European Union Legislative Procedure

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European Union legislative procedure


The European Union adopts
legislation through a variety of European Union legislative procedure
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 flag
European Union and European Type
Parliament to become law.
Houses
Council of the European Union
Over the years the power of the
European Parliament within the European Parliament
legislative process has been National parliaments of the European Union
greatly increased from being
limited to giving its non-binding History
opinion or excluded from the Founded December 1, 2009
legislative process altogether, to
Leadership
participating equally with the
Council in the legislative process. Presidency Croatia
of the since 1 January 2020
The power to amend the Treaties Council of
of the European Union, the
European
sometimes referred to as the Union
Union's primary law, or even as
its de facto constitution, is President David Sassoli, S&D
reserved to the member states of the since 3 July 2019
and must be ratified by them in European
Parliament
accordance with their respective
constitutional requirements. An Structure
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.

Political No official division by political groups


Contents groups

Actors
Principal actors

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European Commission
European Parliament
Council of the
European Union
Secondary actors
National parliaments
Political 8
Ordinary legislative groups
procedure EPP (187)
Trilogue S&D (148)

Special legislative RE (97)


procedures ID (76)
Consultation procedure Greens–EFA (68)
Consent procedure
ECR (61)
Non-legislative procedures GUE/NGL (39)
Commission and Council
NI (29)
acting alone
Commission acting alone Committees 10 configurations
Treaty revisions Agriculture and fisheries
Ordinary revision Competitiveness
procedure
Economic and financial affairs
Simplified revision
Education, youth, culture and sport
procedure
The Passerelle Clause Employment, social policy, health and consumer affairs
Environment
Legal acts
Foreign affairs
See also
General affairs
Notes
Justice and home affairs
References
Transport, telecommunications and energy
External links
Committees 22
Budgets
Actors Budgetary Control
Economic & Monetary Affairs
Since December 2009, after the
Employment & Social Affairs
Lisbon Treaty came into force,
the European Union is considered Environment, Public Health & Food Safety
to have three legislative bodies: Industry, Research & Energy
the European Commission, the Internal Market & Consumer Protection
Council of the European Union
and the European Parliament, Transport & Tourism
with the national parliaments of Regional Development
the EU playing a further role.[1] Agriculture & Rural Development
The precise nature of this
Fisheries
organisation has been discussed

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extensively in academic Culture & Education


literature, with some categorising
Legal Affairs
the European Union as
tricameral,[2][3][4][5] though the Civil Liberties, Justice & Home Affairs
European Union itself has not Constitutional Affairs
accepted such categorisation and Women's Rights & Gender Equality
it is generally considered to be sui
generis by observers, given the Petitions
unique dynamics between the Foreign Affairs
legislative bodies not found in
traditional tricameralism.[6] Human Rights
Security & Defence
Development
Principal actors
International Trade
Joint Conciliation Committee
European Commission committees

The Commission has a virtual Meeting place


monopoly on the introduction of
legislation into the legislative
process,[7] a power which gives
the Commission considerable
influence as an agenda setter for
the EU as a whole.[8] And while
the Commission frequently
introduces legislation at the
behest of the Council or upon the Europa building: Council of the EU's seat since 2017 in Brussels,
suggestion of Parliament, what Belgium
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 Louise Weiss: European Parliament's seat since 1999 in Strasbourg,
Council to vote by unanimity
France
rather than majority[9] except
when a conciliation committee has been set up.[10] There are also limited instances where the
Commission can adopt legislation without the approval of other bodies (See below).[11][12]

European Parliament

The European Parliament's 705 members are directly elected every five years by universal suffrage. 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.

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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.[13][14]

Council of the European Union Political system of the European Union

The Council of the EU 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).

Secondary actors

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".[15]

Ordinary legislative procedure


The ordinary legislative procedure[16] 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 as a contrast to the
intergovernmental methods which can variously refer to the
consultation procedure or to the open method of co-ordination.
[17][18]

Article 294 TFEU[19] outlines ordinary legislative procedure in


the following manner. The Commission submits a legislative
proposal to the Parliament and Council. At the first reading
Ordinary legislative procedure
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

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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.[9]

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 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.[9]

The procedure was introduced with the Maastricht Treaty as the codecision procedure[20] and was
initially intended to replace the Cooperation procedure (see below). The codecision procedure was
amended by the Treaty of Amsterdam[21] and the number of legal bases where the procedure applies
was greatly increased by both the latter treaty and the Treaty of Nice. It was renamed the ordinary
legislative procedure and extended to nearly all areas such as agriculture, fisheries, transport,
structural funds, the entire budget and the former third pillar by the Treaty of Lisbon.[16]

