9.2 Special Legislative Procedures & Comitology

9.2 Special Legislative Procedures & Comitology

Treaty Anchors: Articles 289(2), 290, and 291 of the Treaty on the Functioning of the European Union (TFEU), and Regulation (EU) No 182/2011.

While the Ordinary Legislative Procedure (OLP) serves as the general rule for Union law-making, the Treaties define specific, highly sensitive domains where decisions deviate from co-decision. These deviations are categorized as Special Legislative Procedures (SLPs) under Article 289(2) TFEU. Furthermore, once a basic legislative act (acte de base) is enacted, the executive execution of EU law branches into two distinct legal tracks introduced by the Lisbon Treaty: delegated acts (Article 290 TFEU) and implementing acts (Article 291 TFEU), the latter governed by the historic system of comitology.

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Special Legislative Procedures (Article 289(2) TFEU)

Under an SLP, an act is adopted either by the Council with the participation of the European Parliament, or by the European Parliament with the participation of the Council. In practice, the Council acts as the primary legislator in nearly all SLP scenarios, while the European Parliament assumes one of two roles: consent or consultation.

1. The Consent Procedure (Formerly Assent)

Under the consent procedure, the Council cannot adopt the legislative act without first obtaining the explicit approval of the European Parliament.

• Power of Veto: Parliament holds a strict up-or-down veto. It votes to either grant or withhold consent; it has no legal power to introduce amendments to the text.
• Voting Threshold: Consent generally requires a simple majority of votes cast, though an absolute majority of component members is mandated for specific constitutional decisions (such as the MFF Regulation under Article 312(2) TFEU or Article 7 TEU determinations).
• Core Application Fields:
  • Article 7 TEU: Determination of a serious and persistent breach of Union values by a Member State (requires two-thirds majority of votes cast, representing a majority of component members).
  • Accession of New Member States (Article 49 TEU): Absolute majority of Parliament's component members.
  • Withdrawal Agreement (Article 50(2) TEU): Simple majority of votes cast.
  • Multiannual Financial Framework (Article 312(2) TFEU): Absolute majority of component members.
  • International Agreements (Article 218(6)(a) TFEU): Trade, association, and budgetary agreements.
  • Combating Discrimination (Article 19(1) TFEU): Measures against discrimination based on sex, racial or ethnic origin, religion, disability, age, or sexual orientation.

2. The Consultation Procedure

Under the consultation procedure, the Council adopts legislation (typically acting by unanimity) after formally consulting the European Parliament.

• Advisory Character: Parliament delivers a legislative resolution containing an opinion on the proposed text. The Council is not legally bound to follow Parliament's recommendations or amendments.
• The Mandatory Nature of Consultation: While the opinion itself is non-binding, the requirement to consult Parliament is an absolute constitutional condition.
• The Landmark Roquette Frères Jurisprudence (Case 138/79): In Roquette Frères v Council (and companion case Maizena, Case 139/79), the Council adopted Regulation No 1293/79 fixing isoglucose production quotas before receiving Parliament's formal opinion, citing urgency. The Court of Justice annulled the regulation, ruling that:
  • Due consultation of the Parliament constitutes an essential procedural requirement (forme substantielle) within the meaning of what is now Article 263 TFEU.
  • Disregarding this requirement impairs the institutional balance intended by the Treaties.
  • Consultation represents the fundamental democratic principle that European citizens participate in the exercise of legislative power through a representative assembly.
• The Re-Consultation Rule: The Court has further established that if the Council makes substantial alterations to the legislative proposal after Parliament has delivered its opinion, the Council is legally obligated to re-consult Parliament, unless the modifications correspond directly to amendments proposed by Parliament itself (Parliament v Council, Case C-65/90).
• Substantive Fields of Consultation: harmonisation of turnover taxes, excise duties and other indirect taxes (Article 113 TFEU), approximation of laws directly affecting the internal market (Article 115 TFEU), family law aspects of judicial cooperation in civil matters (Article 81(3) TFEU), and certain environmental fiscal measures (Article 192(2) TFEU).

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Delegated Acts vs. Implementing Acts (Articles 290 & 291 TFEU)

Prior to the Lisbon Treaty, executive rulemaking was consolidated under a single, complex comitology framework. The Lisbon Treaty introduced a strict constitutional bifurcation between delegated acts (quasi-legislative non-essential amendments) and implementing acts (executive uniform conditions).

