The Birth of a Legislature:
The EU Parliament After the Lisbon Treaty
WIM J.M. VOERMANS
What Constitutes a Legislature?
What requirements must be met before we can rightfully speak of a legislature?1
This is a topical question when considering the various international and supranational organizations who are endowed with powers to enact rules and regulations.
In other words, they possess the power to legislate. Contrary to what one might
expect, constitutional literature contains elaborate definitions of state, sovereignty,
parliament, judiciary, and even legislative procedure and instruments, but it only
rarely deals with the question of whether a legislative body should be considered as
a real legislature.2
A real legislature is usually associated with the parliamentary body, or at least a
committee that adopts rules that are generally binding on citizens with the cooperation or approval of an assembly of elected representatives. This democratically
legitimized legislature must also be superior to other governing entities to prevent the
rules that have been created with the cooperation of the population’s representatives
from being immediately cancelled by later or lower law-making bodies or simply set
aside by a court or administrative body.
“A Legislature is a type of representative deliberative assembly with the power
to create, amend and ratify laws. The law created by a legislature is called legislation
or statutory law.”3 It is this very aspect of people’s representation that distinguishes
a real legislature from other rule-makers that have either dependent or independent
regulatory powers.
Wim J.M. Voermans is a Professor of Constitutional Law and Director of the Institute of Public Law
at Leiden University, Dean of the European Academy of Law and Legislation, and Vice President of
the International Association of Legislation.
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Patricia Popelier, an influential Belgian scholar, has also tried to come to terms
with the exact meaning of the term “legislature.” In her search for the meaning of
the concept, she depends on the First Protocol to the European Convention on
Human Rights. In this document, a “legislature” is defined as the body that has its
own primary regulatory power and must therefore be constituted on the basis of
elections.4 For this reason, the principal distinction between “primary legislation”
(i.e., legislative acts voted upon by parliamentarians) and “secondary” or “subordinate legislation” (i.e., generally binding laws of inferior rank) lies in the democratic
legitimacy of primary legislation. “Primary legislation restricts, underlies and justifies other government actions, which must always be based on legislation (or the
Constitution) […] In other words, the primary legislature requires no authorization
other than the constitutional provisions that confer general legislative power on it,
whereas other law-making bodies have only a conferred power in principle.”5
This latter quote also hints at another hallmark of a real legislature: the representation of sovereignty. Real legislatures around the world represent sovereign power in
the sense that the laws they enact are binding upon the represented population by
force of the supreme sovereign power within a state, or, for that matter, a state-like
entity or organization. Knowing the difference between primary legislation and secondary legislation,
and, accordingly, between primary legislatures and secondary legislatures can tell
us about the characteristic features of a real legislator. The following are a few characteristics of real legislatures that we can derive:
•
•
•
•
•
•
Competence: power conferred by a constitution or another constitutional document to allow the body to adopt generally binding rules.
Parliamentary involvement in adopting generally binding rules in the form of
“co-determination” (such as the right of legislative initiative, the right of amendment, etc.).
Binding power: the power to bind citizens and bodies to general legal rules.
Power to confer: the ability to create law and delegate this power to other bodies.
Power of ratification: the power to ratify or reject treaties and the like.
Primacy: the power to exercise the highest law-making authority (sovereignty)
to which other bodies are subordinate within the framework of a constitution.6
Most national parliamentary-based legislatures will fit this profile. But do international, supranational organizations with general rulemaking power meet these
standards? If they do, what kind of consequences does this have? It is an interesting
experiment to examine whether the new European legislature, as it emerges after
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the Treaty of Lisbon, in fact qualifies as a real legislature on the basis of these characteristics.
The European Legislature after Lisbon
By the end of 2009, Ireland, the Czech Republic, and Poland finally ratified the
Treaty of Lisbon. This marked the end of a turbulent period that had seen the Laeken
Declaration, a controversial and rejected proposal for a Constitution for Europe (in
2005), and the hard fight over the compromise of the Treaty of Lisbon. The Treaty
of Lisbon entered into force on 1 December 2009 after an agonizing and painstaking
reflection period of nearly four years, during which Europe’s constitutional process
nearly grinded to a halt due to widespread controversy and disagreement over Europe’s political and constitutional future.
All involved parties did their utmost to play down the importance of the Lisbon
Treaty in attempt to prevent the re-ignition of earlier debates. In fact, the Treaty of
Lisbon was widely presented as a step backward compared to the overly ambitious
constitutional treaty. This “cover-up,” however, cannot hide that the institutional
changes brought about by Lisbon are quite significant.7 In particular, the changes to
the legislative procedure and legal instruments of the Union are significant and major.
Procedures and Instruments Before the Lisbon Treaty: A Motley Jumble
Up until December 2009 the Treaty of Rome and the Treaty of Maastricht did not
provide for a uniform legislative procedure. Under the treaties at that time, the provisions on legislative procedure and instruments, such as directives, regulations and
framework decisions, were highly fragmented. To know the applicable procedure
and the instrument prescribed, one always had to consult the individual articles
governing the relevant subject. It was a motley jumble of provisions. Sometimes the
Council alone was competent to perform an act from a proposal by the Commission.
In other cases it was necessary to seek the cooperation of the European Parliament
through consultation, assent, or codecision. In some cases, the Commission was
even independently competent under the treaties.8 In addition, there were as many
as 15 legal instruments.9 Because of the combination of instruments and procedures,
there were, even if we disregard the comitology system, about 50 procedures.10 It was
simply impossible for European citizens to understand such byzantine procedures.
