Digital Omnibus on AI: Preparing for Trilogue — Key Negotiating Positions

The European legislative process for major technology regulations reaches its most consequential stage in trilogue — the informal three-way negotiation between the European Parliament, the Council of the European Union, and the European Commission. For the Digital Omnibus AI proposal, trilogue preparation is now underway, and the positions adopted by each institution will determine the final shape of obligations affecting thousands of businesses across the Union.

Understanding what happens during trilogue preparation — and what remains genuinely contested — is essential for compliance professionals calibrating their investment decisions and timeline planning.

What Trilogue Preparation Involves

Under Article 294 TFEU, the ordinary legislative procedure requires both Parliament and Council to adopt their positions before negotiations begin. For the Digital Omnibus AI amendments, this means three distinct documents are in play.

The Council's general approach represents the consensus position of all 27 member states. It reflects negotiations inside the Council Working Party on Telecommunications and Information Society, where national delegations trade concessions across the full package. The general approach carries significant weight in trilogue because it already reflects political balancing between diverse national interests — large manufacturing economies pressing for workable high-risk thresholds, smaller states focused on enforcement capacity.

The Parliament's mandate comes from the Committee on Internal Market and Consumer Protection (IMCO) as lead committee, with opinions from the committees on Civil Liberties (LIBE), Legal Affairs (JURI), and Industry (ITRE). Parliament's mandate tends to be more expansive on fundamental rights protections and more stringent on enforcement mechanisms. The mandate is formally adopted in plenary and binds Parliament's negotiating team throughout trilogue.

The Commission's mediation role is subtler. Under Article 294(13) TFEU, the Commission assists in facilitating agreement and may modify its original proposal to bring the institutions closer together. In practice the Commission often acts as an honest broker, providing technical analysis and legal consistency assessments when the two co-legislators appear deadlocked.

Contested Provisions: Where Negotiations Will Be Hard

Article 6 — High-Risk AI Classification

Article 6 determines which AI systems must comply with the full conformity assessment, technical documentation, and post-market monitoring obligations of the EU AI Act. The Digital Omnibus proposal introduces a tiered stand-alone assessment that would allow some systems listed in Annex III to avoid full high-risk obligations if they do not pose significant risk in context.

Council has pushed for clearer exemptions for AI tools used in internal administrative processes. Parliament has resisted any weakening of the Annex III categories, particularly for systems used in employment, education, and essential services. The outcome of Article 6 negotiations will directly determine compliance scope for the majority of enterprise AI deployments.

Article 51 — GPAI Model Thresholds

Article 51 sets the computational threshold at which a general-purpose AI model is subject to the enhanced obligations applicable to models with systemic risk. The Commission's original figure was 10^25 FLOPs. Council has signalled openness to raising this threshold, citing competitiveness concerns for European foundation model developers. Parliament has proposed maintaining the threshold while adding qualitative criteria — such as number of users and downstream deployment contexts — that could trigger systemic risk classification regardless of compute.

For businesses relying on GPAI models in their products, whether those models fall above or below the final threshold determines which transparency, incident reporting, and adversarial testing obligations apply to the model provider — and by extension, what documentation deployers will be entitled to receive.

Article 74 — Enforcement Cooperation Mechanisms

Article 74 governs how national market surveillance authorities coordinate on cross-border AI enforcement. The Commission proposed a joint investigation mechanism modelled on the Digital Services Act's coordinated enforcement procedures. Council has resisted giving the AI Office too much operational authority over national authorities, preferring an advisory model. Parliament wants binding joint investigation procedures with timelines.

The final shape of Article 74 matters for businesses operating across multiple member states: it determines whether they face one coherent enforcement process or potentially divergent parallel investigations.

Practical Timing Advice for Compliance Investments

Trilogue for major EU technology legislation typically runs three to nine months from the start of formal negotiations, with complex files taking longer. During an open trilogue, compliance professionals face a genuine optionality problem: investing heavily in compliance frameworks built on any single institution's position risks rework if the final text moves.

The pragmatic approach is to identify the provisions where all three institutions agree and invest in those first. For the Digital Omnibus AI proposal, there is broad consensus on the core conformity assessment infrastructure for clearly high-risk systems, the fundamental transparency obligations for users interacting with AI, and the basic incident reporting framework. Building compliance programmes around these stable provisions now is sound, regardless of how contested articles resolve.

For contested provisions — particularly Article 6 classification thresholds and Article 51 GPAI thresholds — the proportionate response is to design compliance architectures that can be calibrated up or down without full reconstruction. Maintain scenario plans for both the Council and Parliament positions and avoid committing to permanent organisational structures that assume one outcome.

Monitor the trilogue schedule directly through the European Parliament's legislative observatory and the Council's public register. When a trilogue round concludes with a provisional agreement, both institutions publish political summaries before the formal legal-linguistic revision is complete — these summaries give compliance teams the lead time needed to begin implementation planning.

Frequently Asked Questions

What is the difference between a general approach and a Council mandate? A general approach is the Council's internal consensus position, agreed by member states before trilogue begins. It is not legally binding but represents the political position the Presidency will defend in negotiations. A mandate specifically authorises the Presidency to negotiate on the Council's behalf. In practice the terms are often used interchangeably in media coverage.

How long does trilogue typically last for AI-related legislation? There is no fixed timetable. The original EU AI Act took approximately three years from Commission proposal to final text, with formal trilogue running from June to December 2023. Simpler amendment packages can conclude in months. The Digital Omnibus covers multiple legislative instruments simultaneously, which typically extends the timeline.

Should businesses pause compliance work until trilogue concludes? No. Pausing entirely is the wrong approach. Invest in compliance foundations that are stable across all plausible outcomes — robust documentation practices, human oversight mechanisms, risk management processes — while deferring investment in provisions where institutional positions diverge materially.

Sources

• European Commission, Digital Omnibus AI Proposal, COM(2025) (forthcoming official citation upon publication)
• Treaty on the Functioning of the European Union, Article 294 (ordinary legislative procedure)
• Regulation (EU) 2024/1689 (EU AI Act), Articles 6, 51, 74
• European Parliament Legislative Observatory, procedure files for AI Act amendments
• Council of the European Union, General Approach on AI Act amendments (Working Party on Telecommunications and Information Society)
• European Commission, Role of the Commission in Interinstitutional Negotiations, Staff Working Document