The Ordinary Legislative Procedure and Secondary Acts

by zyna00yahoocouk (student)

Introduction

The paper will discuss briefly the 3 binding instruments of legislative and secondary acts, which are regulations, directives and decisions. This paper will also discuss the ordinary legislative procedure, outlining the process and the role of each institution. The focus then shifts to examine the two types of secondary acts mainly, delegated and implementing acts. This paper will also analyse the regime for the acts based on the language, showing that it’s more complex than it seems.

An act of legislation may take form in 3 ways:

Firstly, Article 288 TFEU provides that a Regulation shall have general application and be directly applicable to all member sates. They can be addressed to member states, companies and EU institutions. They become legally valid in the member states without any need for implementation. In fact, it is illegal for member states to try to implement it into national law as seen in the Variola case. They can be relied on by an individual or company against the state (vertical direct effect) or against another individual or company (horizontal direct effect).

Secondly, Article 288 also specifies that Directives are binding as to the result to be achieved upon each member state to which it is addressed. Directives are particularly useful when the aim is to harmonise the laws within a certain area or to introduce complex legislative change, this is because discretion is left to member states as to how the directive is to be implemented. They cannot be addressed to individuals or companies. Furthermore, it does have vertical direct effect but no horizontal direct effect.

Thirdly, Article 288 TFEU states that a Decision is binding in its entity and a decision that specifies those to whom it is addressed is binding only on them. They can require authorities and individuals in Member States either do something or stop doing something, and can also confer rights on them.

(Art 294 (2) TFEU) The ordinary legislative procedure starts with a proposal from the commission, which may have been requested by the Council, the European Parliament, group of member states or the European Court of Justice. The proposal then gets submitted to the European Parliament and the Council. At the European parliament, the president refers the proposal to the competent parliamentary committee to verify its legal basis and whether it’s not in breach of fundamental rights and that it respects the principles of subsidiarity and proportionality (EP Rules of Procedure, Rule 43 and Rule 36 to 38a). It also sees that sufficient financial resources are provided. The committee drafts a report comprising of any amendments, a draft legislative resolution and an explanatory session on which the Parliament holds debate and a vote at the plenary session (EP Rules of Procedure, Rule 45 and Rule 55). The parliament then takes a position and then sends it to the Council.

At the Council, if the Council also approves the European Parliaments position, then a qualified majority voting in support of the European Parliaments position adopts the act. At this stage, the Commission cannot oppose an act on which the European Parliament and the Council are in full agreement to. If the European parliament proposes amendments to the commission's proposal and the Commission does not take to these amendments then the Council will have to vote by unanimity. The Council then drafts its reasons that led to its decision, and send it to the European parliament. The commission is ...

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At the Second reading, the Councils position and statement of reasons are published in the official journal. When the President announces the Council's position at the plenary session, it gets referred to the committee responsible at the first reading, which draws up a recommendation for the second reading on behalf of the plenary session which might approve the council's position, adopt amendments or reject it. Article 294(7)(a) TFEU states that, if the European Parliament adopts or has not taken a decision within three months, the act gets adopted in the wording, which corresponds to the Council's position. However, if the European parliament rejects the Council's position by a majority vote, then the proposed act is deemed not be adopted.

If the European parliament however proposes an amendment to the Council’s position at the first reading within three-month period by a majority vote of its member, it has to take a new position and send the amended text to the Council and the Commission, which shall deliver an option on those amendments. If within three months of receiving the European Parliaments amendments, the Council, acting by a qualified majority approves those amendments, the act gets adopted in the wording, which corresponds with the wording of the European parliament (Art. 294(8)(a) TFEU). Nevertheless, if the Council doesn’t approve the European Parliaments amendments, a conciliation meeting has to take place.

Reconciliation, article 294(8)(b) and (10) TFEU requires that, the president of the Council in agreement with the President of the European Parliament together with members or representatives of the Council and an equal number of representatives from the Parliament form a committee and are required to “reach an agreement on a joint text” within six weeks of its being convened on the basis of the positions of the European parliament and the Council at the second reading (Art. 294(10) TFEU). The Committee is also required to reconcile both positions on the basis of examination of all aspects of the disagreement. An agreement is reached by a qualified majority vote of the representatives of the Parliament and the Council. The Commission is also required to take part in the conciliation committee’s proceedings and shall take all necessary initiatives with a view to reconcile the positions of the European Parliament and the Council (Art. 294(11) TFEU). At this stage the commission cannot withdraw its proposal. If the committee approves a joint text, the act gets adopted in a third reading by a majority of the votes in the European Parliament and by a qualified majority in the Council. If however, the committee fails to reach an agreement or one of the two institutions fails to approve the proposed act within six weeks, it is deemed not to have been adopted (Art. 294(12) and (13) TFEU).

