The law-making bodies in the European Union are the Council and the European Parliament. Originally the Council had complete law-making powers. Over time, the Parliament’s role has grown so that many decisions were made by both the Parliament and Council. Under the Lisbon Treaty, the co-decision procedure became the normal method of lawmaking.
The Council comprises the government representatives of each state. The European Council comprises the heads of government or heads of state. There are councils corresponding approximately to most government ministries. The relevant ministers from the EU attend and comprise the Council.
The European Parliament is elected on the basis of universal suffrage in the various states. Any person qualified to vote in a national election may stand as a candidate for the European Parliament. EU states specify the entitlement to vote and be a candidate. They must do so in accordance with the principles of European Union law.
After the Lisbon Treaty, the European Parliament’s consent is required for international agreements entered by the EU in areas in which it is competent to make laws.
Commission Usually Initiates
The legislation is usually initiated by the European Commission. In some instances, other entities such as the European Central Bank may initiate legislation in its own area of competence. The Council or Parliament may request the Commission to prepare proposals desirable for implementing the objectives in the treaty in a particular area. The Commission need not act on the request but in practice will be under significant political pressure to do so.
The Commission determines the broad necessity for legislation in a particular area. The appropriate directorate general of the Commission sets out the proposal. The relevant Commissioner brings it to Commissioners acting collectively, who consider, amend, approve or reject the proposal.
The Commission assesses the impact of the legislative proposals, producing impact assessments in accordance with the modern legislative practice in many jurisdictions. There is an Impact Assessment Board which examines the impact of proposals.
The draft proposals are circulated for consultation with relevant bodies. This will depend on the subject matter of the proposal. The Commission’s legal service will consider the proposal.
The EU adopted the principle of subsidiarity in the 1990s into the Treaties, which provides that matters should be dealt with by the appropriate level of government, which may not be the EU many cases. If the proposal is more appropriate for another level and inappropriate for European Union legislation under principles of subsidiarity, it should be abandoned.
The Commission may seek to find alternatives to legal regulation through informal action by non-governmental bodies, social partners, self-regulation etc.
The Commission determines whether legislation should proceed. It may act by the majority. When the proposal is approved, it is translated into the official languages and submitted to the Council, European Parliament, and national parliaments. It is published in the Official Journal. This does not happen in relation to the limited areas in which the Commission has sole legislative power, where it has been delegated by the Council/European Parliament.
COREPER is the Committee of Permanent Representatives in the European Union, made up of the head or deputy head of mission from the EU member states in Brussels. Its role is to prepare the agenda for the Ministerial Council of the European Union meetings. It may also take some procedural decisions.
COREPER oversees and coordinates the work of some 250 committees and working parties made up of civil servants from the member states who work on issues at the technical level to be discussed later by COREPER and the Council. It is chaired by the Presidency of the Council of the European Union.
There are two committees: COREPER I consists of deputy heads of mission and deals largely with social and economic issues. COREPER II consists of heads of mission (Ambassador Extraordinary and Plenipotentiary) and deals largely with political, financial and foreign policy issues.
The Council submits proposals to COREPER and in some limited cases to an appropriate committee. Council agenda items are examined by COREPER unless the Council or COREPER itself otherwise decides.
COREPER screens legislative items. If it is put on Part A of the Council agenda the proposal may be approved without debate unless COREPER objects. In this case, it is returned to COREPER.
Under the Treaty of Amsterdam, the Commission forwards proposals to national parliaments for consultation.
The principle of subsidiarity is given further effect in the Lisbon Treaty. The Commission is to furnish consultation documents for legislation to national parliaments. It must also forward to them all proposals for legislation. Within 8 weeks, national parliaments may issue a reasoned opinion n stating why the proposed legislation is incompatible with the principle of subsidiarity.
Each parliament has two votes. If one-quarter of parliaments decide that the principle of subsidiarity has not complied with the Commission (or another initiating body) must review the proposal. There is a one-third requirement in the area and justice and security.
If the Commission decides to maintain the proposal must justify it with a reasoned opinion on the issue of subsidiarity. A majority of 55% of the members of the European Council or a simple majority of the European Parliament may reject the position.
Under the Lisbon Treaty national parliaments acting by their states may take action before the Court of Justice against the Commission / initiating body on the basis that a proposal infringes the principle of subsidiarity.
Normal Legislative Procedure
All proposals for legislation are transmitted to the European Parliament. It is first examined by a committee who report to the Parliament. The Parliament Committee considers the report and may modify it. The Parliament gives its opinion on the proposal. The Parliament acts in plenary session by way of vote, accepting, rejecting or adopting the proposal.
Originally, the European Parliament was consulted only. The Council was not obliged to follow its opinion on the matter. The requirement for a parliamentary opinion was mandatory, but Parliament did not have a formal veto. If the proposal is amended substantially, Parliament must be consulted once again.
The co-decision procedure was established by the Treaty on European Union. It gives the Parliament joint decision-making powers. Almost all legislation is now adopted under this procedure. Co-decision became the normal legislative procedure under the Lisbon Treaty which is now the normal legislative procedure and has been renamed as such. It applies to all areas where qualified majority voting applies.in the Council (being the norm).