This point had already been made in the analysis of the White Paper on European
Governance, published in 2001, and the conclusions attached thereto in the Laeken
Declaration.11 During the European Convention—which carried out the preparatory work for a European Constitution in 2002 and 2003—a special working group
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was set up to consider the possibilities of simplifying and harmonizing legislative
procedures and instruments.12 The working group made a number of specific recommendations, including the introduction of a single general legislative procedure,
the drastic simplification of the legislative instruments under a new name, and a
form of hierarchy among these instruments. In 2003, these recommendations were
incorporated, with hardly any changes from the Member States, into Part I and Part
III of the Constitutional Treaty. The Treaty of Lisbon, too, incorporates the recommendations made by the Convention’s working party with hardly any changes. Only
the new names for regulations (“European law”) and directives (“European framework law”)—still featured in the lapsed European Constitution of 2005—were not
kept in the Treaty of Lisbon because of the alleged state-like associations. In order
to position the new EU legislature after Lisbon, we will briefly discuss the changes
in the legislative procedure and the instruments below.
Harmonization of Procedures: The Ordinary Legislative Procedure in the
Lisbon Treaty
The Treaty of Lisbon amends the Treaty of Rome and the Treaty of Maastricht. The
new consolidated texts are now known as the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union (TEU), respectively. The
amendments of the Lisbon Treaty were inserted into the existing treaties and their
pre-existing articles were renumbered.
One of the minor assets of the Treaty of Lisbon concerns the new arrangement of
the TFEU. While the legislative procedures and instruments were scattered across the
Treaties of Rome and Maastricht, the legislative procedure and the legislative instruments (entitled “legal acts”) are neatly grouped together in Chapter 2 “Legal Acts of
the Union, Adoption Procedures and Other Provisions” of Part Six of the Treaty.13
Article 294 TFEU is the central element of Chapter 2, Section 2 (Procedures for
the Adoption of Acts and Other Provisions). The Article governs the “ordinary”
legislative procedure. Basically, this is the former codecision procedure of ex-Article
251 of the Treaty of Rome, under which the Commission, the European Parliament
(EP) and the Council of Ministers jointly adopt European legislation through a
multi-layered procedure, which may comprise as many as two readings and a conciliation procedure.
This ordinary legislative procedure starts with a legislative proposal of the European Commission. According to the letter of the treaties, the Commission has
exclusive power to submit proposals. As indicated in the introduction, the EP has
recently appropriated the de facto right to do so as well.14 We will have to see how
the Court of Justice of the EU reacts.
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Under the regime of the Treaty of Lisbon the “ordinary” legislative procedure
applies to nearly all EU legislation. Its structure allows a meaningful and democratically legitimate debate on legislative proposals between the Council and the EP in
various rounds of negotiation. In ordinary legislative procedure, the Commission
first submits a proposal. Next, the Council and the European Parliament can reject
the proposal or propose amendments at the first reading. If the Council takes the
view that Parliament’s amendments suggested in its report resemble its own closely
enough, the Council may decide to adopt a joint position and submit it as a text
proposal to the Parliament for a second reading. Again, during this second reading the proposal can be rejected or amended by Parliament. If for some reason the
Council and Parliament fail to reach agreement on a proposal after the second reading and they are not willing to reject the entirety of the proposal either, a “conciliation committee procedure” may be initiated. At this point, representatives from the
Council and the EP try to agree on a compromise proposal without the Commission’s
involvement, which is then passed back to the EP and the Council. At this stage, it
is no longer possible to submit amendments—the compromise proposal must be
approved or rejected. Inspired by the French legislative procedure, this European
legislative procedure allows the parties to reach agreement with each other in various
steps that are as transparent as possible in order to adopt sensible and democratically
legitimized rules all the same.15
The main idea behind the ordinary legislative procedure—like the idea behind the
earlier co-decision procedure—is to allow the people’s representatives in the European
Parliament to play a genuine role in the European law-making process and involve
the Member States (and their parliaments) as well the Council. From the time of the
Treaty of Maastricht to the Treaty of Lisbon, the scope of the codecision procedure
has been extended. Now the “ordinary” legislative procedure is used for the adoption
of nearly all EU legislation.16 As an exception, the Council itself adopts legislative
measures under an extraordinary legislative procedure, but in this procedure, too,
the decision cannot be adopted before the European Parliament’s approval has been
obtained, barring one exception (Article 92 of the TFEU).17
Under the ordinary legislative procedure of Article 294 of the TFEU, both the
Parliament and the Council have the right of amendment (called “adopting a position” in the TFEU), and the European Parliament is expected to exercise this right
frequently and intensively.18 The different readings and possibility of conciliation at
the end make it possible to seek a compromise in a political landscape as fragmented
as that of the EU.
Does the ordinary legislative procedure result in the investiture of a real legislature—a “primary” legislature—at EU level? What Article 294 of the TFEU certainly
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creates is a parliamentary legislature that is democratically underpinned and legitimized. One could argue that this legislature, as a result, holds the power to exercise
the highest law-making authority in two respects. First, the rules originating from
the legislative bodies (Council and Parliament) take precedence over rules made
by other institutions and bodies within the Union. Second, the adoption of specific
types of rules is reserved for the parliamentary legislature.19 These two elements can
also be found in the delegation regime enshrined in the Treaty of Lisbon (in Article
290 of the TFEU). We will consider them briefly.
