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EU Law Essays

This essay will propose to examine the legislative powers of the major institutions of the European Union: the Council of the European Union, the European Commission and the European Parliament. Before embarking upon an exploration of the constitution and powers of the three main institutions, it is important to note what the different sources of legislation in EU law are:

• The EC Treaty and Protocols, as amended b y the succeeding Treaties: Merger Treaty 1965; Acts of Accession 1972 (UK, Ireland, Denmark), 1979 (Greece), 1985 (Spain, Portugal), 1995 (Austria, Finland, Sweden); Budgetary Treaties 1970, 1975; Single European Act 1986 (SEA); Treaty on European Union 1992 (TEU); Treaty o Amsterdam 1998.
  
  
• EC secondary legislation in the form of Regulations, Directives and Decisions. Recommendations and Opinions are of persuasive force only.
  
  
• Such international agreements as are entered into by the Community institutions on behalf of the Community pursuant to their powers under the EC Treaty.
  
  
• Judicial legislation.

There are then four main institutions which serve the EC: the Council of Ministers (the Council), the Commission, the European Parliament and the Court of Justice.

Although now known as the Council of the European Union, the Council was created by the Treaty of Rome as the Council of Ministers. The

Council consists of representatives of Member States at ministerial level. Although there is just one Council, its composition and name depends on the subject matter in issue. In other words, it is not a fixed body. For example, where matters of agriculture are at stake, the Ministers of Agriculture will normally participate; if high level policy matters are discussed, the Council may consist of Heads of State. There is therefore an Agricultural

Council, a Council of Ministers of Foreign Affairs and Finance, a Home Affairs Council and so on. There is one representative per Member State, and they are authorised to commit their respective governments (Article 203). This phrase was added by the TEU in order that representatives would not have to keep going back to their governments for every minor decision, as this was obviously quite contrary to good administration. The meetings of the Council are generally non public, and this has been subject to much criticism by those who argue that this state of affairs undermines the democratic nature of the Union. These criticisms will be further discussed below.

The function of the Council is 'to ensure that the objectives set out in this Treaty are attained' (Article 202 EC). To this end it 'shall ensure coordination of the general economic policies of the Member States; have power to take decisions and confer on the Commission, in the acts which the Council adopts, powers for the implementation of those rules which the Council lays down.' The legislative powers of the Council will be further discussed below.

The Commission has been described as 'the guardian of the Treaties'. It is also often described as the Executive of the Community's policies. Their members are chosen on their general competence, and their independence must be beyond doubt. Briefly stated the functions of the Commission are threefold. Firstly it acts as initiator of Community actions. All important decisions made by the Council are made on the basis of proposals from the Commission and the EP's powers to request the Commission to submit proposals. The Commission may formulate proposals on any matter provided for under the Treaty. Again, the details of their role within the legislative process will be further discussed below.

The European Parliament was created by the Treaty of Rome. It was originally named the Assembly, but after the Single European Act 1986 (SEA) was renamed the European Parliament (EP). It originally consisted of representatives of Member States who were members of the national Parliament, but in 1979 direct elections were introduced.

The original EP had few powers; it functions being purely advisory and supervisory. Although these powers have been somewhat extended in subsequent legislation, it is not, and has never been intended to be a legislative body.

The Legislative Powers

The legislative powers of the Community Institutions are laid down by Article 249:

In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.

The Communities and the Community institutions therefore only have the powers given to them by the Treaties. All residual power is left to the Members States. However, for all the subject matter covered by the Treaties, the Community has jurisdiction over and above and notwithstanding the wishes of any Member State/s. This means that all the institutions must act within the framework of the provisions laid down in the respective Treaties. Article 5 can be seen as placing the most significant limits on the powers of the Communities:

The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the proposed action, be better achieved by the community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

In essence this Article can be seen as creating the principles of subsidiarity and proportionality. The principle of subsidiarity is divided into two elements:

• Does the Community have a legal base for its actions in the Treaty?
  
  
• Should the Community act or can the objective be sufficiently achieved by the Member States? If not, can it be better achieved by the Community?
  
  
• The Community should therefore not legislate where the objectives of the Treaty can be sufficiently achieved by the Member States. This can be seen as a significant limitation on the Community's legislative powers.

