EU INSTITUTIONS – 2ND YEAR CLOE

AUTUMN TERM, 2016-2017

ROXANA-CRISTINA PETCU, PhD

Lecture V LAW-MAKING IN TH EU

The powers and responsibilities of the EU (its competences) are defined in the Treaty of Rome and in the subsequent
amendments and treaties. The treaties are the primary law of the EU. From the very beginning, the Community had
responsibility for the common policies, most importantly covering agriculture, fisheries and international trade. There
are other matters added to these traditional responsibilities, such as transport, environmental protection, consumer
protection and public health, research and development, the promotion of economic and social cohesion and
cooperation with developing countries.

Thus, the competences of the Community result

 from the Treaty of Rome (although some of them could not be exercised because of various political problems
stemming from the national interests of the MS)
 from each formal step in integration which added new competences
 or, in some cases, the Union simply found itself in the situation to exercise in practice powers that it has always
enjoyed in theory

DIFFERENT SORTS OF LAW

EU law takes different forms. There are binding and non-binding legal instruments. These instruments are the
secondary law of the EU.

1. Binding instruments

Directives
 sets out a policy objective but requires national legislation to implement or transpose. This gives a certain
amount of leeway to the MS and allows for differing conditions
 A directive is a legislative act of the European Union, which requires MS to achieve a particular result without
dictating the means of achieving that result. It can be distinguished from regulations which are self-executing
and do not require any implementing measures. Directives normally leave member states with a certain amount
of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative
procedures depending on their subject matter.
 they are binding. The legal basis for the enactment of directives is article 249 of the Treaty establishing the
European Community and, as such, directives only apply within the European Community pillar of the European
Union.
Article 249
In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament
acting jointly with the Council, the Council and the Commission shall make regulations and issue directives,
take decisions, make recommendations or deliver opinions. A regulation shall have general application. It
shall be binding in its entirety and directly applicable in all Member States. 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 upon those to whom it is
addressed. Recommendations and opinions shall have no binding force.

 The Council can delegate legislative authority to the Commission and, depending on the area and the
appropriate legislative procedure, both institutions can make laws. There are Council regulations and
Commission regulations. Article 249 does not clearly distinguish between legislative acts and
administrative acts, as is normally done in national legal systems
 a time limit (2 years or less) is usually laid down for the transposition of a directive (often breached).

 in case of breach or in case the Commission is not convinced that the national implementing legislation is
adequate, the ECJ has the final word
 Notwithstanding the fact that directives were not originally thought to be binding before they were implemented
by member states, the European Court of Justice developed the doctrine of direct effect where
unimplemented or badly implemented directives can actually have direct legal force. The court found that
 member states could be liable to pay damages to individuals and companies who had been adversely affected
by the non-implementation of a directive.

Regulations
 apply immediately throughout the territory of the EU, without requirement for legislation at national level. A
regulation is a legislative act of the European Union which becomes immediately enforceable as law in all
member states simultaneously. Regulations can be distinguished from directives, at least in principle, need not
be transposed into national law. Regulations can be adopted by means of a variety of legislative procedures
depending on their subject matter.
 are binding. The legal basis for the enactment of regulations is article 249 of the Treaty establishing the
European Community and, as such, regulations only apply within the European Community pillar of the
European Union.
 The Council can delegate legislative authority to the Commission and, depending on the area and the
appropriate legislative procedure, both institutions can make laws. There are Council regulations and
Commission regulations. Article 249 does not clearly distinguish between legislative acts and administrative
acts, as is normally done in national legal systems.
 Regulations are in some sense equivalent to "Acts of Parliament", in the sense that what they say is law, and do
not need to be mediated into national law by means of implementing measures. As such, regulations
constitute one of the most powerful forms of European Union law and a great deal of care is required in their
drafting and formulation.
 When a regulation comes into force it overrides all national laws dealing with the same subject matter
and subsequent national legislation must be consistent with and made in the light of the regulation. While
member states are prohibited from obscuring the direct effect of regulations, it is common practice to pass
legislation dealing with consequential matters arising from the coming into force of a regulation.

Decisions
 are binding, but apply only to the body or bodies to which they are addressed, which may be a MS, a legal person
(usually a corporation) or a natural person
 A Decision (defined in Article 249/EC) is one of the three binding instruments provided by secondary EU
legislation. A decision is binding on the person or entity to which it is addressed. Decisions may be addressed to
member states or individuals. The Council of the European Union can delegate power to make decisions to the
European Commission.
 The legislative procedure for adoption of a decision varies depending on its subject matter. The co-decision
procedure requires agreement of and allows amendments by both the European Parliament and the Council of
the European Union. The Assent procedure requires agreement of both Parliament and Council, but the
Parliament can only agree or disagree to the text as a whole - it cannot propose amendments. The Consultation
procedure requires agreement of the Council alone, the Parliament merely being consulted on the text. In some
areas, such as competition policy, the Commission may itself issue decisions.
 Common uses of decisions involve the Commission ruling on proposed mergers, and day-to-day agricultural
matters (e.g. setting standard prices for vegetables).
 On the basis of case law, decisions may have direct effect, that is to say they may be invoked by individuals
before national courts

The EU institutions may have a certain amount of leeway in deciding which sort of law is appropriate in which case,
but in reality this is usually dictated by the Treaties.

