DECISION-MAKING IN THE EUROPEAN UNION AFTER AMSTERDAM

DECISION-MAKING IN THE EUROPEAN UNION AFTER AMSTERDAM

1 THE DIFFERENT KINDS OF EUROPEAN UNION LAW 

There are three different kinds of law in the European Union (EU):

i. Primary legislation, i.e. the Treaties (see Annex 1) and other agreements possessing similar status;

ii. Secondary legislation, i.e. the regulations, directives, decisions, recommendations and opinions based upon the Treaties (see below);

iii. Case law, i.e. judgements of the European Court of Justice and of the Court of First Instance.

Collectively they are known as the Acquis communautaire .

Primary legislation is agreed on the basis of direct negotiations between Member States' governments. Such agreements are drawn up in the form of treaties which are subject to ratification in national parliaments (but not by the European Parliament!). The same is true of any subsequent amendments to them. In some Member States, recourse may be had to a referendum.

THE TREATIES

The European Union is based upon and governed in accordance with a number of Treaties between the Member States. These Treaties are the most fundamental part of the acquis communautaire and in every case have been the subject of (sometimes prolonged) negotiations leading to unanimous agreement amongst governments and ratification by national parliaments and, in some cases, by referendum too. The Treaties not only serve as the Unions constitution but are also prescriptive in that several of them set objectives for the future, usually accompanied by a deadline and sometimes by a precise timetable. Most of the Treaties contain provision for their own amendment and, with one exception, were concluded for an unlimited period. In common with the rest of the acquis communautaire, the Treaties must be accepted in their entirety by states wishing to join the Union.

The table below lists the main Treaties and Acts in chronological order, together with the date of entry into force and a brief summary, where relevant, of how each relates to the others. The first three Treaties, establishing three legally distinct Communities are sometimes referred to as the founding Treaties.

Acquis communautaire: a phrase used to cover all legislation in force including the Treaties in their entirety, all Directives, Regulations, Decisions, Trade and Association Agreements as well as the case law of the European Court of Justice and of the Court of First Instance.

Secondary legislation is drawn up using a variety of different procedures, depending upon the Treaty article chosen by the Commission as the legal base for the proposal in question.

Case law results from judgements of the European Court of Justice and of the Court of First Instance meeting Luxembourg, normally in response to referrals from national courts or as a result of actions brought by the Commission in its capacity as the guardian of the Treaties.

The different types of secondary legislation are:

i. Regulations: binding and directly applicable in all Member States without any implementing national legislation. Management of the day to day aspects of the Common Agricultural Policy, for example, is by means of regulations.

ii. Directives: binding on the Member States with respect to the result to be achieved and with respect to the deadline, but with the choice of method left to the Member States. Directives have to be implemented in national legislation in accordance with each Member State's own procedures. There can be a substantial delay between the approval of a directive in the Council of Ministers and its implementation in the national law of the Member States. Enforcement - by no means even - is normally the responsibility of the national authorities.

iii. Decisions: may be issued either by the Council or by the Commission and are binding upon those to whom they are addressed, normally a Member State or a commercial enterprise. No national implementing legislation is required.

iv. Recommendations and Opinions: have no binding effect, and may be issued either by the Council or by the Commission.

2 THE INSTITUTIONS

2.1 The European Council

At least twice a year, the Heads of State or Government meet as the European Council to provide the Union with overall direction and to reach decisions on the key issues. European Council meetings (sometimes known as Summits) are also attended by Member States' Foreign Ministers and by the President of the Commission and the President of the European Parliament. European Council agreements have no legislative force, but must first be turned into legislation on the basis of a proposal from the Commission in the normal way.

The European Council is an institution that stands over the three pillars of the EU, that links them together and that takes on a central leadership role. If the Council of Ministers has always been embodied in the European Treaty, the same does not apply for the European Council. The European Council was established as a result of the summit meetings involving Heads of State and Governments which have been taking place since 1969. These meetings used to take place at irregular intervals; a resolution passed at the Paris Summit Conference in 1974 made them a permanent fixture in the shape of the European Council, yet they were not embodied in the Treaty establishing the European Community. The European Council deals with the central issues effecting the EU, in particular those connected with European Political Cooperation (EPC) which is an institution founded in 1970 at intergovernmental level in an attempt to coordinate foreign policy. Because of its composition, the European Council developed into the highest decision-making authority - although this was not intended by the treaties.

