The
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...
adopts legislation through a variety of legislative procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...
and approved by the
Council of the European Union
The Council of the European Union, often referred to in the treaties and other official documents simply as the Council, and informally known as the Council of Ministers, is the third of the seven Institutions of the European Union (EU) as ...
and
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
to become law.
Over the years the power of the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
within the legislative process has been greatly increased from being limited to giving its non-binding opinion or excluded from the legislative process altogether, to participating equally with the Council in the legislative process.
The power to amend the
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures ...
, sometimes referred to as the Union's primary law, or even as its ''de facto'' constitution, is reserved to the member states and must be ratified by them in accordance with their respective constitutional requirements. An exception to this are so-called
passerelle clause
A passerelle clause is a clause in treaties of the European Union that allows the alteration of a legislative procedure without a formal amendment of the treaties. The use of a passerelle clause required unanimity of all member states although mem ...
s in which the legislative procedure used for a certain policy area can be changed without formally amending the treaties.
Participants
Since December 2009, after the
Lisbon Treaty
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member sta ...
came into force, three
EU institutions
The institutions of the European Union are the seven principal decision-making bodies of the European Union and the Euratom. They are, as listed in Article 13 of the Treaty on European Union:
* the European Parliament,
* the European Council ...
have been the main participants in the legislative process: the European Parliament, the Council of the European Union and the European Commission, with the national parliaments of the EU playing a further role. The legislative and budgetary functions of the union are jointly exercised by the Parliament and the Council, which are referred to as the Union legislator in a protocol to the
EU treaties
The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures ...
.
The precise nature of this organisation has been discussed extensively in academic literature, with some categorising the European Union as
bicameral or
tricameral
Tricameralism is the practice of having three legislative or parliamentary chambers. It is contrasted with unicameralism and bicameralism, each of which is far more common.
Varieties of tricameralism
A disputed type of tricameralism is one whe ...
, though the European Union itself has not accepted such categorisation and it is generally considered to be ''
sui generis'' by observers, given the unique dynamics between the legislative bodies not found in traditional tricameralism.
European 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
except when a
conciliation committee
A formal trilogue meeting, more commonly known as a trilogue, is a type of meeting used in the European Union (EU) legislative process. It takes its name from a literary form, the trilogue, which means a conversation with three parties.
Trilogue n ...
has been set up. There are also limited instances where the Commission can adopt legislation without the approval of other bodies (See
below).
European Parliament
The European Parliament's 705 members are directly
elected every five years by
universal suffrage
Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, or political stan ...
. 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 1950s as new legislative procedures granted more equality between Parliament and Council. It has also become a requirement that the composition of the European Commission be subject to a vote of approval as a whole by the Parliament. However, the choice of candidates remains the jurisdiction of the Council of the European Union, and the European Commission retains the sole power of legislative initiative.
Council of the European Union
The Council of the EU (also known as "the council of ministers" and simply "the council") 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
: ''For the OIC Committee of Permanent Representatives, see OIC Committee of Permanent Representatives.''
COREPER, from French ''Comité des représentants permanents'', is the Committee of Permanent Representatives in the European Union, made u ...
).
National parliaments
The national parliaments of
EU member states 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 power of the national parliaments could be decried as an extra legislature, without a common debate or physical location: dubbed by EU Observer a "virtual third chamber".
Ordinary legislative procedure
![European Union legislative triangle](https://upload.wikimedia.org/wikipedia/commons/1/1e/European_Union_legislative_triangle.svg)
The ordinary legislative procedure
is the main legislative procedure by which directives and regulations are adopted. It was formerly known as the codecision procedure, and is sometimes referred to as the '
community method The Community method (also known as the Union method) refers to decision making processes in the European Union (EU) which emphasize the roles of the supranational decision making bodies such as the European Commission, the European Parliament and ...
' as a contrast to the '
intergovernmental methods' which can variously refer to the
consultation procedure
The European Union adopts legislation through a variety of legislative procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the European Commission and ...
or to the
open method of co-ordination.
