EU legislative procedures

Acquis communautaire: autonomous nature of law with the principle of primacy

The European Union is a unique supranational political and economic structure. Upon accession, Member States adopt and incorporate the acquis into their national legal system. European Union law is therefore a special international legal system functioning in parallel with the laws of Member States.

EU law consists of founding treaties (so-called primary legislation)1 and legal acts adopted by the EU institutions to exercise their powers, such as regulations, directives, decisions, recommendations and opinions (so-called secondary legislation)2. International agreements and EU case law with legislative powers, i.e. the Court of Justice of the European Union and the General Court, are another important legal source.

The relationship between the EU acquis and the legislative systems of the Member States is illustrated by three principles: 

  1. the primacy of EU law, which means that in the event of deviations between a rule adopted at the EU level and a rule contained in the legal system of a Member State, EU law prevails;
  2. the direct applicability of EU law means that acts of the EU institutions can be directly applicable without further action by the Member States;
  3. the autonomy of EU law means that the established EU legal system is independent of the law in force within the Member States themselves – this in turn means that EU regulations are valid in all Member States, requiring all non-compliant national legislation to be suitably changed.

This relationship facilitates the implementation of EU policies, since it applies only to areas where Member States have transferred sovereignty to the EU. This includes the single market, the environmental policy, and transport, but not areas such as welfare and tax policy. 

1The text of the Treaty on European Union and the Treaty on the Functioning of the European Union, as well as other acts governing the establishment and functioning of the European Union, can be accessed through EUR-Lex.
2All European Union legislation is accessible by visiting EUR-Lex.
 

The process of European integration is constantly evolving through the adoption of EU treaties. The last major change happened on 1 December 2009 with the adoption of the Lisbon Treaty. The main purpose of the Treaty was to increase the capacity to act and deliver results following the accession of twelve new Member States in 2004 and 2007, as well as to strengthen the EU’s role in the world. The Treaty of Lisbon amended the Treaty on European Union and the Treaty Establishing the European Community, now called the Treaty on the Functioning of the European Union. Slovenia ratified the Treaty on the Functioning of the EU in the National Assembly on 29 January 2008. 

Through its provisions, the Treaty of Lisbon is aimed at achieving the following objectives: 

  • A more democratic and transparent EU with a new institutional arrangement. The Treaty expanded the role of the European Parliament and national parliaments and introduced the European Citizens’ Initiative3 with the aim of enhancing the role of EU citizens in shaping EU policy. 
  • A more efficient EU by introducing a qualified majority for most decisions in the EU Council;
  • A better guarantee of fundamental rights and freedoms by recognizing the fundamental principles of the EU and the Charter of Fundamental Rights as a legally binding document;
  • An enhanced EU role in the world through the establishment of a permanent President of the European Council and a High Representative of the Union for Foreign Affairs and Security Policy.

3A million citizens from at least a quarter of EU Member States may demand the European Commission formulate a legislative proposal pertaining to an area within its competence. You can read more about the procedure at “Europarl”.

In 2007, the Treaty of Lisbon also defined for the first time the role of EU national parliaments, thus formally becoming involved in the process of adopting EU legislation. The rights and obligations of national parliaments are governed by the provisions of the Treaty of Lisbon and the Protocol on the Role of National Parliaments in the European Union (informing national parliaments and interparliamentary cooperation)4 and the Protocol on the Application of the Principles of Subsidiarity and Proportionality. 

The national parliaments of the Member States are involved in the legislative process by: 

  • being informed and receiving draft legislation from EU institutions;
  • ensuring the principle of subsidiarity is respected; 
  • participating in mechanisms for evaluating the implementation of policies in the area of freedom, security and justice; 
  • participating in procedures for amending treaties; 
  • being informed of applications for joining the EU;
  • participating in the political scrutiny of Europol and Eurojust and 
  • promoting regular interparliamentary cooperation between national parliaments and the European Parliament.

The Lisbon Treaty has also had an impact on the National Assembly Rules of Procedure. In order to exercise the powers deriving from the Treaty, the deputies adopted appropriate amendments to the Rules of Procedure of the National Assembly in December 2010 with a chapter entitled “Monitoring Compliance with the Principle of Subsidiarity”. The aim of these is to effectively involve the National Assembly in decision-making processes at the EU level and increase activity of the relevant working bodies in dealing with EU matters that are in the legislative process.

