The European Union adopts legislation through various procedures depending on the policy areas. Commonly, the European Commission submits a legislative proposal to the European Parliament and the Council of the European Union. This is known as the Ordinary Legislative Procedure. Typically, the Right of Initiative (the right to propose new laws) remains with the Commission. However, the European Parliament and the Council could provide suggestions for certain laws to be created. The Commission starts a consultation process whereby they gather information on the policy area in question. Once this process has ended, the college of commissioners adopts the proposal and sends it the European Parliament, the Council, and all national governments.
The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.
Article 289(1) Treaty on the Functioning of the European Union
Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.
Article 17(2) Treaty on the European Union
If, at this stage, the Council and the European Parliament agree on the proposal then it is passed. However, if the European Parliament does not agree with all of the terms, they are free to make amendments and send it to the Council who can then accept, pass, or amend it. This is then sent back to the European Parliament. This process can occur once again and if there are still no agreements, the Council and Parliament can decide on a new version of the proposal. However, no amendments can be made to this new version; it must simply be accepted or rejected.
On the role of the national governments
National Parliaments can be involved in the legislative process of the EU. Their role is to make sure that the Principle of Subsidiarity is being respected. This means that the EU cannot pass laws that infringe upon a national government’s legislative power. If a third of the National Parliaments object to the proposal, it receives a Yellow Card. In this case, the proposal must be reviewed. The Commission may choose to maintain, amend or withdraw the proposal. If half of the National Parliaments object, then the proposal receives an Orange Card. Here, a similar process of review occurs. However, if the Commission decides to keep the proposal, they must provide an explanation for their decision. This explanation is then considered by the European Parliament and the Council who decide whether they agree with the Commission or with national governments.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
Article 5(3) Treaty on the European Union
Special legislative procedures
In certain policy areas, special legislative procedures need to be used in order to adopt legislation. While there are various processes in this area, two are of note. In the Consultation Procedure the Council can adopt legislation proposed by the European Commission with consultation from the European Parliament. In this case, the Council votes using either unanimous decision or by a qualified majority based on the policy area concerned. Although consultation with the European Parliament is necessary, the Council is not bound by their decision. In fact, the Council usually ignores the European Parliament’s suggestion. In some cases they even come to a consensus before receiving the European Parliament’s input. As the European Court of Justice has made it necessary for the Council to wait on the opinion of the European Parliament, the latter have often stalled the process in regards to policies that they did not agree with.
In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.
Article 289(2) Treaty on the Functioning of the European Union
The Consent Procedure requires the Council to adopt legislation based on a proposal by the Commission after consent has been obtained from the European Parliament. Under certain circumstances the Council can act alone and pass laws proposed by the Commission and in certain limited areas the Commission, alone, can adopt legislation.
Types of legislation
Regulations set out a goal and outlines how to achieve this goal. Once a regulation comes into effect, it is binding upon everyone. It supersedes existing national laws.
Directives set out a goal but does not outline how to achieve this goal. Therefore it is up to Member States to decide how to implement the goals into their respect national laws. As a result, the Member States have a common goal but different laws attempting to achieve this goal.
Decisions are laws that pertain to those it is addressed to. Therefore it is not binding on all Member States. Decisions could address Member States, companies, or individuals.