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.


***

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.


***

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.


***

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.


***

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.


***

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

European election law

How much of a joke is a uniform electoral code for the European elections?

It took from 1952 to 1979 to get the first directly elected Assembly for the European Communities.


Article 190(4) of the Treaty establishing the European Community sets out a uniform election code as the first option:

4. The European Parliament shall draw up a proposal for elections 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 shall, acting unanimously after obtaining the assent of the European Parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.


***

The substance remains the same in the Lisbon Treaty, in Article 223(1) of the Treaty on the Functioning of the European Union (TFEU).


***

Repeated failure

The European Parliament’s efforts have been in vain, because both currently and under the Treaty of Lisbon the decision has to be made by a unanimous Council and approved (ratified) by every member state.


***

Common principles


On Eur-Lex we find the rudiments of the historically important ‘sui generis’ decision 76/787/ECSC, EEC, Euratom: Decision of the representatives of the Member States meeting in the council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage (published OJ 8.10.1976 L 278/1) here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:41976D0787:EN:HTML


Here is the available text:
DECISION (76/787/ECSC, EEC, Euratom)
THE COUNCIL
composed of the representatives of the Member States and acting unanimously,
Having regard to Article 21 (3) of the Treaty establishing the European Coal and Steel Community,
Having regard to Article 138 (3) of the Treaty establishing the European Economic Community,
Having regard to Article 108 (3) of the Treaty establishing the European Atomic Energy Community,
Having regard to the proposal from the Assembly,
Intending to give effect to the conclusions of the European Council in Rome on 1 and 2 December 1975, that the election of the Assembly should be held on a single date within the period May/June 1978,
Has laid down the provisions annexed to this Decision which it recommends to the Member States for adoption in accordance with their respective constitutional requirements.
This Decision and the provisions annexed hereto shall be published in the Official Journal of the European Communities.
The Member States shall notify the Secretary-General of the Council of the European Communities without delay of the completion of the procedures necessary in accordance with their respective constitutional requirements for the adoption of the provisions annexed to this Decision.
This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities.
Udfærdiget i Bruxelles, den tyvende september nitten hundrede og seksoghalvfjerds.
Geschehen zu Brüssel am zwanzigsten September neunzehnhundertsechsundsiebzig.
Done at Brussels on the twentieth day of September in the year one thousand nine hundred and seventy-six.
Fait à Bruxelles, le vingt septembre mil neuf cent soixante-seize.
Arna dhéanamh sa Bhruiséil, an fichiú lá de mhí Mhéan Fómhair, míle naoi gcéad seachtó a sé.
Fatto a Bruxelles, addì venti settembre millenovecentosettantasei.
Gedaan te Brussel, de twintigste september negentienhonderd zesenzeventig.
For Rådet for De europæiske Fællesskaber
Für den Rat der Europäischen Gemeinschaften
For the Council of the European Communities
Pour le Conseil des Communautés européennes
Thar ceann Chomhairle na gComhphobal Eorpach
Per il Consiglio delle Comunità europee
Voor de Raad van de Europese Gemeenschappen
Formand
Der Präsident
The President
Le président
An t-Uachtaran
Il Presidente
De Voorzitter >PIC FILE= "T0010317">
>PIC FILE= "T0010318">
>PIC FILE= "T0010319">
***

The text of the corrigendum (published OJ 25.11.1976 L 326/32) is unavailable.

We see that provisions have been annexed to the decision, but the annexes are unavailable.

No searches yield documents based on this document.


***

The end of the beginning

With the help of literature we find out that there is an amending decision, which we find.

Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to the decision 76/787/ECSC, EEC, Euratom (published OJ 21.10.2002 L 283/1).

The amending Council decision is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:283:0001:0004:EN:PDF


We have a text amending not readily available annexes and without a consolidated text. Still, some common principles emerge from the amendments where whole Articles appear:

Here are some common principles in shortened form:

· Proportional representation based on the list system or the single transferable vote
· A preferential list system as an option for member states
· Direct universal suffrage with free and secret vote
· Member states decide constituencies or electoral areas without generally affecting the proportional nature of the voting system
· Maximum national threshold of votes cast is 5 per cent
· National ceiling for candidates’ campaign expenses is possible
· MEPs enjoy the privileges and immunities applicable to them according to the Protocol of 8 April 1965 on the privileges and immunities of the European Communities
· From the 2004 European elections an MEP’s office is incompatible with that of a member of a national parliament
· National provisions rule the electoral procedure in each member state, subject to the provisions of the Act

***

Prayer

How much of a joke is a uniform electoral code for the European elections? It comes closer to being a disgrace. The same goes for the presentation.


Electoral laws come fairly close to constitutions in most jurisdictions. The acts concerning citizens’ right to vote are important historically and for their democratic value.

Not only has the European Union failed to enact a uniform electoral code. The little there is can be described as incomplete, partly unreadable and far from accessible.

The European Parliament, at least, should start taking citizens’ political rights seriously. The next step could be to publish the existing electoral principles in full for all interested citizens to read.

European elections ─ It’s your choice!


Ralf Grahn