Speech - "20 years of co-decision"
European Commission - SPEECH/13/875 05/11/2013
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Vice-President of the European Commission responsible for inter-institutional relations and administration
"20 years of co-decision"
'20 years of co-decision' – conference at the European Parliament
Brussels 5 November 2013
Ladies and gentlemen
Thank you for inviting me to take part in this conference celebrating the 20th anniversary of what has become the cornerstone of our decision-making process: the co-decision procedure.
And what better time for such a debate, as we approach the next European Parliament elections and the start of a new legislature when the new European Parliament will be keen to set out its position.
Although it has undoubtedly become a pillar of our institutional architecture, we shouldn't shy away from discussing how we can make co-decision even more effective, or from addressing the criticisms that have sometimes been levelled at it.
The procedure’s new name following the Lisbon treaty, the Ordinary Legislative Procedure, underlines the fact that co-decision has now become the standard procedure used to adopt directives and regulations. For example, it was used for 90% of all the acts adopted in 2012.
Practical implementation of co-decision
So what has co-decision really changed over the past 20 years?
Two main developments spring to mind:
The first is that deals are made earlier and earlier. So-called first-reading agreements have progressively become the norm. It is now the exception for the negotiation process to enter the conciliation phase, a feature that was much more common in earlier phases of co-decision.
As an illustration: in the current legislature - so far - 82% of files were concluded by a first-reading agreement. Between 1999 and 2004, only 34% of all co-decision files were agreed in first reading.
The second development, which is linked to the first, is the increase in so-called "trilogues", i.e. the informal contacts between co-legislators and the Commission in order to reach agreement.
The number of trilogues has gone from 167 in 2010 to 476 this year so far, so we could very well top the 500 mark for 2013 as a whole!
So why have we seen this exponential increase in first reading agreements?
We have undoubtedly had some urgent issues to deal with linked to the crisis, but I think what we are doing on smart regulation also has a lot to do with it.
The Commission has increasingly put the focus on improving the preparation and thus the quality and appropriateness of its legislative proposals, through extensive stakeholder consultations and a wide-ranging impact assessment system.
All of which means that it is easier to find common ground on proposals at a much earlier stage.
And I’m glad to say that you here in Parliament have also understood the benefits of this type of approach. Your new Impact Assessment Directorate also plays a crucial role in assessing potential impacts of the EP’s ‘substantive' amendments to the Commission's proposals, again leading to a more streamlined legislative process.
When you consider, for example, that nearly 4000 amendments were tabled on the proposed Data Protection Regulation, it is not only the nature of the proposal that can be altered but of course the potential impacts it may have. This is why carefully assessing potential impacts also during the legislative process is so crucial.
But whilst it is important to evaluate the impacts, costs and burdens of EU action, it is equally important to assess the “cost of non-Europe”. How much will it costs citizens and businesses if we don’t propose one common set of rules at EU level?
The recent railway package proposals from my colleague Siim Kallas are a prime example of how this sort of pan-European approach can significantly simplify life for businesses and consumers, since they would aim to replace over 11.000 different rules and standards in effect across Europe today with one harmonised set of rules at EU level and to significantly reduce the cost and the time it takes to authorise rolling stock: currently to authorise a new locomotive to operate in a first country, for example, can cost up to €6 million; costs significantly increase when the procedure needs to be repeated in several countries and these procedures can take up to two years!
Points of criticism
Co-decision has undoubtedly made the legislative process quicker and simpler in many respects, but for all its successes, there are still some criticisms. Chief among them is the claim that co-decision is implemented in a non-transparent way, given the informal nature of trilogue negotiations, the restricted number of negotiators involved before a final deal is on the table and the lack of official records of negotiations.
I'll come back to the issue of transparency in a moment, but I want first to address another frequent criticism of co-decision: that it is being implemented without sufficient democratic control.
This particular criticism is most often levelled at the European Parliament, because the increase of first-reading agreements and the extensive use of trilogues give considerable influence to the lead committee and to rapporteurs, shadow rapporteurs and coordinators in particular, potentially side-lining MEPs from other committees.
The concern is that the ability to influence legislation may be shifting from plenary to committees and to key actors within committees.