2. Non-binding instruments

Recommendations
 used by the Commission or the Council, but does not bind the MS.
 A recommendation in the European Union (introduced in Article 249/EC) is one of two kinds of non-binding
acts cited in the Treaty of Rome.
 Recommendations are without legal force but are negotiated and voted on according to the appropriate
procedure. Recommendations differ from regulations, directives and decisions, in that they are not binding for
Member States. Though without legal force, they do have a political weight. The recommendation is an
instrument of indirect action aiming at preparation of legislation in Member States, differing from the
Directive only by the absence of obligatory power.
  According to the terms of the Treaty on the European Union "In order to ensure the proper functioning and
development of the common market, the Commission (…) formulate recommendations or deliver opinions on
matters dealt with in this Treaty, if it expressively so provides or if the Commission considers it necessary."
 Concretely, recommendations can be used by the Commission to raze barriers of competition caused by the
establishment or the modification of internal norms of a Member State. If a country does not conform to a
recommendation, the Commission cannot propose the adoption of a Directive aimed at other Member Countries,
in order to elide this distortion

Opinions
 It requires little explanation
 For instance, the Economic and Social Committee or the Committee of the Regions may issue opinions on the
various legislative proposals tabled by the Commission. These committees may also issue own opinions on a
variety of matters they consider relevant or important at a specific given time.

Communications
 Issued by the Commission; a document in which the Commission states its views on a specific issue

Declarations
 Issued by the Council

Resolutions
 Issued by the PE
 Deal with issues over which it has no real power, but where it hopes to exercise influence
 Every session, the PE passes resolutions on human rights or crises which are beyond its reach
 The PE has entire committees which deal with no legislative proposals at all, except through the consultation
procedure, simply because it does not have competence in those areas.

Each of the major EU institutions has a role to play in the creation and implementation of the EU law. Their role
is determined by the type of law being made and the policy area it covers. For every proposed law their must be a legal
base to be found in the treaty. In other words, when the Commission makes a legislative proposal, it must be able to
cite an article in the Treaty which gives the EU the authority to make laws in that specific area of policy. The ‘treaty base’
can be challenged before the Court of Justice, which has the final say as to whether or not it is legitimate. The
choice of the treaty base is crucial, because on it will depend which of the various legislative procedures is used, and thus
the extent of influence on the EP and whether the Council, in approving, rejecting or amending the proposal, must do so
by unanimity or by Qualified Majority Voting (OMV).

QMV means that laws which are opposed by a sovereign state’s government and may be abhorrent to its people can be
imposed upon them. There may be defenses to this, but practicality simply will not do. Majority voting has been
extended to new areas at every amendment of the Treaty since the Single European Act. Up to now, only the most
politically sensitive issues have been left to unanimity, namely defense operations, most tax matters as well as
cultural policy amongst MS.

THE LEGISLATIVE PROCEDURES

Decision-making at European Union level involves various European institutions, in particular

 the European Commission,
 the European Parliament (EP),
 the Council of the European Union.
In general, it is the European Commission that proposes new legislation, but it is the Council and Parliament that pass
the laws. In some cases, the Council can act alone. Other institutions also have roles to play.
The main forms of EU law are directives and regulations. The rules and procedures for EU decision-making are laid
down in the treaties. Every proposal for a new European law is based on a specific treaty article, referred to as the ‘legal
basis’ of the proposal. This determines which legislative procedure must be followed. The three main procedures
are ‘consultation’, ‘assent’ and ‘co-decision’.
1. Co-decision
This is the procedure now used for most EU law-making. In the co-decision procedure, Parliament does not merely
give its opinion: it shares legislative power equally with the Council. If Council and Parliament cannot agree on a piece
of proposed legislation, it is put before a conciliation committee, composed of equal numbers of Council and
Parliament representatives. Once this committee has reached an agreement, the text is sent once again to Parliament
and the Council so that they can finally adopt it as law. Conciliation is becoming increasingly rare. Most laws passed in
co-decision are, in fact, adopted either at the first or second reading as a result of good cooperation between the
three institutions.
Having been established by the Maastricht Treaty, and extended and adapted by the Treaty of Amsterdam to make it
more effective, the co-decision procedure now covers 43 areas under the first pillar (based on the Treaty establishing the
European Community) following the entry into force of the Treaty of Nice.As defined in Article 251 of the EC Treaty, the
co-decision procedure is the legislative procedure which is central to the Community's decision-making system. It is
based on the principle of parity and means that neither institution (European Parliament or Council) may adopt
legislation without the other's assent. Since the entry into force of the Amsterdam Treaty until 30 June 2007, 635 co-
decision procedures have been successfully completed (apart from two cases). This site contains references to the
provisions of the Treaty and to the legal bases of the procedure. In this regard, it is important to bear in mind the
existence of the Joint Declaration on practical arrangements for the new co-decision procedure, which was adopted by
the three institutions when the Amsterdam Treaty came into force. It serves as a practical reference framework for each
institution as regards the role it has to play at the various stages of the procedure. Declaration n°34 annexed to the
Treaty of Amsterdam calls on the institutions to make every effort to ensure that the co-decision procedure operates as
expeditiously as possible and in particular that in no case should the actual period between the second reading by the
European Parliament and the outcome of the Conciliation Committee exceed nine months.

Attention should also be drawn to the interinstitutional agreement on "better lawmaking", which was signed by the
European Parliament, the Council and the Commission on 16 December 2003. The agreement sets out best practice and
lays down new objectives and commitments, including:

 the improvement of interinstitutional coordination and transparency ;

 the establishment of a sound framework for "alternative instruments" ;
 the increased used of impact analyses in the Community decision-making process ;
 the desire to establish a mandatory time limit for transposing directives into national law.

