Sunday 12 April 2009

EU: Special legislative procedure (II)

The principle of conferred (attributed) powers. The principles of subsidiarity and proportionality. The super majorities required by qualified majority voting (QMV); in part deferred until 2017. Enough limitations?

Not enough, says an EU member state or two; this is sensitive business. So the Treaty of Lisbon, itself the denominator of the least willing, hedges in legislation behind the walls of unanimity and the special legislative procedure.

Just as a reminder: There would have been no working internal market, if the member states had not abandoned the unanimity rule in important areas.

We continue to look at provisions where the Treaty of Lisbon retains the special legislative procedure, which leaves the directly elected European Parliament on the margins and normally offers little prospect of progress (unanimity).

In these cases the intergovernmental Council of the European Union is the decisive institution.


Diplomatic and consular protection

The principle of diplomatic or consular protection for unrepresented EU citizens is stated in Article 23 TFEU. The member states negotiate internationally and adopt the necessary provisions, but coordination and cooperation measures may be adopted within the EU framework, according to a special legislative procedure:

Article 23 TFEU
(ex Article 20 TEC)

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.


EU citizenship rights

The second paragraph of Article 25 TFEU offers a slim chance of strengthening EU citizenship rights, by unanimous decision and approval at national level:

Article 25 TFEU, second paragraph

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 20(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.


Restricting capital movements

Here is a rare example of a provision, where the special legislative procedure does not limit chances for progress, but is designed to make it difficult to back-track from existing measures which have liberalised the free movement of capital with regard to third countries:

Article 64(3) TFEU

3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.


Why not see the European Union more as a means to reach pragmatic solutions for its citizens and firms?

Ralf Grahn

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