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The legislative procedures of the European Union are the ways in which the European Union enacts legislation. The procedure used for any given legislative proposal depends on the policy area in question. The rules governing which procedure applies to which policy area are laid down in the Treaties of the European Union.

Whenever the Council is involved in legislating it either votes by unanimity or by qualified majority which like the choice of procedure depends on the policy areas in question.

Contents

Main legislative procedures

There are three main decision-making procedures currently in use. These are codecision, assent and consultation.[1]

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Codecision procedure

Main article: Codecision procedure

The Codecision procedure (also known as the Article 251[2] procedure) is the main legislative procedure by which directives and regulations are adopted.[3] The Council of the European Union and the European Parliament jointly adopt legislation based on a proposal by the European Commission. Both Parliament and Council — the latter acting by a qualified majority[4] — are required to agree on an identical text before a proposal can be adopted, however Parliament is deemed to have adopted a proposed law if it fails to either reject or propose amendments to it, by an absolute majority, within three months of its adoption by the Council.[4]

The procedure was introduced with the Maastricht Treaty[5] and was initially intended to replace the Cooperation procedure (see below). The codecision procedure was amended by the Treaty of Amsterdam[6] and the number of legal bases where the procedure applies was greatly increased by both the latter treaty and the Treaty of Nice.

The Treaty of Lisbon replaces all references to the "procedure referred to in Article 251" with references to the "ordinary legislative procedure".[7]

Assent procedure

Main article: Assent procedure

Under this 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.[8]

The procedure is used for issues concerning Union membership (Article 49 of the Treaty on European Union), economic and social cohesion (Article 161) and amendments to the Statute of the European Central Bank (Article 107(5)).

Consultation procedure

Main article: 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.[9] 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:

  • the harmonisation of indirect taxation affecting the establishment and the functioning of the internal market (Article 93[2])
  • the approximation of laws which relate directly to the establishment and functioning of the common market (Article 94)
  • objectives of the Union which relate to the common market but which lack an explicit legal basis in the treaties (Article 308)
  • competition law (Article 83)
  • fiscal measures relating to the environment (Article 175)
  • certain decisions related to visas, immigration and asylum policy[10]
  • discrimination (Article 13)
  • liberalising specific services (Article 52)

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.

Other procedures

Cooperation procedure

Main article: Cooperation procedure

The Cooperation procedure (also known as the Article 252[2] procedure) used to be a very important procedure which covered a wide variety of legislation, notably in relation to the creation of the Single Market.[11] It marked the first step toward real power by the European Parliament. Under the procedure the Council can, with the support of Parliament and acting on a proposal by the Commission, adopt a legislative proposal by a qualified majority, but the Council can also overrule a rejection of the particular proposed law by the Parliament by adopting a proposal unanimously.[12]

The procedure was introduced by the Single European Act[13]. It was amended by the Treaty of Amsterdam when its replacement with the Codecision procedure failed to be agreed. It was previously used on a large range of topics, but changes to the treaties brought about by the Maastricht, Amsterdam and Nice treaties have limited it to certain aspects of economic and monetary union.[14]

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 can be used for particular parts of the freedom of movement of capital (Article 57) and the Common Commercial Policy (Title IX).

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 86(3)) and concerning the right of workers to remain in a Member State after having been employed there (Article 39(3)(d)). Two directives have been adopted using this procedure: one on transparency between Member States and companies[15] and another on competition in the telecommunications sector. [16]

Notes

  1. ^ EU website on decision-making
  2. ^ a b c Articles cited refer to the Treaty establishing the European Community (otherwise known as the Treaty of Rome) unless otherwise indicated.
  3. ^ Craig and de Búrca, p 145.
  4. ^ a b Article 251(2)
  5. ^ Craig and de Búrca, p 144.
  6. ^ Article 2(44) of that treaty.
  7. ^ Text of the Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community
  8. ^ Craig and de Búrca, p 148.
  9. ^ In Roquette Frères v. Council [1980] ECR 3333.
  10. ^ Legal bases listed in Title IV of the Treaty of Rome, but not subject to codecision under Council Decision (2004/927/EC) of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty.
  11. ^ See: Craig and de Búrca, p 143.
  12. ^ Article 252(c) paragraph 2.
  13. ^ Craig and de Búrca, p 143.
  14. ^ Currently there are only three legal bases for the adoption of legilslation under Artielc 252: Articles 99(5), 103(2) and 106(2). Article 102(2) relates only to legislation adopted before 1994 and is therefore spent.
  15. ^ Dir. 80/723 [1980] OJ L195/35
  16. ^ 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.  

