Tuesday, 21 April 2009

EU: Special legislative procedure (VII)

The European Union has the shapeliest clay feet among international treaty based organisations.

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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Energy taxes

According to Article 194 of the Treaty on the Functioning of the European Union (TFEU), energy policy measures are generally taken in accordance with the ordinary legislative procedure. Fiscal measures form an exception, being subject to unanimity and a special legislative procedure, where the European Parliament is only consulted:

Article 194(3) TFEU

3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.


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Associated overseas countries and territories

The association of overseas countries and territories is in the hands of the Council.


Article 203 TFEU
(ex Article 187 TEC)

The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.


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International agreements

Some agreements with third countries or international organisations outside the exclusive scope of the common foreign and security policy may need the consent of the European Parliament, despite the special legislative procedure, as indicated by Article 218(6)(a) TFEU:


Article 218(6)(a) TFEU

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specific institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.


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European “election law”


A special legislative procedure applies to the uniform procedure for the European elections. Unanimity and ratifications have prevented that. This has left the second options of some common principles. As a consequence, the elections are not even held on the same day, but the European Parliament is given the uncommon role of proposing legislation:



Article 223 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.


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Future electoral reform?

There is a draft report by Andrew Duff of the European Parliament’s Committee on Constitutional Affairs (AFCO) on a proposal for a modification of the Act concerning the election of the Members of the European Parliament by direct universal suffrage of 20 September 1976; 15.10.2008, 2007/2207(INI). It is awaiting EP decision.





Ralf Grahn