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4.3.  The EU's legislative procedure

    The treaty of Lisbon established the ordinary legislative procedure, which according to Article 289 of the treaty on the functioning of the EU, consists in the joint adoption by the European Parliament and the Council of a legislative act - regulation, directive or decision - on a proposal from the Commission. In fact, the ordinary legislative procedure is a development of the ''Community method'' of decision-making, which is an original combination of: technocratic proposals emanating from the Commission, worked out with the technical advice of experts from all the Member States; and legislative acts taken in codecision by the European Parliament, representing the citizens of the Union and the Council, representing the governments of the Member States, acting by qualified majority (Article 294 TFEU, ex Article 251 TEC); acts controlled by a supranational judicial authority, the Court of Justice of the EU (Article 263 TFEU). The adoption of legislative acts and, hence, the ordinary legislative procedure is formally excluded for all matters concerning the common foreign and security policy (Article 31 TEU [see section 8.2.2].

    A special legislative procedure is provided for by the Treaties, in specific cases, for the adoption of legislative acts by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament or for the adoption of legislative acts on the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank (Article 289 TFEU). It appears that the special legislative procedure differs from the ordinary legislative procedure, either because the Parliament and the Council do not act jointly (e.g. Articles 19, 21, 64, 113. 115, 127, 192, 223, 311-312 TFEU) or because the initiative for the legislative act does not emanate from the Commission but from another institution or from a group of Member States (Articles 228, 308, 349 TFEU). Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure (Article 48 TEU).

    In fact, the Treaties attribute the initiative for the EU's ordinary legislative procedure to the Commission [see section 4.1.2]. Under this procedure, the Commission prepares all proposals for all legislative acts: regulations, directives and decisions. The Commission's role is political in so far as it chooses and prepares the ground on which the European construction is undertaken, but otherwise its role is technocratic as its proposals are based on technical considerations and/or scientific grounds. Using an "impact assessment method", the Commission analyses the direct and indirect implications of a proposed measure (e.g. concerning businesses, trade, employment, the environment and health). The results of each assessment are made public [SEC/2011/126]. Moreover, the Commission is responsible for defining in its proposals the common interest or the interest of the Union. To make sure that its proposal is adopted, the Commission must take into consideration the often-divergent interests of the Member States and endeavour to detect and express the common interest. If it does not succeed in this definition or if it does not itself amend its proposal, taking into consideration the positions of the other European institutions, all the Member States together, in total agreement within the Council, must find a different definition of the common interest inherent in a proposal of a common policy or a common measure (Article 293 TFEU, ex Article 250 TEC); something that happens very rarely. In practice the three institutions which intervene in the legislative procedure – Commission, Parliament and Council – control the powers of each other as defined in the treaties [See, e.g. Framework Agreement and Council statement].

    The power of initiative does not imply legislation by the European Commission. The Treaties authorise the Commission to propose legislative acts and to execute the legislative and other decisions taken by the legislative bodies. The rhetoric about the "decisions taken by the technocrats of Brussels" (meaning the Commission) is maliciously erroneous. The fact is that the technocrats propose legislative measures; but it is the political institutions representing the democratically elected governments (the Council of Ministers) and the citizens of the Member States (the European Parliament) that take the decisions. Except in a few areas, such as competition, where the Treaties give it full competence, the Commission may only adopt acts implementing the decisions of the legislative bodies.

    When adopted by the Commission, a proposal is submitted to the European Parliament and to the Council for a first reading (Article 294 TFEU) and, very often, to the Economic and Social Committee and to the Committee of the Regions for an opinion. Detailed discussions begin within the working party of competent national experts, who prepare the Council's decision, the relevant Parliamentary Committee and the groups of experts of the Economic and Social Committee and of the Committee of the Regions. The interest groups at national and European levels, alerted in good time of this preparatory work, lobby these various technical and political experts and, if the issue is important, public opinion. The Commission has published general principles and minimum standards for consultation of interested parties [COM/2002/0277]. They enable all those affected by a proposal to express their opinions and, thus, to participate in the legislative process. The European Parliament and the Commission have established a transparency register for organisations and self-employed individuals engaged in EU policy-making and policy implementation [Agreement between the European Parliament and the European Commission]. The general public has access to the different stages of the legislative process through the Internet-based EUR-Lex service.

    The interaction of these actors, representing all the Member States and all the interests concerned tends to confirm or redefine the common interest of the proposal formulated by the Commission. As, more often than not, a common policy cannot fully satisfy all national interests, negotiations have to take place within and between the main actors in order to find the common denominator that best satisfies most national interests. The text ultimately adopted by the legislative bodies takes into account all national, professional and other interests voiced at various points of the lengthy preparatory work.

