EU: Special legislative procedure (III)

Libertas and other anti-intellectuals propagate a distorted picture of a mythical “Brussels”, where unelected officials swamp Europeans with harmful legislation. Instead of political programmes, they offer Jeremiads.

In the best case, these anti-EU crusaders are only deluded fools, although able to influence the ignorant. This should be enough for every informed voter to trust someone else, but I suspect that these anti-campaigners are not looking for supporters with critical faculties and basic knowledge.

In the worst case, these distortionists are perfectly aware of the reality, but consider it unfit for public consumption.

Let it be said: The Commission (where the unelected civil servants reside, just as their counterparts elsewhere are unelected) does not legislate in the main. It may be given limited powers to enact implementing legislation on the basis of existing legislation. The Commission proposes and administers. (In my view, the Commission should become a politically accountable government.)

The legislative powers belong to the Council, where the politically accountable ministers of the EU member states meet (not an ideal arrangement in my opinion, since their mandate is national, not an EU one). But unelected?

In some cases the Council of the European Union legislates on its own, or with marginal participation by the European Parliament, often unanimously, sometimes with high hurdles (qualified majority). This is the special legislative procedure of which we are going to see a few more examples.

(According to the Treaty of Lisbon, the directly elected European Parliament participates on an equal basis in many areas of legislation. This is usually called codecision, in the Lisbon Treaty officially the ordinary legislative procedure. Even in these cases large majorities are required in the Council.)


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A few more examples of the special legislative procedure, as presented in the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.



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External borders

Various measures concerning the external borders and short-stay residence permits are enacted by the ordinary legislative procedure (Article 77 TFEU). However, the right to move and reside freely within the territory of the member states is of interest to EU citizens. For facilitating measures, a special legislative procedure and unanimity are required:


Article 77(3) TFEU

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.


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Family law

Judicial cooperation in civil matters having cross-border implications can advance by the ordinary legislative procedure (Article 81 TFEU). Cross-border family situations are important for millions of EU residents. The member states have however exempted family law matters by special safeguards:


Article 81(3) TFEU

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.


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Cross-border crime

We like to move around freely, but we want effective police action to curb cross-border crime. The ordinary legislative procedure applies to certain serious cross-border crimes, according to Article 83 TFEU. But new areas require unanimity. Minimum rules follow the previous legislative procedure:


Article 83(2) TFEU

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.


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European Public Prosecutor


The first subparagraph of Article 86(1) TFEU contains the basic principle on the establishment of the European Public Prosecutor’s Office, by a special legislative procedure, although nobody believes in a unanimous decision. (Thus, the choreography leading to enhanced cooperation is in place.)

Article 86(1) TFEU, first subparagraph


1. In order to combat crimes affecting the financial interests of the Union, the Council, by means
of regulations adopted in accordance with a special legislative procedure, may establish a European
Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the
consent of the European Parliament.


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Operational police cooperation

Isn’t effective police cooperation in the interest of law-abiding citizens? Article 87(1) concerns the establishment of police cooperation involving all the member states' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences; paragraph 2 lists measures falling under the ordinary legislative procedure.

Paragraph 3 reserves special treatment for operational police cooperation. If unanimity and a special legislative procedure fail, enhanced cooperation may follow between a group of member states.


Article 87(3) TFEU

3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.

In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.


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Police operations in another member state

The rules for operations police and other authorities in the territory of another member state are enacted according to a special legislative procedure, unanimously.


Article 89 TFEU
(ex Article 32 TEU)

The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.


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From the viewpoint of an EU citizen, I would hope for more problem solving action and less fretting about sovereignty.


Ralf Grahn