In UK v Council (The Working Time Directive) (Case C-84/94) 1996 the Council adopted Article 93/104 based on Article 118a of the EC Treaty which deals with harmonisation of health and safety in the working environment), providing, inter alia, that the average weekly working time should not exceed 48 hours, that there should be specified minimum rest periods and that workers should be entitled to four weeks annual paid leave. The UK challenged the measure in an action for judicial review under Article 230, claiming that it should have been adopted under Article 100 requiring a unanimous vote, rather than Article 118a (now Article 138), requiring a qualified majority vote, and that it contravened the principle of subsidiarity. It was held, however, that the measure had been properly adopted under article 118a.

The last sentence of Article 5 also creates the principle of proportionality. This has also been of great significance within the EU legal system, and has in fact been developed into a general principle. What the principle basically expounds is that the aims and objectives of the Treaty should be achieved via the least restrictive and onerous means possible. Proportionality, like a number of other general principles, derives from German law, although there are some similarities with reasonableness in English law. It operates by weighing the objectives of legislation against the means by which they are achieved. One of the most famous instances where the principle was invoked was in the case of Cassis de Dijon (Case 120/78) [1979] where the ban on the sale of drinks below a certain alcohol level was viewed as disproportionate, thereby infringing the principle of proportionality, as labelling the bottles of alcohol would have provided the customer with sufficient information.

The Legislative Process

The legislative process of the European Union involves all three of these institutions. The Commission instigates or initiates the proposal which the Council then adopts or rejects. The importance of the EP's role varies according to the nature and subject matter of the legislation, as well as to the procedure adopted: consultation, cooperation, co-decision or assent. It now has more power than ever, but it still has no right of legislative initiative.

Consultation

The Consultation procedure requires the Council to consult the EP before it adopts an act. EP's views must be considered but are not binding. Nevertheless, the consultation is an essential procedural requirement. Legislation has been successfully challenged when, although the EP has been consulted on an initial draft, it has not been consulted after significant amendments were made to the draft (Parliament v Council (Case C-21/94) [1994] ). Moreover, in Roquette Freres SA v Council (Case 138/79 [1980]) and Maizena GmbH v Council (Case 139/79 [1980]) a regulation was annulled because even though the EP's opinion had been sought, the Regulation was passed before the opinion was obtained.

Cooperation

The Cooperation procedure is set out in Article 252 of the Treaty and requires that the EP be given the opportunity to propose amendments to the draft legislation.

The proposal is first sent to both the EP and the Council. The Council takes account of the opinion of the EP and agrees a common position on the proposal. The EP then has a second chance to consider the draft proposal. If it agrees with the common position of the Council, the Council may adopt the common position acting by qualified majority vote. On the other hand the EP may propose amendments to the common position or amend it altogether. Either way the proposal is returned to the Commission to re-examine. The Commission then produces a new draft adopting all, some or none of the amendments. The document is then sent to the Council. If the Council wishes to adopt the new proposal it may do so by qualified majority vote. If, on the other hand, it wishes to amend the proposal any further, or perhaps adopt the original common position, it needs to act by unanimity. Therefore as long as it acts unanimously, the Council has the final say and can overrule the EP and the Commission.

Co-decision

This procedure was introduced by the TEU and improved the power of the EP. Similar to the cooperation procedure the EP has the opportunity to review the Commission's proposal twice. If the EP approves the common position, the act is adopted, usually by a qualified majority vote by the Council. Again, the EP may reject the common position or propose amendments. The document is re-examined by the Commission which may include or reject any or all of the EP's amendments in the new draft. The Council may then adopt the new document by acting by a qualified majority. If the Council wished to adopt some of the EP's proposal which the Commission has rejected then it can do so but only if it acts unanimously. If the Council does not adopt the new proposal then the Conciliation Committee, made up of members of the Council or their representatives and an equal number of representatives of the EP, meets to reach a compromise. If the committee approves the new draft, both the

Council and the EP may reject it. In this situation, therefore, the EP may veto a piece of legislation. In this situation it is also more difficult to ignore the Commission's views on the form of the amended proposal. To do so the Council must act unanimously. This procedure, however, only applies within specified policy areas.

