chapter summary of the book, Sintesi del corso di Politiche dell'Unione Europea

Scarica chapter summary of the book e più Sintesi del corso in PDF di Politiche dell'Unione Europea solo su Docsity! EU POLITICS AND POLICIES IN THE CONTEMPORARY WORLD - B026821 IV. Legislation and decision- making: putting the institutional puzzle together I. TYPES OF DECISIONS IN THE EU Legal Instruments in the EU: - Most decisions in the EU are taken as one of the four basic instruments that are defined in the Treaty on the Functioning of the European Union. They form the legal tool kit the EU can make use of. Each serves a different purpose. The Treaty on the Functioning of the European Union determines which instrument(s) can be used for which issues. - Regulations and Directives, constitute the EU’s legislative acts. They are used to lay down general and binding norms. Decisions concern individual cases. . Recommendations and Opinions, finally, contain non-binding norms. - In some areas all types of instruments are available, for instance when it comes to the establishment of the internal market, a core task of the EU. In other areas, some instruments cannot be used. For instance, in the field of social policy the EU can adopt Directives, but not Regulations. For some specific issues in this policy area, including ‘combating social exclusion’ and ‘the modernisation of social protection systems’, no EU legislation is allowed at all. Social policy is, politically speaking, a sensitive area, in which member state governments have been reluctant to cede power to the EU. This explains why the use of Regulations, which have a direct impact within the member states, is precluded. It also explains why in the most sensitive areas of social policy (i.e. those relating to poverty and social protection) the EU cannot adopt any (binding) legislation at all. - When no binding decisions are allowed, recourse can be had to non-binding instruments, such as Recommendations and Opinions. These instruments also appear under other names. For example, in the field of economic policies, the Council can adopt ‘broad guidelines’, which are formally adopted as a Recommendation. Regulations and Directives: The difference between the two relates to the way they become operational within the legal systems of the member states. Over time, the formal distinction between Regulations and Directives has become blurred as Directives are often so detailed and specific that they leave little room for variation between member states. A Regulation is a type of EU legislation that is directly applicable in all member states. This means that a Regulation automatically has force of law within the EU, without the need for any further activity on the part of member state governments. A Directive is a type of EU legislation that needs to be transposed into national law by the member state governments. When a Directive is adopted, each of the EU member states needs to adopt a (domestic) law that conforms to that Directive. This is what is meant by the phrase that a Directive is ‘binding as to the result to be achieved’ but that it ‘leave[s] to the national authorities the choice of form and methods’. Hence, a Directive needs to be ‘transposed’ by the member states, whereas a Regulation does not. Each Directive itself specifies the date before which transposition needs to have taken place. The reason for the distinction between Regulations and Directives is that they can be used for different purposes. Regulations lay down a single set of standards for the entire European Union that comes into force simultaneously in all member states. As a result, it is particularly suited for situations in which EU policy-makers want to create a fixed legal framework without differentiation between member states. This is why REACH, which regulates the marketing of (potentially dangerous) chemicals, is a Regulation. Because Directives need to be transposed, they allow for variation between member states. By laying down a set of more general common European norms and leaving the specification of those norms to the member states, it is possible to achieve a degree of convergence among the member states while allowing at the same time for adaptations to national circumstances. This is useful because there are vast differences between member states in terms of natural conditions, legal systems, cultures and social conditions. It is also a way to overcome political disagreements. In many cases, it is not possible to agree upon a ‘one size fits all’ approach for the entire EU. Directives provide for a degree of flexibility in this regard that may allow member states with diverging ideas and interests to at least agree upon a common set of standards. Other Types of Instruments: Although Regulations, Directives, Decisions, Opinions and Recommendations are the main types of legal instruments in the EU, they cannot be used in all circumstances. Some areas have their own legal instruments, which differ from the four main ones. The best example is the EU’s Common Foreign and Security Policy (CFSP), in which member states cooperate on issues of foreign policy. Article 25 of the Treaty on European Union defines a different set of instruments for use only in the CFSP. Apart from ‘general guidelines’, the EU can adopt ‘decisions’, which may define ‘actions to be undertaken by the Union’, ‘positions to be taken by the Union’, and ‘arrangements for the implementation’ of those actions and positions. One difference is that the CFSP instruments only have legal effects between the member states and not within the member states. Furthermore, unlike Regulations, Directives and ‘regular’ decisions, the Court of Justice (CJ) does not have the competence to review CFSP deci- sions. This guarantees that the interpretation of CFSP decisions remains a matter for member state governments and cannot be imposed on them by the CJ. The procedure: Commission proposal and advisory bodies: The ordinary legislative procedure starts with a proposal from the European Commission. In this procedure, the Commission is the only actor that