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Published: Fri, 02 Feb 2018
The methods of law making in the EU
In order to accurately evaluate this statement, this short essay will discuss the political and legal growth of the European Union under the Treaties of the European Union, (EU) the main institutions of the EU and their functions as well as the part played by National Parliaments within the legislation process. How the ordinary and special legislative processes work and the criticisms and allegations of a “democratic deficit” that have arisen within the EU before looking briefly at the current Lisbon Treaty to see if it has addressed any of these concerns.
The idea, or concept of, “A Europe” is not a new one for it can be found within Greek mythology and is also derived from the Phoenician word Europa “that referred to the setting sun. From this, Europe was associated in Ancient Greece with the idea of “the West”.1 Chalmers goes on to explain how “the West” is a term now more associated with the social and economic principles of modern Europe2 whose genesis can be found in the French response to rising German industrial power in the aftermath of World War Two. Kaczorowska has stated that, Robert Schuman3, put forward a plan intended for controlling the raw materials needed in waging war, namely coal and steel, with a view to forming a common market with common economic ties and an independent body to control these commodities because this was seen as a viable way to secure lasting peace.
This plan took the form of the European Coal and Steel Community (ECSC) which was officially enacted in the Treaty of Paris 1951 and signed by six nations.4 Under Article 1 it states that it is to be “founded upon a common market, common objectives and common institutions.”5 Ward has stated that this “economic integration” had the potential to act as a catalyst which could lead to social and political integration6 but he reminds us that it was economically driven, offering the French control of the German economy and Germany potential economic recovery, and respectability, after the war.7
The economic benefits from this treaty motivated the Nations involved in the ECSC and their foreign ministers to;
“Pursue the establishment of a United Europe through the development of common institutions, a progressive fusion of national economies, the creation of a common market and harmonisation of social policies”.8
This led to the Treaties of Rome 19579 which are regarded as the foundation treaties of European Law with a large percentage still being used today. They established the free movement of goods10, free movement of workers11, capital and services12 as well as the basic principles of competition law13. It set up a common customs tariff14 and abolished certain tariffs placed upon inter-member state trade15. Some of the criticisms levied against the Treaty of Rome were that it was a;
“Negative treaty, rather more concerned with preventing things than with creating positive obligations or promoting alternatives…… Above all, the Treaty neglected to provide any complimentary public philosophy”.16
It also gave rise to the main institutions of the European Union under Article four, each of which we will examine briefly in turn from their inception under the Treaty of Rome, their incarnations under subsequent Treaties to the current institutions under the Lisbon Treaty as well as some of the perceived criticisms of each.
The Commission was originally made up of twenty commissioners, at least one from each member state17 whose character and responsibilities18 were set out in Articles 155-63 of the Treaty of Rome. Lodge has said that the method by which portfolios were granted and commissioners nominated is still a very political and sensitive matter19 with Ward adding that;
“The Quality of Commissioners has remained equally controversial, with rather too many being rather too obviously failed domestic politicians.”20
The role of the present commission is set out in Article 17(1) TEU21 it currently consists of twenty seven Commissioners22 and has been described as the “guardian of the treaties”23 it is allotted a five year term with the President being appointed by the National Governments and approved by the European Parliament24. The President then nominates the other Commissioners who must be approved collectively by the European Parliament. The Commission has a supervisory role in ensuring that Member States put into practice EU law25 and it can also bring Member States before the Court of Justice when in breach of Community law26. It initiates legislation in the EU27 as well as having considerable powers when it comes to the allocation of the budget of the EU.
Under Article 245 of the Lisbon Treaty on the Functioning of the European Union (LTFEU) Commissioners must be independent and states should respect this. Commissioners should not engage in any other type of work or create any type of conflict of interest or put their personal or National interests above those of the Community. In Commission v Cresson28 The Court found that there had been a breech of her obligations although they did not impose a penalty.
