EU: Special legislative procedure (VIII & detour)

A post in our series on the various functions of the Council of the European Union elicited comments by JL about the absence of a presentation of the procedural aspects of the special legislative procedure, where the latest posts had covered the ground concerning subject matter.

Let us turn to the Council’s Rules of Procedure to complement our series with procedural aspects of the Council’s legislative work.

These provisions are of general interest with regard to the character of Council work and principles such as openness, transparency and accountability.

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Materials

The latest consolidated version of Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council's Rules of Procedure, originally published OJEU 16.10.2006 L 285/47, seems to be of 1 January 2009.



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In a legislative capacity

Article 7 of the Council’s Rules of Procedure distinguishes the situations and sets the limits of the situations where the Council acts in a legislative capacity:


Article 7
Cases where the Council acts in its legislative capacity

The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning interinstitutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).

Where legislative proposals or initiatives are submitted to it the Council shall refrain from adopting acts which are not provided for by the Treaties, such as resolutions, conclusions or declarations other than those referred to in Article 9.


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Open deliberations

Article 8 contains provision on discussions in public and their availability on the web.

When the co-decision procedure applies (future ordinary legislative procedure), the presentation and the opening debate on a proposed legislative act is open, as well as other Council deliberations, the closing debate and the vote.

Other important new legislative proposals are normally discussed in public, and they may be discussed publicly later. This includes proposals falling under the special legislative procedure.

Special public debates may be arranged on important issues.

The 18 montth programmer of the troika (or trio) and other policy programmes are debated in public.

Items set for public deliberation or public debate are marked on the agenda.

The public discussions are available on the web.


Article 8
Council deliberations open to the public and public debates

1. Council deliberations on legislative acts to be adopted in accordance with the codecision procedure under Article 251 of the EC Treaty shall be open to the public as follows:

(a) the presentation, if any, by the Commission of its legislative proposals and the ensuing deliberation in the Council shall be open to the public;

(b) the vote on such legislative acts shall be open to the public, as well as the final Council deliberations leading to that vote and the explanations of voting accompanying it;

(c) all other Council deliberations on such legislative acts shall be open to the public, unless, on a case by case basis, the Council or Coreper decides otherwise with regard to a given deliberation.

2. The Council's first deliberation on important new legislative proposals other than those to be adopted in accordance with the codecision procedure shall be open to the public. The Presidency shall identify which new legislative proposals are important and the Council or Coreper may decide otherwise, whenever appropriate. The Presidency may decide, on a case by case basis, that the subsequent Council deliberations on a particular legislative act shall be open to the public, unless the Council or Coreper decides otherwise.

3. On a decision taken by the Council or by Coreper, acting by a qualified majority, the Council shall hold public debates on important issues affecting the interests of the European Union and its citizens.

It shall be for the Presidency, any member of the Council, or the Commission to propose issues or specific subjects for such debates, taking into account the importance of the matter and its interest to citizens.

4. The General Affairs and External Relations Council convened in a meeting as referred to in Article 2(2)(a) shall hold a public policy debate on the Council's 18-month programme. Policy debates in other Council configurations on their priorities shall also be held in public. The Commission's presentation of its five-year programme, of its annual work programme and of its annual policy strategy, as well as the ensuing debate in the Council, shall be public.

5. As from the sending of the provisional agenda pursuant to Article 3:

(a) those items on the agenda of the Council which are open to the public in accordance with paragraphs 1 and 2 shall be marked with the words “public deliberation”;

(b) those items on the agenda of the Council which are open to the public in accordance with paragraphs 3 and 4 shall be marked with the words “public debate”.

The opening to the public of Council deliberations and public debates in accordance with this Article shall be made through public transmission by audiovisual means, notably in an overflow room and through broadcasting in all official languages of the institutions of the European Union using video-streaming. A recorded version shall remain available for at least one month on the Council's Internet site. The outcome of voting shall be indicated by visual means.

The General Secretariat shall as far as possible inform the public in advance of the dates and approximate time on which such audiovisual transmissions will take place and shall take all practical measures to ensure the proper implementation of this Article.


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Public votes etc.

Legislative votes and explanations of votes as well as such minutes are made public.

