EU Legislative Process Research Articles

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BURY OR GIVE A NEW LIFE? THE BENEFITS OF THE COALITION OF THE WEIMAR TRIANGLE COUNTRIES IN THE LEGISLATIVE PROCESS OF THE EUROPEAN UNION The article seeks to answer the following question: does building a Weimar coalition, understood as agreeing on a common policy position on EU legislation, increase the bargaining success of the Weimar Triangle (WT) countries when adopting EU secondary law? For this purpose, a statistical analysis was carried out to empirically test the hypothesis that Germany, France and Poland are more successful in realizing their preferences when they form a coalition. The following results were obtained. First, the possibilities of building a Weimar coalition in the EU legislative process are limited. In the years 2004-2019, WT countries held a common position on only 25% of EU legislative files, while the country that most often broke the Weimar coalition, was Poland. Second, despite its low frequency, building a Weimar coalition is generally very profitable. When WT countries form an alliance, the average bargaining success of these countries taken together increases compared to the absence of such a coalition. Third, building a Weimar coalition is not equally beneficial for all WT members treated individually. While it increases the bargaining success of Poland and France, this relationship does not exist in the case of Germany.

The challenge of defining artificial intelligence in the EU AI Act

The EU Commission, the EU Council and the EU Parliament have each issued their own versions of the text of a new EU AI Act. Throughout the gestation of the EU AI Act a core and complex question has arisen: how should ‘AI system’ be defined in the EU AI Act? This paper examines the evolution of the definition of ‘AI system’ in the draft EU AI Act. This paper suggests that, in order to achieve the EU’s goals, a definition of ‘AI system’ which is clear and cannot be modified outside the EU legislative process, which is sufficiently broad to accommodate future technological developments and which focuses on systems which make predictions, recommendations and decisions would appear to be both the most practical and the most appropriate.

The impact of the EU enlargement on the speed of decision-making

This paper presents a quantitative empirical study of the impact of the EU enlargements in 1995 and 2004 on the speed of the decision-making process (legislative process). The research is based on two methods: interrupted time series analysis and survival analysis (Cox model). The use of these methods increases the validity of the present study. The empirical data consists of the EU secondary law directives and regulations. The methodology and research design allow to distinguish between the impact of enlargement and the impact of changes of the institutional parameters of the decision-making process. The findings demonstrate that the legislative process significantly accelerated at the time of the 2004 enlargement. Most likely this was because 1) the preferences of the new member states were generally within the range of preferences of the old members and a new axis of conflict (Western versus Eastern member states) emerged only in a limited number of EU areas of activity; 2) the Council adopted new Rules of Procedure immediately before the entry of new members, which significantly increased the effectiveness of the Council. As for the 1995 enlargement, due to the low reliability of estimations, it can only be cautiously concluded that it did not have a visible slowing effect on the decision-making process. The conclusion that the 2004 enlargement did not entail a slowdown of the EU legislative process is of fundamental importance for understanding the specifics of the functioning of the EU.

Still a “spectator”? Capabilities of the Spanish REPER and Spain’s influence in the Council of the EU

To what extent is the Spanish Permanent Representation to the EU comparable to other MS in terms of capabilities? What are the indications of Spain’s strengths and weaknesses in EU legislative processes? This article investigates the resources mobilized by Spain as part of the EU policymaking processes in Brussels and its influence in shaping decision outcomes. Drawing on new qualitative and descriptive quantitative data sets, this research compares the human resources of the Spanish Permanent Representation, its internal coordination process, and its external engagement with EU stakeholders, to other member states. The article highlights possible implications of these variations for Spain’s bargaining success in the Council of the EU. The findings reveal the challenges that Spanish negotiators face in exerting influence in the EU decision-making process and show how adequate levels of administrative and human resources are sometimes not sufficient for Spain to leave the group of “spectator” member states in the governance of the EU.

