It’s becoming clear that the fate of the EU’s privacy law reform, namely the Data Protection Regulation, could be decided by institutional deal-making in Brussels. The Civil Liberties (LIBE) committee in the European Parliament is to be formally asked for permission to enter into negotiations with the Council - also known as trilogues. If the trilogues go ahead – still an ‘if ’ - it means that the three EU institutions will
be asked to agree the shape of the legislation in private talks, before the outcome is put to a Parliamentary vote.
Following my previous article Cloak of secrecy hangs over EU privacy reform, the European Parliament’s rapporteur, Jan-Phillip Albrecht, has confirmed to Iptegrity via Twitter ( probably the strangest form of interviewing that I have ever done) that he does indeed plan to ask his committee for a trilogue mandate when it votes on his report in October.
Elsewhere, Mr Albrecht has expressed a view that there will be a deal done between the Parliament and Council of Ministers, possibly early next year. Speaking to Inside US Trade, Mr Albrecht said that if everything goes to plan, the Parliament and the Council would be in a position to reach a deal by January.
Tweeting in response to a German constituent, Mr Albrecht said that he expected both the Parliament and the Council of Ministers to establish a mandate for talks in October, with a view to adopting the legislation by next Spring.
Trilogue is EU jargon for tripartite, confidential talks between the council of Ministers, the European Parliament and Commission, with the aim of getting agreement on legislative texts. The European Parliament’s rapporteur must take the political decision to agree to holding trilogues and then he must put that to his committee in the form of a formally-worded mandate. Trilogues are optional in the First Reading. It is the rapporteur's prerogative as to whether he wants to do so – or not. The mandate would be appended to his report when it is voted.
Hence, the decision to go this route will be taken by Mr Albrecht. He does have other options, including taking his report directly to the Parliament’s plenary session for the first reading vote.
Trilogues, held behind closed doors, would seem to go against the grain for a Green MEP who stands for Internet freedom and transparency. Mr Albrecht, a German lawyer, is highly regarded in the European Parliament, and that is indeed the reason he was selected for this role. So why might he consider this route?
He could be under pressure from the Commission to get the Data Protection Regulation adopted. He is very likely to feel the weight of the forthcoming Euro-elections. His electorate in Germany is sensitive to the issue of data protection. His wider constituency of NGOs is expecting that he will get this law through. That’s an awful lot of different pressures that are pushing him to fast-track the adoption.
Mr Albrecht will have to weigh up his chances. Will he be more likely to get the legislation adopted by going the trilogue route, or by putting his report to plenary? What is more likely to provide a successful outcome?
A few notes on trilogues:
The trilogue process is a formal one, and it is governed by the rules of the institutions. Critically, trilogues are held behind closed doors and are in effect, ‘secret’ talks. If there is agreement in trilogues, it will be put to the vote in both the Parliament and Council.
Trilogues are not the same as the informal talks that are usually conducted throughout the process, because they do have an official status. Both the Council of Ministers and the European Parliament must agree on every provision in a piece of legislation, before it can be adopted into EU law.
However, there are concerns about the use of trilogues in this kind of situation where there is a controversial piece of legislation and potentially a time constraint. The trilogue process tends to put too much stress on a fast-track to adopting the legislation, at the expense of open debate. The process is best suited to non-controversial legislation. Sadly, the process is often co-opted to suit a variety of political purposes.
For the trilogue process, as it played out in the EU Telecoms Package, see my book The Copyright Enforcement Enigma
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013, Closed-door trilogues confirmed on the data privacy agenda, 8 July 2013. Commercial users - please contact me.