Types of Legislation:
The Hierarchy of Norms states that Primary Legislation sets out the essential elements ie. Acts of Parliament and Secondary Legislation 'fills in the detail':

Article 288 TFEU:
Binding Legislative Acts

Regulations- General application, often require implementing measures
Directives-Binding upon those addressed to. Have time-limits for implementation
Decisions-Binding upon those addressed to

Non-Binding Legislative Acts

Recommendations
Opinions

Non- Legislative Acts:
Adopted under Article 290 (DELEGATED- Secondary legislation) or Article 291 (IMPLEMENTING)

Soft Law:

Commitments- organise the conduct of institutions
Declarations- commitments to respect values of fundamental rights
Programming- Objectives and timetables for policies.
Regulatory Communication- Communications and conclusions by Council and Commission
Model law-making- Guidelines and recommendations.

Powers:
Article 289 TFEU: outlines the legislative powers of the Union (ordinary legislative procedure and special legislative procedure)
Consultation + Assent = special legislative procedures
Co-decision NOW the ordinary legislative procedure.
Enhanced Co-operation

Article 113 TFEU- Special legislative procedure FOR TAXES requires unanimous QMV and parliament's approval.
Article 114 TFEU- the legal base required for the legislative procedure is to be used within particular INTERNAL MARKET FIELDS eg. health and safety, free movement.
Note: A single test for legal base exists across TEU and TFEU (Articles 1)

Commission v Council: The commission challenged the adoption of a Directive providing for the mutual assistance between member states adopted under Article 113, the special legislative procedure of taxes as opposed to Article 144. Held, this was correct as Article 114 did not regard fiscal provisions (tax provisions) as a suitable legal basis. Objective factors which can be judicially reviewed must be considered when choosing a legal basis ie. the predominant purpose of the directive must be considered.

Framework Directive on Waste: A directive should be adopted under Article 114 as it was aimed towards the internal market as opposed to environmental purpose which the directive aimed towards.

If a court cannot determine a predominant purpose a hierarchical test is used:
Article 114 TFEU (internal market) > Article 192 TFEU (environmental) > Article 352 TFEU (objectives without powers)
Linguistic Diversity in the Information Society: The purposes must be equally essential and indissociable to the measure in order for the hierarchical test to be enforced.

1. Ordinary Legislative Procedure, Article 294 TFEU:
First Reading

Adopted by QMV by the Council

Second Reading

If parliament approves of the Council's position the act is adopted (must be Unanimous or by QMV).
If the act is not adopted, Parliament rejects the Council's position and proposes further amendments for the Council and the Commission. The Commission may reject the Parliament's amendments by unanimity.
Parliament holds the right to Veto over legislation (this must be used carefully)

Conciliation

Equal number of members from Council and Parliament. Must make an agreement on the text with the aid of the Commission (if the act is not adopted within 6 weeks)

Rome II is an example of an act which has been through the whole system.

Third Reading

If conciliation Committee approves of a joint text the Council has 6 weeks to adopt it.

Article 293: Amendments by the Council can only be unanimous.

The Joint Declaration 2007 formalises the commitment to reach an agreement at the first reading and creates the Trialogue.
The Trialogue consists of 2 or 3 members of the Parliament and one senior commission official. It acts as a forum where each side can explain their position and reach an agreement. It operates through all stages of the ordinary legislative procedure. However, it skips all "checks and balances" as it centralises the power to only 3 representatives.

2. Consultation Procedure
Council consults parliament from a submission from the Commission. The council can then decide whether to adopt the measure by Unanimity.
Parliament holds the right to delay which invites the Commission to amend or withdraw the submission.

3. Assent Procedure:
A proposal is made to parliament, Member States or to the Council directly/ via relevant institutions.
Parliament gives consent with no time-limits
Agreement is sought after through the Triologue.

Enhanced Cooperation, TEU Title IV:
Some member states are allowed to develop common law between themselves through enhanced cooperation, this must be unanimously consented by the Council.

9+ member states
Must not be in a field of exclusive Union competence
Must only be adopted as a matter of last resort
Must no undermine internal market or social cohesion
Must comply with other EU law
Must respect rights, competences and obligations.

Article 20 TEU, Article 326+ 327 TFEU propose safeguards to prevent countries from self-litigating and undermining EU supremacy.

Comitology:
Before the Lisbon Treaty took effect Comitology gave committees of representatives of national governments certain powers to oversee a Measure and enforce it. This system has now been abolished, and instead TEFU distinguishes between delegated acts and implementing acts.

Advisory procedure- Committee advises the Commission
Management procedure- application of policies and implementation of budgetary programmes
Regulatory procedure- application of essential basic instruments, may adapt implementing measures by QMV
Regulatory procedure with scrutiny- application of amending basic instruments (Council or Parliament can Veto the draft)

Note: Only applies to acts adopted before the Lisbon Treaty, so long they are not amended.

Articles 290 and 291 now give the Council and Parliament further powers of the Commission regarding delegation measures and mechanisms for control.

	Erstellt von cadhla_corrigan vor mehr als 10 Jahre

ew law making and legislation

EU Law Making