Its role was made more explicit with the Single European Act (SEA) in 1986/87. The Treaty of Maastricht on European Union followed on from this, confirming the Council's function of driving forward European union as a whole and locking together the different policy areas. Article D of the Treaty establishing the European Union states: 'The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof'. This applies in particular for the guidelines concerning Common Foreign and Security Policy, with the Treaty of Amsterdam, which came into force on the 1st of May 1999, even providing for policy-making power over the Western European Union. The European Council is also regularly engaged when the ministers of departments in the Council of Ministers are unable to reach agreement and package deals which stretch across policy areas become necessary.

There is no doubt that the European Council as the European Union's dedicated body for reflecting the intergovernmental components of the Union has gained a great deal of influence over the past few decades. Indeed, following the introduction of the new constitution, which, since the 'No' votes from the referendums in France and the Netherlands, has failed for the time being, would have increased even more. Having said this, however, it would be wrong to conclude that there was a general trend in the EU towards more intergovernmentalism.

2.2 The Council of Ministers

The Council is composed of the Ministerial representatives of the Member States. Ministers of Agriculture attend Council meetings when agriculture is being discussed, Ministers of Transport when transport matters are on the agenda, and so on.

The Council, which has its own secretariat of EU civil servants, is the supreme legislative authority in the Union, although in an increasing number of areas its power is exercised jointly with the European Parliament. The Council takes decisions: by unanimity, by simple majority, by qualified majority, each Member State's vote being 'weighted' in accordance with its population.

Member States take turns to hold the Presidency of the Council for a period of six months. Council meetings are prepared by a Committee of Member States' Permanent Representatives (i.e. Ambassadors) known as COREPER.

Formally known as the Council of Ministers, the Council of the European Union is the central decision-making authority in the EC. The Council is responsible for passing laws proposed by the Commission and with the involvement of the European Parliament. This has been the Community's fundamental decision-making procedure from the very beginning. The relative weight of the three institutions involved, however, has changed. The capacity in which members attend Council meetings changes according to the policy area being discussed for example the European Community of Agricultural Ministers or Environmental Ministers might meet. Moreover, the respective member of the Commission is also present.

Work in the Council would take up a large proportion of the time available to ministers from member states. Given that they can only spend short periods in Brussels, they need support.
The Committee of Permanent Representatives of the EC (COREPER) in Brussels plays and important role here. It is made up of the permanent representatives from the member states in Brussels and their deputies and meets up on a weekly basis. This Committee is responsible for monitoring and coordinating the work of around 250 committees and working groups, which are staffed by civil servants from the member states. These, in turn, are responsible for preparing the dossiers for COREPER and the Council at a technical level. COREPER deals with most of the decision-making preparations as far as content is concerned.

The Council's Secretariat encompasses a staff of around 2,500 working in six departments. Its duties are primarily of an administrative nature, meaning that it is responsible for things such as preparing the agenda for work to done, drawing up reports, translation services, looking into legal questions etc. The illustration below offers an insight into the structure of the Council.
All decisions were initially taken using a system of unanimous voting because of the Luxemburg Compromise. Since the mid 1980s, however, and especially since the Treaty of Maastricht and the Treaty of Amsterdam there has been an increasing move towards qualified majority voting as the basis for decision making. This development has continued following the Treaty of Nice. That being said, however, the expansion of qualified majority voting goes hand-in-hand with a major obstacle to the ability to apply this procedure brought about by the triple majority rule (a qualified majority of weighted votes, a majority of states and a qualified majority of populations (62%), which was also set down in the Treaty of Nice. In addition to this, the European Parliament's powers of co-decision have been consistently expanded.

