Lecture - Legislative Procedures (AB) PDF

18 March 2024 LEGISLATIVE PROCEDURES Alexandrah Bakker  Agenda 1. Legislative Procedures 1. Ordinary Legislative Procedure 2. Special Legislative Procedures...

18 March 2024 LEGISLATIVE PROCEDURES Alexandrah Bakker  Agenda 1. Legislative Procedures 1. Ordinary Legislative Procedure 2. Special Legislative Procedures 2. Other Decision-Making Methods 1. Enhanced Cooperation 2. Open Method of Coordination 3. Food for thought: Is the EU democratic? 2 Legislative Procedures  1 I. LEGISLATIVE PROCEDURES This Photo by Unknown Author is licensed under CC BY-SA  Overview Secondary law Principle of conferral Legislative procedure must be followed Involvement of three institutions (with different degrees of formal influence) 4 Legislative Procedures  Article 289 TFEU 1; “The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission.” 2; “ In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.” 3; “Legal acts adopted by legislative procedure shall constitute legislative acts.” […] 6 Legislative Procedures  1.1 Ordinary Legislative Procedure Article 289 TFEU: 1; “The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission.” […] 7 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.1 History: Pre-Lisbon Over time: increasing role for the EP Treaty of Rome: smallest role to EP (mainly consultation) Single European Act: EP gets input for the first time  “Commission proposes, Council disposes” maxim changes  3 players in the game Most significant increase of power: Maastricht Treaty  Introduced co-decision procedure: prevented a measure being adopted without approval of COU and EP Later Treaty reforms extended subject matter areas of co-decision procedure 8 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.1 History: The Lisbon Treaty Major restructuring of the power of EU Institutions – 2010 EU mindful of the complexity of legislative procedures and their damaging effect on legitimacy  simplification EP becomes much more powerful in the legislative process EP and COU exercise legislative and budgetary functions jointly (Art. 14(1) TEU and Art. 16(1) TEU) Cooperation procedure repealed, now co-decision procedure the ordinary legislative procedure: joint adoption of act by EP and COU 9 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.2 Overview Standard legislative procedure, used for most things The procedure consists of the joint adoption by the EP and the COU of a regulation, directive, decision or proposal from the COMM (Art. 289(1) TFEU) Procedure set out in Art. 294 TFEU – normal method of EU legislation 10 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.2 Overview Principle: COMM has right of initiative HOWEVER -EP (Art. 225 TFEU), COU (Art. 241 TFEU), or a million citizens from a minimum of a quarter of MS (Art. 11(4) TEU) can invite COMM to submit a legislative proposal -COMM is not required to do so, but if it doesn’t it must explain its reasons Other institutions and bodies can initiate OLP in special scenarios e.g. Court of Justice can propose amendments to its Statute e.g. ECB can submit recommendations for the amendment of provisions of the Statute of the European System of Central Banks and of the European Central Bank 11 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.2 Overview EP Own Initiative – Art. 225 TFEU + EP Rules of Procedure outline the steps 1. EP Committee makes clear its intention to put forward an own- initiative report 2. Conference of Presidents gives approval 3. Committee writes report outlining legal basis, desired content of the legislative proposal, budgetary implications (if applicable) 4. Endorsement in plenary 5. Follow up by the Commission (within 3 months) 12 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.2 Overview READING: stage of debate on the bill held by a general body of a legislature Proposal: The The proposal then moves The amended proposal is sent back Third Reading: Commission makes to the Council which will to the Council and to the Commission. Parliament needs to endorse legislative proposals. act by Qualified Majority (that has to deliver an opinion) The the joint text and the Council (Art 294 TFEU) to accept the proposal or Council can approve all = legislation must confirm it as well. If either adopted, or it goes to the next stage. disagree the bill fails can reject it/amend it Stages of the Ordinary Legislative Procedure (Art 294 & 297 TFEU) Art 297- Signing & First Reading: The Commission Second Reading: Parliament has Conciliation Stage: Committee Publication; proposal goes to the Parliament three choices- can approve is delegated to draft a joint text to Signed by Presidents of (committee). The Parliament will act Councils position, reject it or can try to create a text that both the Council and the propose amendments to the Parliament and Council agree Parliament and published by a majority of votes cast. Councils amendments. with. in the Official Journal. Possibility of the use of trilogues at this stage. 