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LEGISLATIVE PROCEDURES AFTER TREATY OF LISBON

Alfred KELLERMANN*

Abstract The article will evaluate the impact of the Lisbon Treaty and the relevant changes made on the legislative procedures. To understand the legal implications of the new provisions for the legislative process, according to the aims and objectives of the Laeken Declaration, the following analysis is divided in three main parts: attribution of the powers and types of competences (I), the actors in the legislative procedures (II), the legislative procedures (III).

Keywords: Treaty of Lisbon; categories and types of competences; legislative procedures; legislative acts; Articles 290 and 291 TFEU; new “comitology” rules

INTRODUCTION This article will investigate what have the Lisbon amendments meant for the constitutional foundations and legislative procedures of the European Union. According to Schütze1, “the Lisbon Treaty now consolidates these foundations through the introduction of Article 291 of the Treaty on the Functioning of the European Union (TFEU). This new provision clarifies that the primary responsibility for the implementation of European law, lies with the Member States. However it hastens to add that whenever uniform conditions for the implementation of European law are needed, implementing powers will be conferred on the Commission (or Council). If Article 291(2) TFEU were seen as a legal basis, the Lisbon Treaty could represent a nocturnal revolution.”2 Under the Lisbon Treaty, Article 1 of the Treaty on European Union (TEU) provides that the Union “shall be founded on the present Treaty and on the Treaty on the functioning of the European Union”. The European Community (EC) no longer exists under this name but is succeeded by the European Union, which is now given explicit legal personality (Article 47 TEU). The old third pillar issues are now belonging to the EU Decision- making (TFEU Title V Area of Freedom, Security and Justice). Only the old second pillar

* EU legal and Policy Advisor; visiting Professor in the Law of the EU. 1 Robert Schütze, From Rome to Lisbon: ”Executive Federalism” in the (New) European Union, CML Rev 47, 1385-1427, 2010 [a Romanian version of the article was published in R.R.D.E. No. 2/2011]. 2 What was the EC Treaty is now renamed “Treaty on the Functioning of the European Union”, and the former changes to this Treaty that at present can be found in Title II of the EU Treaty are incorporated into the Treaty on the Functioning of the European Union (TFEU).

1 issues maintain a special position in the EU Treaty (Articles 23-46 TEU on Common Foreign and Security Policy)3. The Lisbon Treaty, which entered into force on 1st December 2009, is the response to the Laeken Declaration of the European Council of December 2001. This declaration proclaimed that there is a need for improvements in the areas of democratic legitimacy and transparency of the European Union institutions, the role of national Parliaments, the efficiency of decision-making and the workings of the institutions and the coherence in European foreign policy. The Convention on the Future of Europe drafted the Draft Constitutional Treaty which was replaced finally by the Treaty of Lisbon. The content of the Treaty of Lisbon is as will be seen very similar to that of the Constitutional Treaty4. In the following we will evaluate the impact of the Lisbon Treaty and the relevant changes made on the legislative procedures. To understand the legal implications of the new provisions for the legislative process, we have according to the aims and objectives of the Laeken Declaration5 our analysis divided in three main parts: attribution of the powers and types of competences (I); the actors in the legislative procedures (II); the legislative procedures (III).

PART I - ATTRIBUTION OF POWERS AND TYPES OF COMPETENCES Any view concerning the provisions on competences in the Lisbon Treaty will be affected by the aims of the Laeken Declaration that those provisions were designed to serve. The issue of competences is central to the relationship between the EU and the Member States. The EU had always attributed competence. It could only operate within the powers granted to it by the Member States. Competences are attributed to the European Union through legal basis provisions. As under the previous legal framework, under the Lisbon Treaty there are special and general basis provisions. The general basis provision continues to include a residual provision: Article 352 TFEU (former and amended version of Article 308 EC): “If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, […], shall adopt the necessary measures” (emphasis added). Legal basis provisions typically define the area of competence, the form of action made possible, and the legislative procedure including in particular the voting modalities with in the Council. This may affect the exercise of the Union’s competences. The Lisbon Treaty mentions as new basis provisions and internal policy areas Tourism (Title XXI), civil protection (Title XXII) and administrative cooperation (Title XXIII).

3 European Basic Treaties Treaty on European Union, Treaty on Functioning of the EU and Charter of Fundamental Rights, Kluwer, 2010, Edited by Dr R. H. van Ooik and Dr T. A. J. A. Vandamme, Europa Institute University of Amsterdam. 4 Paul Craig, The Lisbon Treaty, Law, Politics, and Treaty Reform, Oxford University Press, 2010. 5 European Council, 14-15 December 2001.

2 Articles 4(1) and 5 TEU state the fundamental principles relating to competences6. In principle the attribution of powers is reaffirmed. In addition it is stated twice that competences not given to the European Union remain with the Member States. The TFEU contains a special title on “Categories and areas of Union competence” (Articles 2- 6). The general approach is to delineate different categories of competence for different subject matter areas and to specify the legal consequences for the EU and Member States of this categorization7.

1. Types of competences (Article 2 TFEU)8

6 Article 4 TEU: “1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States [...]”(emphasis added). Article 5 TEU (ex Article 5 TEC): “ 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. 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. […] 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.” (emphasis added). 7 Paul Craig, The Lisbon Treaty, Law, Politics, and Treaty Reform, p. 158. 8 Article 2 TFEU: “1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. 2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence. 3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide. 4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy. 5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations” (emphasis added).

3 - Exclusive competence, Article 2(1) TFEU: only the Union may legislate and adopt legally binding acts, the Member States only if empowered by the Union or for the implementation of Union acts. - Competence shared with the Member States, Article 2(2) and Article 4 TFEU: the Union and the Member States shall exercise their competence to the extent that the Union has not exercised its competence; - Competence to carry out actions to support, coordinate and supplement the actions of the Member States. Article 2(5) and Article 6 TFEU: EU competence does not supersede the Member States’ competence in the relevant areas.

2. List of most relevant areas of competences Article 3 TFEU9 contains an exhaustive list of exclusive competences in the following areas: customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; common commercial policy. Under certain conditions: The Union shall also have exclusive competence for the conclusion of an international agreement. Article 4 TFEU10 states that shared competences relate to areas that are not referred to in Articles 3 and 6 TFEU:

9 Article 3 TFEU: “1. The Union shall have exclusive competence in the following areas: (a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the euro; (d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy. 2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope” (emphasis added). 10 Article 4 TFEU: “ 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty […]” (emphasis added).

4 Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in TFEU; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in TFEU. Article 6 TFEU11 contains an exhaustive list of competences to carry out actions to support, coordinate and supplement the actions of Member States: The areas of such action shall, at European level, be: (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and sport; (f) civil protection; (g) administrative cooperation.

