E.U.

Law_Course 7_Legislative procedure

Introduction
The European Union Law is divided into primary and secondary legislation. The treaties (primary
legislation) are the rules that underpin the Unions actions.
The secondary legislation, which includes regulations, directives and decisions derive from the
principles and objectives established by the treaties.
The standard procedure in making EU decisions is known under the name of ordinary legislative
procedure (formerly codecision). This means that the European Parliament, whose members are
elected by direct vote, has to approve the EU legislation together with the Council (representing the
governments of the 28 member states). The commission develops and implements the European
legislation.
The Lisbon Treaty has expended the political fields number to which the ordinary legislative procedure
applies. Also, the European Parliament can easily block a legislative proposal if it does not agree with
the position taken by the Council.
The Lisbon Treaty aims to enhance the European Union (EU) capacity to take decisions and to act,
while ensuring the legitimacy of decisions. Therefore, these reform the EU decision-making process, in
particular by amending the existing legislative procedures.
Article 289 from TFEU does not make any reference other than the two legislative procedures:

the ordinary legislative procedure;

special legislative procedures.

Also, the Lisbon Treaty introduces passerelle clauses. These clauses allow, in certain conditions, the
generalization of the ordinary legislative procedure to fields that initially were outside its application
area.
Decision making is central to the effective functioning of the European Union. Decisions made by EUs
institutions may relate to the implementation of a policy, such as enlargement of the EU, or the
adoption of a trade agreement with other states, or they may be part of a number of different
legislative programs.
The type of process will be determined by the subject matter of the decision, as interpreted by
theEuropean Commission, which will then choose the appropriate legislative base in the Treaties. That

choice will determine what institutions and other bodies will be involved in the process and the voting
system used in the Council and Parliament
Legislative proposals
Legislative proposals may result from the implementation of a wide program of action, such as that
laid down in the plans for the Single European Market, or the Social Chapter, or in response to
particular circumstances calling for specific legislation.
The appropriate Directorate-General, assisted by one of the Commissions advisory committees, will
prepare the first draft, which will initially be approved by the appropriate Commissioner holding the
relevant portfolio. The views of these advisory committees, which will contain representatives of
industrial, commercial and social interests in Member States, are not in any sense binding on the
Commission. The proposal will then be considered by the Commission, voting as a collegiate body.
Legislative base
Before considering formulating a draft proposal, the Commission must ensure it has the necessary
power, i.e. it must find a legislative base within the relevant Treaty. Commission was empowered to
propose legislation in relation to the free movement of workers. The extent of this power is set out in
TFEU and must not be exceeded, i.e. The Council shall issue directives or make regulations setting out
the measures required to bring about freedom of movement for workers. If it is exceeded, the
resulting instrument may be struck down by the Court of Justice, as being ultra vires; i.e. in excess of
power.
Legislative Procedures
ORDINARY LEGISLATIVE PROCEDURE
The ordinary legislative procedure replaces the previous codecision procedure. This procedure is
more legitimate in democratic terms. It involves the European Parliament intervention as co-legislator
together with the Council. In time, it became, in addition, the most used legislative procedure.
Therefore, the Lisbon Treaty establishes this trend by changing its name and setting it as common law
procedure. Also, in accordance with previous treaties, the Lisbon Treaty extends the ordinary
legislative procedure to new political fields (see file the extension of the vote with qualified majority
and of ordinary legislative procedure).
The application ways for the ordinary legislative procedure are identical to the previous codecision
procedure. These are detailed in article 294 in TFUE. The Council and the Parliament are equals. The
two institutions adopt the legislative acts at first or second reading. If after the second reading one of
the two institutions has not yet reached an agreement, a conciliation committee will be summoned.
In addition, the voting rule within the ordinary legislative procedure is the qualified majority. To
facilitate decision making and to strengthen the procedure effectiveness, the Lisbon Treaty has
redefined the qualified majority (see file European Union Council).

