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Your guide to European Union decision making

November 2004

A large part of legislation in the UK starts in Europe. Yet decision-making at EU remains shrouded in mystery. Your Guide to EU Decision Making looks at the main institutions of the EU and explains the difference between Regulations and Directives. It also examines how the main institutions shape legislation as it passes through the system. Finally, it illustrates the complexities of reaching compromises - no small feat for a Union of 25 different countries.

1. Institutions of the European Union
1.1 The European Parliament
1.2 The European Commission
1.3 The Council of Ministers
1.4 The Court of Justice

2. The European legislative process
2.1 Types of European legislation
2.2 How legislation is passed in the EU
2.2.1 Introduction
2.2.2 Passage of legislation using the co-decision procedure
2.2.3 What is a conciliation committee?
2.2.4 Secret weapons of the European Parliament
2.3 Other procedures
2.3.1 Consultation
2.3.2 Assent
2.4 European Parliamentary Committees
2.4.1 Distribution of reports
2.4.2 Parliamentary reports
2.4.3 Progress of the report in Committee
2.4.4 Parallel progress of Council’s common position
2.4.5 Plenary

1. Institutions of the European Union
1.1 The European Parliament
The European Parliament is directly elected every five years. The Maastricht Treaty in 1992 and then the Amsterdam Treaty in 1997 have transformed the European Parliament from a purely consultative assembly into a fully fledged legislative parliament with equal powers to the Council of Ministers in most cases.

There are now 732 members from each of the European Union’s (EU) 25 member states. Each country decides on how it elects Members of the European Parliament (MEPs). In 1999 the UK introduced a regional form of proportional representation (PR). Italy and Belgium also elect MEPs by regional PR. France, Spain, and Denmark have a national electoral system of PR and Germany has a mixed system. In Belgium, Greece and Luxembourg voting is compulsory.

1.2 The European Commission
The European Commission upholds the general interest of the Union. It is responsible for ensuring the implementation of the Treaty of Rome and Union rules and obligations. Its primary function is to prepare legislation for the Council and the European Parliament to consider. It also has the power to take necessary legal action against firms or member governments if they contravene or fail to implement EU rules. In many instances, the Commission also represents Member States in trade negotiations with non-member countries.

The Commission operates through its Directorate-Generals, each of which has responsibility for a particular area of policy and legislative activity, such as Internal Market and Health and Consumer Protection (DG SANCO). The Directorate-Generals are run by 25 European Commissioners who each have their own staff and their own programme of activities.

Commission President Barroso took over from the previous president Romano Prodi in November 2004. The President of the Commission is appointed by the governments of the Member States, and then approved by the European Parliament. This dual legitimacy gives the President political authority necessary. While each country, at present, nominates a candidate for the Commission, it is up to the President to decide which portfolio he or she will have. While MEPs cannot veto the nomination of any particular candidate, they have the “nuclear option” of rejecting the entire Commission. Barroso withdrew his entire team in October rather than face rejection by MEPs. He believed it would be better to re-shuffle his nominees to please the European Parliament rather than suffer a damaging rejection vote.

The Treaty of Nice confers greater political authority on the President, by giving him, among other things, the power to reallocate responsibilities to Members of the Commission during its term of office or to ask them to resign. In performing these tasks the President is assisted by his Private Office (Cabinet) and by the Secretariat General, which is responsible for the practical organisation of the Commission's work and of its relations with the other institutions, as well as for co-ordination between the various Commission departments.

1.3 The Council of Ministers
The European Council brings together the Heads of State or Governments of the fifteen Member States of the European Union and the President of the European Commission. It should not be confused with the Council of Europe (see below).

The European Council is hosted by and takes place in the Member State holding the Presidency of the Council. The Presidency is a temporary title given to a Member State for six months at a time. The Presidency gives the presiding country a chance to set the agenda by prioritising certain legislation and also to set the pace of the legislative process. It is a hugely important role but carries heavy responsibilities which will pre-occupy civil servants in each Government department both during the course of the Presidency and the run-up to it. The Presidency, at the moment rotates in alphabetical order. The UK, for instance will take over from Luxembourg during the second half of 2005 (July to December).

