Only EU or mixed agreements Part IV – The EU legal order and the hierarchy of norms Ch. 7 – International agreements Only EU or mixed agreements Legal effects within EU as well as within MS + rights and obligations for EU and MS Legal status Direct effect? Interpretation of the agreement

Not legislation stricto sensu but legally binding Part IV – The EU legal order and the hierarchy of norms Ch. 8 – Inter-institutional agreements Not legislation stricto sensu but legally binding Guiding principles + foundations for more concrete legislative action Art. 295 TFEU

Part IV – The EU legal order and the hierarchy of norms Ch. 9 – Soft law No binding No direct effect but object of interpretation Recommendations and opinions + other several forms of soft law Commitment about the conduct of institutions respecting certain values programming legislation

From external or internal sources of law Part IV – The EU legal order and the hierarchy of norms Ch. 10 – General principles of EU law General principles From external or internal sources of law Interpretation of the treaties + possible invalidation of legislative acts The issue of fundamental rights: from unwritten to written source of law

Part IV – The EU legal order and the hierarchy of norms Ch. 11 – Hierarchy of norms Is there a hierarchy of norms in the EU legal system? Yes but not amongst legislative acts  Treaties, protocols and Charter General principles    International agreements Legislative acts Inter-institutional agreements Delegated and implementing acts Soft law

Part IV – The EU legal order and the hierarchy of norms Ch. 12 – CFSP acts No legislative acts Council shall adopt only decisions on (Art. 25 TUE): strategic interests and objectives of the Union actions to be undertaken by the Union positions to be taken by the Union procedures for implementing the actions and positions of the Union European Council: Art. 26 TUE

Part V LAW MAKING IN THE EU Luiss G. Carli ‘Law Department’ Course on ‘EU Law’ A.Y. 2015-16 March 22, 2016

1. THE OLP The OLP is provided for by Articles 289 and 294 TFEU. The OLP consists of the joint adoption by the EP and the Council of a regulation, directive or decision on a proposal from the European Commission.

1. THE OLP 2.1) THE LEGISLATIVE PROPOSALS The Commission holds the ‘right of initiative’, i.e. the prerogative to draft and submit legislative proposals to the EU legislator(s) (Article 17 TEU). This gives the Commission a high degree of power in the policy cycle, as it formally initiates or develops European policies and legislation.

1. THE OLP The quasi-exclusive right of legislative initiative was conferred on the Commission by the Treaty of Rome and maintained in the successive rounds of Treaty revisions as a general principle. Thanks to its independence from the MS’ governments the Commission has been traditionally seen as being in the unique position to identify the general interest of the EU.

1. THE OLP However the founding treaties provide some limited exceptions to the monopoly of the right to initiate legislation of the Commission (Article 294(15) TFEU). In specific cases a proposal for a legislative act may also be submitted to the OLP: on the initiative of a group of MS (under Article 76 TFEU a quarter of the MS can initiate a legislative procedure in the field of judicial cooperation in criminal matters and police cooperation);

1. THE OLP on a recommendation by the European Central Bank (ECB) (under Article 40 of Protocol 4 the Statute and complementary legislation regarding the European System of Central Banks can be amended via the ordinary legislative procedure on a recommendation by the ECB), or at the request of the Court of Justice (ECJ) (under Article 257(1) TFEU specialised courts attached to the General Court may be established via the ordinary legislative procedure at the request of the ECJ).

1. THE OLP Furthermore the Commission do not always exercise its right of legislative initiative entirely independently. In particular: under Article 225 TFEU, the EP, acting by a majority of its members, may request the Commission to submit appropriate legislative proposals. It may also set a deadline for the submission of such a proposal. The Commission may agree or refuse to submit the proposal requested. It has to inform the EP of why it does not decide to make a proposal if one has been requested;

1. THE OLP under Article 241 TFEU the Council, acting by a simple majority, may request the Commission to submit appropriate legislative proposals. The Commission may agree or refuse to submit the proposal requested. It has to inform the Council of why it does not decide to make such a proposal.

1. THE OLP The Commission receives demands from the European Council to draft legislative proposals, even if the Treaties do not formally provide for such a procedure. In general, the Commission follows up on the European Council’s resolutions, as the President of the Commission is a member of the latter; MS, sectional interest groups, regional and local authorities and private firms and individuals frequently influence Commission policy initiation by methods such as direct lobbying and the production of policy papers;

1. THE OLP last but not least the Lisbon Treaty has introduced the Citizens’ Initiative. Under Article 11 TEU one million citizens who are nationals of a significant number of MS (at least 7 MS according to Regulation no. 211/2011) may invite the Commission to submit proposals on which these citizens believe EU legislation should be adopted. The Commission is not legally bound to make a proposal based on a Citizens’ Initiative, but it must give the grounds for its refusal to propose.

