EU Law (Global Law) Decision-Making Procedures PDF

The creation of EU secondary law. The decision-making procedures EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  General features  Interinstitutional nature = within the EU legal order,...

The creation of EU secondary law. The decision-making procedures EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  General features  Interinstitutional nature = within the EU legal order, the decision-making procedures have an interinstitutional nature, i.e. they serve the purpose of setting the role and powers of each of the institutions within the context of the decision-making process  Role and powers of the Institutions = the modalities according to which the single (political) institutions (EU Parliament, Council and the Commission) participate to the decision-making process vary depending on the specific procedure (i.e. legislative [ordinary or special] / non legislative) to be used  As mentioned several times, this is a consequence of the “internal” dimension of the principle of conferral, according to which the EU institutional framework is based on the principle of the institutional balance inspired by the principle of loyal cooperation 1  General features (2)  Choice of the procedure = the procedure to be used for the adoption of every piece of EU secondary law is not directly chosen by the EU institutions. Rather, it is directly indicated by the relevant legal basis that allow the EU institution to adopt that specific act.  In other words, EU institutions cannot choose the procedure, they are obliged to use the procedure indicated in the relevant legal basis  Legal basis = as you know (but as they say repetita iuvant) the legal basis is the disposition of the Treaty granting to the EU institutions the power to act (and therefore to adopt EU secondary law) in a given field  Purposes and content of the envisaged act (objective criteria subject to judicial review)  Centre of gravity (if more than one legal basis 2 available)  General features (3)  No discretion in choosing (the legal basis and therefore) the decision- making procedure = the legal regime of the decision-making procedures is provided directly by the Treaties and, therefore, it cannot be derogated by the Institutions (partial “exception”: the simplified procedure to revise the Treaty under Article 48(7) TUE – why?)  The rigidity of the system and the limited margin of discretion left to the Institutions is a guarantee for the position of the recipients of EU secondary law (that, as we know, can be addressed to other Institutions, to the Member States but also to natural and legal persons)  Lisbon Treaty = After the entrance into force of the Treaty of Lisbon, the position (and powers) of the EU Parliament vis-à-vis the Council is more 3 balanced  General features (4)  Interinstitutional agreements = The decision-making procedures described by the Treaties are complemented by the practice, which is often codified in so-called “inter-institutional agreements”, by which the institutions themselves undertake to strengthen mutual cooperation and ensure a better performance of the legislative/decision-making function, and the related quality of regulation for the benefit of European citizens.  Among the most relevant instruments of this practice are:  Ex ante impact assessment of envisaged measures  Wide public consultations with the stakeholders  Ex post valuation of the effects of EU secondary law  Discussions between the institutions during all the phases of the procedures 4  Legislative vs non legislative acts (1)  The Treaty of Lisbon has introduced the distinction between legislative and non legislative acts  Pursuant to Article 289, par. 3 TFEU, the distinction is based only and solely on the procedure to be followed for the adoption of the act and, therefore, is decided ex ante by the Treaty itself (through the legal basis) 5  Legislative vs non legislative acts (2) The distinction between legislative and non legislative acts has manifold consequences, such as for example:  Transparency of the works of the Council = only legislative acts are adopted by the Council during public meeting, so that the works of each meeting of the Council “shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities” (Article 16.8 TEU);  Then of course also non legislative acts are published, as a general rule, in the official journal  Subsidiarity = the mechanism of control ex ante exercised by the national parliaments apply only to legislative acts  Also non legislative acts shall comply with the principle of subsidiarity, but the only form of control is the ex post judicial review by the ECJ if someone challenges the act  Annulment procedure = as we will see the locus standi of private applicants (natural and legal persons) is per se quite limited. However, the limits are even stricter whit regard to the possibility of individuals to challenge legislative acts (see Article 263.4 TFEU, with 6 particular regard to the notion of regulatory acts – see also the Inuit case).  Summary outline for legislative procedures Joint adoption by the Ordinary legislative European Parliament and the Article. 294 TFEU procedure Council of a regulation, The EU Parliament and directive or decision on a the Council are co- (the rule) proposal from the legislators Commission. Power of proposal (always the EU Commission) Consultation = Adoption of an act by X with Compulsory but not Special legislative the participation of Y binding opinion procedures (only if explicitly provided (X is the dominant institution, by the Treaties ) usually the Council is X and the Parliament is Y Approval = Veto power 7  The power of initiative / proposal: the «monopoly» of the Commission  Under Art. 17 TEU for all legislative procedures (ordinary and special) the power of initiative normally rests with the Commission, unless otherwise expressly specified in the Treaty  Art. 289 TFEU: where expressly provided, the initiative may rest with the EU Parliament or with a group of Member States  e.g., Art. 76 TFEU = ¼ of the Member States for judicial cooperation in criminal matters (Art. 82-86 TFEU) and police cooperation (Art. 87-89 TFEU)  The Commission can also act on the initiative of other institutions (e.g., CJEU or ECB-see Art. 257 TFEU for the creation of specialized Courts)  The EU Parliament (Art. 255 TFEU) and the Council (Art. 241 TFEU) may urge the Commission to submit a legislative proposal by addressing to the Commission a request to do so (not binding, but principle of loyal8 cooperation + relation of confidence etc.)  