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Communitarian Law
4. DECISION-MAKING PROCEDURES
I. INTRODUCTION
In particular, three institutions participates in the European decision-making process:
- The Commission
- The European Parliament
- The Council In general, the Commission proposes new legislation, but the Council and the European Parliament are the ones that pass legislation. In specific cases, Member States (art. 76), the EP (art. 223.2), the ECB (art. 129.3), the CJEU (art. 257), etc. also have initiative. The Lisbon Treaty has introduced the Citizens’ initiative (art. 11.4 TEU), allowing citizens to invite the Commission to put forward a proposal in any field in which it has the power to propose legislation. The proposal is elaborated by the Commission Departments (Directorates-General). The project is discussed in the Commission’s weekly meeting. Commission’s proposal is send to the EP and the Council (owners of the legislative power) EP: The pertinent committee analyses the Commission proposal. Once it has been examined and amended, the text is send to the Plenary for the adoption of the Parliament’s position. Council: The position of the Council is prepared by the COREPER and the working groups.
II. LEGISLATIVE PROCEDURES
Treaties: Contains the provisions and procedures for the adoption of decisions. Each proposal is based on an article of the Treaty —> the legal base of the proposal. The legal base determines the legislative procedure that must be followed:
- Ordinary legislative procedure
- Special legislative procedures Since the origins of the Communities, new decision making procedures have been incorporated to the Treaties. And the EP has increased its role. Treaty of Rome: Consultation procedure. The EP only had to adopt an opinion regarding the texts that required the Council’s unanimity.
Communitarian Law SEA: Cooperation procedure (strengthened the legislative power of the EP, but the Council still had the possibility to adopt the final decision) and the assent procedure (for international agreements and accession of new States). Maastricht: Reinforced the EP, by extending the cooperation procedure and introducing the codecision procedure. Ámsterdam and Niza: Extended the use of the codecision procedure to more areas. Lisbon Treaty simplifies the legislative procedures:
- Ordinary legislative procedure: The former codecision procedure. Extends its scope of application.
- Special legislative procedures It also incorporates passerelle clauses, in order to allow to change from a special legislative procedure to the ordinary one.
1. Ordinary legislative procedure
Is the formerly called codecision procedure. It follows the same steps, but the wording of the TFEU has changed considerably, notably to underline the equal role of Council and Parliament in this procedure. The EP and the Council, on a Commission’s proposal, jointly adopts a regulation, directive or decision. Over time, it has become the most widely used legislative procedure. The Treaty of Lisbon confirms this trend by establishing it as a common law procedure. It also extends it to new areas of policy, increasing the EP decision power. Arts. 289.1 and 294 TFEU. Commission proposal: Art. 294.2 TFEU Is submitted to the EP and the Council. It is also submitted to National Parliaments. First reading: The European Parliament adopts its position at first reading and communicate it to the Council. Art. 294.3. It can accept in its entirety the Commission’s proposal or include amendments Sometimes, it conditions its approval to the acceptance by the Commission of certain modifications. Council: If it approves the European Parliament's position (294.4) —> the act concerned is adopted in the wording which corresponds to the position of the European Parliament. [End of the procedure. Act adopted] If it does not approve the European Parliament's position –because it introduces amendments- (294.5) —> it adopts its position at first reading and communicates it to the European Parliament. Second reading Parliament receives the Council’s position and has three months to take a decision (294.7). It may thus:
Communitarian Law Special legislative procedures are distinguished by the preponderance of the Council or the EP, opposite the parity of both institutions in the ordinary legislative procedure. Treaties contemplates more cases of legislatives acts adopted by the Council than by the EP. Nonetheless, in an ordinary legislative procedure there is always a participation of the other institution. There is not a description like the ordinary legislative procedure. The rules of special legislative procedures are defined on an ad hoc basis by the Articles of the Treaties. Acts adopted by the EP Legislative acts whose adoption corresponds to the EP, by its own initiative. But it needs some kind of participation of the Council and the Commission. E.g.: The European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure after seeking an opinion from the Commission and with the consent of the Council, shall lay down the regulations and general conditions governing the performance of the duties of its Members (art. 223.2 TFEU). Acts of the Council In some cases, it has to consult the EP. In others, it needs its approval. The Council of the EU is, in practice, the sole legislator. The European Parliament is simply associated with the procedure. Consultation:
