The EU Legislative Process

The legislative process of the European Union is a complex multi-level system reflecting the Union’s institutional architecture. The ordinary legislative procedure, under which the European Parliament and the Council jointly adopt legislation on a proposal from the Commission, has become the standard method of EU law-making. Special legislative procedures apply in designated policy areas, and the roles of the European Council, national parliaments, and the comitology system add further layers of oversight and democratic accountability. The EU legislative process balances supranational and intergovernmental elements, ensuring that legislation reflects both the Union’s common interest and the legitimate diversity of its Member States.

The Ordinary Legislative Procedure

Article 294 TFEU establishes the ordinary legislative procedure, formerly known as co-decision. Under this procedure, the Commission submits a legislative proposal to the European Parliament and the Council simultaneously. The procedure proceeds through successive readings designed to achieve agreement between the two co-legislators.

First reading. The European Parliament adopts its position on the Commission proposal by a simple majority. The Council, acting by qualified majority, may approve the Parliament’s position, in which case the act is adopted in the wording of the Parliament’s position. If the Council does not approve the Parliament’s position, it adopts its own position at first reading and forwards it to the Parliament with explanations.

Second reading. The Parliament has three months to consider the Council’s first-reading position. It may approve the Council’s position (adopting the act), reject it by an absolute majority of its component members (causing the proposal to lapse), or propose amendments by an absolute majority. If the Parliament proposes amendments, the Commission delivers an opinion on each amendment, and the Council has three months to act. The Council may approve all Parliament’s amendments by qualified majority (or unanimously if the Commission has given a negative opinion), adopting the act. If the Council does not approve all amendments, the President of the Council, with the agreement of the President of the Parliament, convenes the Conciliation Committee.

Conciliation. The Conciliation Committee is composed of the members of the Council (or their representatives) and an equal number of Members of the European Parliament. The Commission participates in the Committee’s proceedings and takes all necessary initiatives to reconcile the positions of the Parliament and the Council. The Committee has six weeks to agree on a joint text, approved by a qualified majority of the Council and a majority of the Parliament’s representatives. If no joint text is agreed, the proposal lapses.

Third reading. If the Conciliation Committee approves a joint text, the Parliament and the Council each have six weeks to adopt the act. The Parliament acts by a majority of the votes cast, and the Council acts by qualified majority. If either fails to adopt the joint text, the proposal lapses.

The ordinary legislative procedure applies to most areas of EU internal policy, including the internal market, agriculture, fisheries, transport, environment, consumer protection, data protection, and immigration. The procedure ensures democratic legitimacy through the Parliament’s role as co-legislator and inter-institutional dialogue between the Parliament and the Council.

The Commission’s Right of Initiative

Under Article 17(2) TEU, the Commission holds the sole right of legislative initiative for most EU legislation. The Commission decides whether to propose legislation, what its content will be, and when to submit it. This right of initiative gives the Commission a powerful agenda-setting role, positioning it as the engine of EU integration.

The Commission’s initiative is informed by public consultations, impact assessments, and expert advice. The Commission publishes annual work programmes setting out its legislative priorities. The Better Regulation Agenda requires the Commission to evaluate existing legislation, consult stakeholders, and assess the potential impacts of proposed measures. The Commission may withdraw a proposal if it considers that the legislative process is not progressing or that the proposal is no longer appropriate.

The Treaty of Lisbon introduced the European Citizens’ Initiative under Article 11(4) TEU and Regulation (EU) 2019/788. One million citizens from at least seven Member States may invite the Commission to submit a proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. The Commission is not obliged to propose legislation following a citizens’ initiative but must respond within three months, explaining its decision in a communication. The initiative has been used for proposals on water as a human right, banning glyphosate, animal welfare, and other citizen-led causes.

Special Legislative Procedures

Special legislative procedures apply in specific policy areas where the Treaties designate an alternative procedure. The two main types are consultation and consent.

Consultation procedure. Under the consultation procedure, the Council adopts legislation after consulting the European Parliament. The Parliament delivers an opinion, which the Council must consider but is not bound to follow. The consultation procedure applies in areas including competition law (Article 103 TFEU), aspects of the Common Foreign and Security Policy, certain agricultural matters, and some tax and social security provisions. The CJEU has held that consultation is a substantive requirement: where the Treaties require consultation, the Council must obtain the Parliament’s opinion before adopting legislation, and reconsultation is required if the Council substantially amends the proposal (Roquette Frères v Council, Case 138/79).

