Ordinary Legislative Procedure Research Articles

EU emergency measures in energy law – opportunities and challenges of a new legal instrument

In recent years, the Council of the European Union increasingly invoked the emergency competence of Art 122(1) TFEU for the adoption of legislative acts. The present article sheds light on the scope and limits of this article and aims to contribute to the provision’s hitherto scarce academic analysis. The Council of the European Union adopted six “emergency regulations” based on Article 122(1) TFEU to overcome the energy crisis. According to the wording of the provision alone, the requirements for invoking Article 122(1) TFEU as a legal basis do not seem to be high. This is surprising as the European Parliament and other institutions are not involved in the lawmaking process under Article 122 TFEU, and the Council decides by qualified majority. Therefore, four unwritten, or to be defined in more detail, conditions need to be fulfilled for the adoption of measures based on Article 122(1) TFEU: there must be serious economic difficulties, the measures adopted must be “appropriate” to the economic situation, there must be a causal relationship between the cause of economic difficulties that authorize the taking of measures and the objectives pursued by the Commission and the Council, and there must be an urgency that manifests itself in the fact that the ordinary legislative procedure cannot be awaited. Article 122(1) TFEU constitutes an exception from other EU competences, in particular Article 194 TFEU; therefore, there is a need to analyse whether it is reasonable to waive the specific requirements set out in these rules. One may think of the sovereignty limitations in Article 194(2) TFEU and the special requirements under Article 194(3) TFEU. The criterion “in the spirit of solidarity” is to be understood rather broadly and requires the balancing of the affected interests, including those of the Member States and of the Union as a whole.

Regulation (EU) 2018/1805: Mutual recognition of freezing and confiscation orders between efficiency and safeguards. “Proceedings in criminal matters” and non-conviction based confiscation

December 2020 saw the entry into force of Regulation 1805/2018, the adoption of which is a doubly important event: first, because it confirms the principle of mutual recognition in this sensitive area, following Framework Decision 2006/783/JHA; second, because it establishes mutual recognition by means of a directly applicable legislative measure, a Regulation, adopted in accordance with the ordinary legislative procedure pursuant to Art. 82 (1) TFEU. In order to understand the scope of the Regulation – what types of domestic confiscation are covered – it is important to interpret the EU autonomous concept of “proceedings in criminal matters” (art. 1), “notwithstanding the case law of the European Court of Human Rights” (recital 13). To increase enforcement, it will be crucial to improve harmonisation through the new proposed Directive (May2022).

3.G. Round table: European Union policies: the basis for EU legislation and the case of the EU HTA regulation

Abstract Among the objectives of the European Union (EU) there is the protection and improvement of European citizens’ health. To this end, several instruments can be enacted at EU level, both of binding legal nature- such as regulations, - and not binding -. EU regulations are binding legislative acts that must be applied across all the EU member states (MS). In the context of the Ordinary Legislative Procedure, proposals are initiated by the European Commission and their development involves two more actors, namely the European Parliament, representing EU citizens, and the Council of the EU, representing EU governments. These act as co-legislators, are requested to review the proposal, and have the right to propose amendments to reach a final agreement on a joint text, often through tripartite meetings on legislative proposals between representatives of the Parliament, the Council and the Commission; these are referred to as ‘Trilogue’ meetings. The EU regulation on Health Technology Assessment (HTAR) was adopted in January 2022, and will become legally binding in January 2025. It provides a first input for the reorganisation of the pharmaceutical market across all EU strategy (Pharmaceutical Strategy). The Pharmaceutical Strategy aims to future proof regulatory frameworks; support industry in promoting research; and foster EU citizens’ access to safe, effective, and high-quality medicines that are used in diagnosis, treatment and prevention of diseases. HTA allows for evidence-informed policy- and decision-making, disentangling the comparative value of health technologies and permits for informed negotiation in terms of pricing, reimbursement and, of course, in terms of establishing priorities for procurement decisions. The HTAR framework allows to overcome specific key challenges stemming from the highly divergent and fragmented HTA procedures across EU MS, ultimately aiming to allow a more timely and equitable access to medicines, vaccines and devices, at EU level, including by allowing a more harmonised approach in terms of dossier submission for companies too. The preparatory phase for the implementation of the HTAR is underway with the establishment of the Coordination Group on HTA (HTACG) and of the HTA Stakeholder Network, the set up of a secure intranet for the exchange of information and the planning of capacity building initiatives. This workshop is intended to provide the attenders with insights into the process behind the development of EU regulation with a focus on HTA regulation and its following implementation. Key messages • European legislative acts set the framework for the protection and the improvement of European citizens’ health and for member states policies. • The EU regulation on Health Technology Assessment will foster European citizens’ access to safe, effective, and high-quality medicines, vaccines and devices and its implementation is underway. Speakers/Panelists Jose A Valverde European Commission, DG Health and Food Safety, Brussels, Belgium Amandine Garde Law & Non-Communicable Diseases Unit, Liverpool, UK Marco Marchetti Italian National Agency for Regional Healthcare Services (AGENAS), HTA unit, Rome, Italy Iñaki Gutiérrez-Ibarluzea Basque Foundation for Innovation And Research (BIOEF), Barakaldo, Spain

