(By Steve Peers)
LEGISLATIVE PROCEDURES
Art 289 TFEU: there are tow types of legislative procedure:
- The ordinary legislative procedure
- Special legislative procedure
Most EU legislation must be proposed by the Commission but in few circumstances legislation can be proposed by the EP, MSs or other bodies (Art 289(4)).
JHA – a quarter of MSs can make proposals in the field of policing and criminal law (Art 76).
Art 294 TFEU: the ORDINARY LEGISLATIVE PROCEDURE
is governed by standard rules, ie the possibility of first-reading deals, a second reading deal after the Council adopts its first-reading position, the possibility of conciliation if a second-reading deal is not reached.
As far as the adoption of EU legislation is concerned, the EP and Council constitute a two-chamber legislature.
Post-Lisbon: the ordinary legislative procedure is applied to a number of additional ‘legal bases’ (in the JHA area: legal migration, visa lists, most criminal law and policing measures) – there are now about 70 legal bases providing for the ordinary legislative procedure.
NB: there are no longer any cases in which this procedure is combined with unanimity in the Council – qualified majority voting (QMV) ALWAYS applies.
In few cases (criminal law and social security for migrants) individual MS can stop decision-making process on specified grounds, which will be followed by an attempt at dispute settlement in the European Council. In the case of criminal law only a continued deadlock concerning each proposal can lead to fast-track authorisation of ‘enhanced cooperation’.
SPECIAL LEGISLATIVE PROCEDURES
are governed 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.
In most cases, the special legislative procedure involves unanimity in Council and CONSULATION of the EP, eg Art 89 TFEU – cross-border police cooperation.
In some cases, it involves unanimity and CONSENT of the EP, eg Art 86 TFEU – European Public Prosecutor.
In few cases Council votes by QMV and the EP is only consulted, or 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.
Any EU measure adopted by means of a legislative procedure is a ‘legislative act’ (Art 289(3)). The distinction between legislative and non-legislative acts has some practical implication, eg the Council must always meet in public when adopting or discussing legislative acts, but it is under no obligation to do so when discussing non-legislative acts.
NON-LEGISLATIVE ACTS
- Non-legislative acts based on the Treaties, ie acts for which the legal base is provided for in the TEU or TFEU.
There are no standard rules for the procedure for adoption of non-legislative acts based on the Treaty.
NEGOTIATIONS AND APPROVAL OF TREATIES BY THE EU
The Council authorises the Commission to negotiate and then decides on whether to sign the Treaty.
Post-Lisbon: approval of the Council and consent of the EP is required 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 to consent. As most treaties will meet these criteria, almost all treaties are subject to the EP’s consent power.
NB: all foreign policy measures are non-legislative acts.
- Non-legislative acts based on secondary legislation.
i. Implementing powers procedure ‘COMITOLOGY’ – Art 291 TFEU
The power to adopt implementing measures at EU level is normally to be conferred on the Commission, but in exceptional cases the power can be conferred on the Council instead.
This process can be used to implement either legislative or non-legislative acts, but it does not apply to foreign policy measures.
4 TYPES OF COMITOLOGY PROCEDURE:
a) Advisory (very rarely used)
b) Management (not often used)
c) Regulatory (used most often)
d) Regulatory procedure with scrutiny (RPS)
Commission chairs committees of MS representatives and submits to them a draft implementing measures for discussion and vote.
Re:
a) Vote of representatives is not binding in any way;
b) QMV of the representatives AGAINST the measure is necessary to block it;
c) AND d) QMV of the representatives IN FAVOUR of the measure is necessary for it to be adopted.
Post-Lisbon: general rules on comitology must now be adopted by means of the ordinary legislative procedure.
ii. Delegated Acts – Art 290 TFEU
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 fo the legislative act’.
Scope of this power is the same as the scope of the RPS procedure.
FORM OF ACTS
Art 288 TFEU – post-Lisbon consolidation of the types of legal acts which the EU may adopt: regulations, directives and decisions.
Treaty of Lisbon does require that implementing acts and delegated acts indicate in their title that they are implementing or delegated acts respectively.
THE LISBON TREATY AND JUSTICE AND HOME AFFAIRS
Following ToL the basic framework for EU law is compromised in TFEU and TEU.
The Council
The JHA Council of Ministers; the provisions on JHA cover the ‘Area of freedom, security and justice’.
The European Commission
2 Commissioners: Home Affairs (internal security and immigration) and Fundamental Rights (Justice, Fundamental Rights, Citizenship)
and 2 Directorate-Generals
The European Parliament
LIBE – the Committee on Civil Liberties is dealing with most JHA issues (except for issues dealing with civil law, which are dealt with by the Legal Affairs Committee –JURI).
JHA DECISION-MAKING
Ordinary legislative procedure – joint decision making by Council and the EP.
Special legislative procedure –EP is either simply consulted and its opinion can be ignored, or its consent is required.
In other cases EP is ‘consulted’; in cases where ‘consent’ of the EP is needed the EP cannot change the text but can accept or reject it.
There is a possibility of ‘enhanced cooperation’ between at least 9 MSs where the EP is simply ‘notified’ of the decision to trigger enhanced cooperation.
There is no role for the EP re: Art 68 TFEU – the European Council adopting strategic guidelines for legislative and operational planning (eg Stockholm Programme); Art 71 TFEU- COSI and Art 73 – internal security agencies cooperation.
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