    It goes without saying that the common interest should not harm an "essential interest" of a Member State, but the definition of an "essential interest" is inevitably subjective. Each Member State has a natural tendency to exaggerate its own problems and minimise those of the others. In other words, the decision-making process of the EU risks frequently to come to a deadlock, and it has to be emphasised that it is through the joint mediation efforts of the Commission and the Council Presidency that the deadlock can on most occasions be avoided. On the one hand, the majority has to be persuaded to make the necessary concessions to accommodate the minority and, on the other hand, the Member State upholding an extreme or isolated position has to be persuaded that the general advantages of an agreement are more important than its individual interests. Even though they first and foremost assert the interests of their respective governments, the members of the Council usually respect the objectives and needs of the EC as a whole. This is what distinguishes the Council from an intergovernmental conference, where national interests prevail over the common interest [see section 4.1.4].

    Under the ordinary legislative procedure, which replaced the codecision procedure (Article 294 TFEU, ex Article 251 TEC), the Commission submits a proposal to the European Parliament and the Council. The Parliament adopts its position at first reading and communicates it to the Council. If the Council approves the Parliament's position, the act concerned is adopted in the wording which corresponds to the position of the European Parliament. If the Council does not approve the Parliament's position, it adopts its position at first reading and communicates it to the Parliament, informing it of the reasons which led it to adopt its position. The Commission also informs the Parliament of its position.

    If, within three months of such communication, the European Parliament at a second reading: (a) approves the Council's position at first reading or has not taken a decision, the act concerned is deemed to have been adopted in the wording which corresponds to the position of the Council; (b) rejects, by a majority of its component members, the Council's position at first reading, the proposed act is deemed not to have been adopted; (c) proposes, by a majority of its component members, amendments to the Council's position at first reading, the text thus amended is forwarded to the Council and to the Commission, which delivers an opinion on those amendments. The Commission can act as an arbitrator between the two decision-making bodies, by accepting in its amended proposal some of the amendments proposed by the Parliament.

    If, within three months of receiving the European Parliament's amendments, the Council, at a second reading, acting by a qualified majority or unanimously on the amendments on which the Commission has delivered a negative opinion: (a) approves all those amendments, the act in question is deemed to have been adopted; (b) does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, within six weeks, convene a meeting of the Conciliation Committee.

    The Conciliation Committee, which is composed of the members of the Council or their representatives and an equal number of members representing the European Parliament, has the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the members representing the Parliament within six weeks of its being convened, on the basis of the positions of the Parliament and the Council at second reading. The Commission takes part in the Conciliation Committee's proceedings and takes all necessary initiatives with a view to reconciling the positions of the Parliament and the Council.

    If, within six weeks of its being convened, the Conciliation Committee does not approve the joint text, the proposed act is deemed not to have been adopted. If, within that period, the Conciliation Committee approves a joint text, this is submitted to both institutions for a third reading. The European Parliament, acting by a majority of the votes cast, and the Council, acting by a qualified majority, each have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If they fail to do so, the proposed act is deemed not to have been adopted.

    Article 16 of the treaty on European Union declares that the Council shall act by a qualified majority except where the Treaties provide otherwise. Arrangements governing the qualified majority are laid down in this Article of the TEU and in Article 238 § 2 of the Treaty on the Functioning of the European Union. However, on the basis of the Protocol No 36 on transitional provisions concerning the qualified majority, until 31 October 2014, the votes of the Council members are weighted as follows, so that the influence of a Member State in the decision-making process is more or less related to the size of its population:

    ·         Germany, France, Italy and the United Kingdom 29 each;

    ·         Spain and Poland 27 each;

    ·         Romania 14;

    ·         Netherlands 13;

    ·         Belgium, the Czech Republic, Greece, Hungary and Portugal 12 each;

    ·         Austria, Bulgaria and Sweden 10 each;

    ·         Denmark, Finland, Ireland, Lithuania, Slovakia and Croatia 7 each;

    ·         Cyprus, Estonia, Latvia, Luxembourg and Slovenia 4 each; and

    ·         Malta 3.

    Until 31 October 2014, acts adopted on a proposal from the Commission must gather 74% of the total votes of the Member States (255 out of 345), representing at least 62% of the total population of the Union (on the basis of data supplied by Eurostat) [Decision 2007/4]. In case there is no proposal from the Commission, decisions may be adopted if there are at least 255 votes in favour representing at least two thirds of the members (Protocol No 36 on transitional provisions).