can make a formal proposal. The only exception to this rule applies to proposals relating to judicial cooperation in criminal matters or police cooperation, which can be initiated either by the Commission or by at least a quarter of the member states, even when the ordinary legislative procedure is used to adopt the proposal. -> Once the proposal is released, it goes to the European Parliament and the Council of Ministers. In some cases, the proposal also needs to go to the European Economic and Social Committee (EESC) and/or the Committee of the Regions (CoR). This is not a general feature of the ordinary legislative procedure, but depends on the issue at stake. If that issue relates to the remit of the EESC and/or CoR, the Commission is required to consult one or both of these bodies. For each issue area, this has been specified in the Treaty on the Functioning of the European Union. -> After it is released, the Commission proposal is also sent to member state parliaments for a ‘subsidiarity check’. Within eight weeks, national parliaments can raise objections if they believe the proposal violates the subsidiarity principle. 1st Reading: - The 1st reading in the European Parliament adopts a so-called ‘opinion’. In order to do so, the proposal is assigned to one of the EP’s parliamentary committees. If a proposal touches upon the remit of several committees, it is debated in each but one committee is assigned as the main responsible committee. Within the responsible committee, one MEP is assigned the task of drafting that opinion. This MEP is called the ‘rapporteur’. It is his or her task to chart political sensitivities and come up with a compromise text that a majority of the EP will support. The EP’s opinion can be: 1. agree with the Commission proposal without amendments; 2. disagree with the Commission proposal without amendments; 3. agree with the Commission proposal but include amendments. In case the EP adopts an opinion that includes amendments, the EP does not simply vote on the rapporteur’s full text but needs to approve each proposed amendment separately. The number of amendments in the EP opinion depends on the extensiveness and controversiality of the proposal. In the first reading, the EP decides on its opinion with a ‘simple majority’, that is, a majority of the members that cast a vote. If some or many MEPs are absent from the vote, the simple majority may be less than a majority of all elected MEPs. After the EP has adopted its opinion, the European Commission may change its proposal to include some or all of the EP’s amendments, but this need not happen. - The 1st reading in the Council: The council can either 1. approve the EP’s opinion including all amendments, if the EP has included any in its opinion. In that case, the proposal as amended by the EP is adopted as the final legislative act, and the procedure ends here. OR 2. The Council does not agree fully with the EP opinion, it can adopt a so-called ‘common position’, which may or may not include some of the EP’s amendments. In addition, the Council can include its own amendments. Because in this case the Council’s common position and EP’s opinion are not identical, the procedure then goes to the second reading. The European Commission plays a crucial role in determining the voting rule that applies within the Council. The Council can adopt the Commission proposal with a qualified majority, which roughly conforms to a majority of at least 55% of all member states representing 65% of the EU population. If the Commission has changed its proposal after the EP opinion to include some or all of the EP’s amendments, those amendments can also be adopted in the Council by qualified majority. However, if the Council wants to adopt EP amendments that have not been included in the modified Commission proposal, it can only do so by unanimity (that is, with the consent of all its members). Likewise, the Council’s common position is adopted with a qualified majority of votes in the Council but if it contains amendments that are not included in the Commission proposal, those amendments require unanimity. In this way, the Commission can increase the threshold for the adoption of amendments that it does not agree to. 2nd Reading: - If the EP and the Council do not agree on an identical text in the first read- ing, the proposal goes to the second reading. In principle the second reading follows the same course as the first reading, with the proposal first going to the EP and then to the Council and the Commission intervening to declare amendments either acceptable or not acceptable. - In the first reading, no time limits apply. The EP and the Council can take as long as they like to reach their decisions. In the second reading, time limits apply to both institutions. After receiving the Council’s com- mon position in first reading, the EP has three months to decide. If not, the Council’s common position will become law. Similarly, the Council has three months to decide after receiving the EP’s amendments in second reading. This time limit can be extended by one month, but no more. - In the second reading, the European Parliament cannot adopt completely new amendments. Rather, it can only adopt amendments that (1) were already adopted by the EP in the first reading but not included in the Council’s common position, (2) address elements in the Council’s com- mon position that did not appear in the Commission proposal (and there- fore were not discussed in the EP in the first reading) or (3) are aimed at reconciling differences of opinion between the EP and the Council. In this way, the EP is forced to make ‘constructive’ use of its right of amendment in the second reading. - The voting rule in the EP is different in the second than in the first read- ing. Whereas in the first reading a simple majority is sufficient to adopt the opinion including amendments, the EP needs an absolute majority (that is, a majority of all its elected members, not just those present at the vote) to adopt amendments in the second reading or to reject the proposal altogether. This raises