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Law Making Procedures in EU. Ljiljana Biukovic Faculty of Law, UBC Fall 2007. Sources of EU Law. Primary sources: Treaties traditional international law instruments of regulating relations between states signatories (TEC, EURATOM, TEU)

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Law Making Procedures in EU

Ljiljana Biukovic

Faculty of Law, UBC

Fall 2007


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Sources of EU Law

  • Primary sources: Treaties

    traditional international law instruments of regulating relations between states signatories (TEC, EURATOM, TEU)

    2. Secondary sources: Regulations, Directives, Decisions, recommendations and Opinions: instruments of Community/Union lawmaking

    3. Other sources: General Principles of law deriving from the common traditions and constitutional rules shared by the MS and from international agreements and conventions to which all are party, international law and customary international law


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EC/EU Competence

  • Legislation must be properly based upon a Treaty article, that is, must have a proper legal basis in the Treaty in order to produce legal effect

  • Types of EC/EU competence

    - Internal and external

    - Exclusive and shared

    - Explicit and implied


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Law Making Challenges

  • Actors: Council, Parliament and Commission

  • Legislative process: six procedures distinguished by the degree of power afforded to the European Parliament + comitology (delegated legislative power)

  • Voting: QMV or unanimity

  • Problems: transparency, legitimacy and democratic deficit

  • Interpretation: ECJ

  • Supervision over adoption and application: ECJ and the Commission

  • Application: national governments, agencies and courts

  • Enforcement: national courts


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Functions of the Commission

  • Legislative:

    - exclusive right to propose EU legislation

  • Executive:

    - implements EU policies and program and executes the EU budget

    - external relations representation of EU in trade policy issues

  • Supervisory:

    - oversees the application of EU law by the Member States (and to bring actions before the ECJ against MS for failure to fulfill their legal obligations) and

    - oversees policies of the MS


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Functions of the Council of Ministers

  • Legislative:

    - the main law-making body of the EU (on the initiative of the Commission and in co-decision with the EP)

  • Budgetary:

    - adopts the annual EU budged with the EP

  • Executive:

    - determines EC’s internal and external policy (CFSP) coordinating actions and policies of the MS

    - represents EU in relations with states and international organizations and signs international treaties on behalf of the EC


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Functions of the European Parliament

  • Legislative:

    - enacts the EU legislation (on the proposal of the Commission and in co-decision with the Council)

  • Budgetary:

    - adopts the EU budget (with the Council)

  • Supervisory:

    - political control and supervision of the Commission

    - political control of the Council in external relations by giving assent to all international treaties signed by the Council on behalf of the EC


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Legislative Procedures Under the First Pillar

1. Commission acting alone (for example, on its own initiative under Art. 39(3)(d), or under Art. 86(3) which gives it power to promulgate directives or decisions related to the role of public undertakings

2. Council and the Commission acting alone and may consult the Parliament but does not have to (in fact, the Council acts on the proposal from the Commission and takes the decision; used re: competition, some aspects of free movement of workers and capital, for example)

3. Council, Commission and consultation with the Parliament (until the SEA the Parliament had only a consultative role; the Council must wait for the Parliament’s opinion or the measure may be annulled but it is not bound to accept the Parliament’s opinion). After the ToA a bare consultation limited to a few areas such as, for example: Art. 19 (concerning rights to vote and stand in municipal election; Art. 22 (reinforcing citizenship rights); Art. 89 (state aid); Art. 93 (harmonization of indirect taxation, Art. 94 (approximation of laws for the functioning of the common market)


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Legislative Procedures - Continued

  • Council, Commission and the co-operation procedure with the Parliament

  • Introduced by SEA in 1986 but limited first by ToA (and introduced as Art. 252) and finally by ToN only to areas of Economic and Monetary Union, that is, Art. 102 and 103)

  • the Council acting on a proposal from the Commission after obtaining an opinion from the Parliament adopts a common position which is then communicated to the Parliament. If the Parliament rejects the common position by an absolute majority then the Council can adopt the act only by unanimity. The Parliament may also propose amendments by an absolute majority and then the Commission has to re-examine the proposal

  • What is new here: the Parliament gets 2 readings and gets to table amendments


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Legislative Procedures - Continued

  • Council, Commission and Parliament in Art. 251 co-decision procedure

  • Introduced by Maastricht and modified by ToA and TN: the Commission proposal is sent both to the Council and the Parliament and the Council adopts it by QMV if an opinion of the Parliament is positive or if the Council adopts amendments proposed by the Parliament; it the Parliament does not take a decision within 3 months it is deemed that decision has been adopted

  • If the Commission does not accept the amendment and the Council does not approve of the Parliament’s amendment, then the Council could adopt it only unanimously; if the Council disapprove of the amendment the Conciliation Committee is to be established to decide on the joint text. If the Committee does not approve the joint text the legislative proposal is dead

  • What is new here: the Parliament has 2 readings and the Council cannot push the proposal if the Parliament rejects it and after a failure to reach agreement on a joint text


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Legislative Procedures - Continued

  • Council, Commission and the Parliament’s assent:

  • Introduced by SEA for matters such as the EC membership and association agreements; Council acts after obtaining the assent of the Parliament but the Parliament has no power to make amendments (but has power to delay and reject the proposal); after the ToA applicable to Art. 49 (EU membership); Art 105(6) AND Art. 107(5) various aspects of functioning of the ECB and Art. 161 (measures related to the economic and social cohesion)

  • Legislative initiative and the Council’s use of Art. 208: not really a procedure of enacting of legislation but the way of initiating the legislative process by requesting from the Commission to undertake any studies which the Council needs to push for some legislation


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Comitology

  • Delegated legislative power from the Council to the Commission to enact more specific regulations within a particular area such as agriculture and competition

  • Institutional constrains of delegation of power-delegated power has to be approved by a committee composed of Member State representatives

  • There was no express warrant for such committees in the original treaty but ECJ upheld the legality of the process in Koster, case 25/70 (1970) ECR 1161

  • SEA 1986 modification of Art. 202(3): The Council can confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down

  • The Council 1987 Comitology Decision established principles and rules of the process and the committee structure


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