Monday 20 April 2009

EU: Special legislative procedure (VI)

To vote or not to vote: that is the question: Whether ‘tis nobler in the mind to suffer the secret vagaries of Council dealings, Or to take arms against a sea of apathy.

In my mind, every vote for a constructive alternative in the European elections counts. The Treaty of Lisbon would widen the area where the directly elected European Parliament legislates on an equal basis with the Council of the European Union.

But the intergovernmental Council remains the principal decision-maker and legislator in many policy areas.

If an issue is important or sensitive enough for the member states, they keep the reins and leave the European Parliament on the sidelines.

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.


Social policy

In EU terms social policy is mainly concerned with employment and working conditions. Action by the European Union is generally a complement to member states’ action. According to Article 153(1) and (2) of the Treaty on the Functioning of the European Union (TFEU), in the following fields the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions (paragraph 1):

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

However, the Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

An enabling clause (passerelle) like this may be more important in principle than in practice, because a move to qualified majority voting and the ordinary legislative procedure requires unanimity, which was not in existence when the treaty was agreed. But it would make the procedure more flexible, since laborious treaty amendment and ratifications would be unnecessary.

Anyway, the enabling clause (passerelle) is blocked with regard to social security and social protection of workers; paragraph 1(c).


Research and technological development

According to Article 182 TFEU, the multiannual framework programme for research and technological development, is adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee.

But the implementing specific programmes are adopted by the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee; paragraphs 3 and 4.



There has been much talk about the European Union’s role in protecting the environment (cf. Article 191 TFEU).

The ordinary legislative procedure applies as a rule, according Article 192(1) TFEU, but the second paragraph lists the exceptions subject to unanimity and a special legislative procedure:

Article 192(2) TFEU

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.


Here, too, in a second subparagraph there is a passerelle, opening up at least a theoretical possibility to shift to qualified majority voting at some future date:

The Council, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, the Economic and Social Committee and the Committee of the Regions,
may make the ordinary legislative procedure applicable to the matters referred to in the
first subparagraph.



In general ‘special legislative procedure’ can be read as a prognosis for either:

a) no EU legislation, or
b) legislation of low quality (based on the lowest common denominator).

In addition, although the European Parliament is normally consulted, its opinion lacks power. Thus, the process is less transparent and the outcome is less legitimate than legislation based on the ordinary legislative procedure (co-decision).

Ralf Grahn


  1. This post correctly analyses the distinction to be drawn between "the" ordinary legislative procedure (OLP) and "a" special legislative procedure, the wording in the TFEU which makes clear that, while there is only one OLP, there are several variations of the special legislative procedure. What they all have in common is the adoption of a legislative act.

    The burden of the post that Member States were unwilling to cede power in certain areas to the other two players in the institutional triangle, European Parliament and Commission, is also correct but this does not change the nature of the instruments adopted.

    The Council cannot be described as an "intergovernmental" body. If it is participating in the adoption of instruments that have a supranational character (i.e. have direct effect), it is by definition not intergovernmental. As matters stand, there is a single institutional framework and Ministers may be acting, especially in the General Affairs, External Relations and Justice and Home Affairs Councils, either inter-governmentally or supranationally depending on the instrument being adopted.

    It is important to understand this as, otherwise, the whole edifice of argumentation becomes unsound.

  2. JL,

    You are quite right in two respects:

    The Council (and the European Council) are part of the institutional framework.

    Largely, the acts they produce or participate in producing are EC (or EU) acts, although there are variations such as pure intergovernmental agreements in certain areas (the treaties, other international agreements, various codes of conduct with regard to intergovernmental cooperation etc.).

    But, I find our arguments to be a tad on the formalistic side. I have tried to describe the 'real' character of the Council.

    I would still describe the Council as intergovernmental. The ministers represent the member states. The EU and the EC are based on treaties between the governments, and the institutions lack the powers to amend the treaties.