However, the amendments introduced by the Treaty of Amsterdam (ToA) go some way in improving this situation, as the areas in which the co-decision procedure may be used has increased to the extent that the cooperation procedure has virtually ceased to exist. This has gone some way in improving the democratic credentials of the EU, as far as legislation is concerned, as the EP (the only directly elected institution of the Community) is given more power. The overall significance of this is discussed further below.

Assent

Assent was introduced by the SEA and extended by the TEU. It constitutes a right to veto, and when assent is required, the Council may act only after it has obtained agreement from the EP. This applies to very important matters, normally under the first pillar (The Treaty), such as admission of new members to the Community and association agreements.

Since the Council has the final say and therefore the final power on most secondary legislation, some control by Member States is assured. In most cases, however, we have seen that the Council can only act on the basis of a proposal from the Commission. Moreover, other institutions are involved in the decision making process to an increasing degree. As we can see from the procedures introduced by the SEA, if it wishes to override the EP's opposition to a measure it must do so by unanimous vote. It may also amend the Commission's proposals but again it must do so by unanimous vote. Also, after the TEU, the Council shares decision making in some areas with the EP.

In most areas of the law, the Council only needs to act by simple majority voting, 'save as otherwise provided by this Treaty'. Nevertheless, the instances of simple majority voting are now extremely rare. The TEA decreases the use of simple majority voting even further, including the use of qualified majority voting. However, simple majority voting is still used in some areas, such as for the adoption of the Council's rules of procedure.

Unanimity voting was used frequently until after 1965 when the transitional period came to an end and qualified majority voting replaced it in many situations. This is because if too many matters have to be resolved in this way, it will lead to stagnation in the progress of the Union. The SEA and ToA have extended the use of qualified majority voting even further. Now it is the most frequently used method of voting. This, however, applies only to the first pillar: matters which come under the Treaty. For the second (the common foreign and security policy) and third (police and judicial co-operation) pillars the unanimity vote approach is used almost exclusively.

The Commission also carries out Community decisions and policies as well as proposing legislation and shaping the decisions which are finally taken. Moreover, the Commission also has its own legislative powers under Article 86 on State Aid and Article 81 on competition. Article 81 gives the Commission extensive powers to fine any undertakings which are in breach of the European Community competition rules. Article 86, which deals with state aid, states, under section 3:

The Commission shall ensure the application of the provision of this article and shall, where necessary, address appropriate directives or decisions to Member States.

In conclusion, however, it could be argued that there is not much democratic credibility to the legislative processes of the EU. The members of the Commission, as well as those of the Council, are appointed as opposed to elected. The EP is in fact the only institution in the whole of the EU with any democratic validity. Yet, despite the extension of their powers by virtue of the TEU and the SEA, it still remains the least involved of all the

Community institutions as far as legislation is concerned. The way legislation is enacted, as we have seen, is via the Commission proposing a piece of legislation which is then, essentially, either accepted or rejected by the Council. In most cases, even though the EP has the right to be consulted, its recommendations are seldom binding. If, in fact, the Council acts by unanimity, it can in most cases completely disregard the EP's opinions with all procedures other than assent. Assent, however, is of limited application. There is even, it could be argued, a certain level of artificiality and redundancy in the role played by the EP in the legislative process, as, even though a lot of weight is placed on their right to be consulted, their recommendations, again, are of little legal effect. It is submitted, then, that the EU, in terms of democratisation, has still a long way to go.

BIBLIOGRAPHY

Table of Cases

• Parliament v Council (Case C-21/94) [1994
• Roquette Freres SA v Council (Case 138/79 [1980]
• Maizena GmbH v Council (Case 139/79 [1980])
• Cassis de Dijon (Case 120/78) [1979
• UK v Council (The Working Time Directive) (Case C-84/94)

Table of Legislation

• o Merger Treaty 1965;
• o Acts of Accession 1972 (UK, Ireland, Denmark), 1979 (Greece), 1985 (Spain, Portugal), 1995 (Austria, Finland, Sweden); Budgetary Treaties 1970, 1975;
• o Single European Act 1986 (SEA);
• o Treaty on European Union 1992 (TEU);
• o Treaty o Amsterdam 1998 (TEA).

Table of Treaty Articles

• Article 5
• Article 81
• Article 86
• Article 93
• Article 100
• Article104
• Article 138
• Article 202
• Article 203
• Article 230
• Article 249
• Article 252

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