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 approved by the Council of the European Union and European Parliament in order to become law.
Over the years the power of the European Parliament 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, 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 clauses in which the legislative procedure used for a certain policy area can be changed without formally amending the treaties.
The main actors of the European legislative process are the European Commission, the Parliament and the Council of the European Union. The ordinary legislative procedure for environmental issues is co-decision. However, there are also other procedures with specific rules. The Commission has the exclusive right to initiate a legislative process by proposing a draft legislation to the other institutions. The proposal is usually based on a consultation process with experts, main stakeholders and an impact assessment carried out by the Commission. The proposal is forwarded simultaneously to the European Parliament and to the Council but also to all National Parliaments and, where applicable, to the Committee of the Regions and the Economic and Social Committee. They are all asked to provide opinions to the Council, the European Parliament and the Commission.In the co-decision procedure, both the European Parliament and the Council initiate an internal discussion on the Commission proposal, which should result in a joint opinion.
The European Union is mostly shaped by its institutions and much depends on the powers allocated to them. Their relationship is also important because with the duties and powers they have they will provide the “checks and balances” within the Union’s legal order . These institutions and their powers allocated to them are not still, but change from time to time depending on the new needs that arise. This is done through Treaties, which in the past years have shaped the institutions that we have today and will continue developing them in the future. The meaning of these institutions will lie within the Treaty, but usually refers to the bodies involved in the governance of the EU. The main institutions under the original EEC treaty are: the Commission; the European Parliament; the Council; and the European Court of Justice. However there are more institutions, and these have been given all a specific role within the EU. For instance the European Economic and Social Committee represents civil society, employees and employers, while the European Central Bank (ECB) has been given the job to look after monetary policies.
The European Parliament as created by the Treaty of Rome, was not a democratic body at first however the treaty provided for a latter introduction of direct elections. Now everyone is eligible to stand and become a member of the European Parliament, thus creating a direct link between citizens and the Union’s institutions. The council of the European Union consists of representatives of member states, one from every member state, and must be at ministerial level. These representatives will be seen as biased and working for their country’s interests rather than those of the union. This is because the representatives will have the same responsibilities at national level. Furthermore the Commission too has 27 members, but these are supposedly working for the Union’s interest, and are not allowed to take orders from any body or state. In reality though, the commissioners still fight for their country’s interest, perhaps with less openness as those in the Council. The commission is appointed every five years, with the current President of this institution being Jose` Manuel Barroso.
When it comes to the legislation process the commission is the one to introduce proposals, however the laws are then passed by the Council ‘and’ the parliament. The Council can sometimes act alone, however this is only done in some areas, and the Parliament needs to be consulted most of the times. Other institutions also have a task in the legislation process but it is mostly background work. The main form of legislation is done in either directives or regulations. Recommendations can be made but are not legally binding and are passed forward as a source of guidelines. The process for the legislation is set down by the treaties and every single proposal has to be based on a treaty article, referred to as ‘legal basis’. Depending on the specific proposal a legislating process is then determined, with the three main procedures being consultation co-decision or assent. The co-decision is the most applied procedure with the EU Parliament having the same power as the Council. When there is a disagreement between these two institutions, a conciliation committee will have to intervene. After an agreement is reached, the text will go again to the Parliament and the Council which can now be transposed as law. In the Assent procedure the Council will have to obtain the go ahead from the parliament before continuing the process. Areas such as taxation agriculture and competition will fall under the Consultation procedure. In this procedure the Parliament will play an important role as it can approve of the Commission’s proposal, deny it or even ask for changes. If the Commission then accepts the proposed amendments, a new amended proposal will be sent to the council. The Council can either adopt it or amend it even more, however in order to change the text a unanimous vote will have to be passed.
The overall number of procedures, post-Lisbon was decreased with the removal of cooperating procedures. The Lisbon Treaty has also changed co-decision which now became the ‘Ordinary legislative Procedure’. Also, included in the treaty, the EU now has a provision for critical areas, called the ‘Special Legislative Procedure’. The European Parliament can now adopt acts with the approval of the Council which may include acts on the decree of MEPs (members of the European parliament). Furthermore, there can be the implementation of non-legislative acts where the legal basis becomes the Treaties themselves thus without the need to undergo a legislative process.