The distinction between "measures" and "provisions" of a fiscal nature is beyond the scope of this article.

The objectives of the European Union's energy and environmental policy are achieved through measures adopted on the basis of the Treaty on the Functioning of the European Union (TFEU), which in this respect generally provides for the ordinary legislative procedure. A special legislative procedure is required for the adoption of "provisions of a primarily fiscal nature". The aim of this article is to analyze the meaning of this concept, and thus the scope of the unanimity requirement in matters relating to these EU policy areas. In particular, the nature of the provisions and their functions were distinguished from the objectives pursued by them. The thesis of the article states that the indication of the purpose of spending funds does not change the fiscal nature of their collection, and the attempt to narrow the concept of "fiscal nature" to the concept of "tax nature" is not justified in the doctrine of public finances.

Article: ‘Provisions Primarily of a Fiscal Nature’: Time to Dispel Doubts

The concept of ‘provisions primarily of a fiscal nature’ is not defined in the EU Treaties. Despite the absence of an exact definition, such expression has been so far understood as including the adoption of all types of environmental taxes. But is this interpretation correct? And is it the only possible one? This article aims at answering the question of whether environmentally driven fiscal measures that have primarily regulatory goals can be introduced via the ordinary legislative procedure as per Article 192(1) Treaty on the Functioning of the European Union (TFEU). In doing so, this contribution firstly describes why Article 192(2)(a) TFEU was introduced as an exception to paragraph 1. Secondly, it analyses the concepts of ‘primarily’ and ‘fiscal nature’ and assesses whether the different language versions of the TFEU dispel doubts about their meanings or increase the level of uncertainty. In light of this scrutiny, the author proposes a potential new interpretation that would bring the adoption of environmentally driven taxes under the umbrella of Article 192(1) TFEU. Environmental taxes, fiscal nature, unanimity, qualified majority voting, special legislature procedure, ordinary legislative procedure, passerelle clause

Kwestia uzupełnienia ustawy ratyfikacyjnej o dodatkowe treści (art. 89 Konstytucji RP)

The authors point to arguments of legal interpretation of the Constitution that would justify the possibility of including additional provisions in the statute agreeing to ratify the international agreement (Article 89(1) of the Polish Constitution). A condition for such an extension would be the direct link between the additional content and the implementation of the international agreement and the possibility of adopting additional content in the ordinary legislative procedure. Such provisions could not violate the provisions of the Polish Constitution. The authors also point to non-legal arguments that could justify such action by the legislature in a particular situation. However, they favour the uniqueness of such a solution and its embedding in a specific systemic context.

The Development of The Labour Law of the European Union in 2019 – New Sources and New Perspectives for a More Reliable Legal Framework of Labour Relations. Part One: European Labour Authority – Establishment and Legal Characteristic

In 2019 the development of the labour law of the EU received a strong impetus. The questions of the EU social policy were among the leading activities of all EU institutions. Two acts in the field of EU social policy, adopted in 2019, attract attention because they are expected to have a structural role in the future development of European labour and social law. These are Regulation (EU) 2019/1149 and Directive (EU) 2019/1152. Both acts were adopted under the ordinary legislative procedure, both acts have an identical story about their adoption, and were not accidentally adopted on the same date and published in the same issue of the OJ of the EU. The adopted acts of the EU law in the social field are the logical final step in the multi-year progressive efforts for adequate coping with the many problems and challenges facing the internal market, incl. labour market, which became a reality in the second decade of the 21st century. Given the size of the normative content of both acts, their social and legal purpose and importance of labour law and social policy of the EU, it is necessary to analyse them separately. In the following lines, as part one of a more comprehensive study, will be presented the background and establishment of the European Labour Authority, as well as its legal characteristic – functions and bodies. The statement does not claim to be exhaustive – it marks the beginning of a study on the place and role of this new body in the ever-current EU social policy.