The codecision procedure was introduced by the Maastricht Treaty on European Union (1992) and was
extended and made more efficient by the Amsterdam Treaty (1999). By the entering into force of the
Lisbon Treaty on 1 December 2009, the ordinary legislative procedure has become the main legislative
procedure of the EU decision-making system.
The standard EU decision making is known as codecision. This means that the European Parliament
(organization representing the European citizens and whose members are elected by direct vote) must
approve the EU legislation together with the Council (the organization representing the governments
of the 27 member states).
EU legislation making
Before proposing new legislative initiatives, the Commission evaluates the potential economic, social
and environmental consequences that they might have. Therefore, the Commission makes impact
appraisals that present the advantages and disadvantages of various policy options.
Moreover, the Commission consults the interested parties such as non governmental organizations,
local authorities, industry and civil society representatives. The expert groups are invited to give their
opinions on the relevant technical aspects. Thus, the Commission ensures that the legislative
proposals meet the needs of those affected and avoids unnecessary bureaucratic procedures.
The citizens and the organizations can participate to the consultation procedure through Public
Consultations website.
The national parliaments can formally express their cautions if they consider that a problem can be
better solved nationally than in the EU.
Review and approval
The European Parliament and the Council review the proposals forwarded by the Commission and
propose amendments. If the two institutions cannot agree on the amendments, there will be a second
reading.
Within this, the Parliament and the Council can propose amendments again. The Parliament has the
power to block the legislative proposal if it does not reach an agreement with the Council.
If the amendments are accepted by both institutions, the legislation draft can be adopted. Otherwise,
a conciliation committee meets and tries to find a solution. Both the Council and the Parliament can
block the legislative proposal in the second reading.
The European Parliament sessions and a part of the Councils session can be viewed online.

The ordinary legislative procedure thus gives the same importance to the EU Parliament and
Council in a wide field range (eg. economic governance, immigration, energy, transport, environment
and consumer protection). Most European laws are jointly adopted by European Parliament and
Council.
The Commission sends its proposal to Parliament and Council.

These institutions consider and discuss it in two successive readings.

If they do not reach an agreement after the second reading, the proposal is submitted to a

Conciliation Committee consisting of an equal number of the Council and of the Parliament
representatives.
The Committee representatives also attend the Conciliation Committee meetings and

participate to discussions.
Once the Committee reaches an agreement, the text is sent to the Parliament and the Council

for a third reading, so that, in the end, it can be adopted as a piece of legislation.
The final agreement of the two institutions is essential in adopting the text.
Even if the Conciliation Committee reaches an agreement on a joint project, the Parliament
may reject the proposed law with a majority of votes.

SPECIAL LEGISLATIVE PROCEDURES

Special legislative procedures replace previous consultation, cooperation and assent procedure.
The purpose is to simplify the EU decision-making process, increasing its clarity and effectiveness. As
indicated by their name, these procedures depart from the ordinary legislative procedure and
therefore are some exceptions.
Within the legal special procedures, the EU Council is, in practice, the only legislator. The European
Parliament only participates at this procedure. Its role is limited to such consultation or approval, as
appropriate.
Unlike the ordinary legislative procedure, TFUE does not precisely describe the special legislative
procedures. Their implementation ways will be defined by case, by articles of the EU Treaty and the
TFUE which require their application.
PASSERELLE CLAUSES
The Lisbon Treaty introduced the passerelle clauses, in order to apply the ordinary legislative
procedure to fields for which the treaties required the special legislative procedure. In addition, these
clauses also allow the vote with qualified majority for acts that need to be adopted unanimously.
There are two types of passerelle clauses:

general passerelle clause, applied to all European policies; the activation of this clause must be

authorized by a European Council decision, acting unanimously (see file treaty revision);
passerelle clauses specific to certain European policies.

Specific passerelle clauses have a few procedural particularities compared with the general passerelle
clause. As an example, national parliaments generally have no right to object, which is recognized by
the general clause. In other cases, the use of certain specific clauses may be authorized by a Council

decision and not by a European Council decision, as in the case of the general clause. Therefore, the
implementation methods of specific clauses differ from case to case and are described in treaty
articles regarding their application.
There are six specific passerelle clauses that apply:
multiannual financial framework (article 312 of the TFEU);
common foreign and security policies (article 31 of TFEU);
judicial cooperation in family law (art. 81 of TFEU). This is the only specific clause for which

the national parliaments retain the right to object.

enhanced cooperation forms in fields that submit to unanimous vote or a special legislative

procedure (article 333 of TFEU);

the social field (article 153 of TFEU);
environment (article 192 of TFEU).

Double majority vote - from october 2014

In 2014, a new voting method will be introduced: double majority vote. The legislative propositions
will be adopted by the Council by a vote expressing not only the majority of the EU member states
(55%), but the one of the EU population also (65%). This type of vote will reflect the double
legitimacy of the EU a union of people and nations, at the same time and will lead to consolidating
the transparency and efficiency of the law-making. It will be completed by a new mechanism, similar
to the Ioannina compromise, which will allow a small number of member states (close to the
blocking majority) to manifest their opposition towards a decision. In this kind of situation, the Council
will have to do all it possibly can to obtain, in a reasonable time range, a satisfying solution for both
parts.