CO-DECISION IN DETAIL

1. COMMISSION PROPOSAL

1. The Commission has a monopoly of legislative initiative in all the areas which are subject to the codecision
procedure. In accordance with the Treaty establishing the European Community (EC Treaty), only the Commission may
put forward legislative proposals. It may also itself alter any such proposal (Article 250(2) EC Treaty). The legal
basis adopted by the Commission will determine the legislative procedure.The Commission’s proposal is the result of an
extensive consultation process, which may be conducted in various ways (impact assessment, reports by experts,
consultation of national experts, international organisations and/or non-governmental organisations, consultation via
Green and White Papers, etc.). A consultation process is also launched among the different Commission
departments in order to ensure that all aspects of the matter in question are taken into account (Interservice
Consultation).The Commission’s proposal is adopted by the College of Commissioners on the basis of either a written
procedure (no discussion among Commissioners) or an oral procedure (the dossier is discussed by the College of
Commissioners), and is published in the Official Journal of the European Union (“C” Series).The proposal is
forwarded simultaneously to the European Parliament and to the Council.As far as the legislative process is
concerned, relations between the European Parliament and the Commission are governed generally by the Framework
Agreement on relations between the European Parliament and the Commission drawn up in 2005.

1a Opinions of the Committee of the Regions and the Economic and Social Committee

The Economic and Social Committee and the Committee of the Regions respectively consist of “representatives of the
various economic and social components of organised civil society …” and “representatives of regional and local bodies
…”. The provisions governing the Economic and Social Committee and the Committee of the Regions are contained in
Articles 257 to 265 of the EC Treaty. These Committees must be consulted by the Commission and the Council where
the Treaty so provides or in cases in which the latter consider it appropriate. The Council or the Commission can set a
time limit for the submission of opinions (Article 262 and 265 of the EC Treaty). The European Parliament (EP) also
has the option of consulting the two Committees. In addition, the Economic and Social Committee and the Committee
of the Regions may issue opinions in cases considered by them to be appropriate.

2. European Parliament (EP) First reading

The European Parliament delivers an opinion at first reading. This opinion, prepared by a rapporteur, is discussed and
amended within the relevant parliamentary committee, then debated in plenary session, where it is adopted by a
simple majority. Legal basis: Article 251(2) EC Treaty and Rules 34 - 40 and 38 - 53 of the EP’s Rules of Procedure.
Upon receiving the Commission’s proposal, the European Parliament gets ready to prepare and adopt its opinion. The
Treaty does not set any time limit for the European Parliament to give its opinion. In practice, this phase lasts for eight
months on average. It may, however, be much longer, depending on the technical or political complexity of the dossiers.
If the parliamentary committee responsible for the dossier does not propose any amendments, the European Parliament
tends to use the simplified fast-track procedures (see Rules 131 and 43 of the EP’s Rules of Procedure).

Work in parliamentary committee:

The parliamentary committee responsible is named, along with any other committees which are asked for an opinion
(Rule 40 of the EP's Rules of Procedure). The legal basis and financial aspects may be evaluated by the parliamentary
committees responsible for legal affairs and budgetary issues (Rules 35 and 36 of the EP’s Rules of
Procedure). Within the parliamentary committee responsible, coordinators (representing political groups) entrust the
drafting of the report to a rapporteur (see Rule 42 of the EP’s Rules of Procedure) chosen by a weighting system
representative of the political groupings within the committee. Other political groups may also appoint a “shadow
rapporteur”, who will be responsible for preparing the group’s position and monitoring the work of the rapporteur.
The parliamentary committee meets several times to study the draft report prepared by the rapporteur. The
rapporteur and the members or substitutes of both the parliamentary committee responsible and any other EP
committee may propose amendments to the Commission’s proposal. These amendments, together with those proposed
by the parliamentary committees asked for an opinion, are put to the vote in the parliamentary committee responsible,
on the basis of a simple majority. Voting on a report is concluded by a vote on the Commission’s proposal as amended
and on a legislative resolution (see Rules 46 and 185 of the EP’s Rules of Procedure).

Adoption in plenary

Once the report is adopted in the parliamentary committee, it is placed on the agenda of the plenary session. Additional
amendments to the report, including amendments adopted in parliamentary committee, may be tabled by political
groups or at least 37 Members (Rule 150 of the EP’s Rules of Procedure) and put to the plenary’s vote. As a general rule,
the deadline for tabling new amendments in plenary is noon on the Thursday of the week preceding the session. In
the course of the plenary debate ahead of the vote, the Commissioner announces and explains the Commission’s
position on the amendments tabled. The Commission’s position on the EP’s amendments is prepared by the
Directorate-General in charge of the dossier and approved by the College of Commissioners. In practice, the College’s
decision is prepared by the Inter-institutional relations group (comprising members of the Commission cabinets
responsible for inter-institutional relations), and subsequently ratified by the College. A simple majority is required for
adopting amendments, the Commission's proposal as amended and the legislative resolution (see Rule 51 of the EP’s
Rules of Procedure).If the legislative resolution accompanying the report has been adopted in parliamentary committee
virtually unanimously (with fewer than 10% of votes against), the report may be adopted by the plenary without further
amendment or debate (Rule 131 of the EP’s Rules of Procedure).Although the Treaty does not explicitly allow the
European Parliament to reject the Commission’s proposal at first reading, Rule 52 of the EP’s Rules of Procedure
foresees the situation in which the Commission’s proposal, as amended, fails to secure a majority of the final votes
cast. In this case, the President of the European Parliament will suspend the vote on the legislative resolution (normally
taken following the final vote on the proposal as amended) and will request the Commission to withdraw its proposal. If
the Commission does so, the legislative procedure is stopped. If the Commission refuses to withdraw its proposal, the
matter is referred back to the parliamentary committee. However, there is nothing to prevent the European Parliament
from adopting an opinion containing amendments which completely nullify the Commission’s proposal. Such a step will
not necessarily stop the legislative procedure and the Commission can always submit an amended proposal, while the
Council can adopt a common position.