Negotiations in the Council of the EU under a new institutional setting: the case of the asylum policy

ABSTRACT This study aims to explain how changes in the institutional setting influenced and shaped member states’ capabilities and negotiation behaviour in the Council of the EU, focusing on the asylum policy. By combining the actor-centred institutionalism framework with the literature on EU decision-making, bargaining, and Europeanisation, it argues that the observed ‘mixed-motive game’ in the Council can be explained by the interrelation and interaction of five factors: issue-salience, voting rule, consensus norm, the ordinary legislative procedure, and the type of legal instrument. Negotiations in the asylum policy after the Lisbon Treaty are not just a matter of bargaining strategies to maximise member states’ self-interest or just the search for creative joint solutions to the problems. Rather, there is a coexistence of both conflict and cooperation, in which self-interested actors accommodate joint solutions to obtain a non-zero-sum game. Actors are still perceived as rational, who seek to maximise their self-interests. However, their course of action and behaviour are now more constrained by the EU institutional setting.

Алексей Доманов Скорость законодательного процесса в Европейском Союзе

This article investigates the impact of various institutional factors on the duration of legislative process negotiations in the European Union. The empirical data consists of EU secondary law directives adopted in 1990-2019 (1124 directives). We use the methodology of survival analysis (Cox model). We detected that after 2004 the rules of voting in the Council (unanimity or qualified majority) do not affect the duration of the legislative process; this conclusion changes the traditional vision of the functioning of the Council. We prove that of all the EU enlargements, only that of 1995 has influenced the legislative process and slowed it down. Other EU enlargements, including one in 2004 when 10 CEE countries joined the EU, did not show a significant impact. We demonstrate that of all basic treaty reforms that have taken place since 1990 only the Amsterdam Treaty has accelerated the decision-making process. In addition, we conclude that the Interinstitutional Agreement of 2007 between the Council and the European Parliament had a stronger impact on the legislative process than most treaty reforms. It favoured the acceleration of decision-making by consolidating cooperative practices between EU institutions based on trilogues. Besides, the study confirms some previous conclusions tested on the new dataset: more active involvement of the European Parliament in the legislative process (ordinary legislative procedure), the novelty and complexity of the act slow down the decision-making process.

THE POWER OF SMALL EU MEMBER STATES AFTER BREXIT: HOW POWERFUL IS THE VISEGRAD GROUP?

The power of individual EU Member States has been changing over the past decades as a result of revisions to the voting systems and the enlargements of the European Union. The present article analyses the development of the voting power of individual Member States in the Council of the European Union before and after the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union. We use the calculation of the standardized Banzhaf power index to calculate the legislative power of the Member States. The calculations recorded in the table point to changes in the weights of national votes caused by Brexit. The article pays special attention to the Visegrad Group, which we define within the European Union as an informal group consisting of four Central European states - the Czech Republic, Hungary, Poland, and the Slovak Republic. The results indicate a significant growth of the voting power in Poland and more moderate growth in the other three Visegrad Group countries which contributes to the shift in the voting equilibrium within the ordinary legislative procedure of the European Union.

Special legislative procedure in EU law: areas of regulation and specifics of interinstitutional cooperation

The article is devoted to the issue of cooperation between the institutions of the European Union in the process of adopting legal acts within the framework of a special legislative procedure. Authors analyzed the scope of application of special legislative procedure and ordinary legislative procedure in the EU. It was revealed that the adoption of acts in accordance with one or another type of legislative procedure reflects the dual nature of the European Union, which contains both supranational and interstate principles of legal regulation of various spheres of public relations. The main types of special legislative procedure (consultation, approval) are considered, within the framework of which, in practice, there is intense inter-institutional interaction in the process of developing the final text of the draft act, including through informal consultations and other procedures not directly enshrined in the EU primary law. Although the Council continues to dominate in most cases of the use of special legislative procedure, Parliament nevertheless has relatively wide opportunities to influence the position of the Council. De facto, the expansion of the Parliaments powers within the framework of a special legislative procedure is facilitated by both the position of the EU Court, expressed in a number of decisions on specific cases, and the increased degree of Parliaments influence on the activities of the Commission (which, as a general rule, has the right to initiate legislation), enshrined in the provisions of the constituent agreements.