The Legislative Instruments of the Union: Legislative Non-legislative
To exercise the Union’s competences, the institutions may, in the course of the EU’s
ordinary legislative procedure, adopt regulations, directives, decisions, recommendations, or opinions in accordance with the new Article 288 of the TFEU. Together,
these five instruments constitute the “legal acts” of the Union.
The directives, regulations, opinions, and recommendations pursuant to Article
288 of the TFEU are of the same nature as those in the former Article 249 of the
Treaty of Rome.Within the category of legal acts provided for by the TFEU, a distinction is made between legislative acts and non-legislative acts. Legislative acts
are decisions adopted under the ordinary or special legislative procedure (Article
289(3) of the TFEU) and non-legislative acts are decisions that are adopted pursuant to delegation or for the purpose of implementing a legislative act (Articles 290
and 291 of the TFEU). It is important to point out that there is a formal difference
between a legislative act and a non-legislative act in the TFEU. A regulation adopted
by the Commission through delegation pursuant to a legislative act can contain legal
provisions of a generally binding nature (i.e., material acts of legislation) but still
will be labelled as “non-legislative acts” under the system of the TFEU.
However, the distinction between legislative acts and non-legislative acts
is important in the system of the TFEU. Non-legislative acts are subordinate to
legislative acts. This hierarchy between principal decisions and decisions that were
adopted in accordance with the comitology system, for example, did not exist under
the Treaty of Lisbon. Article 202 of the former Treaty of Rome provided only that
the Council could confer powers on the Commission for the implementation of the
rules (legal provisions with a general scope and of a general binding nature) that the
Council had laid down. If the Commission made these implementation rules, they
would have had essentially the same legal status as the basic decisions underlying the
Commission’s implementation powers. Indeed, these implementation rules prevail
over the basic rules because they are more recent. This undesirable situation has now
come to an end. So too has the relatively unclear status of comitology, a procedure
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by which the European Parliament delegates the implementation of legislation to
committees of the Commission.20
Delegation and Delegated Acts in the EU
Article 290 TFEU provides that a legislative act promulgated by the institutions
empowered to adopt such acts (the Council and the European Parliament acting on
a proposal from the Commission) may delegate the power to supplement or amend
this legislative act.21 The primary parliamentary EU legislature cannot provide for
all cases and fill in all details itself. No modern parliamentary legislature can. This
may be self-evident, but to what lengths can the ordinary Union legislature go in
this context?
The first limit Article 290 defines that the primary EU legislature may confer
powers to adopt non-legislative acts of general application (based on delegation) only
to the Commission and not to any other bodies. 22 Article 290 TFEU contains other
delegation limits. For example, the primary or basic legislature may only delegate
the power to supplement or amend non-essential elements of the basic instrument
in rules of general application (called non-legislative acts). The two requirements
are cumulative. In fact, this standard creates a type of primacy for the legislature at
European level; the Union legislature regulates essential elements and the Commission—through delegation—regulates less important subjects.23
This brings us to the question of what constitutes an essential or a non-essential
element. In effect, this is a question to which there is only a political answer: a nonessential element is what the primary legislature considers to be a non-essential
element. In my view, the Court of Justice is unlikely to render a substantive opinion
on this subject. Instead it will administer the test of reasonableness at the very most.
In any event, the criterion is not very tangible.
According to Article 290 of the TFEU, the primary legislator may also attach
conditions to the delegation of powers. There are two types of conditions:
•
•
a revocation of the delegation (known as “call back”), or
an option resembling the negative resolution procedure, by which the delegated
non-legislative act may enter into force only if no objection has been expressed
by the Parliament or the Council within a specified period (known as “expressing an objection”). 24
It is important to note that both cases involve a measure taken retroactively, following the submission of a definitive proposal by the Commission. Neither condition
involves any legislative participation or substantive input. Nor do the conditions
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apply automatically: they must be laid down expressly in the basic instrument. In
its Communication of December 2009, the Commission made a proposal for model
provisions relating to the revocation and the objection procedure.
On the one hand, the delegation regime of Article 290 TFEU deserves support,
in my opinion, because at long last, it creates a normative framework that is more
practicable than its predecessor Article 202 of the Treaty of Rome.25 Furthermore,
this framework has been geared toward the current institutional arrangement, particularly toward the greater role of the European Parliament. On the other hand,
there are many unanswered questions. In particular, Article 290 fails to give a clear
picture of the relationship with the implementing acts of Article 291 TFEU and
problems and debates about the future of “comitology.”26
Implementing Acts
Article 291 of the TFEU makes provision for “implementing acts.” This refers to the
collection of acts required for implementing European law in the broadest sense of the
term, including the legal transposition of directives, the designation of administrative
bodies, and the removal of legal obstacles that prevent application of European law. 27
In short, it entails all legal measures (because Article 291 of the TFEU is restricted to
the latter) to be taken in accordance with the duty of loyal cooperation. In principle,
this is the Member States’ responsibility, but the Commission also has a role to play
in this respect. In a 1989 ruling, the Court of Justice decided that “implementation” comprises both the drafting of rules by the Commission (or the Council, in
exceptional cases) and the execution of these rules itself.28 Jorna believes that this
ruling is also relevant to the provisions included in Article 291 of the TFEU.29 By
all appearances, the Commission or the Council will be able to draft implementing
regulations under the TFEU as well, even though this requires the express conferral
of a competence for this purpose in the basic instrument (the legislative act). This
gives rise to a grey area, because conferring an implementing power of a general
nature constitutes a delegation within the meaning of Article 290 of the TFEU as
well, so the delegation conditions would likely apply. In any case, the Commission
is not independently competent to draft implementing regulations. Like Jorna, I
believe that Article 290 of the TFEU is nevertheless applicable.30 This appears to be
an inevitable outcome of the chosen system. Another result is that the national legal
measures the Member States take are implementing acts within the meaning of Article
291 of the TFEU and, consequently, non-legislative acts subordinate to legislative
acts. This brings about questions concerning the meaning of legislative acts—such
as directives—or legislative amendments for legal measures that Member States
have taken. Are the latter voidable as a result of them, even within the transposition
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period? I believe so, even though this is a rather drastic consequence of the system.