3. Limitations to the exercise of competences The Lisbon Treaty distinguishes between the existence of competence and the use of such competence, which is determined by subsidiarity and proportionality. The exercise of Union competences is limited by the principle of proportionality (Article 5(4) TEU) and in the case of non-exclusive competences by the principle of subsidiarity (Article 5(3) TEU). Protocol No. 2 on the application of the principles of subsidiarity and proportionality has been renovated which apply only to draft legislative acts. The most important innovation in this Protocol is the enhanced role accorded to national Parliaments. The Commission must send all legislative proposals to the national Parliaments at the same time as to the union institutions. National Parliaments are called upon to “police” compliance with the principle of subsidiarity (as explained by Protocol No.1 on the role of national Parliaments in the EU12). A national Parliament may within 8 weeks send a reasoned opinion to the Presidents of the European Parliament, Council and Commission as to why it considers that the proposal does not comply with subsidiarity.

Questions and comments. Has greater clarity in theory as to the division of competences in all three categories according to the aims of Laeken between the EU and the Member States after Lisbon been realized?

11 Article 6 TFEU: “The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and sport; (f) civil protection; (g) administrative cooperation” (emphasis added). 12 OJ C 306, 2007, p. 148.

5 The complexity of the provisions and the demarcation of the boundaries in practice with the areas of competence will in practice need close attention within any such area. The devil is always in the detail. In some cases the interpretation of the European Court of Justice might be involved.

PART II - THE ACTORS IN THE LEGISLATION PROCESS

A. The European Union’s institutions listed as actors in Article 13 TEU13

1. European Parliament More generally the Lisbon Treaty brings about an enhanced role of the European Parliament through a broader use of the ordinary legislative procedure and in the context of specialized legislative procedures by the requirement of Parliament’s consent (rather than previously merely consultation; e.g. Article 19(1) TFEU and Article 352 TFEU). The European Parliament’s Members (“MEPs”) are directly elected every five years by universal suffrage. It organises itself as a normal multi-party parliament in conducting most of its work in its committees and sitting in political groupings rather than national delegations. However, its political groups are very weak due to their status as broad ideological groups of existing national parties. The Parliament’s powers have grown considerably since the 50s as new legislative procedures granted more equality between Parliament and Council. It also has gained greater powers over the appointment of the Commission, which has always been responsible to it (Parliament has the power of censure). It has a decisive role in electing the President of the European Commission. It also include the whole Commission, including the new High Representative of the Union for Foreign Affairs and Security Policy (“HR for CFSP”)/Commission Vice-President (Article 17(7) TEU; Declarations No 6 and 11). Parliament has now gained expanded legislative powers thanks to the extension of the codecision procedure and new budgetary procedure (Article 314 TFEU). Further has the introduction of Articles 290 and 291 TFEU enlarged the powers of the European Parliament in the field of “Comitology”. The law in this area has become more complex14 because the Lisbon Treaty in Article 291 TFEU recognized a third category of legal acts, the implementing acts.

13 Article 13 TEU: “1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. 2. The Union's institutions shall be: the European Parliament, the European Council, the Council, the European Commission (hereinafter referred to as "the Commission"), the Court of Justice of the European Union, the European Central Bank, the Court of Auditors” (emphasis added). 14 Robert Schütze, From Rome to Lisbon: ”Executive Federalism” in the (New) European Union.

6 Composition: 750 members maximum + 1 President. Revised distribution of seats (decreased proportionality, minimum threshold of six MEPs per Member State and maximum of ninety-six seats). Exact distribution to be decided by the European Council (Article 14(2) TEU; Declaration No. 415).

2. European Council The European Council is the newcomer in the list of formal EU institutions (Article15 TEU; Articles 235 and 236 TFEU). - Can adopt binding (non-legislative) acts (“European Decisions” = “Common Strategies” under current Article 13 TEU, which may be challenged before the Court of Justice (Article 263 TFEU, Article 265 TFEU). - Meets at least four times a year (Article 15 TEU) - Chaired by an elected President.

3. Council of Ministers The Council shall jointly with the European Parliament exercise legislative and budgetary functions. (Article 16(1) TEU). - Remains the main decision maker (Article 16(1) TEU). - Renovated decision making procedures. - Legislative meetings to be held in public (Article 16(8) TEU). - Council configurations to be specified by European Council Decision (Qualified majority voting – “QMV”); Article 16(6) TEU, Article 236 TFEU) - Sectoral Councils chaired by troikas of Member States for a period of 18 months (Article 16(9) TEU, Article 236 TFEU). The Council of the European Union (or Council of Ministers) represents the national Governments of Member States, and hence its composition is essentially the number of member states (27) though votes are weighted according to the population of each state (see procedures below for clarification). As such, it does not sit according to political groups and rather than conducting most of its work in committees, much of its work is prepared by diplomatic representatives (COREPER). Qualified majority voting in the Council (QMV) The Lisbon Treaty increased the areas to which qualified majority voting applies, although unanimity is still the rule in over 70 areas. The requirements for a qualified majority have always been a battle ground between the Member States and more especially between small, medium-sized and large Member States. Use of qualified majority voting (QMV) is extended to new areas (e.g. Article 53 TFEU) and becomes the general rule (Article 16(3) TEU), except where the Treaty provides

15 OJ C 306, 2007, p. 249.

7 otherwise. The provisions of Lisbon Treaty on the definition of a qualified majority are complex, and are the same as those in the Constitutional Treaty. Article 16(4) TFEU: Defined as 55% of Member States, comprising at least fifteen of them, and representing 65% of the population: a blocking minority must include four Member States. This new QMV will not become effective before 2014, and Member States may continue to have recourse to the Nice voting rules until 2017 (Article 16 TEU and Articles 3 and 4 of Protocol No. 36 on transitional provisions16); Exceptions are: 1) where the Council does not act on a proposal from the Commission or from the High Representative for Foreign Affairs the qualified majority must be 72% of the Member States, comprising 65% of the EU population (Article 238(2) TFEU); 2) when not all the Member States vote in the Council, then at least 55% of the Member States, comprising 65 % of the EU population. It has been estimated that the voting rules in the Lisbon Treaty will increase the probability of securing the passage of legislation through the Council as compared with those of Nice Treaty. However, academic study has shown that voting in the Council has been relatively rare, even in areas where qualified majority voting operates, and that decision making by consensus has been the norm. However the “Ioannina compromise” applies (Declaration No 717); “emergency brakes” are made available.

4. European Commission - Union legislative acts may only be adopted on the basis of a Commission proposal; monopoly of initiation of legislation (Article 17(2) TEU) extended to the former pillar of police and judicial cooperation in criminal matters with some exceptions (Articles 76 and 289(4) TFEU); - Oversees the application of Union law (Article 17(1) TEU); - Ensures the Union’s external representation, “with the exception of the common foreign and security policy, and other cases provided for in the Treaties” (Article 17(1) TEU); - President elected by European Parliament and nominated by the European Council by QMV taking account of the result of the parliamentary elections (Article 17(7) TEU). The Commission’s term of office shall be five years. - The number of Commissioners will be reduced to two-thirds of the number of Member States after 2014, unless the European Council decides otherwise (Article 17(5) TEU, Declaration No. 10); - The college includes the High Representative of the Union for Foreign Affairs and Security Policy as one of the Commission’s Vice-Presidents (Article 17 TEU). The Commission has a virtual monopoly on the introduction of legislation into the legislative process, a power which gives the Commission considerable influence as an

16 OJ C306, 2007, p. 159. 17 OJ C 306, 2007, p. 250.

8 agenda setter for the EU as a whole. And while the Commission frequently introduces legislation at the behest of the Council or upon the suggestion of Parliament, what form any legislative proposals introduced take is up to the Commission. Under the ordinary legislative procedure (see below), the negative opinion from the Commission also forces the Council to vote by unanimity rather than majority. There are also limited instances where the Commission can adopt legislation on its own initiative.

