European Union legislative procedure
The European Union adopts legislation through a variety of procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the European Commission and approved by the Council of the European Union and European Parliament to become law.
Over the years the power of the European Parliament within the legislative process has been greatly increased from being limited to giving its non-binding opinion or excluded from the legislative process altogether, to participating with the Council in the legislative process.
The power to amend the Treaties of the European Union, sometimes referred to as the Union's primary law, or even as its de facto constitution, is reserved to the member states and must be ratified by them in accordance with their respective constitutional requirements. An exception to this are so-called passerelle clauses in which the legislative procedure used for a certain policy area can be changed without formally amending the treaties.
Participants
Since December 2009, after the Lisbon Treaty came into force, three EU institutions have been the main participants in the legislative process: the European Parliament, the Council of the European Union and the European Commission, with the national parliaments of the EU playing a further role. The legislative and budgetary functions of the union are jointly exercised by the Parliament and the Council, which are referred to as the Union legislator in a protocol to the EU treaties.The precise nature of this organisation has been discussed extensively in academic literature, with some categorising the European Union as bicameral or tricameral, though the European Union itself has not accepted such categorisation and it is generally considered to be sui generis by observers, given the unique dynamics between the legislative bodies not found in traditional tricameralism.
European Commission
The Commission has a virtual monopoly on the introduction of legislation into the legislative process, a power which gives the Commission considerable influence as an agenda setter for the EU as a whole. And while the Commission frequently introduces legislation at the behest of the Council or upon the suggestion of Parliament, what form any legislative proposals introduced take is up to the Commission.Under the ordinary legislative procedure, the negative opinion from the Commission also forces the Council to vote by unanimity rather than majority except when a conciliation committee has been set up. There are also limited instances where the Commission can adopt legislation without the approval of other bodies.
European Parliament
The European Parliament's 720 members are directly elected every five years by universal suffrage. It organises itself as a normal multi-party parliament in conducting most of its work in its committees and sitting in political groupings rather than national delegations. However, its political groups are very weak due to their status as broad ideological groups of existing national parties.The Parliament's powers have grown considerably since the 1950s as new legislative procedures granted more equality between Parliament and Council. It has also become a requirement that the composition of the European Commission be subject to a vote of approval as a whole by the Parliament. However, the choice of candidates remains the jurisdiction of the Council of the European Union, and the European Commission retains the sole power of legislative initiative. Taken into account that the Commission are the antagonists of the parliament in the system of separation of powers this is considered a democratic deficit.
Council of the European Union
The Council of the EU represents the national governments of member states, and hence its composition is essentially the number of member states though votes are weighted according to the population of each state. As such, it does not sit according to political groups and rather than conducting most of its work in committees, much of its work is done by its preparatory bodies.National parliaments
The national parliaments of EU member states have an "early warning mechanism" whereby if one third raise an objection – a "yellow card" – on the basis that the principle of subsidiarity has been violated, then the proposal must be reviewed. If a majority do so – an "orange card" – then the Council or Parliament can vote it down immediately. If the logistical problems of putting this into practice are overcome, then the power of the national parliaments could be decried as an extra legislature, without a common debate or physical location: dubbed by EU Observer a "virtual third chamber".Ordinary legislative procedure
The ordinary legislative procedure is the main legislative procedure by which directives and regulations are adopted. It was formerly known as the codecision procedure, and is sometimes referred to as the 'community method' as a contrast to the 'intergovernmental methods' which can variously refer to the consultation procedure or to the open method of co-ordination.Article 294 TFEU outlines the ordinary legislative procedure in the following manner. The Commission submits a legislative proposal to the Parliament and Council. At the first reading Parliament adopts its position. If the Council approves the Parliament's wording then the act is adopted. If not, it shall adopt its own position and pass it back to Parliament with explanations. The Commission also informs Parliament of its position on the matter. At the second reading, the act is adopted if Parliament approves the Council's text or fails to take a decision. The Parliament may reject the Council's text, leading to a failure of the law, or modify it and pass it back to the Council. The Commission gives its opinion once more. Where the Commission has rejected amendments in its opinion, the Council must act unanimously rather than by majority.
If, within three months of receiving Parliament's new text, the Council approves it, then it is adopted. If it does not, the Council President, with the agreement of the Parliament President, convenes the Conciliation Committee composed of the Council and an equal number of MEPs. The committee draws up a joint text on the basis of the two positions. If within six weeks it fails to agree on a common text, then the act has failed. If it succeeds and the committee approves the text, then the Council and Parliament must then approve said text. If either fails to do so, the act is not adopted.
The procedure was introduced with the Maastricht Treaty as the codecision procedure and was initially intended to replace the Cooperation procedure. The codecision procedure was amended by the Treaty of Amsterdam and the number of legal bases where the procedure applies was greatly increased by both the latter treaty and the Treaty of Nice. It was renamed the ordinary legislative procedure and extended to nearly all areas such as agriculture, fisheries, transport, structural funds, the entire budget and the former third pillar by the Treaty of Lisbon.
Trilogue
The trilogue is an informal type of meeting used in the EU's ordinary legislative procedure. It involves representatives of the European Parliament, the Council of the EU and the European Commission. The trilogues are equally tripartite meetings, although the EC operates as a mediator between the EP and the Council.The trilogue negotiations aim at bringing the three institutions to an agreement, to fast-track the ordinary legislative procedure. The expression "formal trilogue" is sometimes used to describe meetings of the Conciliation Committee, which take place between the second and the third reading of a legislative proposal. However, the term trilogue is mostly referred to interinstitutional informal negotiations that can take place in any stage of the ordinary legislative procedure, from the first stage to the stage of the formal conciliation procedure. The agreements reached in trilogues still need to be approved through the formal procedures of each of the three institutions. Trilogues have been "formalised" in 2007 in a joint declaration of the EP, the Council and the EC but they are not regulated by primary legislation.
The evolution of the European integration process, together with the evolution of EP's role as co-legislator have produced an increase in the number of the trilogue meetings. During 2009–2014 legislative term, when the Treaty of Lisbon came into force and the co-decision procedure became ordinary legislative procedure – establishing the role of the EP and the Council of the EU as co-legislators – 85% of legislative acts were approved in first reading, 13% were approved in second reading while only 2% were included in the conciliation procedure. This trend corresponds to an increase in the number of trilogues and it is seen as a proof of the effectiveness of the trilogues in fast tracking the legislative procedure.
The principal tool used in trilogues is the four column document, a working sheet divided in four sections, each of them comprising the positions of the three EU institutions. The first column is dedicated to the position of the EC, the second one to the position of the EP, the third one to the position of the Council. The fourth and final column is left to the compromised text that is meant to emerge. However, although the first two positions are public, the other two have often textual elements that have not been adopted and the content of the fourth column remains inaccessible to public.
Trilogues have been criticised for a lack of transparency and democratic legitimacy.
The European Ombudsman, the EU body responsible of investigating complaints about poor administration by EU institutions and other bodies, in 2015 has launched a strategic inquiry to establish the need for a reform of the trilogue, setting out proposals for more transparency.