Legislation Of The European Union (Part 2)

Sometimes the Community will wish to make a legally binding rule which only affects one or a limited number of Member States or an identifiable organisation or even one individual. Sometimes the Community will wish to require a Member State to take a course of action which does not directly concern individuals and which does not have to become in any direct way the law of the Member State. Sometimes the Community makes what are more akin to administrative decisions (in particular in the organisation of agricultural and competition matters). The measure here is called a decision. A decision is binding on the addressee of the decision.

The Council must decide unanimously whether directives and decisions should be published for the purposes of information in the Official Journal of the European Communities. As a matter of normal practice, directives are usually published in the Official Journal, which is published in each of the official languages of the Community.

The nearest equivalent within the Community to a national legislature is the Council. In practice, the Council, being in legal form simply a small group of representatives from each Member State, cannot possibly undertake the vast amount of labour involved, or possess the complete expertise needed, in the enactment of secondary legislation. Consequently, the Council works through working parties composed of the administrative staff of the Council and the Committee of Permanent Representatives (COREPER).

COREPER will co-ordinate the work needed to prepare the Council for the formal adoption of secondary legislation and, in practice, unanimity achieved within COREPER will often result in speedy adoption by the Council.

In essence, the Community «legislator» represents a balance of power between the representatives of the Member States (the Council of Ministers) and the representative of the Community (the Commission). The balance is laid down in the Treaty and is achieved by the fact that the final decision belongs to the Council, and Treaty provisions will expressly state that regulations, directives and decisions are to be made, issued and taken by the Council, but the Council can only act upon a proposal from the Commission, and if the Council acts on a proposal from the Commission, unanimity is required for an act constituting an amendment to that proposal (Article 149.1: re-enacted as Article 189a.l by the Treaty of Union). There is a further balance between the desire to allow Member States to protect their national interests and the desire to limit the right of Member States to veto matters on which there is overwhelming agreement by the majority of Member States. This is achieved by provisions which provide for decisions to be taken by the Council by a simple majority of states (Article 148.1), by unanimity (see e.g. Articles -1, 100 and 23-) and by a «qualified majority», designed to achieve some measure of weighting according to the population of the state (Article 148.2). A feature of the development of the Community has been a gradual change from the requirement of unanimity to the requirement of qualified majority. The Single European Act took this even further by amending a number of important provisions of the EEC Treaty which required unanimity so that, in the interests of «unblocking» and speeding up the Community decision-making process, the requirement now is only that of a qualified majority and by making legislative decision making in several of the new areas of Community competence (including the key Article 100a relating to the internal market.

There is no single legislative procedure that is applied unwaveringly to the creation of all secondary legislation.

In all cases the Council, as has been seen, can only act following a proposal from the Commission. The Commission may initiate a proposal of its own motion or it may be required by the Council to draw up a proposal. The proposal will be drafted within the appropriate Commission Directorate(s) General and the final text, if approved by the Commission, will be submitted to the Council for formal adoption.