Making and Applying EU Legislation Slides to support Chapter 18 of The Government and Politics of the European Union, 7th ed., by Neill Nugent

The EU’s legislative procedures Consultation Ordinary (before Lisbon, ‘co-decision’) Consent (before Lisbon, ‘assent’) (The Lisbon Treaty abolished a 4th procedure, ‘cooperation’)

The consultation procedure: What it is and when it is used The Council of Ministers is the sole final decision-maker, but it cannot take a final decision until it has received the opinion of the EP. Policy areas subject to the consultation procedure include: accession to the European Convention on Human Rights social security and social protection of workers citizenship in respect of European elections measures concerning passports and identity cards police cooperation

The consultation procedure: Stage 1 In addition to direct policy implications, a number of matters must first be considered: 1. What is the treaty basis of the proposed legislation? 2. Can the proposal be justified in terms of the subsidiarity and proportionality principles? 3. Can justification be given in terms of environmental impact? 4. What are the probable financial implications for the EU budget?

The consultation procedure: Stage 2 A DG takes the lead in preparing the Commission’s draft. When all directly involved Commission interests have been consulted, and preferably given their approval, the draft is sent to the cabinet of the responsible Commissioner. When the Commissioner is satisfied, the draft goes to the College of Commissioners for approval. If approval is not given, the draft may be referred back for further work.

The consultation procedure: Stage 3 The Commission’s text goes to the EP (and EESC and CoR if appropriate). The relevant EP committee examines the text and makes recommendations to plenary session. In plenary, MEPs may vote on amendments. The Council is the final decision-maker. If the EP’s amendments are not accepted, the EP may exert pressure by not issuing an opinion (but eventually it is legally obliged to issue an opinion.) The Commission is usually sympathetic to EP amendments, the Council less so, but many EP amendments still find their way into legislation.

The consultation procedure: Stage 4 In Council, the proposal is initially referred to a working party of national representatives. They consider how the national interests of countries are impacted, and try to reach an agreement on the text. Then, the proposal is referred to COREPER for consideration of the political implications. The text may be referred back to the working party. All proposals must eventually be formally agreed by the Ministers. If no agreement can be reached, the proposal may be scrapped or referred back to COREPER.

The ordinary legislative procedure: What it is and when it is used It provides for co-decision making by the EP and the Council of Ministers. The great majority of legislation is made by this procedure. Application of the procedure was restricted to 15 treaty under articles at Maastricht. This was extended to 37 at Amsterdam. 7 more were added at Nice, and the 2 core areas of trade and agriculture added at Lisbon.

The ordinary legislative procedure: Stage 1 The Commission publishes its proposal. The Council and EP examine the proposal through their usual mechanisms. Provided other ‘standard’ legislative requirements are met (e.g. consultation with EESC/CoR), the Council and EP may agree to adopt the proposal on its first reading. About 60% of proposals are agreed at this stage (such proposals often deal with technical matters, relations with third countries, or are consolidated texts). If no agreement is reached …

The ordinary legislative procedure: Stage 2 The Council must provide the EP with an explanation of the common position, and the Commission must explain its position. If the EP approves or takes no action on a common position the Council can, within 3 months, adopt it as legislation. About 90% of legislative proposals are agreed by the EP and Council by the end of this second stage. If the EP amends the common position by an absolute majority and the Council cannot accept this …

The ordinary legislative procedure: Stage 3 The contested proposal is referred to a conciliation committee composed of an equal number of reps of the Council and the EP. If they agree on a joint text within 6 weeks the proposal is referred back to the Council (voting by QMV) and the full EP (voting by majority). Virtually all proposals do pass by the end of this stage. When they do not, it is common for the Commission to re-present them in a form that enables them to be approved by the Council and EP.

The consent procedure Proposals have to be approved by the Council and EP. The EP may not make amendments. Used for a number of ‘special’ actions, including accessions of new member states, the contents of financial frameworks, and action when a member state is in breach of the EU’s fundamental principles. Sometimes unanimity in the Council is required, at other times not. Sometimes a majority is required in the EP, at other times an absolute majority. Although the EP cannot make amendments, it can, besides saying ‘no’, intimate what it would agree to.

The need to transpose and apply legislation Directives do not assume legislative force until they have been ‘transposed’ into national law by national authorities. Average transposition rates are consistently above 90%. Denmark, Germany and the UK have the best transposition records. The Court of Auditors has identified serious implementation failings in connection with EU spending, particularly in agriculture. There are a number of reasons why EU law is sometimes poorly applied, including member states being reluctant to implement legislation that could be damaging to national interests (eg with respect to fishing and competition).