E Legislative Process

8/9/2019 E Legislative Process

1/17

www.ovidiuioandumitru.ro

www.ovi-biz.com

The legislative process

The decision-making process

Decision making is central to the effective functioning of the Community. Decisions

made by Community institutions may relate to the implementation of a policy, such as

enlargement of the Community, or the adoption of a trade agreement with other states, or they

may be part of a number of different legislative programmes.

The type of process will be determined by the subject matter of the decision, as

interpreted by the European 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, the voting system used in the Council of Ministers and the extent to

which the Parliamentwill be able to influence the content of the measure and, in some cases,

whether it is approved at all.

The European Parliament does now have the power under Art 192 EC Treaty to suggest

new areas for legislation, but the decision on whether or not to bring forward such legislation

and in what form is for the Commission alone. Apart from a few exceptional situations where

the Council may act on its own initiative (i.e. Arts 113 and 210 EC Treaty), in most cases the EC

Treaty provides that it shall act on a proposal from the Commission.

Dialogue between Commission, Council and Parliament

The virtual monopoly which the Commission enjoys over the legislative process could

cause serious problems. If it submits no proposals, the Council is paralysed and the progress of

the Community comes to a halt, whether in the field of agriculture, transport, commercial policy

or the environment. However, except for a period of relative stagnation during the economic

crisis of the 1970s, the Commission has always been active in promoting the development of theCommunity through a series of legislative programmes.

The programme provides a framework of policy and legislative objectives. The

Commission then brings forward a series of proposals within that programme. Once a proposal

is lodged, a dialogue begins between Commission officials and the representatives of the

Council in COREPER. This will continue until the legislation has passed through all its stages

and it has finally been approved by the Council. Where the legislative process requires

Parliamentary involvement the Commission will similarly open a dialogue with the Parliament.


2/17


www.ovi-biz.com

Legislative proposals

Legislative proposals may result from the implementation of a wide programme of

action, such as that laid down in the plans for the Single European Market, or the Social Chapter

(which was incorporated into the EC Treaty by the ToA), or in response to particular

circumstances calling for specific legislation.

The appropriate Directorate-General, assisted by one of the Commission's 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 on a simple majority basis.

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 Art 40 and must not be exceeded, i.e. 'The Council shall issue directives ormake regulations setting out the measures required to bring about freedom of movement for

workers, as defined in Article 39. 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.

It should be noted that Art 308 EC Treaty (previously 235) provides a general legislative

power, where the Treaty has not otherwise provided the necessary powers, and provided that the

proposal is necessary to attain one of the objectives of the Community. Article 308 provides that

if action by the Community should prove necessary to attain, in the course of the operation of

the common market, one of the objectives of the Community and this Treaty has not provided

the necessary powers, the Council shall, acting unanimously on a proposal from the Commission

and after consulting the European Parliament, take the appropriate measures.

However, it should be noted from this that the Commission proposal must be backed by

all the Member States (excluding any abstentions) because the Council must act unanimously.


3/17


www.ovi-biz.com

Voting procedures

The CommissionDecisions by the Commission on whether or not to adopt a proposal are taken by a

simple majority of the Commissioners. Although the initiative for specific measures will be

taken up by the appropriate Directorate-General, other Commissioners have no power to

delegate approval of the details of that measure to that Commissioner.

The functioning of the Commission is governed by the principle of collegiate

responsibility. The principle of collegiate responsibility is based on the equal participation of

the Commissioners in the adoption of decisions, from which it follows in particular that

decisions should be the subject of collective deliberation and that all the members of the college

of Commissioners should bear collective responsibility at political level for all decisions

adopted.

The European Parliament

Except as otherwise provided in the Treaties, the European Parliament acts by an

absolute majority of the votes cast (Art 198 EC Treaty, Art 111 Euratom Treaty). This is

sometimes referred to as a simple majority, so that abstentions by MEPs within the chamber,

and MEPs not present, are not taken into account.

We have special cases qualified majorityas inArticle 201 (a censure motion against the

Commission) requires a 'two-thirds majority of the votes cast, representing a majority of the

Members of the European Parliament'.

A quorum exists when one third of the current MEPs are present in the Chamber

(Rule 126(2), Rules of Procedure 2002). However, all votes are valid whatever the number of

voters unless the President of the Parliament, acting on a request made by at least 32 MEPs,

ascertains that, at the moment of voting, the quorum is not present. In that case, the vote is

placed on the agenda of the next sitting (Rule 126(3), Rules of Procedure).

