Probleem 8 IEL
Learning objecti ves
1. What are the EU legislative procedures and how do they work?
The Commission has the exclusive right of initiative, but it cannot decide alone in the
majority of cases. The absolute majority of legislative procedures require a decision by the
Council, alone or together with the Parliament.
Ordinary legislative procedure
It is easy to determine in which cases the ordinary legislative procedure applies.
The legal basis in the TFEU explicitly provides that the European Parliament and the Council
will adopt certain legislative acts ‘acting in accordance with the ordinary legislative procedure’.
The procedure is set out in art. 294 TFEU:
- Starts with a proposal from the Commission that is submitted to both the Council and
the European Parliament.
- First-reading; Parliament takes the lead and the Council makes a decision on the basis
of the Parliament’s position.
- If the Council agrees with the Parliament, the act is adopted in accordance with the
Parliament’s position.
- Most cases: Council disagrees with Parliament and adopts its own position at first
reading.
- The Council’s position is communicated to the European Parliament.
- Second reading: Parliament has three months to approve this position or refrain from
adopting a decision.
- If Parliament approves, this should be in accordance with the Council’s position. It can
also amend of reject the Council’s position.
o If it rejects: the act is deemed to not have been adopted.
- If the Parliament amends the Council’s position, the ball is returned to the Council
and Commission:
o Commission advises the Council on the amendments
o If the Council subsequently approves all the amendments, the act is deemed
to have been adopted.
o If the Council does not approve all the amendments, the President of the
Council and the President of the EP convene a meeting of the Conciliation
Committee.
- In the Conciliation Committee, representatives of the Council and EP try to reach a
compromise. The Commission serves as a mediator and has no longer the same level
of control over its proposal:
o During these negotiations the amendment of the Commission proposal is no
longer dependent on an unanimity decision of the Council.
- If within six weeks of being convened, the Conciliation Committee cannot agree on a
joint draft text, the act is deemed not to have been adopted. If the Committee is able
to agree on such a text, the third reading commences.
- Third reading: the Council and EP both have six weeks to adopt the act in accordance
with the joint draft text.
o The Council must adopt this decision by qualified majority
o The Parliament must approve the joint draft text by a majority of votes cast.
, Side notes:
The EP’s position in the ordinary legislative procedure is not entirely equal to that of the
Council:
- Council is not bound by the time-limits in the first and second readings. So an inaction
of the Council does noy result in the proposal being adopted in accordance with the
EP’s position.
- It is harder for the EP to disagree with the Council. The EP needs a majority to
disagree. But the TFEU does not set explicit voting requirement for approving.
Special legislative procedures
Special legislative procedures are identified in the relevant legal basis.
In general, they tend to apply in areas of considerable political sensitivity.
The special legislative procedures regulate decision-making by the Council, usually following
consultation of the European Parliament. The Council has to wait for the parliament’s
opinion or risk an action for annulment.
The TFEU does not establish a binding time-limit for delivering this opinion. So the EP has the
ability to delay the adoption of unwelcome decisions in the Council and to use this ability to
wield more influence over decision-making in the Council than it would be expected to have
purely on the basis of its rights to be consulted.
BUT Art. 13(2) TEU: establishes the principle of sincere cooperation between the institutions.
If the EP does it anyway, the Council could initiate an action for failure to act against the
Parliament, which would then have to provide an explanation for its refusal to deliver an
opinion.
Principle of institutional balance: no institution should have a veto in the conduct of the
legislative process.
Art. 48(7) TEU: the European Council acting by unanimity can decide that acts currently
adopted in accordance with the special legislative procedure shall henceforth be adopted in
accordance with the ordinary legislative procedure.
2. What is the preliminary ruling procedure and how does it work?
The preliminary ruling procedure provided for in art. 267 TFEU plays an important role in the
Union’s system of legal protection. It constitutes the linking pin between the courts of the
member states that are required to ensure the full effectiveness of EU law within their
jurisdictions and the Court of Justice and General Court.
Proceedings before national courts can give rise to many questions concerning the
interpretation of the TFEU and the TEU.
In order to ensure the uniform interpretation and application of EU law in all member states,
art. 267 TFEU provides that national courts may – and in certain cases must – make a
reference to the Court of Justice for a preliminary ruling on the application of EU law in the
national legal order.