European Citizens’ Initiative Article 11.4 TEU + Article 24.1 TFEU Source Regulation (EU) n. 211/2011 At least one million EU citizens of at least 7 Member States REQUIREMENTS Minimum thresholds in each Member State, depending on the population (Italy 54750; Germany 72000; smaller Member States: 4500) Establishment of a citizens' committee (at least 7 citizens from 7 states); PROCEDURE registration of the proposal Certification of collection system; collection of signatures ; verification Presentation of the proposal to the Commission and public hearing OUTCOME before the EU Parliament. The Commission is NOT obligated to follow up on this (see Puppinck case) 9  The power of initiative / proposal: the «monopoly» of the Commission (2)  Discussion of the proposal = the EU Parliament and the Council are not obliged to schedule the discussion of a proposal drafted by the Commission  Modification of the proposal = the EU Parliament and the Council can modify the content of the Commission's proposal but there are some limitations:  Unanimous vote in Council = when it wishes to amend the Commission's proposal, the Council must vote unanimously  Essential elements of the act = the Council and the EU Parliament cannot change the essential content of the act (question = which is the rationale of this limit?)  Withdrawal of the proposal = the Commission can amend or withdraw any legislative proposal, even after it has been submitted, but only until the Council has voted on its content for the first time (i.e., in the ordinary legislative procedure, until the Council has voted on its “first reading” - see next slides)  On the Commission's right to withdraw its proposal see also Council v. Commission C-409/13 10  First reading: Position of the The ordinary legislative EP + adoption OR (different) position of the Council procedure: outline Please note that this and the following slides only Third reading : Second reading : aim at providing you with a Yes or no, the act can no longer PE approves the Council brief summary of the position OR new position of the be modified EP + approval of the Council OR ordinary legislative procedure. For further details (such as the time frame of the procedure or the voting rule of the Parliament and the Council), please refer to Article 294 TFEU Conciliation Committee and/or to the book 11 The ordinary legislative procedure: first reading Council approves Act is adopted the EP position European Commission’s Parliament proposal Position Opinion of the Council Position Second reading Commission 12  The ordinary legislative procedure: second reading EP approves / Act is adopted remains silent End of the EP rejects procedure Council position Council approves Act is adopted Opinion of the EP modifies Council Position Commission Council modifies Conciliation Committee 13  The ordinary legislative procedure: third reading Cannot draft a End of the common project procedure Conciliation Committee Parliament and Council approve Act is adopted (no modification) Can draft a Third reading common project Parliament or End of the Council do not procedure approve 14  Special legislative procedures: general features  “Dominant position” of one of the political institutions = the notion of special legislative procedures include all cases where the Treaties provide for the adoption of an act by the European Parliament with the participation of the Council or vice versa  Ordinary legislative procedure = joint adoption  General rule = it is the Council that holds this “dominant position”  Indeed, there are only three instances of special legislative procedures in which the act is adopted by the European Parliament with the participation of the Council:  approval of the statute of the European Parliament (Art. 223(2) TFEU);  establishment of the modalities of the exercise of Parliament's right to set up Committee of Inquiry (Art. 226(3) TFEU);  adoption of the Statute and general conditions for the exercise of the functions of the European Ombudsman (Art. 228(4) TFEU). 15  Special legislative procedures: consultation  Summary = Consisting of the adoption of the act by the Council (by qualified majority or unanimity, as the case may be) after consultation with the European Parliament.  Advisory opinion = Parliament is called upon to issue an advisory opinion: the request is mandatory but the opinion is not binding  Effective and regular consultation = Although the role of the Parliament is therefore very limited, consultation must still be effective and regular:  Consultation «Is the means which 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 » (29 October 1980, Roquette Frères, case 138/79)  As we shall see, the lack of consultation is thus a violation of the so-called essential formalities of the act and thus integrates a defect which, pursuant 16 to Article 264TFEU, may lead to its annulment (Article 263TFEU) or its declaration of invalidity (Article 267TFEU)  Special legislative procedures: consultation (2)  Changes to the act and obligation for multiple consultations = Parliament's opinion must be rendered on the act that will then actually be adopted by the Council; further consultation is required if there are changes to the act or if the Commission withdraws its proposal and presents a different one  Time limit for rendering the opinion = there is no explicit time limit for issuing the opinion, but a general principle of EU law precludes Parliament from postponing this indefinitely, as it must do so within a reasonable time (see Parliament v. Council, case C-65/93)  the principle of loyal cooperation? 17  Special legislative procedures: approval  Summary = act cannot be adopted by the Council in case of absent or unfavorable opinion of Parliament.  