Powers:
The principle of conferral states that the EU is only allowed to legislate on areas that member states have given competencies. (TEU Art 5)
Exclusive competences (TFEU Art 3): only the EU can legislate.
EG: competition policy, the EMU etc.
Shared competencies (TFEU Art 4): both member states and the EU can legislate.
EG: internal market, environmental policy, energy policy, AFSJ etc.
Linked to the principle of subsidiarity. (TFEU Art 5(3))
Supportive competencies (TFEU Art 6): EU can support, coordinate or supplement the actions of member states.
Prohibitions (TFEU Art 153(5)): EU cannot legislate on these areas.
EG: pay, the right to association and the right to strike etc.
Ordinary Legislative Procedure (previously, Co-decision): (TFEU Art 294)
Order: Proposal from the Commission > Parliament 1st Reading (either agrees or proposes amendments) > Council 1st Reading (either agrees or proposes amendments) > Parliament 2nd Reading (either agrees or proposes amendments) > Council 2nd Reading (either agrees or proposes amendments) > 6 Week Intense Conciliation Committee (either agrees or not adopted) > 3rd Reading by Council and Parliament.
All institutions (Commission, Parliament and Council) must agree.
Therefore, it is important the interests of each institution is balanced, which legitimises the legislative process.
Generally, the OLP is highly efficient: 114/117 adopted.
Powers of the Commission:
Agenda-setting.
Can revoke a proposal before a common position is adopted.
They may do this because the prospects of the legislation successfully passing are low, or because their proposal seems to have become too diluted by amendments.
As experts, they act as a mediator, meaning they have large informal influence.
The agreement or disagreement of the Commission after the Parliament has amended the legislation changes the voting requirement in the Council.
Powers of the Council:
They are the only institution that must approve.
Powers of the European Parliament:
The Parliament has a double veto.
This is rarely used (<0.5%), but the fact it exists allows them to retain power.
The Parliament amend legislation 87% of the time and these changes are accepted 65% of the time.
Since first reading (‘fast-tracking’) agreements were introduced in 2004, 81% of proposals make it past the first reading (compared to prior 35.4%).
Trilogues:
Trilogues are informal meetings of representatives from the three institutions intended to identify (and compromise on) the main areas of disagreement between the institutions.
European Parliament: Chair of Parliamentary Committee and Rapporteur
Council: Political Representatives of the Presiding Member State
Commission: Director General of the Responsible Drafting Unit
Transparency and Accountability:
Despite not being prescribed in law or following the ordinary process, 90% of Commission proposals are agreed using this trilogue method. This is due to efficiency, but perhaps at the detriment of transparency, accountability and democratic standards. [1]
In DE CAPITINI, it was ruled that a document request for information tables that summarised the positions of the main institutions in advance of trilogue meetings could not be refused.
The GUE/NGL (Green) and Eurosceptic parties have opposed the use of trilogues on the basis of a lack of accountability and transparency.
Trilogues have gone through ‘considerable institutionalisation’ since their inception. [2] Requirements have arisen for reporting back to the other members within institutions, if not through public channels.
Trilogues as ‘Politicised diplomacy’: [3]
There is consensus across the Council and European Parliament that trilogues are beneficial.
Benefits in Eyes of the Council:
Efficiency and time saving.
Trilogues work as a key device for neutralising Parliament politics (depoliticalizing).
Without trilogues, compromises could not be hammered out.
Benefits in Eyes of the Parliament:
Trilogues empower the Parliament with more power over EU legislation.
Trilogues facilitate real negotiation and compromise.
Benefits in Eyes of Both Council and Parliament:
Grandstanding, face-saving and posturing all take place when cameras are on and public attention is drawn towards actors to maintain public relations.
More transparency would skew the legislative process towards powerful political players and interests (through lobbying).
Trilogues give both the ‘space to think’ about compromises, unencumbered by public views or politics.
Other Law-Making:
Delegated Law-making:
The Council and Parliament have the power to revoke the powers of delegated legislation that the Commission hold. Sunset clauses automatically revoke powers vested in the Commission after a certain time frame, which can then be reauthorized.
Implementation of EU Law: (TEU Art 291)
When ‘uniform conditions for implementation’ are required, the task is given to the Commission. Normally, member states implement EU law domestically, so their role is supervisory.
There are (268) Committees, comprised of experts from each member state, examine and advise member states on the implementation of EU law.
Resources:
References:
[1] Roederer-Rynning and Greenwood, ‘Black boxes and open secrets: trilogues as ‘politicised diplomacy’ (2021) 44 West European Politics 485 [2] n1 [3] n1
Cases Mentioned:
Case T-540/15, Emilio De Capitani v European Parliament
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