Legislative procedures and legal acts PDF

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Legislative procedures and legal acts - RIGHTS OF INIATIVE - CITIZENS INATITVE - ORDINARY LEGISLATIVE PROCEDURE - QMV - ROLE OF COUNCIL - SPECIAL LEGISLATIVE PROCEDURE - ART 291 IMPLEMENTING ACTS - ART 290 DELEGATED ACTS - DIRECTIVES, REGULATIONS,DECISIONS RIGHTS OF INITAVIE •

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under the Treaties, the machinery of legislation can normally only be set in motion by the Commission who submits a ‘proposal’—a draft legislative act— to the European Parliament and the Council. Article 17(2) TEU: “Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.” Article 225 TFEU: “The European Parliament may, acting by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties.”

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The Commission needs not comply with any such request or invitation. However, it must, according to the same article 225 TFEU, provide the reasons why it decided not to proceed with it CITIZENS INITATIVE allowing one million citizens residing in one quarter of the Member States to invite the Commission to submit a proposal for a legal act to implement the EU Treaties. LEGAL BASIS — Article 11(4) of the Treaty on European Union (TEU); — Article 24(1) of the Treaty on the Functioning of the European Union (TFEU); — Regulations (EU) No 211/2011 and 2019/788; — Rules 222 and 230 of Parliament’s Rules of Procedure.

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Article 11 (4) TEU in Article 11, paragraph 4 TEU, which stipulates that Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. -

The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 24 of the Treaty on the Functioning of the European Union. The specific rules governing the Citizens Initiative can be found in Regulation (EU) 2019/788.

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293, second paragraph TFEU, you will that As long as the Council has not acted, the Commission may alter its proposal at any time during the procedures leading to the adoption of a Union act. As a result, the Commission retains some control on the text throughout the legislative process.

ROLE OF THE COUNCIL • The Council is the EU institution that is ultimately responsible for adopting EU legislation. Important information about the Council in the context of the legislative process can be found in Article 238 TFEU

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• Council sometimes acts by unanimity or simply majority in some areas, the Council acts by a simple majority, in other important (or sensitive) areas, the Treaty requires unanimity. Where unanimity applies, neither abstentions nor absences are counted. This means that abstentions do not prevent the adoption by the Council of acts which require unanimity • Default Rule: Article 238(3)(a) TFEU “Qualified Majority Voting” the general rule - unless the Treaties specify otherwise- is that the Council acts by ‘qualified majority vote • Note the double majority required for a QMV: the “55/65” rule. 55% majority of member states AND those member states must be populated by a 65% majority of the EU’s citizens.

QMV IN DETAIL (before Lisbon treaty) •

method of calculation of QMV was based upon a weighting accorded to each member state: from 2009 to 2014 there was a mixture of the old system and the new.

Since 2014, QMV is calculated by a “double majority” rule based on both the number of member states and the population of the EU represented by those member states. A qualified majority shall be defined as follows: (a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained; (b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. •

An important role is played by the COREPER (COmit des REprsentants PERmanents), ‘responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the Council’, according to Article 240 TFEU. **three distinct procedures by which the Parliament is involved in the adoption of Union legislation: consultation, the ordinary legislative procedure and consent.

Article 289 TFEU: Legislative Procedures 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. 2. In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.

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Article 10 (1) TEU: “The functioning of the Union shall be founded on representative democracy.” It follows – according to Article 10 (2) TEU - that “Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.” Article 294 TFEU is the main source. Firstly, there is the proposal from the Commission. Remember that the draft legislation must be forwarded to the national parliaments which can then send their opinions in terms of compliance with the subsidiarity principle. Democratic legitimacy of legislative acts adopted by the ordinary legislative procedure? Article 10 (1) TEU: “The functioning of the Union shall be founded on representative democracy.” • the European Parliament now enjoys a power of veto. Because it allows for a degree of parity between the Council and the Parliament, measures adopted by this procedure are, uniquely, acts not of the Council but of ‘the European Parliament and the Council’. Whenever EU legislative acts are passed jointly by the Council and the European Parliament via the ordinary legislative procedure, those acts are underpinned by the principle of representative democracy Article 10(2) TEU: “Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.”

Most important achievement of the Treaty of Lisbon is that the legislation • according to the ordinary legislative procedure, is adopted jointly by the European Parliament and the Council and on equal footing – they are both legislators without hierarchies. • it all begins with a proposal from the Commission (it could be a regulation, a directive, or a decision depending on the circumstances • The procedure can develop through a maximum of three readings. However, the colegislators – the European Parliament and the Council – have the possibility to conclude the procedure and agree on a joint text at any readings.

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there can be up to three readings, but it’s not a legal requirement. As a matter of fact, a not insignificant proportion of legislative proposals are agreed during the first or second reading.

