EU decision-making after the Treaty of Lisbon: a quick guide, by Steve Peers
01 October 2009
The guide sets out the legislative and non-legislative procedures, secondary legislation, implementing powers and delegated acts, and the advisory, management and regulatory procedure with scrutiny (RPS)
Legislative procedures
The concept of a ‘legislative procedure’ is now officially defined in the Treaties, following the entry into force of the Treaty of Lisbon. Article 289 of the Treaty on the Functioning of the European Union (TFEU) specifies that there are two types of legislative procedure: the ordinary legislative procedure and special legislative procedures. Most EU legislation must be proposed by the Commission, but as noted in Article 289(4) TFEU, there are a few cases where legislation can be proposed by the European Parliament, Member States, or other bodies. The most important of these for JHA matters is the field of policing and criminal law, where a quarter of Member States can make proposals (see Article 76 TFEU) – and already have done since the new Treaty entered into force.
The
ordinary legislative procedure is governed by standard rules (set out in Article 294 TFEU). These are essentially the same rules that governed the ‘co-decision’ process (previously set out in Article 251 EC), ie the possibility of first-reading deals, a second reading deal after the Council adopts its first-reading position (no longer called a ‘common position’), the possibility of conciliation if a second-reading deal is not reached. The Treaty of Lisbon has simply amended the wording to emphasise the equality between the European Parliament (EP) and the Council throughout this procedure. Effectively as far as the adoption of EU legislation is concerned, the EP and Council constitute a two-chamber legislature.
The main change resulting from the Treaty of Lisbon is the application of this procedure to a number of additional ‘legal bases’, not only to a lot of the JHA area (legal migration, visa lists, and most criminal law and policing measures) but also to important other parts of EU law such as agriculture, fisheries and external trade. There are now about 70 legal bases providing for the ordinary legislative procedure. Obviously a bigger percentage of legislation than before will be subject to this procedure.
The cases where the ordinary legislative procedure applies are defined in each of the relevant legal bases. It should be noted that there are no longer any cases in which this procedure is combined with unanimity in the Council – qualified majority voting (QMV) always applies. There are, however, a few cases (criminal law and social security for migrants) where an individual Member State can pull an ‘emergency brake’ to stop decision-making on specified grounds, followed by an attempt at dispute settlement in the European Council (ie, EU leaders’ summits). In the case of criminal law (but not social security), a continued deadlock concerning each proposal can lead to fast-track authorisation of ‘enhanced coooperation’.
The
special legislative procedures are not governed by standard rules, but by different rules in each of the legal bases which provide for such procedures. There are about 30 cases of special legislative procedures set out in the Treaty. The idea of a special legislative procedure is that the Council and EP are still each involved in the adoption of legislation, but subject to different rules than those which govern the ordinary legislative procedure.
In most cases, the special legislative procedure involves unanimity in Council and consultation of the EP (for instance, Article 89 TFEU, concerning cross-border police operations). In a few cases, it involves unanimity and consent of the EP (for instance, Article 86, concerning the European Public Prosecutor). There are also a few cases where the Council votes by QMV and the EP is only consulted, or where the EP takes the lead role and the Council approves the EP’s measure. There is a
sui generis special legislative procedure concerning the adoption of the annual EU budget; this entails a version of the ordinary procedure which is specially adapted to the particular features of the budget process (QMV in Council applies).
Any EU measure adopted by means of a legislative procedure is a
‘legislative act’ (Article 289(3) TFEU). The obvious implication is that any EU measure
not adopted by a legislative procedure is
not a legislative act. The distinction between legislative and non-legislative acts has some practical implications: for instance the Council must always meet in public when adopting or discussing legislative acts, but is not under an obligation to do so when discussing non-legislative acts (see Article 15(2) TFEU).
Non-legislative acts
There are several different types of non-legislative acts. First of all, there are non-legislative acts
based on the Treaties, ie for which the legal base is provided for in the Treaty on European Union (TEU) or TFEU. For instance, Article 81(3) TFEU (second sub-paragraph) states that the Council may adopt a decision changing the decision-making procedure relating to family law legislation. Since the Treaty does not specify that this decision would be adopted by a legislative procedure, it would therefore be a non-legislative act.
