5   5   4 4 The EU legislative process 8 19
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5 5 4 4 The EU legislative process 8 19


[MUSIC] As you know by now, the European Commission has a monopoly over the
generation of almost all new European laws, and can also
draw up proposals for new policy areas. A proposal for a new law or an amendment
to an existing one. Usually, begins as a draft written by European Civil Servants known as
‘functionnaires’. These are graduates coming from the
different European states. who pass an open competition and who have
been hired by the European Union. They are allocated among the various commissions departments called Directorate
Generals, often abbreviated as DGs, very similar to National Ministries or Departments of
State. Each DG is responsible for overseeing the
development and implementation of laws and policies in
specific areas. Be it health and consumer protection,
environment, trade or agriculture. When a new policy proposal cuts across the
competences of several DGs, one of them would be selected as lead DG,
also called ‘chef de file’. The proposal, written on an average by 2-3 officials, then works its way through
interested DGs. In the inter service consultation. The commission’s legal service, making a
preliminary check for its compliance with EU law, but
also Cabinets and advisory committees, meetings
of interested external policy actors, and the office of the
relevant Commissioners. This process of preparation of the
proposal can take months, or even years to complete, depending on the
complexity of the underlying initiative. Currently, the most cumbersome check on
the work of the drafter of the commission proposal is represented by the
quality control exercised by the impact assessment
board. This is made of high level officials,
generally Directors and chaired by the deputy secretary general of
the European Commission. This quality oversight mechanism checks
the quality of the analysis including the public consultation performed by the
drafters of the proposal during the impact
assessment preparation. The impact assessment board enjoys the
authority to return the analysis to the drafters, who are not going to be very happy and ask
that it will be improved. Once a proposal goes successfully
through all the procedural steps previously described, from initial public
consultation, impact assessment and inter-service consultation. It would then be reviewed by the ‘Chefs de cabinet’ who head the private offices of
the European Commissions. These high level officials meet weekly,
generally on Mondays. In the so called ‘Hebdo’ and decide which
proposals need to be discussed by the college of
Commissioners. The proposals are then reviewed by all
Commissioners gathering every Wednesday in Brussels, or
in Strasbourg if the European parliament is in plenary
session. Using a majority vote, the Commissioners
can accept or reject the proposal, send it back for redrafting, or
defer making a decision. Before the accepted proposal is released
and the decision-making procedures can start, there is an important hurdle
that needs to be overcome.
National Parliament. Indeed, they are kept well informed
through the drafting of the final proposal, although
some National Parliaments like the French one do not
seem to bother to exercise scrutiny over this
process. But at this stage, things are different.
The formal commission proposal is sent to the member States Parliaments
for a precautionary check, subsidiarity check, proportionality
check, political approval? The formal commission proposal is sent to the national parliaments for a
subsidiarity check. Do you remember the principle of
subsidiarity? We have encountered it in lecture one and
in lecture three. Back in 1993, Commission President Jacques
Delors, offered 200,000 Euro price to anyone who would come up
with a clear definition. Don’t get too excited. It was only a joke, to underline the fact that this notion doesn’t really have a
straightforward meaning. What you should remember is that according
to subsidiarity, in the fields where competences are shared
between the European Union and the Member states, the default
rule is Member States action unless the EU is better
placed to act. Now, we are exactly in one of the steps of the game where this rule is of utmost
importance. Indeed, the European commission must
forward the draft legislative act to National Parliaments so that they can
perform this so called subsidiarity check. A justification with regard to this
principle is attached to the draft legislative act to
be examined. Within 8 weeks, national parliaments can play their role of watchdog and raise
objections, if they believe the proposal violated the
subsidiarity principle. This check is known as the yellow card procedure, since the National
Parliaments give a warning to the European Commission, if it is about to violate the principle of
subsidiarity. The European Commission may decide to
maintain, amend, or withdraw the draft, though the
most common decision in practice is to amend
it. The yellow card has so far only been used
a few times, the last time being in October 2013, when several countries – Britain, Cyprus,
Hungary, Ireland, Malta, the Netherlands, Slovenia,
Sweden, Romania as well as the Czech Senate and the French Senate, expressed concerns
over their proposal to create the European
Prosecutor. We talked about this in lecture one.
These Parliaments argued in short, that the wide
jurisdiction this new institution was offered under this
proposal, was not necessary. They claimed that actions against fraud,
against the European funding could have been undertaken at
national level. If at least a simple majority of the votes are located to National Parliament,
challenges of the compliance of a proposal for a
legislative act within the principle of society and
the Commission decides to maintain its proposal. The matter is referred to the legislator,
which takes a decision at first, really. If the EU legislators consider that the
proposal is not compatible with the principle of
subsidiarity they may reject it, subject to a majority of 55% of the members of the
Council, or by a majority of votes cast in the
European Parliament. This is what is generally called the red card.
Some may even call it orange card. We prefer the red card. When the commission’s legislative proposal
is ready to be released it is sent to the European Parliament and The Council of
Minister for their perusal and decision. As I said earlier, the commission proposal
generally requires the agreement of both the European
Parliament and the council. Lets do a quiz. What do you call an institutional system where there are two chambers passing
legislation? Unicameralism, bicameralism, federalism,
confederalism. The answer is, bicameralism. Most democracies in the world and in
Europe have adopted this system. But some democracies like Denmark or
Portugal may also have only one Chamber of
Parliament. It is true that Federations also tend to
have two chambers. With one representing the federated
entities like the German Bundesrat or the U.S. Senate. This is how we can see the council, where member states are some how the
entities represented.

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