EU Law Making

Types of Legislation:The Hierarchy of Norms states that Primary Legislation sets out the essential elements ie. Acts of Parliament and Secondary Legislation 'fills in the detail':Article 288 TFEU: Binding Legislative Acts Regulations- General application, often require implementing measures Directives-Binding upon those addressed to. Have time-limits for implementation Decisions-Binding upon those addressed to  Non-Binding Legislative Acts Recommendations Opinions  Non- Legislative Acts:Adopted under Article 290 (DELEGATED- Secondary legislation) or Article 291 (IMPLEMENTING) Soft Law: Commitments- organise the conduct of institutions Declarations- commitments to respect values of fundamental rights Programming- Objectives and timetables for policies. Regulatory Communication- Communications and conclusions by Council and Commission Model law-making- Guidelines and recommendations. Powers:Article 289 TFEU: outlines the legislative powers of the Union (ordinary legislative procedure and special legislative procedure)Consultation + Assent = special legislative proceduresCo-decision NOW the ordinary legislative procedure. Enhanced Co-operationArticle 113 TFEU- Special legislative procedure FOR TAXES requires unanimous QMV and parliament's approval. Article 114 TFEU- the legal base required for the legislative procedure is to be used within particular INTERNAL MARKET FIELDS eg. health and safety, free movement. Note: A single test for legal base exists across TEU and TFEU (Articles 1) Commission v Council: The commission challenged the adoption of a Directive providing for the mutual assistance between member states adopted under Article 113, the special legislative procedure of taxes as opposed to Article 144. Held, this was correct as Article 114 did not regard fiscal provisions (tax provisions) as a suitable legal basis. Objective factors which can be judicially reviewed must be considered when choosing a legal basis ie. the predominant purpose of the directive must be considered. Framework Directive on Waste: A directive should be adopted under Article 114 as it was aimed towards the internal market as opposed to environmental purpose which the directive aimed towards.If a court cannot determine a predominant purpose a hierarchical test is used:Article 114 TFEU (internal market) > Article 192 TFEU (environmental) > Article 352 TFEU (objectives without powers)Linguistic Diversity in the Information Society: The purposes must be equally essential and indissociable to the measure in order for the hierarchical test to be enforced. 1. Ordinary Legislative Procedure, Article 294 TFEU:First ReadingAdopted by QMV by the Council Second Reading If parliament approves of the Council's position the act is adopted (must be Unanimous or by QMV). If the act is not adopted, Parliament rejects the Council's position and proposes further amendments for the Council and the Commission. The Commission may reject the Parliament's amendments by unanimity.  Parliament holds the right to Veto over legislation (this must be used carefully) ConciliationEqual number of members from Council and Parliament. Must make an agreement on the text with the aid of the Commission (if the act is not adopted within 6 weeks)Rome II is an example of an act which has been through the whole system.Third Reading If conciliation Committee approves of a joint text the Council has 6 weeks to adopt it. Article 293: Amendments by the Council can only be unanimous.  The Joint Declaration 2007 formalises the commitment to reach an agreement at the first reading and creates the Trialogue.The Trialogue consists of 2 or 3 members of the Parliament and one senior commission official. It acts as a forum where each side can explain their position and reach an agreement. It operates through all stages of the ordinary legislative procedure. However, it skips all "checks and balances" as it centralises the power to only 3 representatives. 2. Consultation ProcedureCouncil consults parliament from a submission from the Commission. The council can then decide whether to adopt the measure by Unanimity.Parliament holds the right to delay which invites the Commission to amend or withdraw the submission.  3. Assent Procedure:A proposal is made to parliament, Member States or to the Council directly/ via relevant institutions. Parliament gives consent with no time-limitsAgreement is sought after through the Triologue. Enhanced Cooperation, TEU Title IV:Some member states are allowed to develop common law between themselves through enhanced cooperation, this must be unanimously consented by the Council. 9+ member states Must not be in a field of exclusive Union competence Must only be adopted as a matter of last resort Must no undermine internal market or social cohesion Must comply with other EU law Must respect rights, competences and obligations.  Article 20 TEU, Article 326+ 327 TFEU propose safeguards to prevent countries from self-litigating and undermining EU supremacy. Comitology:Before the Lisbon Treaty took effect Comitology gave committees of representatives of national governments certain powers to oversee a Measure and enforce it.  This system has now been abolished, and instead TEFU distinguishes between delegated acts and implementing acts. Advisory procedure- Committee advises the Commission Management procedure- application of policies and implementation of budgetary programmes Regulatory procedure- application of essential basic instruments, may adapt implementing measures by QMV Regulatory procedure with scrutiny- application of amending basic instruments (Council or Parliament can Veto the draft) Note: Only applies to acts adopted before the Lisbon Treaty, so long they are not amended.Articles 290 and 291 now give the Council and Parliament further powers of the Commission regarding delegation measures and mechanisms for control.

Democracy and the Limits of EU authority:Representative DemocracyCitizen's right to determine public authority through election and votes under: Article 10 TEU- direct representation through Parliament and representation in the Council by government.  However, Citizens are not represented equally due to low interest, involvement and overall majority vote. Commitology undermines the citizen's involvement.  Article 12 TEU- the council is used as a means of expressing views through document-based procedures.  The principle of Subsidiarity - the EU may only act (i.e. make laws) where action of individual countries is insufficient Participative DemocracyArticle 10 TEU- right to participate in democratic lifeArticle 11 TEU- citizens retain the opportunity to voice and exchange views. Deliberative Democracy right to public debate between citizens Separation of Powers Systems of checks and balances Indirect accountability of Council- they are elected through their country President of commission is voted by the European parliament.  Doctrine of Conferred Powers:Article 5 TEU- Limits of Union competences conferred upon by the Member States and TreatiesArticle 1 TFEU- Functioning of the Union and determines the areas of delimitation and arrangements for exercising it's competences. Article 2-7 TEU- Sets the fields of activity in which the Union has competence and so "limits" it. Article 352 TFEU- The "Flexibility provision" grants legislative powers where necessary in order to realised a union objective (as per Article 3+5 TEU)Declaration 42: prevents the union from using Article 325 from expanding their own powers beyond that specified by the treaty.Gauweiler: specified 5 further fields where Article 352 cannot be used: Central features of criminal law Deployment and use of force Central budgetary issues Central issues of social policy Culturally important fields (religion, education, family) Sugar Quota Regulation: Czech Constitutional court held that EU sovereignty cannot extinguish the core functions of the Czech state. The CCC can intervene whenever the Union does not act according to democratic state as the constitution of Czech government rests upon this. There can be no derogation from this by the Union. Tobacco Advertising: The Community institutes enacted a directive prohibiting tobacco advertising. The German government bought judicial review claiming the articles did not constitute an appropriate legal basis, infringed free movement and the principle of subsidiarity.  The directive was therefore annulled- under Article 114 there was not internal market aim of the directive. International Fruit: Dutch fruit importers disputed the decisions of the Dutch intervention agency to reject their application fro the importation of apples from non-member states. A regulation ought to be regarded as a series of legal decisions which affected the legal position of each applicant. They therefore concerned each applicant individual under Article 288. Acts under 288 must be considered by their nature, not their form. ERTA: Dispute between the commission and council over whether the commission or member states had the right to negotiate with non-member states. Held, the Community implements a common policy and so member states do not have the right to undertake obligations with 3rd party countries. Only the Community can assume these. 

Notes