Early agreements in the European Union co-decision procedure: democracy versus efficiency?

DEN HAAG (PDC) - The co-decision procedure, which became the ‘ordinary legislative procedure’ of the European Union with the Treaty of Lisbon (2009), has been the subject of a number of adaptations during its relatively short history. One of the most important and most controversial of these developments is the increased use of the so-called ‘early agreements’.

An ‘early agreement’ means that a deal is reached between a few key representatives from the European Parliament (EP) and the Council in a so-called trilogue, at a moment at which neither the EP nor the Council has adopted a formal position. Deals reached are subsequently presented to the full legislative bodies of the Council and the EP but in such a way that it is practically impossible to amend them. Thus, the average members of the legislative bodies are put under a severe pressure to accept what is on the table.

There has been a clear trend to expand the use of first reading conclusions over time, because they result in time savings and efficiency gains. In spite of this, there has been no shortage of criticism of first reading deals among academic scholars, commentators and the EU institutions themselves. Concerns relate to the lack of transparency entailed in negotiation processes, which often allow for systematic exclusion of important actors.

Another concern raised about these deals is that they are being pushed through in a fast manner without adequate time for deliberation and control of the legislators who negotiate them. Scholars even go as far as to speak of “a trade-off, a normative choice between the claims of efficiency and democracy, as democracy is not primarily about the speed of the decision-making process”[i]. Statewatch echoes this criticism by pointing out how “the efficiency of decision-making is enhanced at the expense of transparency, openness and accountability”[ii].

The claim that early agreements allow for less time for deliberation and negotiation has not been tested systematically so far. To assess the seriousness of this part of the critique of early agreements, Assistant Dimiter Toshkov at Leiden University and MI-fellow Anne Rasmussen have examined whether early agreements are reached faster than other deals, and whether there is any pattern in the duration of the different kinds of deals depending on the saliency and controversy of the legislative dossiers.

Our findings show that even if fast-track legislation restricts access for certain actors to decision making, early agreements on salient legislation allow more time for substantive debate and negotiations during the first reading stage. Hence, when we compare the length of the first readings for salient files concluded here and later in the legislative process, we see that first readings on the first group of files last longer. This indicates that the co-legislators compensate for some of the lost time from not going to second reading by extending the length of the first reading negotiations when the deals are salient. Moreover, rather than finding evidence that deals are pushed through quickly irrespective of how controversial they are, we find that the co-legislators spend more time on the first reading negotiation period the greater the level of political disagreement between them.

Finally, we find a trend for early agreements to last longer over time that is robust to controlling for characteristics of the negotiated files. This coincides with the EP having introduced stricter procedures for the conduct of early negotiations that require negotiators to report back to their committee regularly and collect mandates. Negotiation of fast-track legislation looks different today from the early period of first reading deals discussed among commentators and academic scholars. In this way, it appears that the number of initiatives that the EP has undertaken to formalize, clarify and institutionalize the procedures according to which early agreements are concluded have had an effect. Hence, the increased amount of time spent on concluding first reading deals coincides with the implementation of the reforms.

Much work remains to systematically examine the consequences of early agreements. However, what seems clear based on the results of our analysis is that the EP has adapted to the changing nature of the co-decision procedure and that these adaptations seem to have contributed to a more thorough treatment of fast-track legislation.

[i] Shackleton, M. and Raunio, T. (2003) ‘Co-decision since Amsterdam: a laboratory for institutional innovation and change’, Journal of European Public Policy 10(2): 171-187.

[ii] Statewatch Viewpoint, September 2007, “Secret trilogues and the democratic deficit” (http://www.statewatch.org/analyses/no-64-secret-trilogues.pdf). See also and http://euobserver.com , 06.02.2008 “MEPs fear lack of transparency in quick EU law-making”.