During the UK Presidency, the British Health Minister will chair the Council of health ministers and the British Prime Minister will chair the European Council and so on.

Of course, Ministers and Heads of State are not able to meet as frequently. They usually come together about two or three times a year. Instead civil servants seconded from Government Departments based in Brussels (called Permanent Representations) will prepare all the negotiations in various working groups. Usually, progress will be very advanced by the time of the Council meetings. The Presidency conclusions are made public at the closing of a European Council meeting.

1.4 The Court of Justice
It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and applications of the Treaties establishing the European Communities and of the provisions laid down by the competent Community institutions.

The Court comprises 15 judges and 8 advocates general. The judges and advocates general are appointed by common accord of the governments of the Member States and hold office for a renewable term of six years. The judges select one of their number to be President of the Court for a renewable term of three years. The President directs the work of the Court and presides at hearings and deliberations. The Advocates General assist the Court in its task.

They deliver, in open court and with complete impartiality and independence, opinions on the cases brought before the Court. Their duties should not be confused with those of a prosecutor or similar official. That is the role of the Commission, as guardian of the Community's interests. The Court of Justice may sit in plenary session or in chambers of three or five judges. It sits in plenary session when a Member State or a Community institution that is a party to the proceedings so requests, or in particularly complex or important cases. Other cases are heard by a chamber. A Registrar is appointed by the Court of Justice to hold office for a term of six years. He has the same court duties as the registrar or clerk of a national court, but he also acts as Secretary-General of the institution.

Note that the Court of Justice of the European Communities should not be confused with the European Court of Human Rights, which was set up under the terms of the European Convention on Human Rights (1950).

2. The European legislative process
2.1 Types of European legislation
There are three forms of European Law; (i) the Treaties (also known as primary legislation); (ii) legislation made under the treaties - i.e. secondary legislation such as directives, regulations, recommendations; and, finally, (iii) case law.

Contrary to popular belief it is the Regulation and not the Directive that is the most powerful member of the European legislative family. Regulations are directly applicable in member states and are binding in their entirety and they are applicable to ALL member states.

A Directive is also binding as to the end result but is not so proscriptive. It leaves the choice of form and method for implementation up to national authorities. Directives are indirect forms of legislation that need to be transposed into national law, often by means of statutory instruments. Controversy arises, however, when national authorities are a little too creative in how they implement a Directive. A court ruling is often necessary to give guidance on how to do this. On the other hand, some national authorities tend to “gold-plate” Directives when transposing them into national law – often being too literal in their interpretation.

A Decision is binding in its entirety upon those to whom it is addressed.

How to spot them:
EU legislation is individually numbered according to the year in which it is passed. Directives and Decisions are issued with the year preceding the document number and community prefix:

Directive 2003/23/EC
2003/23/EC Council Decision
Council Regulation 1295/99 EC

2.2 How legislation is passed in the EU
2.2.1 Introduction
The “standard procedure” for legislation since the Amsterdam Treaty of May 1999 is highly complex. Yet, it is a simplification of the previous process, which had been introduced by the Maastricht Treaty in 1993. This procedure gives the European Parliament powers equal to those of the European Council – hence the term “co-decision”. Some 45 EU policy areas (covering 31 treaty articles) are now covered by it.

The procedure is in three stages with up to eight possible points for legislative outcomes.

The whole process starts with the Commission proposing legislation to both the European Parliament and the Council.

The Commission has the sole right to initiate legislation in most – but not all – cases. What it decides to legislate reflects the priorities determined by the Presidency of the Council or a Work Plan agreed by the whole Council. Powers given to the EU for each policy area are clearly set out in the relevant Treaty Articles. When the Commission drafts a legislative proposal it must prove that there is a legal basis provided for it by a Treaty Article.

The Commission is least transparent when it follows its own internal processes for drawing up legislation. The appropriate Directorate General (DG) is responsible, sometimes with just one desk officer, for writing the proposal under the guidance of its Head of Unit. The proposal is then sent to other DGs that may have an interest and is then adopted by the full Commission.

Officials are usually quite accessible at this early stage, as they often require outside expertise.

