EU Law - Law-making and democracy in the EU

Hierarchy of norms in EU law:

Explanation of Hierarchy of norms in EU law:

• General principles can be found jurisprudence of EU law

• ‘EU Treaties’ – Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU)

• Charter of Fundamental Rights of the EU (CFREU) has “the same legal value as the Treaties” (Article 6(1) TEU). EU Treaty provisions must be construed in the light of the CFREU

• CJEU cannot review validity of EU Treaty provisions (but may review validity of EU Treaty amendments – see C-370/12 Pringle case)

• The general principles of EU law are found in CJEU case-law. Examples: human and fundamental rights, proportionality, legal certainty, legitimate expectations, non-retroactivity, equality etc.

Note:

• Secondary law must be interpreted in line with primary law

• Sources of secondary law – listed in Article 288 TFEU

• No hierarchy between sources of secondary law

Legislative and non-legislative acts:

Legislative and non-legislative acts are both types of secondary law.

1. Legislative acts: legal acts that are adopted by a legislative procedure (Article 289(3) TFEU). These are regulations, directives, decisions (Article 289(1) TFEU). This could be done through the ordinary legislative procedure or the special legislative procedure.

2. Non-legislative acts: legal acts that are not adopted by a legislative procedure.

   • Delegated acts

   • Implementing acts

Non-legislative acts:

• Delegated acts – a legislative act may delegate to the Commission the power to adopt these acts to amend or supplement ‘non-essential elements’ of the legislative act (subject to conditions in Article 290 TFEU, including the possibilities of revocation or veto).

• Implementing acts – a national law measure adopted by Member States which is necessary to implement a legislative act of the Union (Article 291 TFEU). Not intended to amend or supplement the legislative act.

Legally binding law and soft law:

• Legally binding law: all sources of primary law and all sources of secondary law (except recommendations and opinions - Article 288 TFEU) have legally binding force

• Soft law: rules of conduct without legally binding force but with certain practical effects. Wont suffer legal consequences

Examples: recommendations, opinions, resolutions, declarations, action programmes and plans, communications, guidelines and inter-institutional agreements.

How to characterise a norm:

Each norm can be characterised with reference to these categories:

• Primary law or secondary law? – position in the hierarchy of norms

• Legislative act or non-legislative act? – procedural origins of the act

• Legally binding law or soft law? – binding nature of the act

Example: A regulation is a source of secondary law, more specifically a legislative act, which is legally binding in its entirety.

Types of secondary law (Article 288 TFEU):

• Regulations

• Directives

• Decisions

• Recommendations and opinions

Regulations: Article 288 TFEU

Article 288 TFEU: “…shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”

• “The most centralising” measure of secondary law; aim for uniformity

• Addressed to the EU at large, without reference to any particular Member State, public body, or category of persons

• Automatically binding, without the need for implementing acts by the Member States

• Confer rights on individuals which the national courts have a duty to protect (Case 34/73 Fratelli Variola)

• Enter into force on the date specified in them or, alternatively, on the twentieth day following publication in the Official Journal of the European Union (Article 297 TFEU)

Directives: the basic features

Article 288 TFEU: “…shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”

Adopted for “more politically sensitive matters where States want leeway over the exact content and phrasing of the law” – respect for the principle of subsidiarity

In contrast to regulations, directives:

• are addressed specifically to each Member State

• have limited binding force – only as to the result, but not the form and method for achieving that result

• require further action from each Member State – to introduce an implementing act to ‘transpose’ or ‘implement’ (i.e. give effect to) the directive into national law

Directives: Implementation requirements Article 297 TFEU

• A directive is published the same way a regulation is (Article 297 TFEU).

• A directive specifies an implementation deadline by which the Member States must transpose the directive (18 to 24 months after publication). The directive is binding from that date.

• Between the publication date and the implementation deadline - the Member State must refrain from any measures which could seriously compromise the achievement of the result sought by the directive. Respect for the principle of sincere cooperation.

• Failure to comply with deadline - a legal challenge before the Court of Justice or a domestic action leading to a reference from a national court.

Decisions: Article 288 TFEU

Article 288 TFEU: “shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.”

• Like regulations, decisions are binding in their entirety.

• Like directives, that binding power is limited to a specific category of addressees (usually Member States, but sometimes private parties).

