Treaty of Lisbon
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 Schütze[1], “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 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 Treaty[4].
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 Declaration[5] 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).
Articles 4(1) and 5 TEU state the fundamental principles relating to competences[6].
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 categorization[7].
1. Types of competences (Article 2 TFEU)[8]
- 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 TFEU[9] 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 TFEU[10] states that shared competences relate to areas that are not referred to in Articles 3 and 6 TFEU:
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 TFEU[11] 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 EU[12]). 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?
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 TEU[13]
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 complex[14] because the Lisbon Treaty in Article 291 TFEU recognized a third category of legal acts, the implementing acts.
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. 4[15]).
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 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 provisions[16]);
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 7[17]); “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);