The Lamfalussy Procedure
Article 291(2) also provides a basis for what is known as the Lamfalussy method
or procedure.31 In short, this method means that the European Commission may
seek the advice of experts and specialised committees not necessarily composed of
Member State representatives in setting uniform implementing standards. As this
procedure is not very democratic in nature (experts who draft rules do not have
direct or indirect democratic legitimacy), Article 291(2) of the TFEU instructs the
Council and the Parliament, acting by means of a regulation, to lay down general
rules and principles relating to the mechanism of control by Member States of the
Commission’s exercise of implementing powers. This appeal of this new style of comitology seems to suggest that the old style is no longer in line with delegation under
Article 290(2) of the TFEU, but that its only function is to monitor the manner in
which the Commission exercises its implementing powers. Unfortunately, no clear
distinction has been made between delegation and implementation. If a regulation
confers implementing powers on the Commission, the Commission must draw up
what are called “implementing regulations” on that basis. By analogy, directives
based on conferred implementing power are referred to as implementing directives.
The Member States as Co-Legislators
The Member States constitute an integral part of the complex bodies of the European
legislature under the new Lisbon structure. After Lisbon, they have become full
legislative partners in two ways. They contribute to the preparation and adoption of
European legislation and they are responsible for perfecting European legislation once
adopted: European regulations and directives adopted in Brussels and Strasbourg
are often not finished at all, and they must still be implemented (or transposed into
national law, in the case of directives).32
These co-legislative duties are not to be taken lightly. The limited role of national
parliaments in the preparation of European legislation gives cause for concern. For
example, Dutch parliamentarians (who are in this respect representative for domestic parliamentarians throughout the EU), are hardly aware of the fact that their
Parliament can make an important contribution to the preparation process of EU
legislation. They tend to take a fairly negative view of the idea as well. The input the
national parliaments may have in the preparation of European legislation requires
thorough knowledge of the files, a superb sense of timing, and great commitment.
In short, parliamentarians have to put in a great deal of effort to achieve modest
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results. The Dutch electorate is not in the least interested in the way national parliamentarians deal with proposals for European legislation. Efforts and returns are fully
out of balance, certainly given the fact that the Government has an iron grip on the
European agenda and has much greater expertise in this field. In addition, European
meeting agendas do not take notice of
The need for more national control of
meeting and planning cycles in EU
European policy and European legislation Member States. As a result, national
parliamentarians are often poorly
requires a parliamentary approach to
informed about the facts. This forbidEuropean management.
ding climate of neglect, information
deficit, political disinterest, and poor coordination has resulted in an unfortunate
downward spiral in the Netherlands as far as its share in the preparation of European
legislation is concerned.
Of course, some will say that it does not matter very much if the Dutch House of
Representatives’ share in the preparation of legislation is only nominal (the Dutch
Senate is more active in this field). The Government conducts negotiations and reports thereon to the House of Representatives. Besides, the involvement of the Senate
compensates for the omissions of the House of Representatives to some extent, and
Dutch members of European Parliament (MEPs) also keep an eye on the process.
In addition, the House of Representatives is involved in the implementing process.
These arguments are unconvincing. Unlike the House of Representatives, the
European Parliament and the Dutch Senate (which is elected indirectly) cannot provide for direct national legitimacy of European decision-making in any substantial
manner. These soothing arguments are consistent with what I consider the logic of
the international law approach to European management of affairs in 2007.33 This
approach is still the standard in the Netherlands. It means that the Dutch Government negotiates on international matters on the basis of its own strength and presents
the results achieved to the Dutch Parliament. For a long time now, EU legislation
has not been comparable to other international matters, both in terms of its nature
and in terms of its sheer volume. The need for more national control of European
policy and European legislation, as evidenced by the Dutch refusal to the proposal
for a European Constitution in 2005, requires a parliamentary approach to European
management. Undoubtedly, this Dutch resistance to the proposed EU Constitution
is also related to discontent about what Majone calls the process of “integration by
stealth. “34 The national population feels it has hardly been involved in European
decision-making, which is partly due to an outdated sovereignty concept, according
to experienced European politician Laurens Jan Brinkhorst.35
To prevent the European decision-making process from being even more “iso-
“
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lated” from the population, it is possible to involve the national Parliament to a
greater extent. The recent debate on parliamentary involvement in EU matters is,
I think, both illustrative and recognizable. For more than a decade commentators
in the Netherlands have argued and rallied for closer parliamentary involvement
into EU-dossiers in order to avoid further EU alienation.36 The influential Dutch
Council of State (the chief, independent advisor to the Dutch Government consulted
on draft legislation—sometimes functioning as a sort of Constitutional Court), for
one, has cherished this wish for a long time as well. Closer involvement may take
various forms; the Dutch Council of State, for example, observes closer cooperation between members of the Dutch Parliament and Dutch representatives in the
European Parliament. Pursuant to this line of reasoning, the Dutch Council of State
rendered a positive opinion on the participation of national MEPs in debates in
the Dutch House of Representatives: the Council did not see any obstacles to it.37
The Dutch Council of State and many Dutch commentators also feel that greater
involvement by the Dutch Parliament in the preparation of European legislation may
also be useful. By now, many EU countries have given shape to this involvement
through a “parliamentary scrutiny reserve,” which means that the government of
a country will not discuss a legislation file in the Council of Ministers until after it
has discussed this file in its own parliament.38 There is a great deal of variety among
reserves. In some countries, the reserve is even achieved by a written negotiation
mandate for the government.39
A final way of involving the national Parliament in the process is the “orange
card” procedure that was negotiated by the Netherlands in the run-up to Lisbon.