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, the Council President, with the agreement of the Parliament President, convenes the
Conciliation Committee
A formal trilogue meeting, more commonly known as a trilogue, is a type of meeting used in the European Union (EU) legislative process. It takes its name from a literary form, the trilogue, which means a conversation with three parties.
Trilogue n ...
composed of the Council and an equal number of MEPs (with the attendance as moderator 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 (third reading). If either fails to do so, the act is not adopted.
The procedure was introduced with the
Maastricht Treaty
The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve Member state of the European Union, member states of the European Communities, ...
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
The Treaty of Amsterdam, officially the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, was signed on 2 October 1997, and entered into force on 1 May 1999; i ...
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 Nice was signed by European leaders on 26 February 2001 and came into force on 1 February 2003.
It amended the Maastricht Treaty (or the Treaty on European Union) and the Treaty of Rome (or the Treaty establishing the European C ...
. It was renamed the ordinary legislative procedure and extended to nearly all areas such as
agriculture
Agriculture or farming is the practice of cultivating plants and livestock. Agriculture was the key development in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that enabled people t ...
,
fisheries, transport, structural funds, the
entire budget and the
former third pillar by the
Treaty of Lisbon
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member s ...
.
Trilogue
The trilogue is an informal type of meeting used in the EU's ordinary legislative procedure. It involves representatives of the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
(EP), the
Council of the EU
The Council of the European Union, often referred to in the treaties and other official documents simply as the Council, and informally known as the Council of Ministers, is the third of the seven Institutions of the European Union (EU) as ...
and the
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...
. The trilogues are equally tripartite meetings, although the EC operates as a mediator between the EP and the Council.
The trilogue negotiations aim at bringing the three institutions to an agreement, to fast-track the ordinary legislative procedure. The expression "formal trilogue" is sometimes used to describe meetings of the Conciliation Committee, which take place between the second and the third reading of a legislative proposal. However the term trilogue is mostly referred to interinstitutional informal negotiations
[Robert Schütze, An Introduction to European Law, Cambridge University Press, 2015, p. 45] that can take place in any stage of the ordinary legislative procedure, from the first stage to the stage of the formal conciliation procedure. However, the agreements reached in trilogues need to be approved through the formal procedures of each of the three institutions. Trilogues have been "formalised" in 2007 in a joint declaration of the EP, the Council and the EC but they are not regulated by primary legislation.
The evolution of the European integration process, together with the evolution of EP's role as co-legislator have produced an increase in the number of the trilogue meetings.
During 2009–2014 legislative term, when the
Treaty of Lisbon
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member s ...
came into force and the co-decision procedure became ordinary legislative procedure – establishing the role of the EP and the Council of the EU as co-legislators – 85% of legislative acts were approved in first reading, 13% were approved in second reading while only 2% were included in the conciliation procedure. This trend corresponds to an increase in the number of trilogues (over 1500 in the same period) and it is seen as a proof of the effectiveness of the trilogues in fast tracking the legislative procedure.
The principal tool used in trilogues is the four column document, a working sheet divided in four sections, each of them comprising the positions of the three EU institutions. The first column is dedicated to the position of the EC, the second one to the position of the EP, the third one to the position of the Council. The fourth and final column is left to the compromised text that is meant to emerge. However, although the first two positions are public, the other two have often textual elements that have not been adopted and the content of the fourth column remains inaccessible to public.
Trilogues have been criticised for the lack of transparency and democraticness both for the limited number of EU representatives involved and the working methods.
The
European Ombudsman
The European Ombudsman is an inter-institutional body of the European Union that holds the institutions, bodies and agencies of the EU to account, and promotes good administration. The Ombudsman helps people, businesses and organisations facing ...
, the EU body responsible of investigating complaints about poor administration by EU institutions and other bodies, in 2015 has launched a strategic inquiry to establish the need for a reform of the trilogue, setting out proposals for more transparency.