The right to voteis apersonal rightand there is no right to vote by proxy (Rule 132).

Although members of the European Council and Commissioners have the right to attend debates

of the European Parliament and to participate in the discussion, they have no right to vote (Art

197 EC Treaty, Art 110 Euratom Treaty).


4/17


www.ovi-biz.com

The Council of Ministers

The Treaties set up three voting methods in the Council:

a) Simple majority;

b) Qualified majority; and

c) Unanimity.

Simple majority

Although Art 205(1) EC Treaty provides that simple majority voting is the system to be

used unless otherwise provided in the Treaty, the Treaty almost invariably provides for some

other system. Under the 'simple majority' voting system, one vote is allocated to each Member

State, and the decision is simply made in favour of the largest number of votes cast. It is largely

used forthe establishment of sub-committees of the Council and for procedural matters.

Qualified majority

Qualified majority voting (QMV) is a system of voting, weighted according to the

population size of the Member State(Art 205(2)).

Acts of the Council shall, following the amendment, require at least 258 votes in

favour, which must be cast by at least a majority of the Member States. If the proposal is notmade by the Commission, then the minimum 258 votes must be cast by at least two-thirds of the

Member States.

A new provision, designed to take into account the population of the Member States,

provides that when a decision is to be adopted by the Council, acting by a qualified majority, a

Member State can request verification that the qualified majority comprises at least 62 per

cent of the total population of the European Union. If this condition is shown not to have been

met, then the decision in question shall not be adopted.

Annex II of the Protocol provides for the weighting of votes in an enlarged Union of 27

Member States: 29 - France, Germany, Italy, UK 27 - Poland, Spain 14 - Romania 13 -

Netherlands 12 - Belgium, Czech Republic, Greece, Hungary, Portugal 10 - Austria, Bulgaria,

Sweden 7 - Denmark, Finland, Ireland, Lithuania, Slovakia 4 - Cyprus, Estonia, Latvia,

Luxembourg, Slovenia 3 - Malta

Unanimity

Unanimity is reserved for the most important decisions, or those for which Member

States are least prepared to pool their national sovereignty. Although this effectively gives

Member States a veto, that veto must be exercised for a measure to be blocked.


5/17


www.ovi-biz.com

Abstention by Members present or represented does not prevent the adoption of an act

which requires unanimity (Art 205(3)). Unanimity is, for example, required for the admission of

new States (Art 49 TEU), and for approval of any other matter within the competence of the

Community for which the Treaty does not provide a legal base (Art 308 EC Treaty,).

THE LUXEMBOURG ACCORDS

The Accords, or the Luxembourg Compromise, were the result of an impasse between

France and the other Member States in relation to farm prices in 1965. The decision had to be

determined, under the Treaty, by a qualified majority vote. The French insisted on the right to

secure a unanimous decision in cases such as this, where a vital national interest was at stake.

The other Member States could not agree. France then remained absent from all but technical

meetings of the Council for seven months, and important decision-making in the Community

virtually drew to a halt. The Accords were negotiated in a reconvened meeting of the Council in

January 1966. The three points that emerged from this meeting, as far as voting procedures are

concerned, were as follows:

1. where, in the case of decisions which may be taken by majority vote on a proposal of

the Commission, very important interests of one or more partners are at stake, the members of

Council will endeavour, within a reasonable time, to reach solutions which can be adopted by allthe members of the Council while respecting their mutual interests and those of the Community,

in accordance with Art 2 of the Treaty.

2 with regard to the preceding paragraph, the French delegation considers that where

very important interests are at stake the discussion must be continued until unanimous

agreement is reached.

3 the six delegates note that there is a divergence of views on what should be done in the

event of a failure to reach complete agreement.

The six delegations concluded by observing that the divergence noted in point 3 did not

prevent the Community's work from being resumed in accordance with the normal procedure.

There are a number of things to be said about the Accords. In the first place, the title 'Accord' is

inappropriate. There was, in fact, no agreement, only an agreement to disagree. Secondly, the

Accords have no standing in law. Insofar as they purport to amend the voting procedure laid

down by the Treaty in certain circumstances, they cannot be effective. Changes to the text and

substance of the EC Treaty have to be carried out in the appropriate form, after consultation with

the Parliament and the Commission. This was not done in the case of the Accords. The


6/17


www.ovi-biz.com

Commission has never accepted that the Accords had any validity, and has disassociated itself

from them.