Trilogue

The trilogue is an informal type of meeting used in the EU's ordinary legislative procedure. It involves
representatives of the European Parliament (EP), the Council of the EU and the European
Commission. 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,[22] 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[23] that can take place in any stage of the ordinary legislative
procedure, from the first stage to the stage of the formal conciliation procedure.[24] 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[25] in a joint declaration of the EP, the
Council and the EC[26] 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.[27] During 2009–2014
legislative term, when the Treaty of Lisbon 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)[28] and it is seen as a proof of the
effectiveness of the trilogues in fast tracking the legislative procedure.[23]

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

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elements that have not been adopted and the content of the fourth column remains inaccessible to
public.[27] Trilogues have been criticised for the lack of transparency and democraticness both for the
limited number of EU representatives involved and the working methods.[29] The European
Ombudsman, 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.[30]

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.[31]

Before the Single European Act the Consultation procedure was the most widely used legislative
procedure in the then European Community. Consultation is still used for legislation concerning
internal market exemptions and competition law.[32] The procedure is also used in relation to the
Union's advisory bodies such as the Committee of the Regions and the Economic and Social
Committee 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.[33] This applies to admission of members, methods of withdrawal,
subsidiary general legal basis provision and combating discrimination.[32]

Non-legislative procedures

Commission and Council acting alone

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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 (Article 31
(ex Article 26)) and for negotiating trade agreements under the EU's Common Commercial Policy
(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[11] and another on competition in the
telecommunications sector.[12] Formally speaking, these acts are not legislative acts.

Treaty revisions

The 2009 Lisbon Treaty 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 which allows the European Council to unanimously
decide to replace unanimous voting in the Council of Ministers with qualified majority voting 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


1. 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.
2. 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.
3. 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

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based on the convention's recommendation or on the European Council's terms of reference.


4. EU leaders sign the treaty.
5. 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

1. 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.
2. 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.
3. 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 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 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 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

Notes

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1. "The legisprudential role of national parliaments in the European Union" (https://www.europarl.eur


opa.eu/RegData/etudes/BRIE/2017/583133/IPOL_BRI(2017)583133_EN.pdf) (PDF). European
Parliament. 2017.
2. Cooper, Ian (1 July 2013). "Bicameral or Tricameral? National Parliaments and Representative
Democracy in the European Union". Journal of European Integration. 35 (5): 531–546.
doi:10.1080/07036337.2013.799939 (https://doi.org/10.1080%2F07036337.2013.799939).
ISSN 0703-6337 (https://www.worldcat.org/issn/0703-6337).
3. Auel, Katrin; Christiansen, Thomas (4 March 2015). "After Lisbon: National Parliaments in the
European Union". West European Politics. 38 (2): 261–281. doi:10.1080/01402382.2014.990693
(https://doi.org/10.1080%2F01402382.2014.990693). ISSN 0140-2382 (https://www.worldcat.org/i
ssn/0140-2382).
4. Sprungk, Carina (1 July 2013). "A New Type of Representative Democracy? Reconsidering the
Role of National Parliaments in the European Union". Journal of European Integration. 35 (5):
547–563. doi:10.1080/07036337.2013.799944 (https://doi.org/10.1080%2F07036337.2013.79994
4). ISSN 0703-6337 (https://www.worldcat.org/issn/0703-6337).
5. Cooper, Ian (1 May 2012). "A 'Virtual Third Chamber' for the European Union? National
Parliaments after the Treaty of Lisbon". West European Politics. 35 (3): 441–465.
doi:10.1080/01402382.2012.665735 (https://doi.org/10.1080%2F01402382.2012.665735).
ISSN 0140-2382 (https://www.worldcat.org/issn/0140-2382).
6. Hlavac, Marek (2 December 2010). "Less than a State, More than an International Organization:
The Sui Generis Nature of the European Union". SSRN. doi:10.2139/ssrn.1719308 (https://doi.org
/10.2139%2Fssrn.1719308).
7. "Planning and proposing law" (https://ec.europa.eu/info/law/law-making-process/planning-and-pro
posing-law_en). European Commission. 20 April 2019.
8. Schmidt, Susanne K, "Only an Agenda Setter?: The European Commission's Power over the
Council of Ministers European Union Politics" (2000) 1 EUP 37.
9. "Consolidated version of the Treaty on the Functioning of the European Union" (https://web.archiv
e.org/web/20090307190226/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:11
5:0047:0199:EN:PDF). eur-lex.europa.eu. Archived from the original (http://eur-lex.europa.eu/Lex
UriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF) on 7 March 2009. Retrieved
4 April 2018.
10. Article 293 of the Treaty on the Functioning of the European Union.
11. Dir. 80/723 [1980] OJ L195/35
12. Dir. 88/301 [1988] OJ L131/73
13. "Legislative powers" (http://www.europarl.europa.eu/about-parliament/en/powers-and-procedures/
legislative-powers). European Parliament. Retrieved 13 February 2019.
14. "Parliament's legislative initiative" (http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2
013/130619/LDM_BRI(2013)130619_REV2_EN.pdf) (PDF). Library of the European Parliament.
24 October 2013. Retrieved 13 February 2019.
15. Cooper, Ian (16 October 2009) Comment: Will national parliaments use their new powers? (http://
euobserver.com/9/28839), EU Observer
16. "Text of the Draft Treaty amending the Treaty on European Union and the Treaty establishing the
European Community" (http://www.consilium.europa.eu/uedocs/cmsUpload/cg00001re01en.pdf)
(PDF). Europa (web portal). Retrieved 4 April 2018.
17. Craig and de Búrca, p 145.

