EU Seminar 3 note for 261 PDF

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Law.261x – EU Law – Seminar 03 Law Making and Democracy Compulsory Reading Fairhurst, Chaps 2 & 4 Craig & de Búrca, Chaps 5, 6, & 7. AB Philip, ‘How democratic is the European Union’ (The Conversation, 20 May 2016) accessed 13 November 2018 J Rankin, ‘Is the EU undemocratic?’ (The Guardian Online, 13 June 2016) accessed 13 November 2018 Further Reading A Cygan, ‘The parliamentarisation of EU decision-making? The impact of the Treaty of Lisbon on national parliaments’ (2011) 36(4) ELRev 480-499 K Lenaerts, ‘The principle of democracy in the case law of the ECJ’ (2013) 62(2) ICLQ 271-315 Questions 1) Explain the different legal nature, and legal effects, of EU Treaty Articles, Regulations, Directives and Decisions. Regulations A "regulation" is a binding legislative act. It must be applied in its entirety across the EU. For example, when the EU wanted to make sure that there are common safeguards on goods imported from outside the EU, the Council adopted a regulation. Directives A "directive" is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals. One example is the EU consumer rights directive, which strengthens rights for consumers across the EU, for example by eliminating hidden charges and costs on the internet, and extending the period under which consumers can withdraw from a sales contract. Decisions A "decision" is binding on those to whom it is addressed (e.g. an EU country or an individual company) and is directly applicable. For example, the Commission issued a decision on the EU participating in the work of various counter-terrorism organisations. The decision related to these organisations only. Recommendations A "recommendation" is not binding. When the Commission issued a recommendation that EU countries' law authorities improve their use of videoconferencing to help judicial services work better across borders, this did not have any legal consequences. A recommendation

allows the institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed. Opinions An "opinion" is an instrument that allows the institutions to make a statement in a nonbinding fashion, in other words without imposing any legal obligation on those to whom it is addressed. An opinion is not binding. It can be issued by the main EU institutions (Commission, Council, Parliament), the Committee of the Regions and the European Economic and Social Committee. While laws are being made, the committees give opinions from their specific regional or economic and social viewpoint. For example, the Committee of the Regions issued an opinion on the clean air policy package for Europe. 2) What is the ordinary legislative procedure within the EU? Under what circumstances is it used, and what does it tell us about the balance between the EU Institutions? The ordinary legislative procedure The codecision procedure was first introduced in 1992 and its use extended in 1999. With the adoption of the Lisbon Treaty, codecision was renamed the ordinary legislative procedure and it became the main decision-making procedure used for adopting EU legislation. It applies to around 85 policy areas. At a glance Legislators: The Council of the EU and the European Parliament Right of legislative initiative: The European Commission Main elements of the procedure: -

The European Commission submits a proposal to the Council and the European Parliament

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The Council and the Parliament adopt a legislative proposal either at the first reading or at the second reading

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If the two institutions do not reach an agreement after the second reading a conciliation committee is convened

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If the text agreed by the conciliation committee is acceptable to both institutions at the third reading, the legislative act is adopted

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If a legislative proposal is rejected at any stage of the procedure, or the Parliament and Council cannot reach a compromise, the proposal is not adopted and the procedure ends.

Legal base: Articles 289 and 294 of the Treaty on the Functioning of the European Union Institutional balance between the Commission, Council, and European Parliament has always characterised decision-making within the EU. That balance is dynamic, not static, and it has changed over time. The increase in the EP’s power has been a principal feature in that institutional dynamic.

3) How do special legislative procedures differ from the ordinary procedure, and why are different procedures necessary? SUMMARY OF: Article 289 of the Treaty on the Functioning of the European Union WHAT IS THE AIM OF ARTICLE 289 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION? It reforms the EU’s previous decision-making process, thus strengthening its capacity to take decisions and action. KEY POINTS Article 289 of the Treaty on the Functioning of the European Union (TFEU) concerns 2 types of legislative procedure: ordinary legislative procedure special legislative procedure. Ordinary legislative procedure Under the ordinary legislative procedure, the European Parliament is a co-legislator with the Council. Originally introduced under the Maastricht Treaty, when it was called the codecision procedure, this procedure is now the most widely used method of EU decisionmaking. The TFEU changes its name and extends it to cover areas of policy such as: - judicial cooperation in civil matters, - police cooperation, - humanitarian aid, and - measures on external border controls, asylum and immigration. The operation of the ordinary legislative procedure is described in detail in Article 294 TFEU. The Parliament and the Council legislate on an equal footing. The 2 institutions adopt legislative acts either at first reading or at second reading. If, following the second reading, the 2 institutions have still not reached an agreement, a Conciliation Committee is convened.