5. Court of Justice of the European Union - Expanded jurisdiction; basic exception: common foreign and security policy (“CFSP”) (Articles 19 and 24(1) TEU). - Renamed Court of the Union: the CFI becomes the “General Court” (Articles 19 and 24(1) TEU). - Consultative panel for the appointment of judges and Advocates-General (Articles 253- 255 TFEU). It may be expected that after Lisbon, the European Court of Justice will be involved in control over and interpretation of delegated and implemented acts according to Articles 290 and 291 TFEU concerning comitology.

6. European Central Bank and the Court of Auditors - The European Central Bank becomes a formal EU institution (Article 13 TEU). - In Article 13 TEU, the ECB is mentioned even before the Court of Auditors.

B. The additional actors not listed in Article 13 TEU

1. New High Representative for Foreign Affairs and Security Policy/Vice President of the European Commission The European Council acting by QMV, with the agreement of the President of the Commission, appoints the HR of the Union for CFSP (Article 18 (1) TEU). - Combination of functions of current HR for CFSP and Commissioner for External Relations (Article 18 TEU, Declarations No. 6 and 12). - Head of the new European External Action Service whose activities are determined by a specific decision18 (Article 27(3) TEU).

2. The President of the European Council

18 Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ L 201, 2010, p. 30).

9 - Elected for 2.5 years (renewable once) by the European Council (QMV; Article 15(5) TEU). - Chairs the European Council and ensures the preparation and continuity of its work (Article 15(6) TEU). - “At his level and in his capacity”, ensures the external representation of the Union on issues concerning the CFSP, without prejudice to the powers of the HR for CFSP (Article 15(6) TEU).

3. National Parliaments One of the means to increase democracy in the EU was the possible involvement of the national Parliaments in the decision-making process. The main changes provided for in Article 12 TEU (of the Lisbon Treaty) are the following (see Protocol No. 1 on the role of national Parliaments in the European Union and Protocol No. 2 on the application of the principles of subsidiarity and proportionality): - Commission consultation documents shall be forwarded directly to the national Parliament. - Draft legislative acts of the Union are sent to the national Parliaments. - The right of the national Parliaments to object to a draft legislative proposal on the ground of a breach of subsidiarity (Article 12(b) TEU). - According Article 69 TFEU national Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 519 comply with the principle of subsidiarity, in accordance with the arrangements laid down in the Protocol on the application of the principles of subsidiarity and proportionality. - If the objection is supported by at least one third of the national Parliaments, the proposal should be reconsidered (“yellow card procedure”). In the area of Freedom, Security and Justice (Article 7 Protocol No. 2 in conjunction with Article 76 TFEU): threshold will be a quarter. - If the Commission wishes to maintain its proposal it must give reasons for the decision. - If the objection was supported by at least a simple majority of the national Parliaments, the Commission must substantiate its refusal to withdraw the proposal in a reasoned opinion, which will be forwarded to the Council and the European Parliament (“orange card procedure”). - The ECJ will still be competent to review a legislative act with regard to its conformity with the principle of subsidiarity on the initiative of a Member State based on Article 263 TFEU. The national parliaments can only act through their governments. - National Parliaments are further involved in judicial cooperation in civil matters. Article 81(3) TFEU: The proposal referred to in the second subparagraph shall be notified to the

19 “Judicial cooperation in criminal matters” and “Police cooperation”, respectively of the Title V – Area of freedom, security and justice (TFEU).

10 national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. - National Parliaments are further involved in the scrutiny of Europol’s activities (Article 88(2) TFEU) and the evaluation of Eurojust’s activities (Article 85(1) TFEU). The national Parliaments have an “early warning mechanism”, whereby if one third raises an objection - a “yellow card” - on the basis that the principle of subsidiarity has been violated then the proposal must be reviewed. If a majority do so - an “orange card” - then the Council or Parliament can vote it down immediately. If the logistical problems of putting this into practice are overcome, then the national Parliaments would form a “virtual third chamber”. One of the means to increase democracy in the European Union was the possible involvement of the national Parliaments in the decision-making process.

Questions and comments Does in practice the involvement of national Parliaments in reviewing the EU legislative procedures improve democracy and strengthen the role of national Parliaments? This greater involvement depends not only on the new rules but also on the knowledge of European law and the political will of the respective Members of national Parliaments. Since often national interests have priority in national Parliaments, the final results of the role of national Parliaments according the Lisbon Treaty have to be awaited. However it is remarkable that the decision-making of national Parliaments has been increased. In some cases they can veto a decision of the European Council or Council of Ministers. See for example Article 48(7) TEU on simplified revision procedures and Article 81 (3) TFEU on judicial cooperation in civil matters.

4. Committee of the Regions The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in advisory capacity (Article 13(4) TEU). The Committee of the Regions is granted access to the Court of Justice to defend its prerogatives, i.e. becomes a “semi-privileged applicant” (Article 263(3) TFEU).

5. European Union bodies, offices and agencies The general strategy in the Lisbon Treaty has been to revise the relevant provisions so as to make express reference to agencies. The trend to establish regulatory agencies in the EU is unbroken20. By now numbering 29, they fulfil important administrative functions in the EU21. They engage in operational functions and support decision-making processes in such areas as aviation, food safety, environment, border control activities, human rights

20 EU Regulatory Agencies in EU External Relations, by Dr Andrea Ott, Maastricht University, European Foreign Affairs Review 13, 515-540, 2008; Paul Craig, The Lisbon Treaty Law, Politics and Treaty Reform, p.100. 21 For a list of EU agencies and bodies see: http://europa.eu/agencies/document/index_en.htm.

11 protection and defence projects, as the following examples show: European Aviation Safety Agency (EASA), European Food Safety Agency (EFSA), European Environment Agency (EEAa), European Agency for the Management of Operational Cooperation at the External Borders of the EU Member States (FRONTEX) and European Fundamental Rights Agency (FRA), Some of these agencies are mentioned in the Treaties, like European Defence Agency (EDA) (Article 42(3) TEU), Eurojust (Article 85 TFEU) and Europol (Article 88 TFEU). The regulatory agencies form independent bodies, each based moreover on individual founding regulations and assigned with different tasks. The decisions of the bodies, offices or agencies can be subject to judicial control where they are intended to produce legal effects vis-à-vis third parties (Article 263(1) TFEU).