3. Amended Commission proposal

Article 250(2) of the EC Treaty authorises the Commission to alter its legislative proposal, enabling it to incorporate
European Parliament amendments which, in its view, improve the initial proposal and/or are likely to facilitate an
agreement. Legal basis: Article 250(2) of the EC Treaty.In accordance with § 13 of the Joint Declaration on practical
arrangements for the new codecision procedure, the Commission must exercise its right of initiative in a constructive
manner with a view to making it easier to reconcile the positions of the Council and the European Parliament. To this
end, the Commission may incorporate into its amended proposal the European Parliament amendments which it
supports, either unaltered or suitably reworded. As far as internal procedures are concerned, the amended proposal is
prepared by the Commission’s Directorate-General in charge of the dossier, on the basis of the mandate obtained from
the College of Commissioners before the plenary. The Legal Service and the Secretariat-General are consulted, and the
amended proposal is adopted by the College and published in the Official Journal.

4. Council first reading

The Council makes its position known after preparatory work has taken place within working parties made up of
experts from the Member States and chaired by the Member State holding the six-monthly Presidency of the Council.
This preparatory work runs concurrently with the European Parliament’s activity (cf. § 6 of the Joint Declaration). The
Council finalises its position on the basis of the Commission’s proposal, amended where necessary, in the light of the
European Parliament’s first reading and resultant amendments.

There are three possible scenarios:

 the Council accepts without alteration the Commission’s proposal, which the European Parliament has not
amended, and the act can be adopted ;
 the Council accepts all the European Parliament’s amendments which the Commission has incorporated into its
amended proposal, and the act can be adopted ;
 in all other cases, the Council adopts a common position.
Legal basis: Article 251(2) EC Treaty.

 Preparation of the Council’s position

The Council’s decisions are prepared within specific working parties made up of representatives of the Member States
and chaired by the representative of the Member State holding the six-monthly Presidency, assisted by the General
Secretariat of the Council of Ministers. The Commission has a role to play in providing expertise.The working parties
report to the Committee of Permanent Representatives (Coreper, Part I or II), which prepares every Council decision
taken at Ministerial level.

 Adoption of the decision by the Council

Decisions prepared by Coreper are adopted by the Council of Ministers either without debate, when an agreement has
been found at the preparatory stage ("A" item), or with debate ( “B” item). In both cases, the deliberations are in the
public domain. In accordance with Article 250(1) of the EC Treaty, the Council will act by a qualified majority with the
agreement of the Commission. However, if its position differs from that of the Commission, unanimity will be required.

5. The Council approves all the EP amendments

If the Council approves the Commission’s proposal as amended by the European Parliament, the act is deemed to have
been adopted. Legal basis: Article 251(2), first and second indents, of the EC Treaty.When the European Parliament has
introduced amendments, adoption of the act is dependent on the Council approving all the amendments by a qualified
majority if the Commission has incorporated them into its amended proposal, or by unanimity if this has not been
done.When the co-legislators are seeking to conclude an agreement at first reading, it is often the case that they
organise, in accordance with paragraphs 7, 8 and 9 of the Joint Declaration on practical arrangements for the new
codecision procedure, informal tripartite meetings attended by representatives of the European Parliament
(rapporteur and, where appropriate, shadow rapporteurs), the Council (chair of the working party and/or Coreper), and
the Commission (department responsible for the dossier and the Commission’s Secretariat-General).The aim is to
ensure that the Parliament amendments adopted in plenary are wholly acceptable to the Council. The Commission
frequently plays a mediating and editing role in respect of these compromise texts.

6. The Council can adopt the act as amended

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the European
Parliament and of the Council, and is published in the Official Journal.The procedure is ended.

7. The EP has approved the proposal without amendment

If the European Parliament has not adopted any amendments, and if the Council does not wish to alter the
Commission’s proposal, it can adopt the act on that basis by a qualified majority – (with exceptions).Legal basis: Article
251(2), second indent, of the EC Treaty.

8. The Council can adopt the Act

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the European
Parliament and of the Council, and is published in the Official Journal.The procedure is ended.

9. Council common position

When the Council does not share the views expressed by Parliament, it adopts a common position, which is forwarded
to the European Parliament together with a statement of reasons. Where the European Parliament has approved the
Commission’s proposal without amendment, but the Council wishes to make changes to it, the Council will again adopt
a common position. Legal basis: Article 251(2), third indent, of the EC Treaty.

 Preparation of the common position:

The decision is prepared by the working parties and Coreper. In the next stage of this preparatory work, the Council will
establish or negotiate a “political agreement” laying down the broad outlines of the proposed common position. The
details of this agreement are subsequently finalised by the working party, verified by lawyer-linguists and formally
adopted as a Common Position by the Council of Ministers at a subsequent meeting. The Council may, on occasion,
reach an agreement in principle before the European Parliament delivers its opinion, commonly termed a “general
approach” . The Commission does not take a definitive position at this stage, since it needs to be able first of all to react
to any amendments of the European Parliament. The Council moves from the general approach to a political agreement,
then to a common position after examining the EP’s opinion, unless the EP amendments coincide with the general
approach, allowing the act in question to be adopted. Wherever possible, informal contacts may be established in the
period between the political agreement and the formal notification of the common position, with a view to facilitating an
agreement at second reading.