2.3 The European Commission

It is currently composed of 25 members (November 2005), who are proposed by the governments of the member states and appointed for a five-year term; it is now also subject to a vote of appointment by the European Parliament before it can be sworn in. The commissioners are not appointed as negotiators for their respective states, but are supposed to act completely independently in the best interests of the Community. They are supported by a staff of around 20,000 officials - less than some large cities! which is split up into 24 so-called directorates general (such as transport, agriculture, external relations, regional policy etc.) and nine services, which, in turn, are also split up into directorates and departments.

The Commission's main tasks can be summarized under four headings.

Right of initiative: Every decision taken by Council has to be based on a proposal from the Commission. The Commission's task is to act as an engine of integration drawing up proposals for the development of Community policy. This right and authority to determine the EU's agenda, to submit proposals at a particular juncture and to link differing initiatives together gives the Commission considerable influence in the legislative procedure.

Guardian of treaties: The Commission is responsible for monitoring the application of treaty provisions and decisions made by other EC institutions and can appeal to the European Court of Justice when violations are identified.

Executive authority for the implementation of Community policy: This includes the administration of finances as well as the implementation of EC policies. Of course, this does not mean that the Commission is responsible for making sure that the countless number of decrees and guidelines are implemented in individual member states. Bearing in mind the size of the Commission's staff, this would be an impossible task. No, this is carried out by the administrations in the member states or their regional sections. The main task of the Commission, then, is to monitor and supervise the actions being taken by the member states.

External representation: The Commission represents the EU at the GATT negotiations and international organisations; this sometimes takes place together with the member states and/or the respective presidents.

The most important characteristics of the Commission are: Its distinct differentiation at a functional level and the fact that it represents a multi-national bureaucracy using an extensive system of committees (commitology) within which very close cooperation takes place both with the administrations of member states and with national and European associations

Under the Maastricht Treaty, the Commission's term of office was extended to five years to coincide with the European Parliament's term. The appointment of the President and other members of the Commission is subject to the approval of the Parliament.

2.4 The European Parliament

The European Parliament (EP) is our first institution at a supranational level that carries a name familiar to us from national political systems.

While the EP might sound familiar, it is quite different from national parliaments. If the role played by and the powers available to the EP in the Community have changed constantly ever since the foundation of the ECSC, these changes have also steadily increased its influence within the EU. Important milestones in this regard have been the extension of its budget powers in (1975), the introduction of the first direct elections (1979), the introduction of the cooperation procedure (1986) and the introduction of the codecision procedure (1992), as well as considerable expansion of this codecision procedure into other areas of application since the Treaty of Amsterdam. Other changes have also been introduced with the Treaty of Nice. The role of the EP as a co-legislator together with the Council of Ministers were further expanded and strengthened.

EP is composed of cross-national parties, such as the European People's Party and European Democrats (EPP-ED), which with 279 MPs currently represents the most powerful grouping in the Parliament, and the Party of European Socialists (SPE/E) with 199 MPs. This illustration also shows you the number of MPs sent by each of the member states.

The Parliament's 20 standing committees are incredibly important for the work of the EP and its influence During their 5 years in office, those members of the European Parliament who are active in the committees are able to acquire a great deal of specialist knowledge. This specialist knowledge not only enables them to follow the work being carried out by the Directorates General, the Commission and the Council of Ministers, it also enables them to bring more influence to bear than the official description of their responsibilities would suggest. Another important aspect in this respect is their close cooperation with the respective Commission departments and with transnational and national associations.

The main characteristics of the EP can be summarized thus: The European Parliament is a multi-national chamber undergoing constant change; it features ideological - differing political groupings from across the member states - and national differences - nationality of the MPs from the individual member states. As with the other institutions addressed so far, the European Parliament also demonstrates significant functional differentiation. And, finally, the incredibly close links and intensive cooperation with the Commission, often against the Commission, should also be emphasized.

Making an assessment based on a comparison with national parliaments depends on how one looks at it. From a statistical point of view taken today, it can be said that the importance of the EP still lags behind that of national parliaments, but goes much further than anything found in parliamentary chambers or committees in international organisations. View the development of the European Parliament during the last two decades, however, and it is strikingly clear that its importance compared to the other institutions has grown enormously: Another important indication of the 'supranationalization' of the EC.