the threshold for making changes to the proposal or rejecting it. The 2nd reading in the EP: After the adoption of the Council’s common position, it is up to the EP to make a move again. The starting point for EP deliberations in the second reading is no longer the Commission proposal, but the Council’s common position from the first reading. It can do three things with that common position: 1. Adopt the Council’s common position from the first reading as it is. For this, a simple majority suffices. Then the legislative act is adopted accord- ing to the common position. It is also the outcome if the EP fails to take a decision in the second reading within the specified time limit.; 2. Reject the Council’s common position. For this, an absolute majority is needed. Then, the process ends without a legislative act being adopted; 3. Adopt amendments to the Council’s common position, whereby the restrictions outlined above apply. The 2nd reading in the Commission: If the EP has adopted amendments in the second reading, the Commission presents an opinion in which it declares for each amendment whether it finds that amendment acceptable or unacceptable. This opinion is import- ant for decision-making in the Council. If an amendment is acceptable to the Commission, the Council can adopt it with a qualified majority, but if it is not acceptable to the Commission the Council needs unanimity to adopt it. The logic behind this is similar to the role of the Commission in the first reading, where it could raise the bar for EP amendments by not including them in its modified proposal. The 2nd reading in the Council: 1. It approves all of the EP’s amendments, either with qualified majority or by unanimity, depending on the Commission’s position. In that case, the legislative act is adopted with all of the EP’s amendments in the second reading. OR 2. It does not approve all of the EP’s amendments. In that case, the procedure goes to the third reading. 3rd Reading: - Conciliation. If the EP and the Council do not agree to the same amendments in the second reading, a special mechanism applies, called ‘conciliation’. The idea behind conciliation is that representatives of the EP and the Council, together with representatives of the European Commission, meet in a conciliation committee. The task of the conciliation committee is to formulate a compromise text that reconciles the differences of opinion between the institutions. - This compromise text then goes back to the EP and the Council for a simple ‘up and down vote’ in a third reading. This means that both institutions only have the options of either adopting or rejecting the compromise text. They cannot make any new amendments. In so doing, the EP decides by simple majority and the Council by qualified majority. If both institutions adopt the compromise text that has come out of reconciliation, that text becomes law. If one or both of the institutions rejects the compromise text, the procedure ends without a legislative act. - Strict deadlines apply to the conciliation procedure. The conciliation committee needs to be convened within six weeks after the Council has come to its decision in the second reading. Subsequently, the conciliation committee has six weeks to propose a compromise text. The Council and the EP have six weeks to adopt that text. Each of these deadlines can be extended by two weeks at most. If one of these deadlines is not met, the proposal is deemed to have been rejected. The Informal Process: These steps prescribe a clear sequence of activities: first the Commission releases a proposal, then the EP moves, then the Council, then the Commission again, etc. In reality, decision-making does not follow this neat separation of steps and roles. Within the limits set by the formal procedure, the three institutions also act and interact in ways that do not follow directly from the formal procedure (although they are sometimes laid down in interinstitutional agreements between them - a binding agreement between the Commission, the Council and/or the EP, in which the institutions define arrangements for their cooperation). How qualified majority works: The old regime of qualified majority voting allocates a total of 345 votes to the member states. It then requires a triple majority in order to obtain a qualified majority: 1. A minimum of 255 out of the 345 votes (74%); 2. A simple majority of member states (currently 14 out of 27). 3. Those member states need to represent at least 62% of the EU population. In the Treaty of Lisbon, a new and less demanding regime was adopted. Under this regime, a qualified majority is reached if three conditions are met: 1. A proposal is supported by 55% of the member states; 2. The majority represents at least 65% of the EU population; 3. A decision can only be blocked by a group of at least four member states. This delay in application of the new rules was necessary to make the change acceptable to member states that stood to lose from the change. At the same time, while the relative voting power of member states on the basis of their populations changes, the need to obtain at least 55% of the member states still protects smaller member states from being overruled by the larger countries, as does the rule that a ‘blocking minority’ needs to consist of at least four member states. Voting and consensus: In about 90% of the Council decisions no formal vote is taken. The President summarises the proposal and asks whether the decision can be considered adopted. If no member state objects, the adoption of the proposal is recorded. - An important reason for the high degree of consensual decision-making is that member states will in the end very often have to implement decisions, for example when a Regulation or a Directive has been adopted. Doing this might be more difficult for a government if it were to come out that in fact it had opposed the decision in the Council. Hence, if member states know that they will lose a vote, they rather accept the decision and will not call for a formal vote. - Another reason for the lack of open voting is the ‘consensus culture’ that permeates the Council. Even when a qualified majority is reached and a decision can be taken, the member states in the majority will try to accommodate reasonable demands by the member states in the opposing minority. Only when a member state refuses to accept a compromise will it be outvoted by the others. Still, the bargaining position of member states is largely determined by their capability to contribute to a blocking minority. In that sense, the distribution of votes always plays a role in the background of negotiations in the Council, even if in the end a proposal is adopted without a formal vote. VI. MEMBER STATE PARLIAMENTS AND THE SUBSIDIARITY CHECK The Treaty of Lisbon has now introduced a procedure that would give national parliaments the opportunity to signal discontent with a legislative proposal before it is discussed by the Council and/or the EP. After receiving a proposal, each national parliament has eight weeks to submit a ‘reasoned opinion’ in which it explains why it believes the proposal violates the EU’s subsidiarity principle. - The subsidiarity principle states that the EU is only allowed to act if the objectives of that action can be better reached at EU level than at member state level. Depending on the number of parliaments objecting to a proposal and the applicable legislative procedure, two things can happen: 1. The yellow card procedure: the national parliaments give a warning to the EU legislators that they are about to violate the subsidiarity principle. If at least one-third of all parliaments considers the proposal to violate the subsidiarity principle, the institution or group of member states that initiated the proposal must review it. If the proposal relates to issues of judicial cooperation in criminal matters or police cooperation, this should already happen if a quarter of all parliaments object. The outcome of the review is not predetermined: the initiator of the proposal may withdraw it, amend it or maintain it, but is required to explain that decision. 2. The orange card procedure, more demanding bur still does not allow national parliaments to force the withdrawal of an EU proposal (which would be a “red card’). Under the ordinary legislative procedure, if more than half of all national parliaments raise objections, a more elaborate procedure is put in motion. Again, the Commission needs to review the proposal and may decide to withdraw, modify or maintain it, explaining its decision in a reasoned opinion. Subsequently, the Council and the EP are required to consider the reasoned opinions of both the national parliaments and the Commission with a view to determining the compatibility of the proposal with the subsidiarity principle. This needs to be done before the end of the first reading. If 55% of the member states in the Council or a simple majority in the European Parliament finds that the proposal violates the subsidiarity principle, it is withdrawn. On the one hand, national parliaments cannot force any deci- sion on the part of EU decision- makers. Moreover, reaching the one-third (or even one-quarter) threshold within eight weeks of a proposal’s release will often prove difficult. On the other hand, the political impact if (a large minority of) national parliaments openly object to an EU proposal should not be underestimated. If the concerns of the national parliaments are not accommodated in the yellow/orange card procedure, the objecting parliaments are likely to use the leverage they have over their member state’s ministers to force a blockade in the Council. Which way the procedure goes – ineffective symbolism or potent political force – will be determined in the coming years. VII. THE OPEN METHOD OF COORDINATION (OMC) It was introduced in March 2000 as part of the Lisbon Strategy and was meant to bring about a degree of policy coordination in social-economic policies. In areas where member states are reluctant to accept binding legislation, because of cultural concerns (education) and/or the high budgetary stakes involved (economic policy, health), the OMC offers a way to discuss policies without actually being forced to change anything. The Open Method of Coordination is a mechanism which aims at convergence of member state policies through a process of benchmarking and policy learning. The OMC have been applied to a range of other policy areas, such as pensions, health care and education. The outcome of the OMC is non-binding. It is entirely up to the member state governments to decide what to do with this benchmarking exercise, and there are no penalties for those member states that perform badly. The idea is that ‘peer pressure’ (being exposed as an underachiever in the presence of one’s colleagues from other member states) will form an incentive to perform better. The OMC is largely driven by the member states themselves, assembled in the Council. It is the Council that determines the objectives and indicators, and it is in the Council that the results of the benchmarking exercise are dis- cussed. Nevertheless, the Commission does play a role, since it monitors the performance of member states and draws up the reports that are discussed in the Council. This fitted into the stated objective of the Lisbon Strategy to reinvigorate the European economy and make the EU the most competitive economy by the year 2010. In this area, member states did not want to be bound by EU legislation. At the same time, they acknowledged that the economic ambitions of the Lisbon Strategy required some kind of coordination of economic policies. The OMC was invented to fill that gap by creating an institutionalised ‘learn- ing process’ between member states. OMC works in four steps: The Council determines the objectives to be achieved in an area. -> Indicators are established for measuring the attainment of those objectives. -> Each member state formulates an action plan for reaching the objectives. -> Based on those indicators, the performance of each member state is ‘benchmarked’ (that is, it is assessed and compared to the performance of other member states).