The Parliamentary Assembly was made up of representatives from each member state through proportionate representation. Each nation could dictate how their representatives would be chosen which inevitably led to national politicians protecting national party interest but Ward goes on to say that the;
“Real problem with the Parliament as it was established in the Rome treaty lay in its legislative emasculation. As Article 138 went on to affirm the powers of the Parliament would be strictly limited to “giving its assent” to legislation presented to it or to “delivering advisory opinions” on it. There was no power of legislative initiative and no power of veto…….. The Parliament was always intended to be supine, a vague concession to the principle of democracy……… The more apparent has the economic and political power of the Community become, the more concerned critics have become regarding the blatant lack of democratic process or accountability.”29
At present the European Parliament30 which does not have the same powers or functions as National Parliaments, although it can halt legislation in certain circumstances, is more of a co-legislative body than a consultation one as it was at its beginning. The 736 members (MEPs) are elected through direct universal suffrage every five years. This happens at National level with MEPs being elected as representatives of “national political parties”31 which has been argued to have the effect of reducing the issues to domestic ones and this has been said to make the process “second order national contests”32
The Council was made up of one member from each state and was tasked with meeting the objectives of the Treaty and to take “decisions and confer on the Commission powers for the implementation of the rules which the Council lays down” along with a system for qualified majority voting which remains a source of tension.33 At present the Council of the European Union also known as Council of Ministers has sole competency in foreign affairs34. Its Presidency is only held by Member States for six months at a time, this provision is seen by some as a way to restrict the role of the Presidency35 although this has led to debate.36 It has no permanent composition but it is made up of;
“A representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote”37
this voting, depending on the legislative proposal before it, takes the form of either unanimity, simple majority or qualified majority voting but if the total number of states come to less than a specified percentage of the total population of the EU then in certain circumstances will not go through38, this stipulation prevents monopoly of voting. It can ask for the Commission to carry out studies or make legislative proposals and according to Chalmers its;
“Most influential role is the power of final decision on the adoption of legislation in most areas of EU policy. This power of assent bolsters the Council”s influence at earlier stages in the decision-making process because the other institutions are aware that a proposal will only become law if it has the Council”s approval and tailor their actions accordingly”.39
Its bureaucracy is made up of a Committee of Permanent Representatives (COREPER) and sets the agenda for the Council meetings.40 It has two bodies41. The first is made up of deputy permanent representatives who look at common issues42 and the second made up of permanent representatives of “ambassadorial rank responsible for more sensitive issues”.43 The ability to set the agenda has led to much debate ranging from opinions that it works successfully to inform member states of the European Unions work44 to concerns about accountability and transparency.45
For each legislative action the EU proposes, it must have a legal basis for doing so, this basis allows it to legislate in the particular field and to;
“Determine the legislative procedures and types of laws that can be adopted….. Determines the respective powers and influences of the different EU institutions and influence of national governments”
On EC law making and it may also help the Community in deciding which kind of law making procedure it should employ46. Challenges in regards of the proper legal base have arisen in Commission v Council (Recovery of Indirect Taxes)47 Titanium Dioxide Case48 and the Linguistic Diversity Case.49
The Ordinary Legislative procedure50 works as follows, it has three stages, stage one is where the Commission makes a proposal to the EP who can make an opinion on it, if there are no amendments to be made and agreement at this stage the Council can adopt through QMV and it is passed on the first reading. If agreement is not reached then it goes to the second stage which involves the Council of Ministers adopting the common position. If there are amendments at this stage they must be passed unanimously. It then goes back to the EP who, if they agree to the common position or do nothing for three months causes the legislation to pass but if the EP proposes amendments which are subsequently agreed to by the Commission then the Council of Ministers can adopt by QMV but if the Commission does not agree the Council of Ministers can only adopt through unanimity.
If agreement is still not reached it goes to the third reading where it is sent to a conciliation committee, made up equally from the EP and the Council, who are given six weeks to come up with a response which must be agreed to by QMV in the Council of Ministers and majority in the EP otherwise it fails. There is also a Trilouge system in operation during this process, normally before the conciliation stage, which consists of a very limited amount of MEPs, a Deputy Permanent Representative and a senior Commission official who attempt to reach agreement on issues so that they pass on the first reading. This is a very effect tool for streamlining and cutting down on the work load of the EU. The drawback is that it would appear that most of the substantive decisions are taking place in the Trilouge setting being represented by the most powerful players from the EP and the Council and this is debatably the biggest challenge to democratic legitimacy51. The smaller parties are not represented in the Trilouge system and these detract the role in the decision process played by the Council.52
The special legislative procedures are broken down into the Assent Procedure and the Consultation Procedure. The Assent Procedure introduced by the SEA is simply where the Council acts on a proposal from the Commission which has received assent from the EP and the Consultation Procedure happens when the Commission makes a submission to the Council who must ask the EP for its opinion. The Council is not bound by this opinion but they must receive it. The EP has a duty to co-operate within a reasonable time frame. In Roquette Fr”res53 the ECJ held that because the Treaty demanded discussion with the EP this stipulation had to be complied with.54
Under the Lisbon Treaty the Court of Justice of the European Union55 has 27 judges, one from each Nation State, who are appointed for a six year period which can be renewed.56 They are helped by eight Advocate Generals (AGs). Although opinions of AGs are published before the judgment of the ECJ they are not binding on the Court and dissenting judgments are not published. The AGs function is to make independent submissions to the Court on how a dispute may be settled.