PART III - LEGISLATIVE PROCEDURES OF THE EUROPEAN UNION

1. Introduction The legislature of the European Union is primarily composed of the European Parliament and the Council of the European Union. Competencies in scrutinizing and amending legislation are usually divided equally between the two, while the power to initiate laws is held by the European Commission. National Parliaments also have a minor delaying power. Normally legislative proposals need to be approved by both the Parliament and the Council to become law. The relative power of a particular institution in the legislative process depends on the legislative procedure used, which in turn depends on the policy area to which the proposed legislation is concerned. In some areas, they participate equally in the making of EU law, in others the system is dominated by the Council. Which areas are subject to which procedure is laid down in the Treaties of the European Union. The power to amend the Treaties of the European Union, sometimes referred to as the Union’s primary legislation, is reserved to the Member States and must be ratified by that in accordance with their respective constitutional requirements. An exception to this are so-called “passerelle clauses” in which the legislative procedure used for a certain policy area can be changed without formally amending the Treaties.

2. Ordinary legislative procedure The ordinary legislative procedure formerly known as codecision procedure is the main legislative procedure by which directives and regulations are adopted. This legislative procedure was introduced with the Maastricht Treaty as the codecision procedure and was initially intended to replace the cooperation procedure (see below). The codecision procedure was amended by the Treaty of Amsterdam and the number of legal bases where the procedure applies was greatly increased by both the latter Treaty and the Treaty of Nice. It was renamed the ordinary legislative procedure and extended to nearly all areas (such as agriculture, fisheries, transport, structural funds, the entire budget and

12 the former Third Pillar by the Treaty of Lisbon. The deadlines in the various stages of the procedure remain the same as with Amsterdam and Nice Treaties. Also the necessary majorities for the adoption of a position by the co-legislators remain the same, except that the Council decides now in all cases by qualified majority; the few cases where the Council previously needed unanimity have also passed to qualified majority voting. But there are nevertheless some new distinctive elements in the ordinary legislative procedure22: - Legislative proposals subject to the ordinary legislative procedure can be submitted not only from the Commission, in line with its “right of initiative”, but in specific cases laid down in the Treaty also on the initiative of a group of Member States, on a recommendation by the European Central Bank, or at the request of the Court of Justice. In these cases certain provisions concerning the role and prerogatives of the Commission do not apply (see Articles 289(4) and 294(15) TFEU). -  National Parliaments have the right to intervene immediately after the submission of a proposal for a legislative act with a view to undertaking a subsidiarity check within an eight weeks deadline. -  The institutional position of the European Parliament is strengthened further by making it clear that – like the Council – the Parliament is adopting in first and second reading a “position” and not just an “opinion” anymore. - In the specific cases laid down in Articles 48, 82 and 83 TFEU a member of the Council can make use of the “emergency brake” mechanism by requesting to refer the issue to the European Council. In that case the ordinary legislative procedure is suspended for up to four months. Within this deadline the European Council can decide either to refer the draft back to the Council or take no action or request the Commission to submit a new proposal. -  Basis for the negotiations in conciliation are the respective positions of Parliament and Council in second reading (and not the Council’s common position and Parliament’s second reading amendments anymore). The codecision procedure (Articles 289 and 294 TFEU) is now deemed to be the ordinary legislative procedure, and this procedure consists in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. However the Parliament and the Council under Article 225 TFEU and Article 241 TFEU may also request the Commission to submit appropriate proposals in order to attain the objectives of the Treaty. The European Parliament and the Council must meet in public when considering and voting on a draft legislative (Article 15(2) TFEU). The European Parliament and the Council exercise legislative and budgetary functions jointly (Articles 14(1) and 16(1) TEU). The Lisbon Treaty continues the trend of previous Treaty provisions regarding the limitation of unanimity voting. The codecision procedure, which is characterized by

22 Guide to Codecision and Conciliation under the Treaty of Lisbon, European Parliament, p. 7/52, http://www.europarl.europa.eu/code/frfault_en.htm.

13 qualified majority voting (QMV), becomes the “ordinary legislative procedure”. Further there are so-called “passerelle clauses” that provide for the extension of the ordinary legislative procedure or QMV within the Council (e.g. Article 48(7) TEU) or both. The following are examples of provisions that newly provide for the ordinary legislative procedure (with QMV): - Articles TFEU: 22(2) right of citizens to vote; 43(2) agricultural policy and fisheries; 48, coordination of social security; 77(2), border checks, asylum, and immigration; 81(2) judicial cooperation in civil matters; 82(2) and 83(2) judicial cooperation in criminal matters; 177 Structural Funds; 257, Creation of specialized Courts. With the Treaty of Lisbon the scope of codecision almost doubles to reach 85 activity areas (“legal bases”) from previously 44 under the Treaty of Nice23. On top of that codecision is now extended to a significant number of key activity areas where Parliament had previously only a right of consultation. Besides the above mentioned areas it also counts for implementing acts (“comitology”). Subject to codecision become also certain areas where Parliament was previously not involved at all. The main such area is the common commercial policy, movement of capital and measures related to the Euro. Lat but not least certain legal bases previously subject to the assent procedure such as concerning the European Central Bank and the European System of Central Banks, the Structural Funds and the Cohesion Fund. Article 294 TFEU outlines ordinary legislative procedure in the following manner. The Commission submits a legislative proposal to the Parliament and Council. At the same time it forwards it to national Parliaments. If at least 1/3 of national Parliaments are of the opinion that the draft does not comply with the subsidiarity principle, then the draft must be reviewed (“yellow card”), This threshold falls to ¼ for a draft legislative proposal submitted on the basis of Article 76 TFEU (judicial cooperation in criminal matters and police cooperation). If a simple majority of national Parliaments consider that the draft legislative proposal does not comply with the principle of subsidiarity, the draft must be reviewed by the Commission (“orange card”).

Three readings and conciliation The ordinary legislative procedure still consists of up to three readings with the possibility of the two co-legislators to conclude at any reading if they reach an overall agreement in the form of a joint text. At the first reading Parliament adopts its position. Within the Parliament the proposal is referred by the President to the Committee responsible for consideration on the subject matter. The responsible committee appoints a “rapporteur”, whose main task it is to lead the proposal through the various stages of the procedure. On controversial or “technical” dossiers, it is not unusual to organise hearings with experts or commission studies or impact assessments. If the Council approves the Parliament’s wording then the act is adopted. If not, it shall adopt its own position and pass it back to Parliament with explanations. The Council concludes its first reading by establishing a text which is