While there are perhaps some foundations for these concerns, I firmly believe that all three institutions are well aware of the risks and the delicate trade-off to be made between efficient legislating and democratic control.
In particular the EP has addressed this issue repeatedly to ensure that safeguards are in place. For example, Parliament recently reviewed its rules of procedure to ensure a balanced composition of the negotiating team, which should include the chair of the Committee, the rapporteur and shadow rapporteurs, that the team receives a mandate from the committee and that it should report back after each trilogue.
Room for improvement
As I said earlier, the imminent change of legislature makes this the perfect time to review whether the efficiency, transparency, and democratic legitimacy of co-decision can be improved, and whether we have found the right balance between these objectives.
Let me make a number of suggestions in this vein.
My first point is a general reminder to all of us that first reading agreements should not become a routine default procedure which is followed without a real assessment of the file at hand.
The co-legislators, and especially the EP rapporteurs, should justify their preference for seeking an early agreement.
Co-legislators should also “dare to disagree” and not give in to find an agreement at any price.
And I think its important to stress that institutional elements, such as the use of delegated/implementing acts, should not simply be treated as bargaining chips to be sacrificed at the altar of the final agreement.
Secondly, for the sake of transparency and to some extent also for the benefit of democratic legitimacy, more could be done to improve the information available about upcoming or ongoing inter-institutional negotiations. We could even contemplate a public registry of all the on-going trilogues, open to all institutions as well as the public.
Moreover, the composition of the negotiating teams or at least the names of their leaders could be made public to reinforce transparency and accountability. Finally, I also think that whilst discretion may be appropriate during ongoing negotiations, once an act is adopted all documents should be publicly accessible.
Third, I think we could still further enhance the efficiency of co-decision, without necessarily jeopardising transparency and democratic control.
The last year has been exceptionally busy due to the approaching end-of-legislature and the MFF negotiations, which has meant a large number of files on the table and trilogues taking place (some individual files have required up to 60 trilogue meetings before conclusion!).
It is therefore no surprise that bottlenecks begin to occur. All institutions have a responsibility to try to avoid such problems and one key contribution could come from a much more pro-active coordination and programming of legislative work between the institutions.
A better balance could also be found between Brussels vs Strasbourg as venues for trilogue meetings.
I also think it would be good for the co-legislators to agree that trilogues could be hosted alternately between them so that they are not “dominated” by the “home team”.
And of course the Commission can also contribute to making the procedure more efficient by further enhancing its role as an 'honest broker' throughout the process.
The role of National Parliaments
Before concluding, I would like to say a few words about the increasing role of National Parliaments and how we take their views into account in the decision-making process.
As you know, the Treaty of Lisbon gave National Parliaments the right to submit reasoned opinions on the Commission’s proposals, when they consider that a draft does not comply with the principle of subsidiarity.
As we have seen with the yellow card on the Monti II proposal last year and just last week on the proposal for a European Public Prosecutor, National Parliaments are getting increasingly organised, in order to make their voice heard at the EU level directly rather than merely through their national governments.
Although, in my view the subsidiarity mechanism is ultimately a blocking instrument, through which National Parliaments can attempt to veto a proposal, the political dialogue with National Parliaments during the legislative phase is important and we need to take their views into account.
The increase in inter-parliamentary cooperation and dialogue is certainly important, in particular the new conference under Article 13 of the Fiscal Treaty, which should aim to build mutual understanding and common ownership for EMU as a multilevel governance system.
While interparliamentary cooperation and dialogue certainly goes some way in addressing democratic legitimacy, I believe that in the future we will need to better consider the way in which democratic scrutiny can be exercised both at the EU and national levels, particularly as regards decisions in the context of the European semester, where the interaction between the European and National levels are so crucial.
Ladies and Gentlemen
Co-decision provides a unique tool to demonstrate to our citizens that the EU’s main decisions are taken jointly in agreement and in partnership between the co-legislators who represent the two branches of the EU’s legitimacy.
Today, we have heard many proposals on how we can improve the way we implement the co-decision procedure and I am sure that these can be put into practice in the near future.
As Vice-President in charge of Inter-institutional relations I can certainly confirm that the Commission will continue to play its part in improving our decision-making procedures.
Thank you for your attention