Special legislative procedures
The treaties have provision for special legislative procedures to be used in sensitive areas. These see the Council adopt 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.
Before the Single European Act the Consultation procedure was the most widely used legislative procedure in the then
European Community
The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisb ...
. 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
The European Committee of the Regions (CoR) is the European Union's (EU) assembly of local and regional representatives that provides sub-national authorities (i.e. regions, counties, provinces, municipalities and cities) with a direct voice w ...
and the
Economic and Social Committee
The European Economic and Social Committee (EESC) is a consultative body of the European Union (EU) established in 1958. It is an advisory assembly composed of "social partners", namely: employers ( employers' organisations), employees (trade ...
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 procedure (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.
[Craig and de Búrca, p 148.] This applies to
admission of members, methods of
withdrawal, subsidiary general legal basis provision and combating discrimination.
Non-legislative procedures
Commission and Council acting alone
Under this procedure the Council can adopt legal acts proposed by the Commission without requiring the opinion of Parliament. The procedure is used when setting the
common external tariff
A common external tariff (CET) must be introduced when a group of countries forms a customs union. The same customs duties, import quotas, preferences or other non-tariff barriers to trade apply to all goods entering the area, regardless of which ...
(Article 31 (ex Article 26)) and for negotiating trade agreements under the
EU's Common Commercial Policy
The European Union's (EU) Common Commercial Policy or EU Trade Policy is the policy whereby EU member states delegate authority to the European Commission to negotiate their external trade relations, with the aim of increasing trade amongst themse ...
(Article 207(3)). However, formally speaking these acts are not legislative acts.
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 legal acts 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
[Dir. 80/723 980OJ L195/35] and another on competition in the telecommunications sector.
[Dir. 88/301 988OJ L131/73] Formally speaking, these acts are not legislative acts.
Treaty revisions
The 2009
Lisbon Treaty
The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member sta ...
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 Council, provided there is no change to the field of competence of the EU, and subject to ratification by all member states in the usual manner.
The Treaty also provides for the
Passerelle Clause
A passerelle clause is a clause in treaties of the European Union that allows the alteration of a legislative procedure without a formal amendment of the treaties. The use of a passerelle clause required unanimity of all member states although mem ...
which allows the European Council to unanimously decide to replace unanimous voting in the
Council of Ministers
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
with
qualified majority voting
The procedures for voting in the Council of the European Union are described in the treaties of the European Union. The Council of the European Union (or simply "Council" or "Council of Ministers") has had its voting procedure amended by subsequ ...
in specified areas with the previous consent of the European Parliament, 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 decides, with the agreement of the European Parliament, not to convene a convention and sets the terms of reference for the inter-governmental conference itself.
# 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 Clause
A passerelle clause is a clause in treaties of the European Union that allows the alteration of a legislative procedure without a formal amendment of the treaties. The use of a passerelle clause required unanimity of all member states although mem ...
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:
* allow the Council of Ministers to act on the basis of qualified majority in areas where they used to have to act on the basis of unanimity, except 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 come into effect only if, six months after all national parliaments had been given notice of the decision, none objects.
Legal acts
Legal acts resulting from these procedures can come in a number of forms. A
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
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
Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of EU copyright law, made under the internal market provisions of the Treaty o ...
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.
See also
*
Cooperation procedure
The cooperation procedure (formally known as the Article 252 procedure) was one of the principal legislative procedures of the European Community, before the entrance into force of the Treaty of Amsterdam. It was retained after that treaty but onl ...
*
Recasting (EU Law)
Notes
References
*
*
Tobler, Christa Beglinger, Jacques (2018), ''Essential EU Law in Charts'' (4th ed.), Budapest: HVG-ORAC / E.M.Meijers Institute of Legal Studies, Leiden University. . See Chapter 5 (in particula
Chart 5, 5 = p.3www.eur-charts.eu
*
External links
European Parliament: Procedures
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