The legislative procedure all begins when a new or amended piece of legislation is needed. The commission is the key player in this process, as everything has to start from a proposal issued by them, except in some areas of Justice and Home Affairs or when a treaty states otherwise. However, under Article 241 TFEU (Treaty on the Functioning of the European Union), the council has some say along with the EP, especially under Article 225 TFEU. Once the proposal I issued, the parliament has to give its feedback and opinion, referred to as the first reading. The average time taken for the parliament to take a position on the said proposal is fifteen months, however it is not bound by the treaty and can take longer than that. Later on, a Parliamentary committee will be asked for a general opinion, and most of the legislations usually fall under two or less committees. After some meetings of these committees, a rapporteur will then make a draft report which is to be studied by the committees. The changes to the proposal of the commission is then to be passed in a vote of simple majority. If the vote fails to gain a majority then the Parliament may ask the Commission to withdraw the proposal, as the Treaty does not give the Parliament the right to dismiss the proposal. The Parliament can also send a completely changed proposal which after the Commission studies it and another proposal containing the amendments of the Parliament can now be submitted to the Council. The aftermath can have three different scenarios. The easiest and most efficient being when a proposal has not been amended by the Parliament and the Council approves it, thus the act can be adopted without further actions. The Second one is when the amendments of the Parliament where applied by the Commission and the Council approves the new proposal. The third one is when the Council objects to the original proposal or to the amended proposal by the Parliament, thus adopting a common position.
If the Council does not agree with the Parliaments amendments, a common position will be sent to the Parliament along with the explanation to their judgement. If the proposal however was not amended by the parliament, the Council may still have some amendments to propose thus this common position will be sent to the parliament. This will be referred to the Commission as well, which will then agree or disagree with the Council’s opinion, giving an explanation to their reasoning. If however the Commission still agrees with the Council’s common position, and rearrange the proposal to meet the common position of the council, the latter can adopt the act with qualified majority. The EP will then be given a three to four month time-limit in which has to assert its view on the Council’s position. Usually, the Parliament’s decision has three directions. It can include the changes included in the first reading which were not accepted by the Council, disagree with parts of the common position, or be an almost completely new proposal from the original one. The EP may also opt to a mid-way between the common position of the Council and that of the Commission. On the other hand, if the EP fails to amend the common position by the time stipulated, or fails to gain absolute majority from its members, then the President of the Parliament will have to approve the common position with the act now clear to be adopted. The Parliament can also annul the act, however this can only be done by obtaining a majority voting. This means that the EP strictly speaking can annul an act too. The EP may also decide to amend the common position and it will fall again under the Commission and the Council. If the Commission disagrees with amended proposal, the Council will have to obtain a unanimous vote in order to pass the procedure anyway. If on the other hand the Commission agrees, the Council will only need a QMV or the procedure to pass. If the Council does not take a decision within a three to four month period, both the President of the Council and that of the Parliament will have to arrange for a Conciliation meeting within six to eight weeks time.
The Conciliation Committee consists of members from the Council, or their representatives, along with the same number from the EP and a Commissioner deemed to be in charge. Each institution will have a number of speakers whom will bargain during informal ‘trialouges’. The resulting deal obtained will then be passed to the delegation for their verdict. Or the Council’s delegations, a minimum QMV is required (some issues may even need a unanimous vote when specified by a treaty) and a simple majority by the parliament’s delegation. During this process, the Commission is allowed to watch over and try to negotiate with both sides with the intention to reconcile both institutions so as for the proposal to pass. The Commission will also check that the whole process, and even the final proposal, is done in accordance with the Treaty. If a compromise is reached, then both the Council and the EP will have to create a ‘joint text’, which will be the guide on how the act is to be adopted and both results from either institution have to be in line. The Presidents and Secretaries General of both the Council and the EP will finally sign the legislative act. On the other hand, if a compromise between the delegations is not reached within the time limit, then the legislature will be considered as disapproved. Also, if the Conciliation Committee fails to create a join text, the act will still be considered as canceled.