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European Union Legislative Procedure
European Union Legislative Procedure
European Union Legislative Procedure
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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)
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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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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]
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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]
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
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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.
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.
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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 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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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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do?language=EN&id=55)
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