It is however important to note that even though no provision of this effect is contained in the Treaties or any other source of legislation, informal trilogue meetings take place between the Parliament, Council and the Commission before or after vote in the parliamentary committee responsible. This allows the act to be adopted faster as it may lead to one institution changing its initial proposal in accordance with the other institution’s wishes. The aim is to reach an informal decision then use it technically within the law. These meetings are not illegal and they don’t undermine the ordinary legislative procedure, however, they are highly undemocratic because they are not recorded. Nevertheless, since it was introduced in 2005, agreements in the First reading rose up to 70% (Lenaerts and Nuffel, 2011)

According to Lenaerts, the commission has somewhat a limited role to play in the process once it has submitted its proposal. It serves as the mediator between the Council and the Parliament in the conciliation stage. Nevertheless, the commission can be said to have a lot of power in terms of what legislation it proposes. Also, if the parliament and the commission were on the same position, then the council would have to have 100% unanimity vote. This gives an important role to the commission. Furthermore, article 294 also gives it the power to withdraw a proposed measure before it’s adopted and submit a modified version, or simply to refuse to proceed if it feels that any such measure will be amended in ways to which it is fundamentally averse.

Secondary acts

Under the Lisbon Treaty, any delegation of power to the Commission must be decided by Parliament and the Council, as legislators, and be subject to limits, conditions and control mechanisms laid down in the legislative act (regulation, directive or decision) itself.

The first category created, under Article 290 TFEU, is that of Delegated Acts. The Commission is delegated the power to supplement or amend the non-essential elements of the basic legislative act. The legislative act must define the objectives, content, scope and duration of the delegation of power. This is reinforced by the injunction that the essential objectives of an area must be reserved to the legislative act, and 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 or veto the delegated act within a specified period of time if they think that the commission is acting beyond its powers. If after the time frame there’s no objection by the European Parliament and the Council then the delegated act the commission drafts will come into force. Examples of delegated acts include issues like deciding on the use of body scanners in airports, or children's loop-belts in airplanes, detailed implementing rules in financial services legislation or changing lists of products and restricted substances in environmental legislation (Craig and De Burca, 2011).

Article 291 TFEU specifies that implementing act be used in circumstances where uniform conditions for implementing legally binding acts are needed. Thus in most instances implementing acts will be of general application. Examples of implementing acts include the awarding of funds or grants within EU projects, implementing the CAP [Common Agricultural Policy] and Fisheries Policy, implementing Annual Action Programs for 3rd countries and market authorizations (for GMOs, for example) (Craig and De Burca, 2011).

Uncertainty/Controversy on the categorisation

The rational distinction between delegated and implementing act is that delegated acts are “legislative” in nature while implementing acts are “executive” in nature. Paul Craig in his article, Delegated Acts, Implementing Acts and Comitology, identified the “language Problem”. A comparison between Article 290 FEU on delegated acts and Article 291 FEU on implementing acts also shows that both have very different wording and do not seem to be written in the same style and approach. The problem is to decide when an act is “amends” or “supplements” a legislative act; if it does so then it is a delegated act if it doesn’t then it’s an implementing act. The commission reasoned that “amend” connoted those instances where there was a formal amendment to a basic instrument, which would then demand use of delegated acts. Also that whether a measure “supplemented” the basic instrument was to assess whether the future measure specifically added non-essential rules which changed the structure of the legislative act. In practice, it becomes difficult to apply and interpret which is delegated or implementing (Craig, 2012). For example, there might be a complex primary act dealing with fishery and a secondary measure specifies in greater detail one part of the primary act relating to the requirement for the independent agencies that pay money pursuant to the primary regulation. Such measures will be adding something to the act but is what is being added, “amending or supplementing the primary act? Some might say it is implementing while others might say it is delegating (Craig, 2012). Perhaps only the court can give the most practical distinction if and when it gets to face the question.

In conclusion, this paper has briefly discussed regulations, directives and decisions as the 3 binding instruments of EU legislative acts, outlined the ordinary legislative procedure and role of each institution in the process. The paper has also examined delegated and implementing acts as the secondary acts and has analysed their complexity based on the language.