European Union legislative procedure
Encyclopedia
The legislature
of the European Union
is principally composed of the European Parliament
and the Council of the European Union
. Competencies in scrutinising and amending legislation
are usually divided equally between the two, while the power to initiate laws
is held by the European Commission
. National parliaments
also have a minor delaying power.
Normally legislative proposals 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
.
The power to amend the Treaties of the European Union
, sometimes referred to as the Union's primary legislation, is reserved to the member states and must be ratified by that in accordance with their respective constitutional requirements. An exception to this are so-called passerelle clauses
in which the legislative procedure used for a certain policy area can be changed without formally amending the treaties.
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
).
Under the ordinary legislative procedure (see below), the negative opinion from the Commission also forces the Council to vote by unanimity rather than majority. There are also limited instances where the Commission can adopt legislation on its own initiative (See below).
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".
The ordinary legislative procedure, formerly known as Codecision procedure, is the main legislative procedure by which directives and regulations are adopted.
Article 294 TFEU 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.
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.
The procedure was introduced with the Maastricht Treaty
as the codecision procedure and was initially intended to replace the Cooperation procedure (see below). The codecision procedure was amended by the Treaty of Amsterdam 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
.
s 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. 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.
(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. This applies to admission of members
, methods of withdrawal, subsidiary general legal basis provision and combating discrimination.
(Article 31 (ex Article 26)) and for negotiating trade agreements under the Common Commercial Policy (Article 207(3)).
subject to ratification by all member states in the usual manner.
The Treaty also provides for the Passerelle Clause
which allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers
with qualified majority voting (QMV) in specified areas with the previous consent of the European Parliament
, and move from a special legislative procedure to the ordinary legislative procedure.
allows for the changing of voting procedures without amending the EU treaties. Under this clause the European Council
can, after receiving the consent of the European Parliament, vote unanimously to:
A decision of the European Council to use either of these provisions can only come into effect if, six months after all national parliaments had been given notice of the decision, none object to it.
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.
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
is principally composed of the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
and the Council of the European Union
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
. Competencies in scrutinising and amending legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
are usually divided equally between the two, while the power to initiate laws
Legislative initiative
The right of initiative is the constitutionally defined power to propose a new law .The right of initiative is usually attributed to parliaments, which in most countries have the right to make law proposals, alone or sharing this right with the government.In parliamentary systems it is common that...
is held by the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
. National parliaments
National parliaments of the European Union
The national parliaments of the European Union are those legislatures responsible for each member state of the European Union . They have a certain degree of institutionalised influence which was expanded under the Treaty of Lisbon to include greater ability to scrutinise proposed EU...
also have a minor delaying power.
Normally legislative proposals 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
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...
.
The power to amend the Treaties of the European Union
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...
, sometimes referred to as the Union's primary legislation, is reserved to the member states and must be ratified by that in accordance with their respective constitutional requirements. An exception to this are so-called passerelle clauses
Passerelle Clause
The Passerelle Clause is a clause within treaties of the European Union that allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers with qualified majority voting in specified areas with the previous consent of the European Parliament, and move...
in which the legislative procedure used for a certain policy area can be changed without formally amending the treaties.
Parliament
The European Parliament's 736 members are directly elected every five yearsElections in the European Union
Elections to the Parliament of the European Union take place every five years by universal adult suffrage. 736 MEPs are elected to the European Parliament which has been directly elected since 1979. No other body is directly elected although the Council of the European Union and European Council is...
by universal suffrage
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
. 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
Censure
A censure is an expression of strong disapproval or harsh criticism. Among the forms that it can take are a stern rebuke by a legislature, a spiritual penalty imposed by a church, and a negative judgment pronounced on a theological proposition.-Politics:...
).
Council
The Council of the European Union 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).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. 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. 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 statesMember State of the European Union
A member state of the European Union is a state that is party to treaties of the European Union and has thereby undertaken the privileges and obligations that EU membership entails. Unlike membership of an international organisation, being an EU member state places a country under binding laws in...
have an "early warning mechanism" whereby if one third raise an objection - a "yellow card" - on the basis that the principle of subsidiarity
Subsidiarity
Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which...
