The European Union's Legislative Procedure under the Lisbon Treaty

Table of Contents

A. Introduction and background

B. Legislative Procedures in detail
I. General provisions on legal instruments. Typology oflegal acts
II. The ordinary legislative procedure
1. Fundamentals and details
2. Findings
a) Role of the EP
b) Role of the Council
c) Role of national parliaments
III. Special legislative procedures
1. Fundamentals
2. Types of special legislative procedures
a) The consent procedure
b) The consultation procedure
3. Findings

C. Further secondary sources ofEU law
I. Legislation v. implementation
II. Distinction: delegated acts v. implementing acts
III. Delegated acts, Article 290 TFEU
IV. Implementing acts, Article 291 TFEU
V. Findings

D. Conclusio

Bibliography

A. Introduction and background

Enlargement and continuing growth of the EU/EC's policy scope gradually revealed the necessity for internal reforms. In the context of the constitutional debate questions arose concerning democracy and legitimacy of governing, delegation of powers and transparency. In particular, the high bureaucracy and complexity of decision-making required changes of institutional arrangements, legislative procedures and legal instruments.^[1] The Treaties of Rome, Maastricht and Niece did not provide for a uniform legislative procedure. The provisions in question were highly fragmented resulting in legilsation that was complex and hard to understand for European citizens.^[2] There were regulations, directives and decisions adopted on the basis of the Treaties by different forms of inter-institutional interactions or on the basis of secondary legislation with different forms of consultation with committees, common strategies, joint actions, common positions and decisions concerning CFSP and framework decisions, plus decisions and common positions in the third pillar^[3]. Sometimes it was the Council who was competent to perform an act: sometimes cooperation with the EP through consultations, co-decision or assent was required. In other cases the Commission alone had independent competence to act under the treaties (as for example pursuant to Article 96 of the former Treaty of Rome). Altogether the combination of different procedures and legal instruments summed up in about 50 different procedures, even disregarding the comitology system.^[4] This high degree of complexity made the arrangements not only incomprehensible to most people but also worked against efficiency and effectiveness even in general consensus policy areas^[5].

This situation with its underlying questions regarding the democratic legitimacy of European decision-making, as well as the extent and form of delegation of executive powers stood inter alia on the agenda of the Laeken Deklaration, 2001^[6]. In particular, the Laeken convention's working group, when preparing the Constitutional Treaty, directed its powers to simplification and harmonisation of instruments, including a clear hierarchy of legislation, and the simplification of legislative and budgetary procedures^[7]. The recommendations of the Working Group concerning the changes among the legislative procedures and instruments were subsequently incorporated into the Constitutional Treaty, 2003, with hardly any changes. This was also the case with the Lisbon Treaty, 2007. In the context of the failing of the Constitutional Treaty 2006 though, the Lisbon Treaty omitted the terms that could be misinterpreted as state-analogue hence the new names for regulations ("European Law") and directives ("European Framework Law") were removed.^[8]

Giving up the former concept of the European Community might have been one of the most significant changes of the Lisbon Treaty, which did not necessarily make the new structure more comprehensible. With regard to practical consequences for decision-making that in fact meant a huge step towards simplification as the legal instruments and most procedures were harmonised which would prevent the majority of legal-basis conflicts in future.^[9]

This paper will briefly discuss the details of the recent changes of legislative procedures and analyse whether they may really provide more efficiency, effectiveness, transparency and finally more democratic legitimacy of the new EU.

[Abbildung in dieser Leseprobe nicht enthalten]. Legislative Procedures in detail

I. Generalprovisions on legal instruments. Typology of legal acts Before the entry into force of the Lisbon Treaty, the provisions on legislative procedures and instruments were dispersed across the Treaties^[10]. Now the new arrangement of the TFEU groups them together in Chapter 2 "Legal Acts of the Union, Adoption Procedures and Other Provisions". With the exception of CFSP, Article 288 TFEU establishes a unique typology for what were the first and the third pillars of the EU Treaty, i.e. regulations, directives and decisions as legally-binding acts which are mainly of the same nature as those in the former Article 249 of the TEC.^[11]

Concerning the category of legal acts, the TFEU furthermore distinguishes between legislative and non-legislative acts. The legislative character of an act will thereby not result from its title, but from the foregoing procedure of adoption.^[12] So pursuant Article 289 (3) TFEU only legal acts adopted by a legislative procedure, as defined in Article 289 (1, 2) TFEU, shall constitute legislative acts. Thus, the latter may only be adopted through the ordinary or special legislative procedure. Other acts, generated either through delegation (Article 290 TFEU) or for the purpose of implementing a legislative act (Article 291 TFEU) are thus non-legislative.

As both instruments - legislative and non-legislative - may include generally binding rules, the distinction is of a formal nature. Nevertheless, it is important for the new system because of the hierarchical subordination of the non-legislative acts to legislative ones. This hierarchy between basic instruments is new compared to the former EC Treaty.^[13] Besides, it may have some practical impact, as for example pursuant to Article 15 (2) TFEU the Council shall meet in public when considering and voting on a draft legislative act, e contrario a public meeting is not mandatory for discussing non-legislative acts.

Aside from other specific forms of acts (such as for budget matters, Article 313 TFEU, or the instrument of inter-institutional agreements, Article 296 TFEU), there are altogether nine basic categories for binding acts (regulations, directives and decisions on the legislative, delegated or implementing basis)^[14]. The formation of the first, i.e. the legislative acts, will mainly be discussed hereinafter.

