Memorandum by Richard Corbett MEP, Labour
Spokesperson on Constitutional Affairs in the European Parliament
THE EUROPEAN
PARLIAMENT'S
ROLE IN
DEVELOPING LEGISLATIVE
PROPOSALS
Introduction
1. The right to initiate legislative proposals
is one that is traditionally associated with parliaments. In practice,
however, it is a role usually taken by the executive. The right
to initiate legislative proposals at EU level therefore lies predominantly
with the European Commission.
2. Why does the Commission have the right
of initiative rather than the governments of the Member States?
The idea is that legislative proposals should be drafted by a
common body, taking into consideration the interests of all Member
States, rather than having competing texts from individual Member
States. It is also a reflection of the fact that the Commissioners
are politicians, not civil servants, accountable to MEPs in the
European Parliament.
3. Thus, under the Community pillar, and
more generally if the Lisbon Treaty is ratified, the legislative
process normally starts with the Commission, which makes a proposal
for EU legislation. The Commission can make a proposal to the
Council if it believes that the issue can only be dealt with adequately
at the European level. If member states (or indeed local government)
can deal with the issue effectively on their own, the legislation
should not be proposed. This is the principle of subsidiarity;
ie that government should work at the lowest effective level.
The Lisbon Treaty, if ratified, will provide a legal mechanism
whereby national parliaments could challenge any European law
that did not adhere to this principle.
4. Even if the Commission has a monopoly
on producing the first formal draft, it does not have a monopoly
on ideas. Most Commission proposals are made in response to the
desiderata of the European Council, the European Parliament, the
ordinary Council of Ministers and individual Member States.
5. When exercising its right of initiative,
the Commission has to bear in mind that a draft directive really
is a draft—MEPs go through it paragraph by paragraph, amending
it and rewriting it. So do the ministers in the Council—and
ultimately the positions of the two must be reconciled in what
amounts to a bi-cameral legislature at EU level, so there is no
value in the Commission submitting proposals that will brook hostility
in the Council and Parliament. There is no compliant majority
for the executive as exists in most national parliaments.
Mechanisms to influence legislative proposals
6. The Parliament has only a limited formal
right under the treaty to initiate legislation: the distribution
of seats among the Member States, the regulations concerning the
Ombudsman, the provisions governing the exercise of the right
of inquiry, the electoral procedure for European elections and
the statute for MEPs.
7. Both the Council and Parliament have
a formal right to request that the Commission undertake studies
and to submit any necessary legislative proposals. Indeed, Article
192 of the Maastricht Treaty gave the Parliament the right to
request, by an absolute majority of its members, the Commission
"submit any appropriate proposal on matters on which it considers
that a Community act is required for the purpose of implementing
this Treaty". By the end of 2007, 17 such resolutions have
been adopted by the Parliament.
8. In practice, it is through less formal
requests that the Parliament (and Council) trigger an initiative
from the Commission. In Parliament's case, its main mechanism
to influence the legislative agenda is through the "own-initiative"
reports of its parliamentary committees. Parliament frequently
uses these reports to call on the Commission to take action of
some sort, which frequently includes calls for new legislative
proposals. Although political groups, parliamentary committees
and individual MEPs can make such demands of the Commission, the
documents carrying the most weight are own-initiative reports
drawn up after due consideration by the responsible committee
and adopted after debate in plenary. The Commission first responds
to such initiatives in the debate on the report in plenary. It
later reports back to Parliament's committee on how it has responded
to "own initiative" resolutions and requests for action.
Examples of "own initiative" reports leading to legislation
include the ban on tobacco advertising (passed in 1998 under the
co-decision procedure and traced back to a Parliament initiative
in 1990), and the directive on trans-frontier television broadcasts
(adopted in 1997).
9. The adoption of Commission legislative
proposals does not take place in a vacuum, and the pre and post-legislative
phases are also of crucial importance. The Commission always consults
interested parties in civil society during the formulation of
a proposal. It also produces a range of Communications and Green
and White Papers in the pre-legislative phase, in which it outlines
the possible need for legislation and the various available policy
options. The relevant parliamentary committees are closely involved
in the consultative phase in putting together these documents
and often draft their own reports (through own initiative reports
on Commission papers that have important policy implications).