Sometimes the Commission issues a Green Paper addressed to interested parties who are then invited to participate in a period of consultation. They often provide the impetus for the Commission’s proposals in a subsequent White Paper. The Commission’s “Communication” will go to great lengths to show where the idea for legislation came from, where it got its mandate from, and the formal consultations that it may have undertaken.

As the proposal journeys through the legislative process with Parliamentary Reports, Council Positions and Commission Opinions being accrued, every footprint is recorded so it is possible to keep track of developments in the name of transparency.

Once the proposal or “Communication” is sent to the Council and the Parliament, the three stages of legislation begin:

2.2.2 Passage of legislation using the co-decision procedure
Stage one: (first reading: no time limits)

• Parliament has its First Reading and there are no amendments. At the Council’s First Reading, member states adopt the legislation without modification: Outcome one: Act Adopted
• Parliament amends it at First Reading so the Commission is required to give an Opinion on the amendments. The Council then Approves all of Parliament's amendments: Outcome two: Act Adopted. or
• Same as above but the Council does not approve Parliament's amendments and adopts a Common Position: Go to stage two

• Commission gives an Opinion on the Common Position
• Parliament has its Second Reading and approves the Common Position: Outcome three: Act Adopted
• Parliament Rejects the Common Position (by Absolute Majority – 314 votes): Outcome four: Act not Adopted (This is overturned if Council is unanimous in its second reading)
• Parliament adopts amendments to the Common Position (by Absolute Majority)
• Commission then gives an Opinion on Parliament’s amendments again
• The Council has its Second Reading and adopts all amendments: Outcome fiveE: Act Adopted or
• The Council has its Second Reading and does not approve all of Parliaments’ amendments: Got to stage three

• A Conciliation Committee is convened within 6-8 weeks and is allowed another 6-8 weeks to reach an agreement. If no agreement is reached: Outcome six: Act not Adopted
• The Conciliation Committee is successful but the Parliament or the Council is unable to adopt the compromise text prepared by the committee: Outcome seven: Act not Adopted
• The Council (using Qualified Majority Voting) and the European Parliament (by majority votes cast) approve the Joint Text: Outcome eight: Act Adopted

• If the Council departs radically from the text deliberated on by the Parliament in the First Reading, the Parliament must be re-consulted (The “Second First Reading”). Furthermore, if the Council amends the legal basis from a text requiring TWO readings to one requiring just ONE reading, Parliament must also be re-consulted (this is known as “Common Re-orientation”
• The Council must inform Parliament of the reasons that lead it to adopt a Common Position – this is called giving a full account, where in the past these motivations appeared only fleetingly in the preamble. This informs Parliament of what support might be forthcoming for possible second reading amendments.
• MEPs can challenge the legal basis under Article 63 forcing the issue to be considered the Parliaments’ Legal Affairs Committee

Opinion-Giving Committees:

• Other Committees can consider the proposal but the main Committee sets a deadline for these Committees to give their Opinion. They are non-binding and often take the form of amendments, which are in turn considered by the main Committee along with their own amendments.
• Opinion Committees cannot vote on the proposal as a whole and if their amendments are rejected, they cannot table the same amendments in Plenary, unless they get the signature of 32 MEPs, or the support of a political group.
• On the front page of a Parliamentary Report there is often reference to either the GOMES Procedure or the HUGHES Procedure. These refer to particular relationships between the Committees in drawing up the Parliamentary Report. In GOMES procedures, the responsible Committee includes in its report the entire contribution from the opinion-Committees. More common is the HUGHES Procedure, where the amendments of the opinion-giving Committees are treated more carefully through a more organised system of contact between the Rapporteurs of different Committees.

