When a special legislative procedure is mentioned in the Treaty of Lisbon, it is normally an indication that at least one member state of the European Union has been reticent about attributing powers to the EU and even more negative about conferring ‘equal’ powers to the European Parliament, if the EU ever legislates on the issues in question.
Therefore, we have looked at the areas in the context of our series on the Council’s competences, because the position of the European Parliament is usually marginal.
But there are a few notable exceptions, in questions closely related to the European Parliament. In these areas the EP initiates legislation according to a special legislative procedure. Our first example was mentioned in post VII of this series. Here a few more examples will follow.
Our Odyssey of the special legislative procedure continues through the consolidated version of the Lisbon Treaty, officially the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.
Initiated by European Parliament
The possible European election code or at least the common principles for the European elections, as well as the Duff report on possible future reforms, were mentioned in post number VII on the special legislative procedure. Here the Council is still the legislator, with the consent of the European Parliament (and possibly on its initiative).
But one of the rare instances of legislation officially initiated by the European Parliament is found in the second paragraph of Article 223 of the Treaty on the Functioning of the European Union (TFEU).
The regulations and general conditions governing the performance of the duties of Members of the European Parliament (Members Statute) are laid down by a special legislative procedure. The Commission gives an opinion and the Council’s approval is needed, by unanimity if the rules relate to taxation. The provision can be seen as an expression of the EP’s internal autonomy.
Article 223(2) TFEU
(ex Article 190(4) and (5) TEC)
1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.
2. The European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure after seeking an opinion from the Commission and with the approval of the Council, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.
Right of inquiry
Article 226 TFEU lays down the right for the European Parliament to set up a temporary Committee of Inquiry to investigate alleged contraventions or maladministration in the implementation of EU law.
The European Parliament creates the detailed rules concerning the right of inquiry by a special legislative procedure, but it needs the consent of the Council and the Commission, as laid down in the third subparagraph. The provision can be seen as an expression of the EP’s internal autonomy:
The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.
The European Ombudsman, who examines complaints from citizens, works independently but resides in conjunction with the European Parliament. Therefore the EP has been given the leading role in devising the rules concerning the Ombudsman’s duties:
Article 228(4) TFEU
4. The European Parliament acting by means of regulations on its own initiative in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the approval of the Council, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.