There are other institutions57 instigated under the various treaties, the European Council for example, which meets twice yearly and is made up of the heads of states from each member Nation. Although it dose not have legislative capabilities it provides the political direction and momentum for the EU.
The recession in the early 1980s led to The Single European Act 1986 (SEA) which formalised the European Council, brought about institutional reform through a new legislative procedure which provided for qualified majority voting on certain topics allowing the adoption of the legislation needed to make the internal market a reality. It increased the European Parliaments powers through the “co-operation” procedure58 and gave the European community further competence in the realms of Health and Safety, Environmental policy and workers rights. Although;
“Policies in all these areas had already been adopted under the general pre-existing Treaty provisions.” 59
The Maastricht Treaty 1992 (TEU) which came into effect in 1993, effectively created the entity of the European Union instead of the EEC. Article 1 states;
This Treaty marks a new stage in the process of creating an ever closer union among the peoples in Europe, in which decisions are taken as closely as possible to the citizen. The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty.60
It had more political and social aspirations than preceding Treaties.61 It was these ideals and the desire for further reforms which prompted the rebranding of the EEC as the EC and the construction of the three pillar structure within the Maastricht Treaty leading to an increased sphere of activity of the first pillar, the EC, when it was given the duty of creating a single currency62. Ward has stated that;
“The Maastricht Treaty on European Union (TEU), was designed to both amend the existing Rome Treaty, as well as to establish a whole new constitutional structure for the impending Union. This structure was to be founded on three “pillars”; the first pillar being the Community Treaty, whilst the remaining two related to Common Foreign and Security Policy, and Justice and Home Affairs……. the Union thus supplemented the Community, though it did so rather awkwardly under the one constitutional structure. In simple terms, it was intended that the Community should remain the supranational element in the Union, and also the fully justifiable one, whilst the two new pillars should be inter-governmental.”63
It created a concept of European citizenship under Article 8 as well as National Citizenship64 although Ward has criticised the functioning this Article.65 The Maastricht Treaty also enhanced the principles of subsidiarity,66 which “maintains the integrity of the Community” as well as allowing a part in the decision making process for Member States,67 and proportionality,68 both of which are subject to judicial review69 see Spain v Council.70
The Amsterdam Treaty of 1999 and the Nice Treaty 2003 made minor changes to the Maastricht Treaty further strengthening the power of the Council and the EP in dealing with member states and combating discrimination. Drafting a Charter of Fundamental Rights and a Declaration on the Future of the Union as well as enhancing the power of the Court71.
As we have seen so far there have been many issues raised as to the political legitimacy, accountability and transparency of the EU and its Treaties, it has been seen as out of touch with the citizens72 with the institutions themselves being seen as “interfering, intrusive and out of control.”73 In a White Paper on Governance it was supposed that a possible way of addressing these issues lay through good governance.74
The UK ratified the Lisbon Treaty75 in 2007 coming into force in 2009 Article 12 of the TEU highlights the powers granted to National Parliaments. It augmented the powers of the EP76 and National Parliaments in the legislative decision process. Now National Parliaments have time to regard legislative proposals although it has been argued that it is still relatively short,77 and also powers to call for a review of a proposal through the yellow and orange card system78 if the national parliament feels that the principle of subsidiarity is not being respected79. It gives greater legal effect to human rights80 and;
“National parliaments now exercise deeper and tighter control than ever before over their government”s positions on EU issues”81
Citizens under the Lisbon Treaty now have a direct avenue to influence the EU decision procedure through the citizen”s initiative82 and there are numerous articles which demand openness and transparency.83 The Council must now vote in public84 and there is a right to good administration85 consequently The Lisbon Treaty seems to address some of these criticisms but;
“One has to regonise that EU citizens will probably continue to feel that they are not masters of the game in te same way as in the national or regional political arenas. In the future, political control over EU activities will continue to be exercised throughnational institutions as well as through the European Parliament. This issue needs to be discussed in an open way, much more than it has been discussed up to now.86
1 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg3
2 Ibid 3-8
3 who at the time was the French minister for foreign affairs
4 The six nations were France, Belgium, Luxembourg, West Germany, the Netherlands and Italy. Kaczorowska, Alina. European Union Law, Routledge-Cavendish, Oxon, 2009, pgs7-8
5 Treaty of Paris 1951 Art 1
6 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 9
7 Ibid pg 10
8 Lasok, D Law and Institutions of the European Union, 6th ed., London, Butterworths, 1994, pg 19
9 which established the European Economic Community (EEC) and the European Atomic Energy Community better known as EURATOM
10 Treaty of Rome 1957 Articles 9-11
11 Treaty of Rome 1957 Articles 48-51
12 Treaty of Rome 1957 Articles 67-73
13 Treaty of Rome 1957 Articles 85-90
14 Treaty of Rome 1957 Articles 12-29
15 Treaty of Rome 1957 Articles 30-37
16 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 13-14
17 Treaty of Rome Article 157
18 Treaty of Rome Article 155, “ensure the proper functioning and development of the market”
19 Lodge, J. (1993a) “EC Policymaking: Institutional Dynamics” in Lodge, J. (ed.) The European Community and the Challenge of the Future, London, Pinter. Also referred to in Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 18
