Special Legislative Procedures in EU Law

Special legislative procedures under the Treaties provide alternative methods of EU law-making that depart from the ordinary legislative procedure in specific policy areas. The Treaties provide for two main categories of special legislative procedure: the consultation procedure (where the Parliament gives a non-binding opinion) and the consent procedure (where the Parliament must approve a measure but cannot amend it). Additional special procedures apply to the budget, the Common Foreign and Security Policy, and enhanced cooperation. Special legislative procedures reflect the constitutional sensitivity of certain policy areas where Member States have been reluctant to extend the full co-legislative role of the European Parliament.

Consultation Procedure

The consultation procedure is the oldest legislative procedure in EU law, dating from the Treaty of Rome. Under the consultation procedure, the Council adopts legislation on a proposal from the Commission after consulting the European Parliament. The Parliament’s opinion is advisory — the Council is not required to follow it — but the obligation to consult the Parliament before adopting legislation is mandatory. The Court of Justice has held that where the Treaties require consultation, the Council may not adopt legislation until the Parliament has delivered its opinion or until a reasonable period has passed without the Parliament acting (Roquette Frères v Council, Case 138/79). Failure to consult the Parliament before adoption renders the measure void (European Parliament v Council, Case C-417/93).

The consultation procedure applies to: agriculture (Article 43(2) TFEU), competition law (Article 103 TFEU), approximation of laws concerning the internal market where directives are adopted by unanimity (Article 115 TFEU), tax harmonisation (Articles 110–113 TFEU), certain aspects of social policy (Article 153 TFEU), and various provisions in the Area of Freedom, Security and Justice. The Council votes by unanimity in most consultation procedure legal bases, reflecting the sensitivity of the matters.

Consent Procedure

The consent procedure (formerly the assent procedure) requires the European Parliament’s approval of a proposed measure before the Council can adopt it. Unlike consultation, where the Parliament’s opinion is advisory, consent gives the Parliament a veto: it may accept or reject a measure, but it cannot amend it. The Parliament must vote by an absolute majority of its component members (or, in specific cases, by a majority of votes cast).

The consent procedure applies to: accession of new Member States (Article 49 TEU), the withdrawal agreement under Article 50 TEU, the establishment of enhanced cooperation in CFSP (Article 329 TFEU), decisions determining a serious and persistent breach of EU values (Article 7 TEU), the adoption of the multiannual financial framework (Article 312 TFEU), the system of own resources (Article 311 TFEU), certain international agreements (Article 218 TFEU), and the specification of the rights attaching to EU citizenship (Article 25 TFEU, where the Parliament’s consent is required and the procedure also involves national parliaments).

The Budget Procedure

The annual budget procedure (Article 314 TFEU) follows a distinct legislative procedure that combines elements of the ordinary and special procedures. The Commission drafts the draft budget, which is submitted to the Council and the Parliament. The Council adopts its position by qualified majority and transmits it to the Parliament. The Parliament has 42 days to approve the Council’s position (the budget is adopted), amend it (returning the budget to the Council and the Commission for a Conciliation Committee), or reject it (requiring the Commission to submit a new draft budget). The Parliament may reject the budget in its entirety, as it did in December 1979, requiring the Union to operate on a month-by-month system of provisional twelfths.

The multiannual financial framework (MFF) (Article 312 TFEU) is adopted by the Council acting unanimously after obtaining the consent of the Parliament. The MFF sets the ceilings for EU expenditure over a period of at least five years (currently seven years) and is adopted through a special procedure reflecting the need for Member State unanimity on the overall size and distribution of the EU budget.

CFSP Procedure

The Common Foreign and Security Policy (CFSP) operates under a distinct legislative procedure reflecting its intergovernmental character. Article 31 TEU provides that CFSP decisions are adopted by the European Council or the Council acting unanimously, on a proposal from any Member State or the High Representative. The European Parliament is consulted on the main aspects and basic choices of CFSP but has no legislative role. The Court of Justice has limited jurisdiction over CFSP under Article 275 TFEU: it may review the legality of restrictive measures against natural or legal persons and monitor compliance with Article 40 TEU (the boundary between CFSP and other Union competences).

Enhanced Cooperation Procedure

The enhanced cooperation procedure (Articles 326–334 TFEU) allows a group of at least nine Member States to adopt legislation among themselves using the EU institutions, where it has been established that the objectives of the proposed cooperation cannot be attained within a reasonable period by the Union as a whole. Authorisation for enhanced cooperation is granted by the Council, acting by qualified majority on a proposal from the Commission and after obtaining the consent of the Parliament. Acts adopted under enhanced cooperation are binding only on participating Member States and must not undermine the internal market or economic, social, and territorial cohesion. The procedure has been used for the enhanced cooperation on divorce law (Rome III Regulation 1259/2010) and the European Public Prosecutor’s Office (Regulation 2017/1939).

The Treaty of Lisbon introduced the permanent structured cooperation (PESCO) in defence (Article 46 TEU and Protocol No 10), which allows Member States meeting higher defence capability criteria to cooperate more closely in military matters. PESCO decisions are taken by the Council by qualified majority of participating Member States, with non-participating Member States excluded from the vote. PESCO represents the most advanced form of differentiated integration in EU law.