The same principle applies with regard to common positions in relation to legislative acts in accordance with the codecision and the cooperation procedure and related Conciliation Committee proceedings, as well as statements concerning the establishment of a convention regarding police and judicial cooperation in criminal matters.

Various final votes are made public.


Article 9
Making public votes, explanations of votes and minutes

1. In addition to cases where Council deliberations are open to the public under Article 8(1), where the Council acts in its legislative capacity within the meaning of Article 7, the results of votes and explanations of votes by Council members, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of legislative acts, shall be made public.

The same rule shall apply for:

(a) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of a common position pursuant to Article 251 or Article 252 of the EC Treaty;

(b) results of votes and explanations of votes by members of the Council or their representatives on the Conciliation Committee set up by Article 251 of the EC Treaty, as well as the statements in the Council minutes and the items in those minutes relating to the Conciliation Committee meeting;

(c) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the establishment by the Council of a convention on the basis of Title VI of the EU Treaty.

2. Moreover, the results of votes shall be made public:

(a) when the Council acts pursuant to Title V of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;

(b) when the Council adopts a common position within the meaning of Title VI of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;

(c) in other cases, by Council or Coreper decision taken at the request of one of their members.

When the result of a vote in the Council is made public in accordance with points (a), (b) and (c) of the first subparagraph, the explanations of votes made when the vote was taken shall also be made public at the request of the Council members concerned, with due regard for these Rules of Procedure, legal certainty and the interests of the Council.

Statements entered in the Council minutes and items in those minutes relating to the adoption of the acts referred to in points (a), (b) and (c) of the first subparagraph shall be made public by Council or Coreper decision taken at the request of one of their members.

3. Except in cases where Council deliberations are open to the public in accordance with Article 8, votes shall not be made public in the case of discussions leading to indicative votes or the adoption of preparatory acts.


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Public access to Council documents

Public access to documents is a cornerstone of accountability and transparency. Article 10 of the Council’s Rules of Procedure refers to Annex II, which is presented below. Documents from and positions of member states are a special concern.

(The main rules are found in Regulation (EC) No 1049/2001. The Commission’s proposal to repeal and replace the Regulation by a new Regulation regarding public access to European Parliament, Council and Commission documents; Brussels, 30.4.2008, COM(2008) 229 final 2008/0090 (COD), is a hotly discussed issue between the EU institutions and questioned by NGOs and experts, but that is another story).


Council’s Rules of Procedure:


Article 10
Public access to Council documents
The specific provisions regarding public access to Council documents are set out in Annex II.

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Specific provisions



ANNEX II
SPECIFIC PROVISIONS REGARDING PUBLIC ACCESS TO COUNCIL DOCUMENTS



Article 1
Scope

Any natural or legal person shall have access to Council documents subject to the principles, conditions and limits laid down in Regulation (EC) No 1049/2001 and the specific provisions laid down in this Annex.



Article 2
Consultation as regards third-party documents

1. For the purpose of applying Article 4(5) and Article 9(3) of Regulation (EC) No 1049/2001 and unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall not be disclosed, the third party concerned shall be consulted if:

(a) the document is a sensitive document as defined in Article 9(1) of Regulation (EC) No 1049/2001;

(b) the document originates from a Member State and

was submitted to the Council before 3 December 2001; or

the Member State concerned requested that it not be disclosed without its prior agreement.

2. In all other cases, where the Council receives an application for a third-party document in its possession, the General Secretariat, for the purpose of applying Article 4(4) of Regulation (EC) No 1049/2001, shall consult the third party concerned unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall or shall not be disclosed.

3. The third party shall be consulted in writing (including by e-mail) and be given a reasonable time limit for its reply, taking into account the time limit laid down in Article 7 of Regulation (EC) No 1049/2001. In the cases referred to in paragraph 1, the third party shall be asked to give its opinion in writing.

4. Where the document does not fall within paragraph 1(a) or (b) and the General Secretariat, in the light of the third party's negative opinion, is not satisfied that Article 4(1) or (2) of Regulation (EC) No 1049/2001 is applicable, the Council shall be seized of the matter.

If the Council envisages the release of the document, the third party shall be informed immediately in writing of the Council's intention to release the document after a time period of at least 10 working days. At the same time, the third party's attention shall be drawn to Article 243 of the EC Treaty.