During the first reading, the European Parliament and the Council work on the proposal at the same time. • The European Parliament is the first to express a view, however. It does so by voting on the proposal, with no special majority normally required. So, the majority of the votes cast in the European Parliament will suffice to express a positive view of the text. • the European Parliament gets to vote collectively on a text after the proposal has been discussed in the relevant committee of the parliament, and a report has been drafted. The process at the Parliament can end with: approval of the Commission’s text as it was presented; approval with amendments; rejection of the proposal. • Once the European Parliament has express its position, it is the Council’s turn. In particular, the Council decides on the Parliament’s position. The Council decides to accept the Parliament’s position – then, the act is adopted – or it can take a different position. • This opens the door to the second reading of the proposal. The two actors of the legislative process disagree, so we need further discussion. • it is important to emphasise that there is no specific time-limit or deadline that these institutions must comply with, in this first reading. • the European Parliament and the Council have three months each to express their view. • This deadline, if you want to call it informally that way, can be extended by one month. • Secondly, the majority required is different. In the second reading, the Parliament decides by an absolute majority (therefore, at least 353). • You will remember that in the first reading only a simple majority was required. The logic for requiring this enhanced majority in the second stage is that probably, if there is a disagreement with the co-legislator in the first phase, it is necessary that acceptance by the Parliament on a text comes with a broader consent.

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If disagreement continues in the second stage, we then reach the third and last stage of the ordinary legislative procedure. The conciliation procedure takes place in the context of a conciliation committee, where the two co-legislators negotiate with the view to reaching an agreement on a joint text.

SPECIAL LEGISLATIVE PROCEDURES Article 289(2) TFEU and apply in a limited number of areas. All the areas for which a special legislative procedure is provided for in the Treaties are of constitutional import, and/or high political sensitivity

Article 288 TFEU: Legal Acts To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

********* A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force. ***** REGULATIONS •

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Firstly, regulations. Regulations are of general applications, in the sense that they do not apply and are not addressed to a specific group or category of people. Secondly, they are binding in their entirety. Normally, regulations are considered the strongest legislative act in the sense that they regulate exhaustively a specific issue. provision is direct applicable, it means that it enters directly the national legal order; it becomes automatically part of the national legal order, once it is adopted, without the need for the member state to implement that provision in national law through implementing legislation automatically become part of member states and no more implementing • • • • •

General Application = Apply generally and not to specific groups/people Binding in their entirety Directly Applicable in Member States = No need for national implementing legislation Becomes part of national law on date specific in Regulation Regulations apply uniformly across the EU

DIRECTIVES • Unlike regulations, directives only bind the member states. regulations can also be binding natural or legal persons. • Directives bind the member states as to the result to be achieved. The way they do that, it is a matter for the member states, which leads to another very important characteristic of directives. • They are not directly applicable. They do not become automatically part of state’s law on the day they enter into force, but they need to be implemented by member states into national legislation.

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the leeway left by directives to member states is not limitless. Member states cannot add elements that are stricter if that jeopardises the achievement of the objectives of the directives.

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Binding as to the result to be achieved Directives are NOT directly applicable Member States must implement them in to national law Member States have discretion over form and method of implementation Directives will provide a deadline for implementation

DECISIONS • Decisions are binding in their entirety (like regulations), but (unlike regulations) they are not of general application. • They are binding on those to whom they addressed. Sometimes, they can be addressed to all or some Member States, some other times to businesses or individuals. • However, there is no requirement for implementing legislation, but the addressees of the Decisions shall be notified of it. • •

No requirement for implementing legislation Addressees of Decisions shall be notified

Art. 290 TFEU: “Delegated Acts” • EU legislative act may delegate powers to Commission to supplement or amend nonessential elements of that act • Many legal systems allow delegation of powers: efficiency, expertise etc. • Control and oversight from EU legislature (Art.290(2) and (3)) •

Therefore, the adoption of a delegated act – which could be a delegated regulation, or delegated directive, or delegated decision – is subject to a series of conditions. Firstly, it cannot intervene on essential elements of the legislative act – otherwise it will be a way of bypassing the legislative procedure; it must be of general applications. Secondly, the legislative act that the delegated act supplements or amends must define the conditions and the ways in which that delegation will be used by the Commission. Thirdly, the European Parliament and the Council are still involved and they have a say on the delegated act.

Art.291 TFEU: “Implementing Acts” • In areas where uniform conditions are needed e.g. agriculture, food safety etc.) • Oversight of Commission by national (expert) committees • Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers. The word ‘implementing’ shall be inserted in the title of implementing acts. • OVERALL • The main EU Institutions: composition and key powers • The role of National Parliaments in EU law-making (Subsidiarity)

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The ordinary legislative procedure EU legal acts: Regulations, Directives, Decisions, (Recommendations & Opinions) Article 290 & 291 TFEU: Delegated and Implementing Acts...