Judgments on the selection of the seats of EU agencies: Challenges and what will change

The process of the selection of the seats of an EU agency has been an intergovernmental decision-making between the EU Member States, in most cases separated from the EU legislative process related to the establishment and functioning of the agency. The Court of Justice had a possibility to assess the legality of this hybrid process and decided that the power to determine the seat of EU agency belongs solely to the EU co-legislators. The three judgments in five cases contain several contentious points regarding the interpretation of Article 341 TFEU, which will be analyzed in this case note. In addition, its purpose will be also to assess the implications of the judgments to future decision-making process related to the selection of seats of EU agencies.

Impact of a member state in the EU's legislative process of shared competences

Impact of a member state in the EU's legislative process of shared competences

Related Party Transactions – a closer look at the emergence of the new EU regime

The Amended Shareholders’ Rights Directive adopted in 2017 pushed the regulation of related party transactions high up on the Member States’ legislative agenda. The Directive requires binding rules addressing related party transactions in listed companies. This article takes a closer look at the discussions and negotiations in the EU institutions leading up to the Directive adopted and ends with some reflections on the EU legislative process, drawing on my decades long ministerial experience of negotiating and implementing EU legislation in the field of company law, including this one.

Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation

In recent years a significant increase in applications sent to Polish institutions to obtain the return of abducted children under the 1980 Hague Abduction Convention can be observed. Simultaneously, Poland has struggled with a problem of excessively long court proceedings in those cases and the lack of specialisation among family judges. Taking these difficulties into consideration, in 2018 the Polish Parliament introduced a reform aimed at improving the effectiveness of the court proceedings for the return of abducted children. The work on the amendment of the Polish legal regulations was carried out in parallel to the EU legislative process in the field of international child abduction. Although the Polish reform had been introduced before Council Regulation (EU) 2019/1111 of 25 June 2019 (Brussels IIb) was adopted, the 2016 proposal for this Regulation had been known to the national legislature. When discussing the amended Polish legal regulations, it should be considered whether they meet their goals and whether they are in line with the new EU law.

Participation by national parliaments in the EU legislative process

Europeanisation has marginalised national parliaments and their democratic practices leading to a ‘de-parliamentarisation’ within the EU. The Treaty of Lisbon included substantive provisions designed to improve participation by national parliaments in EU decision-making, the most significant of which is the allocation of subsidiarity monitoring. This was intended to address concerns that national parliaments are peripheral within the EU Polity, and that EU legislation lacks legitimacy amongst its citizens. Protocols 1 and 2 of the Treaty of Lisbon promote a horizontal political dialogue between national parliaments within subsidiarity monitoring, but, experience of the last ten year indicates that this has not improved legislative legitimacy, nor adequately addressed de-parliamentarisation. This article argues that, while the Treaty of Lisbon has enhanced the privileges of national parliaments, they have not been ‘re-centred’ as an influential collective bloc of actors within the EU’s institutional framework.

Discussing Subsidiarity in Terms of Justification

This article attempts to study the inter-institutional dimension of the practical implementation of the subsidiarity principle in the EU legislative process. The main research question is whether the subsidiarity principle could be a real communicative tool in the EU’s multi-level regulation policy used to seek consensus between EU institutions and national parliaments on the justification of an appropriate level for EU actions (subsidiarity justification). The short answer is ‘yes’. Through the content analysis of the published documents and with the help of the theory of deliberation, the author argues for a subsidiarity justification procedure occurring at the beginning of each instance of the EU legislative process to provide an inter-institutional setting to move away from confirming (one-way) to deliberative (two-way) reasoning over the issue of potential subsidiarity violation in the EU legislative process.

Return to De Capitani: The EU Legislative Process between Transparency and Effectiveness

<p>Three years after the judgment of the General Court in the <em>De Capitani</em> case, we assess whether the findings of the Court have settled for good the debate between transparency and effectiveness in EU law-making or rather opened new reflections on legislative transparency in the EU.</p>

To What Extent Can the CJEU Contribute to Increasing the EU Legislative Process’ Transparency?

