How is EU legislation Adopted?
The European Commission must prepare “impact assessments” for new any initiative that may have a significant economic, social and environmental impact. Such initiatives include legislative proposals, non-legislative initiatives (e.g. actions plans, negotiating guidelines for international agreements) and delegated and implementing acts. The European Commission publishes “roadmaps” and “inception impact assessments” on a dedicated website to inform stakeholders of planned consultations. Roadmaps describe the issue to be addressed, explain why EU action is needed and outline several policy options. An inception impact assessment replaces a roadmap in case an impact assessment is planned and provides a more detailed description of the problem, the policy objectives and an analysis of the potential impact of each policy option. If no impact assessment is planned, the roadmap should explain why.
Ordinary Legislative Procedure
The standard decision-making procedure in the EU is the “ordinary legislative procedure” formerly known as “co-decision”. Under this procedure, set out in Article 249 of the Lisbon Treaty, the Council and European Parliament share legislative power. Both institutions act on a proposal by the Commission which has the sole right of initiative (unless the Lisbon Treaty provides otherwise). Commission proposals for new or amended framework legislation are forwarded simultaneously to the Council and the European Parliament but also to the national Parliaments. National Parliaments have 8 weeks to check Commission proposals for compliance with the subsidiarity principle.
The Council and European Parliament have up to three readings, with a possibility to conclude at each stage, to agree on a Commission proposal. If no agreement is reached at the end of the second reading, the proposal is brought before a Conciliation Committee made up of an equal number of representatives of the Council and the European Parliament. If the Conciliation Committee agrees on a “joint text”, the text is sent to the Council and the European Parliament for a third reading. The final agreement of both legislators is essential before a proposal can become law.
Special Legislative Procedure
The “Special Legislative Procedure” is a collective name for a number of procedures set out in the Lisbon Treaty. As their name already indicates, these procedures are exceptions to the standard “Ordinary Legislative Procedure” and apply to specific cases defined in the Lisbon Treaty. Under the Special Legislative Procedures, the Council of the EU is in practice the sole legislator but must either consult or obtain the consent from the European Parliament depending on the case.
One of the special legislative procedures is the consent procedure used to adopt international agreements (Articles 216-218 of the Lisbon Treaty). The EU’s annual budget is also adopted under a special legislative procedure (Article 314 of the Lisbon Treaty).
Finding information on the status of a Commission Proposal
Beware of the word “adopted”! Press releases will tell us that the European Commission, the Council or the European Parliament adopted a proposal but this does not necessarily mean that a proposal has reached the final phase of the decision-making process. The European Commission’s Track Law-Making website provides information on the major stages of the decision-making process between the Commission and the other EU institutions. Another source of information on the status of legislative proposals is the European Parliament’s ”Legislative Observatory” which also monitors the EU decision-making process.
Delegated and Implementing Acts
The Council and European Parliament can delegate legislative power to the European Commission to adopt measures necessary for the execution of the general principles and objectives set out in framework legislation. The Commission only holds this power if the basic legal acts so provides. The objective of this delegation of power is to save time as all details for the implementation of framework legislation would otherwise need to be adopted under the lengthy “ordinary legislative procedure”. For example, in the EU’s Food Additives Regulation (framework legislation) the Council and European Parliament delegate the task to add or delete additives to/from the EU positive list to the Commission. The Lisbon Treaty amended the previous Treaty provisions on legislative delegation and introduced two types of delegation: “delegated acts” and “implementing acts”.
Delegated Acts: Article 290 of the Lisbon Treaty introduces the novel concept of “delegated acts” to supplement or amend non-essential elements of framework legislation, i.e. issues of general scope. On a case-by-case basis, the Council and European Parliament set the conditions for the delegation of power: objectives, content, scope and duration of the delegation are defined in each basic legal act. The Council or European Parliament may revoke this delegation and a delegated act adopted by the Commission can only enter into force if no objection has been raised by one of the legislators within a time period set by the basic act.
Delegated Acts are used for sensitive policy issues and cover the same type of measures as those adopted under the “Regulatory Procedure with Scrutiny” before the entry into force of the Lisbon Treaty.
Example: In the EU’s new food labeling regulation 1169/2011, the Council and European Parliament delegate the power to adjust and adapt the definition of engineered nanomaterials to technical and scientific progress to the Commission for a period of 5 years.