23 For a list see: http://ec.europa.eu/codecision/docs/legal_bases_en.pdf.

14 known as “common position”. The Commission also informs Parliament of its position on the matter. During the whole first reading stage, neither the Parliament nor the Council is subject to any time limit by which they must conclude their first reading. Unlike the first reading, the second reading is subject to strict time limits. Within three months (or four, if an extension has been agreed) of the announcement of the Council common position in the plenary, the Parliament must approve, reject or amend it at second reading. If the Parliament takes no decision by the expiry of the deadline, the act is deemed to have been adopted in accordance with the common position. At the second reading, the act is adopted if Parliament approves the Council’s text or fails to take a decision. The Parliament may reject the Council’s text, leading to a failure of the law, or modify it and pass it back to the Council. The Commission gives its opinion once more. Where the Commission has rejected amendments in its opinion, the Council must act unanimously rather than by majority. If, within three months of receiving Parliament’s new text the Council approves it, then it is adopted. In recent years there has been a growing trend towards agreements at first reading. In the last parliamentary term (2004-2009), 327 codecision procedures (72% of the total) were concluded at first reading, 104 were (23%) at second reading and 23 (5%) at third reading after conciliation24. A Working Party on Parliamentary Reform set up on 23 April 2008 a “Code of Conduct for Codecision Negotiations”25. The purpose of this Code is to set out uniform rules for Members and EP staff alike on how to conduct negotiations with the other institutions in the various stages of the codecision procedure. The primary focus of these rules is on transparency, legitimacy, efficiency and accountability, with the Committee(s) involved as the key actor(s) for such negotiations. The Code of Conduct was included afterwards in the EP Rules of Procedure, with a view to enhancing its status and improving its visibility26. If the Council cannot accept all the amendments adopted by Parliament in second reading, then the Council President, with the agreement of the Parliament President, convenes the Conciliation Committee.

Conciliation and third reading Conciliation consists of direct negotiations between the two co-legislators (Parliament and Council) in the framework of the Conciliation Committee, with a view to reaching agreement in the form of a “joint text”. The Conciliation Committee is recently composed

24 Codecision and Conciliation. A Guide to how the Parliament co-legislates under the Treaty of Lisbon, November 2009, http://www.europarl.europa.eu/code/information/guide_en.pdf. 25 Guide to Codecision and Conciliation under the Treaty of Lisbon, European Parliament, p. 14/52. For more information see also: http://www.europarl.europa.eu/multimedia/eplive/cont/20090326MLT52710/media_20090326MLT52710. pdf. 26 Annex XXI - Code of conduct for negotiating in the context of the ordinary legislative procedures; Rules of Procedure, 7th parliamentary term, March 2011 (OJ L 116, 2011, p. 150).

15 after the June 2009 elections for the Parliament in line with the political strength of the political groups. The Conciliation Committee consists of two delegations: the Council delegation composed of one representative of each Member State (Ministers or their representatives) and the Parliament delegation, composed of an equal number of Members. Thus, the Conciliation Committee consists as from 1 January 2007 of 54 (27+27) members. The Conciliation Committee must be convened within six weeks (or eight, if an extension has been agreed) of the Council concluding its second reading and officially notifying Parliament that it is not in a position to accept all the latter’s second reading amendments. It is constituted separately for each legislative proposal requiring conciliation and has at its disposal six weeks (or eight weeks, if an extension has been agreed) to reach an overall agreement in the form of a “joint text”. The starting points for its considerations are the positions of the Parliament and the Council at second reading. The Commission also takes part in the proceedings with a view to reconciling the positions of the Parliament and the Council. If the Conciliation Committee does not reach an agreement, or if Parliament or the Council does not approve the “joint text” at third reading, the act is deemed not to have been adopted. In this case, the codecision procedure can only be restarted with a new legislative proposal from the Commission. The Committee draws up a joint text on the basis of the two positions. If within six weeks it fails to agree a common text, then the act has failed. If it succeeds and the Committee approves the text, then the Council and Parliament (acting by majority) must then approve the said text. If either fails to do so, the act is not adopted. When the Council is ready to present its position on the EP amendments, even if it has not yet concluded its second reading, a tripartite meeting between the Parliament, the Council and the Commission, known as a “trilogue”, is arranged. In these meetings the delegation of the Council is composed of the representatives of the Member States, who are normally the Deputy Permanent Representatives (Chairs of COREPER I) of each Member State. Depending on the file these may be the Permanent Representatives (COREPER II). Conciliation Committee meetings are mostly held in Brussels. Normally a short “trilogue” meeting is held before the meeting of the Conciliation Committee. On the Agenda is Part A: Amendments on which agreement has been reached and Part B: Amendments on which agreements has still to be found. The discussion is limited to Part B. The presence of the Commission at all formal and informal conciliation meetings is necessary in order to fulfil the role attributed to it by Article 294(11) TFEU, i.e. to take all necessary initiatives with a view to reconciling the positions of the European Parliament and the Council27. After a final conciliation, the Parliament, the Council and the Commission hold a joint press conference. After the successful completion of the third reading in both institutions, the Presidents of Parliament and the Council have to sign the approved joint text known as LEX. After their signature, LEX texts are published in the Official Journal (Article 297 TFEU).

27 Guide to Codecision and Conciliation under the Treaty of Lisbon, European Parliament, p. 26/52.

16 Questions and comments There is no doubt that the Lisbon Treaty has improved democratic input by making the system more “parlementarian” than before. The European Parliament has been empowered through the extension of the ordinary legislate procedure to new areas, and has greater control over the appointment of the Commission President.

3. Special legislative procedures The Treaties have provisions for special legislative procedures to be used in sensitive areas. The Council or Parliament adopts alone with just the involvement of the other. Notable procedures are the consultation and consent procedures, though various others are used for specific cases. Special legislative procedures apply in limited areas e.g. taxation (Article 113 TFEU) and measures concerning social security and social protection for migrant Union citizens (Article 21(3) TFEU). In certain circumstances, the Council may also decide (by unanimity) to extend the use of QMV (see also Article 81(3) TFEU). The procedure of enhanced cooperation has been renovated (Article 20 TEU, Articles 326-334 TFEU), since at least nine Member States participate in it. Suspension of the procedure by reference to the European Council: Enhanced cooperation for judicial cooperation in criminal matters and police cooperation. Article 82(3), 83(3), 86(1) and 87(3) TFEU provide for special rules on enhanced cooperation in case a draft directive “would affect fundamental aspects” of the criminal system of a Member State. It concerns the following issues: - Article 82(3) TFEU: mutual recognition of judgments and judicial decisions and judicial cooperation in criminal matters having a cross-border dimension; - Article 83(3) TFEU: approximation of the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension; - Article 86(1) RFEU: establishment of a European Public Prosecutor’s Office from Eurojust; - Article 87(3) TFEU: operational cooperation between the police, customs and other specialized law enforcement services in relation to the prevention, detection and investigation of criminal offences. Specificity of CFSP decision-making is maintained (Title V, Chapter 2 TEU). A special procedure with unanimity voting in the European Council and the Council in the field of CFSP is maintained (Article 31(1) TEU).