    As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained (Article 16 TEU). However, where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the Union (Article 238 § 2 TFEU).

    In cases where, under the Treaties, not all the members of the Council participate in voting (notably in cases concerning the economic and monetary union), a qualified majority shall be defined as at least 55% of the members of the Council representing the participating Member States, comprising at least 65% of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35% of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained (Article 238 § 3 TFEU).

    As from 1 November 2014, the Treaty of Lisbon will facilitate considerably the system of qualified majority voting. Instead of the three criteria required by the Treaty of Nice for a qualified majority (threshold of weighted votes, majority of Member States and 62% of the population of the Union), just two criteria will apply: 55% of the Member States, representing at least 65% of the population of the Union. It should be noted that the third criterion required by Article 16 (TEU) - 15 Member States in favour of the proposal - is superfluous. In fact, in a Union of 27 Member States, 55% of the total number of States mathematically comprises at least 15 of them and the third criterion has no sense. The new voting system respects the equality of Member States as each one has one vote in respect of the first criterion, whilst their different population sizes are taken into account in meeting the second criterion. Moreover, the new system, which defines once and for all the criteria of qualified majority, would prevent, during subsequent enlargements, long negotiations on the allocation of votes to Member States and the definition of the qualified majority threshold.

    A blocking minority must include at least four Council members, failing which the qualified majority must be deemed attained, even if it does not satisfy the population criterion (Article 16 § 4 TEU). Although clear divisions between "large" and "small" Member States hardly ever occur, this clause would facilitate decision-making in the Council, as it would make more difficult a hypothetical alliance of "big" Member States, three of which could by themselves form a blocking minority, since their populations would represent more than 35% of the Union's population. Since a blocking minority should include at least four members, three ''big'' would need to draw a ''small'' in their coalition in order to block a decision of the Council.

    Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in Article 20 (TEU) and in Articles 326 to 334 (TFEU). Enhanced cooperation should aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation should be open at any time to all Member States. The decision authorising enhanced cooperation should be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. Acts adopted in the framework of enhanced cooperation bind only participating Member States and should not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union (Article 20 TEU).

    All members of the Council may participate in the deliberations concerning an enhanced cooperation, but only members of the Council representing the Member States participating in this cooperation can take part in the vote. Unanimity is constituted by the votes of the representatives of the participating Member States only and a qualified majority is defined in accordance with paragraph 3 of Article 238 (Article 330 TFEU). Any Member State which wishes to participate in enhanced cooperation in progress in one of the areas referred to in Article 329 § 1 should notify its intention to the Council and the Commission, which should, within four months of the date of receipt of the notification, note, where necessary, that the conditions of participation have been fulfilled and confirm the participation of the Member State concerned or set a deadline for such fulfilment. Authorisation to proceed with the enhanced cooperation in matters not concerning the CFSP is granted by the Council, on a proposal from the Commission and after obtaining the consent of the European Parliament. If the request for participation concerns an enhanced cooperation in the framework of the CFSP, it should be notified to the Council, the High Representative of the Union for Foreign Affairs and Security Policy and the Commission. After consulting the High Representative of the Union and after noting, where necessary, that the conditions of participation have been fulfilled, the Council, with the unanimity of participating Member States, should confirm the participation of the Member State concerned, (Article 331 TFEU).

    Each of the three European institutions, which participates in the legislative procedure - Commission, Parliament, Council - is surrounded by committees which contribute to the process of adopting and implementing common policies. The origins of the committees go back to the very early days of the European Community. They developed as a result of the common agricultural policy [see sections 21.3.1 and 21.3.2], so as to ensure that the duties entrusted to the Commission were carried out in close collaboration with the Member States through the committees [see section 21.3]. Later on committees were created in the context of practically all common policies. Therefore, a Council Decision of 13 July 1987, called "comitology Decision", laid down the procedures to be followed for the different types of committees: management committees, regulatory committees and advisory committees [Regulation 182/2011]. A large number of these committees work with the European Commission for the management of various common policies, notably the common agricultural policy [see section 21.3.2]. The Council of Ministers is assisted first and foremost by the Committee of Permanent Representatives (COREPER), by eight specialised committees, including the Special Committee on Agriculture (SCA), and a large number of working parties made of national officials, which prepare Council decisions on common policies [see section 4.1.4]. The European Parliament is assisted by 20 Parliamentary committees, including the Committee on Agriculture and Rural Development. All these committees constitute multinational human networks, which are very important for advancing the process of European integration [see section 9.4].

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