Alongside other actors such as the European Ombudsman, the Court of Justice of the European Union (CJEU) plays what looks like, at first sight, a key role in improving the transparency of EU legislative procedures. To take two relatively recent examples, the <em>De Capitani v. European Parliament</em> (2018) judgment was perceived as a victory by those in favor of increased transparency of EU legislative procedures at the stage of trilogues, as was the <em>ClientEarth v. European Commission</em> (2018) judgment regarding the pre-initiative stage. Both rulings emphasize the need for “allowing citizens to scrutinize all the information which has formed the basis of a legislative act…[as] a precondition for the effective exercise of their democratic rights” (<em>ClientEarth v. European Commission</em>, 2018, §84; <em>De Capitani v. European Parliament</em>, 2018, §80). Nevertheless, while the CJEU’s case law may indeed contribute to improving the legislative process’ transparency, its impact on the latter is inherently limited and even bears the potential of having a perverse effect. This article sheds light on the limits of the CJEU’s capacity to act in this field and the potential effects of its case law on the EU institutions’ attitudes or internal organization.

Agency slack as cause of deviation in trilogue negotiations

ABSTRACT Trilogues are the main forum for legislative negotiation in the EU. In trilogues, each co-legislator is represented by negotiators, who therefore play a central role in the current EU legislative process. This paper examines whether trilogues enable negotiators therein to slack by deviating more from the mandates they receive when they disagree with their institutions. The extent of deviation is measured using text-mining techniques for 219 negotiations conducted between 2012 and 2018. As a main result, the analysis does not reveal evidence that deviation in trilogues is significantly linked to principal-agent disagreement, neither in the EP, nor in the Council. In other words, the extent of deviation in trilogues does not appear to be the result of negotiators defending positions that are not representative of those of their institutions. This result thus contributes allaying the normative concerns expressed regarding the non-representativity of trilogues compromises, and therefore of EU legislation.

The Early Warning Mechanism as a Tool for Monitoring Compliance with the Principle of Subsidiarity in the European Union Legislative Procedure

The paper substantiates the definition of the concept of an “early warning mechanism”, proposes narrow and broad approaches to its interpretation, analyzes the inherent legal, political and administrative parameters. The paper demonstrates the correlation between the principles of subsidiarity, proportionality and competence within the framework of the early warning mechanism, their inseparable interrelationship and consequent practical problematics. The author investigates the main forms and methods of regulating the procedure for implementation of the early warning mechanism in EU member states. It is stated that the main differences can be traced in the context of the fixed circle of subjects of the right to conduct verification, as well as the degree of detailed elaboration (specification) of the field of regulated legal relations. Based on an analysis of the content of some reasoned opinions of national parliaments, it is concluded that the lack of a common understanding of the principle of subsidiarity at the European and national levels, as well as the criteria for its compliance, have a direct impact on the early warning mechanism, which is reflected in the reduced effectiveness of its implementation. Attention is paid to the legal nature and specifics of the “yellow card” and “orange card” regimes as a variety of forms of implementation of the early warning mechanism. It is concluded that at the current stage the “card” regimes represent an insufficient and ineffective instrument for the national parliaments to influence the EU legislative process. The author highlights the problems of organizing inter-parliamentary cooperation within the framework of the early warning mechanism. It is emphasized that, in fact, national parliaments act blindly when conducting checks on the conformity of draft legislation with the principle of subsidiarity. The paper concludes that the early warning mechanism in actual modification cannot be fully qualified as a tool for providing additional legitimation of solutions made by supranational authorities. The author makes proposals for improving the institutional configuration of the early warning mechanism.

From sneaking to striding: Combatting competence creep and consolidating the EU legislative process

AbstractThis paper argues that the EU legislative process should be used for taking all decisions at European level that matter, banning the various backroads of European decision‐making (competence creep) that are currently legal but not legitimate. This is a silver bullet, resolving at once a range of seemingly disparate but intimately connected legitimacy problems across all areas of EU activity, that ultimately result from an incorrectly calibrated state of transnational constitutional democracy at EU level, where certain aspects are over‐constitutionalised while others remain fundamentally under‐constitutionalised. This is therefore the key transversal issue that the Conference on the Future of Europe and its ensuing changes should address. The paper makes various concrete proposals to this effect, including for a general legislative competence.