There are no standard rules for the procedure for adoption of non-legislative acts based on the Treaty. For instance, the family law decision just referred to requires the Council to act unanimously on a proposal from the Commission, after consulting the EP. Other legal bases for non-legislative acts provide for the Council to act by QMV (see Article 74 TFEU, on administrative cooperation within the sphere of JHA). Some non-legislative acts are adopted by the European Council (see the possible extension of role of the European Public Prosecutor, in Article 86(4) TFEU). As for the EP, it is not consulted in some cases (see Article 215 TFEU, concerning foreign policy sanctions), consulted in others (see Article 74 TFEU), and has the power of consent in others (see Article 86(4) TFEU). There is no standard requirement that the Commission has to propose non-legislative acts; its role depends on each legal base (for instance, Article 86(4) only requires consultation of the Commission).
In several cases (anti-terrorist sanctions, agriculture and fisheries) the Treaty specifies that general rules on an issue will be adopted in a legislative act adopted by means of the ordinary legislative procedure, and then provides for the general rules to be supplemented by non-legislative acts to be adopted by a specific procedure (proposal from the Commission, QMV in Council, no EP role).
As for the
negotiation and approval of treaties by the EU, the Council authorises the Commission to negotiate and then decides on whether to sign the treaty. The conclusion of each treaty, after the entry into force of the Treaty of Lisbon, requires not only the approval of the Council but also the consent of the EP if the subject-matter of the treaty concerned falls within the scope of the ordinary legislative procedure or an area in which the EP has the power of consent. Since most treaties will meet these criteria, almost all treaties are subject to the EP’s consent power.
It should be noted that the Treaty rules out the use of legislation in the field of foreign policy – so all foreign policy measures are non-legislative acts.
Non-legislative acts based on secondary legislation
There are also two forms of non-legislative acts based on secondary legislation. There are the
implementing powers procedure (‘comitology’) and the possibility of adopting
delegated acts.
First of all, the concept of
comitology was first established in the early years of the EC. It was formalized in the EC Treaty in the 1980s and was subject from 1987 to a Council Decision establishing general rules for comitology procedures, which were replaced by a new set of general rules in 1999. The 1999 general rules were amended in 2006. The Treaty base for the principle of comitology and the adoption of these general rules was Article 202 EC (now Article 291 TFEU).
The basic idea of the comitology process is that the power to adopt implementing measures at EU level is normally to be conferred on the Commission – but in exceptional cases that power can be conferred on the Council instead (note that there are no general rules governing the rare cases where implementing powers are conferred upon the Council). The Court of Justice has ruled that other than this framework, there is no possibility to confer some sort of additional secondary legislative power on the Council, allowing it to adopt measures other than by the procedures listed in the Treaties (Case C-133/06,
EP v Council, judgment of May 2008, concerning the ‘common lists’ in the asylum procedures Directive).
The comitology process can be used to implement either legislative or non-legislative acts, but it does not apply to foreign policy measures (they must be implemented by the Council).
The Decision establishing general rules specifies four types of comitology procedure: the
advisory procedure (very rarely used); the
management procedure (not often used); the
regulatory procedure (used most often); and the
regulatory procedure with scrutiny (RPS) (introduced by the 2006 amendments to the general rules).
The regulatory procedure with scrutiny
must be used in cases where the basic legislation was adopted by means of the co-decision procedure, and ‘provides for the adoption of measures of general scope designed to amend non-essential elements of that instrument,
inter alia by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements’. Otherwise, there is a choice which of the other types of procedure to use, provided that if the EU legislators wish to depart from the guidance given in the general procedure as to which procedure to use, they have to explain why they did not follow the guidance.
The basic feature of all comitology procedures is that the Commission chairs committees of Member State representatives, and submits to them draft implementing measures for discussion and vote. In the advisory procedure, the vote of the representatives is not binding in any way. In the management procedure, a QMV of the representatives
against the measure is necessary to block it. In the regulatory procedure and the RPS, a QMV of the representatives
in favour of the measure is necessary for it to be adopted.