 Adoption of the common position:

Adoption may take place without debate (“A” item on the agenda) or with debate (“B” item) or, in exceptional cases, by
written procedure. In the first two instances, the deliberations are in the public domain. The Council’s decision requires
a qualified majority (see Article 205 EC Treaty), except in the fields of culture, free movement of citizens, social security
and coordination of rules governing professions, for which unanimity is required (link to scope).The European
Parliament is generally notified of the common position at the plenary session following its formal adoption. The time
limits laid down by the Treaty for the subsequent stages of the procedure start to run when Parliament receives the
common position.The statement of reasons is accompanied by any statements made by the Council and/or the
Commission for the Council minutes, as well as unilateral statements by delegations.No time limit is laid down in the
Treaty for the adoption of a common position by the Council. In the past, this phase has lasted for an average of 15
months from the start of the procedure, depending on the complexity of the dossiers. The adoption of certain politically
sensitive common positions has sometimes taken several years.

10. Commission communication on the common position

In this document, which is forwarded to the European Parliament in tandem with the common position, the
Commission explains why it has decided to support or oppose the common position. The Commission also comments on
the Council’s reaction to the EP amendments which it had supported in plenary at the first reading. Legal basis: Article
251(2), third indent, of the EC Treaty.

11. EP second reading

A three-month time limit is laid down by the Treaty (this period may be extended by a month) for the European
Parliament to take action on the basis of the Council’s common position. The adoption procedure is broadly similar to
that at first reading. As a general rule, the amendments must: include amendments adopted at first reading and not
accepted by the Council; or be concerned with a part of the common position which did not appear in, or is substantially
different from, the Commission’s initial proposal; or introduce a compromise between the positions of the co-legislators.

The President of the European Parliament makes an announcement, in plenary session, acknowledging receipt of the
Council’s common position and the Commission’s communication thereon, duly translated into all the official
languages. The three-month time limit starts to run on the day following receipt (see Rule 57 of the EP's Rules of
Procedure).

 Work in parliamentary committee:

The procedure for second reading in parliamentary committee generally follows the rules and practice of the first
reading, with the difference that the text to be amended is the Council’s common position and not the Commission’s
proposal. The parliamentary committees which were asked for an opinion at first reading are not consulted anew, except
in specific cases. The amendments adopted in parliamentary committee constitute “the recommendation for second
reading”, which is normally defended by the same rapporteur as at first reading. It includes proposed amendments,
where appropriate. Amendments may also be tabled personally by other Members of the European Parliament.
Pursuant to Rule 62 of the EP's Rules of Procedure, the amendments must either include amendments adopted at first
reading and not accepted by the Council, or be concerned with a part of the common position that did not appear in, or
is substantially different from, the Commission’s initial proposal, or introduce a compromise between the positions of
the co-legislators. If new European elections have taken place, the rules for first reading will apply (Rule 62(3) of the
EP's Rules of Procedure).The proposed amendments are put to the vote in the parliamentary committee responsible,
which takes a decision by simple majority.

 Adoption in plenary session :

The plenary makes its position known on the basis of the amendments included in the recommendation adopted by the
parliamentary committee and any amendments tabled in plenary by political groups or by a minimum of 37 Members.
The rules on the admissibility of amendments applying to the parliamentary committee are also applicable for
amendments tabled at the plenary stage. The plenary adopts amendments by absolute majority. The European
Parliament may extend the three-month time limit by a further month (Article 251(7) of the EC Treaty and Rule 58 of
the EP's Rules of Procedure).

12. EP approves the common position or does not take a decision

If the European Parliament endorses the common position as it stands, fails to adopt amendments as a result of not
obtaining an absolute majority of its Members (393 votes) or does not take a decision within the stipulated time limit,
the President of Parliament will declare that the common position is approved and the act is adopted in accordance with
the common position.Legal basis: Article 251(2)(a) of the EC Treaty, Rule 67 of the EP's Rules of Procedure

13. Act deemed to have been adopted

The legislative act is submitted directly for the signature of the Presidents and Secretaries–General of the European
Parliament and of the Council, and is published in the Official Journal. The procedure is ended.

14. EP rejects the common position

Rejection of the common position requires the votes of an absolute majority of the component Members of the
European Parliament – The act is deemed not to have been adopted. Legal basis: Article 251(2)(b) of the EC Treaty;
Rule 61 of the EP’s Rules of Procedure.

In contrast to the first reading, the Treaty explicitly confers on the European Parliament the right to reject the Council’s
common position. Up till now, the European Parliament has never exercised this prerogative.

15. Act deemed not to have been adopted

The procedure is ended.

16. EP proposes amendments to the common position

The European Parliament may propose amendments to the common position, by an absolute majority of its component
Members (393 votes ) and the text thus amended is forwarded to the Council and the Commission. Legal basis: Article
251(2)(c) of the EC Treaty; Rule 62 of the EP's Rules of Procedure.