1. THE OLP 2.2) THE SUBMISSION OF THE COMMISSION’S PROPOSAL The Commission’s legislative proposal (for a regulation, a directive or a decision) is simultaneously transmitted to the Parliament and the Council and, if relevant, forwarded to the national Parliaments and to the Economic and Social Committee and the Committee of the Regions.

1. THE OLP 2.3) FIRST READING STAGE At the first reading, the EP and the Council examine in parallel the Commission’s proposal. It is, however, the Parliament that has to act first, by adopting the Commission’s proposal without amendments, amending it or rejecting it.

1. THE OLP After the EP has adopted its position, the Council may accept the EP’s position, in which case the legislative act is adopted, or it may amend the EP’s position and communicate its position at first reading to EP for a second reading.

1. THE OLP The EP and the Council may reach an informal agreement at any point, leading to a first reading agreement (if a compromise text is agreed before EP’s first reading vote) or an early second reading agreement (if a compromise text is agreed before the Council’s first reading vote). During the whole 1st reading stage, neither the EP nor the Council is subject to any time limit by which they must conclude their first reading.

1. THE OLP 2.3.1) THE FIRST READING STAGE WITHIN THE EP Within the Parliament the Commission’s proposal is referred by the President to the Committee responsible for its consideration. Other Committees can be also be involved in the examination of the proposal. The Commission is usually present during committee debates and it may be invited to express its position on the proposed amendments. The Council is also present and may also be invited to make comments.

1. THE OLP When the responsible Committee has adopted its report in the form of amendments to the Commission’s proposal, such report is tabled for vote in plenary. The EP, acting by a simple majority (i.e. a majority of the members voting), adopts its first reading of the Commission proposal in the form of a legislative resolution: it may reject the proposal as a whole, approve it without amendments or adopt amendments to the proposal.

1. THE OLP 2.3.2) THE FIRST READING STAGE WITHIN THE COUNCIL Within the Council the Commission’s proposal is referred to the relevant working party for discussion. If the Council approves all of EP’s amendments, or if the EP has approved the proposal without amendments, the Council may adopt the act at first reading.

1. THE OLP If the Council is unable to fully accept the outcome of the EP’s first reading, it adopts its position at first reading and communicates it to the EP in order to proceed to the second reading. The Council gives the EP a full account of the reasons which led to the adoption of its position.

1. THE OLP 2.3.3) THE VOTING SYSTEM IN THE COUNCIL Under the OLP the Council acts by Qualified Majority Voting (QMV) (Article 16 TEU and Article 238 TFEU). This means that decisions are taken in the Council when a pre-determined majority of MS are in agreement. However negotiations in the Council are usually carried on until the unanimity is reached.

1. THE OLP When the Council votes on a proposal by the Commission, a QM is reached if two conditions are met: a 55% of MS vote in favour (i.e. 16 out of 28); and the MS which support the proposal represent at least 65% of the total EU population (= ‘double majority’ rule)

1. THE OLP When the Council votes on a proposal not made by the Commission, a decision is adopted if: there are 72 % of MS votes in favour; and they represent at least 65% of the EU population. Until 31 March 2017, any MS may request that a decision be taken in accordance with the rules in force before 1 November 2014 (i.e. in accordance with the rules as defined by the Treaty of Nice). Under the previous QM rule, each MS has a certain number of votes weighted by population size.

1. THE OLP The 352 votes are distributed as follows: France, Germany, Italy, United Kingdom: 29 votes each Spain, Poland: 27 votes each Romania: 14 votes Netherlands: 13 votes Belgium, Czech Republic, Greece, Hungary, Portugal: 12 votes each Austria, Bulgaria, Sweden: 10 votes each Croatia, Denmark, Ireland, Lithuania, Slovakia, Finland: 7 votes each Cyprus, Estonia, Latvia, Luxembourg, Slovenia: 4 votes each Malta: 3 votes A qualified majority is reached in the Council if two following conditions were met: a) a majority of MS vote in favour, and b) a minimum of 260 votes out of the total 352 votes are cast in favour.

1. THE OLP 2.4) THE SECOND READING STAGE Once the EP formally receives Council’s position at first reading, the phase of the second reading starts. The EP can approve, reject or amend the Council’s position at first reading within four months of its announcement in plenary. If the EP takes no decision by the expiry of this deadline, the act is deemed to have been adopted in accordance with the Council’s position at first reading.

1. THE OLP In second reading the two co-legislators are bound by strict time limits laid down in the Treaty: each of the co-legislators has three months extendable by one month. 2.4.1) THE SECOND READING WITHIN THE EP The Rapporteur (normally the same EP’s member who drew up the report for the first reading) draws up a draft recommendation for the responsible Committee (the same Committee that was responsible at first reading).

1. THE OLP The responsible Committee decides by a simple majority of its members. After the vote in the responsible committee, the recommendation is tabled for vote in plenary. Before the vote in plenary, the President of the EP may ask the Commission to state its position and the Council to comment.

