Division of work
Only very rarely is the adoption of Community legislation the task of one sole institution. Thus the Commission sometimes has legislative powers in its own right (above, p 31). However, in the overwhelming majority of cases, Community legislation is the result of interaction and dialogue between two or more institutions. The following division of labour will then apply:4
• the Commission has the right of legislative initiative, and will propose the legislation;
• the Council is the organ having the ultimate decision-making power, except in those cases where its will can be frustrated by the European Parliament (below, p 61 et seq);
• the European Parliament has a role which varies according to the legislative procedure adopted, and which can range from mere consultation to a right of veto;
• other organs such as the ESC and the Committee of the Regions may have a consultative function.
This division of work is reflected in the various legislative procedures. The latter have increased considerably, both in number and in complexity, during the past decade. In the present state of Community law, it is necessary to distinguish between (a) the traditional procedure, (b) the consultation procedure, (c) the conciliation procedure, (d) the co-operation procedure, (e) the co-decision procedure, and (f) the assent procedure. These, as well as the procedure involving the Commission acting alone, are examined in turn below.
At this stage, it is necessary to point to a formal requirement which applies regardless of the procedure used. Under Article 253 (ex Art 190) EC Treaty, all Community legislation must state the reasons on which it is based, and must refer to any proposals or opinions which are obligatory under the Treaty. Here again, the stamp of the civil law is in evidence. In the countries which apply this system, the duty to give reason for any decision – be it legislative, administrative or judicial – is woven deeply into the fabric of the law and of the fundamental principles underlying it.
The traditional procedure
As its name indicates, this was the procedure originally used for virtually all Community legislation prior to the changes wrought by the SEA and the TEU.
Although its scope has been considerably reduced by these changes, there remain a number of areas in which it continues to apply, such as the movement of capital to or from third countries (Article 57 (ex Art 73c) EC Treaty), and the autonomous alterations or suspensions of duties charged under the common customs tariff (Article 26 (ex Art 28) EC Treaty). The traditional procedure involves the Council and the Commission acting alone, without needing to consult the European Parliament or any of the other institutions. This does not mean, however, that these institutions could not be consulted if the Commission or Council saw fit to do so.
Under the traditional procedure, it is the Commission which takes the initiative and the Council which takes the ultimate measure. For ease of reference, this process is often known by the formula ‘the Commission proposes, the Council disposes’. However, the European Parliament can also play its part in taking the legislative initiative. Under Article 192 (ex Art 138b) EC Treaty, which was inserted by the TEU, the Parliament may request the Commission to make any suitable proposals on issues on which it considers that a Community act is required in order to implement the Treaty. For this purpose, the Parliament must act by a majority of its members. It must also be pointed out that, in the course of time, the ‘purity’ of the Council-Commission dialogue under the traditional procedure has been diluted by the intervention of other bodies and considerations. As has been noted earlier, COREPER now plays an important part in mediating between these two bodies. In addition, the Commission is restricted to a certain extent by the guidelines of the European Council on the measures which are to be adopted. The freedom of these bodies is also limited by financial considerations, since under Article 270 (ex Art 201a) EC Treaty the Commission must give an assurance that this proposal is capable of being financed within the limits of the Community’s own resources.5
It is under this procedure that the Council’s legislative power is at its highest point. This does not mean, however, that once a proposal from the Commission is placed before it, the Council has unfettered discretion in taking the resulting decision. Under Article 250(1) (ex Art 189a(1)) EC Treaty, any act constituting an amendment to that proposal requires unanimity within the Council. Whilst the proposal is being considered by the Council, the Commission may also at all times alter the terms of its proposal (Article 250(2) (ex Art 189a(2)) EC Treaty).
This gives expression to the role as honest broker which the Commission is required to play at Council meetings, and gives it the necessary flexibility to act in order to salvage that which can be salvaged from a proposal rather than see it abandoned or voted down altogether.
5 Serie Manuali Giuridici, op cit, fn 4, p 161.
The consultation procedure
Here, the Council is still the sovereign decision-making power, but can only adopt (or fail to adopt) the proposed act after having consulted the European Parliament. The scope of this procedure has also been reduced by the SEA, the TEU and the Amsterdam Treaty, but remains applicable to some important areas of Community policy, including European citizenship (Article 22 (ex Art 8e) EC Treaty), industrial policy (Article 157 (ex Art 130) EC Treaty), the right of establishment (Article 44(1) (ex Art 54(1)) EC Treaty), etc. The cynical mind might be disposed to make light of this consultation, since there is no obligation on the part of the Council to follow any advice proffered. Yet there are certain safeguards built into the system which protect this consultation exercise against tokenism. First, as has been mentioned earlier, consultation of the Parliament is a formal requirement which, if infringed, will lead to the annulment of the resulting act.6 Second, it is not sufficient for the Council to have invited the opinion of the Parliament; that opinion must also have been issued. Third, the opinion given by the Parliament must substantially reflect the act subsequently adopted. Therefore the Parliament must be reconsulted if major changes are made to the proposal between the time when the Parliament’s opinion is issued and that at which the Council is about to adopt the act.7
The conciliation procedure
This is a little-used procedure, introduced as a result of the Joint Declaration of the Commission, the Council and the Parliament of 4 March 1975.8It is a variant on the consultation procedure, and can only be used where (a) the legislative measure is of general application, (b) it has considerable financial implications, and (c) it comes within the scope of non-compulsory Community expenditure.