4Protocol on the Role of National Parliaments in the European Union (PDF 370 KB)

The Lisbon Treaty has significantly expanded the role of Member States’ national parliaments in the EU legislative process. The introduction of an early warning system allows national parliaments to monitor compliance with the principle of subsidiarity in legislative proposals. The principle of subsidiarity sets out the conditions under which the EU operates in areas which do not fall within its exclusive competence. On this basis, the EU can only intervene when Member States are unable to achieve the targets satisfactorily and provided action at EU level can bring added value. This is closely linked to the principle of proportionality, which stipulates that EU action must not go beyond, what is necessary to achieve the objectives of the Treaties. 

The Protocol on the Application of the Principles of Subsidiarity and Proportionality – the early-warning system

In accordance with the Lisbon Treaty and the Protocol on the Application of the Principles of Subsidiarity and Proportionality, the national parliaments of the Member States monitor compliance with the principle of subsidiarity. The aim of monitoring is to ensure that the EU does not interfere in areas that fall under the competence of Member States. 

The monitoring procedure, also called the Early Warning System, is detailed in the Protocol on the Application of the Principles of Subsidiarity and Proportionality. Per this procedure, national parliaments or their chambers may issue a reasoned opinion stating the reasons why the draft legislative proposal under consideration does not comply with the principle of subsidiarity. The reasoned opinion must be delivered within eight weeks of the date on which the draft legislative act is available to parliaments in all EU official languages. 

Impact of a reasoned opinion on the legislative procedure

The impact of a reasoned opinion on the legislative procedure depends on the number of EU national parliaments or their houses that have sent a reasoned opinion on the legislative proposal and how many votes they represent. Each national parliament has two votes; in the case of a bicameral parliament, each house has one vote. In the case of the Republic of Slovenia, the parliament is considered to be bicameral, which means that the National Assembly and the National Council each have one vote. The total number of votes of all national parliaments of the EU Member States currently stands at 54.

 Yellow Card Procedure

The Protocol on the Principles of Subsidiarity and Proportionality stipulates that if the reasoned opinions represent at least one third of the votes (currently 18 votes out of a total of 54) allocated to the 27 national parliaments of the Member States, the legislative draft must be re-examined. In the case of draft laws pertaining to freedom, security and justice, this threshold is a quarter of the votes (currently 14 votes). After re-examination, the proposer may decide to maintain, amend, or withdraw the draft legislation, which must be further substantiated. This process is called the Yellow Card Procedure. 

Orange Card Procedure

If, as part of the ordinary legislative procedure, reasoned opinions on non-compliance with the principle of subsidiarity constitute at least a simple majority of the votes (currently 28 votes), allocated to the national parliaments of the Member States, the proposal should be re-examined. After re-examination, the European Commission or another institution, which has proposed the act, may decide whether to keep, amend or withdraw the proposal.

If the proposer nonetheless decides to keep their proposal, a special procedure follows. The proposer must give a reasoned opinion explaining how the principle of subsidiarity is respected. This reasoned opinion of the proposer, together with the reasoned opinions of the national parliaments of the Member States, is then submitted to the legislative institutions, i.e. the Council of the EU and the European Parliament. The two institutions then decide whether or not to continue the legislative process.

If, on the basis of a majority of 55% of the members of the Council of the EU or a majority of the votes cast in the European Parliament, the legislator considers that the proposal is incompatible with the principle of subsidiarity, the legislative proposal is no longer considered. This process is called the Orange Card Procedure. 

 

In order to exercise its powers under the Lisbon Treaty, the National Assembly adopted appropriate amendments to the National Assembly Rules of Procedure. These regulate the procedures for reviewing the principle of subsidiarity, for bringing an action for breach of the principle of subsidiarity before the Court of Justice, for considering those initiatives of the European Council relating to procedures for amending the Treaties, for considering EU Council proposals on judicial cooperation in civil matters, for reviewing applications to join the EU, and for participation in mechanisms for evaluating the implementation of EU policies concerning freedom, security, and justice.5

5 These procedures are defined in Articles 154.m154.s of the National Assembly Rules of Procedure.