3 - The EU Legislative Pipeline Flashcards
What can the EU legislative process be seen as?
An integrated process
Why can we see the EU legislative process as integrated? (4)
There are 4 steps:
1/ preparation EU aw
2/ establishing EU law
3/ implementation EU law
4/ application in practice EU law
Detail of the EU legislative chain? (5)
1/ citizens, interest groups, experts => discuss & consult
2/ EC => makes formal proposal
3/ EP & Council => decide jointly
4/ national or local authorities => implement
5/ EC and CJEU => monitor implementation
What are the 3 big legal/political questions during the preparation phase?
1/ attribution (power, procedure, measure)
2/ subsidiarity (who is to exercise power?)
3/ proportionality (how far can EU go?)
What is a 4th important legal/political question during the preparation phase? (3)
1/ is there input legitimacy?
2/ there must be democratic safeguards
3/ account must also be taken of the position of civil society/public at large
What is the first question that must be answered during the attribution phase?
The legal basis question
How is the legal basis for attribution determined? (3)
1/ consideration of aim + content
2/ consideration must be objective
3/ see Tobacco Advertising => no subjective considerations
What to do when there are more than 1 possible legal bases for attribution? (2)
1/ predominant purpose test
2/ see e.g. British American Tobacco (para 96)
What to do when a measure has inseparable aims? (3)
1/ possibly double legal basis
2/ procedures must however be compatible
3/ see Titanium Dioxide
What’s the solution of last resort when there are difficulties to determine the legal basis for attribution? (2)
1/ lex specialis/generalis approach
2/ see Art. 352 TFEU, at bottom of the pile
What does the legal basis of attribution determine? (4)
1/ whether EU has power to act at all
2/ type of power EU can wield
3/ the applicable procedure (IB, voting)
4/ type of EU act that can be adopted
Characteristic of Arts. 3-6 TFEU? (3)
1/ categorisation of powers
2/ not the powers themselves
3/ hence, not legal bases
Characteristics of exclusive EU competences? (3)
1/ Art. 2(1) TFEU: MS may act only with empowerment of EU
2/ listed in Art. 3 TFEU, which contains a limited list
3/ deadlock in the Council cannot ‘revive’ MS competences => exclusive powers are truly exclusive
Characteristics of shared competences? (6)
1/ Art. 4(1) TFEU
2/ typical for cooperative federalism
3/ subject to the conflict rule of precedence
4/ in the extreme, pre-emption of the field by EU
5/ exception are parallel competences (R&TD, space policy, humanitarian aid, dvpt cooperation) - Art. 4(3)(4)
6/ mandatory minimum harmonisation is also shared
Characteristics of Art. 5 TFEU? (2)
1/ EU competent to coordinate economic, employment and social policies
2/ compromise btwn shared and coordinating power
Characteristics of Art. 6 TFEU? (3)
1/ complementary competences
2/ EU may support, coordinate or supplement actions of MS
3/ however, no harmonisation in Art. 6 TFEU fields
Why is Art. 352 TFEU controversial as legal basis for attribution? (4)
1/ can almost be viewed as a ‘simplified treaty amendment’
2/ hence, it is one of the most contested legal bases for EU action
3/ however, there are limits => no changes of constitutional significance, no circumvention of harmonisation bans
4/ there are also safeguards => Council unanimity voting
What are possible litigants of legal basis litigation? (3)
1/ EU MS
2/ private parties before national courts
3/ EU institutions inter se
What was nature of litigation in ECOWAS case?
Cross pillar legal basis litigation
NB: case pre-dates Lisbon system
Background info ECOWAS case? (3)
1/ TEU (CFSP, UV) vs. TFEU (dvpt cooperation, QMV)
2/ Council Decision
3/ capacity building operations for ECOWAS States
Main findings ECOWAS case? (4)
1/ reduction of small firearms is cumulatively a condition for peace&security AND sustainable dvpt
2/ 2 goals are indissociably linked, so centre of gravity test doesn’t work
3/ double legal basis however not possible bc cross pillar
4/ Council Decision annulled
What is the nature of the pcple of subsidiarity? (4)
1/ federal?
2/ legal?
3/ political?
4/ => this remains a question, no clear answer
Was is the test to satisfy pcple of subsidiarity? (2)
1/ national insufficiency + comparative EU efficiency
2/ so difficult to satisfy
Other considerations surrounding pcple of subsidiarity? (3)
1/ typical pcple of cooperative federalism
2/ not applicable to EU exclusive competences
3/ judicial safeguards are weak (manifest error, exceeding limits of its discretion)
Why can it be argued that there exists a proceduralisation of subsidiarity? (3)
1/ statement of reasons? (Art. 5 P2)
2/ impact assessments
3/ intensity of CJEU review?