Enduring consensus: why the EU legislative process stays the same

ABSTRACT The multiple crises that the EU has faced over the last decade could lead observers to expect an increase in conflicts within its legislative process and, eventually, a shift from a consensual mode to a majoritarian and politicized mode. The dataset The EU Legislative Output 1996–2019 indicates that this has occurred only to a moderate extent. To explore this enduring consensus, we analyse quantitative and qualitative data on law making within the Council of the EU and the European Parliament and proceed to a systematic diachronic comparison. We argue that, as before the crisis, consensus remains a norm and results from cooperation based strategies. Furthermore, new factors, such as the extension of the ordinary legislative procedure, a pro-EU alliance within the European Parliament and the smaller number of legislative proposals, foster consensus.

The responsiveness of legislative actors to stakeholders’ demands in the European Union

ABSTRACTThis study examines the extent to which stakeholders’ demands are represented by the Commission, European Parliament, and national governments in the Council when legislative proposals are debated. We formulate and test propositions from resource exchange theory to explain variation in the responsiveness of EU actors to various stakeholders. Our research design integrates the study of the formative and decision-making stages of the legislative process, which are often studied in isolation. We combine new information from detailed qualitative content analysis of consultation documents with an established dataset on subsequent legislative decision-making. The findings indicate that a broad range of stakeholders’ demands are reflected in the positions taken by the national and supranational actors involved in the EU's legislative process, but also that there is considerable variation in the extent to which different EU actors respond to stakeholders of different types and origins.

The Watchdog or the Mandarin? Assessing the impact of the Directorates General on the EU legislative process

ABSTRACTThis article assesses the role of the Directorates Generals (DGs) led by the Commissioners in the EU legislative decision-making by testing two perspectives: ‘the Watchdog’ and ‘the Mandarin’ of the EU principals. The former suggests that a conflict of preferences between the DGs will notify the EU principals of prospective bureaucratic drift, leading to more restrictive discretionary limits imposed on the Commission in the implementation stage. However, if the lead DG acts as the Mandarin, proximity of its preference to the EU principals should result in more executive leeway as its policy preference is more beneficial for the EU legislators. To tests the conjunctions, this study focuses on two dimensions of EU political space: Left-Right (LR) and Pro/Anti-EU. The results suggest that the legislators will indulge the Commission with more leeway for the implementation when their preferences are more congruent with the position of the lead DG on the LR dimension, thus supporting ‘the Mandarin’ perspective.

National Parliaments in Subsidiarity Review: From Guardians to Partners

Abstract With a clear emphasis on substantive political value that national legislatures are able to bring to the EU legislative process, this paper attempts to overcome skepticism about deepening national parliaments’ direct involvement in the decision-making process at the European level. The role of national parliaments in advancing their subsidiarity concerns within European law-making may be strengthened through a more intensive political dialogue with the Commission, when the former acts not just as the ‘guardians’ of the subsidiarity principle (in the framework of the existing yellow and orange card schemes) but also as active contributors to the law-making process encouraging the Commission to leverage the so-called green card procedure. Complemented by the yellow and orange card provisions, it forms a three-element subsidiarity review mechanism perfectly capable of dealing with subsidiarity concerns of national parliaments at various stages of the EU law-making process, thus transforming the chambers from wardens into partners working together with the Commission to reshape EU legislative proposals for the sake of better regulation.

In search of transparency for EU law-making: Trilogues on the cusp of dawn

Who controls the information that is part of the EU legislative processes and is the process as a whole under control? This article explores the legal framework and the applicability of that framework to evolving informal practices by the three key institutions (EP, Council, Commission) involved in the EU legislative process. Given the legislative deadlock on an updated transparency regulation, there are challenges relating to the opacity of Council and Member State positions, legal advice and the so-called four-column documents, which are used to map out progress in interinstitutional negotiations. Currently, the institutions themselves keep control and adopt the relevant rules as a matter of internal (or interinstitutional) working arrangements. We argue that when the institutions exercise legislative functions they are in fact exercising highly political functions that define the fundamental policy choices of the Union’s action. This requires not only passive transparency in the form of access to documents but also proactive transparency by the institutions themselves.