Implementing Acts: Article 291 of the Lisbon Treaty stipulates that: “where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers to the Commission.” As required by the Lisbon Treaty, a new framework regulation – Regulation 182/2011 – was adopted to set out procedures for the adoption of implementing acts. Regulation 182/2011 entered into force on March 1, 2011 and (partially) repeals the old “Comitology” Decision 1999/468/EC. Implementing Acts are used for routine implementation of framework legislation and cover issues of general OR individual scope.
Example: The authorization of GMO’s is done on a case-by-case basis and is therefore an issue of individual scope. Each new authorization is adopted as an Implementing Act. Fixing the standard import values to calculate the entry price for imports of fruits and vegetables from third countries is an issue of general scope. The standard import values are published as Implementing Acts.
“Comitology” is EU jargon for the procedure the Commission follows to execute its implementing powers conferred on it by the EU legislators (Council and European Parliament). It refers to the committees that deliver an “opinion” on draft implementing measures before the Commission can adopt them. “Comitology Committees” consist of representatives from each EU Member State and are chaired by a Commission official. Comitology Committees act as a forum for discussion on implementing measures and as a communication channel between the Commission and the Member States’ national authorities. The extent to which the committees’ opinions are binding depends on the type of procedure.
“Pre- Lisbon” Comitology
Before the entry into force of the Lisbon Treaty, Council Decision 1999/468/EC set out all the different comitology procedures:
Advisory procedure: The Commission was not obliged to follow the committee’s opinion. This procedure was used for politically non-sensitive issues.
Management procedure: When the comitology committee delivered a “negative” opinion the draft measure could be adopted and was referred to the Council. This procedure was used to manage programs affecting the EU budget incl. CAP.
Regulatory procedure: When the comitology committee delivered a “negative” opinion or “no opinion” the draft measure could be adopted and was referred to the Council. The European Parliament had the “RIGHT of scrutiny” but could not veto a proposal. This procedure was used to adopt measures of general scope.
Regulatory procedure with scrutiny: In this procedure, introduced in 2006 as an amendment to Council Decision 1999/468/EC, both the Council and European Parliament can veto a proposal. Even if the comitology committee delivers a “positive” opinion, the Council or European Parliament can still block the draft measure. This procedure is used to adopt measures of general scope designed to amend non-essential elements of basic legal acts adopted by co-decision (see also “Post-Lisbon Comitology”).
- Regulatory Procedure with Scrutiny (flow chart)
Article 291 of the Lisbon Treaty on “Implementing Acts” explicitly required a new framework regulation to set out procedures for the adoption of implementing measures under the control of the Member States. European Parliament and Council Regulation 182/2011 which entered into force on March 1, 2011 maintains the system of comitology committees and sets out two comitology procedures instead of four: the “advisory procedure” and the “examination procedure”. The examination procedure replaces the management procedure and the regulatory procedure. References to the management and regulatory procedures in legislation adopted before March 1, 2011 are to be understood as references to the examination procedure. Under the examination procedure, the Commission may only adopt a draft measure if the comitology committee delivers a positive opinion. If a negative opinion – and in certain cases a “no opinion” – is delivered, the Commission may either propose an amended version of the draft measure or refer the matter to the “Appeal Committee”. Referral to the Council has been replaced with referral to the Appeal Committee which is composed of Member State representatives of the “appropriate level”.
- Examination Procedure (flow chart)
European Parliament and Council Regulation 182/2011 repeals Council Decision 1999/468. However, for basic legal acts adopted before the entry into force of the Lisbon Treaty, the regulatory procedure with scrutiny is provisionally maintained. Although the regulatory procedure with scrutiny covers the same type of measures as “Delegated Acts” there was no automatic alignment. Basic legal acts are being revised to align them to the new distinction between “delegated” and “implementing” acts established by the Lisbon Treaty. Until this alignment is finalized, the regulatory procedure with scrutiny will continue to exist.
Publication of EU Legislation
EU regulations, directives and decisions are published in the Official Journal. Amendments to EU legislation are usually published in new and separate regulations and directives. Consolidated texts, i.e. the consolidation of a basic legal act and all its subsequent amendments into one text, are available on the European Commission’s “Eur-lex” website.