Does a parliament legislate on government proposals on its own initiative? These are interesting questions at national level and the same things can be discussed at supra-national level with regard to the European Communities (European Union).
From the European Economic Community to the possible unitary European Union development has been characterised by a delicate creation called the institutional balance. Representative democracy has been allowed to take root only gradually and cautiously.
The main rule is that secondary legislation is initiated by the Commission, to the extent that its right to make proposals often is described as a monopoly.
The “legislative branch” consists of the Council and the directly elected European Parliament.
In this blog post we look at the European Parliament’s possibilities to initiate Community legislation.
Article 192 of the Treaty establishing the European Community (TEC) mentions the legislative procedures the European Parliament participates in: the co-decision procedure and the cooperation procedure. The assent procedure and consultation are also mentioned.
For today’s blog post our focus is on the second paragraph.
There are of course many ways in which the European Parliament can informally draw attention to the need for Community legislation.
But formally, we see that the European Parliament is not mentioned as an initiator of legislation.
The EP has the formal right to request a legislative proposal from the Commission (OJEU 29.12.2006 C 321 E/132):
Article 192 TEC
In so far as provided in this Treaty, the European Parliament shall participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 251 and 252 and by giving its assent or delivering advisory opinions.
The European Parliament may, acting by a majority of its Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing this Treaty.
Original Lisbon Treaty
Article 2, point 181 of the original Treaty of Lisbon formally deleted the first paragraph of Article 192 TEC and amended the second paragraph (OJEU 17.12.2007 C 306/101):
181) In Article 192, the first paragraph shall be deleted; in the second paragraph, the words ‘of its Members’ shall be replaced by ‘of its component members’ and the following sentence shall be added at the end of the paragraph: ‘If the Commission does not submit a proposal, it shall
inform the European Parliament of the reasons.’.
Consolidated Lisbon Treaty
In the consolidated (readable) version of the Treaty of Lisbon, Article 14(1) of the Treaty on European Union (TEU) expresses the principal tasks of the formally deleted first paragraph 1 of Article 192 TEC, arguably more elegantly (OJEU 9.5.2008 C 115/22):
Article 14 TEU
1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.
The second paragraph, with amendments, becomes the renumbered Article 225 of the Treaty on the Functioning of the European Union (TFEU), on OJEU page 150:
Article 225 TFEU
(ex Article 192, second subparagraph, TEC)
The European Parliament may, acting by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons.
The Lisbon Treaty does not give the European Parliament the power to legislate on its own initiative (with the exception of issues mainly internal in character). The Council’s powers in this regard are almost equal (although in justice and home affairs, known as the area of freedom, security and justice, even individual member states retain some powers to make formal proposals).
Generally the institutional balance is maintained by upholding the Commission’s so called monopoly of initiative.
The EP’s right to initiate legislation remains indirect, by requesting a proposal from the Commission.
Even such a request is not made lightly. A majority of all MEPs has to support the request.
The novelty ─ at treaty level ─ is the obligation of the Commission to state its reasons if it refuses to submit a proposal. This addition is modeled on Article III-332 of the Constitutional Treaty.
The obligation to inform the EP of the reasons is far from revolutionary in practice, bacause the Commission has undertaken to act in this manner in inter-institutional agreements.
The European Parliament’s Rules of Procedure (16th edition, October 2008) lay down internal procedures for requesting a legislative proposal from the Commission.
Rule 39 sets out the following rules to be followed:
Rule 39 Initiative pursuant to Article 192 of the EC Treaty
1. Parliament may request the Commission, pursuant to Article 192, second paragraph, of the EC Treaty, to submit to it any appropriate proposal for the adoption of a new act or the amendment of an existing act, by adopting a resolution on the basis of an own-initiative report from the committee responsible. The resolution shall be adopted by a majority of the component Members of Parliament. Parliament may, at the same time, fix a deadline for the submission of such a proposal.
2. Parliament's resolution shall indicate the appropriate legal basis and be accompanied by detailed recommendations as to the content of the required proposals, which shall respect fundamental rights and the principle of subsidiarity.
3. Where a proposal has financial implications, Parliament shall indicate how sufficient financial resources can be provided.
4. The committee responsible shall monitor the progress of preparation of any legislative proposal drawn up following a particular request by Parliament.
Relevant is also Rule 45, which requires the authorization of the Conference of Presidents for such an own-initiative report (paragraph 1). Paragraph 2 does not apply to reports referred to in Rule 39. The time-limit for a decision is two months:
Rule 45 Own-initiative reports
1. A committee intending to draw up a report and to submit a motion for a resolution to Parliament on a subject within its competence on which neither a consultation nor a request for an opinion has been referred to it pursuant to Rule 179(1) may do so only with the authorisation of the Conference of Presidents. Where such authorisation is withheld the reason must always be stated.
2. Motions for resolutions contained in own-initiative reports shall be examined by Parliament pursuant to the short presentation procedure set out in Rule 131a. Amendments to such motions for resolutions shall not be admissible for consideration in plenary unless tabled by the rapporteur to take account of new information, but alternative motions for resolutions may be tabled in accordance with Rule 151(4). This paragraph shall not apply where the subject of the report qualifies for a key debate in plenary, where the report is drawn up pursuant to the right of initiative referred to in Rule 38a or 39, or where the report can be considered a strategic report according to the criteria set out by the Conference of Presidents.
3. Where the subject of the report comes under the right of initiative referred to in Rule 38a, authorisation may be withheld only on the grounds that the conditions set out in the Treaties are not met.
4. In the cases referred to in Rule 38a and Rule 39, the Conference of Presidents shall take a decision within two months.
The explanations under Rule 45(1) add the following:
The Conference of Presidents shall take a decision on requests for authorisation to draw up reports submitted pursuant to paragraph 1 on the basis of implementing provisions which it shall itself lay down. If a committee's competence to draw up a report for which it has requested authorisation is challenged, the Conference of Presidents shall take a decision within six weeks on the basis of a recommendation from the Conference of Committee Chairs, or, if no such recommendation is forthcoming, from its chair. If the Conference of Presidents fails to take a decision within that period, the recommendation shall be declared to have been approved.
Annex XVIc of the EP Rules of Procedure contains rules ofn the procedure for granting authorization to draw up own-initiative reports.
We have seen the existing and new treaty provisions on the European Parliament’s indirect powers to initiate legislation by requesting a proposal. In addition we have got a foretaste of the EP as a rules based institution, bearing little resemblance to the anarchic feeling spread by some on-line campaigners and even parts of main-stream media.