Law Making Procedures in EU

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Law Making Procedures in EU

• Ljiljana Biukovic
• Faculty of Law, UBC
• Fall 2007

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Sources of EU Law

• Primary sources Treaties
• traditional international law instruments of
  regulating relations between states signatories
  (TEC, EURATOM, TEU)
• 2. Secondary sources Regulations, Directives,
  Decisions, recommendations and Opinions
  instruments of Community/Union lawmaking
• 3. Other sources General Principles of law
  deriving from the common traditions and
  constitutional rules shared by the MS and from
  international agreements and conventions to which
  all are party, international law and customary
  international law

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EC/EU Competence

• Legislation must be properly based upon a Treaty
  article, that is, must have a proper legal basis
  in the Treaty in order to produce legal effect
• Types of EC/EU competence
• - Internal and external
• - Exclusive and shared
• - Explicit and implied

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Law Making Challenges

• Actors Council, Parliament and Commission
• Legislative process six procedures distinguished
  by the degree of power afforded to the European
  Parliament comitology (delegated legislative
  power)
• Voting QMV or unanimity
• Problems transparency, legitimacy and democratic
  deficit
• Interpretation ECJ
• Supervision over adoption and application ECJ
  and the Commission
• Application national governments, agencies and
  courts
• Enforcement national courts

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Functions of the Commission

• Legislative
• - exclusive right to propose EU legislation
• Executive
• - implements EU policies and program and
  executes the EU budget
• - external relations representation of EU in
  trade policy issues
• Supervisory
• - oversees the application of EU law by the
  Member States (and to bring actions before the
  ECJ against MS for failure to fulfill their
  legal obligations) and
• - oversees policies of the MS

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Functions of the Council of Ministers

• Legislative
• - the main law-making body of the EU (on the
  initiative of the Commission and in co-decision
  with the EP)
• Budgetary
• - adopts the annual EU budged with the EP
• Executive
• - determines ECs internal and external policy
  (CFSP) coordinating actions and policies of the
  MS
• - represents EU in relations with states and
  international organizations and signs
  international treaties on behalf of the EC

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Functions of the European Parliament

• Legislative
• - enacts the EU legislation (on the proposal of
  the Commission and in co-decision with the
  Council)
• Budgetary
• - adopts the EU budget (with the Council)
• Supervisory
• - political control and supervision of the
  Commission
• - political control of the Council in external
  relations by giving assent to all international
  treaties signed by the Council on behalf of the EC

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Legislative Procedures Under the First Pillar

• 1. Commission acting alone (for example, on its
  own initiative under Art. 39(3)(d), or under Art.
  86(3) which gives it power to promulgate
  directives or decisions related to the role of
  public undertakings
• 2. Council and the Commission acting alone and
  may consult the Parliament but does not have to
  (in fact, the Council acts on the proposal from
  the Commission and takes the decision used re
  competition, some aspects of free movement of
  workers and capital, for example)
• 3. Council, Commission and consultation with the
  Parliament (until the SEA the Parliament had only
  a consultative role the Council must wait for
  the Parliaments opinion or the measure may be
  annulled but it is not bound to accept the
  Parliaments opinion). After the ToA a bare
  consultation limited to a few areas such as, for
  example Art. 19 (concerning rights to vote and
  stand in municipal election Art. 22 (reinforcing
  citizenship rights) Art. 89 (state aid) Art. 93
  (harmonization of indirect taxation, Art. 94
  (approximation of laws for the functioning of the
  common market)

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Legislative Procedures - Continued

• Council, Commission and the co-operation
  procedure with the Parliament
• Introduced by SEA in 1986 but limited first by
  ToA (and introduced as Art. 252) and finally by
  ToN only to areas of Economic and Monetary Union,
  that is, Art. 102 and 103)
• the Council acting on a proposal from the
  Commission after obtaining an opinion from the
  Parliament adopts a common position which is then
  communicated to the Parliament. If the Parliament
  rejects the common position by an absolute
  majority then the Council can adopt the act only
  by unanimity. The Parliament may also propose
  amendments by an absolute majority and then the
  Commission has to re-examine the proposal
• What is new here the Parliament gets 2 readings
  and gets to table amendments

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Legislative Procedures - Continued

• Council, Commission and Parliament in Art. 251
  co-decision procedure
• Introduced by Maastricht and modified by ToA and
  TN the Commission proposal is sent both to the
  Council and the Parliament and the Council adopts
  it by QMV if an opinion of the Parliament is
  positive or if the Council adopts amendments
  proposed by the Parliament it the Parliament
  does not take a decision within 3 months it is
  deemed that decision has been adopted
• If the Commission does not accept the amendment
  and the Council does not approve of the
  Parliaments amendment, then the Council could
  adopt it only unanimously if the Council
  disapprove of the amendment the Conciliation
  Committee is to be established to decide on the
  joint text. If the Committee does not approve the
  joint text the legislative proposal is dead
• What is new here the Parliament has 2 readings
  and the Council cannot push the proposal if the
  Parliament rejects it and after a failure to
  reach agreement on a joint text

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Legislative Procedures - Continued

• Council, Commission and the Parliaments assent
• Introduced by SEA for matters such as the EC
  membership and association agreements Council
  acts after obtaining the assent of the Parliament
  but the Parliament has no power to make
  amendments (but has power to delay and reject the
  proposal) after the ToA applicable to Art. 49
  (EU membership) Art 105(6) AND Art. 107(5)
  various aspects of functioning of the ECB and
  Art. 161 (measures related to the economic and
  social cohesion)
• Legislative initiative and the Councils use of
  Art. 208 not really a procedure of enacting of
  legislation but the way of initiating the
  legislative process by requesting from the
  Commission to undertake any studies which the
  Council needs to push for some legislation

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Comitology

• Delegated legislative power from the Council to
  the Commission to enact more specific regulations
  within a particular area such as agriculture and
  competition
• Institutional constrains of delegation of
  power-delegated power has to be approved by a
  committee composed of Member State
  representatives
• There was no express warrant for such committees
  in the original treaty but ECJ upheld the
  legality of the process in Koster, case 25/70
  (1970) ECR 1161
• SEA 1986 modification of Art. 202(3) The Council
  can confer on the Commission, in the acts which
  the Council adopts, powers for the implementation
  of the rules which the Council lays down
• The Council 1987 Comitology Decision established
  principles and rules of the process and the
  committee structure