National and Kapodistrian University of Athens

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1 National and Kapodistrian University of Athens Erasmus Programme European Law Konstantinos Manikas THE EUROPEAN UNION s LEGAL ORDER (III) LEGISLATIVE PROCEDURES

2 I. REFORMS INTRODUCED BY THE TREATY OF LISBON Simplification Reinforcement of the EP s role Transparency The ordinary legislative procedure (previously called the codecision procedure ) becomes the standard procedure for adopting legislative acts. The remaining legislative procedures are called special procedures. The ordinary legislative procedure (entailing joint decisionmaking by the EP and the Council) has been extended to approximately 40 new areas. The EP remains involved in special legislative procedures, where it is either consulted or gives its consent. Article 1 TEU: This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. Article 15(2) TFEU: The EP shall meet in public, as shall the Council when considering and voting on a draft legislative act. Article 296 TFEU: Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.

3 II. ARTICLE 289 TFEU: LEGISLATIVE PROCEDURES (a) Article 289 TFEU 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.[ ] 1. Two general types of legislative procedures: Ordinary legislative procedure Joint adoption by the EP and the Council of a regulation,directive or decision on a proposal from the Commission. Special legislative procedures Consultation or Consent. 2. Interests represented in the lawmaking process: Commission: General interest of the EU (Article 17(1) TEU) Council: EP: Member States interests (Article 10(2) TEU) Citizens (Article 10(2) TEU)

4 II. ARTICLE 289 TFEU: LEGISLATIVE PROCEDURES (b) 3.The choice of procedure is determined by the relevant legal basis found in the Treaties. If an act simultaneously pursues several inseparably linked objectives, the act must in principle be founded on all corresponding legal basis. However,no dual legal basis is possible where the procedures laid down for each legal basis are incompatible with each other. (See Case C-338/01 Commission v Council, paras ; Case C-130/10 Parliament v Council, paras 45-49) Article 113 TFEU The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition. Article 114(1) TFEU Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

5 III. LEGISLATIVE PROPOSALS 1. The legislative process is in principle initiated by the Commission.(Article 17(2) TEU). 2. In specific cases,legislative acts may be adopted 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(4) TFEU). 3. The EP (Article 225 TFEU) and the Council (Article 241 TFEU) may ask the Commission to prepare any proposal considered desirable for the attainment of EU objectives. 4. One million citizens from at least one quarter of Member States may take the initiative of inviting the Commission to prepare a legislative proposal (European Citizens Initiative, Articles 11(4) TEU and Regulation No 211/2011). First successful European Citizens Initiative Right2Water - Water and sanitation are a human right! Water is a public good, not a commodity! (1,857,605 signatures on 7 September 2013). As a follow-up,the Commission issued a Communication in 2014 and a working paper on the evaluation of the Drinking Water Directive 98/83/EC in A Commissionproposal for the revision of the Directive is scheduled for the 4 th quarter of 2017.

6 IV. ARTICLE 294 TFEU: ORDINARY LEGISLATIVE PROCEDURE (a) 1. Submission of a legislative proposal Article 294 TFEU 2.The Commission shall submit a proposal to the European Parliament and the Council. The Commission forwards a legislative proposal to the EP and the Council. The Commission shall forward its draft legislative act to national Parliaments at the same time as to the Union legislator (Article 4 of Protocol No. 2 to the TEU on the application of the principles of subsidiarity and proportionality).

7 IV. ARTICLE 294 TFEU: ORDINARY LEGISLATIVE PROCEDURE (b) 2. First Reading The EP adopts its position which may approve the proposal with no amendments propose amendments to the proposal The Commission may amend the proposal to incorporate the EP s amendments and resubmit it to the Council (see also Article 293(3) TFEU). The Council may accept the Commission proposal which was not amended by the EP (Act adopted) accept all EP s amendments (Act adopted) adopt a common position rejecting (i) the EP s amendments or (ii) the Commission proposal The Commission shall explain why it supports or opposes the Council s position. Diagram partially based on the figure set out in Kaczorowska A., European Union Law, Routledge, 2013, page 162.

