. Each MS holds two votes that can

be split in bicameral systems. If one third (yellow card) or one half (orange card) of MS votes raise

subsidiarity concerns, the EU institution who initiated or the Commission have to respond. (TFEU Prot.

1 Art. 4; Prot. 2 Art. 7) The time period is very important for the functionality of this control mechanism

21

and the treaty explicitly states that “no agreement may be reached on a draft legislative act during

those eight weeks.” (TFEU Prot. 1 Art. 4) But, this might exactly be the case, since trilogue negotiations

can start before the first reading in EP. The concerns raised by national parliaments might have less

impact if a compromise between the two main legislators has already been reached. National

Parliaments’ power to control for subsidiarity is de facto limited by trilogues for early agreements.

A recent empirical survey and case studies found strong indications for this power dynamic. National

Parliaments have not enough time under trilogues, to scrutinize for subsidiarity, as well as to hold their

national officials in the Council accountable. (Jensen and Martinsen 2015) Further research should

inquire whether trilogues indeed take place and even conclude during this eight week period and if

subsidiarity concerns of MS have less impact on trilogues than on formal OLP.

The Committee of the Regions (CoR) and the European Economic and Social Committee (EESC) have a

consultation function in the OLP: “The European Parliament, the Council and the Commission shall be

assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory

capacity.” (TEU Art. 13(4)) They examine the legislative proposal on certain topics and give an opinion.

(Bache et al. 2015, 216) Trilogue negotiations for Early Agreements may reduce the time frame in

which such advice can effectively be brought forward. The secrecy of trilogues makes it more difficult

to assess which options are discussed or considered. Trilogue for early agreements reduce the

influence of the EESC and the CoR, since negotiations might start before they can formulate their

opinion. The impact of this power dynamic has yet to be confirmed empirically. In order to strengthen

the multi-level government component of the EU, Michel Lebrun has suggested to include the CoR to

trilogues on specific topics. (Lebrun 2014)

Finally, the connection to and impulse from civil society actors is an essential part in the formation of

the political will and the generation of a position. Therefore, interest groups can be regarded as part

of the OLP, compare e.g. (Bache et al. 2015, 216). In trilogues, it is difficult for the public to obtain

information on trilogues. Participation is not announced and can only be determined indirectly. No

records of the negotiations are published before, during or after the meetings. (Stie 2010, 200, 266f)

This makes it challenging to identify the relevant actors. Their limited number makes it also more

difficult for interest groups to present their arguments. Furthermore, the secrecy inhibits an

assessment which options are considered during trilogues. Informal and secret trilogues are less

responsive to lobbying attempts than public deliberation in formal OLP. Qualitative research on this

mechanism draws a differentiated picture. While public interest groups indeed seem to have less

influence under trilogues due to restricted access to information and increased decision-making speed,

profit interest groups are still able to present their suggestions to relevant key-actors. “Interviews

conducted with officials from the Commission, Coreper and the EP suggest that in most cases, despite

22

trilogues, private interest groups are well informed on the content and outcomes of negotiations

within a matter of hours.” (Andlovic and Lehmann 2013, 25) This finding suggests that trilogues further

increase the gap between public and profit interest groups. An aspect that might add to the debate on

democratic legitimacy of trilogues.

8. Conclusion

Trilogues are decisive in the EU legislative process. They present a hidden standard procedure with

significant consequences for the interaction of the EU institutions. This paper theoretically explored

power dynamics in trilogues. A theoretical foundation for distinct power mechanism was developed

which allows us to take a more differentiated perspective. The increased use of trilogues has power

implications for the three institutions that are part of the negotiations, as well as for those who are

not.

The deductive research comes to the following results. The European Commission loses formal power

it hold under the OLP, but can benefit from a ‘in the room bonus’. It was demonstrated that models

which ascribe no power to the Commission neglect the importance of the formulation power. A

broader power perspective is necessary to acknowledge for the Commission’s influence on the

legislative outcome. The Council of the European Union is a strong player due to voting regulations

and form of representation, which can easily claim constraints in the sense of the shelling conjecture.

Its position is further strengthened by an information advantage, however the rotating presidency and

personnel turnover can delimit its power. The European Parliament was able to increase its power and

might continue to do so in the future. In trilogues, it is able to claim a first move advantage and benefit

from its patience. A drastic power shift within the EP empowering the rapporteur was found to be

nullified by tight control. However, an argument applying a wider definition of power suggest an

increase in the rapporteur’s power which might revive this debate. It has been suggested that national

parliaments, the CoR and EESC, as well as interest groups find it more difficult to influence the

legislative process, due to the early start and lack of transparency, which seems to be less of a problem

for private interest groups, though. Overall, the power changes related to the increased use of trilogues

are substantial.

I nevertheless encourage the reader to show a critical engagement with regard to the limitations of

the presented theoretical models. They allow us to emphasise certain aspects, but are not a

determinism of actual behaviour. They should be understood as a guideline to analysing potential

power dynamics. It was not goal of this paper to determine the exact relative power of the actors, nor

to predict the outcome of negotiations. Rather, it was a declared aim to support the differentiated

consideration of the manifold character of trilogues, addressing scholars and practitioners alike. Future

23

research could build on this approach by refining the presented mechanisms and their conditionality,

or explore additional mechanism. A second step is to empirically verify the existence and direction of

each mechanism. This aims at increasing our situational understanding of trilogues and at establishing

an adequate scientific representation of this complex procedure.

Trilogues are not a phenomenon we can expect to disappear soon. Three quarter of co-decision

legislative proposals were discussed in trilogues and 85% of files were concluded early at the first

reading during the last election period. Trilogues are here to stay, as they shape the very heart of EU

legislative decision-making. It is therefore crucial to understand power dynamics and analyse them

accordingly. The presented thesis contributes to this end.

24

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