Once adopted in parliamentary committee, the recommendation for second reading is placed on the agenda of the
plenary session. As with the first reading, at this stage, any new amendment must be tabled by a political group or by at
least 37 Members of Parliament. Voting is based on an absolute majority of the component Members of the European
Parliament (393 votes).During the plenary debate preceding the vote, the Commissioner announces and explains the
Commission’s position on the amendments tabled. The Commission’s position on the European Parliament’s
amendments is prepared by the Directorate-General in charge of the dossier and approved by the College of
Commissioners. In practice, the College’s decision is prepared by the Inter-institutional relations group (comprising
members of the Commission cabinets responsible for inter-institutional relations), and subsequently ratified by the
College.

17. Commission opinion on EP amendments

The Treaty specifically requires the Commission to deliver an opinion on the European Parliament’s amendments. The
Commission’s position on the European Parliament’s amendments will determine the type of vote necessary in the
Council: if the Commission has given a negative opinion on at least one amendment, the Council will have to act
unanimously as regards acceptance of the European Parliament’s position overall. Legal basis: Article 251(2)(c) and (3)
of the EC Treaty.

In practice, the Commission’s opinion is a written reflection of the position expressed by the Commissioner in plenary
on the amendments adopted by the European Parliament, accompanied where necessary by texts reformulating the EP
amendments accepted partially, in principle or subject to redrafting by the Commission.

18. Council second reading

The Council has a period of three months (which may be extended by a further month), following receipt of the
European Parliament’s amendments, in which to approve them by a qualified majority or unanimously if the
Commission has delivered a negative opinion.

The Council may extend the three-month time limit by a further month. The time limit starts to run from the official
receipt of the amendments resulting from the European Parliament’s second reading, in all the official languages.The
Council’s internal workings are broadly similar to the preparation of the common position: the competent working party
prepares a position which is submitted to Coreper and adopted by the Council.

19. The Council approves the amended common position

If the Council agrees to accept all the amendments of the European Parliament, the act will be deemed to have been
adopted in the form of the common position thus amended.Legal basis: Article 251(3) EC Treaty.

Seeking an agreement at second reading: informal proceedings

In accordance with the Joint Declaration on practical arrangements for the new codecision procedure (in particular,
paragraphs 19 to 23), where an agreement at second reading appears to be attainable, informal contacts are established
between the co-legislators in order to reconcile their positions. Such contacts may take the form of bilateral meetings
between representatives of the European Parliament and the Presidency or, as is more often the case, informal tripartite
meetings in the presence of the Commission. Owing to the ad-hoc nature of such contacts, no “standard” format of
representation has been laid down but, as a general rule, they involve the rapporteur (accompanied where necessary by
shadow rapporteurs from other political groups), the chairperson of the relevant Council working party assisted by the
General Secretariat of the Council and representatives of the Commission (usually the expert in charge of the dossier
and his or her direct superior assisted by the Commission’s Secretariat-General and Legal Service). The purpose of these
contacts is to get agreement on a package of amendments acceptable to the Council and the European Parliament. The
Commission’s endorsement is particularly important, in view of the fact that, if it opposes an amendment which the
European Parliament wants to adopt, the Council will have to act unanimously to accept that amendment. If these
contacts prove fruitful, the Coreper chair will send a letter to the chair of the parliamentary committee responsible,
whereby the Council undertakes to approve the European Parliament’s amendments if they are in line with the
compromise identified jointly. The compromise amendments are then tabled either in parliamentary committee (if they
are identified at an early stage) or, more frequently, just before the plenary session. They are co-signed for their groups
by the rapporteur and the principal shadow rapporteurs, thereby guaranteeing an adequate majority. The political
groups within the European Parliament coordinate their votes in order to adopt the amendments negotiated with the
Council. If those amendments are adopted in accordance with the agreement reached, the Council will adopt the act and
the procedure will be concluded.

20. Act adopted as amended

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the European
Parliament and of the Council, and is published in the Official Journal.The procedure is ended.

21. The Council does not approve the amendments to the common position

If, within a three-month period (may be extended by one month), the Council does not approve all the amendments of
the European Parliament, the President of the Council, in agreement with the President of the European Parliament,
will convene a meeting of the Conciliation Committee within six weeks (may be extended by two weeks). Legal basis:
Article 251(3) of the EC Treaty.

Should the Council fail to approve all the amendments adopted by the European Parliament, then the conciliation
procedure will be set in motion. The Commission’s opinion on the European Parliament’s amendments is therefore
particularly important, since the Council will have to act unanimously in order to adopt a parliamentary amendment on
which the Commission has given a negative opinion.

22. Convening of the Conciliation Committee

The Committee has to be convened within six or, if extended, eight weeks from the time of the Council’s formal decision.
It is deemed to have been convened when its first meeting takes place.The period between the end of the Council’s
second reading and the convening of the Conciliation Committee is used to prepare the work of the latter, through
informal meetings between the three institutions. These informal trialogues bring together small teams of negotiators
for each co-legislator, with participation by the Commission. Each team reports to their delegation within the
Conciliation Committee.This intervening period also gives the European Parliament the opportunity to appoint its
delegation to the Conciliation Committee and give a mandate to its negotiators, in many cases even before the Council’s
position at second reading has been formally concluded.

23. The conciliation procedure

Composition: the Conciliation Committee brings together members of the Council or their representatives and an
equal number of representatives of the European Parliament, as well as the Commissioner responsible.

Modus operandi: in most cases, negotiations are conducted during informal trialogues involving small teams of
negotiators for each institution, with the Commission playing a mediating role. The participants in these trialogues
report to their respective delegations. The compromise (“joint text”) resulting from the informal trialogues, which often
takes the form of a “package”, is submitted to the delegations for approval.