8 IV. ARTICLE 294 TFEU: ORDINARY LEGISLATIVE PROCEDURE (c) 3. Second Reading Within 3 (or 4) months, the EP may approve the Council s common position or take no decision (Act adopted) reject the Council s common position by absolute majority (Act not adopted) propose amendments Within 3 (or 4) months, the Council may The Commission shall deliver an opinion on the EP s amendments approve any amendments by qualified majority, if the Commission delivered a positive opinion, or by unanimity if the Commission delivered a negative opinion (Act adopted) object to the EP s amendments A Conciliation Committee is convened, aiming to adopt a joint text on the basis of the EP s and Council s position at 2 nd reading. Diagram partially based on the figure set out in Kaczorowska A., European Union Law, Routledge, 2013, page 162.

9 IV. ARTICLE 294 TFEU: ORDINARY LEGISLATIVE PROCEDURE (d) 4. Conciliation Within 6 (or 8) weeks, the Conciliation Committee may The Committee is composed of an equal number of representatives of the EP and of the Council. The Commission participates aiming at reconciling the positions of the European Parliament and the Council. adopt a joint text (by qualified majority of Council representatives and by simple majority of EP representatives) not adopt a joint text (Act not adopted) 5. Third Reading Within 6 (or 8) weeks, the Counciladopts an act in accordance with the joint text (by qualified majority) Within 6 (or 8) weeks, the EP adopts an act in accordance with the joint text (by majority) Within 6 (or 8) weeks, the Councildoes not adopt an act in accordance with the joint text Within 6 (or 8) weeks, the EP does not adopt an act in accordance with the joint text Act adopted Act not adopted Diagram partially based on the figure set out in Kaczorowska A., European Union Law, Routledge, 2013, page 162.

10 IV. ARTICLE 294 TFEU: ORDINARY LEGISLATIVE PROCEDURE (E) Statistics Statistics on concluded codecision procedures (by signature date) 8th Legislature-1 July April2017 Total COD files 1st reading Early 2nd reading 2nd reading rd reading (conciliation) 100 % 75 % 23 % 2 % % Average length of procedure time (in months) Source:

11 V. SPECIAL LEGISLATIVE PROCEDURES (a) 1. The Consent Procedure The Council may adopt an act after receiving consent from the EP.Examples: -Article 7(2) TEU, concerning the establishment of a serious and persistent breach by a Member State of the values referred to in Article 2 TEU (fundamental rights); -Article 49TEU, concerning the accession of new members to the EU; -Article 218 TFEU, concerning the conclusion of certain international agreements by the EU, including association agreements and an agreement on EU accession to the ECHR. -Article 352 TFEU (flexibility clause). The EP may adopt an act after receiving consent from the Council.Examples: - Article 223(2) TFEU, concerning the establishment of regulations and general conditions governing the performance of the duties of its Members; - Article 228(4) TFEU, concerning the establishment of regulations and general conditions governing the performance of the Ombudsman's duties.

12 V. SPECIAL LEGISLATIVE PROCEDURES (b) 2. The Consultation Procedure a) The Commission submits a proposal to the Council; b)the Council consults the EP (but is not obliged to take into account its opinion); c) The Council adopts the act in question, either by qualified majority or by unanimity (depending on the relevant legal basis). Examples: -Article 103 TFEU, concerning the adoption of regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU (competition); - Article 109 TFEU, concerning the adoption of regulations on the application of Articles 107 and 108TFEU (State aid). Case 138/79 Roquette Frères v Council 35. [Consultation] allows the Parliament to play an actual part in the legislative process of the Community, such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Due consultation of the Parliament in the cases provided for by the Treaty therefore constitutes an essential formality disregard of which means that the measure concerned is void.

13 VI. FLEXIBILITY IN EU LAW-MAKING PASERELLE CLAUSES A paserelle provision may make possible: a) to switch from the special legislative procedure to the ordinary legislative procedure in order to adopt an act in a given policy area; b) to switch from voting by unanimity to qualified majority voting in a given policy area. Article 48(7) TEU(General paserelle provision) Where the [TFEU] or Title V of [TEU] provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence. Where the [TFEU] 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. Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision. For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.