Monday, 20 April 2009

EU: Special legislative procedure (VI)

To vote or not to vote: that is the question: Whether ‘tis nobler in the mind to suffer the secret vagaries of Council dealings, Or to take arms against a sea of apathy.

In my mind, every vote for a constructive alternative in the European elections counts. The Treaty of Lisbon would widen the area where the directly elected European Parliament legislates on an equal basis with the Council of the European Union.

But the intergovernmental Council remains the principal decision-maker and legislator in many policy areas.

If an issue is important or sensitive enough for the member states, they keep the reins and leave the European Parliament on the sidelines.

Our Odyssey of the Council of the European Union and the special legislative procedure continues, taking us through 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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Social policy

In EU terms social policy is mainly concerned with employment and working conditions. Action by the European Union is generally a complement to member states’ action. According to Article 153(1) and (2) of the Treaty on the Functioning of the European Union (TFEU), in the following fields the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions (paragraph 1):




(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;


However, the Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

An enabling clause (passerelle) like this may be more important in principle than in practice, because a move to qualified majority voting and the ordinary legislative procedure requires unanimity, which was not in existence when the treaty was agreed. But it would make the procedure more flexible, since laborious treaty amendment and ratifications would be unnecessary.

Anyway, the enabling clause (passerelle) is blocked with regard to social security and social protection of workers; paragraph 1(c).


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Research and technological development

According to Article 182 TFEU, the multiannual framework programme for research and technological development, is adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee.


But the implementing specific programmes are adopted by the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee; paragraphs 3 and 4.


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Environment

There has been much talk about the European Union’s role in protecting the environment (cf. Article 191 TFEU).

The ordinary legislative procedure applies as a rule, according Article 192(1) TFEU, but the second paragraph lists the exceptions subject to unanimity and a special legislative procedure:


Article 192(2) TFEU

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.


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Here, too, in a second subparagraph there is a passerelle, opening up at least a theoretical possibility to shift to qualified majority voting at some future date:


The Council, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, the Economic and Social Committee and the Committee of the Regions,
may make the ordinary legislative procedure applicable to the matters referred to in the
first subparagraph.


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Comment


In general ‘special legislative procedure’ can be read as a prognosis for either:

a) no EU legislation, or
b) legislation of low quality (based on the lowest common denominator).

In addition, although the European Parliament is normally consulted, its opinion lacks power. Thus, the process is less transparent and the outcome is less legitimate than legislation based on the ordinary legislative procedure (co-decision).



Ralf Grahn