Legislation in the EU and the role of the Institutions

In the European Community, the power to approve new legislation is distributed between the Commission, the Council and the European Parliament. Does this accord with the concept of separation of powers? Discuss.

There is no single body identified as the “legislature” for the Community as a whole. There is also no one single legislative procedure and is dependent on what is specified under any particular Treaty Article.

There are several different procedures :-

1. The Commission acting alone – under Article 86(3) which concerns the role of the State in relations to public undertakings the Commission has the power to promulgate directives or decisions.

2. The Council and Commission acting alone – can take action without the intervention of the Parliament. The Council will act on a proposal from the Commission and take the decision in accordance with the voting requirement in the relevant Treaty article. Used in relation to aspects of free movement of workers and of capital, economic policy and common commercial policy

3. Council and Commission in consultation with Parliament - under the Treaty of Rome legislative power was concentrated in the Commision and the Council. The Commission would propose a measure and the Council would vote upon it. Parliament's only role was to be consulted before the proposal could be legislated in what is known as the consultation procedure. The Council did not have to incorporate the Parliament’s opinion or give reasons for rejecting it. The role of Parliament was strengthened by the ECJ which ruled that the Parliament must be consulted when so required by the Treaty. Failure to observe this essential procedural requirement is a ground for annulment under Article 230 EC : Roquette Freres v Council.

4. Council, Commission in cooperation with Parliament - the Single European Act (SEA) 1986 introduced the cooperation procedure under Article 252 EC increased Parliament’s role which reflected Parliament’s enhanced status after the initiation of direct elections in 1979. Now there was a second reading for the Parliament and if the Parliament vetoed the proposal, it could only be enacted by the Council acting unanimously. So a combination of the Parliament and one Member State acting together could defeat a proposal for legislation

5. Council, Commission in codecision with Parliament - further powers were given to Parliament on the basis of its directly elected nature. Parliament has increasingly be seen as providing a measure of democratic accountability to the EU. The codecisionmethod of legislation has become the method for making much important Community legislation except agriculture, fisheries, taxation, trade policies, competition and EMU.

In the codecision procedure the Council and Parliament must both agree on the wording of the legislation. After the first reading of the legislation by both of the bodies, the Parliament can propose amendments. The Council then adopts a common position accepting, rejecting or making further amendments to the bill. If Parliament does not accept the common position, then the Commission can either withdraw the legislation or a Conciliation Committee is convened between the Parliament and Council to try to adopt a joint text that they both agree on. If this is successful, the law is passed, if not then it is rejected.

6. Council in comitology with Commission and Parliament - once legislation has been passed into law, it needs to be implemented by the Council. The Council through a parent regulation would authorize the Commission to enact more specific regulations within a particular area. The Council has passed a lot of responsibility for this phase of the legislative process to the Commission but it is not carte blanche and subject to institutional constraints - a series of committees formed of national experts that work with the Commission during the implementation process and who can refer measures that they disagree with back to the Council for review.

This procedure is known as comitology laid down by the SEA and modified under Art 202 and has been highly criticised by the European Parliament because of its non-involvement and undermines the gains that Parliament has made through codecision. The comitology committees’ work is also not transparent and there are complaints that comitology gives the Council and national Governments too much control over the Commission, which interferes with the relationship between these different institutions.