The Accords have undoubtedly encouraged Member States to reach a compromise

wherever possible. The formal invocation of the Accords has been rare, and has not always

achieved the desired result. In 1982, for example, when the UK sought to block the adoption of

an agricultural price package in order to put pressure on the other Member States to agree to a

reduction of the UK's contributions, its purported 'veto' was ignored and a vote was taken.

However, in 1985, Germany invoked the Accords to forestall an increase in cereal prices,

and was successful. It is significant that no State which has been overridden, following an

appeal to the Accords, has ever taken the decision to the Court of Justice. The trend in voting

procedures in recent Treaty changes has been, as we shall see, to more qualified majority voting

and less unanimous decision taking, and it is likely that appeals to vital national interests under

the Accords will become even rarer than at present.

THE IOANNINA DECLARATION

Some recognition of the continuing need to take into account the genuine difficulties of

some Member States when a qualified majority vote is to be taken was shown early in 1994.

Under a declaration made in March 1994 at the loannina Summit, if members of the Council

representing a total of between 23 and 26 votes indicate their intention to oppose the adoption by

the Council of a decision by a qualified majority vote, the Council is committed to do all in its

power to reach, within a reasonable time, and without infringing the obligatory time limits in

Arts 251 and 252 EC Treaty procedures (see below), a satisfactory solution that could be

adopted by at least 65 votes (Bull EU 31994 p. 65: OJ 1994 C 105/1 as amended by Council

Decision of 1 January 1995).

This does no more than provide an opportunity to delay a qualified majority vote, but

cannot prevent one from being held, because the new Treaty time limits are still to be respected.

The Declaration does, unlike the Luxembourg Accords, have the force of law. It was intended to

continue to apply until the amendments to the Treaties following the Inter-Governmental

Conference of 1996 came into effect, but it was continued by the Treaty of Amsterdam until the

next enlargement of the Community (Declaration 50, ToA). Although the Declaration was given

legal effect by a Decision of the Council of Ministers, its vagueness must mean that it is most

unlikely to be the subject of litigation before the Court of Justice.


7/17


www.ovi-biz.com

THE LEGISLATIVE PROCESS

Due to allegations that the Community was democratically deficient, the powers of the

Parliament were broadened by the SEA, broadened further by the TED, and still further by the

ToA and ToN.

There are six separate and distinct methods of enacting Community legislation, each

of which will be considered. In addition, the Council has power to delegate its legislative powers

to the Commission; under Art 211 EC Treaty the Commission shall . 'exercise the powers

conferred on it by the Council for the implementation of the rules : laid down by the latter'.

Commission acting alone

The Commission is, in very limited policy areas, empowered by the EC Treaty to enact

legislation. One example is Art 86(3) EC Treaty (previously Art 90(3)), which provides that:

The Commission shall ensure the application of the provisions of this Article and shall, where

necessary, address appropriate directives or decisions to Member States .

This article is concerned with the role of the state in relation to public bodies or other

bodies, to which the state has granted special or exclusive rights (e.g. privati sed industries:

water, gas, electric etc.). The Commission has adopted the following directive pursuant to the

former Art 90(3) (now Art 86(3)) power: Directive 80/723/EEC on the transparency of

financial relations between Member States and public undertakings (OJ 1980 L 195/35).

Council and Commission acting alone

There are a number of policy areas where the EC Treaty provides for the Council to

adopt a Commission proposal without the involvement of any other institution (in particular

the Parliament). Although there is no formal duty to consult with the Parliament, consultationmay (and usually will) occur.

However, if there is no consultation there is nothing the Parliament can do; the

legislative measure will be effective. The relevant Treaty article (i.e. the legislative base) will

specify the voting mode to be used by the Council (i.e. qualified majority or unanimity;

otherwise simple majority). Some of the policy areaswhere this method for adopting an act is

prescribed are of major importance.

The areas (post-ToN) are:

1) Article 26 EC Treaty (previously 28) relating to the fixing of Common Customs

Tariff duties- the Council acts by a qualified majority:


8/17


www.ovi-biz.com

2) Article 45 EC Treaty (previously 55) relating to derogations from the right of

establishment- the Council acts by a qualified majority.