11 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.3 Stages Source: Overview | Ordinary legislative procedure | Ordinary Legislative Procedure | European Parliament (europa.eu) 12 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.3 Stages 15 Legislative Procedures Overview | Ordinary legislative procedure | Ordinary Legislative Procedure | European Parliament (europa.eu)  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.3 Stages 16 Legislative Procedures Overview | Ordinary legislative procedure | Ordinary Legislative Procedure | European Parliament (europa.eu)  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.4 Power Dynamics EP has functional veto / co-decision power under Art. 294 EP Amendments - modifying COMM proposal but rarely significantly altering- instead significant discussion beforehand and during the process COMM also has significant powers under Art. 294 procedure: can withdraw and submit modified version, but this is not a veto power - would be contrary to principle of conferral/institutional balance Institutional checks and consultation avoids vetoes and rejections 17 Legislative Procedures  1.1 ORDINARY LEGISLATIVE PROCEDURE 1.1.4 Power Dynamics 18 Legislative Procedures  1.2 SPECIAL LEGISLATIVE PROCEDURES Article 289 TFEU: […] 2; “ In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.” […] 19 Legislative Procedures  1.2 SPECIAL LEGISLATIVE PROCEDURES - Applies in specific cases provided by Treaties - COU adopts legislation initiated by COMM - EP consents or EP must be consulted 20 Legislative Procedures  1.2. SPECIAL LEGISLATIVE PROCEDURE 1.2.1 Consent EP rejects or accepts proposal; but cannot make amendments. Sensitive issues, eg: Additions to citizens’ rights Establishment of a European Public Prosecutor Aspects of EU finances Creation of a uniform method of electing MEPs 21 Legislative Procedures  1.2 SPECIAL LEGISLATIVE PROCEDURE 1.2.1 Consent Rejection by EP = veto of proposal 24 Legislative Procedures Source: The Special Legislative Procedures: Consent - European Studies Hub (port.ac.uk)  1.2 SPECIAL LEGISLATIVE PROCEDURE 1.2.2 – Consultation Special legislative procedure may stipulate: EP consultation: limited number of policy areas, eg. -Internal market exemptions -competition law -some financial matters -some intellectual property -some administrative issues 23 Legislative Procedures  1.2 SPECIAL LEGISLATIVE PROCEDURE –1.2.2 Consultation COU must wait for EP’s position. If it doesn’t, the measure can be annulled. EP can approve, reject, or suggest amendments to a proposal COU is not bound by the EP’s position but must consult it. 24 Legislative Procedures  1.2 SPECIAL LEGISLATIVE PROCEDURE –1.2.2 Consultation Source: The Special Legislative Procedures: Consultation - European Studies Hub (port.ac.uk) 25 Legislative Procedures  BREAK 25 Legislative Procedures  2 II. OTHER DECISION-MAKING PROCEDURES  2. OTHER DECISION-MAKING METHODS So far, we have been operating on the assumption that all 27 MSs are involved in the decision-making process. There are other methods that allow MSs to make decisions while: -Retaining creativity and flexibility -Avoiding non-cooperative MSs -Operating within the EU framework 28 Legislative Procedures  2.1 ENHANCED COOPERATION (Art. 20 TEU) A last resort when the EU as a whole cannot obtain certain objectives within a reasonable period of time Objectives in an area of the Union’s non-exclusive competences Must further the objectives of the Union, protect its interests, and reinforce the integration process 29 Legislative Procedures  2.1 ENHANCED COOPERATION (Art. 20 TEU) min. 9 MSs needed to establish enhanced cooperation But must be open to all other MSs to join later on if they wish (Art. 328 TFEU) MSs get to make use of the EU’s institutional framework/adopt legislative acts 30 Legislative Procedures  2.1 ENHANCED COOPERATION MSs intending to establish enhanced cooperation shall address a request to the COMM, which may submit a proposal to the COU to that effect. Authorization shall be granted by the COU, acting by a QM on a proposal from the COMM and after consulting the EP. Following this final discussion, the matter is referred back to the COU, which may act by the majority provided for in the Treaties. (Art. 329TFEU) 31 Legislative Procedures  2.1 ENHANCED COOPERATION All members of the COU may participate in its deliberations, but only members of the COU representing the MSs participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 330 TFEU. (Art. 20(3) TEU) Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union. (Art. 20(4) TEU) 32 Legislative Procedures  2.1 ENHANCED COOPERATION Examples of enhanced cooperation: Schengen acquis Applicable law to divorce for trans-national couples (Rome III Regulation) Establishment of the European Public Prosecutor’s Office 33 Legislative Procedures  2.2 OPEN METHOD OF COORDINATION Created in the ‘90s in the context of a power struggle between the EU and MSs Allows MSs to coordinate policies and work towards a common goal in areas of MS competence (e.g. employment, education, youth and vocational training) ‘Soft law’: intergovernmental method w/o binding EU legislation where MSs evaluate each other, Commission assists with surveillance 34 Legislative Procedures  2.2 OPEN METHOD OF COORDINATION The OMC is principally based on:  jointly identifying and defining objectives to be achieved (adopted by the Council);  jointly established measuring instruments (statistics, indicators, guidelines);  benchmarking, i.e. comparison of EU countries' performance and the exchange of best practices (monitored by the Commission). 35 Legislative Procedures  2.2 OPEN METHOD OF COORDINATION Source: Katja Biedenkopf: EU Decision making and the OLP 36 Legislative Procedures  3 III. Is the EU Democratic?  3. Is the EU Democratic? Successful balance between governments and elected Successful balance representatives? Checks and between executive, balances? legislature, and judiciary? 38 Legislative Procedures