Under the ordinary legislative procedure, decisions are adopted by qualified majority, which is a system that ensures: - that a decision is carried out when there is both a majority of EU countries (55% in most cases, but 72% in some); and - that these countries represent at least 65% of the EU’s population. The TFEU also introduces ‘passerelle clauses’. These clauses enable the ordinary legislative procedure to be used in other areas normally outside its scope, under certain conditions. Special legislative procedures Special legislative procedures, as their name implies, are the exception from the ordinary legislative procedure. These are used in certain more sensitive policy areas. Unlike in the case of the ordinary legislative procedure, the TFEU does not give a precise description of special legislative procedures. The rules for these are therefore defined on a case-by-case basis by the treaty articles that lay down the conditions for their implementation. Under special legislative procedures, the Council is, in practice, the sole legislator. The Parliament is simply associated with the procedure. Its role is thus limited to consultation (such as under Article 89 TFEU concerning cross-border police operations) or consent (such as under Article 86 TFEU concerning the European Public Prosecutor's Office) depending on the case.

4) Which EU institution best represents the interests of the people of Europe in the EU legislative process? The Council of the European Union, known also as the ‘Council of Ministers’, is the first of the EU’s two law-making bodies. Whereas the Commission represents the general interests of the European Union, the Council of the European Union represents the governments of the member states. National delegations meet at three levels of the Council: working groups, which is where Commission proposals land first and where technical experts from the member states discuss the merits of each policy initiative; the Committee of Permanent Representatives, composed of the ambassadors of each of the member states to the European Union, which tackles political issues that the working groups are unable resolve; and ministers, meeting in twelve policy areas, who have ultimate decision-making authority. In practice, most issues are agreed before they reach ministerial level.

What role do National Parliaments now have in the EU legislative process? What is the role of national institutions? National institutions play a key role in the main stages of EU policy making. In the decision phase, ministers and civil servants negotiate, amend and decide in the Council whether to accept proposals submitted by the Commission. Also at the decision stage national

parliaments are influential in two ways. They scrutinize the positions that their governments propose to take in EU negotiations. Also, under the ‘yellow card’ procedure, if one third of national parliaments in EU member states voice concerns about a Commission initiative, the Commission is compelled to reconsider that proposal. National institutions also have an important part in implementation and enforcement. EU legislation is implemented by national administrations – ministries, departments of state, regulatory agencies, and regional and local authorities. The same national bodies administer 90 per cent of the EU budget. National courts, meanwhile, monitor and enforce EU law in the member states. They can also refer questions concerning the interpretation of EU law to the Court of Justice of the European Union.

5) What is the ‘democratic deficit’ and how has the EU sought to address its perceived institutional problems? DEMOCRATIC DEFICIT ‘Democratic deficit’ is a term used by people who argue that the EU institutions and their decision-making procedures suffer from a lack of democracy and seem inaccessible to the ordinary citizen due to their complexity. The real EU democratic deficit seems to be the absence of European politics. EU voters do not feel that they have an effective way to reject a ‘government’, they do not like, and to change, in some ways, the course of politics and policy. The current form of European governance is such that there is no ‘government’. The public are still generally pro-European, but they do not understand the political system that sometimes appears to threaten their way of life. Disaffection with Europe has been expressed in the low turnouts at European elections, which reached an all-time low in 2009 with an EU average of just 43 %. The issue of democratic legitimacy has been sensitive at each stage of the process of European integration. The issue was addressed in the intergovernmental conferences leading up to the signing of the Maastricht, Amsterdam and Nice Treaties by giving more powers to the European Parliament (EP) and extending the areas in which had joint decisionmaking powers with Council. As a result, the EP has evolved from a consultative assembly to a co-legislator. The Lisbon Treaty, has strengthened the European Parliament’s financial, legislative and supervisory powers. The EP has acquired considerable influence in the appointment of the Commission and its President. In addition, the European Citizens' Initiative was created and the importance of dialogue between civil society and the European institutions was recognised. Lastly, certain Council sessions have been made public to improve citizens' information.

Have the EU’s attempts at reform been successful, or does Brexit reflect its failure? The vote to leave the EU was not a direct result of pro-leave reporting in the majority of the news media. There are many other policies and politics including those of austerity that have led us to this point. But unless we fix the media’s democratic deficit through effective regulation for a free and accountable press alongside measures for remedying concentrated media power it is hard to see how any mechanism of democracy, including elections, can function well. And unless all our systems and institutions of public communication engage in open, deliberative and informed debate it is easy to see how hatred and intolerance can spread....