The primary legislation of the EU is in the treaties themselves. These provide for five kinds of ‘act’.
- Opinions and Recommendations are non-binding guidance.
- Decisions are binding in their entirety upon those to whom they are addressed (individuals, companies, countries).
- Regulations are binding in their entirety and are generally and directly applicable in all Member States.
- Directives set out the result to be achieved but leave the choice of form and methods to the national authorities in each Member State to which they are addressed – in other words, they always require transposition into national law.
Most EC legislation is adopted through a process called codecision. This can be quite a complex procedure, but the basic outline is given below. Be careful though – this is a simplified description and there can be many twists and turns on the road, and some steps may happen more or less at the same time. In addition, if all parties agree, the process can be stopped at any point after the European Parliament’s (EP) First Reading and the proposal adopted. Indeed, huge attempts are in practice made to get agreement at first reading stage, which necessitates an informal institutional negotiation called a trilogue.
- The Commission makes a proposal for legislation to the EP and the Council.
- The EP gives its First Reading opinion on the proposal, in the form of a series of amendments. (Note that the opinion is adopted on the basis of a simple majority of MEPs voting in the plenary session.)
- The Commission gives its views on the EP’s amendments and changes its proposal accordingly.
- The Council adopts its Common Position, taking into consideration the EP’s amendments. The voting is usually by Qualified Majority (though sometimes unanimity applies throughout) if the Commission concurs, otherwise unanimity is needed. It then forwards the Common Position to the EP, along with an explanation of its reasons.
- The EP then has three months to examine the Common Position, along with the Commission’s views on it. Within this period it adopts its Second Reading amendments. This time only amendments achieving the support of an absolute majority of MEPs (that is, half of all MEPs plus one) go through.
- The Council now has three months to decide which of the EP amendments it will take on board. The Council can usually adopt those amendments on which the Commission has expressed a positive opinion by QMV (though sometimes unanimity applies throughout) but the Council needs unanimity for those where the Commission has expressed a negative opinion. If all amendments are accepted, the process ends and the proposal is adopted.
- If one or more amendments are rejected, then conciliation starts. The Conciliation Committee must meet within six weeks of the rejection and reach a conclusion within a further six weeks. It is made up of representatives of the Member States (usually chaired by a Minister, with other Member States represented by the Permanent Representative or his deputy) plus an equal number of MEPs. The Commission is tasked with assisting the Committee.
- If conciliation is successful, the Council (QMV or sometimes unanimity) and the EP (absolute majority) must each then adopt the modified text within another six weeks.
Once legislation has been agreed, there will often be an ongoing need to update it to account for technical progress/changes, to oversee its implementation and to draw up guidance. This is generally done by the Commission, assisted (or interfered with, depending on your point of view) by a committee made up of representatives of the Member States. This goes by the delightfully uninformative name of comitology and can have significant effects on policy in the UK.
Although these are technical committees, it is important that you understand when the stakes are high – for instance for UK manufacturing and jobs, or for the environment – and you might need to send more senior representatives in order to maximise the chances of a good outcome for the UK. UKRep can provide very helpful assistance and advice if you alert them to the significance of the negotiation.