3) Article 49 EC Treaty (previously 59) relating to the extension of provisions on the

freedom to provide services to nationals of third countrieswho provide services within the

Community - the Council acts by a qualified majority.

4) Articles 57 and 60 EC Treaty (previously 73c and 73g) relating to the free

movement of capital- the Council acts by a qualified majority.

. Article 96 EC Treaty (previously 101) relating to harmonisation of laws necessary to

eliminate a distortion in competition- the Council acts by a qualified majority.

5) Articles 99 and 104 EC Treaty (previously 103 and 104c) relating to Economic and

Monetary policy- the Council acts by a qualified majority.

6) Article 133 (previously 113) relating to implementation of the Common Commercial

Policy - the Council acts by a qualified majority.

7) Article 301 (previously 228a) relating to economic sanctions against a third country -

the Council acts by a qualified majority.

For example, Article 301 EC Treaty provides that: the Council shall act by a qualified

majority on a proposal from the Commission.

Council, Commission and consultation with ParliamentFrom the earliest days of the Community, this was the most common legislative

procedure in the Treaty, and the only one which gave the Parliament a significant role in the

process.

New procedures were introduced by both the SEA and the TEU to give the Parliament a

greater involvement. Article 249 EC Treaty refers to the making of regulations and directives,

the taking of decisions, the making of recommendations or the delivery of opinions, as a joint

function of the Parliament and the Council, and the Council and the Commission.

However, the Parliament is stillfar from being a joint legislator in the sense known to national

legislatures.

Under this procedure, measures are proposed by the Commission, the Parliament is

consulted and delivers an opinion, and the Council of Ministers makes the final decision.

The opinion is prepared by the Rapporteur of one of the Parliament's specialist committees .

Its preparation follows the hearing of evidence by the Committee from specialist advisers,

interested individuals and organisations, and members of the officials of the Directorate-General

originally responsible for the drafting of the proposal. Although the Council of Ministers is free

not to follow the opinion of Parliament, the consultation must be genuine.


9/17


www.ovi-biz.com

Parliament must have a proper opportunity to respond to the proposal. This was

recognised as an essential procedural requirement by the Court of Justice in Roquette Freres v

Council (Case 138/79):

The consultation provided for in the Treaty is the means which allows the Parliament to

play an actual part in the legislative process of the Community. Such power represents an

essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at

Community level the fundamental principle that the peoples should take part in the exercise of

power through the intermediary of a representative assembly. Due consultation of the Parliament

in the cases provided for by the Treaty therefore constitutes an essential formality disregard of

which means that the measure concerned is void.

This principle was further developed to require re-consultation when a measure on which

Parliament had already given an opinion was subsequently changed.

InEuropean Parliament v Council (Case C-65/90)the Court of Justice said thatfurther

consultation was required unless the amendments essentially corresponded to the wishes

already expressed by the Parliament.

In European Parliament v Council (Case C-388/92) the Court held that the obligation

arose to re-consult 'on each occasion when the text finally adopted, viewed as a whole, departs

substantially from the text on which Parliament has already been consulted'. On that basis the

Court found that the Council had disregarded the prerogatives of Parliament and annulled aRegulation on the operation by non-resident carriers of transport services in Member States

(Reg 2454/ 92/EC).

However, consultation is a two-way process. Where Parliament wilfully fails to respond

it cannot subsequently complain that its views have not been taken into account. In European

Parliament v Council (Case C-65/93), the Council had informed the Parliament of the urgent

need for approval of draft regulations on tariff preference relating to agricultural products to be

made under Art 43 EC Treaty (now Art 37(2)). Having agreed to deal with the draft regulations

as a matter of urgency, Parliament then decided to adjourn discussion of them for reasons

wholly unconnected with their content. They were subsequently adopted by the Council without

having received the Parliament's opinion. The Parliament sought to annul the Regulations on

the ground of failure of consultation. The Court rejected the application.

Although the Council should not come to a final decision without giving the Parliament

an opportunity to respond, it does not have to suspend all discussion until it receives that opinion

(European Parliament v Council (Case C-417/93)).


10/17


www.ovi-biz.com

This mode of legislating has been retained for the adoption of legislation in certain

policy areas(post-ToN):

1) Article 19 (previously 8b) concerns the right of EU citizens to vote and stand in

local elections, and European Parliament elections - the Council acts unanimously.

