Memorandum by Dr Eve Sariyiannidou
1. Eve Sariyiannidou is an expert on EU
law and policy and works as an independent consultant. Her research
on institutional and constitutional developments in the European
Union has attracted particular interest from the Council of Europe
and the Western European Union. She is a member of the European
Commission Working Group on Integrated Border Management, an official
observer at the WEU Interparliamentary European Security and Defence
Assembly and has been on the panel of experts of the European
Commission for the Seventh Framework Programme (2007-13).
2. The legislative proposal is the first
stage of the EU's formal legislative process and successive
constitutional amendments have preserved intact the Commission's
exclusive right to initiate legislation (except where the treaties
provide otherwise).
3. The manner in which legislative proposals
are created is not regulated by the treaties. Therefore, the actual
process is ad hoc, unconstrained by formal rules, and characterised
by informal institutional practice and various channels of consultation
and cooperation. In this context, to assess how a proposal for
legislation is developed under the Commission's "right of
initiative", one needs to focus on the internal institutional
and administrative practices of the Commission, but also take
into account the influence of organised interests at national
and subnational levels.
4. As the treaties set out the general competences
of the institutions and govern only the basic principles of the
operation of the specific legislative procedures, there is much
room for interpretation of the different institutional roles.
Due to the open-ended nature of the treaties, the Community institutions
frequently use all the political and legal means available to
defend their prerogatives and increase their impact on the decision-making
process. This also applies to the formation of legislative proposals
by the Commission. Hence, the second issue is whether the European
Parliament and the Council can trigger legislative proposals or
determine their scope and extent during their development.
5. A third issue is the proliferation of
institutions in the Union's decision-making system who "share"
executive functions. In this institutional environment, the European
Council often emerges as the de facto higher level decision-maker
in the EU. There are also elements of hierarchy in planning the
overall priorities for legislation.
FORMING A
LEGISLATIVE PROPOSAL:
AN OVERVIEW
6. As the defender of the general interests
of the Community, the Commission has been given the "right
of initiative" which empowers and requires it to make proposals
on matters contained in the Treaty, either because the Treaty
expressly so provides or because the Commission considers it necessary.
The Commission's role is to be cognisant of new challenges in
areas of EU policy that require action. It will evaluate whether
EU legislation is the best way to deal with these challenges and
will propose action at EU level, only if it considers that a problem
cannot be solved more efficiently by national, regional or local
action (subsidiarity principle).
7. One such area, where action was deemed
to be required at EU level, is control of pollution and CO2 emissions.
Work towards legislation was triggered partly by Commission policy,
developed internally. The Commission's proposal (COM(2007) 18
final/2, 14.02.2007) to amend the Fuel Quality Directive (Directive
98/70/EC as amended by Directive 2003/17/EC relating to measures
against air pollution by vehicle emissions), was inspired by its
own "Energy Policy for Europe" (COM(2007) final/1, 10.01.2007)
which set minimum targets for biofuels, as well as its "Thematic
Strategy on Air Pollution" which set out a number of goals
for the reduction of air pollution in the EU (COM(2005) 446, 21.9.2005).
8. In shaping the new proposal, the Commission
adopted a consistent approach to the overall environmental policy
objectives of the Union, for instance, the Kyoto strategy of the
EU as set by the targets and priorities of the European Council
and the Council (environment ministers).
9. The review process of the Fuel Quality
Directive was accompanied by a consultation exercise on the scope
of its review, involving stakeholders and national experts (working
groups). The Directive deals with highly technical issues in a
range of policy areas. Hence, its review required contributions
from a significant number of industrial sectors. In view of these
factors, the Commission sought input from organisations with relevant
expertise. This input has been provided by the Commission's Joint
Research Centre (JRC), which held structured dialogue and meetings
with individual stakeholder or groups of stakeholders (working
groups).
10. The JRC, which provides administrative
support to the Directorates General of the Commission, undertook
scientific work in some of the technical areas, in the review
work required, with the support of different stakeholders. It
contributed to the preparation of meetings with working papers
setting out the salient issues, objectives and tasks, reported
on progress of the stakeholder meetings (working groups) and responded
to questions and comments. As with every consultation practice,
the JRC was required to create and host an internet page which
should contain an update of progress, input from stakeholders,
draft reports etc. The comments of stakeholders on all of the
different aspects of the review have been made publicly available
on the internet, except in cases where stakeholders requested
their comments to be kept confidential.
11. The JRC submitted its report to the
Commission (FINAL REPORT Ispra, 28/02/2006 H04-EHU/AK/rp/D(2006)5179).
The Commission carried out an Impact Assessment which reported
the main views of the stakeholders (see document COM(2007) 18
final, 31.1.2007).
THE EUROPEAN
PARLIAMENT AND
THE COUNCIL'S
INFLUENCE IN
AGENDA SETTING
12. The Commission's constitutional right
to initiate legislation means that it falls on the Commission
to decide whether the Community should act and, if so, on what
legal basis. It also decides what content and what provisions
as regards further implementation the proposal should contain.
