9.1 The Ordinary Legislative Procedure (OLP)

9.1 The Ordinary Legislative Procedure (OLP)

Treaty Anchor: Article 294 of the Treaty on the Functioning of the European Union (TFEU), read in conjunction with Articles 289(1) TFEU and 17(2) of the Treaty on European Union (TEU).

The Ordinary Legislative Procedure (OLP) is the constitutional centerpiece of European Union law-making. Formerly known as the "co-decision procedure" (procédure de codécision), it was first introduced by the Maastricht Treaty (1992), substantially expanded by the Amsterdam (1997) and Nice (2001) Treaties, and ultimately established by the Lisbon Treaty (2009) as the default legislative mechanism across more than 85 treaty bases. Under OLP, neither the European Parliament nor the Council of the European Union can adopt a legislative act unilaterally; both co-legislators must agree on an identical text for the measure to become law.

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The European Commission's Monopoly of Initiative

Under Article 17(2) TEU, Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise (such as specific judicial cooperation provisions under Article 76 TFEU where a quarter of Member States may initiate legislation).

Guarding the Legislative Proposal (Article 293 TFEU)

The Commission's institutional role does not terminate upon the transmission of its proposal. Under Article 293(1) TFEU, where the Council acts on a proposal from the Commission, the Council may amend that proposal only by unanimity, except in conciliation or during budgetary procedures. Conversely, under Article 293(2) TFEU, as long as the Council has not acted, the Commission may alter or withdraw its proposal at any time during the procedures leading to the adoption of a Union act.

This gives the Commission vital leverage to protect the integrity of its policy objectives against dilution by the co-legislators. In Case C-409/13 (Council v Commission), the Court of Justice affirmed that the Commission's right of withdrawal is an essential corollary of its right of initiative, provided withdrawal is supported by cogent grounds and respects the principle of institutional balance.

Indirect Initiative Channels

While the formal monopoly remains with the College of Commissioners, several institutional and democratic mechanisms can trigger legislative proposals:

• Parliamentary Request (Article 225 TFEU): The European Parliament may, acting by a majority of its component members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required. If the Commission does not submit a proposal, it must inform Parliament of the reasons.
• Council Request (Article 241 TFEU): The Council, acting by a simple majority, may request the Commission to undertake studies and submit any appropriate proposals.
• European Citizens' Initiative (ECI - Article 11(4) TEU): A minimum of one million EU citizens from at least seven Member States can invite the Commission to submit a legislative proposal.

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The Step-by-Step Anatomy of Article 294 TFEU

The ordinary legislative procedure progresses through a structured sequence of up to three formal readings, designed to foster compromise while providing defined exit ramps at each stage.

1. First Reading: The Open-Ended Foundation

• European Parliament Position: The Commission submits its proposal simultaneously to the European Parliament, the Council, and (where required) advisory bodies (EESC, CoR). Parliament examines the proposal within its specialized parliamentary committee (under the leadership of an appointed Rapporteur) and adopts its position at first reading in plenary by a simple majority of votes cast (Article 231 TFEU).
• Council Action: The Council examines the Commission's proposal and the Parliament's position.
  • Scenario A (Adoption): If the Council approves all of Parliament's amendments, or if Parliament approved the proposal without amendments and Council concurs, the act is formally adopted in the wording corresponding to the Parliament's position. There are no statutory deadlines for first reading.
  • Scenario B (Council First-Reading Position): If the Council cannot accept all of Parliament's amendments, it adopts its own first-reading position (formerly known as the "common position") by Qualified Majority Voting (QMV), unless a treaty provision requires unanimity or the Commission delivered a negative opinion on an amendment. The Council transmits its position to Parliament, accompanied by a comprehensive statement of reasons. The Commission also informs Parliament of its position.

2. Second Reading: Strict Deadlines and Heightened Majorities

Once Parliament officially receives the Council's first-reading position, strict statutory time limits apply. Parliament has three months (which may be extended by one month to four months under Article 294(14) TFEU at the request of either institution) to act.

Parliament faces three possible courses of action:

1. Approval or Inaction: If Parliament approves the Council position, or has not taken a decision within the deadline, the act is deemed adopted in the wording corresponding to the Council position (simple majority applies if a vote is held).
2. Rejection: If Parliament rejects the Council's position by an absolute majority of its component members (at least 361 of the 720 MEPs), the proposed act is definitively not adopted, and the legislative procedure terminates immediately.
3. Amendment: Parliament may propose amendments to the Council's first-reading position. Crucially, each amendment must be adopted by an absolute majority of its component members (361 votes). The amended text is transmitted to the Council and the Commission.