2) Article 22 (previously 8e) relates to provisions increasing the rights of an EU citizen

- the Council acts unanimously.

3) Article 67(1) concerns visasetc. - the Council acts unanimously.

4) Article 89 (previously 94) relates to the grant of State Aids- the Council acts by a

qualified majority.

5) Article 93 (previously 99) concerns the harmonisation of indirect taxes - the

Council acts unanimously.

6) Article 94 (previously 100) provides for the approximation of national laws which

directly affect the operation of the common market - the Council acts unanimously. . Article

107(6) (previously 106(6)) relates to the adoption of certain provisions contained in the Statute

of the European System of Central Banks (ESCB) - the Council acts by a qualified majority.

7) Article 128 concerns employment- the Council acts by a qualified majority.

8) Article 175(2) (previously 130s(2)) provides for fiscal planning and energy measures

affecting the environment - the Council acts unanimously (and by qualified majority in some

circumstances).The Treaty article (i.e. the legislative base) will specify the voting mechanism to be used

in Council for the adoption of the measure (as stated above, unanimously or by a qualified

majority). There may be a duty to consult other bodies e.g. the Economic and Social Committee.

For example, Art 128(2) provides: the Council, acting by a qualified majority on a

proposal from the Commission and after consulting the European Parliament, the Economic

and Social Committee, the Committee of the Regions and the Employment Committee referred to

in Article 130

If this was the full extent of Parliament's involvement in the legislative process, it could

quite genuinely be questioned whether or not the Community was democratically deficient; the

only directly elected institution, comprising of 'representatives of the Peoples of the States

brought together in the Community' (Art 189 EC Treaty (previously 137)), has no real say in the

legislative process. It was for this reason that the SEA, TEU and ToA increased the involvement

of the European Parliament in the legislative process.


11/17


www.ovi-biz.com

Council, Commission and European Parliament - Article 252 (previously

189c) cooperation procedure

The election of a European Parliament by direct franchise for the first time in 1979

produced pressure to address the Community's 'democratic deficit'. The Community institutions

were seen as essentially undemocratic, in that the only body that was directly accountable to an

electorate played only a peripheral part in the legislative process.

Parliament attacked the issue by commissioning a report on wholesale constitutional

reform of the Community. That report, the Spinelli Report, appeared in 1984 and although many

of the recommendations were not taken up by the Commission, an attempt was made in the SEA

to address the issue of lack of significant Parliamentary input. This was the cooperation

procedure, now called, rather obscurely in the Treaty since the TED, the 'procedure referred to in

Art 252', but still widely known as 'the cooperation procedure'.

This procedure starts off similar to the consultation procedure, whereby the

Commission makes a proposal which is submitted to the Council and the Parliament.

TheParliament gives its opinion to the Council which, acting by a qualified majority,

adopts a common position. However, if the Council's common position amends the

Commission's proposal, the Council must act unanimously (Art 250(1) EC Treaty (previously

189a(1))). This common position is then forwarded to the Parliament together with the Council's

reasons as to why it has adopted that position.The Commission also informs the Parliament as

to its opinion on the Council's common position. This will be the second occasion that

Parliament considers the matter and it is therefore said that the procedure provides Parliament

with a Second Reading.

The Parliament has three months from receipt of the above to take action, with the

following results:

a) if theParliament approves the common position or does nothing, then the Council,

within three months, shall adopt the proposal, in accordance with the common position. If theCouncil fails to act within this three months, the proposal shall be deemed not to have been

adopted;

b) if the Parliament rejects the common position by an absolute majority of its

membership (i.e. 314, because there are 626 MEPs) then the Council can, within three months,

only adopt the act by unanimity;

c) if the Parliament proposes amendments to the common position by an absolute

majorityof its membership, then the Commission has one month within which to re-examine

its proposal and the Parliament's amendments to the common position.


12/17


www.ovi-biz.com

The Commission shall forward its re-examined proposal to the Council together with

any of the Parliament's amendments which it has not accepted, and the reasons why it has not

accepted them. Following this the Council may:

-adopt the re-examined proposal acting by a qualified majority;

-amend the re-examined proposal acting unanimously;

- adopt any of Parliament's amendments not accepted by the Commission, acting

unanimously.

