Once in a blue moon a special legislative procedure facilitates change by replacing treaty level change including ratifications. We find an example concerning the excessive deficit procedure.
On the other hand, usually unanimous Council legislation according to a special legislative procedure is an indication that unanimity lacked in the first place and is hardly to be expected later. Despite catastrophic results, prudential supervision seems to be a case in point.
Our Odyssey of the Council of the European Union and the special legislative procedure, takes us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.
Excessive deficit procedure
Article 126 of the Treaty on the Functioning of the European Union (TFEU) spells out principle (half forgotten due to the economic crisis) that EU member states shall avoid excessive government deficits. It then lays down the roles of the Commission, the Economic and Financial Committee and the Council leading to an assessment whether an excessive deficit exists, as well as recommendations and measures.
Additional provisions concerning the procedures are found in Protocol (No 12) on the excessive deficit procedure. The Protocol is legally binding and it contains treaty level provisions. Amending them would require both unanimous agreement and ratifications, but here the member states have agreed to facilitate change to a degree. The provisions of the Protocol may be replaced unanimously by a special legislative procedure, without time-consuming ratifications (Article 126(14) TFEU).
Article 126(4) TFEU
14. Further provisions relating to the implementation of the procedure described in this Article are set out in the Protocol on the excessive deficit procedure annexed to the Treaties.
The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the European Central Bank, adopt the appropriate provisions which shall then replace the said Protocol.
Subject to the other provisions of this paragraph, the Council shall, on a proposal from the Commission and after consulting the European Parliament, lay down detailed rules and definitions for the application of the provisions of the said Protocol.
ECB and prudential supervision
Article 127 TFEU sets out the objectives and the tasks of the European System of Central Banks (ESCB) and the European Central Bank (ECB). The ESCB shall contribute to the smooth conduct of policies pursued by the competent (national) authorities relating to the prudential supervision of credit institutions and the stability of the financial system.
Before the current financial and economic crisis, the member states’ governments we checked (United Kingdom, Sweden, Finland) congratulated themselves for retaining supervision at the national level. Even after the catastrophic results, leading to mind-boggling rescue operations involving EU-wide capital injections and guarantees of 3,000 billion euros, it is unsure to what extent the EU governments are prepared to create effective supervisory structures.
Just in case, the Lisbon Treaty contains the possibility to empower the European Central Bank, but subject to improbable unanimity and a special legislative procedure. The insurance sector is excluded even from the remote possibility.
Article 127(6) TFEU
6. The Council, acting by means of regulations in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament and the European Central Bank, confer specific tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings.
We have seen one facilitating and one obstructing example of the special legislative procedure, where a unanimous Council is the main actor and the European Parliament is only consulted.