Open Europe's meeting on the AIFM Directive - 1

My intention was to write just a single posting on that meeting but I got carried away in the previous one about Open Europe's pamphlet and certain pronouncements about the euro. This afternoon, however, Open Europe and Policy Exchange hosted a joint meeting at J. P. Morgan's rather grand conference hall in Moorgate, on the subject of the AIFM Directive, at present still stuck in a trialogue between the Council, the European Parliament and the Commission.

A trialogue, incidentally, is now an accepted part of EU legislation, another stage of negotiations conducted between the three institutions behind closed doors in order to speed up the process of imposing laws and regulations on the member states and their people. It is, as the European Commission points out, part of the complicated codecision process. If you scroll down past all the various stages and actions, you find this explanation:

“Informal trialogue”: the true negotiating forum

The briefness of the periods laid down by the Treaty for reaching an agreement, combined with the complexity of dossiers and the constricted timetable make it necessary to organise work on an informal basis upstream of conciliation. Thus, the negotiators frequently meet well in advance of the opening of formal conciliation. These meetings, mostly on a trilateral basis, constitute informal trialogues at technical or political levels, with a limited number of participants in the interest of effectiveness. For the European Parliament, the participants are the chairperson of the delegation, the chair of the parliamentary committee and the rapporteur, assisted by members of the European Parliament's conciliations secretariat and, if necessary, a member of the European Parliament's legal service. For the Council, the permanent representative of the Member State holding the Council Presidency is assisted by members of the Council's secretariat, including its legal service.

Lastly, the Commission is represented in the trialogues by the Director-General of the department in charge of the dossier, assisted by experts, its legal service and Secretariat-General. The participants in the trialogues operate on the basis of negotiating mandates given to them by their respective delegations. They explore possible avenues of compromise in an informal manner and report to their delegations. Informal technical trialogues may also be organised, attended for the most part by the three institutions’ experts and secretariats.

In other words, it is often at this "informal" stage that the final wording of far-reaching pieces of legislation is hammered out. Then again, it is not as simple as it might seem as a House of Lords European Union Report on Codecision and National Parliamentary Scrutiny, published in July 2009 pointed out

Informal trilogues are private meetings between representatives of the European Parliament, Council and Commission which take place at each stage of the codecision procedure. Contrary to popular belief these meetings are not small. Although numbers vary, usually they are attended by the Parliament's rapporteur, shadow rapporteurs and support staff, staff from the Council Presidency and staff from the Commission. In total there may be some 20 to 40 people in attendance. They are a vital part of the codecision procedure because they allow frank, face-to-face discussions between those leading on the Proposal under discussion from each of the Institutions. But, as M Léglise-Costa told us, they are preceded by even more informal contacts between the rapporteur and Presidency at which the real decisions can be made: "there is a lot of preparation before the actual negotiation in order to assess with the Parliament ... what is the right way to proceed" (Q 83). In terms of a record, the Parliament requires a report back to the responsible committee. We understand that the Council Secretariat produces a summary of the discussions which it circulates to the Representations of the Member States.

I am sure that makes everyone feel a good deal better.

As the same Report pointed out among its various Conclusions:

109. We consider that informal trilogues, whilst helpful to expeditious agreement of legislation, make effective scrutiny of codecided legislation by national parliaments very difficult. There are two reasons for this:

(a) Their informal and confidential nature is not transparent: as a result it is difficult for us to follow the course of negotiations and comment usefully to the Government; and
(b) The Council is represented only by the Presidency which tends to hold its cards close to its chest: as a result it may be difficult for all governments other than the Presidency to follow the course of negotiations and to represent the views of their national parliament at the appropriate point. (paragraph 60)

Bear in mind that scrutiny that is much discussed is not actually legislation, merely the ability to read the forthcoming legislation some time before it is actually passed. Even that is made difficult by the endless layers of informality added to the formal process, already complex enough, and the purported need for speed, which came up in this afternoon's discussion.

However, I seem to have digressed again and shall have to write about the meeting and discussion in yet another posting.