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What the Commission considers as “merits” of co-decision are

precisely the same points that concern critics of European


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