As Beaumont and Weatherill point out,9 this procedure is rather ineffective because Parliament is in an extremely weak bargaining position, which accounts for its scant use.
The co-operation procedure
This procedure was introduced by the SEA, and for the first time gave the Parliament a major influence in the decision-making process. When first introduced, it was intended as a means of processing legislation on the internal market in accordance with a reasonably strict timetable, thus enabling the 1992 deadline to be achieved more easily. The adoption of the TEU, however, completely changed the focus of the co-operation procedure. Most of the areas hitherto covered by the co-operation procedure were subjected to a new
6 Case 138/79, Roquette Frères v Council [1980] ECR 3333 at 3361.
7 Case C-65/90, European Parliament v Council [1992] ECR I-4593.
8 OJ 1975 C 89.
9 Weatherill and Beaumont, p 127.
legislative machinery, known as the co-decision procedure (Article 251 (ex Art 189b) EC Treaty – below, p 61 et seq). The areas to which the co-operation procedure continued to apply were supplemented by a number of measures which previously had only required the consultation procedure. In addition, the co-operation procedure was moved from Article 149(2) to Article 252 (ex Art 189c) EC Treaty.
As a result, it can be maintained that the TEU has somewhat devalued the co-operation procedure. The Amsterdam Treaty has reduced its scope even further by upgrading some of the main areas to which it applied under the TEU to the co-decision procedure. The co-operation procedure is somewhat complex, and takes place over the following stages:
(a) The Commission puts forward its proposal.
(b) The European Parliament issues its opinion. This is the so called ‘first reading’.
(c) The Council adopts a common position, acting by a qualified majority.
(d) The common position is communicated to the Parliament. At the same time, the Council and Commission inform the Parliament (i) of the full reasons which prompted the Council to adopt this common position, and (ii) of the Commission’s position.
(e) The communication of this common position triggers off a three month period. During this period, the following possibilities arise:
• The Parliament approves the common position or fails to take a decision: the Council adopts the act in accordance with the common position.
• The Parliament proposes, by an absolute majority, one or more amendments to the common position.
• The Parliament rejects the common position by the same majority.
(f) The outcome of these proceedings is communicated to the Council. If the Parliament has rejected the common position, unanimity is required for the Council to act on a second reading. If amendments have been proposed, the Commission has one month in which to re-examine the proposal on the basis of which the Council adopted its common position. In so doing, the Commission must take account of the amendments proposed by the Parliament.
(g) The Commission communicates to the Council both the re-examined proposal and such amendments put forward by the Parliament as it has not accepted, on which it must express an opinion. The Council may adopt these amendments unanimously.
(h) The Council adopts the proposal as re-examined by the Commission. It does so by a qualified majority, but unanimity is required for the Council to amend the proposal as re-examined by the Commission.
(i) If the Parliament has proposed amendments to the common position or rejected it, the Council is required to act within a period of three months. If no decision is taken within that period, the Commission proposal is deemed not to have been adopted.
As has been mentioned before, the deadlines in question are all quite strict.
However, the three month periods referred to above are capable of being extended by a maximum of one month, if both the Council and the Parliament agree to such an extension. By being in a position to reject the Council’s common position, the decision-making influence of the Parliament has been considerably enhanced. However, experience thus far shows that the Parliament has not abused this power, and has only rejected the common position on a limited number of occasions. What it has done, however, is to table a large number of amendments, both at the first reading and at the second reading stage.10
The co-decision (or conciliation and veto) procedure
This was a completely new procedure which was introduced by the TEU, and inserted in the EC Treaty under Article 251 (ex Art 189b). As has been mentioned before, it covers most of the areas originally covered by the co-operation procedure: the measures adopted under Article 95 (ex Art 100a) (harmonisation assisting the completion of internal market), Article 47 (ex Art 57) (mutual recognition of diplomas), Article 44(2) (ex Art 54(2)) (measures implementing the general programme aimed at achieving freedom of establishment), and the free movement of workers (Article 40 (ex Art 49)).
However, it also includes such matters as cultural policy (Article 151 (ex Art 128)), health policy (Article 152 (ex Art 129)) and research and technical development (Article 166 (ex Art 130i)).