The procedure is as follows. The Commission submits a proposal to the Parliament and the Council. The Council acts by a qualified majority after obtaining the opinion of Parliament. If it approves all amendments contained in the Parliament’s opinions it may adopt the proposal as amended.
If the European Parliament does not propose amendments, the Council may adopt the act. The council must otherwise adopt a common position and forward it to the Parliament. It must give the reasons for its common position.
Within three months the European Parliament may approve the common position. Alternatively, if it does not make a decision, the measure is deemed to have been passed in accordance with the common position.
Resolving Council / Parliament Disagreement
The Parliament may reject by an absolute majority of its members the common position and it is deemed not adopted. It may propose amendments to the common position by an absolute majority in which event the amendments and amended text are forwarded to the Council and Commission who deliver an opinion.
Within three months of referral, the Council by a qualified majority may approve all the amendments, in which event the measure is adopted. If the Commission has given a negative opinion, the Council must act unanimously on the amendments.
If the Council does not approve the amendments, the President of the Council in agreement with the President of the Parliament must chair a conciliation committee. This comprises members of the Council and members of the Parliament; representatives of them in equal numbers. They may seek to reach an agreement by a qualified majority of the members of the Council and majority of the European Parliament representatives. The Commission may seek to reconcile the positions and may participate in meetings.
If within six weeks, the conciliation committee approves the joint text, the Parliament acting by absolute majority and the Council by a qualified majority within six weeks may approve it. If they fail to approve, it is not adopted. Where the conciliation committee does not approve the joint text it is not adopted.
The conciliation committee is made up of equal members of the Parliament and Council members. It seeks to produce a joint text to compromise on the disputed points within six weeks. The Council delegation acts by qualified majority voting or unanimity depending on the nature of the proposal and the European Parliament delegation act by a simple majority. The Commission may broker agreement.
The co-decision procedure applies to a great many areas including discrimination, free movement, rights for workers, freedom to provide service, freedom to cross borders, asylum, refugees, common transport policy, co-operation in judicial matters, employment, customs, justice and home affairs, equal opportunities, vocational training, public health, consumer protection, certain measures supporting industry, programs on research, protection of the environment, transparency, statistic.
The assent (now the consent) procedure is a much simpler procedure. The Council acts on the basis of a proposal from the Commission after receiving assent from the Parliament.
The Parliament either approves or disapproves of the proposal. The EP cannot make amendments or give recommendations for amendments. The EP takes the decisions based on a majority of votes cast.
If the EP approves the proposal, it is sent to the Council of Ministers. The Council either accepts or rejects the proposal. The Council cannot amend the proposal.
The Council decides unanimously. Proposals on the implementation of the system by which the EU appropriates resources are decided upon in the Council by qualified majority vote.
The assent procedure applies to certain types of measure including
- horizontal flexibility clause
- combating discrimination
- membership of the Union
- arrangements for withdrawal from the Union
- association agreements,
- agreements establishing a specific institutional framework,
- agreements with important budgetary implications
Commission Delegated Law Making
The EU Commission has limited power to legislate. It issues individual decisions addressed to states and bodies and individuals. They are most prominently in competition and state aid matters.
Under the treaties, Council may grant law-making powers on the Commission by delegation. The principal example is in the area of the common agricultural policy. Very comprehensive rulemaking powers have been delegated to the commission to fix quotas, prices.
Delegated powers exist in a wide range of areas. This includes customs, common market social policies, CAP, and asylum policies. The general principles applicable to delegated legislation under national law apply.
There are procedures to ensure that the Commission acts in accordance with the terms of the delegation. The supervisory committee system was established comprised of national civil servants and is presided over by a commission representative. This system applies to a range of EU administration areas. There are several hundred committees of national experts.
The Commission is obliged to consult the relevant committee before implementing measures in the relevant area. If the committee disagrees with the Commission, the matter is sent back to the council for review. The committee system assists the Council and gives the Council (and states) the opportunity to supervise the Commission in the exercise of implementing powers. It gives states the opportunity to participate in the implementation of the council acts.
Legislation adopted at the end of the 1990s govern the committee system and provide for a number of committees namely advisory, regulation and management. It sets out criteria to determine which type of procedure is to apply. It gives the European Parliament certain rights of information and the scrutiny.
The European Parliament has a certain right of scrutiny of delegated legislation. In some cases, the Parliament has both the right to scrutiny and veto.
Social Partners Consultation
The Treaty of Amsterdam provides for procedures for participation of social partners in law making relating to social issues. The Commission is required to consult social partners on measures in relation to social policy. This is to apply before submitting any proposal on the desirability of community action. If after the first consultation, the Commission still considers that community action is advisable, there is to be consultation on the content of the proposal.
The social partners may give opinions or recommendations on the proposed measures. Alternatively, procedures leading to the conclusion of agreements may be entered instead. Agreements are legally binding once entered.
Social partners may make their own national organisations responsible for implementation in accordance with the relevant practices and procedures. Social partners implement and monitor the agreement.