The Council must act within three months, otherwise the proposal will be deemed not

to have been adopted.

Under this procedure there is a duty on the Council, after Parliament's First Reading, to

inform the Parliament why it has adopted its common position. This will include reasons why, if

applicable, it has rejected Parliament's opinion. The Commission is under a duty to inform the

Parliament, after Second Reading, why it rejects any of its proposed amendments to the common

position, if applicable.

In the final analysis, the Commission can reject the Parliament's proposals (except that it

does not have a say if Parliament rejects the common position), and the Council can override

Parliament and the Commission provided it acts unanimously. It may be appreciated therefore,

that although under this procedure Parliament's involvement in the legislative process is more

significant, real legislative power still lies with the Council. It is for this reason that Parliamentpushed for enhanced legislative powers in the build up to the TEU and ToA.

Thepolicy areas in which the Art 252 (previously 189c) procedure appliesare now very

limited because the ToA transferred the majority of provisions into the Art 251 (previously

189b) procedure, co-decision, which gives the European Parliament an enhanced role in the

legislative process.

The following provisions continue to be governed by Art 252 (post-ToN):

0) Articles 102, 103 and 106 EC Treaty (previously 104a, 104b and 105a) which

concernaspects of economic and monetary policy.

For example, Art 106(2) EC Treaty (previously 105a(2)) provides that: The Council,

acting in accordance with the procedure referred to in Article 252


13/17


www.ovi-biz.com

Council, Commission and Parliament - Article 251 (previously 189b) co-

decision procedure

The TEU introduced a new decision-making procedure, called 'co-decision making',

which gave substantial new powers of amendment and, ultimately, a veto, to the European

Parliament. This system has been simplified, and much extended by the ToA (and to a more

limited extent by the ToN), so that it now applies to the large majority of legislative decisions

made by the Community. This procedure was amended by the ToA and renumbered Art 251

from 189b; it must be applied wherever the legal base provides that an act shall be adopted 'in

accordance with the procedure referred to in Article 251'.

This procedure starts off very similar to the Art 252 procedure, in that the Commission

proposal is submitted to both the Council and the Parliament. The Parliament gives its

opinion on the proposal to the Council. The Council may adopt the proposalby a qualified

majorityif:

a) it approves all the amendments contained in the European Parliament's opinion;

b) if the European Parliament does not propose any amendments.

Otherwise, the Council, by a qualified majority, adopts a common position. Remember

however that Art 250(1) provides that if the Council amends the Commission's proposal it must

be unanimous.

Thecommon position is communicated to the Parliament, together with the Council's

reasons as to why it adopted the common position. This will obviously include reasons as to

why the Council rejects the Parliament's opinion, in whole or in part (if applicable). The

Commission informs the Parliament as to its view on the Council's common position. Within

three monthsof the common position being communicated to Parliament, if Parliament either

fails to take a decision, or approves the common position, the Council will be deemed to adopt

the act in accordance with the common position.Alternatively, within this three-month period,Parliament may:

a) by an absolute majority of its membership (i.e. 314 because there are 626 MEPs)

reject the common position, in which case the act is deemed not to have been adopted.

b) by an absolute majority of its membership, propose amendments to the common

position.

Where amendments have been proposed by Parliament, the amended text is forwarded

to both the Council and the Commission.The Commission then delivers an opinion on the

amendments. It will adopt one of three positions; it may:

a)accept them all;


14/17


www.ovi-biz.com

b)reject them all;

c)accept some and reject others.

Within three monthsof receiving the Parliament's amended text, the Council may:

a) approve all the amendments of the Parliament and adopt the act. It will do so by

qualified majority if the Commission has also accepted all the amendments, by unanimity if the

Commission has rejected all the amendments, and by a mixture of the two if the Commission

has accepted some (qualified majority) and rejected others (unanimity). In this case the act is

adopted; or

b)fail to adopt the act, in which case a Conciliation Committee may be convened.

The Conciliation Committee consists of an equal number of representatives from the

Council and the Parliament. Their task is to agree a joint text. This will be reached by the

Council representatives acting by a qualified majority and the Parliament representatives acting

by a majority. The Commission will act as mediator to encourage the parties to reach an

agreement. There are two possible outcomes.