The Amsterdam Treaty has increased the scope of this procedure even further, by making it applicable to:
• certain new Treaty provisions as inserted by the Amsterdam Treaty, such as Article 129 of the new Title on Employment (ex Art 5) (incentive measures), Article 141 (ex Art 119) (Social Policy – Equal Opportunities and Treatment), Article 255 (ex Art 191a) (General Principles of Transparency), and Article 280 (ex Art 209a) (countering fraud affecting the financial interests of the Community);
• areas which previously were subject to the co-operation procedure, such as the prohibition of discrimination on grounds of nationality (Article 6), vocational training (Article 150(4) (ex Art 127(4))), ERDF implementation measures (Article 162 (ex Art 130e)), the environment (Article 175(1) (ex Art 130s(1))), and development co-operation; and
10 Craig and de Búrca, 1998, p 133.
• areas such as social security rules for Community immigrant workers (Article 42 (ex Art 51)) and the co-ordination of rules on the taking up and pursuit of activities as self-employed persons (Article 47(2) (ex Art 57(2))), which were previously covered by the consultation procedure. (All articles referred to are those of the EC Treaty.)
The co-decision procedure enhances the legislative power of the Parliament even further than the co-operation procedure. The main difference between these two mechanisms is that the co-decision procedure enables the Parliament, acting by an absolute majority, to veto a measure at the final stage if agreement cannot be reached with the Council through the involvement of the Conciliation Committee. This is a body consisting of an equal number of representatives of the Parliament and the Council. The procedure is conducted over three broad stages, as recently amended and simplified by the Amsterdam Treaty:
First stage
The first stages are similar to those encountered under the co-operation procedure. The Commission submits its proposal to both the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, may do one of three things. If it approves all the amendments contained in the opinion of the Parliament, it may adopt the proposed act thus unamended. Where the Parliament has failed to propose any amendments, the Council may adopt the proposed instrument.
If none of the above options are chosen, it shall adopt a common position which is then communicated to the Parliament. At the same time, the Council informs the Parliament of the reasons which led it to adopt its common position, and the Commission also informs the Parliament fully of its position.
Second stage
Once again, the communication of the common position triggers off a three month period. During this period, a number of possibilities arise:
• The Parliament approves the common position. In this case, the Council definitively adopts the intended act in accordance with the common position.
• The Parliament takes no decision. If that is the case, the Council adopts the act in question in accordance with its common position.
• The Parliament rejects the common position by an absolute majority of its component members. In that case, the proposed act is deemed not to have been adopted.
• The Parliament proposes amendments to the common position. The amended text is then forwarded to the Council and the Commission, which delivers an opinion on these amendments.
If, within three months of the matter having been referred to it, the Council approves all the amendments of the Parliament, the act in question is deemed to have been adopted in the form of the common position thus amended. If the Council does not approve all the amendments, the Council President and the president of the Parliament must call a meeting of the Conciliation Committee, and the second reading is set in motion.
Third stage
The Conciliation Committee is involved at this stage because its task is to reach agreement on a joint text. The Commission takes part in the Committee’s proceedings, acting once again in its ‘honest broker’ capacity. If a joint text is agreed within a period of six weeks, the Parliament and the Council have a further six weeks in which to adopt the act in question in accordance with the joint text. If either institution fails to do so, the act is deemed not to have been adopted. If the Conciliation Committee fails to approve a joint text, the proposed act is deemed not to have been adopted. Here again, the three month and six week periods referred to above may be extended by a maximum of one month and two weeks respectively by joint agreement between the Parliament and the Council.
Assent procedure
This mechanism was introduced by the SEA (Articles 8 and 9). Although narrow in terms of the areas affected by it, this procedure is perhaps the one which gives the European Parliament the most powerful say in decision-making, as it gives the latter infinite powers of delay and total power of rejection.11Under the SEA, the assent procedure was introduced into the former Articles 237 and 238 EC Treaty. The TEU and the Amsterdam Treaty, however, both changed and widened the scope of this procedure to cover such matters as the penalties to be applied in the event of a serious and persistent breach of fundamental rights by a Member State (Article 7 TEU (ex Art Fa TEU)), the procedure for the accession of new Member States (Article 49 TEU (ex Art O TEU)), the functioning of the structural funds (Article 157(1) (ex Art 130d(1))), the establishment of a Cohesion Fund (Article 157(2) (ex Art 130d(2))), the procedure for direct election to the European Parliament (Article 190(3) (ex Art 138(3))), and certain international agreements (Article 300 (ex Art 228(3))) (all Articles referred to are in the EC Treaty).
11 Westlake, 1994, p 95.
The Commission acting as sole legislature
It has already been noted that the Commission is given certain powers under the EC Treaty to act as a legislature in its own right, as is the case, for example, under Article 86(3) (ex Art 90(3)) in relation to the position of public enterprises in EU competition policy. Neither the Treaty nor any other Community legislation lays down any procedures to be followed by the Commission in such cases. However, there is plenty of evidence to show that here too, the Commission consults as widely as possible before enacting the relevant rules.
This has not prevented certain Member States from challenging the validity of such rules.12