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".
Ordinary legislative procedure
Article 294 TFEU 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.
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.
The procedure was introduced with the Maastricht Treaty
Maastricht Treaty
The Maastricht Treaty was signed on 7 February 1992 by the members of the European Community in Maastricht, Netherlands. On 9–10 December 1991, the same city hosted the European Council which drafted the treaty...
as the codecision procedure and was initially intended to replace the Cooperation procedure (see below). The codecision procedure was amended by the Treaty of Amsterdam and the number of legal bases where the procedure applies was greatly increased by both the latter treaty and the Treaty of Nice
Treaty of Nice
The Treaty of Nice was signed by European leaders on 26 February 2001 and came into force on 1 February 2003. It amended the Maastricht Treaty and the Treaty of Rome...
. It was renamed the ordinary legislative procedure and extended to nearly all areas such as agriculture
Common Agricultural Policy
The Common Agricultural Policy is a system of European Union agricultural subsidies and programmes. It represents 48% of the EU's budget, €49.8 billion in 2006 ....
, fisheries
Common Fisheries Policy
The Common Fisheries Policy is the fisheries policy of the European Union . It sets quotas for which member states are allowed to catch what amounts of each type of fish, as well as encouraging the fishing industry by various market interventions...
, transport, structural funds, the entire budget and the former third pillar
Police and Judicial Co-operation in Criminal Matters
The third of the three pillars of the European Union was Justice and Home Affairs , which was shrunk and renamed Police and Judicial Co-operation in Criminal Matters in 2003. The pillar existed between 1993 and 2009, when it was absorbed into a consolidated EU structure.The pillar focused on...
by the Treaty of Lisbon
Treaty of Lisbon
The Treaty of Lisbon of 1668 was a peace treaty between Portugal and Spain, concluded at Lisbon on 13 February 1668, through the mediation of England, in which Spain recognized the sovereignty of Portugal's new ruling dynasty, the House of Braganza....
.
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. Acting upon this Parliament occasionally filibusterFilibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
s legislation that it dislikes by delaying giving a formal opinion in order to obtain some leverage
Leverage (finance)
In finance, leverage is a general term for any technique to multiply gains and losses. Common ways to attain leverage are borrowing money, buying fixed assets and using derivatives. Important examples are:* A public corporation may leverage its equity by borrowing money...
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. The procedure is also used in relation to the Union's advisory bodies such as the Committee of the Regions
Committee of the Regions
The Committee of the Regions is European Union's assembly of local and regional representatives that provides sub-national authorities with a direct voice within the EU's institutional framework....
and the Economic and Social Committee
Economic and Social Committee
The European Economic and Social Committee is a body of the European Union established in 1958. It is a consultative assembly composed of employers , employees and representatives of various other interests...
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 procedureAssent procedure
The consent procedure is one of the special legislative procedures of the European Union.- Single European Act :...
(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
Conciliation
Conciliation is an alternative dispute resolution process whereby the parties to a dispute agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences...
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. This applies to admission of members
Enlargement of the European Union
The Enlargement of the European Union is the process of expanding the European Union through the accession of new member states. This process began with the Inner Six, who founded the European Coal and Steel Community in 1952...
, methods of withdrawal, subsidiary general legal basis provision and combating discrimination.
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 tariffCommon external tariff
When a group of countries form a customs union they must introduce a common external tariff. The same customs duties, import quotas, preferences or other non-tariff barriers to trade apply to all goods entering the area, regardless of which country within the area they are entering...
(Article 31 (ex Article 26)) and for negotiating trade agreements under the Common Commercial Policy (Article 207(3)).