    The EU is based on the member states, and only imperfectly on its citizens.

    The Council's mode of operation is still rooted in the 'diplomacy' paradigm of international organisations.

    Its factual behaviour (culture) with regard to citizens, accountability, legitimacy, transparency is far from what I would expect from a legislator in an open society.

    Formally adopting acts in open session is a step forward, in principle, but the real business of the member states in the Council is opaque and leaves little in te way of a paper trail. Tracking even one matter through the Council is often an arduous task even for a researcher with time on his hands.

  3. Formalistic maybe, but also accurate. You have a mistaken view of how the Council functions. I suggest that you consult the Rules of Procedure of the Council which carefully distinguishes between the various forms of action, first between legislative and non-legislative acts and second between the various "pillar" based instruments e.g. decision(JHA) or decision (CFSP).

    Indeed, the form of Framework Decision in the TEU specifies that "it shall not entail direct effect". If the Council adopts such a decision, it is, by definition acting in an inter-governmental manner as the measure adopted binds only the governments, not the citizens, of the Member States.

    As to the "inter-govermental manner" in which the Council behaves, what other manner would one expect? It is made up, after all, of the representatives of the governments of the Member States.

    The Rules of Procedure are there to protect the interests of all MS and notably the smaller ones. The MS are negotiating with one another, whether inter-governmentally or to to adopt supranational legislation. Making these negotiations public would simply transfer them to the corridors to the detriment of the smaller MS in particular.

    When a measure is ready for adoption, or there is a general debate before negotiations begin, there is, of course, a major argument for opening up the deliberations of the Council to the public. This is what happens at present.

    For a blog such as this to be valuable, it must analyse things as they are not as you would wish them to be.

  4. JL,

    The Council has many functions, of which legislation is but one.

    You contend that the Council (through its Rules of Procedure) is there to protect the interests of the member states. What is more intergovernmental than that?

    There will always be some preparation and negotiation outside formal settings, in every political entitity and administration, but it is hardly a valid defence for opaque decision-making as a system.

    The Council culture tends to favour particular interests at the expense of the general interest, but perhaps you are happy to see the small member states getting crumbs from the table.

  5. I said the Rules of Procedure are there to protect the interests of the MS. The MS within the Council defend their interests. What else would they do?

    The idea of public negotiation e.g. in respect of a common position to be adopted by the Council vis-a-vis a third country is intrinsically contradictory. Ministers must have confidentiality if the system is to work. Calls for anything else simply undermine it.

    The most important function of the Council must surely be the adoption of legislation. You have no less than seven posts on "the" special legislative procedure when the procedure is
    not the same in every case. You should correct this.

    Acceptance of the Community method (as confirmed by the Lisbon Treaty) requires acceptance of the Council's institutional role within it. Any other approach removes any basis for sensible discussion of what is actually contained in the present treaty texts or the Lisbon Treaty.

  6. JL,

    After dealing with other aspects of Council work, I started to present examples of where the Treaty of Lisbon applies a special legislative procedure.

    There are occasional comments as to the subject matter and differences regarding individual cases, but I don't see the need for any basic correction.

    Actually I find that there are plenty of reasons to present both the Lisbon Treaty and the shortcomings of the European Union as they are.

  7. I am pleased to see the Council's Rules of Procedure given wider public access in your most recent post on special legislative procedures. It is one of the most important, and unsung, documents in the EU's institutional armoury. But you should also add Annex IV which deals with the forms of acts adopted by the Council and divides them carefully between the existing three pillars.

    The Lisbon Treaty will reduce this plethora of acts to just five with the form of decision being adopted in the context of CFSP being suitably qualified to establish that it cannot be adopted as a legislative act (Article 31.1 TEU-L)and that "the CFSP is subject to specific rules and procedures" (Article 24 TEU-L). In other words, two pillars, will effectively remain as the only form of action that can be taken under CFSP is inter-governmental.

