EUROPEAN UNION LAW
W.B. Fisch Winter 2006
Assignment #4

Ch. 3. COMMUNITY LEGISLATION AND THE LEGISLATIVE PROCESS

A. Forms of Community Action

  • The list, Art. 249
    • regulation (generally applicable legislation)
    • directive (no analogue in U.S. federal law)
    • decision (specific addressee(s))
    • recommendation
    • opinion

·         Draft Constitution art. I-32 f. (terms closer to national usage)

o        Legislative acts

§         Law (replaces “regulation”)

§         Framework law (replaces “directive”)

o        Non-legislative acts

§         Regulation (implementing act)

§         Decision

o        Recommendation

o        Opinion

  • Commission v. Council, p. 76 (1971)(ERTA)
    • to what Community action was the lawsuit directed, and by whom?
    • what was the nature of the objection to the Council's action?
    • what was the nature of the Council's defense?
    • was the action in question properly characterized as a regulation, a directive, or a decision? If none of those, is the action
      • not reviewable by the Court under art. 230 (ex 173)?
      • invalid because not authorized by art. 249 (ex 189)?
  • The requirement of reasons - Art. 253
    • GERMANY V. COMMISSION, p. 78
    • Noordwiks, n. 1 p. 80
    • Mariano, n. 1 p. 80
    • Belgian Wallpaper, n. 2 p. 80 - ok to simply cite precedent, if you are following it!
    • Sytraval, n. 5 p. 81: does art. 253 require a particular process? Why?
  • Interpretation of Community Law
    • teleological approach of ECJ, expected to be followed in MS courts
    • consistency with higher law
      • legislation with Treaty law
      • MS law with EU/EC law


B. The Legislative Process of the Community

Art. 192: 4 forms of Parliamentary involvement: co-decision, cooperation, assent and consultation; in ascending order of involvement: consultation, cooperation, co-decision, assent

1. The Parliamentary Consultation Procedure

  • What are the principal features of this procedure [not elaborated in a separate provision]?
    • Proposal from the Commission required
    • Parliament's expected work product is an "opinion", advisory only
    • Council's action most often requires unanimity, less often a qualified majority, and always unanimity when its action deviates from the Commission's proposal
  • Sa Roquette Fréres v. Council, p. 84 (1980): When has the Council "consulted" with Parliament?
    • When it presents the proposal to P?
    • When P renders its opinion? When P ought to have rendered its opinion?
    • If time is important, who has responsibility for seeking expedited action?
  • When must Parliament be re-consulted? n. 2 p. 85
    • whenever the Council changes a proposal on which Parliament has spoken?
    • whenever the change is major? What standard determines when the threshold of change has been crossed, and who decides?
  • "Correct Legal Basis": when the Treaty provides for different levels of Parliamentary involvement or different Council voting procedures for different subject matters, and a particular matter might fall under either one, how does the Court decide which procedure prevails? Cases triggered by introduction of parliamentary cooperation procedure
    • Commission v. Council (Titanium Dioxide) (1991), p. 87
      • environmental control (consultation + Council unanimity), or market regulation (cooperation + qualified majority)?
      • how does the Court resolve it?
        • can both procedures be followed?
        • if not, which gets preference when both are applicable?
    • Commission v. Council (Waste Disposal) (1993), p. 89
      • are both procedures equally applicable?
      • is the decision consistent with Titanium Dioxide?
    • U.K. V. COUNCIL, p. 92 (1996): another choice-of-source case
      • what principle of interpretation does the Court apply to the relationship between the general harmonization provision (Art. 94) (requiring unanimity) and the health-and-safety-of-workers provision (former Art. 118a) (requiring the cooperation procedure)? Is it consistent with the above cases?
      • N.B.: this issue under the heading of "social policy" is now governed by Art. 137, which requires the use of the co-decision procedure (Art. 137(2)).


2. The Parliamentary Co-Decision Procedure (Art. 251)

  • What are the special characteristics of this procedure?
  • What should happen if the Conciliation Committee fails to produce agreement?
    • should the Council be permitted to revive its "common position"?
    • if so, should Parliament be able to scotch it (Maastricht so provided, by absolute majority)
    • if not, why not?