If within six weeks of it being convened, the Committee:

a)approves a joint text, then the act will be adopted in accordance with the joint text, by

the Parliament acting by an absolute majority of the votes cast (i.e. simple majority), and the

Council acting by a qualified majority. The act will be deemed not adopted if approval is notobtained from either institution; or

b)does not approve a joint text, then the act is deemed not to have been adopted unless

positive action is taken.

There are provisions in Art 251 for the above periods of three months and six weeks to

be extended by one month and two weeks respectively.

It is no doubt appreciated by now that this is a very complicated and cumbersome

procedure. It is necessary to understand that this is a reflection of the competing interests

between the three institutions involved in the legislative process. The Parliament demands more

powers, but the Council resists such demands.

However, Art 251 has shifted some power from the Council to the Parliament because

now the Parliament can actually veto a proposal, although Parliament cannot demand that its

amendments be accepted. The Parliament ultimately either has to accept the proposal in totality

or reject it in totality; it is therefore a negative power rather than a true (positive) legislative

power.

The Art 251 procedure can be seen to be a balancing act of competing interests. The

Commission will resist any inroad into its role as policy developer and initiator. Article 251 has


15/17


www.ovi-biz.com

made an inroad into the Commission's territory because if a Conciliation Committee is set up,

the Council and Parliament can agree a joint text by qualified majority and simple majority

respectively.

This joint text may amend the Commission's proposal; such amendments would have

required unanimity by the Council pursuant to Art 250(1). However this provision does not

apply to these provisions of Art 25t.

The joint text (if agreed) can then be adopted by the whole Council acting by a qualified

majority and the Parliament acting by a majority of the votes cast.

While the Art 251 procedure is an important development in the evolvement of

Parliament's legislative powers it should be remembered that:

a) it only involves an ultimate power to veto;

b) the Parliament must cooperate with the Council in order to seek its agreement to

amendments (or at least seek a qualified majority if the matter proceeds to a Conciliation

Committee); and . it is limited to certain policy areas, although the policy areas have been

substantially extended by amendments made by the ToA, and to a more limited extent by the

ToN.

The post-ToN policy areas governed by Art 251 include:

1) Article 40 (previously 49) - free movement of workersArticle 44 (previously 54) -

freedom of establishment.2) Article 47 (previously 57) -mutual recognition of qualifications.

3) Article 71 (previously 75) -transport.

4) Article 95 (previously 100a) -completion of the internal market.

5) Article 148 (previously 125) -provisions relating to the European Social Fund.

6) Article 151(5) (previously 128(5)) - incentive measures relating to culture.

7) Article 152(4) (previously 129(4)) - incentive measures relating to public health.

8) Article 162 (previously 130e) - provisions relating to the European Regional

Development Fund.

For example, Art 40 EC Treaty provides that: The Council shall, acting in accordance

with the procedure referred to in Article 251


16/17


www.ovi-biz.com

Council, Commission and assent of Parliament

This quite simply provides for an act to be adopted by the Council (by a qualified

majority or unanimously) upon a proposal by the Commissionand 'after obtaining the assent

of the Parliament'. The Parliament will only need to act by a majority of the votes cast and this

procedure is a true co-decision of the two institutions: the Council and Parliament; there is no

special majority required in the Parliament.

This assent procedure was introduced by the SEA and following the ToA and ToN

amendments currently applies to the following:

1) Article 105(6) EC Treaty -certain functions of the European Central Bank(ECB).

2) Article 107(5) EC Treaty - amendments to the Statute of the European System of

Central Banks.

3) Article 161 EC Treaty -application of structure and cohesion funds.

4) Article 190(4) EC Treaty - uniform election procedures for MEPs.

5) Article 300(3) EC Treaty -making of association agreements with foreign States.

6) Article 49 TEU (previously Article 0) - enlarging membership of the Communities.

For example, Art 105(6) provides that: The Council may, acting unanimously... and

after receiving the assent of the European Parliament.


17/17


www.ovi-biz.com

Distribution of votes for each member state (from 01/11/2004)

Germany, France, Italy, United Kingdom 29

Spain, Poland 27

Netherlands 13

Belgium, Czech Republic, Greece, Hungary, Portugal 12

Austria, Sweden 10

Denmark, Ireland, Lithuania, Slovakia, Finland 7

Cyprus, Estonia, Latvia, Luxembourg, Slovenia 4

Malta 3

TOTAL 321

E Legislative Process

Documents

Transcript of E Legislative Process