THE RIGHT OF INITIATIVE—A MISNOMER?
18. We have used the expression "right of
initiative" since that is the commonly used term for the
authority under the Treaties to propose legislation. We acknowledge
that this is not a self-explanatory phrase. Like Lord Kinnock
(also a former Commissioner), we think it would be good to have
a single term that more accurately reflected what the term "right
of initiative" represents (Q 103), but it is difficult
to find one and it is probably too late to displace the time-honoured
phrase. Professor Steve Peers (Professor of Law, University
of Essex) thought it more accurate to speak of a "monopoly
of initiative" (Q 1) at least so far the first pillar
is concerned. More generally, taking account of the exception
for police cooperation and criminal justice, one might speak of
the Commission having a near-monopoly.
A RIGHT TO PROPOSE, NOT DISPOSE
19. Lord Brittan noted that the right of initiative
is a right to propose. (Q 93) That does not prevent others
from initiating ideas which they would like the Commission to
take up. Nor does it give the Commission the right to dispose,
in the sense of legislating. As Lord Kinnock observed, once draft
legislation has been submitted, it then becomes the property of
the legislature. Subject to the points mentioned at paragraph
14, it is for the EU legislators to determine what becomes of
a proposal. (Q 103) Professor Rasmussen noted that the
Commission is, nowadays at least, cautious about putting forward
proposals that will not get adopted in the end. For example, the
modern Commission would not table an integrationist proposal and
just hope that the Member States would go along with it. (Q 20)
2 Under the current treaties, the "first pillar"
of the European Union comprises the European Communities; the
"second pillar" is the Common Foreign and Security Policy
under Title V of the Treaty on European Union; and the "third
pillar" is Police and Judicial Cooperation in Criminal Matters
under Title VI of the TEU. No legislation is made in the second
pillar. Back
3
Under co-decision, a Commission proposal can only become law if
it is agreed by both the Council and the European Parliament. Back
4
Under the co-decision procedure, the reference to the Council
acting means establishing the Council's common position under
Article 250(2) TEC. Where the Council alone adopts legislation,
the reference means deciding to make the legislation. Back
5
Article 250(2) TEC. Back
6
Article 250(1) TEC. Back
7
See footnote 4. Back
8
We described the provisions on the Area of Freedom, Security and
Justice in our report: The Treaty of Lisbon: an impact assessment
(10th Report, 2007-08, HL 62); see Chapter 6. Back
9
Article 76 of the Treaty on the Functioning of the European Union
(TFEU) (as the TEC would be re-named by the Treaty of Lisbon). Back