10. In some policy areas, pre-legislative
proposals by the Commission are of at least equal importance to
legislative proposals, not least because Parliament can have a
role in shaping the final legislative proposals at this stage.
11. Parliament's scrutiny of legislation
does not conclude with its adoption. The Legal Affairs committee
is responsible for monitoring the transposition into national
law of EU legislation and the effectiveness of adopted legislation,
and, indeed, evaluating whether it needs to be amended, abolished
or replaced. More specifically, parliamentary committees may draft
follow-up reports examining adopted EU legislation, which is particularly
relevant for committees such as the Environment committee.
12. Written declarations (WDs) are another
way for the Parliament to press the Commission. In some senses
WDs are similar to Early Day Motions in the House of Commons;
they are required to be short (200 words maximum), can be tabled
on any matters falling within the EU sphere of activities and
are often ignored by both MEPs and the other institutions. However,
those that do receive an absolute majority of Parliament's MEPs
become the official position of the Parliament. A topical example
is the WD adopted by Parliament in 2006 calling for the Commission
to bring forward legislative proposals to ban the import of commercial
seal products. In conjunction with animal welfare NGOs, the Parliament
has helped generate public opinion and widespread political support
for such legislation.
The annual legislative work programme
13. Since the adoption of the Single European
Act, Parliament and the Commission have worked together on an
annual legislative programme and timetable. Although this is largely
exercise in determining a timetable for the presentation of Commission
proposals, it offers an opportunity for Parliament to influence
the priorities in the Commission's programme and to press for
the inclusion of new items (eg following up parliamentary "own
initiative" reports) or even the exclusion of some items.
14. The current procedure for organising
the Commission's legislative programme starts the preceding year
at the spring part-session with the "state of the Union"
debate in the Parliament, which focuses on the main political
priorities. Between March and May, parliamentary standing committees
concerned hold a series of bilateral meetings with the relevant
Commissioners, the results of which are then assessed by the Chairs
of the parliamentary committees and the Commission Vice-President.
At the November part-session, the Commission President formally
presents to Parliament the resulting Commission legislative and
work programme for the next year.
Will the Lisbon Treaty change much?
15. The Lisbon Treaty should strengthen
the voice of national parliaments in developing European legislation.
At present, national parliaments have no formal say in the formulation
process. Under the Lisbon Treaty, for the first time, national
parliaments will be guaranteed the opportunity of a direct say
on every Commission legislative proposal. Legislative proposals
will be sent first to national parliaments, who are guaranteed
an eight week period to examine them before the Council and the
European Parliament take a position. This should enhance the ability
of national parliaments to shape the position taken by their own
government representatives and to scrutinise their actions in
Brussels.
16. In this respect, Britain has much to
learn from the way that the Nordic countries operate. The example
of Denmark and Finland, where any government minister attending
Council has to first appear before a national parliamentary committee
to go through the agenda and discuss the position to be taken,
has many merits and should certainly be considered for Westminster.
These procedures could serve as an added "quality control"
for EU legislation.
17. It will also strengthen the subsidiarity
mechanism through the "yellow" and "orange"
card safeguards, which give national parliaments the right to
send proposals back to the Commission that, they feel, breach
the subsidiarity principle. This is an important safeguard even
if, in practice, it will rarely be necessary.
18. Combined with the increased powers for
the European Parliament under the Treaty, with co-decision becoming
the normal legislative procedure and greater powers of control
over delegated legislation, the Lisbon Treaty should create new
"quality controls" for European law.
19. Another innovation of the Lisbon Treaty
is that it will introduce an EU citizens' initiative which will
enable citizens to submit proposals to the European Commission
where they consider that legislation is required. This will strengthen
citizens' rights of participation in the European political process.
It will also give NGOs another method through which they can lobby
the Commission and Parliament.
Conclusion
20. The development of EU legislation is
by its very nature a slow process, with a bi-cameral legislature
and a number of institutions consulted—and rightly so, as
we should take the utmost care before adopting legislation that
will apply to most of a continent! However, contrary to the myths
of eurosceptics, legislative proposals are not decided on in secret
by the Commission to be "rubber-stamped" by the Council
and Parliament. As far as the European Parliament is concerned,
it has demonstrated its ability to initiate new legislation in
areas of concern to the public and to rigorously scrutinise the
development of legislative proposals from their conception to
adoption.
20 April 2008
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