Council Second Reading: The Commission delivers an official opinion on Parliament's second-reading amendments. The Council has three months (extendable by one month) to act:

• The Council can approve all of Parliament's amendments, in which case the act is adopted. Voting operates under a critical asymmetry: the Council votes by QMV on amendments supported by the Commission, but must act unanimously to approve any amendment on which the Commission delivered a negative opinion (Article 294(9) TFEU).
• If the Council does not approve all amendments within the deadline, the President of the Council, in agreement with the President of the European Parliament, must convene a meeting of the Conciliation Committee.

3. The Conciliation Committee: The Parity Engine

The Conciliation Committee brings together delegations from both institutions to negotiate an agreed compromise:

• Composition: Exactly 27 members of the Council (or their ministerial representatives) and 27 representatives of the European Parliament (typically led by a Parliament Vice-President and the responsible committee chair and rapporteur). The Commission participates as a neutral facilitator, seeking to reconcile positions.
• Mandate: The committee has six weeks (extendable by two weeks under Article 294(14)) from its convening date to agree on a joint text, based on the second-reading positions of Parliament and Council.
• Voting Rules: Approval of the joint text requires a dual majority: a qualified majority of the members of the Council (or their representatives) and a majority of the members representing Parliament (at least 14 of the 27 delegates) (Article 294(10) TFEU).
• Failure: If the Conciliation Committee fails to agree on a joint text within the statutory deadline, the proposed act is definitively not adopted.

4. Third Reading: Plenary Confirmation

If the Conciliation Committee successfully approves a joint text, both institutions enter third reading:

• Timeline: Both institutions have six weeks (extendable by two weeks) from approval of the joint text to act.
• Voting Thresholds:
  • The European Parliament must approve the joint text by a simple majority of votes cast.
  • The Council must approve the joint text by Qualified Majority Voting (QMV).
• No Amendments: Neither co-legislator is permitted to table further amendments; the vote is strictly binary (adoption or rejection).
• Outcome: If both approve, the act is adopted. If either institution rejects the joint text or fails to vote within the deadline, the act is not adopted.

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Summary Matrix of OLP Stages

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Trilogues: Informal Speed vs. Democratic Scrutiny

While Article 294 TFEU lays out a sequential multi-stage reading architecture, the day-to-day reality of EU law-making relies overwhelmingly on trilogues (trilogues informels).

The Trilateral Negotiating Mechanism

A trilogue is an informal, closed-door negotiating meeting bringing together representatives of the three key institutions:

1. European Parliament Delegation: Headed by the Committee Chair, the Rapporteur (responsible for drafting the legislative report), and shadow rapporteurs representing other political groups.
2. Council Delegation: Chaired by the ambassador or minister of the Member State holding the rotating Presidency of the Council, assisted by the General Secretariat of the Council and mandated by Coreper (Committee of Permanent Representatives).
3. European Commission Delegation: Senior officials from the Directorate-General responsible for the file, often accompanied by the relevant Commissioner, serving as an "honest broker."

The Four-Column Document

Negotiations center on a standardized working tool known as the four-column document (document à quatre colonnes):

• Column 1: The initial Commission proposal.
• Column 2: The European Parliament's draft report / plenary amendments.
• Column 3: The Council's negotiating mandate (the "general approach" agreed in Coreper or Council).
• Column 4: The evolving compromise drafting text hammered out line-by-line during trilogue sessions.

Early Agreements and Democratic Challenges

Trilogues have transformed legislative velocity. Most OLP files are now concluded as first-reading agreements (accords en première lecture), bypassing formal second readings and conciliation entirely. About 85% of files were concluded at first reading in the 2009–2014 parliamentary term, and the share has stayed high since. While this delivers legislative efficiency and prevents inter-institutional paralysis, it has historically drawn sharp criticism regarding transparency and democratic accountability.

The Landmark De Capitani Ruling (Case T-540/15)

In Emilio De Capitani v European Parliament (2018), the EU General Court delivered a constitutional judgment on legislative transparency. The Parliament had refused public access to the fourth column of ongoing trilogue documents under Regulation (EC) No 1049/2001, arguing that disclosure would undermine the decision-making process.

The General Court firmly rejected this argument, ruling that:

• Trilogues form an integral part of the legislative process, and legislative activity requires the widest possible public access.
• The principle of democratic legitimacy demands that citizens be able to scrutinize the information forming the basis of legislative choices.
• A general, abstract risk of public pressure is insufficient to deny access; institutions must demonstrate specific, tangible harm to the decision-making process to justify withholding four-column tables.