The Parliament and the Council constitute the Union's joint budgetary authority. The Parliament has to give its assent to any trade, co-operation, association or membership agreement concluded between the Union and a non-member country.

Under the Maastricht Treaty, the Parliament was given the right to set up committees of enquiry and to appoint an Ombudsman to investigate allegations of maladministration by the institutions of the Union.

2.5 The European Court of Justice

The European Court of Justice (ECJ), just like the European Parliament, sounds familiar to systems existing in national states. Indeed, its power of jurisdiction also corresponds to that often found in national democratic political systems. The ECJ is responsible for making sure Community law is upheld. It is responsible for ruling on legal disputes between member states, on disputes between the EU and member states, on disputes between EU institutions and authorities as well as on disputes between individual citizens and the Union. In addition to this, judges in member states can turn to the Court of Justice to rule on pending cases involving the interpretation of Community law.

There is also a Court of First Instance that exists alongside the Court of Justice. The Court of First Instance was established in 1989 to ease the Court of Justice's workload. Its jurisdiction includes direct actions from citizens and companies against the actions or failure of EU bodies to act, as well as action for damages against the EU.

Employment conflicts between the EU and its employees have been handled by the Civil Service Tribunal since the autumn of 2005. There are two ways of calling in the ECJ. The first is over the preliminary rulings procedure, which permits national courts to apply for an interpretation of certain aspects of Community law to help these national courts to reach a decision on a current case. The second way is over direct petitions.

But its actual influence only really becomes clear after taking a look at its work in individual areas. The European Court of Justice has been a major influencing factor in making the constitution of the EU more supranational by laying down rules such as the principle of direct effect - which means for every citizen without having to call in national states first - of EU law and the primacy of Community law over national law.

Moreover, the European Court of Justice has also had a large bearing on other areas of EU policy. For example, in a revolutionary ruling it established the principle of mutual recognition of standards in other member states, which put an end to the extremely slow and time-consuming process of harmonising standards and, in turn, went a long way to making the internal market project possible. One of the main reasons for the ECJ's influence came as a result of a clever, targeted and successful strategy to incorporate the national courts into the administration of EU justice.

Looking at this, it might be easy to get the impression that these landmark decisions were made in the past and that they can no longer be taken to reflect the influence of the ECJ today. A more recent judgement (November 2005), however, demonstrates that it would be quite wrong to get this impression. This judgement might lead to the Commission gaining influence in the area of criminal law and has led to heated discussions.

The European Court of Justice, consisting of 25 judges and 8 Advocates-General, is based in Luxembourg. So, it is responsible for arbitrating in disputes relating to the interpretation and application of the Treaties and of legislation based upon them. Its judgements are binding upon those to whom they are addressed and it has the power to levy fines on firms found to be in breach of Union law. Under the Maastricht Treaty, the Court also has the power to impose fines on Member States which fail to carry out their Treaty obligations.

2.6 The Court of First Instance

This Court was established by Article 11 of the 1987 Single European Act and first became operational in 1989. It consists of 25 judges, one from each Member State. There are no Advocates-General. It has jurisdiction over a number of fields but of particular importance to business are its powers in competition and intellectual property law and over the Commissions anti-dumping procedures.

2.7 The Court of Auditors

The Court of Auditors, composed of one Member from each Member State, is also based in Luxembourg. It is responsible for overseeing all expenditure from the Budget of the Union. Its findings are contained in an annual report submitted to the Council and the European Parliament. The Court, which has no power of sanction, may also undertake special investigations into particular sectors of the Budget.

2.8 The Economic and Social Committee (ECOSOC)

Set up in 1957 by the Treaty of Rome, members of ECOSOC appointed by the Council on the recommendation of Member States' governments and have a four-year term of office. ECOSOC consists of representatives of employers (Group 1), workers (Group 2) and various interest groups (Group 3). It covers areas such as agriculture and fisheries, industry and commerce, financial and monetary questions, social and cultural affairs, transport and communications, trade and development policy, nuclear questions and research, regional development, environment and consumer affairs. On its own initiative it can offer opinions on other subjects covered by the Treaties. The Treaty of Amsterdam allows the European Parliament to consult ECOSOC.