20 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 18
21 The Treaty on European Union Article 17 (1) “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements”.
22 Under Article 17(5) of the Treaty on European Union (TEU) the amount of Commissioners would be reduced so that only two thirds of member states at any one time could appoint a Commissioner. However, due to the failed Irish referendum in 2008 of the Lisbon Treaty this plan was abandoned. Piris, Jean-Claude. The Lisbon Treaty A Legal and Political Analysis, Cambridge, Cambridge University Press, 2010, pg 226
24 The Treaty on European Union Article 17 (7)
25 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg93-94
26 The Treaty on European Union Article 17 (1)
27 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg96
28 Commission v Cresson  All ER (EC) 752 just such a situation arose concerning personal interest when, the then, Commissioner Cresson appointed a close friend to her cabinet in the bogus position of “visiting scientist” so that he could be her personal advisor despite her cabinet being fully staffed and being informed that due to his age he was unsuitable. “The defendant had acted in breach of the obligations arising from her office as a member of the Commission for the purposes of arts 213(2) and 126(2) EC, in relation to the appointment of B and as regards the terms under which he had worked. The various failures to observe the letter and spirit of the applicable rules demonstrated the manifest inappropriateness of his appointment as a visiting scientist in order for him to carry out the duties of personal advisor to a member of the Commission. B had not been appointed, contrary to art 1(3) of the decision on visiting scientists, in order to carry out the functions of a visiting scientist, but rather the sole aim of his appointment was to allow him to carry out functions within the defendant”s cabinet. B”s contract had exceeded the maximum permitted duration. In appointing a close acquaintance as a visiting scientist when he was not going to be engaged in activities associated with that position, in order to allow him to undertake the role of personal advisor in the defendant”s cabinet, notwithstanding the fact that it was fully staffed and B had passed the permitted age-limit for performing that role, the defendant had become liable for a breach of her obligations that was of a certain degree of gravity”.
29 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 19
30 Officially recognised as such by s. 3 of the Single European Act
31 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 111
32 Hix, S., The Political System of the European Union, “2nd edn, Basingstoke, Palgrave, 2005) pg 192-196
33 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 17
34 The Treaty on The European Union Article 16 (6)
35 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 106
36 Bailleul, E. Versluys, “The EU Rotating Presidency: “Hostage Taker” of the European Agenda?” paper presented at EUSA Conference, 30th March 2005.
37 The Treaty on The European Union Article 16 (2)
38 The Treaty on The European Union Article 16 (3) (4)
39 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 101
40 Dividing issues into A which need no discussion and are simply passed and B matters which for some reason require discussion.
41 COREPER 1 & COREPER 2
42 Such as those of transport, internal market, environment and social affairs.
43 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 107
44 Hayes-Renshaw, F., Lequesne, C., and Lopez, P., “The Pernament Representatives of the Member States of the European Union” (1989) 28 JCMS 119, 129-31. See also Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 107
45 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 108
46 Ibid 140
47 Commission v Council (Recovery of Indirect Taxes)  ECR I-4829. This delt with the harmonisation of indirect taxes. Article 113 of the FTEU was the proper legal basis as it dealt with taxation and required agreement from the EP and a unanimous vote by the COM but Article 114 which dealt with the internal market was used as this only required QMV in the COM and consultation by the EP. The bypassing of the EP suited the COM but the ECJ said that they would look to the purpose of the Articles and as fisical raising measures were not permitted under 114, 113 should have been used.
