EU: Special legislative procedure (IV)

European politics on the never-never plan.

The dynamics – if you can call them that – of European integration are such that 26 member states may see the need for common legislation, but a treaty has to be concluded by every member.

Enter Political Fudge.

One stubborn member state holds out, while the rest manage to consecrate the principle of future legislation, subject to unanimity and a special legislative procedure.

The European Union can proudly proclaim the potential to act, but nothing comes of it as long as even one member state invokes its veto. The directly elected European Parliament is marginalised.

We continue our Odyssey of the Council of the European Union and the special legislative procedure, as laid down 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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Indirect taxes

Harmonisation of VAT and other indirect taxes requires unanimity and a special legislative procedure.


Article 113 TFEU
(ex Article 93 TEC)

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.


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Harmonisation of taxes, free movement and workers’ rights


Without qualified majority decisions there would be no working internal market, just a nice principle in the Treaty of Rome (EEC).

The ordinary legislative procedure applies to the approximation (harmonisation) of legislation aimed at the establishment and functioning of the internal market, with the exception of fiscal provisions, the free movement of persons and the rights and interests of employed persons (Article 114).

Unanimity and a special legislative procedure apply to the exceptions.


Article 115 TFEU
(ex Article 94 TEC)

Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market.


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European intellectual property rights

The Treaty of Lisbon would allow the creation of European intellectual property rights according to the ordinary legislative procedure, but the language arrangements have proven to be as vexed as ever (Article 118).


Article 118 TFEU, second subparagraph

The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.


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The European Union is as strong as its weakest link.



Ralf Grahn