    As to special legislative procedures, a topical example would be Article 105.6 TEC as amended by Article 127.6 TFEU regarding the powers of the ECB in relation to prudential supervision. The changes can be analysed in terms of (i) form of decision (now specified as a regulation), (ii) role of the Commission (none now required) and the involvement of the EP (unchanged). This is the definition of "a special legislative procedure" in this instance. What it is in other cases I do not know as I have not looked at them.

    The EP can adopt legislation under "a special legislative" procedure, with the consent of the Council in respect of the Statute of MEPs, committees of enquiry and on the ombudsman. (The references to hand are Articles III-330(2), III-333 and III-335(4) CT).

    The Lisbon Treaty also, incidentally, introduces a hierarchy of legal norms in that a new system of delegated and implementing powers for the Commission is introduced. (Article 290 and 291 TFEU).

  8. JL,

    I'll have to think about your suggestions.

    When I started writing about the Lisbon Treaty, I kept pretty much to the existing provision (possibly the draft Constitution and the Constitutional Treaty) as a background to the Lisbon Treaty provision.

    Later I reduced the intermediary stages, but started adding some secondary legislation.

    However, when I reached the TFEU Articles on the instituions, I had the feeling that I should present the proposals or acts meant to implement the Lisbon Treaty.

    But here the institutions, especially the Commission and the Council, have practically put the lid on, instead of encouraging open discussion about implementation issues. So I haven't been that keen to "go back to" the current provisions.

    But perhaps I should reflect on it.

  9. I do not understand this last post. The nub of the matter is that there are numerous special legislative procedures and each has to be examined in turn, with the emphasis being on procedure.

    Neither the ordinary legislative procedure nor the special legislative procedures are a measure of the level of ambition or the effectiveness or otherwise of the legislation adopted. This will depend on the individual circumstances. They are, however, a gauge of the extent to which MS were willing to cede power either to the institutions or other MS. For example, all the special legislative procedures require decision by unanimity (except in the case of the EP).

    There are problems with regard to practical implementation measures (training for diplomats under the CFSP for example) because of fears that any executive action would be seen as anticipating eventual ratification of the Lisbon Treaty. But this has nothing to do with the matters under discussion.

    As I mentioned earlier, an examination of Annex IV to the Rules of Procedure will make the issues clearer if the various instruments at present in use are compared with the shortened list contained in the Lisbon Treaty (Article 288 TFEU) and Article 289.3 which stipulates that "legal acts adopted by a legislative procedure shall constitute legislative acts".

    There is, in other words, a combined vertical (legislative) and horizontal approach (all seven institutions mentioned in Article 13 TEU-L can use the five instruments but only the "legislature" as defined in Article 289 TFEU can adopt them as legislative acts).

    A seemingly intricate but entirely coherent and integrated approach.

  10. Just a footnote to my earlier post and to bring these exchanges to a close.

    The changes in the legal instruments and procedures to which I have drawn your attention lie at the heart of the Lisbon Treaty reforms. Curiously, they have drawn little legal comment.

    They will bring to an end the pointless legal disputes before the ECJ, of which there has been an entire series, as to to the correct legal base for particular actions. More significantly, as a hierarchy of legal norms is introduced, the Lisbon Treaty will establish more clearly what has always been the case viz. that it is the MS that are responsible, in the first instance, for implementing the policies agreed, under the control of the Commission, national courts and the ECJ. Only when circumstances require will it be necessary to give delegated and implementing powers to the Commission and, in any case, the latter will have to avail of the services of the Member States to ensure that the necessary actions are taken.

    There will be no loose ends with regard instruments and decision-making procedures. There is, of course, a great deal of sloppy drafting in the AFSJ and CFSP areas but neither the lawyers or the diplomats will any longer be able to use ersatz instruments of their own invention. The legal acts that emerge will have to conform to the new and improved structure.


Due deluge of spam comments no more comments are accepted.

Note: only a member of this blog may post a comment.