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The codecision procedure is the main legislative procedure by which law can be adopted in the European Community, the first of the three pillars of the European Union. The codecision procedure gives the European Parliament the power to adopt legislation jointly with the Council of the European Union, requiring the two bodies to agree on an identical text before any proposal can become law.

The procedure is also known as the "Article 251 procedure", as it is laid down in Article 251 of the EC Treaty. The new Treaty of Lisbon replaces all references to the "procedure referred to in Article 251" with references to the "ordinary legislative procedure".[1]

Contents

Other legislative procedures

The main differences with the other European Union legislative procedures are as follows:

  • The (now rarely used) cooperation procedure gives the European Parliament influence in the legislative process, but the Council can overrule Parliament's rejection of a particular proposal by adopting it unanimously.
  • In the consultation procedure, the Council is not bound by Parliament's position or by any other consultative body, but only by the obligation to consult the Parliament.
  • The assent procedure is a single reading vote in favour or against (usually used for international treaties), and the Council cannot overrule a rejection by the Parliament.
  • The Lamfalussy process gives Parliament a say on executive-level implementing measures decided by the Commission under the comitology procedure, initially devised for measures concerning securities, the approach was subsequently extended to the entire EU financial sector and is now part of the "Regulatory Procedure with Scrutiny" reformed comitology procedure.

Procedural summary

Under the codecision procedure, a new legislative proposal is drafted by the European Commission. The proposal then comes before the European Parliament and the Council of Ministers. The two institutions discuss the proposal, and each may amend it freely.

In Council, a new proposal is first considered by a working group for that policy area. The conclusion of the working group's discussions is known as the orientation generale, and usually forms the basis of Council's position at the end of the first reading, which is known as the common position.

Meanwhile, Parliament appoints one of its members as 'rapporteur' to steer the proposal through its committee stage. The rapporteur is responsible for incorporating the committee's amendments into the draft proposal, as well as considering the recommendations of the Committee of the Regions and the Economic and Social Committee. The finished report is then voted on in full plenary, where further amendments may be introduced.

In order for the proposal to become law, Council and Parliament must agree upon an identical final text. If the two institutions have agreed on identical amendments after the first reading, the proposal becomes law; this happens from time to time, either where there is a general consensus or where there is great time pressure to adopt the legislation.

Otherwise, there is a second reading in each institution. Parliament must complete its second reading within three months of the Council's common position being transmitted to the Parliament, or else Council's common position is deemed to have been accepted. This time period can be extended by Parliament by one month.

The Council then has three months to vote on whether to accept the Parliament's amendments to the common position, in which case it becomes law.

If the Council does not accept the Parliament's second reading amendments a conciliation committee is set up with an equal number of members from Parliament and Council. The committee attempts to negotiate a compromise text which must then be approved by both institutions in a third reading. This third reading is normally just referred to as conciliation.

Both Parliament and Council have the power to reject a proposal either at second reading or in third reading, causing the proposal to fall. The Commission may alter or withdraw its proposal at any time before the Council has acted.

Diagram

For a pictorial representation of the codecision procedure, the EU provides this diagram.

Policy areas where codecision applies

The policy areas where the codecision procedure applies [2] under the current EU treaties are:

The Lisbon Treaty gives the Parliament more power through extended co-decision

The new Treaty of Lisbon, if it enters into force, will extend codecision to virtually all areas of EU policy.

Development of codecision

The introduction of codecision, under the Treaty of Maastricht, almost completely replaced the cooperation procedure and thereby strengthened Parliament's legislative powers considerably.

Initially, the codecision procedure applied to the following areas of European policy:

  • consumer policy
  • culture (incentive measures)
  • education (incentive measures)
  • environment (general action programme)
  • free movement of workers
  • health (incentive measures)
  • research (framework programme)
  • right of establishment
  • services
  • the internal market
  • trans-European networks (guidelines)

The Treaty of Amsterdam subsequently simplified the procedure, making it quicker and more transparent, and extending it to more areas of policy.

Most recently, the Treaty of Nice established the codecision procedure for almost any policy area where the Council of Ministers adopts proposals by Qualified Majority Voting (rather than unanimity). The codecision procedure is now by far the most common legislative process in the EU, applying to the vast majority of policy areas.

Criticism

Besides general criticism that the procedure is long and cumbersome, some critics contend that the codecision procedure gives too much power to the Council at the expense of the ParliamentTemplate:Fact. It could be argued that the process is weighted against the Parliament at second reading, as Parliament may only modify or reject amendments from Council by an absolute majority of MEPs, not just those in the chamber at the timeTemplate:Fact.

Defenders reply that the EU is not a full federation and argue that national governments should remain accountable for their collective decisionsTemplate:Fact.

See also

References

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