Time is of the essence: Explaining the duration of European Union lawmaking under the co-decision procedure

The article explores factors affecting the duration of the co-decision procedure (currently the ordinary legislative procedure), the main procedure for adopting legislation in the European Union. Drawing from rational choice institutionalism, it expects the speed of co-decision to be determined by three attributes: the impatience of legislators, issue linkage and the characteristics of Council and European Parliament negotiators ( relais actors). The hypotheses are tested using survival analysis on a dataset of 599 controversial legislative acts submitted and enacted under co-decision between 1999 and 2009. The results show that co-decision proposals are decided faster when they are urgent, negotiated prior to the European Parliament elections and concluded through single proposal logrolls. By contrast, multi-proposal packages and the ideological distance between relais actors prolong decision-making. Overall, the article contributes to the literature by showing that the impatience of legislators, package deals and the properties of negotiators are relevant drivers of co-decision duration.

THE FUTURE OF THE COMMON SECURITY DEFENCE POLICY AND A CONSTITUTIONAL QUESTION

THE FUTURE OF THE COMMON SECURITY DEFENCE POLICY AND A CONSTITUTIONAL QUESTION

For Farmers or the Environment? The European Parliament in the 2013 CAP Reform

The Common Agricultural Policy (CAP) was the last policy field to be placed under the Ordinary Legislative Procedure and its 2013 reform was the first to be decided under this rule. This article analyses how rule changes following the Lisbon Treaty have shaped policy outcomes related to ‘greening,’ i.e., making agricultural policy more environmentally friendly. Measuring the policy ambitions of amendments during the different phases of the legislative process (the processing phase within the Parliament and the negotiating phase during trilogues), we find that the European Parliament weakened the Commission’s greening proposals—but did so to support an alternative greening agenda built on different policy instruments. This means that rule change has altered the power balance between the institutions, making the Commission more dependent on the European Parliament. In the 2013 reform, this new balance of power came at the cost of greening the CAP.

Mechanism of Interinstitutional Cooperation in the Framework of the Ordinary Legislative Procedure According to the EU Law

The article is devoted to the issue of the interaction of key institutions in the European Union in the process of adopting acts within the framework of the usual legislative procedure. The authors provide the analysis of the process of the ordinary legislative procedure on the basis of the norms of the primary and secondary law of the EU, as well as the decision making practice of the Parliament and the Council of the EU. It has been revealed that throughout the legislative procedure there is an active interaction of the Parliament, the Council and the EU Commission in order to develop and adopt the compromise text of an act. This interaction is most active in the form of informal trilateral consultations, the mechanism of which is not formally enshrined in the EU Constituent Treaties. A significant role in their implementation is assigned to the Commission, which in general, throughout the ordinary legislative procedure, acts as a kind of mediator in the interaction of the Parliament with the Council. In most cases the mechanism of tripartite consultations allows the adoption of a legislative act already in the first reading without the second and third readings. At the same time, the established practice of interinstitutional interaction within the framework of the usual legislative procedure increases the duration of consideration and adoption of draft acts.

“Acting in Accordance with the Ordinary Legislative Procedure…”: Metadiscourse in EU Regulations on Immigration

The ongoing Pan-European integration process has profoundly influenced the nature of European law and its development, demanding a review of “the ways of how language […] is materialized” (Gibová, 2009, p. 192). EU multilingualism is thus becoming an intricate concept since “EU translation is […] becoming the language of Europe” (Gibová, 2009, p. 192) encompassing a supranational view of the world conveyed in EU-wide legislation. Very much in line with this assumption, and taking into account the teaching experience in Specialised Translation Masters’ courses training would-be professional translators, this study examines a corpus of European Parliament Regulations on immigration. In order to understand whether dissimilarities and/or congruencies occur between the EU working language, i.e., English, and the Italian versions, the metadiscourse framework by Hyland (2005), comprising both interactive and interactional features, is used as the point of departure for the analysis of parallel texts. The Regulations produced by EU institutions and conveyed and transmitted both in English as a “procedural language” (Wagner, Bech, & Martίnez, 2012) as well as in Italian have been scrutinized both quantitatively and qualitatively, in order to draw precious pedagogical implications for translation studies and professional practice for future qualified and trained translators.

