Lisbon: Institutional Procedure 

The Lisbon Treaty entered into force on 1 December 2009. The Treaty is composed of two parts: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). It aims to enhance and streamline EU decision-making.

The EU has been given legal personality, allowing it to sign international treaties and join international organisations. The European Parliament is now fully recognised as co-legislator alongside the Council, and its scrutiny has been extended into 40 new areas including some areas of justice and home affairs. From 2014, the Council will gradually introduce qualified majority voting in the areas where the European Parliament is co-legislator. There is also a new role for national Parliaments to examine EU legislative proposals and object to them if they exceed the scope of the Treaties. Member States can choose to leave the EU voluntarily, and a new ‘Citizen’s initiative’ will allow European citizens to petition the Commission directly. Many of these changes require further work as specific procedures have not been set out in the Treaty.

This article provides a brief overview of the main institutional and procedural changes brought about by the Lisbon Treaty (or at least, those that have been decided so far; much remains to be clarified by the Institutions themselves), how the transition from the old Treaty to the new will be carried out and what future legislative developments can be expected.

Adapting Existing Procedures

Aside from cosmetic changes such as having a new legal basis for existing and future proposals and, changing article references and the names of certain procedures such as ‘co-decision’ procedure to ‘ordinary’ procedure, there is the question of how existing and on-going procedures will be adapted to the new Treaty.

As a direct consequence of the extended scrutiny of the European Parliament, some procedures will now follow the new ‘ordinary procedure’ (‘co-decision’). This poses certain practical difficulties for certain existing procedures, particularly where the Parliament has already given its opinion.

The Commission has suggested in its Communication (COM(2009)665) that the European Parliament and the Council could agree that where the European Parliament has already delivered its opinion, it will be considered as a first reading under the ‘ordinary procedure’ (‘co-decision’). The President of the European Parliament told the plenary session on 15 December that any such decision would remain the prerogative of the Parliament. He also called upon the Parliamentary Committees to proceed with each proposal on an ad-hoc basis. The Parliament reserves the right to ask the Commission to submit new proposals if necessary.

Overhaul of the “Comitology” Procedure

The Comitology procedure has been completely overhauled under the Lisbon Treaty. There will now be two types of act – ‘delegated acts’ and ‘implementing acts’ - which follow different rules under the Treaty. The Commission has published a Communication (COM(2009)673) on ‘delegated acts’ and will prepare a legislative proposal for ‘implementing acts’ for early 2010.

Delegated Acts (Art. 290 TFEU)

The legislator can regulate a field of action and leave the Commission the responsibility for supplementing or amending this law with Delegated Acts. The scope of Delegated Acts will now have to be included in a legislative measure and give clear, precise and detailed instructions.

Delegated Acts are outlined in a Commission communication. Under this procedure, the Commission first carries out preparatory work. The consultation of national experts during this preparatory phase before the adoption of a delegated act was stressed as a key issue by Member States. The Commission will then inform experts of its conclusions, its preliminary reactions and how it intends to proceed. Once an act is adopted, the Commission will notify the legislators or legislator.

 Scrutiny of Delegated Acts

Two methods of scrutiny exist under Art 290(2): Objection to the exercise of delegated powers and revocation of the powers delegated to the Commission by either the Parliament or the Council. The institution opposing the act would explain the reasons for its decision by setting them out in a Council decision or EP resolution, formalising its objections. A ‘delegated act’ that was opposed would not be able to enter into force.

Time Limits for Delegated Acts

The Commission suggests a time limit of 2 months with a possible extension of 1 month for an objection to be made. In specific cases this could be a fixed period of three months. The Commission also suggests an urgency procedure allowing immediate adoption and implementation of a Delegated Act, which could be objected to within a period of 6 weeks.

Implementing Acts (Art. 291 TFEU)

Where the legislator has passed Regulations governing a particular field of action, it could give the Commission the responsibility for ensuring their harmonised implementation through Implementing Acts. The procedure for the adoption of such acts was not included in the Treaty, and the Commission will present a legislative proposal to establish how such acts will be adopted in 2010.

Scrutiny of EU proposals by National Parliaments

Protocols 1 and 2 of the Treaty provide a limited role for national Parliaments to scrutinise Green and White Papers, Communications and legislative proposals published by the Commission in areas where competence is shared between the Member States and the EU. National Parliaments can object to a proposal if they consider it to exceed EU legislative competence as defined in the Treaty (Subsidiarity).

The practical arrangements for the operation of this Parliamentary control still have to be defined. In practice however, the Commission will in future forward all consultation documents and legislative proposals to national Parliaments upon publication. The Commission then envisages transmitting a copy of the draft to all national Parliaments, accompanied by a deadline for response. National parliaments will have 8 weeks from the sending of the transmission letter to reply. If one third of national parliaments object to a draft legislative act, then the act is sent back to the Commission. The required threshold of objecting national parliaments is lower (one quarter) in the area of criminal law. If a proposal were to be objected to in this way the Commission College would have to decide whether to maintain, amend or withdraw the proposal in question and give reasons for its opinion in the form of a Commission Communication. During the transition period, pending proposals and modified proposals will not be covered by the scope of the procedure.

Citizens Initiatives

The Treaty introduces a Citizen’s Initiative, which means that  if citizens “no less than one million” of a “significant number of Member States” sign a petition, then the Commission will be required to examine the issue and submit a legislative proposal where this is appropriate. The Treaty has left the workings of the Citizen’s Initiative to be defined by the Commission. To this end the Commission published a Green Paper (COM(2009)622) setting out the key issues that need to be agreed upon, namely: the minimum number citizens that must be involved; the minimum number of Member States that must be represented; criteria for the eligibility of citizens; the form of the initiative; rules on the collection, verification and authentication of signatures; time limits; transparency of organisers and the Commission’s role.

Transition from Nice to Lisbon

The Commission, Council and Parliament are currently discussing the necessary adaptations to on-going procedures. The Commission has already published a Communication on adapting existing procedures to the new legal bases provided for under the Lisbon Treaty. Some adaptation will require a decision from the European Parliament on whether to start certain procedures over again or whether to adapt them to the new rules. There will be further inter-institutional discussions on the new procedures that will replace Comitology in response to the Commission Communication on Delegated Acts. An inter-institutional agreement or Declaration is also expected to be adopted by the three institutions in January 2010 until a new proposal for a Regulation on Implementing Acts has been adopted by the Commission. While this adaptation process is underway, the Commission will also be drawing up a proposal on the practical implementation of the role of national Parliaments. Furthermore, the Commission has launched a consultation until 31 January 2010 on its Green Paper on the European Citizens’ Initiative. The Commission will publish a proposal for a Regulation to define how this procedure will work in the first half of 2010, which could then be applied from 2011.