The EU's core objective of achieving European unification is based exclusively on the rule of law. EU law is an independent legal system which takes precedence over national legal provisions. A number of key players are involved in the process of implementing, monitoring and further developing this legal system for which a variety of procedures apply. In general, EU law is composed of three different - but interdependent - types of legislation:
Primary legislation includes in particular the Treaties and other agreements having similar status. Primary legislation is agreed by direct negotiation between Member State 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 Treaty of Nice (2001), which entered into force on 1 February 2004, and the Treaty of Lisbon (2007) which entered into force on 1 December 2009.
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 is based on the Treaties and implies a variety of procedures defined in different articles there of. In the framework of the Treaties establishing the European Communities, Community law may take 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 the national authorities the choice of form and means to be used. 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. Thus, 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.
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.
Decision making in the EU
Various possibilities exist for making decisions in the European Union:
The most common procedure for voting legislative texts is the co-decision procedure. Due to the entry into force of the Lisbon Treaty, the number of areas where the EU can act with this procedure increased and applies to a widespread range of policies where the Council votes with a qualified majority.
The co-decision procedure takes place in the following way:
- The European Commission presents a legislative proposal.
- The European Parliament gives a first opinion. The European Parliament gives its opinion on the proposal, by simple majority vote, on the basis of a report prepared by one of its parliamentary commissions. The Commission may modify its proposal to take into account the parliamentary amendments.
- The Council of the EU gives a first opinion. If the Council approves all of the European Parliament's amendments, orif the Parliament has not proposed any amendment, the act may be adopted. Otherwise, the Council adopts a "common position" in accordance with the qualified majority rules (except in certain cases such as the free movement ofpeople or culture, where a unanimous vote is required). The Commission gives its opinion on this common position.
- The European Parliament gives a second opinion.
- the European Parliament accepts the common position of the Council and the act is adopted;
- the European Parliament amends the common position, which then returns to the Council;
- the European Parliament rejects the common position and the proposal is not adopted.
- The Council of the EU gives a second opinion.
The Council gives an opinion on the Parliament's amendments, which were previously submitted to the Commission's opinion. If it approves them, the act is adopted; otherwise, the Conciliation committee is convened.
If a disagreement persists, the act is studied by a conciliation committee. The conciliation committee gathers together the members of the Council and Parliament, in the presence of the Commission. If it reaches a compromise, the act is submitted to the Parliament and the Council for approval. Otherwise, it is abandoned.
An act is adopted when the Council and the Parliament have accepted it in the same terms. It enters into force upon its publication in the Official Journal of the European Union.
If it is a regulation, it applies immediately to all Member States.
If it is a directive, the Member States have a period in which to include it in their national legal system.
Depending on the sectors, the Committee of the Regions and the European Economic and Social Committee must be consulted and give their opinion on the legislative proposal.
Legislative power of the European Parliament
The legislative power of the European Parliament is used in accordance with four different procedures, depending on the type of proposal in question:
- Simple consultation: it gives a consultative opinion, but this opinion is not legally binding;
- Co-decision procedure: if the Council has not taken into consideration the Parliament's position in its common position, the latter may prevent the proposal from being adopted. The Amsterdam Treaty has extended this procedure to around forty cases and simplified the procedure in order to make it more efficient; the Lisbon Treaty extended the scope of legislation which are to be adopted following this procedure.
- Assent: in this case, theParliament's opinion is legally binding and must therefore be respected; this is especially the case for the signature of partnership agreements with non-EU countries and for the membership of new states.
There is also a cooperation procedure: when the Parliament's first opinion has not been taken into account in the Council's common position, the Parliament may reject the proposal on its second reading. The Council may then only override the Parliament's position with a unanimous vote. This procedure has become exceptional since the implementation of the Amsterdam Treaty and now applies exclusively to the sector of the Economic and Monetary Union.
The control mechanism of the application of the principle of subsidiarity will be established. National parliaments will be able to act directly as "watchdogs". It is intended that proposals for legislation for the European Parliament and the EU Council will be checked by the national parliaments that will have a say whether the proposal for legislation does not contradict the principle of subsidiarity, which is foreseen to ensure that a decision to adopt legislation at the EU level is reasoned.
New competences with the Lisbon Treaty
The Treaty redefines which issues will be solved at the EU level and which at national level of member states. The Treaty of Lisbon classifies three competences of the EU and member states:
Exclusive competence: only the EU has the exclusive competence to adopt legislative acts in the areas of the establishing of the competition rules necessary for the functioning of the internal market, monetary policy (for the member states whose currency is the Euro),common commercial policy, the customs union, the conservation of marinebiological resources and the conclusion of certain international agreements (e.g., in the area of trade policy).
Shared competence: not the EU, but the member states have a competence to legislate in these areas: the internal market, freedom,security and justice, agriculture and fisheries, excluding the conservation of marine biological resources, transport and the trans-European networks, energy, economic, social and territorial cohesion, environment, consumer protection, common safety concerns in public health matters, science, technology development and space, developmental cooperation and humanitarian aid.
Supporting competence: the EU is allowed to carry out actions to support, coordinate or supplement the actions of the member states. The competencies, which are not shared with the EU, belong to the member states. Shared competences cover industry, protection and improvement of human health, education, vocational training, youth andsport, culture and civil protection.