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Law-Making in the EU
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Lecture notes of 6 pages for the course Constitutional Foundations in the EU at UoS (.)
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Law-Making in the EULaw-Making in the EU
Need to understand the different types of legislative output.
Secondary legislation:
Primary legislation is the Treaties (made by the Member States, and a
political process).
Art 288 TFEU – sources of secondary legislation.
‘To exercise the Union’s competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions…’.
Legally Binding Secondary Measures
Regulations.
General application.
Applies to all.
Binding in its entirety.
Cannot opt-out.
Need to respect the whole regulation.
Directly applicable in all Member States.
Member States do not need to do anything to implement them or
incorporate them.
Apply directly domestically.
Regulation applies immediately after it comes into force, without
individual implementation by the Member States’ government.
Directives.
Binding as to result on Member States to which it is addressed.
Do not bind in their entirety.
Bind Member States as to their results only.
Up to Member States how these are implemented domestically.
Leaves to the Member States the choice of form and methods by deadline.
Not directly applicable.
Need to be implemented.
Decisions.
Binding in its entirety on those to whom it is addressed.
No general application.
Applied to the precise person or business they are addressed to.
Non-Legally Binding Measures
Recommendations and opinions.
Of minor importance.
No legally binding force.
Sit alongside resolutions, declarations, action programmes, plans,
communications and guidelines from the Commission.
No legal sanction.
Organise relations between the institutions.
Commit EU institutions to respect certain rules/values.
Set out programmes for legislation.
, New Forms of Governance – ‘Soft Law’
Member States’ objections to ‘hard law’ (regulations and directives), and a
preference for non-binding ‘soft law’.
Open Method of Co-ordination (OMC):
Recognised as working method since 2000 and applied to
employment strategy and various social policies – e.g. parental leave
directive.
Informal, sharing (good) practices, consensus, guidelines for common action
etc.
Development of convergence by learning from others’ experiences.
But – problems of accountability, predictability, implementation.
Legislative Processes
There is more than one EU decision-making/legislative procedure.
Art 289 TFEU highlights these.
The Ordinary Legislative Procedure (OLP) (used to be called ‘co-decision’) is now the
default system.
The most democratically, legitimate law-making procedure, bringing together
both the Council, representing Member States interests, and the Parliament,
representing mostly individual citizens’ interests.
Other ‘special procedures’ (i.e. consultation and consent) still exist.
Consultation procedure.
Consent procedure.
Why Do the Different Processes Matter?
Which institutions participate (Parliament, Council, Commission) and what type of
vote (Unanimity/QMV) is required.
Different procedures give different institutions a different role.
OLP gives the Council and Parliament a stronger role, while the other
procedures give them a weaker role.
Disputes over which one is the ‘right’ one under the Treaties (institutional ‘turf
wars’).
The OLP (pre-Lisbon co-decision) was extended by Lisbon to new policy areas.
Response to the criticism of ‘democratic deficit’ in the EU and entails more
democratic involvement of the European Parliament/peoples of Europe.
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