48 Titanium Dioxide Case  ECR I-4193.
49 Linguistic Diversity Case  ECJ I-869. A measure was adopted under Article 150 which is the legal basis regarding industry and challenged in it should have been adopted under Article 148 which dealt with culture but it was held that Article 150 was the proper basis as it linguistic diversity had links with small and medium businesses.
50 Formerly known as the co-decision procedure, is set down in Article 294 TFEU. See also, Joint Declaration on Practical Arrangements for the Co-Decision [now Ordinary Legislative] Procedure  O.J. C.145/2.
51 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 155
52 Farrell, H., Heritier, A., “Interorganizational Negotiation and Interorganizational Power in Shared Decision Making: Early Agreements Under Codecision and their Impact on the European Parliament and the Council” (2004) 37 Comparative Political Studies 1184, 1200-4
53 Roquette Fr”res  ECR 3333
54 Even though the Council argued that it was impossible for them to comply with this requirement because the EP did not reply. The Court held that the regulation adopted had to be set aside.
55 Which is actually contains two Courts, the European Court of Justice and the General Court. The main job of the CJEU under Article 19(1) TEU is to make sure that the law is followed in the interpretation and application of the Treaties.
56 Lisbon Treaty on the Functioning of the European Union Article 253
57 The European Central Bank tasked with setting interest rates in the Eurozone and the issue of Euros, The Court of Auditors who look at how EU money is spent, The Economic and Social Committee who represent trade unions among others and the Committee of the Regions who advise on measures adopted by the EU.
58 Piris, Jean-Claude. The Lisbon Treaty A Legal and Political Analysis, Cambridge, Cambridge University Press, 2010, pg 8
59 Chalmers et al, European Union Law, 4th Ed, Cambridge, Cambridge University Press, 2007, pg 19
60 Treaty on European Union Article 1
61 It came about due to member states wanting to supplement the developments initiated by the SEA and also as a reaction to the prospect of German reunification and the demise of Communism in Eastern Europe.
62Piris, Jean-Claude. The Lisbon Treaty A Legal and Political Analysis, Cambridge, Cambridge University Press, 2010, pg 8
63 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 31
64 The Treaty on European Union 1992 Article 8. (1). Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.
65Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 34-35, argued that the wording of this Article has led to its own problems as the provisions of the article were aimed at workers, who had to be citizens of a member state in order to be citizens of the Union, and their rights, and because not all citizens worked this alienated a large portion of the general public and not all workers were permitted citizenship owing to member states having different criteria for citizenship it was.
66 Treaty of European Union 1992 Article 5 (1) (ex Article 5 TEC) “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality”.
67 Kaczorowska, Alina. European Union Law, Routledge-Cavendish, Oxon, 2009, pg 102
68 Treaty of European Union 1992 Article 5 (4) (ex Article 5 TEC) “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”.
69 Kaczorowska, Alina. European Union Law, Routledge-Cavendish, Oxon, 2009, pg 97
70 Spain v Council  ECR 1-7285 where it was held that proportionality had been infringed when the Council had adopted a regulation without proper thought to its outcome.
71 Ward, I. A Critical Introduction to European Law, 3rd Ed, Cambridge, Cambridge University Press, 2009, pg 40-45
7272 Laeken Declaration on the Future of the European Union.
73 Speech by European Commission President Barroso: “Uniting in Peace – The Role of Law in the European Union”. (Florence: 31 March 2006)
74European Governance, A White Paper Brussels, 25.7.2001 COM(2001) 428 final “Openness. The Institutions should work in a more open manner. Together with the Member States, they should actively communicate about what the EU does and the decisions it takes. They should use language that is accessible and understandable for the general public. This is of particular importance in order to improve the confidence in complex institutions. ” Participation. The quality, relevance and effectiveness of EU policies depend on ensuring wide participation throughout the policy chain ” from conception to implementation. Improved participation is likely create more confidence in the end result and in the Institutions which deliver policies. Participation crucially depends on central governments following an inclusive approach when developing and implementing EU policies. ” Accountability. Roles in the legislative and executive processes need to be clearer. Each of the EU Institutions must explain and take responsibility for what it does in Europe. But there is also a need for greater clarity and responsibility from Member States and all those involved in developing and implementing EU policy at whatever level. ” Effectiveness. Policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience. Effectiveness also depends on implementing EU policies in a proportionate man
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