2.9 The Committee of the Regions

The Maastricht Treaty established a new European Union body, the Committee of the Regions, which is based in Brussels. Composed of representatives of regional and local bodies and appointed by the Council for a four-year term on a proposal from the Members States, the Committee has advisory status along the same lines and across broadly the same range of issues as the Economic and Social Committee. Its nationality composition is identical with that of the Economic and Social Committee

3 THE LEGISLATIVE PROCESS

Legislation may be adopted under the Consultation Procedure, the Co-operation Procedure or the Co-Decision Procedure. The choice of procedure depends upon the Treaty article which the Commission has chosen as the legal base for its proposal.

Until the entry into force of the Single European Act in July 1987, all legislation was adopted under the simplest of these procedures, known as the Consultation Procedure. This procedure requires the Council to obtain the opinion of the European Parliament (and sometimes also the opinions of ECOSOC and the Committee of the Regions) before adopting legislation. However, neither the Council nor the Commission is obliged to accept the amendments contained in the Parliaments opinions and it is only by refusing to give an opinion that the Parliament can exert pressure. Once the Parliament has given its opinion, the Council can adopt the proposal unamended, adopt it in an amended form, or be unable to agree. In the last case the proposal remains 'on the table'.

The Co-operation Procedure, introduced in 1987, allows the Parliament two opportunities to scrutinise and possibly amend the Commissions proposal. At the first stage, the Parliament, ECOSOC and the Committee of the Regions give their opinions in the same way as under the Consultation Procedure. Only the Parliament can propose amendments. The Commission indicates which amendments it accepts before the proposal is forwarded to the Council, which then draws up its 'common position'. Studies have shown that about 40 per cent of the Parliaments amendments are accepted at this stage. The Councils common position is sent back to the Parliament which may within three months approve it, reject it, or adopt amendments to it. The Council may then adopt the proposal in question, although it can do so only by unanimous agreement :

i. when it wishes to amend a proposal on its own initiative;

ii. when it decides to take up amendments which have been proposed by the Parliament but rejected by the Commission;

iii. when it decides to adopt a common position which the Parliament has rejected;

iv. when it wishes to override amendments which the Parliament has adopted by an absolute majority (314 votes) at second reading and which are supported by the Commission.

The Maastricht Treaty (effective from November 1993) introduced the Co-Decision Procedure in order to strengthen the Parliaments influence over legislation. Once the Treaty of Amsterdam comes into effect, the Co-Decision Procedure will replace the Co-operation Procedure in all but a very few areas and become the normal mode of Council-Parliament involvement in legislation. The essential difference between the two procedures is that the Co-Decision Procedure :

allows for the convening of a Conciliation Committee in which at the final stage differences between the Council and the Parliament may be resolved;

allows the Parliament, as a last resort, the right to reject the proposal outright by an absolute majority.

Under the Co-Decision Procedure, the Council and the Parliament are jointly responsible for the final adoption of legislation. It has been estimated that some 60 per cent of the Parliaments amendments are incorporated into the legislation.

5 THE INTER-GOVERNMENTAL PILLARS

The Maastricht Treaty created a European Union which rests upon three 'pillars'. The central pillar is the European Community (EC) itself and the decision-making procedures described here  are those which apply to action within the EC pillar, normally known as the 'first pillar'.

The procedures in the other two pillars (the Common Foreign and Security Policy and Co-operation in the fields of Justice and Home Affairs) are different, for although the Council of Ministers plays much the same role, the legislative instruments are not the same. The Commission is less influential and recourse cannot be had to the Court of Justice. Action in these fields is essentially intergovernmental in character.

Under both pillars, provision exists for the European Parliament to be kept informed and consulted. Members of the European Parliament are also entitled in the normal way to put questions to the Council of Ministers. In so far as action is taken under either heading which involves a charge to the Budget of the Union, the Parliament's powers with respect to the Budget (see above) may be brought into play.