Learning objecti ves
1. What are the EU legislative procedures and how do they work?
The Commission has the exclusive right of initiative, but it cannot decide alone in the
majority of cases. The absolute majority of legislative procedures require a decision by the
Council, alone or together with the Parliament.
Ordinary legislative procedure
It is easy to determine in which cases the ordinary legislative procedure applies.
The legal basis in the TFEU explicitly provides that the European Parliament and the Council
will adopt certain legislative acts ‘acting in accordance with the ordinary legislative procedure’.
The procedure is set out in art. 294 TFEU:
- Starts with a proposal from the Commission that is submitted to both the Council and
the European Parliament.
- First-reading; Parliament takes the lead and the Council makes a decision on the basis
of the Parliament’s position.
- If the Council agrees with the Parliament, the act is adopted in accordance with the
Parliament’s position.
- Most cases: Council disagrees with Parliament and adopts its own position at first
reading.
- The Council’s position is communicated to the European Parliament.
- Second reading: Parliament has three months to approve this position or refrain from
adopting a decision.
- If Parliament approves, this should be in accordance with the Council’s position. It can
also amend of reject the Council’s position.
o If it rejects: the act is deemed to not have been adopted.
- If the Parliament amends the Council’s position, the ball is returned to the Council
and Commission:
o Commission advises the Council on the amendments
o If the Council subsequently approves all the amendments, the act is deemed
to have been adopted.
o If the Council does not approve all the amendments, the President of the
Council and the President of the EP convene a meeting of the Conciliation
Committee.
- In the Conciliation Committee, representatives of the Council and EP try to reach a
compromise. The Commission serves as a mediator and has no longer the same level
of control over its proposal:
o During these negotiations the amendment of the Commission proposal is no
longer dependent on an unanimity decision of the Council.
- If within six weeks of being convened, the Conciliation Committee cannot agree on a
joint draft text, the act is deemed not to have been adopted. If the Committee is able
to agree on such a text, the third reading commences.
- Third reading: the Council and EP both have six weeks to adopt the act in accordance
with the joint draft text.
o The Council must adopt this decision by qualified majority
o The Parliament must approve the joint draft text by a majority of votes cast.
, Side notes:
The EP’s position in the ordinary legislative procedure is not entirely equal to that of the
Council:
- Council is not bound by the time-limits in the first and second readings. So an inaction
of the Council does noy result in the proposal being adopted in accordance with the
EP’s position.
- It is harder for the EP to disagree with the Council. The EP needs a majority to
disagree. But the TFEU does not set explicit voting requirement for approving.
Special legislative procedures
Special legislative procedures are identified in the relevant legal basis.
In general, they tend to apply in areas of considerable political sensitivity.
The special legislative procedures regulate decision-making by the Council, usually following
consultation of the European Parliament. The Council has to wait for the parliament’s
opinion or risk an action for annulment.
The TFEU does not establish a binding time-limit for delivering this opinion. So the EP has the
ability to delay the adoption of unwelcome decisions in the Council and to use this ability to
wield more influence over decision-making in the Council than it would be expected to have
purely on the basis of its rights to be consulted.
BUT Art. 13(2) TEU: establishes the principle of sincere cooperation between the institutions.
If the EP does it anyway, the Council could initiate an action for failure to act against the
Parliament, which would then have to provide an explanation for its refusal to deliver an
opinion.
Principle of institutional balance: no institution should have a veto in the conduct of the
legislative process.
Art. 48(7) TEU: the European Council acting by unanimity can decide that acts currently
adopted in accordance with the special legislative procedure shall henceforth be adopted in
accordance with the ordinary legislative procedure.
2. What is the preliminary ruling procedure and how does it work?
The preliminary ruling procedure provided for in art. 267 TFEU plays an important role in the
Union’s system of legal protection. It constitutes the linking pin between the courts of the
member states that are required to ensure the full effectiveness of EU law within their
jurisdictions and the Court of Justice and General Court.
Proceedings before national courts can give rise to many questions concerning the
interpretation of the TFEU and the TEU.
In order to ensure the uniform interpretation and application of EU law in all member states,
art. 267 TFEU provides that national courts may – and in certain cases must – make a
reference to the Court of Justice for a preliminary ruling on the application of EU law in the
national legal order.