Commission acting alone
In a few limited areas, the Commission has the authority to adopt regulatory or technical legislation without consulting or obtaining the consent of other bodies. The Commission can adopt legislation on its own initiative concerning monopolies and concessions granted to companies by Member States (Article 106(3) TFEU) and concerning the right of workers to remain in a Member State after having been employed there (Article 45(3)(d) TFEU). Two directives have been adopted using this procedure: one on transparency between member states and companies and another on competition in the telecommunications sector.Treaty revisions
The 2009 Lisbon Treaty created two different ways for further amendments of the European Union treaties: an ordinary revision procedure which is broadly similar to the past revision process in that it involves convening an intergovernmental conference, and a simplified revision procedure whereby Part three of the Treaty on the Functioning of the European Union, which deals with internal policy and action of the Union, could be amended by a unanimous decision of the European CouncilEuropean Council
The European Council is an institution of the European Union. It comprises the heads of state or government of the EU member states, along with the President of the European Commission and the President of the European Council, currently Herman Van Rompuy...
subject to ratification by all member states in the usual manner.
The Treaty also provides for the Passerelle Clause
Passerelle Clause
The Passerelle Clause is a clause within treaties of the European Union that allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers with qualified majority voting in specified areas with the previous consent of the European Parliament, and move...
which allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
with qualified majority voting (QMV) in specified areas with the previous consent of the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
, and move from a special legislative procedure to the ordinary legislative procedure.
Ordinary revision procedure
- Proposals to amend the treaties are submitted by a Member State, the European Parliament or the European Commission to the Council of Ministers who, in turn, submit them to the European Council and notify member states. There are no limits on what kind of amendments can be proposed.
- The European Council, after consulting the European Parliament and the Commission, votes to consider the proposals on the basis of a simple majority, and then either:
- The President of the European Council convenes a convention containing representatives of national parliaments, governments, the European Parliament and the European Commission, to further consider the proposals. In due course, the convention submits its final recommendation to the European Council.
- Or the European Council decide not to convene a convention and set the terms of reference for the inter-governmental conference themselves.
- The President of the European Council convenes an inter-governmental conference consisting of representatives of each member-state's government. The conference drafts and finalises a treaty based on the convention's recommendation or on the European Council's terms of reference.
- EU leaders sign the treaty.
- All member states must then ratify the treaty "in accordance with their respective constitutional requirements", if it is to come into force.
Simplified revision procedure
- Proposals to amend Part three of the Treaty on the Functioning of the European Union are submitted by a Member State, the European Parliament or the European Commission to the Council of Ministers who, in turn, submit them to the European Council and notify member states. Proposed amendments cannot increase the competences of the Union.
- The European Council, after consulting the European Parliament and the Commission, votes to adopt a decision amending Part three on the basis of the proposals by unanimity.
- All member states must approve the decision "in accordance with their respective constitutional requirements", if it is to come into force.
The Passerelle Clause
The Passerelle ClausePasserelle Clause
The Passerelle Clause is a clause within treaties of the European Union that allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers with qualified majority voting in specified areas with the previous consent of the European Parliament, and move...
allows for the changing of voting procedures without amending the EU treaties. Under this clause the European Council
European Council
The European Council is an institution of the European Union. It comprises the heads of state or government of the EU member states, along with the President of the European Commission and the President of the European Council, currently Herman Van Rompuy...
can, after receiving the consent of the European Parliament, vote unanimously to:
- allow the Council of Ministers to act on the basis of qualified majority in areas where they previously had to act on the basis of unanimity. (This is not available for decisions with defence or military implications.)
- allow for legislation to be adopted on the basis of the ordinary legislative procedure where it previously was to be adopted on the basis of a special legislative procedure.
A decision of the European Council to use either of these provisions can only come into effect if, six months after all national parliaments had been given notice of the decision, none object to it.
Acts
Legal actsLegislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
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
European Union decision
In European Union law, a decision is a legal instrument which is binding upon those individuals to which it is addressed. They are one of three kinds of legal instruments which may be effected under EU law which can have legally binding effects on individuals. Decisions may be addressed to member...
has direct effect, but only relating to a specific person or entity, and there are also various other non-binding instruments.