EU Legislative Procedures

25 August 2006
by eub2 -- last modified 25 August 2006

Primary legislation includes the European Union Treaties as well as other agreements which have similar status. Secondary legislation is based on the Treaties, and implies a variety of procedures defined in different articles thereof.

Primary legislation

Primary legislation includes the European Union Treaties as well as other agreements which have similar status. Primary legislation is agreed by direct negotiation between the EU's Member States' governments. These agreements are laid down in the form of Treaties, which are then subject to ratification by the national parliaments. The same procedure applies for any subsequent amendments to the Treaties.

The Treaties establishing the European Communities have been revised several times through:

• the Single European Act (1987),
• the Treaty on European Union - 'Maastricht Treaty' (1992),
• the Treaty of Amsterdam (1997), which entered into force on 1 May 1999.

The Treaties also define the role and responsibilities of EU Institutions and bodies involved in decision-making processes and the legislative, executive and juridical procedures which characterise Community law and its implementation.

Secondary Legislation

Secondary legislation is based on the Treaties, and implies a variety of procedures defined in different articles thereof. In the framework of the Treaties establishing the European Communities, Community law takes the following forms:

• Regulations which are directly applicable and binding in all EU Member States without the need for any national implementing legislation.
• Directives which bind Member States as to the objectives to be achieved within a certain time-limit, while leaving to the national authorities the choice of form and means. Directives have to be implemented in national legislation in accordance with the procedures of the individual Member States.
• Decisions which are binding in all their aspects for those to whom they are addressed. Decisions do not require national implementing legislation. A Decision may be addressed to any or all Member States, to enterprises or to individuals.
• Recommendations and opinions which are not binding.

In addition, the Council and the Commission have several other instruments at hand: Communications from the Commission are used as bases for Council discussions. Council Conclusions are politically binding for the Council and indicative for the Commission.

The procedure for adoptiing a legislative proposal depends on the decision-making procedure stipulated in the EC Treaty. In other words, it depends on the provision which make up the legal basis for drafting legislation. The most common procedure is the Co-decision Procedure. This procedure applies to all proposals subject to Treaty provisions on the Single Market.

The Commission has the right of legislative initiative, and proposals for a directive are drafted by the Commission and sent on to be consulted by the Council. Council may start the consultation with an informal debate. The proposal is then negotiated in more detail by Member State experts in one of the Council's many working groups. Negotiations take place under the supervision of the Member State which holds the presidency.

While the proposal is being consulted by the Council, the European Parliament makes its first reading of the proposal. In Parliament the proposal is deliberated in the relevant committee, which designates a spokesman - called the "rapporteur" . The Council may take a position on the proposal before the Parliament has completed its first reading.

When the European Parliament has made its "opinion" on first reading, the Council will decide which proposed amendments to adopt and which to reject. The outcome of this procedure is formally adopted by qualified majority, and made available, as a rule, in one text version, usually in English. Once the text has been translated into all EU official languages, it may be adopted as the Council's "common position" on the Parliament's first reading. The "common position" is usually adopted as an A item on the Council meeting agenda (that is, as an item to be adopted without further debate).

When the Council has reached a "common position" on the directive, it is sent to Parliament for second reading. If Parliament supports the proposal at this stage, the directive may be adopted as an A item on any subsequent Council meeting. If the Council and Parliament are not in agreement on the proposal after the second reading, the Member State holding, the presidency will carry out a complicated conciliation procedure before the directive can be finally adopted by the Council. A finally adopted directive must be implemented in national legislation within a certain time limit.

Regulations are legal acts which differ from directives by being directly and legally binding on Member States. In other words, they need not be implemented into national legislation in the individual Member State. Regulations do not differ from directives regarding decision-making procedures. The Regulation is based on Treaty provisions regarding the Single Market and must be adopted according to the co-decision procedure.

Council Conclusions are typically used by the Member State currently holding the presidency to collect mid-term outcomes of directive and regulation procedures as well as other items consulted by the Council. Council Conclusions are not legal acts and are therefore not legally binding for Member States in the way that Directives and Regulations are. Council Conclusions are, however, politically binding for Member States. Council Conclusions can only be adopted by the Council unanimously (the Commission has no say) . Under specific circumstances Council Conclusions may help further the decision-making process when responsibility for an issue is handed over from one presidency to the next. The presidency may also choose to submit its Presidency Conclusions if they find it unlikely that Council Conclusions will be adopted at the given time - especially if there is no anticipation of unanimity. Presidency Conclusions do not have to be adopted; the presidency submits such conclusions solely on its own account. Presidency Conclusions may to some extent help the Commission's further work on a proposal, but they are not politically binding or indicative as are Council Conclusions.

Case-law

Case-law includes judgments of the European Court of Justice and of the European Court of First Instance, for example, in response to referrals from the Commission, national courts of the Member States or individuals.

These types of legislation comprise the acquis communautaire.

Sources: EUR-Lex, Danish Energy Authority