European Union legislative procedure
The legislature of the European Union is principally divided between the European Parliament and the Council of the European Union, with the power to initiate laws (with limited exceptions) being held by the European Commission. National parliaments also have a minor delaying power.
With limited exceptions, proposed laws need to be approved by both the Parliament and the Council to become law. The relative power of a particular institution in the legislative process depends on the legislative procedure used, which in turn depends on the policy area to which the proposed legislation is concerned. In some areas, they participate equally in the making of EU law, in others the system is dominated by the Council. Which areas are subject to which procedure is laid down in the treaties of the European Union.
Principal actors
Parliament
The European Parliament's 736[1][needs update] members are directly elected every five years by universal suffrage. It organises itself as a normal multi-party parliament in conducting most of its work in its committees and sitting in political groupings rather than national delegations. However, its political groups are very weak due to their status as broad ideological groups of existing national parties.
The Parliament's powers have grown considerably since the 50s as new legislative procedures granted more equality between Parliament and Council. It also has gained greater powers over the appointment of the Commission, which has always been responsible to it (Parliament has the power of censure).
Council
The Council of the European Union (or Council of Ministers) represents the national governments of member states, and hence its composition is essentially the number of member states (27) though votes are weighted according to the population of each state (see procedures below for clarification). As such, it does not sit according to political groups and rather than conducting most of its work in committees, much of its work is prepared by diplomatic representatives (COREPER).
The Council has traditionally been the most powerful institution and is now experiencing a post-Delors era renaissance of influence at the expense of the Commission. It has however been losing influence to Parliament, which has been wielding its powers over the appointment of the Commission and amending legislation.
Secondary actors
Commission
The Commission has a virtual monopoly on the introduction of legislation into the legislative process, a power which gives the Commission considerable influence as an agenda setter for the EU as a whole.[2] And while the Commission frequently introduces legislation at the behest of the Council or upon the suggestion of Parliament, what form any legislative proposals introduced take is up to the Commission.
Under the ordinary legislative procedure (see below), the negative opinion from the Commission also forces the Council to vote by unanimity rather than majority.[3] There are also limited instances where the Commission can adopt legislation on its own initiative (See below).
National parliaments
The national parliaments of EU member states have an "early warning mechanism" whereby if one third raise an objection - a "yellow card" - on the basis that the principle of subsidiarity has been violated then the proposal must be reviewed. If a majority do so - an "orange card" - then the Council or Parliament can vote it down immediately. If the logistical problems of putting this into practice are overcome, then the national parliaments would form a "virtual third chamber".[4]
Ordinary legislative procedure
The ordinary legislative procedure,[5] formerly known as Codecision procedure, is the main legislative procedure by which directives and regulations are adopted.[6]
Article 294 TFEU[7] outlines ordinary legislative procedure in the following manner. The Commission submits a legislative proposal to the Parliament and Council. At the first reading Parliament adopts its position. If the Council approves the Parliament's wording then the act is adopted. If not, it shall adopt its own position and pass it back to Parliament with explanations. The Commission also informs Parliament of its position on the matter. At the second reading, the act is adopted if Parliament approves the Council's text or fails to take a decision. The Parliament may reject the Council's text, leading to a failure of the law, or modify it and pass it back to the Council. The Commission gives its opinion once more. Where the Commission has rejected amendments in its opinion, the Council must act unanimously rather than by majority.[3]
If, within three months of receiving Parliament's new text the Council approves it, then it is adopted. If it does not then the Council President, with the agreement of the Parliament President, convenes the Conciliation Committee composed of the Council and an equal number of MEPs (with the attendance and moderate of the Commission). The committee draws up a joint text on the basis of the two positions. If within six weeks it fails to agree a common text, then the act has failed. If it succeeds and the committee approves the text, then the Council and Parliament (acting by majority) must then approve said text. If either fails to do so, the act is not adopted.[3]
The procedure was introduced with the Maastricht Treaty as the codecision procedure[8] and was initially intended to replace the Cooperation procedure (see below). The codecision procedure was amended by the Treaty of Amsterdam[9] and the number of legal bases where the procedure applies was greatly increased by both the latter treaty and the Treaty of Nice. It was renamed the ordinary legislative procedure and extended to nearly all areas (such as agriculture, fisheries, transport, structural funds, the entire budget and the former third pillar by the Treaty of Lisbon.[5]
Special legislative procedures
The treaties have provision for special legislative procedures to be used in sensitive areas. These see the Council or Parliament adopts alone with just the involvement of the other. Notable procedures are the consultation and consent procedures, though various others are used for specific cases.