Article 3
Requests for consultation received from other institutions or from Member States

Requests for consultations with the Council made by another institution or a Member State concerning an application for a Council document shall be sent via e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.

The General Secretariat shall give its opinion on behalf of the Council promptly, taking into account any time limit required for a decision to be made by the institution or the Member State concerned, and at the latest within five working days.



Article 4
Documents originating from Member States

Any request by a Member State under Article 4(5) of Regulation (EC) No 1049/2001 shall be made in writing to the General Secretariat.



Article 5
Referral of requests by Member States

When a Member States refers to a request to the Council, it shall be handled in accordance with Articles 7 and 8 of Regulation (EC) No 1049/2001 and the relevant provisions of this Annex. In the event of a total or partial refusal of access, the applicant shall be informed that any confirmatory application must be addressed directly to the Council.



Article 6
Address for applications

Applications for access to a document shall be addressed in writing to the Secretary-General of the Council/High Representative, rue de la Loi/Wetstraat 175, B-1048 Brussels, by e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.



Article 7
Processing of initial applications

Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any application for access to a Council document shall be handled by the General Secretariat.



Article 8
Processing of confirmatory applications

Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any confirmatory application shall be decided upon by the Council.



Article 9
Charges

The charges for producing and sending copies of Council documents shall be set by the Secretary-General.



Article 10
Public register of Council documents

1. The General Secretariat shall be responsible for providing public access to the register of Council documents.

2. In addition to the references to documents, it shall be indicated in the register which documents drawn up after 1 July 2000 have already been released to the public. Subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (1) and Article 16 of Regulation (EC) No 1049/2001, their content shall be made available on the Internet.



Article 11
Documents directly accessible to the public

1. This Article shall apply to all Council documents, provided that they are not classified and without prejudice to the possibility of making a written application in accordance with Article 6 of Regulation (EC) No 1049/2001.

2. For the purpose of this Article:

— “circulation” shall mean distribution of the final version of a document to the members of the Council, their representatives or delegates,

— “legislative document” shall mean any document concerning the examination and adoption of a legislative act within the meaning of Article 7 of the Rules of Procedure.

3. The General Secretariat shall make the following documents available to the public as soon as they have been circulated:

(a) documents of which neither the Council nor a Member State is the author, which have been made public by their author or with his agreement;

(b) provisional agenda for meetings of the Council in its various configurations;

(c) any text adopted by the Council and intended to be published in the Official Journal.

4. Provided that they are clearly not covered by any of the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001, the General Secretariat may also make the following documents available to the public as soon as they have been circulated:

(a) provisional agenda of committees and working parties;

(b) other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions.

5. The General Secretariat shall make the following legislative documents available to the public, in addition to the documents referred to in paragraphs 3 and 4, as soon as they have been circulated:

(a) cover notes and copies of letters concerning legislative acts addressed to the Council by other institutions or bodies of the European Union or, subject to Article 4(5) of Regulation (EC) No 1049/2001, by a Member State;

(b) documents submitted to the Council which are listed under an item on its agenda marked with the words “public deliberation” or “public debate” in accordance with Article 8 of the Rules of Procedure;

(c) notes submitted to Coreper and/or to the Council for approval (I/A and A item notes), as well as the draft legislative acts to which they refer;

(d) decisions adopted by the Council during the procedure referred to in Article 251 of the EC Treaty and joint texts approved by the Conciliation Committee.

6. After adoption of one of the decisions referred to in paragraph 5(d) or final adoption of the act concerned, the General Secretariat shall make available to the public any legislative documents relating to this act which were drawn up before one of such decisions and which are not covered by any of the exceptions laid down in Article 4(1), (2) and (3), second subparagraph, of Regulation (EC) No 1049/2001, such as information notes, reports, progress reports and reports on the state of discussions in the Council or in one of its preparatory bodies (outcomes of proceedings), excluding Legal Service opinions and contributions.

At the request of a Member State, documents which are covered by the first subparagraph and reflect the individual position of that Member State's delegation in the Council shall not be made available to the public under these provisions.


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Readers are welcome to share their experiences of the Council’s work methods and opennessi including the functionality of its web pages and search functions.

After this detour, the next instalment in this series is going to return the matters subject to the special legislative procedure, not yet covered in the previous posts.


Ralf Grahn