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Topic 2.2: The Institutional Structure and Law-making, How does EU make…

- - - - Germany claimed the Parliament and Council had acted ultra vires by using Art 114 TFEU as the legal base rather than Art 168(5) TFEU which relates to public health (but does not permit harmonisation measures)
        
        CJEU: EU act based on Art 114 TFEU must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market
- - - - When a Commission proposal is sent to the European Parliament and Council, it is ALSO sent to all national parliaments (NP's) for consultation. NPs have 8 weeks to issue a reasoned opinion if they consider that the proposal breaches the principle of subsidiarity. Each MP has 2 votes (27 x 2 = 54 votes)
        
        Yellow card procedure
        
        If one-third consider non-compliance, the Commission must review its proposal (yellow card procedure). The Commission may decide to maintain, amend, or withdraw the proposal, providing reasons for its decision
        
        Orange card procedure:
        
        If one-half consider non-compliance of a measure due to be adopted by the ordinary legislative procedure (OLP), the Commission must review.
        
        The Commission can maintain the proposal but must provide a reasoned opinion. This can be overridden by the European Parliament and Council (orange-card procedure)
        
        If 55% of Council members, or the majority of votes cast in the EP, decide if does not respect subsidiarity, the proposal is withdrawn
      - Procedures triggered so far:
        
        2012 - Yellow card issued with regard to Commission proposal for a Regulation on the right to take collective action. The Commission withdrew the proposal (but said subsidiarity has been complied with)
        
        2013 - Yellow card issued with regard to a Commission proposal for a Regulation on the creation of a European Public Prosecutor's Office. The Commission maintained the proposal, arguing that it was in line with subsidiarity principle
        2016 - Yellow card with regard to a Commission proposal for a revision of the posting of Worker's Directive. The Commission maintained the proposal, arguing that it was in line with the subsidiarity principle
- - - - Council approves EP's position without amendments
        
        = Act adopted
      - Council does not approve,adopts amendments to EP's position
        
        Moves to Second Reading
    - - EP approves Council's position without amendments or takes no action within 3 months
        
        = Act adopted
      - EP makes amendments to Council's position within 3 months
        
        Council accepts EP's amendments within 3 months (QMV)
        
        = Act adopted
        
        Council rejects EP's amendments within 3 months
        
        Moves to Conciliation/Third Reading
      - EP rejects Council's position by absolute majority within 3 months
        - Proposal does not become law
    - - Conciliation Committee
        
        No joint text agreed within 6 weeks
        
        = Proposal does not become law
        
        Joint text agreed within 6 weeks
        
        Moves to...
      - Third Reading
        
        Approval by EP (majority) and Council (QMV) within 6 weeks
        
        = Act adopted
        
        No approval given by either/both within 6 weeks
        
        = Proposal does not become law
- - - - Commission proposal:
        
        The internal market is a competence that is shared between the Union and the Member States
        
        Remember - shared competence:
        
        Art 2(2) TFEU which defines shared competence (and the principle of pre-emption)
        
        Art 4(2) TFEU which lists the areas that fall within shared competence (including internal market)
    - - Commission proposal:
        
        The proposal is based on the same legal basis as the legislative act that is being amended, i.e. Art 114 of the Treaty on the Functioning of the EU
        
        Remember - Art 114 TFEU:
        
        Generic legal base (internal market)
        
        Harmonisation provision
        
        Ordinary legislative procedure
        
        Consultation with the Economic and Social Committee
        
        Tobacco Advertising Case - the proposal must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market
    - - How does the Commission justify compliance with the principle of subsidiarity in its proposal?
        
        The absence of EU action in this area will create 'substantial differences' between MS laws, regulations and practices
        
        Action at national level may 'create obstacles to the free movement of goods'
        
        Coordinated action at EU level to achieve 'objectives much more efficiently, and will render market surveillance more effective'
        
        Consultation:
        
        e.g. targeted citizens, consumer associations, manufacturers, associations, NGO's
        
        National parliaments:
        
        No subsidiarity concerns raised by NP's by deadline of 19th November (EP briefing)
    - - Commission proposal:
        
        In accordance with the principle of proportionality. the proposed amendment do not go beyond what is necessary to achieve the objectives set
        
        An impact assessment was carried out to examine the need for EU action and analyse the possible impacts of the available policy solutions e.g. environmental benefits, consumer convenience, turnover for retailers and distributors