Top Left Background Top Right Background
Bottom Right Background

European Union law making

Previous: Introduction to the European Union

The legal order of the European Union

As Member States confer competences to the EU, EU law, which is comprised of the community acquis (see introduction), must be supreme over that of Member States for the EU to function correctly. In Van Gend En Loos (1963), the Court of Justice first confirmed that the EU creates a new legal order over that of Member States, allowing the effective prevention of a Member States’ imposition of a customs duty. It was confirmed in Costa v ENEL [1964] that this legal order is supreme. Further, according to Kadi I [2008], international agreements are also subordinate to EU law.

The law making process

There are two ways in which new EU law can be made, determined by which conferred competence the legislative act will address. The first is through the Ordinary Legislative Procedure (OLP), which used to be called the co-decision procedure, and the second is through the Special Legislative Procedure (SLP).

In the OLP, a Commission proposal goes through three readings. In the first reading, either the Council or the European Parliament may accept or reject the proposal. If the proposal is accepted, it will be enacted. If it is rejected, the Commission will amend its proposal before a second reading. This time, the Parliament may opt only to veto the proposal; if it ignores it, will be be for the Council only to change or enact the proposal. If the Parliament and Council disagree, the third ‘reading’ is a conciliation committee, where a small group of Members of Parliament and Council Ministers will negotiate and either enact or veto the proposal. The Council may amend any proposal through a qualified majority vote (QMV).

There are 2 types of SLP. In the first type (the consultation procedure), the Council may adopt a Commission proposal, but must take account of the opinion of the Parliament. Parliament only has the power to delay enactment. Roquette Frères v Council [1982] confirmed that consultation must actually take place. In the second type (the consent procedure), the Parliament must give their express consent to a proposal. The consent procedure applies to the EU budget, international agreements and legislative acts adopted using Article 352 TFEU (see competence of the EU).

It is possible that the Commission is faced with multiple competences (legal bases) upon which a proposal could be based. As a general rule, whichever one is more relevant should be utilised. If two legal bases are equally applicable, the base which favours the most involvement of the European Parliament should be preferred. Legal bases are discussed in more detail here.

Legal measures

The EU can enact a variety of different types of legal measures (or ‘law’). Article 288 TFEU specifies the different types: regulations, directives, decisions, recommendations and opinions.

Regulations

Regulations are the closest thing that the EU has to statutes. They contain laws which are both directly applicable in Member States and may be relied upon in national Courts as ‘supreme’ law. Fratelli Variola [1973] confirmed that rights may be conferred upon individuals by regulations.

Directives

Directives are a unique type of legal measure. Their content is generally to be considered as unenforceable in Member States, however, Member States are obliged to enact law within a specified period of time (the transposition period) which attains the objective of a directive. They are therefore result orientated. The effectiveness of Directives will be addressed in a later section on the effect of EU law.

Decisions

Decisions, such as those of of the Court of Justice of the European Union, are binding on whomever they are addressed to.

Recommendations and opinions

Recommendations and opinions are non-binding commitments made by EU institutions.

Issues with EU law making

A number of criticisms may be made of the EU law making process. Whilst it may be argued that institutional balance is present: the Commission represents the EU, the Council represents governments, Parliament represents the people; the voting procedures within the Council and the European Parliament are unnecessarily complex, especially with the introduction of the qualified majority voting procedure (QMV), and all three institutions are guided by the same policies (the furtherance of an ‘ever closer integration’ of the EU into Member States). Prior to the introduction of QMV, consensus voting allowed any country to veto a proposal; yet now, significant numbers of countries can be overruled.

Democracy

Article 10 TEU provides that “the functioning of the Union shall be founded on representative democracy.” In an attempt to include Member States and their citizens in the the law making process, the Treaties provide for two system. The first is the citizen’s initiative. Under Art 11(4) TEU, 1 million signatures from a “significant number” of Member States will invite the Commission to consider a proposal which helps implement the Treaties. Secondly, Article 12 TEU incorporates Protocol No. 1 on Subsidiarity and Proportionality, which provides for the issuing of a ‘yellow card’ if at least one third of Parliaments submit reasoned opinions to the Commission detailing why a proposal is in breach of the principle of subsidiarity within 8 weeks of the publishing of the proposal. The principle of subsidiarity is discussed here. A yellow card forces the Commission to reconsider their proposal, but they are not obliged to change it. If a majority of Parliaments issue opinions, an ‘orange card’ will be issued, and it is unlikely that the Commission will continue with their proposal. If enacted, the measure in question may also be challenged by way of judicial review.

Differentiated integration

It is possible for a group of Member States to opt-in to certain agreements whilst others opt-out. As a matter of last resort, at least 9 Member States only may be subject to an agreement within EU’s exclusive competence. The most obvious example of differentiated integration was the adoption of the Euro single currency. It is possible that an agreement made between Member States will be found to be outside of the scope of European Union jurisdiction, as was the case in the Pringle case, where it was said that the European Stability Mechanism, although agreed in the context of an EU meeting, was not subject to the control of the Court of Justice.

Next: Primacy and Competence of the European Union

Goto Top
Close Notification

Recent News

Other News