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18. "Glossary of summaries – EUR-Lex" (https://web.archive.org/web/20131029224734/http://europa.


eu/abc/eurojargon/index_en.htm). Europa (web portal). Archived from the original (http://europa.e
u/abc/eurojargon/index_en.htm) on 29 October 2013. Retrieved 4 April 2018.
19. Formerly Article 251 TEC pre-Lisbon Treaty
20. Craig and de Búrca, p 144.
21. Article 2(44) of that treaty.
22. http://www.cep.eu/Studien/cepInput_Trilog/cepInput_Legislation_by_way_of_trialogue.pdf,p.5
23. Robert Schütze, An Introduction to European Law, Cambridge University Press, 2015, p. 45
24. http://www.cep.eu/Studien/cepInput_Trilog/cepInput_Legislation_by_way_of_trialogue.pdf
25. Ulrich Karpen, Helen Xanthaki (ed.) Legislation in Europe. A Comprehensive Guide For Scholars
and Practitioners, Bloomsbury, Oxford and Portland, Oregon 2017
26. Joint Declaration On Practical Arrangements For The Codecision Procedure, http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32007C0630(01)
27. http://www.forumcostituzionale.it/wordpress/wp-content/uploads/2016/06/salmaso.pdf
28. http://www.europarl.europa.eu/the-secretary-general/resource/static/files/Documents%20section
/SPforEP/Trilogue_negotiations.pdf
29. Robert Schütze, An Introduction to European Law, Cambridge University Press, 2015, p. 46
30. "European Ombudsman" (https://www.ombudsman.europa.eu/it/cases/caseopened.faces/it/59816
/html.bookmark). Europa (web portal).
31. In Roquette Frères v Council [1980] ECR 3333.
32. "The EU following the LisbonTreaty (Reform Treaty)" (http://www.beg.ch/ec-charts/pdf/WC_ECcha
rts-02a-Reform_Treaty_V18_2008-03-30.pdf) (PDF).
33. Craig and de Búrca, p 148.

References
Craig, P.; de Búrca, G. (2003). EU Law: Text, Cases and Materials (https://archive.org/details/eula
w00paul) (3rd ed.). Oxford, New York: Oxford University Press. ISBN 0-19-925608-X.
Voermans, Wim (2010). "Is the European Legislator after Lisbon a real Legislature?" (https://open
access.leidenuniv.nl/handle/1887/15068). Legislacao (50): 391–413.
Tobler, Christa (http://law.leiden.edu/organisation/publiclaw/europainstitute/staff/tobler.html);
Beglinger, Jacques (2018), Essential EU Law in Charts (4th ed.), Budapest: HVG-ORAC /
E.M.Meijers Institute of Legal Studies, Leiden University. ISBN 978-963-258-394-5. See Chapter
5 (in particular Chart 5|5 = p.3 (http://www.eur-charts.eu/wp-content/uploads/2010/03/Samples_Es
sential-EU-Law-in-Charts_Tobler-Beglinger_2Ed-2010.pdf)), www.eur-charts.eu (http://www.eur-c
harts.eu).
Corbett, Richard; Jacobs, Francis; Shackleton, Michael (2011), The European Parliament (http://w
ww.johnharperpublishing.co.uk/pp007.shtml) (8 ed.), London: John Harper Publishing,
ISBN 978-0-9564508-5-2

External links
EU website about decision-making (https://web.archive.org/web/20110102215021/http://europa.e
u/institutions/decision-making/index_en.htm)
European Parliament: Procedures (http://www.europarl.europa.eu/parliament/expert/staticDisplay.

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