Nikolay Domanov



The Treaty of Lisbon provides for the early conclusion of the Ordinary Legislative Procedure (OLP) and the adoption of EU legislative acts either in its first or second instead of in its third reading.

This practice has become a common legislative technique in recent years with the number of decisions taken before the third reading being largely increased. However, to reach an agreement in the course of OLP, the two co-legislators – European Parliament (EP) and the European Commission (COM) – have to enter into extensive negotiations. The latter are being held according to a specific set of rules that have been amended recently to meet the requirements for openness and transparency of the EU decision-making process, and in particular, the OLP, taking into account the increased number of legislative dossiers and the new role of EP as a co-legislator in the EU.

The Treaty of Lisbon provides four options for the adoption of a legislative act of the Union within the OLP. The fourth option is that the act is adopted by the Council and the EP on third reading (art. 294, § 13 TFEU). The third reading is the final stage of the OLP and during this stage the legislative acts are normally accepted. The remaining three cases can be classified as extraordinary, as hypotheses of early conclusion of the OLP.

If during the first reading of the OLP the Council approves the EP proposal, the act shall be adopted in the wording proposed by the EP (Article 294, § 4 TFEU). If a consensus is reached during the first reading between the Council and the EP, this is usually the result of an agreement that has been made at first reading.

If reached, the early second reading agreement means that the EP had approved the Council’s position with no amendments to it.

The second reading agreement is achieved when the Council approves all the amendments made by the EP (Art. 294, paragraph 8 TFEU). The Council approves the proposed act in the format it has acquired after the EP amendments. This hypothesis differs significantly from the early second reading agreement, whose subject is the Council’s position, while in the second reading agreement the subjects to approval are the amendments that EP had made to the Council’s position.

To reach an agreement between the co-legislators – EP and the Council, which is also adopted by the COM, there should be a consensus between the positions of all parties. This process of reconciling the positions of the EP, the Council and the Commission, I am defining as Interinstitutional Negotiations within the OLP. Their product is the agreements for early completion of the OLP – agreements at first and second reading.

The phenomenon known as early informal negotiations emerges for the first time in 1997 in connection to the Directive on biotechnological inventions. Until then, this practice was not particularly attractive.

The significant increase in Interinstitutional Negotiations led to the emergence of a new practice known as a trilogue. Trilogues arise as informal meetings that preceded the formal meetings of the Conciliation Committee in the mid 90-ies of XX century. As a rule, the term “trilogue” means the tripartite meetings between representatives of the EP, the Council and the Commission in the legislative process. These are informal meetings aimed at reaching a compromise through negotiation process in any form.

Interinstitutional Negotiations are not formally regulated in the Treaties. Their institutionalization as trilogues, their frequent use in the OLP, and fears of a lack of transparency (and legitimacy) in the activities of the institutions’ delegations impose their formalization.

Already on June 13, 2007 signed the Joint Declaration of the European Parliament, the Council and the Commission on the practical arrangements for the co -decision procedure (Art. 251 TEC). It is currently part of the EP Rules of Procedure as Appendix XX. It also complements the Interinstitutional Agreement on better law-making and in particular its provisions relating to the OLP.

To further formalize some of the practical aspects of the ongoing Interinstitutional Negotiations EP adopted in 2008 Code of Conduct on the negotiations within the OLP, which is currently part of the EP Rules of Procedure as Appendix XXI. The Code sets out the general principles of the European Parliament on how to negotiate at all stages of CAP (Article 1). It complements the Joint Declaration. In addition, only in 2009, EP adopted article 70 of its Rules of Procedure, which is the main piece of legislation governing the rules for governing the Interinstitutional Negotiations.

Following the adoption of these acts the Interinstitutional Negotiations acquired the status of “semiformal procedures,” which, however, remain largely unregulated in the Treaties.

The basis of the Interinstitutional Negotiations and agreements at first and second reading in the legislative procedures remain the principle of representative democracy, which is the basis of the functioning of the Union and according to which decisions are taken as openly as possible and as close as possible to the citizens, and the principles of openness and democratic accountability. Therefore, the philosophy of the new Article 70 of the EP Rules of Procedure is based on three basic principles: efficiency, openness and inclusiveness. Logically, the biggest problem is the combination of the principles of efficiency and openness.