Consultation procedure Under this procedure the Council, acting either unanimously (see Articles 21(3), 81(3) and 113 TFEU) or by a qualified majority depending on the policy area concerned, can

17 adopt legislation based on a proposal by the European Commission after consulting the European Parliament. While being required to consult Parliament on legislative proposals, the Council is not bound by Parliament’s position. In practice the Council would frequently ignore whatever Parliament might suggest and even sometimes reach an agreement before receiving Parliament’s opinion. However the European Court of Justice has ruled that the Council must wait for Parliament’s opinion and the Court has struck down legislation that the Council adopted before Parliament gave its opinion28. Acting upon this Parliament occasionally filibusters legislation that it dislikes by delaying giving a formal opinion in order to obtain some leverage against proposals it dislikes, thus stalling the legislative process. Before the Single European Act the Consultation procedure was the most widely used legislative procedure in the then European Community. Consultation is still used for legislation concerning internal market exemptions and competition law. The procedure is also used in relation to the Union’s advisory bodies such as the Committee of the Regions and the Economic and Social Committee that are required to be consulted under a range of areas under the treaties affecting their area of expertise. Such a procedure takes place in addition to consultation with the European Parliament or the other legislative procedures. Consent procedure In the consent procedure (formerly assent procedure), the Council can adopt legislation based on a proposal by the European Commission after obtaining the consent of Parliament (Article 48(7) TEU). See also Article 352 TFEU if action should prove necessary to attain one of the objectives of the Treaty. Thus Parliament has the legal power to accept or reject any proposal but no legal mechanism exists for proposing amendments. Parliament has however provided for conciliation committee and a procedure for giving interim reports where it can address its concerns to the Council and threaten to withhold its consent unless its concerns are met. This applies to admission of members, methods of withdrawal, subsidiary general legal basis provision and combating discrimination. Commission and Council acting alone Under this procedure the Council can adopt laws proposed by the Commission without requiring the opinion of Parliament. The procedure is used when setting the common external tariff (Article 31 TFEU (the former Article 26 TEC)) and for negotiating trade agreements under the Common Commercial Policy (Article 207(3) TFEU). Commission acting alone In a few limited areas, the Commission has the authority to adopt regulatory or technical legislation without consulting or obtaining the consent of other bodies. The Commission can adopt legislation on its own initiative concerning monopolies and concessions granted to companies by Member States (Article 106(3) TFEU) and concerning the right of workers to remain in a Member State after having been employed there (Article 45(3) (d) TFEU). Two directives have been adopted using this procedure: one on transparency

28 ECJ, Judgment of 29 October 1980, Case 138/79 SA Roquette Frères v Council, [1980] ECR, 3333, par. 33.

18 between member states and companies29 and another on competition in the telecommunications sector30. Treaty revisions The 2009 Lisbon Treaty created two different ways for further amendments of the European Union Treaties: an ordinary revision procedure, which is broadly similar to the past revision process in that it involves convening an intergovernmental conference, and a simplified revision procedure, whereby Part three of the Treaty on the Functioning of the European Union, which deals with internal policy and action of the Union, could be amended by a unanimous decision of the European Council subject to ratification by all member states in the usual manner. The Treaty also provides for the “passerelle clause” which allows the European Council to unanimously decide to replace unanimous voting in the Council of Ministers with qualified majority voting (“QMV”) in specified areas with the previous consent of the European Parliament, and move from a special legislative procedure to the ordinary legislative procedure. Ordinary revision procedure - Article 48(2)-(5) TEU 1. Proposals to amend the Treaties are submitted by a Member State, the European Parliament or the European Commission to the Council of Ministers who, in turn, submit them to the European Council and notify Member States. There are no limits on what kind of amendments can be proposed. 2. The European Council, after consulting the European Parliament and the Commission, votes to consider the proposals on the basis of a simple majority, and then either: - The President of the European Council convenes a Convention containing representatives of national Parliaments, Governments, the European Parliament and the European Commission, to further consider the proposals. In due course, the Convention submits its final recommendation to the European Council; - Or the European Council decide not to convene a Convention and set the terms of reference for the Inter-Governmental Conference themselves. 3. The President of the European Council convenes an Inter-Governmental Conference consisting of representatives of each Member State’s Government. The Conference drafts and finalises a Treaty based on the Convention’s recommendation or on the European Council’s terms of reference. 4. EU leaders sign the treaty. 5. All Member States must then ratify the Treaty “in accordance with their respective constitutional requirements”, if it is to come into force. Simplified revision procedure - Article 48(6)-(7) TEU

29 Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (Codified version) (OJ L 318, 2006, p. 17). 30 Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ L 249, 2002, p. 21).

19 1. Proposals to amend Part three of the Treaty on the Functioning of the European Union are submitted by a Member State, the European Parliament or the European Commission to the Council of Ministers who, in turn, submit them to the European Council and notify Member States. Proposed amendments cannot increase the competences of the Union. 2. The European Council, after consulting the European Parliament and the Commission, votes to adopt a decision amending Part three on the basis of the proposals by unanimity. 3. All Member States must approve the decision “in accordance with their respective constitutional requirements”, if it is to come into force. The passerelle clause The passerelle clause allows for the changing of voting procedures without amending the EU Treaties. Under this clause the European Council can, after receiving the consent of the European Parliament, vote unanimously to: - allow the Council of Ministers to act on the basis of qualified majority in areas where they previously had to act on the basis of unanimity. (This is not available for decisions with defence or military implications.) - allow for legislation to be adopted on the basis of the ordinary legislative procedure where it previously was to be adopted on the basis of a special legislative procedure. A decision of the European Council to use either of these provisions can only come into effect if, six months after all national Parliaments had been given notice of the decision, none object to it. However “passerelle clauses” allow the European Council to extend through the simplified revision procedure contained in Article 48(7) TEU, the use of the ordinary procedure to some of those areas, however not to decisions with military implications or those in the area of defence.

4. Acts of the Union Regulations, directives decisions, recommendations and opinions as mentioned in Article 288 TFEU are identical with the previous texts with one exception. The definition of “decision” is amended. The legal acts mentioned in Article 288 TFEU can be legislative or non-legislative, which mainly depends on the decision making procedure that is used when a measure is adopted. Article 288 TFEU (former Article 249 TEC): - 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.

20 - 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. Legislative acts are acts adopted through the “ordinary” or a special legislative procedure (see the Article 289 TFEU). The ordinary legislative procedure is the amended codecision procedure. Special legislative procedures can be found in specific legal bases provided for in the Treaties. Those procedures involve generally the Council acting by unanimity, sometimes after consulting or with the consent of the European Parliament. via the “passerelle clauses” some of the special procedures can be changed to the ordinary legislative procedure. Article 289 TFEU: 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 TFEU. 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. 3. Legal acts adopted by legislative procedure shall constitute legislative acts. 4. In the specific cases provided for by the Treaties, legislative acts may be adopted on the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank.

