EU: Special legislative procedure (IX; EP powers)

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.



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Initiated by European Parliament


MEPs’ Statute

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.


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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.



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European Ombudsman

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.



Ralf Grahn

European Parliament: Ombudsman (I)

This blog post looks at the watchdog of EU citizens, the Ombudsman, who investigates on his own initiative and on the basis of complaints. The Ombudsman is appointed by the European Parliament, but he acts independently.



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Current treaty

Article 195 of the Treaty establishing the European Community (TEC) provides for the appointment of an Ombudsman, who investigates instances of maladministration in the EC institutions and bodies, either on his own initiative or on the basis of complaints submitted to him by EU citizens, residents of legal persons.

In case of maladministration the Ombudsman reports to the European Parliament and the institution concerned. The activities of the Ombudsman are presented in an annual report.

The Ombudsman is appointed after the European elections by the European Parliament for its term of office.

The Ombudsman shall be completely independent in the performance of his duties (OJEU 29.12.2006 C 321 E/133─134):


Article 195 TEC

1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.

The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.

4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.


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Original Lisbon Treaty

Article 2, point 183 of the original Treaty of Lisbon amended Article 195 TEC (OJEU 17.12.2007 C 306/102):



183) Article 195 shall be amended as follows:

(a) in the first subparagraph of paragraph 1, the words at the beginning ‘The European Parliament shall appoint an Ombudsman, empowered to receive complaints’ shall be replaced by ‘A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints’; in the last part of the sentence, the words ‘and the Court of First Instance acting in their judicial role’ shall be replaced by: ‘acting in its judicial role’ and the following final sentence shall be added: ‘He or she shall examine such complaints and report on them.’;

(b) in the first subparagraph of paragraph 2, the word ‘appointed’ shall be replaced by ‘elected’;

(c) in paragraph 3, the words ‘from any body’ shall be replaced by ‘from any Government, institution, body, office or entity’;

(d) in paragraph 4, the words ‘acting by means of regulations on its own initiative in accordance with a special legislative procedure’ shall be inserted after ‘The European Parliament’.


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Consolidated Lisbon Treaty

In the consolidated (readable) version of the Lisbon Treaty the renumbered provision becomes Article 228 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/130─131:


Article 228 TFEU
(ex Article 195 TEC)

1. A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.

The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be elected after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any Government, institution, body, office or entity. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.

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.


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Comment

Currently the Ombudsman is appointed, but under the Lisbon Treaty he would be elected by the European Parliament. This and other amendments do not alter the substance of the provision.


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The second part will look at detailed provisions relating to the Ombudsman.


Ralf Grahn