1. THE OLP The EP may: approve the Council’s position at first reading without amendment. This requires the support of a simple majority of the EP’s members; adopt amendments to the Council’s position at first reading. Each amendment must be supported by an absolute majority of its members; reject the Council’s position at first reading by an absolute majority of its members (i.e. at least 376 votes in favour out of a possible total of 751).

1. THE OLP There are two possible scenarios: if the EP approves or rejects the Council’s first reading position, the legislative procedure is closed; in the case of a rejection, the procedure can only be re-launched by a new Commission proposal.

1. THE OLP 2.4.2) THE SECOND READING WITHIN THE COUNCIL Once the EP has concluded its second reading and has referred its position to the Council, the latter has a further three months (or four, if an extension has been requested) to conclude its second reading; At second reading, the Council may approve the EP’s amendments by a qualified majority (or by unanimity if the Commission opposes an EP’s amendment). In this case, the act is adopted.

1. THE OLP If the Council does not accept all of Parliament's amendments, the Conciliation Committee is convened. 2.5) CONCILIATION Conciliation consists of negotiations between the EP and the Council in the framework of the Conciliation Committee, with a view to reaching agreement in the form of a ‘joint text’.

1. THE OLP The Conciliation Committee consists of two delegations: the Council delegation, composed of one representative of each MS (Ministers or their representatives), and the EP delegation, composed of an equal number of members. Thus, the Conciliation Committee consists of 56 (28+28) members.

1. THE OLP The Conciliation Committee must be convened within six weeks (or eight weeks, if an extension has been agreed) of the Council concluding its second reading and officially notifying EP that it is not in a position to accept all the EP’s second reading amendments. It has six weeks (or eight weeks, if an extension has been agreed) to reach an overall agreement in the form of a ‘joint text’.

1. THE OLP There are two possible scenarios: if the two Institutions fail to reach an agreement in the Conciliation Committee, the whole proposal falls; if the two Institutions manage to reach an agreement in the Conciliation Committee the third reading stage starts.

1. THE OLP 2.6) THE THIRD READING STAGE An agreement reached in the Conciliation Committee has to be confirmed by both the EP and the Council within six weeks (or eight weeks if an extension has been agreed) from the approval of a joint text. The two Institutions vote separately on the joint text as it stands, without any possibility of further amending it.

1. THE OLP A simple majority of the votes cast is required for approval by the EP. The joint text has also to be approved by qualified majority by the Council. If either institution fails to approve the joint text, the legislative procedure comes to an end: it can only be re-started by a new proposal from the Commission.

2. SPECIAL LEGISLATIVE PROCEDURES Aside from the OLP there are two special legislative procedures: the Consent Procedure and Consultation (Article 289 TFEU). 3.1) THE CONSENT PROCEDURE Under the consent procedure (formerly called the ‘assent procedure’) the Commission makes a proposal which must be either rejected or accepted by the EP.

2. SPECIAL LEGISLATIVE PROCEDURES The EP cannot make any amendments. Rejection of a proposal constitutes a veto for the EP as the Council cannot take any decisions without the Parliament’s consent. The Consent procedure applies when new legislation on combating discrimination is being adopted and when the subsidiary general legal basis is applied in line with Article 352 TFEU.

2. SPECIAL LEGISLATIVE PROCEDURES 3.2) THE CONSULTATION PROCEDURE The EP may approve or reject a legislative proposal, or propose amendments to it. The Council is not legally obliged to follow the EP’s position. However, according to the ECJ’s case law, the Council must not take a decision without having requested/received the EP’s opinion.

2. SPECIAL LEGISLATIVE PROCEDURES Furthermore, when the Council intends to substantially amend the proposal, it is required to consult the EP again. The consultation procedure is now applicable in a limited number of legislative areas.

2. SPECIAL LEGISLATIVE PROCEDURES As a legislative procedure it applies to internal market exemptions and competition law, as well as financial matters and aspects of intellectual property and administrative issues.

3. ENHANCED COOPERATION MS that wish to establish enhanced cooperation (EC) between themselves within the framework of the EU’s non-exclusive competences may make use of its Institutions and procedures, in accordance with the substantial and procedural rules laid down in Article 20 TEU and in Articles 326 to 334 TFEU.

3. ENHANCED COOPERATION MS which wish to establish EC between themselves in one of the areas covered by the Treaties, with the exception of fields of exclusive competence and the CFSP, shall address a request to the Commission, specifying the scope and objectives of the EC proposed. The Commission may submit a proposal to the Council to that effect. In the event of the Commission not submitting a proposal, it shall inform the MS concerned of the reasons for not doing so. Authorisation to proceed with the EC shall be granted by the Council, on a proposal from the Commission and after obtaining the consent of the EP.

3. ENHANCED COOPERATION The EC must be open at any time to all MS. The minimum threshold for establishing enhanced cooperation is nine MS. The acts adopted within the framework of EC shall bind only participating MS and shall not form part of the Union acquis. The Council and the Commission shall ensure the consistency of activities undertaken within the framework of EC with the other policies and activities of the Union.