The Parliament can request the Commission to submit an "appropriate"
proposal (Article 192 EC), but this is not equal to the power
of initiating legislation. However, it has often proved quite
effective. The Commission itself has pointed out that, in many
cases, it had been the other institutions that insisted on its
presenting a proposal, or who have made its proposals more complex
in the course of the legislative procedure (Bulletin EU 5, 1998:
1.8.3).
13. The Commission's institutional right
to propose legislation cannot be examined without reference to
interinstitutional relations, a key aspect of the EU legislative
process, including the "proposal" stage. A legislative
proposal constitutes the reference text which can influence the
context of the legislative outcome. The opportunity available
to the Commission to press amendments through the legislative
process (normally under the codecision procedure) often depends
on the favourable, or unfavourable, stance of the Parliament and
the Council Presidency, as was the case of the original "auto-oil"
package (Directives 98/69 EC and 98/70 EC) in 1998. Faced with
a British Presidency with plans to make the environment its priority,
the Commission's proposed targets for legislation rallied the
support of the Council.
14. The Commission's legislative influence,
incumbent in the right of initiative, is contingent to a number
of institutional factors, including the Council's "sectorised"
nature and the different voting rules. The Environment Council
has welcomed the Commission's decision to look at further common
and coordinated measures to meet the Kyoto Protocol obligations
(2684th Environment Council, Luxembourg, 17.10.2005, Press Release
Nr 12953/05).The increased use of majority voting in the Council
has strengthened the Commission's influence as an agenda setter,
as its proposals have to rally the support only of a number of
Member States, enough to attain the needed majority.
15. Enhanced by the lacunae character of
the treaties, institutional practice relies on personal contacts
and, overall, a "deformalisation" of interinstitutional
relations. In the interest of better law-making, the three institutions
(the EP, the Council and the Commission) have further agreed on
the general coordination of their preparatory and legislative
work based on dialogue and appropriate procedures, including the
provision by the Commission with clear and comprehensive justification
for the legal basis used for each proposal (Interinstitutional
Agreement on better law-making OJC 321/1, 31.12.2003). The Commission
is responsive to the fact that engaging parliamentary committees
early in the process could result in the successful pass of its
proposals through the legislative process. As a result, MEPs may
occasionally be involved in the drafting of a proposal itself.
THE EUROPEAN
COUNCIL'S
STRATEGIC LEADERSHIP
IN AGENDA
SETTING
16. The European Council's constitutional
role, as envisaged in the treaties, is political rather than legal.
Its function of setting strategic guidelines and generating political
impetus is delineated in Articles 4 and 13 TEU as an initial procedural
step. Yet, it often emerges as the de facto higher level
decision-maker in the EU, as its responsibilities are so comprehensive
to be regarded the institution with the highest authority in the
Union.
17. By simply reading the presidency conclusions,
one may find ample evidence that it is the European Council that
determines what the other institutions can or cannot do. It plays
a very important role in the political process by taking general
policy decisions, but most importantly, by directing the evolution
of the Union's policies.
18. The European Council increasingly seeks
to assert its leadership role in both the political and institutional
development. Having laid the foundations for action on a wide-ranging
climate and energy policy (spring 2007 and 2008 summits), the
European Council has called on the EU institutions, especially
the Commission, to create a comprehensive regulatory framework
to meet its ambitious emissions and energy targets. It has further
called on the Commission to provide institutional and qualitative
reforms to its system of impact assessment in the interests of
better regulation.
19. The hijacking of policy generating by
the European Council, whose increasing dominance may be seen to
take over the Commission's traditional role of legislative initiative,
may be further exacerbated by the institutional innovation of
the European Council presidency, should the Reform Treaty be ratified.
The new role may create an even more complex regime of shared
executive power, as the respective responsibilities between the
President of the European Council and the President of the Commission
could potentially overlap. But there is more to the relationship
between the two presidencies than the "sharing" of executive
power; there are issues as to the hierarchy—between the
Commission and the European Council—in planning the overall
priorities for legislation.
CONCLUSION
20. The way in which legislative proposals
are created is not subject to observable rules and processes.
The Commission draws ideas for legislation, where required, from
the overall objectives and policy commitments of the Union, its
own policy instruments and via organised interests. The open-ended
character of the treaties has a series of implications. Cognisant
of the institutional and legislative significance of the Community
institutions, the Commission may involve the Parliament and the
Council at the very initial stage of the legislative process;
that is, the initiation and drafting of a proposal. Another issue
is that the treaties provide the European Council with a strong
political, not legislative, role without further elaboration.
The European Council seems to have made good use of its "open-ended"
political role by increasing its agenda-setting and, in effect,
hijacking the Commission's traditional legislative role to initiate
legislation.
April 2008
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