Decision-making: each delegation to the Conciliation Committee must approve the joint text in accordance with its
own rules: qualified majority for the Council’s delegation (unanimity in cases where the Treaty specifies an exception to
the qualified majority rule) and simple majority for the European Parliament’s delegation.

The Commission’s role: Given that it is the originator of the legislative proposal and can attend meetings of the
delegations of both the EP and the Council, the Commission plays a mediating role and frequently proposes
compromises. Its main aim is to reconcile the positions of the two co-legislators while defending, as far as possible, the
general interest and the requirements of the Treaty in line with its proposal. It is important to note that, at this stage of
the procedure, the Commission can no longer prevent the Council from acting by a qualified majority without its
agreement.

Elements for negotiation: negotiations focus on all the amendments adopted by the European Parliament at second
reading on the basis of the Council's common position.
Time limits: the Treaty stipulates a time limit of six weeks (which may be extended by two weeks) for approving a joint
text. The first meeting of the Conciliation Committee signals the start of that period.

Legal basis: Article 251(4) of the EC Treaty.

Time limits: The Treaty is crystal clear on the question of time limits: after the Council’s second reading, the President
of the Council, in agreement with the President of the European Parliament, has 6 (8) weeks to open the conciliation
procedure. The Conciliation Committee itself has 6 (8) weeks to reach agreement on a joint text.In practice, these
periods of time are often too short to allow negotiations to be conducted, since the matters at issue may be extremely
complex and involve a large number of interested parties. As a result, contacts frequently take place even before the
formal conclusion of the Council’s second reading, when it becomes clear that the Council will not accept all the
amendments of the European Parliament. Since the Council has 3 (4) months in which to complete its second reading,
the time thereby made available to the negotiators may be used to develop contacts, especially through informal
trialogues. In theory, the duration of work after the second European Parliament reading may extend over 10 months,
although the declaration annexed to the Treaty of Amsterdam (Declaration – No 34 – on respect for time limits under
the codecision procedure) states that the period in question should not exceed 9 months.

“Informal trialogue”: the true negotiating forum

The briefness of the periods laid down by the Treaty for reaching an agreement, combined with the complexity of
dossiers and the constricted timetable make it necessary to organise work on an informal basis upstream of conciliation.
Thus, the negotiators frequently meet well in advance of the opening of formal conciliation. These meetings, mostly on a
trilateral basis, constitute informal trialogues at technical or political levels, with a limited number of participants in the
interest of effectiveness. For the European Parliament, the participants are the chairperson of the delegation, the chair
of the parliamentary committee and the rapporteur, assisted by members of the European Parliament's conciliations
secretariat and, if necessary, a member of the European Parliament's legal service. For the Council, the permanent
representative of the Member State holding the Council Presidency is assisted by members of the Council's secretariat,
including its legal service.

Lastly, the Commission is represented in the trialogues by the Director-General of the department in charge of the
dossier, assisted by experts, its legal service and Secretariat-General. The participants in the trialogues operate on the
basis of negotiating mandates given to them by their respective delegations. They explore possible avenues of
compromise in an informal manner and report to their delegations. Informal technical trialogues may also be organised,
attended for the most part by the three institutions’ experts and secretariats.

Composition of delegations to the Conciliation Committee

Council: Generally speaking, the Council’s delegation brings together the Member States’ representatives within
Coreper. The Council’s delegation is chaired by the Minister presiding over the Council in charge of the dossier. It acts
by a qualified majority independently of the Commission’s opinion (except for dossiers in respect of which the Treaty
requires unanimity).

EP: A European Parliament delegation is appointed for each dossier going to conciliation. It is composed of 27 Members
of Parliament and 27 substitutes. Three Vice-Presidents of the European Parliament are permanent members of the
Conciliation Committee, co-chairing it by turns. The other EP delegation members are appointed by the political groups,
in proportion to the size of each group within the European Parliament. As a general rule, they belong to the
parliamentary committee responsible for the dossier. The delegation's decisions are taken by a majority of its
component members (i.e. 14 votes).

Conduct of negotiations

The work of the Conciliation Committee is prepared in the course of trialogues where teams of negotiators from the
three institutions attempt to draw up a compromise (“joint text”), often on the basis of a general package aimed at
striking an overall balance.

Attempts are often made to conclude the conciliation procedure at the first meeting of the Conciliation Committee,
sometimes through a straightforward statement of agreement. In some cases, several meetings of the Conciliation
Committee will be necessary to ensure that the members of the delegations are fully aware of the position and the
determination of their counterparts. These meetings may be preceded by trialogues and technical sessions.
Proceedings of the Conciliation Committee

The Conciliation Committee brings together the delegations of the European Parliament and the Council, and the
Commissioner in charge of the dossier. The Conciliation Committee is chaired jointly by the chairpersons of the
delegations from the two “co-legislator” institutions (a Vice-President of the European Parliament or a Minister of the
Member State holding the Presidency). Under the terms of § 32 of the Joint Declaration on practical arrangements for
the new codecision procedure, the Conciliation Committee meets alternately at the premises of the European
Parliament and of the Council.

Immediately prior to the meeting of the Conciliation Committee, the two co-chairs and the Commissioner normally get
together to prepare the ground. As a general rule, this trialogue is preceded by a preparatory meeting of each delegation.