- Compulsory: Where the Treaties provide so. Before taking a decision, the Council must take note of the opinion of Parliament. It is required to do so, as the absence of such consultation makes the act illegal and capable of annulment by the Court of Justice
- Optional The EP can approve the Commission’s proposal, reject or amend it. The power of the EP is limited, as it can only await that the Commission takes into account its amendments in a modified proposal (when it accepts any amendment of the EP). The Council examines the modified proposal and adopts it, or modifies it, in which case it has to act unanimously (except in the cases contemplated in art. 294.10 and 13, arts. 310, 312 and 314, and in the second paragraph of art. 315). This procedure is used to adopt non binding acts, in particular recommendations and opinions of the Council and the Commission. Is the oldest form of decision-making procedure. Since the introduction of the cooperation and codecision procedures, its importance has been reduced progressively. However, is still used in “sensitive” matters, where unanimity in the Council is still necessary (fiscal issues), as well as in two areas where qualified majority applies (agricultural and competition policies). Example: Art. 21.3 TFEU: “the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament”. Consent procedure: Before taking a decision, the Council must obtain the approval of the EP. Procedure contemplated for importan decisions.
Communitarian Law The EP decides whether to approve or not the draft act forwarded by the Council. But it cannot modify it. The Treaty does not give Parliament any formal role in the preceding stages of the procedure to consider the Commission proposal, but as a result of inter-institutional arrangements it has become the practice to involve Parliament informally. If the EP does not give its consent, the act cannot be adopted. The approval requieres the absolute majority of the votes casts, except the acts regarding the accession to the EU or the uniform electoral procedure, that requieres absolute majority of its members. The consent procedure applies in particular to the horizontal budgetary flexibility clause, as specified in Article 352 TFEU. Other examples are action to combat discrimination (Article 19(1) TFEU) and membership of the Union (Articles 49 and 50 TEU). In addition, Parliament’s consent is required for association agreements (Article 217 TFEU), accession of the Union to the ECHR (Article 6(2) TEU), and agreements establishing a specific institutional framework entailing major budgetary implications or concerning areas where the ordinary legislative procedure applies (Article 218(6) TFEU), etc. Procedure for the negotiation and celebration of agreements between the Union and third countries or international organizations Art. 218 TFEU With the exception of agreements related exclusively to the CFSP, the Council will adopt a decision concluding the agreement:
- In the cases provided for in art. 218.6.a, after obtaining the consent of the EP (association agreements, agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, etc)
- In the rest of the cases, after consulting the EP.
3. Passerelle clauses
The Treaty of Lisbon has introduced passerelle clauses in order to be able to apply the ordinary legislative procedure to areas for which the Treaties had laid down a special legislative procedure. And to do so without reforming the Treaties. General passerelle clause: The European Council can adopt a decision that authorizes to adopt an act by the ordinary legislative procedure, when that act requieres a special legislative procedure according to the Treaties. If a national Parliament makes known its opposition within six months, the decision cannot be adopted. Specific passerelles: In certain areas, for example in the environmental policy. The Council decides unanimously, after consulting the EP. National Parliaments does not participate in the activation of these paserelles. Emergency break In certain specific cases, the Treaties contemplate that a decision can be referred to the European Council. The legislative procedure is suspended. If an agreement is not reached, the act cannot be adopted.
Communitarian Law IV. MEMBER STATES PARTICIPATION IN THE DIFFERENT STAGES OF THE DECISION-MAKING PROCESS Commissions proposal: The Commission contacts Member States administrations to obtain precise information. The proposal is send to National Parliaments. EP position: Much lower intervention but, in practice, there are informal ways to try to influence in the content of its opinions. Council position: Intense participation, in the COREPER, in the working groups and in the Committees.
