Law-Making in the EU

Law-Making in the EU

Law-Making in the EU
 Need to understand the different types of legislative output.
 Secondary legislation:
 Primary legislation is the Treaties (made by the Member States, and a
political process).
 Art 288 TFEU – sources of secondary legislation.
 ‘To exercise the Union’s competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions…’.

Legally Binding Secondary Measures
 Regulations.
 General application.
 Applies to all.
 Binding in its entirety.
 Cannot opt-out.
 Need to respect the whole regulation.
 Directly applicable in all Member States.
 Member States do not need to do anything to implement them or
incorporate them.
 Apply directly domestically.
 Regulation applies immediately after it comes into force, without
individual implementation by the Member States’ government.
 Directives.
 Binding as to result on Member States to which it is addressed.
 Do not bind in their entirety.
 Bind Member States as to their results only.
 Up to Member States how these are implemented domestically.
 Leaves to the Member States the choice of form and methods by deadline.
 Not directly applicable.
 Need to be implemented.
 Decisions.
 Binding in its entirety on those to whom it is addressed.
 No general application.
 Applied to the precise person or business they are addressed to.

Non-Legally Binding Measures
 Recommendations and opinions.
 Of minor importance.
 No legally binding force.
 Sit alongside resolutions, declarations, action programmes, plans,
communications and guidelines from the Commission.
 No legal sanction.
 Organise relations between the institutions.
 Commit EU institutions to respect certain rules/values.
 Set out programmes for legislation.

, New Forms of Governance – ‘Soft Law’
 Member States’ objections to ‘hard law’ (regulations and directives), and a
preference for non-binding ‘soft law’.
 Open Method of Co-ordination (OMC):
 Recognised as working method since 2000 and applied to
employment strategy and various social policies – e.g. parental leave
directive.
 Informal, sharing (good) practices, consensus, guidelines for common action
etc.
 Development of convergence by learning from others’ experiences.
 But – problems of accountability, predictability, implementation.

Legislative Processes
 There is more than one EU decision-making/legislative procedure.
 Art 289 TFEU highlights these.
 The Ordinary Legislative Procedure (OLP) (used to be called ‘co-decision’) is now the
default system.
 The most democratically, legitimate law-making procedure, bringing together
both the Council, representing Member States interests, and the Parliament,
representing mostly individual citizens’ interests.
 Other ‘special procedures’ (i.e. consultation and consent) still exist.
 Consultation procedure.
 Consent procedure.

Why Do the Different Processes Matter?
 Which institutions participate (Parliament, Council, Commission) and what type of
vote (Unanimity/QMV) is required.
 Different procedures give different institutions a different role.
 OLP gives the Council and Parliament a stronger role, while the other
procedures give them a weaker role.
 Disputes over which one is the ‘right’ one under the Treaties (institutional ‘turf
wars’).
 The OLP (pre-Lisbon co-decision) was extended by Lisbon to new policy areas.
 Response to the criticism of ‘democratic deficit’ in the EU and entails more
democratic involvement of the European Parliament/peoples of Europe.