Veto power (⍯ from consultation) = Parliament can “block" a legislative project approved by the Council  No amendment of the act (⍯ from ordinary legislative procedure) = Parliament and Council have unequal powers;  Impossibility for Parliament to actively participate in the preparation of the act, its role being limited to a sort of “post-drafting” scrutiny (for an example, in the area of Union citizenship, and in particular the “completion” of the rights granted to the EU citizens by the EU clientship as set out in Art. 20.2 TFEU, see Art. 25 TFEU). 18  Non legislative procedures  This notion includes a wide and heterogeneous range of procedures, the contents of which are determined from time to time by the Treaties.  The distinguishing feature is that not all three political institutions are involved; rather, as a rule, non- legislative acts are adopted by one institution acting alone, and in particular by the Council or by the Commission  For example, non-legislative procedures are those for the adoption of:  acts of the European Council (adopted, among other things, to elect its President or to establish the list of Council formations and which, by definition, are never legislative in nature)  the regulations and directives adopted by the Council in the field of competition and aid to states  acts adopted in the area of CFSP  international agreements (see Article 218 TFEU)  acts establishing enhanced cooperation 19  Delegated and/or implementing acts of the Commission (so-called second-degree acts)  Delegated acts (article 290 TFEU)  The Council and Parliament when adopting a legislative act (a “primary” or “main” act, because it contains the delegation) may delegate to the Commission the power to issue delegated acts  Delegated acts are acts of general application that supplement or amend certain non-essential elements of a legislative act, within the limits of the delegation conferred on the Commission and, thus, in compliance with the objectives, the content, the duration and the scope of the delegation of power contained in the legislative act.  The act of delegation must, therefore, indicate (i) the objectives, (ii) the content, (iii) the scope and (iv) the duration of the delegation itself, with a view to circumscribing the implementing power thus conferred on the Commission.  Delegated acts must always include the word “delegated” in their title. 20  Delegated acts (article 290 TFEU) (2) The Commission's exercise of delegated regulatory powers is subject to:  political control by the Parliament and the Council = the delegating Institutions may include in the primary act their power to revoke the delegation (and set the conditions according to which the delegation can be revoked) and/or establish the cases in which the entry into force of the delegated act adopted by the Commission is prevented (e.g., through objections to be raised within a specified period of time)  Judicial review by the Court of Justice = although they are all part of EU secondary law, from a hierarchical viewpoint, delegated acts are inferior to the “primary” or “main” act, in the sense that delegated acts must respect the limits of the delegation and can be annulled if they do not respect the primary act from which they derive 21  Implementing acts (article 291 TFEU)  Exception to the principle of decentralized application = Under the principle of decentralized application, implementation of EU law is normally the responsibility of the Member States (public administrations and national Courts are the first entities required to apply EU law)  Objective of establishing uniform conditions for implementation = Any binding act of EU law (not only legislative acts) may, however, provide that the adoption of the measures necessary for its implementation may be devolved to the Commission or, in exceptional cases, to the Council (e.g., in CFSP matters), when uniform conditions for implementation are necessary  Scope and limits = As with delegated acts, the conferral of implementing powers to the Commission must be done directly by the binding act (including, however, non- legislative) whose implementation is at issue, 22 which must also indicate how the power in question has to be exercised  Implementing acts (article 291 TFEU)  Control = Article 291(3) TFEU provides for the adoption (by ordinary legislative procedure) of appropriate regulations designed to establish in advance the rules and principles concerning the manner in which the Member States may exercise control over the Commission's actions in the context of implementing powers  "Comitology" regulation = in implementation of this Treaty’s disposition, Regulation 182/2011 (repealing and replacing the previous Decision 1999/468/EC) was adopted, under which control by Member States over the Commission's issuance of implementing measures was carried out by means of compulsory consultation of a Committee composed of representatives of the Member States, according to distinct procedures depending on the role attributed to that Committee and sometimes also to the Council and the European Parliament.  There were four procedures known as (i) the advisory committee, (ii) the management committee, (iii) the regulatory committee, and23(iv) the regulatory procedure with scrutiny.  Implementing acts (article 291 TFEU) (2)  Today there are only two procedures, the examination procedure and the advisory procedure (the choice depends on the basic act)  advisory procedure = general application; the Commission decides on the adoption of the act, taking the utmost account of the conclusions reached in the debates held in the Committee.  examination procedure = the Commission may adopt an implementing act only if the Committee delivers a positive opinion. In the event of a negative opinion, the Commission may propose an amended version of the draft act within two months, or it may refer the matter to the appeal committee, in which case a positive opinion of the appeal committee is required.  The examination procedure applies only in identified cases = acts of general scope; concerning programs with substantive implications; concerning the common agricultural policy and the common fisheries policy; concerning the environment, security, or protection of the health or safety of persons, animals, or plants; concerning the common commercial policy; and concerning taxation. 24  Thank you! - questions? AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 25