• For a decision to take effect, the addressee must be notified.

Recommendations and opinions: Article 288 TFEU

Article 288 TFEU: “…shall have no binding force.”

• Soft law with no legally binding force

• Recommendations are intended “to exhort and to persuade”

• An opinion is “the expression of a position on a specific issue.”

Law-making in the EU:

How does the EU decide which laws to make?

Right of initiative: The European Commission plans, prepares, and proposes new legislative acts (Article 17(2) TEU).

Law-making ‘by invitation’

The European Commission can also respond to invitations to initiate laws from:

• the European Council – policy direction (Article 15(1) TEU

• the Council of the European Union (Article 241 TFEU)

• the European Parliament (Article 225 TFEU)

• the EU citizens, following a successful European Citizens’ Initiative (Article 11 TEU, Article 24 TFEU)

How does the EU make laws?

No single way to make laws in the EU - no single legislature, no single form of legal act and no single legislative procedure for making secondary law.

The choice of legal basis determines what type of an act may be made and how an act is to be made, in particular:

• Is this legal act made through a legislative procedure or not?

• If yes, through which legislative procedure?

  • Ordinary legislative procedure (OLP)

  • Special legislative procedures (SLPs)

How does the EU approve new laws?

• Qualified majority voting in the Council

• Unanimity in the Council

• Majority of the votes cast in the European Parliament

The standard voting rule in the Council: Article 238 TFEU

Qualified Majority Voting (QMV) – Article 238 TFEU

• Applicable “except where the Treaties provide otherwise” (Article 16(3) TEU)

• Requires that two conditions be fulfilled– ‘double majority rule’:

  1. 55% of member states vote in favour - in practice, this means 15 out of 27

  2. the proposal is supported by Member States representing at least 65% of the total EU population

• Blocking minority to defeat proposal: at least 4 Council members, representing more than 35% of the total EU population

• Abstentions count as votes against the proposal

• ‘Reinforced qualified majority’: at least 72% of the Council members, representing at least 65% of the total EU population

More voting requirements: Unanimity in the Council

• In some areas which the Member States consider to be sensitive, the Council needs to vote unanimously.

• Examples: taxation, the accession of new members, social security, and most aspects of the CFSP.

• An abstention will not defeat the legislative proposal.

More voting requirements: Voting in the European Parliament (EP)

The EP acts by “majority of the votes cast”, except if the Treaties provide otherwise (Article 231 TFEU).

Ordinary legislative procedure:

The default procedure for law-making in the EU

The stages of OLP (Article 294 TFEU) are aimed at securing joint agreement between the EP and the Council:

OLP (Article 294 TFEU) 1st reading

• Commission issues proposal

• EP issues an opinion on the Commission’s proposal

• Council may adopt proposal (QMV) if EP made no amendments or Council agrees with EP’s amendments

• If no agreement, proceed to 2^nd reading…

OLP Article 294 TFEU 2nd reading

• Council may adopt a ‘common position’ by:

  • adopting the Commission’s proposal (QMV)

  • making amendments of its own (unanimity)

• EP has three months to decide on ‘common position’: 

  • Agrees – the act is adopted (early second reading)

  • Rejects (absolute majority)

  • Makes amendments – the Council then decides whether to adopt or reject

• In case the Council adopts EP’s amendments:

  • If the Commission approves, the Council may adopt the measure by QMV

  • If the Commission disapproves, the Council adopts the measure by unanimity

Conciliation committee:

• established if the Council rejects EP’s amendments following the 2^nd reading

• designed to mediate between the Council and EP to broker agreement

• comprises an equal number of members from the Council and the EP

• The outcome is a joint text, voted for by QMV (Council members) and simple majority (EP members)

• If no agreement is reached within six weeks, the measure fails.

OLP (Article 294 TFEU) 3rd reading

• If joint text is approved by the Conciliation Committee, the Council (QMV) and EP (majority of the votes cast) must approve the text within six weeks. If not, the proposed act fails.

• No new amendments are possible – voting on the final text, taken as a whole.

