The Legislative Procedures of the EU

Question 1

What are the 4 key principles in the EU legislative procedure?

Answer 1

1. Proper legal basis (based in law)
2. Conferral
3. Subsidiarity
4. Proportionality

Question 2

Discuss the principle of conferral.

Answer 2

Conferral (or limited powers) = The EU has no inherent legislative powers. Only has such powers as are conferred on it. Same for individual EU institutions
Article 5(1) and 5(2) TEU
Article 4(1) TEU - Competences not conferred on the EU remain with the MS

Question 3

Explain the significance of the First Tobacco Advertising Directive Case (Germany v EP and Council).

Answer 3

• Directive purported to be based on 114 TFEU – Establishing and functioning of the internal market objectives measures
• Widely drafted and vague
• CoJ – Limited powers – Read article 114 in light of limited powers – EU didn’t have a general power to regulate the internal market
• First time court held that the EU didn’t have the power to adopt a particular area of legislation.

Question 4

Explain the principle of implied powers.

Answer 4

Existence of given power in the Treaty implies the existence of any other power that is reasonably necessary to attain that end or to attain treaty objectives

Question 5

What is the significance of Article 5(1) TEU?

Answer 5

The use of Union competences is governed by the principles of subsidiarity and proportionality

Question 6

Explain the principle of subsidiarity.

Answer 6

• EU only acts where objectives cannot be better achieved by acting at local or national level.
• Article 5(3) TEU - “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level…

Question 7

Explain the subsidiarity protocol mentioned in Article 5(3) TEU.

Answer 7

• Legislation sent to national parliaments
• Protocol – Two votes per MS
• 1/3 – Subsidiary not complied with – Draft review – EC maintain, amend or withdraw the draft – Yellow card procedure
• ToL – Strengthened practice – Orange card – Simple majority of NP says subsidiary breach - EC give reasons if contiuing; EP simple majority or 55% council – Legislation withdrawn

Question 8

Explain the principle of proportionality.

Answer 8

Article 5(4) TEU - 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.

Question 9

Explain the significance of Article 296 TFEU

Answer 9

Article 296 TFEU - Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.

Question 10

Name two other players in the EU legislative process.

Answer 10

The Economic and Social Committee and the Committee of the Regions (Around Article 300 TFEU)

Question 11

Explain how the Ordinary Legislative Procedure (OLP) works.

Answer 11

• Key thing is agreement of EP and Council
• Articles 289, 294, 297 TFEU
• Step 1 - EC proposes after consultations (Relevance of trilogues)
• Step 2 - First Reading (take your position or approve) - EP, then Council
• Step 3 - Second Reading if no agreement (approve, reject or amend) - 3 months for EP to act otherwise Council position adopted. If EP amendments goes back to Council
• Step 4 - Conciliation Committee if all amendments not accepted by Council for 6 weeks; Need CC agreement or proposal shelved
• Step 5 - Third Reading (Ratification) - Goes back to both institutions for formal agreement
• Role of EC extends to withdrawing legislation - Council v Commission – Macro Financial Assistance Case – EC doesn’t have entirely free hand, argument must be based on evidence, be legitimate; Can also amend legislation until Council has acted; Can make life very difficult for EP members – EC negative opinion on EP amendment proposals, then Council must agree by unanimity (All 27 MS – Challenging) – A lot of power but justified as EC there to protect general EU interests

Question 12

Discuss the Special Legislative Procedures (SLPs).