In the event that a draft implementing measure is blocked by the representatives (which is rare), the Commission must make a proposal on the issue to the Council. Where the management procedure applies, the Commission may defer the adoption of its draft decision, but the Council may take a different decision by QMV within a specified time limit (no more than three months). Where the regulatory procedure applies, the Council can either adopt the act (or presumably an amended version of it) by QMV, or block it by QMV against the proposal, in which case the Commission must re-examine the proposal; the Commission may submit an amended proposal, the same proposal or a legislative proposal on this issue. If the Council does not act, then the Commission can approve the proposal. The EP is informed of the draft proposal, and can express non-binding objections on certain grounds if the measure would implement legislation adopted by means of the co-decision procedure.
Where the regulatory procedure with scrutiny applies, if the draft act is approved by national representatives, the Commission must then send it to the EP and the Council for scrutiny. Either institution can block the draft act (by QMV against it in the Council, or by the vote of a majority of all MEPs) on broad specified grounds, within a specified time period. If the EP and the Council do not object, the Commission can adopt the measure. If either of them does object, the Commission may either submit a new proposal or a proposal for legislation. If the draft act is not approved by national representatives, then the Commission must submit a draft to the Council and the EP, which have a chance to block it or to adopt the text (or presumably a different text), which is in the latter case still subject to the power of the EP to block it.
Other than in the RPS procedure, the EP has a limited role, being informed only of draft implementing measures and also being sent draft agendas of committee meetings and records of committee proceedings.
There is also special provision for a
safeguard procedure concerning safeguard measures (ie in the case of international trade). In these cases, the basic legal act may require the Commission to consult with Member States; in any case, the Commission must inform the Member States and the Council of draft measures. A Member State may then refer the draft decision to the Council, which can control the decision-making of the Commission in some form (by blocking or approving it, or taking a different decision) by QMV.
The Treaty of Lisbon provides that general rules on comitology must now be adopted by means of the ordinary legislative procedure (they were previously adopted by means of unanimity in Council with consultation of the EP). The Commission intends to present a proposal for entirely new rules on comitology procedures once the new Commission is appointed, early in 2010. The Council has committed itself to agree these rules with the EP by June 2010.
Next, the Treaty of Lisbon has introduced a new procedure for
delegated acts (Article 290 TFEU). This Article specifies that EU legislation ‘may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act’.
It should be noted that the scope of this power is the same as the scope of the RPS procedure (except that the delegated acts procedure can apply regardless of the procedure used to adopt legislation), and indeed the EU institutions recognise that no legislation adopted after the entry into force of the Treaty of Lisbon can establish any new RPS procedures. It is not yet known if there will be proposals to amend any legislation adopted before the entry into force of the Treaty of Lisbon in order to provide for the delegated acts procedure to apply.
It should also be noted that delegated powers can only be delegated to the Commission, not the Council.
There will not be any general rules governing the delegated acts procedure, except a Commission communication in December 2009 which set out model Articles for legislation which could be adapted on a case-by-case basis.
The Treaty provides that to control the delegation to the Commission, either:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
So far the EP and the Council are considering clauses concerning delegated acts in draft legislation, but have not yet agreed on any such clauses. The draft clauses provide for: a review (in the Council’s view) or the expiry (in the EP’s view) of the delegation of power after a fixed period; the application of both methods of control of the Commission; and time periods of two or three months for the EP or the Council to block the adoption of each draft delegated act.
It should be noted that unlike the comitology procedure, there is no requirement of consulting Member States’ representatives before the adoption of delegated acts; although the Commission has indicated that it will consult national experts informally on draft delegated acts, there is no power for those experts to block the draft.
Form of acts
The Treaty of Lisbon has consolidated the types of legal acts which the EU may adopt: regulations, directives and decisions (see Article 288 TFEU). However, unlike some national legal systems, the types of legal act do not indicate whether the act in question is a legislative or non-legislative act, or by which means each act was adopted. So, while most Directives are legislative acts, they might have been adopted by either the ordinary legislative procedure or a special legislative procedure, and some Directives are non-legislative acts. Equally while many Regulations and Decisions are non-legislative acts, they might be legislative acts adopted by any type of legislative procedure.
The Treaty of Lisbon does require that implementing acts and delegated acts indicate in their title that they are implementing or delegated acts respectively. While the Council has observed this obligation since the new Treaty entered into force, the Commission has breached it.