This procedure is the “emergency brake” successor to the “yellow card” developed
for the constitutional treaty. This procedure provides that if half of the national
parliaments do not agree to a proposal by the Commission within an eight-week
period, the European Commission must render a reasoned opinion if it wishes to
maintain its proposal. If one of the legislative bodies (Council with 55 percent of
the members or the EP with a majority of the votes cast) decides that the proposal
is not consistent with the principle of subsidiarity, the proposal will no longer be
taken into consideration.40
The orange card process is, in my view, an example of a purely symbolic political procedure. I believe that the chances of this procedure being successfully used
are negligible. This is because pulling the orange card requires no less than a joint
uprising by at least 14 parliaments (including many bicameral parliaments). This
is almost impossible, because these parliaments are very diffuse. They do not have
regular consultation meetings, serve very different cultures, and possess very little
time to pull off such a feat. Even still, there is the complicating factor that all these
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parliaments will probably undermine the position taken by their governments at
an earlier stage (the Commission usually submits proposals only on request and
with the consent of the Member States), which might result in domestic political
dispute. Although nothing is impossible, the orange card procedure cannot work
in a practical sense.
A True Legislature?
Does the Lisbon Treaty create a real legislature? Some have little doubt. Observers
like Tom Eijsbouts read the “dawn of a legislature” in the Lisbon Treaty.41 If we assess
the new legislature from the TFEU in terms of the criteria developed in the second
section of this essay, the answer must indeed be in the affirmative. The Treaty of
Lisbon replaces a motley collection of procedures and instruments—which in some
cases involved the Council and the European Parliament, but in other cases did
not—with one legislature (the Council and the Parliament cooperating in a uniform
legislative procedure on the Commission’s proposal). Article 14 in conjunction with
Article 16 of the EU Treaty reveals the existence of one legislature in the Union. These
provisions expressly assign the legislative tasks in the Union to the Council and the
European Parliament jointly, enshrining the European Parliament’s essential share
in the Union legislation in the Treaty. As a result of the operation of the principle
of conferral, the European legislature may not be competent to draw up rules for
every subject, but even so, the Treaty does confer substantial legislative powers on
the Council and the Parliament in almost every field of European policymaking. In
the ordinary legislative procedure, the Council cooperates with the people’s representation and the European legislature also has the power to adopt binding legislation. Regulations are binding in their entirety and have direct effect in the Member
States, while directives bind Member States to a particular outcome and decisions
are binding only on those to whom they are addressed. The European legislator has
a power of conferral in the sense that it may bestow legislative and other powers on
bodies (for example, Article 290(2) of the TFEU). In addition, in accordance with
the procedure of Article 294 of the TFEU, the ordinary EU legislator has legislative
primacy with respect to “essential subjects,” because Article 290(2) of the TFEU
prohibits delegation in respect of these subjects. The ordinary EU legislature also
satisfies the final characteristic of a real legislator after the Treaty of Lisbon: this body
is competent to adopt legislation that binds the EU to the treaties.42
Accordingly, we may conclude that we are dealing with a real legislature. But unfortunately it does not stop here. If we want to ensure that the European legislature
will represent a real supreme and legitimized power in the eyes of European citizens,
it will need to receive public support for its decisions. This can be achieved only if
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national parliaments make full use of their ability to contribute to the preparation of
European proposals for legislation and are seen to be taking their responsibility seriously when it comes to deciding on the position that Member States take in relation
to proposals for directives and regulations submitted by the Commission. Scrutiny
reserves can be wholesome in this respect because they help to hammer home the
message that European legislation begins in the Member States themselves, not in
distant Brussels. It is important to know and propagate this notion. This could, for
example, help to relieve the process of “Europa Verfremdung” which is currently
underway in the Netherlands and in other Member States.43 The Treaty of Lisbon
itself will not improve the legitimacy of European decisions. The institutions and
politicians will have to do so. The Lisbon Treaty can only bring the horse to water;
it cannot make it drink. W
A
Notes
1. Parts of this contribution were lifted from earlier articles I wrote on the subject. See for
instance W.J.M.Voermans, “Is the European Legislator after Lisbon a real Legislature?,”
Legislacào 50 (2010): 391-413.
2. Wim Voermans, “The Coming of Age of the European Legislator,” in Rethinking Europe’s
Constitution, ed. Andreas Kinneging (Nijmegen, Netherlands: Wolf Legal, 2008), 175-196.
3. A fine definition, as far as I am concerned, is given in Wikipedia. “Legislature,”
Wikipedia, accessed 7 March 2011, http://en.wikipedia.org/wiki/Legislature.
4. Patricia Popelier, De wet juridisch bekeken (Legislation taken from a legal perspective),
(Brugge, Netherlands: Die Keure, 2004), 13 et seq.
