week 1 : EU lawmaking Flashcards
(11 cards)
What is ordinary legislative provedure?
○ ordinary legislative procedure (often referred to as OLP) is the default process for most EU legislation, introduced by the Lisbon Treaty (now codified in Article 294 TFEU).
Under this procedure, the Commission proposes legislation, and the European Parliament and the Council act as co-legislators, both having to agree on the legislative text for it to be adopted.
TFEU Article 289:
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.
This procedure is defined in Article 294.
What are the “special legislative procedures”?
○ Special legislative procedures are exceptions to the ordinary legislative procedure. They apply to specific policy areas identified in the Treaties.
In these procedures, the roles and powers of the Parliament and the Council can differ from the ordinary legislative procedure—often, the Council may have to act unanimously and Parliament may only be consulted or asked for consent (rather than co-deciding).
TFEU Article 289:
2. In 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.
In what ways can the “special legislative procedures” differ from the “ordinary legislative procedure”?
○ Voting requirements may be different; e.g., the Council may need unanimity rather than a qualified majority.
○ The Parliament’s role can also change; for instance, it might only have a consultation right, or a simple consent requirement (no ability to propose amendments).
○ In some special procedures, one institution may have greater influence and the other a more limited role compared to co-decision under the OLP.
How do you know whether the EU legislators need to follow the ordinary legislative procedure or a special legislative procedure?
○ You look at the specific Treaty provision establishing the EU’s competence in a given policy field. The Treaty article will typically explicitly state whether the measure is to be adopted via the ordinary legislative procedure or a special legislative procedure.
If the Treaty article says “the European Parliament and the Council shall adopt [the measure] in accordance with the ordinary legislative procedure,” then OLP applies. If it states that the Council must act unanimously after consulting or obtaining consent from Parliament, that indicates a special procedure.
If the EU legislators want to enact law in the field of environmental policy (Articles 191 and 192 TFEU) – do they need to follow the ordinary or a special legislative procedure?
○ Articles 191 and 192 TFEU generally prescribe the ordinary legislative procedure for EU environmental measures.
However, note there can be exceptions (e.g., if certain fiscal or planning measures are at issue under Article 192(2), unanimity might be required). But the basic rule for most environmental legislation is the ordinary legislative procedure.
Article 191: TFEU:
* 1. Union policy on the environment shall contribute to pursuit of the following objectives:
□ preserving, protecting and improving the quality of the environment;
□ protecting human health;
□ prudent and rational utilisation of natural resources;
□ promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.*
-> relevant for legislation in field of environment
Article 192: TFEU:
1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
-> ordinary procedure:
□ legislative procedure in field of for example climate change -
□ EP and the Council act as co-legislators
Both can amend proposal and both can reject
If the EU legislators want to enact a tax (Article 113 TFEU) – do they need to follow the ordinary or a special legislative procedure?
○ Article 113 TFEU on the harmonization of indirect taxes requires the Council to act unanimously after consulting the European Parliament.
○ This is therefore a special legislative procedure, because it departs from the standard co-decision (OLP) model. Special legislative procedure: □ Differs from ordinary legislative procedure: - Role of EP different - council and EP not co-legislators ◊ Only council can vote in favour of legislative proposal in field of indirect taxation ◊ EP merely consulted - can only give opinion } Cannot veto } Cannot amend - The Council doesn't use qualified majority voting ◊ Has to vote unanimously in favour of a proposal to make it law All MS represented in Council must vote in favour ○ Article 113: TFEU: *The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties, and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition*
What is the principle of subsidiarity, and where in the Treaties can it be found?
○ The principle of subsidiarity states that the EU should only act if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States themselves and can be better achieved at the EU level.
- Holds that EU shall only legislate :
1. If goals of legislation cannot sufficiently be achieved by EU MS themselves, (national insufficiency test) - absolute standard
and
2. Can be better achieved at Union level (comparative efficiency test) - relative standard
It is laid down in Article 5(3) TEU and elaborated further in Protocol No. 2 on the application of subsidiarity and proportionality. The aim is to ensure decisions are taken as closely as possible to EU citizens, respecting national-level competences where appropriate.
TFEU Article 5:
* 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. 5. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.*
EU as IO
- EU is International Organisation
○ Created by international treaties concluded b/w EU and MS
EU founded in 1950s as European Economic Community by 6 states
(France, Italy, Western Germany, Belgium, NL, Luxembourg)
Today 27 MS
EU primary law
2 main treaties ‘‘constitute’’ EU :
1. Treaty on European Union (TEU)
2. Treaty on the Functioning of the European Union (TFEU)
3rd important text 3. Fundamental Rights Charter (FRC)
- According to TEU Article 6, FRC has same legal value as EU treaties
Together TEU, TFEU ,and FRC form EU primary law
(EU primary law also sometimes called EU constitution)
-> Indicates EU no longer viewed as merely IO
(Instead in many respects EU comparable to federal states like US, Mexico, India)
EU secondary law
EU primary law authorises EU institutions to make further law
-> Law created on basis of EU primary law called EU secondary law
Examples:
- EU regulations
- EU directives
- EU decisions
relationship b/w primary and secondary EU law and national law:
Primary ranks higher than secondary
Primary and secondary both rank higher than national law
Challenging violations of Subsidiarity principle
○ Legislative proposals by Commission believed to violate Subsidiarity principle can be challenged by means of procedure laid down in Subsidiarity Protocol a Protocol to the EU Treaties
- Allows national parliaments to request Commission to review its legislative proposal, and ascertain that it doesn’t violate subsidiarity principle
○ Adopted legislative acts can be challenged under certain circumstances before CJEU - MS can as CJEU to annul a legislative act if it violates Subsidiarity principle - Judicial review limited to examining □ ''whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded limits of its discretion'' (CJEU in UK v Council - Working Time Directive 1996) -> EU legislative act can only be invalidated on basis of Subsidiarity principle if proposal has: ® Manifestly exceeded principle ® Manifestly violated principle Small violations don't justify annulment