Consultation procedure
Under this procedure the Council, acting either unanimously or by a qualified majority depending on the policy area concerned, can adopt legislation based on a proposal by the European Commission after consulting the European Parliament. While being required to consult Parliament on legislative proposals, the Council is not bound by Parliament's position. In practice the Council would frequently ignore whatever Parliament might suggest and even sometimes reach an agreement before receiving Parliament's opinion. However the European Court of Justice has ruled that the Council must wait for Parliament's opinion and the Court has struck down legislation that the Council adopted before Parliament gave its opinion.[10] Acting upon this Parliament occasionally filibusters legislation that it dislikes by delaying giving a formal opinion in order to obtain some leverage against proposals it dislikes, thus stalling the legislative process. Before the Single European Act the Consultation procedure was the most widely used legislative procedure in the then European Community.
Consultation is still used for legislation concerning internal market exemptions and competition law.[11] The procedure is also used in relation to the Union's advisory bodies such as the Committee of the Regions and the Economic and Social Committee that are required to be consulted under a range of areas under the treaties affecting their area of expertise. Such a procedure takes place in addition to consultation with the European Parliament or the other legislative procedures.
Consent procedure
In the consent procedure (formerly assent procedure), the Council can adopt legislation based on a proposal by the European Commission after obtaining the consent of Parliament. Thus Parliament has the legal power to accept or reject any proposal but no legal mechanism exists for proposing amendments. Parliament has however provided for conciliation committee and a procedure for giving interim reports where it can address its concerns to the Council and threaten to withhold its consent unless its concerns are met.[12] This applies to admission of members, methods of withdrawal, subsidiary general legal basis provision and combating discrimination.[11]
Commission and Council acting alone
Under this procedure the Council can adopt laws proposed by the Commission without requiring the opinion of Parliament. The procedure is used when setting the common external tariff (Article 31 (ex Article 26)) and for negotiating trade agreements under the Common Commercial Policy (Article 207(3)).
Commission acting alone
Contrary to popular belief, the vast majority of EU laws are not dictates from the Commission. However the Commission does have the ability to adopt legislation without consulting or obtaining the consent of anyone. The Commission can adopt laws on its own initiative concerning monopolies and concessions granted to companies by Member States (Article 106(3) (ex Article 86(3))) and concerning the right of workers to remain in a Member State after having been employed there
(Article 45(3)(d) (ex Article 39(3)(d))). Two directives have been adopted using this procedure: one on transparency between Member States and companies[13] and another on competition in the telecommunications sector.[14]
Acts
Legal acts resulting from these procedures can come in a number of forms. A regulation is a law that has direct effect; for example the roaming charges regulation which immediately set price limits on mobile phone calls made in another EU state. A directive needs to be transposed, within certain limits, into national law; for example the copyright duration directive which was transposed in Greece as Law No. 2557/1997 and Ireland as European Communities (Term of Protection of Copyright) Regulations, 1995. A decision has direct effect, but only relating to a specific person or entity, and there are also various other non-binding instruments.
See also
Notes
- ^ Varies due to growth in membership and treaty reform, but currently shifts between 700 and 800
- ^ Schmidt, Susanne K, "Only an Agenda Setter?: The European Commission's Power over the Council of Ministers European Union Politics" (2000) 1 EUP 37.
- ^ a b c Consolidated Treaty on the Functioning of the European Union as amended by the Treaty of Lisbon
- ^ Cooper, Ian (16 October 2009) Comment: Will national parliaments use their new powers?, EU Observer
- ^ a b Text of the Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community
- ^ Craig and de Búrca, p 145.
- ^ Formerly Article 251 TEC pre-Lisbon Treaty
- ^ Craig and de Búrca, p 144.
- ^ Article 2(44) of that treaty.
- ^ In Roquette Frères v. Council [1980] ECR 3333.
- ^ a b The EU following the LisbonTreaty (Reform Treaty)
- ^ Craig and de Búrca, p 148.
- ^ Dir. 80/723 [1980] OJ L195/35
- ^ Dir. 88/301 [1988] OJ L131/73
References
- Craig, P., de Búrca, G. (2003). EU Law: Text, Cases and Materials (3rd Edition ed.). Oxford, New York: Oxford University Press. ISBN 0-19-925608-X.
{{cite book}}:|edition=has extra text (help)CS1 maint: multiple names: authors list (link) - Tobler, Christa; Beglinger, Jacques (2010), Essential EU Law in Charts (2nd 'Lisbon' ed.), Budapest: HVG-ORAC / E.M.Meijers Institute of Legal Studies, Leiden University. ISBN 978-963-258-086-9. See Chapter 5, in particular Chart 5|5 (p.3). www.eur-charts.eu.