II. The ordinary legislativeprocedure

1. Fundamentals and details

Adoption of legal acts in the ordinary legislative procedure is essentially the same as in the former co-decision procedure (Article 251 EC), which gives the EP equal rights as the Council.

Governed by Article 294 TFEU, the ordinary legislative procedure will usually start with the initiative of the Commission that has an exclusive right to submit a proposal, Articles 289 (1), 294 (2) TFEU. Thus, contrary to the usual situation in the national Member States, the EP still does not have the submission right for the adoption of legislative acts, except specific cases as Article 289(4) TFEU stipulates. Notably is though, that the EP has recently appropriated a de facto initiative right^[15] traced back to the revised framework agreement on inter-institutional legislative cooperation, as concluded in February 2010^[16]. Pursuant to it, the EP may request the Commission to prepare a proposal in accordance with Article 225 (1) TFEU. In case the Commission does not follow the request and fails to submit the appropriate proposal within twelve months of the date of request, it has to include the proposal in its work programme for the next year and, furthermore, give the EP a detailed explanation of the reasons thereof.^[17]

As mentioned above, the following procedure essentially corresponds with the former co-decision procedure (previously Article 251 EC) and may be described more simply as follows^[18]:

After the Commission's proposal has been forwarded to the EP and the Council, Article 294(2) TFEU, both of them can reject the proposal or make amendments at the first reading. The EP can first suggest amendments. The next step depends on whether the Council shares the view of the EP. If so, the act concerned will be adopted in the wording corresponding to the position of the Parliament, Article 294(4) TFEU. Therein the Council has to act unanimously if the position of the Parliament deviates from the proposal of the Commission, Article 293(1) TFEU. Otherwise, the second reading of the EP takes place, after the Council has transmitted its (common) position towards it. Pursuant to Article 294 (7) TFEU within three months of the further communication the Parliament has the possibility to approve or reject by a majority of its component members the position of the Council. Nonetheless, in case the Parliament has not taken a decision, the act shall be adopted in the wording that corresponds to the position of the Council. Alternatively, by majority of its members it may submit further amendments which at this stage will also be forwarded to the Commission. If the Council does not approve the amendments of the Parliaments acting either by a qualified majority or unanimously in case the Commission has delivered a negative opinion, Article 284 (8, 9) TFEU, but both of the parties still adhere to the proposal the procedure may be brought before the Conciliation Committee which consists of an equal number of representatives from the Council and the Parliament. The Conciliation Committee's procedure is directed on reaching a compromise solution with the involvement of the Commission, Article 294 (11) TFEU. Afterwards, this joint agreement is subject to the third reading, where the EP and the Council are only offered two possibilities: either to reject or to approve within a period of six weeks. Therein the Council acts by a qualified majority and the Parliament by a majority of the votes cast. Otherwise, the proposed act shall be deemed not to have been adopted, Article 294 (13) TFEU.

In principle, the entire ordinary legislative procedure can be described as a search for a mutual consent on legislative proposals in different rounds of negotiation^[19].

[...]

^[1] Cf. Archick/Mix, CPEE 2011, p. 209 (212); Hofmann, ELJ 2009, p. 482 (482 f.); Kaczorowska, European Union Law, p. 195.

^[2] Voermans, BJWA2011, p. 163 (165).

^[3] Best, EIPASCOPE 2008, p. 7 (9).

^[4] Voermans, BJWA2011, p. 163 (165).

^[5] Best, EIPASCOPE 2008, p. 7 (8).

^[6] Declaration of the European Council on the Future of the European Union of December 2001, p. 4.

^[7] Working Group, Report 2002, p. 2; cf. also Hofmann, ELJ 2009, p. 482 (485 f.).

^[8] Best, EIPASCOPE 2008, p. 7 (9); Mayer, JuS 2010, p.189 (189); Voermans, BJWA2011, p. 163 (166).

^[9] Cf. Best, EIPASCOPE 2008, p. 7 (8).; Hofmann, ELJ 2009, p. 482 (488) with references to legal basis disputes in footnote 26 (Case C-300/89, (Titanium-Dioxide) Commission v. Council [1991] ECRI-2867; Case C-176/03, Commission v. Council [2005] ECRI-7879).

^[10] Voermans, BJWA2011, p. 163 (166).

^[11] Cf. Hofmann, ELJ 2009, p. 482 (486); Best, EIPASCOPE 2008, p. 7 (9).

^[12] Cf. Herdegen, Europarecht, § 8 para 70; Voermans, BJWA2011, p. 163 (168).

^[13] Voermans, BJWA2011, p. 163 (168).

^[14] Hofmann, ELJ 2009, p. 482 (486).

^[15] Voermans, BJWA2011, p. 163 (166).

^[16] European Parliament resolution of 9 February 2010 on a revised Framework Agreement between the European Parliament and the Commission for the next legislative term, OJ EU 2010 Nr. C 341 E, p. 2.

^[17] Haratsch/Koenig/Pechstein, Europarecht, p. 108, para223; Voermans, BJWA2011,p. 163 (177, Footnote 14).

^[18] See for the foolowing description Haratsch/Koenig/Pechstein, Europarecht, p. 149 f., paras 338 ff.; Kaczorowska, European Union Law, pp. 190 ff.; Voermans, BJWA2011, p. 163 (166).

^[19] Voermans, BJWA2011, p. 163 (167).