PART IV - COMITOLOGY The distinction between legislative and non-legislative acts is formal in the following sense. Legislative acts are defined as those enacted via a legislative procedure, either ordinary or special. Non-legislative acts are those that are not enacted in this manner. However the category of delegated acts will often be legislative in nature in the sense that they lay down binding provisions of general application to govern a certain situation. This is implicitly recognized in the Lisbon Treaty, which speaks of delegated acts having “general application”. With the entry into force of Articles 290 and 291 TFEU we have two new legal bases in the Treaties, which now regulate what was known as “comitology”31. 31 European Training Institute ETI Comitology 2011 New Training format, Daniel Gueguen, Comitology Hijacking European Power, Free electronic edition of the book, www.e-t-i.be; Online EU Briefings ARBOREUS, Dr Alberto Alemanno, www.eubriefings.eu; Report of European Commission on the operation of the Committees in 2009, Brussels, 2.7.2010 COM (2010) 354; Council of the European Union, Brussels 14 February, 6378/11 PRESSE 23, Council adopts new “comitology” rules; EUI Working Papers,

21 Why do we delegate implementing powers to the European Commission? The delegation of implementing powers to the European Commission was not foreseen in the original Treaty of Rome in 1957. The Council recognized from the outset of the EEC that not everything could be done by primary regulation and that it would need to delegate powers to the Commission to make secondary norms. But, it was only 4 years until the first comitology committee started work in Brussels in 1961 – such was the pressing need to have a system whereby powers are delegated to the Commission to implement legislation at the European level. Back then prices of agricultural products required fast and coordinated updating. This is when national ministers created a European equivalent of the process that existed in all EU Member States whereby during the course of agreeing legislation the executive is granted powers to implement the legislation – which it must subsequently use to propose implementation measures. In the European case this means that the legislator grants implementing powers to the European Commission. Whilst it is the Member States who implement EU legislation for the most part, there is a simultaneous need to delegate powers to the Commission to initiate European implementing measures - using various procedures to guarantee Member States’, and Parliament, control over the Commission. The comitology system was based on committees, composed of representatives of each Member State, scrutinizing the Commission’s proposals and casting a formal opinion before the Commission proceeded.

Lisbon and delegated acts - Article 290 TFEU32 The first category created, under Article 290 TFEU, is that of delegated acts. Delegated acts are almost identical to the 2006 Regulatory Procedure with Scrutiny (“RPS”)33. They have been created to deal with the same sensitive matters where the legislators are granting extra powers to the Commission for the sake of speed and efficiency – but where they get extra control in return. Article 290 TFEU: “1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

Robert Schuman Centre for Advanced Studies. RSCAS 2010/85: The execution of delegated powers after Lisbon. A timely analysis of the regulatory procedure with scrutiny and its lessons for delegated acts; EIPA European Institute of Public Administration; Delegated & Implementing Acts, EIPA Essential Guide – Authors: Michael Kaeding and Alan Hardacre. 32 Paul Craig, The Lisbon Treaty, Law, Politics, and Treaty Reform, p. 261. 33 Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ, L 200, 2006, p. 11).

22 2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows: (a) the European Parliament or the Council may decide to revoke the delegation; (b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act. For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority. 3. The adjective “delegated” shall be inserted in the title of delegated acts”. Article 290 TFEU deals with what are now termed non-legislative acts of general application, whereby power to adopt such acts is delegated to the Commission by a legislative act. Such non-legislative acts can supplement or amend certain non-essential elements of the legislative act, but the legislative act must define the objectives, content, scope and duration of the delegation of power. The essential elements of an area cannot be delegated. The legislative act must specify the conditions to which the delegation is subject. Such conditions may allow the European Parliament or the Council to revoke the delegation; and/or enable the European Parliament or the Council to veto the delegated act within a specified period of time. Acts made pursuant to Article 290(3) TFEU are to be known as delegated acts. With delegated acts the Commission is granted the power to supplement or amend the non-essential elements of the basic act. Compared to RPS there are a number of important changes that need to be detailed. This process is a sharp deviation from past practice – in fact it is simplified because now the Commission presents its delegated act directly to both legislators at the same time. The legislators will then both have a time determined by the basic act (likely to be 2+2 months) to object to the measure on any grounds or to revoke the delegation altogether. There is also the possibility that the legislators can give their approbation to a delegated act so that the Commission can adopt it much faster. There are a number of innovations in this process: 1. There is a Common Understanding agreed in April 201134, which is based on the Communication from the Commission of 9 December 2009 on the implementation of Article 290 TFEU35: “In exercising their powers and in compliance with the procedures laid down in the TFEU, the three Institutions shall cooperate throughout the procedure with a view to a smooth exercise of delegated power and an effective control of this power by the European Parliament and the Council”. There are now a number of examples of delegated acts that have been inserted into codecision files in recent months that give us some indication of what they will look like in practice. 2. Absence of committee: In the post-Lisbon world management and regulatory committees will not operate. Input and scrutiny will be undertaken by advisory

34 Council of the European Union, Common Understanding – Delegated Acts, 8753/11, 10 April 2011: http://register.consilium.europa.eu/pdf/en/11/st08/st08753.en11.pdf. 35 COM(2009) 673, 9.12.2009.

23 committees of national experts and European Parliament committees. The next most noticeable innovation is the absence of a comitology committee. 3. Right of veto on any grounds: The third issue is a very important one because it will likely lead to changes in the practice of oversight by the legislators. Council and Parliament now have the power to object to an individual delegated act on any grounds whatsoever. There is no right of amendment. 4. Right of revocation: In addition to the right of veto of an individual measure on any grounds the legislators are also granted the ultimate control mechanism for delegated acts – the right to revoke the delegation altogether. Thereafter the process will involve identifying the relevant expert groups assisting the Commission in drafting the delegated acts. Ultimately it is likely that there will be an increased number of objections from the legislators because they can object to anything they do not like in the delegated act. There will be a noticeable increase in lobbying of the Parliament on this specific point. Progressive alignment to Delegated Acts until 2014 There will not be an automatic alignment from RPS to delegated acts. Instead, basic acts will be revised progressively, meaning that it will continue to exist as a procedure in committees, albeit one that will slowly but surely shrink over the years. The Commission has committed, in a statement to the Parliament: 1. to finalise an alignment scrutiny exercise by the end of 2012 and 2. to finalise the legislative exercise replacing RPS with Delegated Acts by the end of the current Parliamentary term - 2014. The progressive approach will guarantee that all provisions referring to RPS would have been removed from all legislative instruments by the end of 2014.

Lisbon and implementing acts The third category in the hierarchy of norms, implementing acts, is dealt with in Article 291 TFEU. Member States must adopt all measures of national law necessary to implement legally binding Union acts. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or in certain cases on the Council. It is for the European Parliament and Council to lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers36. Article 291 TFEU “ 1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.

36 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 2011, p. 13).