Energy Transition in the European Union and its Member States: Interpreting Federal Competence Allocation in the Light of the Paris Agreement

AbstractEnergy transition in the European Union (EU) and its Member States involves questions of federalism, which are subject to various perspectives. The distribution of powers cannot be properly understood using classical legal methodology alone because Articles 192 to 194 of the Treaty on the Functioning of the European Union (TFEU) contain too many ambiguous political compromises. On the one hand, Article 192(1) TFEU (on the environment) and Article 194(1) and (2)(1) TFEU (on energy) enable EU legislation on energy transition through the ordinary legislative procedure, including majority voting in the European Parliament and the Council. On the other hand, there are significant textual limits for EU action in neighbouring provisions with a ‘sovereignty exception’ for the Member States in both Article 192(2) and Article 194(2)(2) TFEU. This article argues that, in the light of the Paris Agreement, the allocation of competences between the EU and its Member States should, in case of doubt, be understood in such a way that effective climate protection becomes possible. Because under Article 191(1) TFEU the EU is to promote measures at the international level to combat climate change, such an international law-friendly interpretation is part of a legitimate teleological approach. Economic theories of federalism and innovation research in the social sciences help us to understand which aspects of economic or innovation theory can promote effectiveness in this respect. It is necessary to interpret the distribution of competences in a dynamic way, thereby slightly shifting the limits of interpretation.

Europe's Farm to Fork Strategy and Its Commitment to Biotechnology and Organic Farming: Conflicting or Complementary Goals?

The European Commission's Farm to Fork (F2F) strategy, under the European Green Deal, acknowledges that innovative techniques, including biotechnology, may play a role in increasing sustainability. At the same time, organic farming will be promoted, and at least 25% of the EU's agricultural land shall be under organic farming by 2030. How can both biotechnology and organic farming be developed and promoted simultaneously to contribute to achieving the Sustainable Development Goals (SDGs)? We illustrate that achieving the SDGs benefits from the inclusion of recent innovations in biotechnology in organic farming. This requires a change in the law. Otherwise, the planned increase of organic production in the F2F strategy may result in less sustainable, not more sustainable, food systems.

The Ordinary Legislative Procedure in the EU as an Example of Cooperative Practices

The interaction of the EU institutions is aimed at aggregating a wide range of interests and ensuring the widest possible (preferably consensual) support for the policy. However, game theory reveals that the ordinary legislative procedure breeds competition between two co-legislators - the Council and the European Parliament - that seek to reflect their preferences within the legislative draft. This study attempts to assess the development of cooperative practices in the ordinary legislative procedure (since its establishment under the name “codecision procedure”) and the importance of these practices for the effectiveness of the legislative process. The development of cooperative practices is illustrated by three examples. First, the transformation of the rules of the third reading. Second, peculiarities of the Conciliation Committee functioning. Third, the development of trialogues and their main features. According to the results of the study, the author concluded that a set of cooperative practices between the EU Council and the European Parliament has been formed within the framework of the ordinary legislative procedure which is structured in a way that encourages co-legislators to cooperate and engage in intensive inter-institutional negotiations that complement the negotiations within each of the institutions. The reason for this is that the ordinary legislative procedure has a complex system of checks and balances. This allows a number of actors to block or delay the decision-making process. Complex procedure literally forces the EU institutions to come to a compromise. The ordinary legislative procedure as it was set out in the Treaties was supplemented by number of cooperative practices based on political agreements, which enhance a more effective interaction between institutions. The need to ensure the support of all (the vast majority) of the Member States in the Council and key political groups in the European Parliament prompts to take into account the whole spectrum of interests. As a result, it ensures high quality of decision-making process and high quality of governance.

Agenda‐setting under pressure: Does domestic politics influence the European Commission?

AbstractThe European Union (EU) has become increasingly visible and contested over the past decades. Several studies have shown that domestic pressure has made the EU's ‘electorally connected’ institutions more responsive. Yet, we still know little about how politicisation has affected the Union's non‐majoritarian institutions. We address this question by focusing on agenda‐setting and ask whether and how domestic politics influences the prioritisation of legislative proposals by the European Commission. We argue that the Commission, as both a policy‐seeker and a survival‐driven bureaucracy, will respond to domestic issue salience and Euroscepticism, at party, mass and electoral level, through targeted performance and through aggregate restraint. Building on new data on the prioritisation of legislative proposals under the ordinary legislative procedure (1999–2019), our analysis shows that the Commission's choice to prioritise is responsive to the salience of policy issues for Europe's citizens. By contrast, our evidence suggests that governing parties’ issue salience does not drive, and Euroscepticism does not constrain, the Commission's priority‐setting. Our findings contribute to the literature on multilevel politics, shedding new light on the strategic responses of non‐majoritarian institutions to the domestic politicisation of ‘Europe’.