Delegated Acts (Article 290 TFEU)

A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

• The "Essential Elements" Boundary: The Treaties explicitly dictate that the essential elements of an area shall be reserved for the legislative act and cannot be subject to a delegation of power. In Case C-355/10 (Parliament v Council - Schengen Borders Code), the CJEU confirmed that provisions requiring fundamental political choices or directly restricting fundamental human rights are essential elements that only the co-legislators can decide.
• Statutory Limits: The basic act must explicitly delimit the objectives, content, scope, and duration of the delegation.
• Equal Control by Co-Legislators: Article 290 TFEU places Parliament and Council on identical footing:
  • Revocation: Either the Parliament (by absolute majority) or the Council (by QMV) may revoke the delegation of power at any time.
  • Right of Objection (Veto): A delegated act can enter into force only if no objection has been expressed by either Parliament (absolute majority) or Council (QMV) within the statutory review period (typically two months, extendable by two months).
• Absence of Comitology: Delegated acts are not subject to comitology committees. The Commission consults national experts informally in expert working groups, but national governments cannot outvote the Commission in a formal committee.

Implementing Acts (Article 291 TFEU)

Under Article 291(1) TFEU, Member States are primarily responsible for adopting all measures of national law necessary to implement legally binding Union acts (principle of executive subsidiarity). However, where uniform conditions for implementing legally binding Union acts are needed, those acts confer implementing powers on the Commission (or exceptionally on the Council in Common Foreign and Security Policy).

• Implementing acts cannot supplement or amend the basic act; their sole function is to execute existing statutory provisions uniformly across all 27 Member States.
• The exercise of implementing powers is subjected to control by Member State representatives through the comitology system.

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Comitology & Regulation (EU) No 182/2011

Comitology refers to the system of specialized committees composed of Member State representatives, chaired by the Commission, that supervise the Commission's exercise of implementing powers. The system is governed horizontally by Regulation (EU) No 182/2011.

The basic legislative act conferring implementing powers must designate which of the two primary comitology procedures applies:

1. The Advisory Procedure

Used primarily for non-sensitive, routine administrative measures.

• Operation: The committee delivers its opinion on the Commission's draft implementing act, deciding by a simple majority of its members.
• Legal Effect: The opinion is non-binding. The Commission must take the "utmost account" of the conclusions and inform the committee of how its opinion was taken into account, but the Commission retains ultimate legal authority to adopt the act.

2. The Examination Procedure

Mandatory under Article 2(2) of Regulation 182/2011 for implementing acts of general scope, measures with significant budgetary implications, and measures in key fields including the Common Agricultural Policy (CAP), fisheries, environment, taxation, common commercial policy, and health and safety.

The committee votes under Qualified Majority Voting (QMV) rules:

• Positive Opinion (QMV in favor): The Commission must adopt the draft implementing act.
• Negative Opinion (QMV against): The Commission cannot adopt the draft implementing act. The Commission may either submit an amended version to the committee within two months or refer the original draft to the Appeal Committee.
• No Opinion (neither QMV in favor nor QMV against): As a general rule, the Commission may adopt the draft. However, the Commission cannot adopt the act if:
  1. The measure concerns taxation, financial services, the protection of the health or safety of humans, animals or plants, or definitive multilateral safeguard measures (Article 5(4) of Regulation 182/2011);
  2. The basic legislative act contains an explicit "no-opinion clause" (clause de non-adoption);
  3. A simple majority of the committee members opposes adoption. In these restricted cases, the Commission must refer the draft to the Appeal Committee if it wishes to proceed.

The Appeal Committee

If a measure is blocked or caught in the "no opinion" exception, the Commission can refer the matter to the Appeal Committee, composed of higher-ranking Member State representatives (such as deputy permanent representatives). If the Appeal Committee:

• Votes in favor by QMV: Commission adopts the act.
• Votes against by QMV: Act is blocked.
• Delivers "No Opinion": Commission has the discretion to adopt the implementing act.

Parliamentary and Council Scrutiny (Droit de regard)

Under Article 11 of Regulation 182/2011, where a basic act was adopted under the Ordinary Legislative Procedure, both the European Parliament and the Council possess a right of scrutiny. Either institution may adopt a non-binding resolution indicating that a draft implementing act exceeds the implementing powers provided for in the basic act. Upon receiving such a resolution, the Commission must review the draft and inform the institutions whether it intends to maintain, amend, or withdraw the measure.

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Comparative Synthesis: Post-Legislative Rule-Making