‘Trilogues’

• Negotiations between representatives of the Council, the EP, and the Commission designed to reach informal agreement on a legal text

• Possible at any stage of the OLP

• Problematic because trilogues:

  •  “subvert the checks and balances of the [OLP]…the EU institutions exercise powers they do not formally have under the Treaty”

  • result in “bureaucratisation of the legislative process”

  • cause a lack of transparency

  • reduce accountability and visibility

The European Parliament’s power of veto

Not exactly ‘veto’, but rather the withholding of parliamentary assent

The power of veto can be exercised at the following stages:

• 2^nd reading, if EP rejects the common position of the Council

• 3^rd reading, after the Conciliation Committee has provided a joint text

Special legislative procedures:

• No single SLP, but a wide variety of procedures in specific areas of policy or institutional decisions prescribed by the EU Treaties

• Often appear as exceptions to the application of OLP, e.g. free movement of persons (except for social security and social protection), judicial cooperation in civil matters (except for family law with cross-border implications)

• Examples of SLPs:

  • Consultation procedure

  • Consent procedure

SLP consultation procedure: 3 stages

Three stages:

• the Commission submits a proposal to the Council

• the EP is consulted by the Council

• the Council adopts a legislative act (by QMV or unanimity, depending the legal basis for the measure in the TFEU)

SLP consultation procedure: key features

• The power shifts between the Commission (if QMV in the Council is required) and the Council (if unanimity is required)

• Reduced role of the EP – cannot amend or veto the proposal, but can delay or negotiate multi-proposal package deals

Example areas: Articles 109, 113, 129(4), 192(2) TFEU

SLP: consent procedure

• The EP enjoys the greatest formal powers - the proposed act cannot be adopted without its consent

• The right to initiative belongs to the EP, the Council or the Member States, not just the Commission

• Example areas: criminal justice policy, the budget, anti-discrimination law, and the flexibility clause under Article 352 TFEU

Democracy: representation and participation

Democratic representation:

The Union as a ‘representative democracy’:

• Representation of the citizens (the European Parliament)

• Representation of the heads of State/government of MSs (the European Council)

• Representation of the governments of MSs (the Council)

Democratic deficit:

The EU’s decision-making process is criticised due to insufficient accountability, transparency, and citizen participation.

Key arguments on the EU’s democratic deficit:

• ‘unresponsive to democratic pressures’ - no capability of voters to change the government; only one legislative organ (EP) is directly elected

• ‘executive dominance’ – the Council and the European Council are the main decision-makers, and not the national parliaments

• ‘by-passing of democracy’ – complex committee structure (comitology)

• ‘distance from the citizen’ – too far removed from the needs of the citizens

• ‘substantive imbalance’ – economic/social dimensions of EU

• ‘judicial control’ – balance of power between national constitutional courts and CJEU

Early warning mechanisms: Protocol No.2

EWM allows national parliaments to express opinion on whether a proposal for Union legislation complies with the principle of subsidiarity

Protocol No. 2 of TFEU, Articles 6-8:

If a national parliament finds that the draft legislation violates subsidiarity, it casts 2 votes and produces a ‘reasoned opinion’ (within 8 weeks).

• Yellow card: the draft must be reviewed if at least one-third of votes by national parliaments are negative (high threshold); the Commission (or other EU institutions) then decides to maintain, amend or withdraw the proposal and must give reasons.

• Orange card: under OLP, the draft must be reviewed if at least half of votes are negative (high threshold); the Commission decides to maintain, amend or withdraw the draft; if draft is maintained, the Commission must give reasons and refer the proposal to EP and the Council for final voting.

(!) No red card: national parliaments cannot veto the proposed measure

Early warning mechanisms: limitations

• Only applicable to legislative acts

• Limited to initial legislative proposal and its subsequent amendments

• ‘It promises more than it delivers’ – national parliaments cannot block EU legislation, even if the majority oppose it

• Voting rules in the Council make it more difficult for Council to oppose on grounds of subsidiarity than for other reasons

European Citizens' Initiative (Article 11(4) TEU)

Article 10(3) TEU: “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”

• ECI is a response to a legitimacy deficit. It is intended to make the Union more accessible to the EU citizens by allowing them to invite the Commission to submit a proposal for a legal act.

• Procedural requirements in Article 11(4) TEU: “Not less than one million citizens who are nationals of a significant number of Member States…”

• the Commission may refuse to register an ECI if it manifestly falls outside the scope of its powers (respect for the principle of conferred powers); the Commission’s decision is subject to judicial review