24 2. 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 TFEU and 26 TFEU, on the Council. 3. For the purposes of paragraph 2, 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. 4. The word “implementing” shall be inserted in the title of implementing acts.” The Treaty of Lisbon significantly changes the theory and practice of the delegation of implementing powers to the European Commission. Whilst the Treaty of Lisbon represents the latest change in a long line of adaptations to the system of implementing committees that control the Commission in the execution of delegated powers, it is without doubt the most significant reform there has been in terms of procedural process, legal basis and institutional balance. It will fundamentally alter the way comitology works, and in turn the way everyone works with comitology. The so-called comitology system has become partially redundant. This means we now have two possible avenues for delegating powers to the Commission – the comitology world has been split into two. As with many Treaty articles, one had to be enacted through negotiations and secondary legislation (a regulation), and the other through a common understanding. These processes have now been completed allowing us to explain, and evaluate, the changes that have been, and will be, ushered in. The procedural and political changes that these two Articles have brought will be highlighted in detail, as well as the challenges that arise as a consequence for anyone engaging with delegated and implementing acts in the future. Our first question is why we delegate powers to the European Commission and secondly why it is increasingly important in European affairs – for all stakeholders interested in European policy-making. Then, we take a quick look at the old comitology system to situate Articles 290 and 291 TFEU, and to understand the scale of the changes that have taken place. After that we will directly address the two new legal bases and how they have been implemented. It starts with Article 290 TFEU on delegated acts, explaining what they are and how the new process will work in practice. After that it turns to Article 291 TFEU on implementing acts, i.e. the new comitology procedures. This is an area, which is considered by many as a new key battlefield in EU policy- making. Article 291 TFEU and Implementing Acts37 Article 291 designates implementing acts as the second category of measures that can be delegated to the Commission. Here we find the “traditional” comitology system and procedures that was in operation before Lisbon, although with some changes. Here the Commission is granted the power to implement the legislative act. To implement Article

37 Paul Craig, The Lisbon Treaty, Law, Politics, and Treaty Reform, p. 270.

25 291 TFEU explicitly required a regulation to lay out the new comitology procedures – and this time the regulation had to be codecided (as opposed to before when the Council simply had to consult the Parliament to adopt changes to its Decision 1999/468/EC38 (replaced in 2011 by Regulation No. 182/2011). The negotiations of this Regulation took place under the Spanish and Belgian Presidencies and resulted in some important modifications. The new system based on Article 291 TFEU and explicitly laid out in the new Implementing Acts Regulation is not as different as the new world of delegated acts compared with RPS – but it does change things. Whilst the committees remain in place, they will only operate under two main procedures. Referral to the Council has been replaced by an Appeals Committee that is the Council in everything but name and the Commission has been granted some flexibility, and given some obligations, over when it can implement measures that receive “no opinion” in committee votes. According to Article 4, the first procedure, the advisory procedure remains exactly as it was before. This procedure is maintained and will be used, as before, to deal with low sensitivity measures such as grant and funding approvals. The examination procedure (Article 2) will be used for (amongst others) implementing measures of general scope, programmes with substantial budgetary implications, measures related to the CAP and fisheries, taxation and the Common Commercial Policy (CCP). This last policy area is a major new addition. The new examination procedure has some interesting innovations. It maintains the same voting system (Article 5) of the old regulatory procedure such that the Commission needs to get a QMV in favour to be able to adopt the implementing act. The Parliament and now the Council, have the right of scrutiny (Article 11) - which enables either legislator to pass a non-binding resolution, at any time, if they believe that the draft implementing act exceeds the implementing powers provided for in the basic act. If, on the other hand, the committee falls into the two other categories things change. If the Committee is unable to find a QMV for or against, hence issues “no opinion” then the Commission will no longer ultimately be obliged to adopt the implementing act (something that was happening with GMO39 authorizations and putting the Commission in a difficult position) and it can reconsider and resubmit the act to the committee. This allows the Commission greater flexibility. The Commission is also constrained in certain cases when there is no opinion. Firstly the Commission shall not adopt the implementing act if it is related to taxation, financial services, health & safety, or to safeguard measures. Secondly the Commission shall not adopt the implementing act if a simple majority opposes this. If the committee votes by QMV against the implementing act then the Commission will no longer forward it to the Council to take the final decision – although almost.

38 Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ L 184, 1999, p. 23). 39 Genetically modified organisms.

26 The Commission will forward the act to the Appeals Committee which is a new creation in the Regulation. This committee will have one representative of each Member State (at the appropriate level) and will be chaired by the Commission. It will have the power to vote changes to the text, to adopt the text or to reject it. This may look like a rather strange addition, or like a cosmetic name change, but it simply reflects the outcome of negotiations between the Parliament and Council where Council wanted to have a political instance to look at controversial measures (i.e. ones that have been voted against, or received no opinion, in committees – which are not significant in number). Automatic Alignment to Implementing Acts on 1 March 2011 1. Advisory Procedure is maintained (only Article number changes); 2. Management and Regulatory Procedures replaced by Examination Procedure; 3. RPS to remain in existing legislation until 2014 at the latest.

Questions and comments The implications of the new provisions for delegated and implementing acts will only become apparent over time. As now only approximately only 18 months have passed since the entry into force of the Lisbon Treaty and 4 months since the entry into force of the Regulation 182/2011, we still have to wait for more practice with regard to these procedures. As Article 290 TFEU is excluding the Comitology in relation to delegated acts this would be the most important impact on the division of powers in the EU. It will increase the regulatory autonomy of the Commission, and will decrease control by the Council and European Parliament. Although these institutions have the veto power, they miss the informational assistance by the comitology committees to exercise a meaningful review of legislative acts. The division of legal acts in the Lisbon Treaty is problematic, particularly that between delegated and implementing acts. What is the normative justification for the differential controls prescribed for these kinds of acts? The European Parliament wanted to be involved in the passage of secondary norms where the primary norm was enacted by codecision. It has now been accorded direct veto powers under Article 290 TFEU. The question is which from the Articles 290 and 291 will be applied. That is depending on the interpretation of “amend” and “supplement”, which terms are central for the division between delegated and implementing acts. If this can not be solved by political negotiations resort to the European Court of Justice will be sought. The word “comitology” has become part and parcel of EU terminology in the last couple of years. That is how it is for Brussels. There are few European associations or NGOs that have not assessed the importance of implementing measures. But it is also true for

27 Member States. For example, the word “comitology” is well known and is roughly equated with the idea of being a higher, mysterious and nontransparent power. But there is a gap between the intellectual understanding of what comitology is and the way in which it is put into practice on a daily basis. After three hours of training, you understand how it works but a week later you’ve forgotten the most important parts of it. You need to work with comitology every day to get a grip of what it is all about. Apart from the Commission and specialized Council and Parliament officials, a limited number of lobbyists (perhaps a few hundred) can take effective action in the comitology process. But a few hundred out of 15,000 European lobbyists is not many and certainly not enough! This lack of expertise also applies to the European Parliament. How many MEPs understand comitology? The situation is better within the Parliament’s administration but not much better. The ITRE (industry, research, energy) Committee has five civil servants who are well trained in comitology. So that’s a maximum of 100 experts for 20 parliamentary committees. That’s hardly anything and far too little. The same can be said for the national administrations and permanent representations of the Member States in Brussels. The Secretariat of the Council of Ministers has more comitology specialists but they work in a closed circuit. In this respect it is extraordinary to see how the Council and Member States have underestimated the impact of the Lisbon Treaty on comitology.

The following drawing (New comitology rules (Article 291 TFEU) is taken from a Press Communication of 14 February 2011 (6378/11, from the Council of the European Union)40

40 Council of the European Union, Brussels 14 February, 6378/11 PRESSE 23, Council adopts new “comitology” rules.

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