What does Protocol 2 cover?
Application of the pcples of subsidiarity and proportionality
What mechanisms does Protocol 2 codify in Art. 7? (3)
1/ yellow card procedure
2/ orange card procedure
3/ but there are possible defects
Characteristics of yellow card procedure? (4)
1/ draft legislative acts
2/ 1/3 votes allocated to NPs (1/4 for AFSJ)
3/ mandatory review of proposal
4/ however, final choice may be to maintain, amend or withdraw proposal
Characteristics of orange card procedure? (4)
1/ only for proposals legislative acts under OLP
2/ simple majority votes allocated to NPs
3/ mandatory review of proposal
4/ possible ‘easy rejection’
What are some possible defects of Protocol 2? (3)
1/ only legislative acts (as defined in Art. 289(3) TFEU)
2/ only subsidiarity, not proportionality
3/ no red card procedure
Case that shows subsidiarity in action? (3)
1/ Monti II (Regulation on the right to strike)
2/ 1st time yellow card threshold was met
3/ EC proposal withdrawn but came back as a cooperative act
Test for pcple of proportionality?
Measure must be suitable + necessary
How to evaluate necessity of a measure under proportionality test? (2)
1/ excessive intrusion into MS autonomy?
2/ effects on rights and interests of citizens, businesses, etc?
Scope of proportionality review? (2)
1/ strict for MS action
2/ ‘manifestly inappropriate’ test for EU action
Who are the main players in EU lawmaking? (4)
1/ MS (Gvts, NPs)
2/ EU political institutions (European Council, EP, EC, Council)
3/ civil society
4/ ECJ
How to determine the type of procedure to be applied for EU lawmaking? (4)
1/ EU ‘legislative acts’ is a formal concept
2/ the nature of the act is determined by procedure, not content
3/ see Art. 289(3) TFEU
4/ see Quota ruling
What are the 2 main types of procedures for the adoption of legislative acts?
1/ special legislative procedures (Art. 289(2) TFEU) => decreasing category
2/ OLP (Art. 289(1) TFEU) => increasing category
Who is dominant in special legislative procedures? (2)
Either
1/ EP
2/ Council (depending on procedure, EP must consent or be consulted)
Characteristics of the OLP? (5)
1/ complex tango btwn Council and EP
2/ 1st reading on basis of EC proposal
3/ if necessary, 2nd reading on basis position Council
4/ if necessary, 3rd reading on basis text Conciliation Committee
5/ protection of EC after commencement (Art. 293 TFEU)
Internal voting of Council? (3)
1/ default rule = QMV (Art. 16(4) TEU)
2/ exceptionally = unanimity
3/ even more exceptionally = simple majority
Internal voting EP? (3)
1/ default rule = majority of votes cast (Art. 231 TFEU)
2/ quorum is 1/3 of 751 MEPs (= 251 MEPs)
3/ exceptionally = majority of members (e.g. for rejection or amendment)
OLP in practice? (3)
1/ great rate of success in 1st reading
2/ very few proposals get killed
3/ early agreements in trilogue settings
Considerations surrounding trilogues? (4)
1/ participation of EP, Council and EC
2/ possible at all stages of OLP
3/ high chance of early agreement in 1st reading OLP
4/ ties in with ‘input’ vs. output legitimacy discussion
Who represents EP during trilogues? (2)
1/ rapporteur
2/ chair relevant committee
Who represents Council during trilogues? (2)
1/ permanent representative of MS holding presidency
2/ chair Council WG
Who represents EC during trilogues?
Most relevant DG
How is the EC protected under the OLP? (4)
1/ right of initiative protected under Art. 293 TFEU
2/ up until 2nd reading, Council must act unanimously on amendments on which EC delivered negative opinion
3/ in 3rd reading, necessity to come to a deal prevails however
4/ EC can withdraw proposal until Council has acted (so not an unfettered right, see Macro Financial Assistance)
What are the most common forms of end products? (2)
1/ secondary law = ‘legislative acts’ (Regulations, Directives, Decisions
2/ tertiary law = ‘non legislative acts’
Characteristics of Regulations? (6)
1/ general application
2/ binding in entirety
3/ directly applicable
4/ no implementation in national law
5/ see however case law, showing that Regulations often need implementation (e.g. Amsterdam Bulb)
6/ aim is uniformity + speed
Characteristics of Directives? (4)
1/ binding as to result to be achieved
2/ MS choose form and methods
3/ aim is harmonisation
4/ hybrid instrument (confederal/international; federal/national)
Characteristics of Decisions? (3)
1/ binding in their entirety
2/ if addressed to specified persons, only binding on them
3/ can be of individual or regulatory nature
What is a criticism of the forms of EU secondary law? (5)
1/ blurred distinction
2/ overly detailed Directives = masked Regulations?