• One (or sometimes more) MEPs are appointed as Rapporteurs for proposed legislation – excepted when a Committee decides to apply the procedure without a report. Opinion draftsmen are not always appointed – a Committee chair may just send a letter as its Opinion.
• Rapporteurs prepare the initial discussion, present a draft text and amend it.
• Each political group gets a quota of points according to its size. Reports and opinions are discussed by Committee co-ordinators who decide on the number of points each subject is worth and then make bids on behalf of the group. Groups can raise their bid to maximum level if the report is controversial – normally around 5 points. Through bargaining, groups can trade off with each other for other reports. This auction system means that Groups sometime raise bids to make their opponents “pay” more for them. It also means that it is advantageous for Groups to name their Rapporteur as early as possible.
• Naming the Rapporteur as early as possible in the annual legislative programme allows the MEP to enter into talks with Commission officials before the Commission finalises its proposals as well as Council officials (in co-decision) if there is a chance of conclusion at First Reading (Outcome One).

• Non-Legislative Reports often contain a motion for a Resolution which includes procedural citations (having regards to…) and factual recitals (whereas…). It also has an Explanatory Statement drafted by the Rapporteur. The statement is not put to the vote. The final paragraph is always procedural – i.e. calls for resolution to be transmitted to the Council, Commission etc.
• Legislative Reports put any amendments to the Commission’s Proposal or the Common Position in the Second Reading at the beginning of the Report, in the form of a parallel text with the proposal/common position on the left, and amendments and short justifications on the right.
• Note: The European Parliament gives the Report its own reference number which is different to the COM number ascribed to the original proposal by the Commission, which accounts for some confusion. Subsequent Commission Opinions and Council Common Positions confer other references to draft legislation to distinguish their reports from those of other EU bodies.

• The Rapporteur undertakes to produce a report on a particular date. The Committee discusses the draft report and then sets deadlines for amendments. It usually votes at the following meeting once amendments have been tabled and translated. It votes first on the amendments and then on the motion for resolution as modified.
• The committee can postpone a final vote, giving it more time to find a common solution. This is especially important when it is possible to reach a deal with the Council and conclude at first reading.
• Once the Report is adopted it is submitted to Plenary (full Parliament) as a sessional document (A-Series document).
• If the Council adopts a Common Position (and therefore rejects some of the amendments) and the legislation comes back to Parliament, the Committee must adopt a recommendation within 3 months (or 4 months if necessary) before it goes on the Plenary agenda.
• The Committee's role is finished now since, even if the draft legislation goes to conciliation, the results of negotiations go directly to the Plenary.
• The SIMPLIFIED PROCEDURE is also quite common, where something is approved without a Report and the Chair is Rapporteur, unless one fifth of members object. This is put to Plenary without debate unless 32 MEPs object – if so, it is sent back to committee.
• A Report can be adopted by the Committee ON BEHALF of the Plenary (Rule 62). This procedure is also fairly common. A Conference of Presidents (Heads of Political Groups) can request delegated power. A third of Committee members can object and one tenth of all MEPs from 3 different Groups can object.

• The Council adopts its Common Position after negotiations between national officials usually from Permanent representations based in Brussels leading to a political agreement between relevant ministers. The Common Position is then announced in Parliament and put on the agenda of the relevant Committee

• Political groups meet the week before Plenary to discuss oral questions, Commission statements or the relative priorities of reports. Group Week is a regular fixture in Parliament's calendar, and it is necessary to have some semblance of unity of purpose between the disparate national political parties within the Europe-wide Groups.
• A Group, a Committee, or a bloc of 32 MEPs, can propose changes to the Plenary Agenda up to an hour before the session starts
• The Rapporteur makes a short statement on his/her Report and the draftsmen of Opinion Committees can speak as well as Commission Officials present at the meeting. The spokespersons (usually the shadow Rapporteur from the relevant committee) from each Group then speak, starting with the largest of the political Groups.
• Votes come at Voting Time rather than the end of each report to make it easier to schedule debates, since the duration of votes is notoriously unpredictable.
• It is possible to requests for “split votes”, where a vote on one paragraph of one amendment can be made by a bloc of 32 MEPs.
• The first vote on a legislative text is on the Council text, then the legislative resolution. The Commission reaction and Council comment is given in between.
• In cases of rejection by the Council, resolutions may be postponed. Until the Parliament votes on the draft resolution, the Parliament has not officially spoken (and so has not entered the second Stage of time-limited legislation).
• In the second Reading, Parliament needs an absolute majority if it wants to amend or reject the Council Position.