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?

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 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.

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