3/ Reg. in need of implementation = masked Dir.?
4/ Decisions masking as Dir.
5/ is this legal?
What is tertiary law of EU composed of post-Lisbon? (2)
1/ delegated acts (Art. 290 TFEU)
2/ implementing acts (Art. 291 TFEU, also governed by Comitology and Regulation 182/2011)
Safeguards for delegated acts? (6)
1/ always under legislative act
2/ only possible to amend or supplement non essential elements
3/ delegation of rule-making
4/ only to the EC
5/ acts of ‘general application’
6/ scope of EC power must always be strictly defined
Considerations surrounding Schengen Borders Code (SBC) case? (3)
1/ adopted under pre-Lisbon regime
2/ main question: who determines what essential elements are? EU legislature or ECJ?
3/ main finding: essential elements = objective factors amendable to judicial review (para 67)
What are political safeguards in Art. 290 TFEU? (3)
1/ EP or Council may revoke delegation
2/ EP or Council may veto entry into force
3/ ex post control
Characteristics of implementing acts? (6)
1/ executive power
2/ need for uniform conditions for implementation of binding EU act
3/ if not present, implementation by MS (vertical DP)
4/ beneficiary is EC or Council
5/ subject to Comitology (Regulation 182/2011, advisory & examination procedure)
6/ choice btwn Art. 290 vs. 291 is political and will only marginally be reviewed (Biocides)
Constitutional safeguards Art. 291 TFEU? (4)
1/ ‘Comitology’
2/ EC kept in check by committees of representatives of MS
3/ examination procedure => veto and possibly appeal by EC
4/ residual: advisory procedure => EC may still act despite negative advice
Considerations surrounding EURES case? (2)
1/ Art. 291 TFEU lays down a delimitation in substantive terms (only measures necessary for implementation of legally binding Union act)
2/ hence, no amending or supplementing a legislative act (incl. non-essential elements) (para 45)
Considerations surrounding implementation phase? (4)
1/ time pressure
2/ typical pbs (constitutional issues, lengthy procedure, issues with federal decentralisation, court procedures)
3/ European compromise legislation vs. quality of EU legislation
4/ ‘misfit’ with national legal system
What are 2 typical implementation pbs?
1/ EU’s own terminology
2/ EU multilinguism
What are fundamental questions regarding implementation? (5)
1/ primacy of parliamentary (statutory) law?
2/ importance of efficient lawmaking
3/ importance of transparent lawmaking
4/ respect for national system and structure of legislative complex
5/ main question: what is remaining national discretion?
Main contribution Arnold Andre case (2004)? (3)
1/ ECJ review proportionality of EU acts
2/ EU legislator must be allowed ‘broad discretion’ in areas involving ‘political, economic and social choices’ and requiring ‘complex assessments’
3/ it is only when EU institution adopts a measure that is ‘manifestly inappropriate in relation to the objective pursued’ that it may be considered illegal
What happens when an EU measure pursues a twofold aim or has a twofold component? (3)
1/ if one is identifiable as the main one => measure must be based on a single legal basis (centre of gravity test)
2/ if none of the several components is incidental to the other => measure can be founded exceptionally on various corresponding legal bases
3/ recalled by CJEU in ECOWAS case
Finding CJEU in ECOWAS case (2008)? (5)
1/ bear in mind this was before Lisbon
2/ contested decision pursued various objectives falling both within CFSP and dvpt cooperation policy
3/ none of the objectives were incidental to the other
4/ but Art. 47 EU precluded EU from adopting contested decision by relying on 2 legal bases
5/ decision annulled
Findings of CJEU in Schengen Borders Code case (2012)? (5)
1/ issue related to Art. 290 (delegated acts)
2/ assessment of which elements must be categorised as ‘essential’ under Art. 290 is based on ‘objective factors amendable to judicial review’
3/ for that, necessary to take account of characteristics and particularities of domain concerned
4/ provisions requiring political choices falling within responsibilities of EU legislature cannot be delegated
5/ contested decision annulled in entirety
Findings CJEU in Biocides case (2014)? (4)
1/ it is nature and purpose of power conferred on EC that determine whether power belongs to legislative delegation or implementing power (para 24)
2/ implementing power applied only ‘where uniform conditions for implementing legally binding Union acts are needed’
3/ concept of implementing act must be assessed in relation to concept of delegated act
4/ judicial review of EU legislature’s choice of power conferred on EC is limited to ‘manifest errors of assessment’
Findings CJEU in EURES case (2014)? (2)
1/ case related to lawfulness of implementing measures adopted by EC
2/ when exercising implementing power, EC may neither amend nor supplement the legislative act