5. Ibid., 14.
6. In systems in which courts have the right of constitutional review with respect to Acts of
Parliament (i.e., the products of the legislator), a legislator may still have primacy in law
creation because, in that case, the court does not have any further law-creating task—it
does not create laws itself. Rather, it reviews laws and can prevent the entry into force
of proposed legislation. This means that the court does not create new, higher law, but it
merely applies it. Accordingly, the court does not have its own or surrogate law-making
primacy.
7. The differences from the constitutional treaty are negligible to a certain extent. The
Treaty of Lisbon does not include a number of things, such as the symbols (flag, anthem,
public holiday) and the fundamental rights, but apart from these, there are only minor
differences. The differences are small, so small even that Dutch observer Antoine Jacobs
speaks of “Etikettenschwindel “. See: A.T.M. Jacobs, “Het Verdrag van Lissabon en de
Europese Grondwet; een overtuigend onderscheid?,” (The Lisbon Treaty and the European
Constitution; a convincing distinction?), Nederlands Juristenblad (Dutch Law Journal) 6
(2008): 320-329.
8. For example, Article 96 of the former Treaty of Rome.
9. Of these instruments, 14 are specified in the treaties and one is sui generis.
10. The comitology system allowed the Parliament and Council to delegate implementing
power for legislation to committees of the Commission. It was intended as a check on the
rules the European Commission may adopt under a delegation of powers. In adopting
delegated or implementation rules (Article 202 of the EC Treaty allowed the conferral of
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Wim J.M. Voermans
powers for this purpose), the Commission sought the assistance of committees consisting
of Member State representatives. The procedure was enshrined in the decision from
1999, as amended in 2006 (1999/468/EC OJ L 184, p. 23). It has recently been replaced
by Regulation (EU) 182/2011 laying down the rules and general principles concerning
mechanisms of control by Member States of the Commission’s exercise of implementing
powers OJ EU 2011 L 55, 13. By now two types of committees and committees procedures
survive, the so-called ‘advisory’ procedure and the ‘examination’ procedure. Control
over delegated acts, under article 290 TFEU henceforth will be governed by a separate
procedure: the regulatory procedure with scrutiny in which the European Parliament is
involved as well. See See W. Voermans, “Delegation is a Matter of Confidence,” European
Public Law 17, no. 2 (2011): 313-330; M. Jorna, “Europese wetgeving volgens de ontwerp
grondwet, of wat er verandert” (European Legislation according to the proposed European
Constitutional Treaty: what is changing?), in De betekenis van de Europese Conventie voor
de wetgevingspraktijk (The impact of the European Constitution on Legislative Practice),
ed. P. Koorn; L.H.M. Loeber, (The Hague: Sdu Uitgevers, 2004), 18-20.
11. COM (2001) 428, OJ 2001, C 287; Declaration of the European Council of December
2001.
12. Working group IX of the Convention (the d’Amato Working Group on Simplification)
particularly looked at the position of the “European legislator.” The aim of the group was
to create order in the existing legal instruments and corresponding procedures by means
of simplification and enhance the transparency of European decision-making as a result.
The Working Group’s final report was presented on 29 November 2002 as CONV 424/02,
document no. 13 of the Working Group. The Working Group’s views on the solutions
were relatively uniform and the debate in connection with the Convention’s proposals on
the simplification of legal instruments and procedures was relatively calm as well, except
for the issue of the Qualified Majority Voting decision-making rule. The question arises,
however, whether the working group chose a sound method to enhance the transparency
and legitimacy of European decision-making. The working group appears to have been a
little naïve when one reads that it relies very much on a few technical simplification and
uniformization measures designed to improve the legitimacy of the Union’s decisionmaking. The working group fails to address the substantive problems such as the
democratic deficit, the absence of the right of legislative initiative for MEPs, and other
substantive issues. See W.J.M. Voermans, “Hoe verder met de Europese wetgever na het
Nederlandse ‘no’?” (The European Legislator after the Dutch No Vote), in De betekenis van
de Europese Grondwet voor de Nederlandse staatsinstellingen (The impact of the European
Constitution on Dutch governmental institutions), ed. H.-M.T.D. ten Napel & W.J.M.
Voermans (Deventer: Kluwe, 2005), 21-37.
13. The Constitutional Treaty also dealt with legislative procedures and instruments
separately. It must be noted as a small aside for those who are interested in legislative
drafting that the style of the TFEU is abominable at times. In some places, the text has
become utterly unreadable as a result of the large number of additions. For example, it
is impossible to ascertain the meaning of Article 64(3) and there is no explanatory note.
Articles 139(4) and Article 209(1) and specific paragraphs of Article 238(2) and Article
244 are also unclear as a result of the language used. Particularly the French preference
for parenthetic clauses and the overuse of the phrase “without prejudice to” (also a French
quirk) disfigure the texts that are already full of legalese. Often, of course, these articles
are left deliberately vague and ambiguous in an attempt to leave some scope in the future,
known as constructive ambiguity. This happens to be part and parcel of texts of this kind.
It looks as if the lawyers employed by the Union disliked the style of the text, as well,
because the structure of the lengthy post-Lisbon TFEU is exemplary. It is clear that they
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14.
15.
16.
17.
have taken great pains to perfect it. The Treaty now has a logical classification of by subject
matter, divided into parts, titles, chapters and sections of the Treaty.