Documents available to the Conciliation Committee: the Commission’s proposal, the Council’s common position,
amendments proposed by the European Parliament, the Commission’s opinion thereon, and a joint working document
from the European Parliament and Council delegations. In practice, this document tends to take the form of a synoptic
table in four columns, containing

(1) the Council’s common position

(2) the EP’s amendments at second reading

(3) the Council’s position on the EP amendments (mostly in the form of compromise suggestions)

(4) the EP delegation’s position on the Council’s proposals

Any compromise suggestions made by the Commission tend to take the form of footnotes.
For the most important dossiers, the meeting of the Conciliation Committee is followed by a press conference making
the outcome of the negotiations known to the media.

24. The Conciliation Committee produces a joint text

Once the negotiators have arrived at a compromise, the Conciliation Committee must give approval in the form of a
“joint text”. The Council's delegation acts by a qualified majority (unanimity in cases stipulated by the Treaty) while
the European Parliament’s delegation acts by a simple majority of its component members (14 votes minimum).

Legal basis: Article 251(4) of the EC Treaty.

25. Parliament and the Council adopt the act in accordance with the joint text

The European Parliament (by a majority of the votes cast; no amendment may be tabled) and the Council (by a qualified
majority with certain exceptions) must adopt the act within six (or eight) weeks, in line with the joint text.

Legal basis: Article 251(5) of the EC Treaty.

26. Act adopted

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the European
Parliament and of the Council, and is published in the Official Journal.

The procedure is ended.

27. Parliament and the Council do not approve the joint text

Should either of the institutions fail to give approval within the stipulated time limit, the act is deemed not to have been
adopted and the procedure is ended. Legal basis: Article 251(5) of the EC Treaty.In practice, approval of the joint text by
the Council (27 Member States) does not pose a problem, since the Council’s delegation within the Conciliation
Committee is made up of one representative per Member State (often the same representative as in Coreper). On the
European Parliament’s side, approval may be more problematic, since the European Parliament’s delegation to the
Conciliation Committee (27 members) is not automatically representative of the 785 Members of the European
Parliament.
28. Act not adopted

The procedure is ended.

29. The Conciliation Committee does not produce a joint text

The act is deemed not to have been adopted and the procedure is ended. Legal basis: Article 251(6) of the EC Treaty.

30. Act not adopted

The procedure is ended.

2. Assent
The assent procedure means that the Council has to obtain the European Parliament's assent before certain very
important decisions are taken. The procedure is the same as in the case of consultation, except that Parliament cannot
amend a proposal: it must either accept or reject it. Acceptance (‘assent’) requires an absolute majority of the vote cast.
The assent procedure is mostly used for agreements with other countries, including the agreements allowing new
countries to join the EU.
3. Consultation
The consultation procedure is used in areas such as agriculture, taxation and competition. Based on a proposal from the
Commission, the Council consults Parliament, the European Economic and Social Committee and the Committee of the
Regions.
Parliament can:
 approve the Commission proposal,
 reject it,
 or ask for amendments.
If Parliament asks for amendments, the Commission will consider all the changes Parliament suggests. If it accepts any
of these suggestions it will send the Council an amended proposal. The Council examines the amended proposal and
either adopts it or amends it further. In this procedure, as in all others, if the Council amends a Commission proposal it
must do so unanimously.

THE BUDGET

The Budget is dealt with under a special procedure. The EU has four sources of revenue, called own resources:

 import tariffs – 75% goes direct to the EU, while MS retain the rest in respect to administrative costs
 levies – on agricultural imports (including a special levy on sugar). Again the EU gets 75% of the proceeds
 VAT-based contributions – until 2003, 0.75% of VAT receipts was paid to the EU. In 2004, it was reduced to
0.5%.
 Contributions based on GNP (Gross National Product) – open to constant negotiations, but was set at 1.02% for
2003.

Spending those resources is governed by a complex bureaucratic procedure. Before the Treaty of Lisbon came into force,
spending was divided into (i) ‘compulsory expenditure’ (CAP spending, spending under the European Agricultural
Guarantee and Guidance Fund and some structural spending) and (ii) ‘non-compulsory spending’.

The Budgetary procedure

 The EP and the Council form what is known as the budgetary authority, yet the budget itself begins life as a
Commission proposal, called Preliminary Draft Budget, which is first sent to the Council, where it must
arrive at the latest by 1 September so that it may be implemented from 1 January the following year.
 The Council, acting by qualified majority, considers the Commission’s proposal and adopts a modified version of
it, known as the draft budget.
 The draft budget must be forwarded to the EP by 5 October
 The EP has 45 days to adopt the budget or demand amendments
 If, in that time, the EP fails to state a position, the budget is deemed approved
 If the EP proposes changes, it sends the draft budget back to Council and requests amendments
 If the requested changes refer to the compulsory expenditure, a majority of votes cast is necessary
 If the changes required affect the non-compulsory expenditure, they must be adopted under an absolute
majority of all members
 When the Council receives the EP’s proposals, it has 15 days for the second reading
 If it accepts all the EP’s proposals, the budget is adopted
 If not, what happens depends on the nature of the amendments
 If the EP proposal requires an increase in overall EU expenditure, the Council must adopt it by QMV; if no QMV
is found, the proposal falls
 If the Council wants to adopt an EP proposal only modified, it sends it back to the EP, which within 15 days,
must conduct its own second reading
 If the EP misses this deadline, the Council proposal is integrated within the budget and the budget is adopted
 The EP has the possibility, based on the double majority, to reject the whole budget, and so, the whole process
starts all over again based on a new proposal from the Commission
 If the budget is not voted for by 1 January, the UE must finance its activities through a system known as
“provisional twelfths”.
 It is an idea borrowed from the USA, which means that an appropriation is made each month which the
equivalent of one twelfth of the previous year’s budget.