Consent procedure. Under the consent procedure, the Council must obtain the Parliament’s consent before adopting legislation. The Parliament may approve or reject the proposal by a majority of the votes cast, but cannot amend it. The consent procedure applies to measures concerning the structural funds and the cohesion fund, the uniform electoral procedure for the European Parliament, certain international agreements under Article 218 TFEU, and accession of new Member States under Article 49 TEU.

The Role of the European Council

The European Council, composed of the Heads of State or Government of the Member States, its President, and the President of the Commission, sets the strategic priorities and political direction of the Union under Article 15 TEU. It does not exercise legislative functions but provides impetus for the development of the Union and defines general political directions and priorities. The President of the European Council, elected for a renewable term of two and a half years, ensures the preparation and continuity of the European Council’s work and facilitates consensus-building.

The European Council’s conclusions frequently contain mandates or requests for the Commission to propose specific legislation, and its strategic agenda shapes the legislative priorities of the Union over multi-annual cycles. The European Council’s influence on the legislative agenda is political rather than legal, but its composition gives its decisions exceptional weight in determining the direction of EU policy.

The Role of the Council: Qualified Majority Voting

The Council, representing the Member States, votes by qualified majority voting under Article 16(3) TEU unless the Treaties provide otherwise. Since 1 November 2014, the double majority system has applied. A qualified majority requires 55% of Member States (at least 15) representing at least 65% of the EU population. The double majority system replaced the complex vote-weighting system established by the Treaty of Nice.

A blocking minority requires at least four Council members representing more than 35% of the EU population. The Ioannina compromise, codified in Declaration No. 7 annexed to the Treaty of Lisbon, allows Member States representing close to the blocking minority to request further deliberation. If at least 55% of the Member States or 55% of the population necessary to constitute a blocking minority indicate opposition, the Council must continue discussions to find a satisfactory solution.

The Role of National Parliaments

National parliaments contribute to the EU legislative process primarily through subsidiarity monitoring under Protocol No. 2 to the Treaties. The Commission must forward all draft legislative acts to national parliaments simultaneously with their transmission to the EU institutions. National parliaments have eight weeks to examine draft legislation for compliance with the principle of subsidiarity.

The yellow card procedure applies where one-third of national parliaments (one-fourth in areas of freedom, security, and justice) conclude that a draft legislative act does not comply with subsidiarity. The Commission must review the draft and decide whether to maintain, amend, or withdraw it. The orange card procedure applies under the ordinary legislative procedure where a simple majority of national parliaments objects on subsidiarity grounds and the Commission maintains its proposal. The Commission’s proposal is then forwarded to the European Parliament and the Council, which may reject it by a 55% majority of Council members or a majority of Parliament votes at first reading.

The role of national parliaments was strengthened by the Treaty of Lisbon to address concerns about the EU’s democratic deficit. National parliaments act as guardians of subsidiarity, ensuring that the Union does not act where Member State action would be more effective. The green card procedure, developed through interparliamentary cooperation, allows national parliaments to submit reasoned opinions suggesting legislative initiatives to the Commission.

Delegated and Implementing Acts

Articles 290 and 291 TFEU establish a hierarchy within secondary legislation by distinguishing between delegated and implementing acts. Under Article 290 TFEU, the legislature may delegate to the Commission the power to adopt delegated acts of general application to supplement or amend non-essential elements of a legislative act. The delegation is subject to limits: essential elements of an area must be reserved for the legislative act, and delegation must be expressly defined as to objectives, content, scope, and duration.

Under Article 291 TFEU, the Commission (or, in certain cases, the Council) may adopt implementing acts where uniform conditions for implementing legally binding Union acts are needed. Implementing acts are subject to the comitology system, under which Member State representatives in committees supervise the Commission’s exercise of implementing powers. The comitology regulation (Regulation (EU) No 182/2011) establishes examination and advisory procedures, with the examination procedure applying to measures of general scope, programmes with substantial budgetary implications, and policies in agriculture, fisheries, environment, and health and safety.

The distinction between delegated and implementing acts has generated significant litigation before the CJEU, which has clarified that the choice between Articles 290 and 291 TFEU depends on whether the measure supplements or amends the legislative act (delegated) or provides uniform implementation conditions (implementing). The distinction reflects the constitutional balance between legislative discretion and executive implementation in the EU legal order.