Until now, the EP was only able to request the Commission for a legislative initiative in a
resolution. The revised framework agreement on interinstitutional legislative cooperation,
as concluded in February 2010, tightens the rules in this area. Under section A, point
(3) of the revised agreement, it was agreed that within three months of the date of a
legislative initiative request made by the EP, the Commission had to submit a legislative
initiative report in accordance with Article 225 of the TFEU. Next, the Commission has
to submit a legislative proposal within a year or it must include the proposal in its work
program for the next year. If the Commission fails to submit a proposal, it must give the
European Parliament a detailed explanation of the reasons thereof. See the Resolution
of the European Parliament of 9 February 2010 on a revised Framework Agreement
between the European Parliament and the Commission for the next parliamentary term
(P7_TA(2010)0009).
Also known as “navette,” (the French word for a shuttle service).
Since its introduction in 1992, the codecision procedure has surpassed many pessimistic
expectations. In 2002, the Convention concluded that the codecision procedure worked
remarkably well. About 32% of the proposals are accepted in the first reading; in approx.
40% of the cases, the decision can be adopted after a second reading and in 28% of the
cases, a Conciliation Committee is instituted during the negotiations on the proposal. See
the Convention document “Legislative procedures (including the budgetary procedure):
current situation,” CONV 216/02, 24 July 2002. Even so, an interesting debate was held
on the question whether the European Parliament’s influence has in fact increased as
a result of the codecision procedure. The American political scientist George Tsebelis
claimed—two years after its introduction—that as a result of the codecision procedure,
the European Parliament’s influence had declined compared to in the preceding period, in
which the Parliament was usually involved in the legislative process under the cooperation
procedure. In these first two years of the codecision procedure, he saw a shift in the power
to set the agenda towards the Council. See George Tsebelis, “The Power of the European
Parliament as a Conditional Agenda Setter,” American Political Science Review 88 (1994):
128–42. Later on, he has had to adjust this picture on the basis of the experiences in
the period after 1996. It turns out that the Parliament has become more important in
relation to the Council as a result of the codecision procedure—also when it comes to
setting the agenda. See George Tsebelis and Geoffrey Garrett, “Legislative Politics in the
European Union,” European Union Politics 1, no. 1 (2000): 9–36. More recent studies show
that the influence exerted by the European Parliament on legislation, also in relation to
the Commission, has grown considerably. This is for the most part due to the right of
amendment. See Amie Kreppel, “Moving Beyond Procedure: An Empirical Analysis
of European Parliament Legislative Influence,” Comparative Political Studies 35 (2002):
784–813.
The treaty continues to include the exceptions to the ordinary legislative procedure
of Article 294 of the TFEU (i.e., the special legislative procedures of the TFEU). This
concerns three situations: (a) The Council decides after approval of the European
Parliament in the case of Article 19 (eradicating discrimination); (b) the Council decides
after consultation of the European Parliament in the cases of Article 21(3) (social security
and social protection in connection with the right to move and reside freely), Article
22(2) (further regulations concerning the right to vote and stand in elections), Article
23 (securing protection by diplomatic authorities), Article 25 (additional citizen rights),
Article 64 (restrictions on the free movement of capital in connection with investments in
third countries), Article 77(3) (rules concerning checks on persons—passports, identity
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18.
19.
20.
21.
22.
23.
24.
25.
26.
178
cards and residence permits), Article 118 (uniform protection of intellectual property
rights, title protection, language arrangement concerning the titles), Article 153(2)
(support of regulation concerning work conditions in specific areas), Article 194(3)
(operation of the energy market—tax measures); (c) The Council decides independently,
without involvement of the European Parliament in the case of Article 92 (derogation
from prohibition against making more favorable provisions for national carriers).
At time it submits a hundred proposed amendments to a Commission proposal during
the committee stage of a first reading. The European Parliament has been very active
during the past three sessions.
In the German legal literature, this is known as Vorrang des Gesetzes and Vorbehalt des
Gesetzes.
The aforementioned Comitology decision of 1999, as amended in 2006, already removed
some of the lack of clarity. See OJ 2006 L 200/11. A new regulation on Member State
control over the Commission’s exercise of implementing powers has been set up to replace
the old Comitology decision (OJ 2011 L 55,13). See Voermans, “Delegation is a Matter of
Confidence.”
This power to supplement or amend basis instruments existed under the former treaties,
too (at least in the eyes of the Commission), even if it was not explicitly laid down in
the treaties. It was deemed to be part of the Commission’s general power to implement
EU legislation. This is a typically French view on the matter, because the French
government has similar general implementation powers under the French Constitution.
For this view, see Jean-Claude Piris, The Constitution for Europe: A Legal Analysis.
(Cambridge: Cambridge University Press, 2006), 73. An outspoken comment is made
by Paolo Ponzano, who not only assumes that the Commission has its own autonomous
implementation powers but who also claims, – with a reference to the Italian, French
and—indirectly—Spanish system of the governments’ independent implementation
powers – that this is the very structure which is enshrined in the new Articles 290 and
291 TFEU. See Paolo Ponzano (2008), “‘Executive’ and ‘delegated’ acts: The situation after
the Lisbon Treaty,” in The Lisbon Treaty: EU Constitutionalism without a Constitutional
Treaty?, eds. Stefan Griller and, Jacques Ziller (Springer: Wien/New York: Springer, 2008),
135-141.
The question arises whether this will affect the old pre-Lisbon delegation case law of
the Court of Justice. For example, the Court of Justice permitted the Council to take
implementing decisions itself in special cases, provided that it gives detailed reasons for it.
