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What the Commission considers as “merits” of co-decision are
precisely the same points that concern critics of European
democracy.
Aware of the problems of the ordinary legislative procedure
with regard to informal negotiations (European Parliament, 2009),
in September 2008 the EP adopted a new set of internal rules for
its Code of Conduct, aimed at tackling issues of transparency and
democratic legitimacy. Rule 70 and Annex XXI of the Rules of
Procedure of the EP stipulate that an early agreement should only
be sought when such a step can be justified in terms of political
priorities, the uncontroversial or “technical” nature of the proposal,
the need to address an urgent situation, or the Presidency has made
a specific file a high priority. Moreover, the rapporteur should
present the case for expediting procedures to the full committee
before seeking to enter into negotiations with the Council. The
committee should then make the decision on whether to proceed
in this manner, either by broad consensus or by vote. In response
to criticisms that negotiations aimed at reaching early agreements
were conducted in secret and without readily available documentation
(Bunyan, 2009), the Code of Conduct was adapted to require
trilogues to proceed based on one joint document indicating the
positions of institutions (European Parliament, 2010).
The effectiveness of the Code of Conduct in enhancing
transparency and legitimacy appears to be limited. In terms of legal
effect, the document, being only a statement of the internal rules of
the EP, is not a reliable instrument for ensuring that the legislative
procedure, which involves not just the EP but also the Council and
the Commission, remains sufficiently transparent. Apart from the
document’s informal nature, its loose wording leaves intact the
legislators’ discretion to opt for efficiency at the expense of
democracy. Under time pressure, it will always be tempting to
minimize gridlock and reach an early conclusion among a reduced
number of participants, thus removing from the plenary session
meaningful debate, the airing of disagreements, and open votes. In