A legal Reconstruction of Trilogues as the "efficient secret" of the European Law-Making

The purpose of the research project was to analyze the European decision-making process, paying particular attention to trilogue negotiations. By trilogue negotiations legal scholars and practitioners designate informal meetings held in camera by small groups of representatives of the Parliament, the Council and the Commission. During these meetings, the three institutions discuss legislative proposals put forward by the Commission and define features and contents of EU policies and acts.

In figurative terms, trilogues have often been likened to "a smoke-filled room", which, in US political jargon, is a catchphrase used to suggest a cabal of powerful or well-connected, cigar-smoking men meeting privately to make decisions without regard for the will of the larger group. And yet, it has become almost impossible to imagine the European law-making process without trilogues. They are said to be a "usual working method for reaching legislative agreements". In fact, given the inherent difficulties in attaining policy changes (decision-making procedures at EU level have been designed to protect the interests of minorities and to empower veto players), trilogues play the key function of simplifying the legislative environment in which institutions are meant to operate. One might therefore claim that these interinstitutional meetings are the "efficient secret" of the European constitution, that is, something not expressly regulated in the Treaties, but crucial to the existence and functioning of the European system of government.

The research project submits that, due to its characteristics, the EU is in effect a "consensus democracy" and that, thanks to its consensus culture, the EU seems to outperform many majoritarian democracies in terms of representation and inclusiveness. Against this backdrop, trilogues as loosely institutionalized negotiation contexts play a pivotal role in ensuring the integration and coexistence of different – and often divergent – policy interests. Beware, though: this does not mean that trilogues should substitute altogether the traditional loci of democratic decision-making or that secluded bargaining should supersede open debate and public reason giving. Without doubt, these are values to preserve and perpetuate. However, I argue that these two moments (trilogues and plenary sittings, bargaining and open debate) should coexist and virtuously interplay.