See the delegation judgment of the Court of Justice of 24 October 1988, Case 16/88 [1989]
ECR 3457. In addition, the Council was able to adopt legislative acts for the purpose
of delegating powers to institutions or bodies other than the Commission, subject to
strict limitations and provided that these are clearly defined (also known as the Meroni
doctrine). See the judgment of the Court of Justice of 13 June 1958, Case 9/56 [1958]
ECR 133 (Meroni I) and the judgment of the Court of Justice of 13 June 1958, Case 10/56
[1958] ECR 157 (Meroni II). The consequences for the system of Article 290 TFEU on this
case law position cannot be predicted at this juncture.
This point was also made by Van den Brink.
See Article 290(2) of the TFEU.
See Voermans, “The Coming of Age of the European Legislator.”
Comitology is a system of delegated legislating particular to the EU.(See footnote xi).The
system was based on committees helping the European Commission to enact statutory
instruments or delegated legislation. From the early days of the European communities,
the various Community legislators were entitled, within strict limits defined by the Court
of Justice to delegate powers to the European Commission, to enable the latter to work out
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The Birth of a Legislature
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
the details of any instrument on this basis. Article 202 of the Treaty of Rome (the former
delegation provision) permitted them to do so. Because the Member States nevertheless
wanted to contribute their ideas about (read: stay in control over) the adoption of these
implementing rules, a system developed over the years under which special committees
assist the Commission in exercising its implementing powers delegated to it. These
participating committees are manned by government representatives (civil servants)
from the Member States. This “comitology” system, as it is called, has assumed immense
proportions. To date, there are about 250 committees comprising thousands of Member
State representatives who contribute their ideas about or assist in the preparation of
about 2,500 to 3,000 implementing rules every year. This amounts to over 90% of the
Union’s total legislative output. The whole system became more and more controversial
because European Parliament had little say in the procedure. Only aloof forms of
parliamentary control existed. See M. Szapiro, “Comitology: The Ongoing Reform,”
in Legal Challenges in EU Administrative Law, eds. H.C.H. Hofmann and A.H. Türk
(Cheltenham: Edward Elgar, 2009), 89-15 and Günther F. Schäfer and Alexander Türk,
“The Role of Implementing Committees,” in The Role of Committees in the Policy-Process
of the European Union; Legislation: Implementation and Deliberation, Thomas Christiansen
and Torbjörn Larsson (Cheltenham: Edward Elgar, 2007), 182-200. At this point in time
it seems sure that comitology in its former setup will stop. Only for the control over
implementing acts under article 291 TFEU elements of it will survive. See footnote xi and
Voermans, “Delegation is a Matter of Confidence.”
See P. Eijlander and W. Voermans, Wetgevingsleer (Legislative Drafting) (The Hague:
Boom Juridische uitgevers, 2000).
CJEC case 16/88 Delegation judgment Jur. 1989, 3547.
Jorna discussed the equivalent article I-37 from the proposal for a Constitutional for the
European Union: Jorna, 27.
Jorna, 27. See Voermans, “Delegation is a Matter of Confidence.”
The procedure was named after the committee of the same name. For the rapport of this
committee, see the Final Report of the Committee of Wise Men (Lamfalussy Report) on
the Regulation of European Securities Markets, Brussels, 15 February 2001.
On this subject, see also W. Voermans, “De Nederlandse wetgever in de communautaire
toekomst” (The Dutch legislature in the European future), in De betekenis van de Europese
conventie voor de wetgevingspraktijk (The impact of the European Constitution on
Legislative Practice), eds. P. Koorn & L.H. Loeber (The Hague: Sdu, 2004) 53-106.
See W. Voermans, “Invloed van nationale parlementen op Europese wetgeving: hoe doen
de buren dat?” (The influence of National Parliaments on European Legislation: How are
our neighbours doing that?), RegelMaat (Dutch Journal for Legislative Studies) 4 (2004):
150-162.
See Giandomenico Majone, Dilemmas of European Integration (Oxford: Oxford University
Press, 2005).
See L.J. Brinkhorst, “Europese Unie en nationale soevereiniteit” (European Union and
National Sovereignty), inaugural address delivered on 8 April 2008, Leiden University.
N.Y. Del Grosso, Parlement en Europese integratie (Parliament and European Integration),
PhD thesis RU Groningen, Deventer, 2000; Ph. Kiiver, The National Parliaments in the
European Union—A Critical View on EU Constitution-Building, PhD thesis Maastricht
University (The Hague/London/New York: Kluwer Law International, 2006); Ph. Kiiver,
ed., National and Regional Parliaments in the European Constitutional Order, (Groningen:
Europa Law Publishing, 2006).
See the opinion by the Council dated 19 July 2007, together with the further report
published in Dutch Parliamentary Papers II 2007/08, 31202, no. 4.
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Wim J.M. Voermans
38. See W. Voermans, 2008.
39. Dutch Parliamentary Papers I 2007/08, 31 384 (R 1850), A. This concerns, for example,
the adoption of rules for travel documents and residence permits for Union citizens.
For a survey of the various amendments, subamendments and motions that have been
submitted, see Dutch Parliamentary Papers II 2007/08, 31 384 (R 1850), and for the votes
thereon, see Proceedings II 2007/08, 93, 6619-6620.
40. Subsidiarity is the principle of EU law by which matters are addressed by the lowest level
of government competent to do so.
41. Tom Eijsbouts, “De Dageraad van een wetgever” (The Dawn of a Legislator), Regelmaat
(2003): 207-221.
42. This follows from Article 37 of the EU Treaty.
43. The I.e. the process of European alienation arising from the feeling sentiment of
considerable parts of the European public that they are not a part of European Union, but
merely subjected to it.
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