European Law Monitor

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The Consultation procedure

Under the consultation procedure, the Commission adopts a proposal, which it then sends to both the Council and to the European Parliament.

Officially, it is the Council who undertakes to consult the European Parliament. The proposal will be passed to the relevant Parliamentary committee. The European Parliament committees most likely to deal with items under the consultation procedure are

a) Committee on citizens freedoms and rights
b) Legal affairs committee
c) Committee on womens rights and equal opportunities
d) Committee on agriculture
e) Committee on fisheries
f) Committee on foreign affairs, human rights, and common security
g) Committee on regional policy, transport and tourism
h) Committee on industry, external trade, research and energy
i) Committee on economic and monetary affairs

The Parliamentary committees will prepare a report on the proposal. This report will include an assessment of the proposal, amendments with justifications for them, a recommendation by the rapporteur to the European Parliament on what it believes the European Parliaments stance on the proposal should be and a draft legislative resolution.   The committee may suggest that the European Parliament

1. accepts the proposal. If this is put forward, and the draft legislative resolution is adopted, then the consultation process ends at this point, as the Council will then go on to formally adopt the proposal, and it will become law.

2. Reject the proposal. If this is put forward by the committee, and the proposal fails to secure a majority of the votes cast, then the President of the European Parliament will, before the European Parliament votes on the draft legislative resolution, request the Commission to withdraw the proposal. If the Commission does so, then the President of the European Parliament will declare the consultation procedure closed, and will inform the Council of this.

If the Commission does not withdraw its proposal, then the European Parliament will refer the matter back to the committee who is dealing with it, without voting on the draft legislative resolution. The committee then have two months in which to try and negotiate a different position.

If someone is trying to get a proposal either rejected or amended, it is worth being aware of political conflict between the institutions. In theory, under the terms of the procedure, the Council are obliged to consult the European Parliament but they are not bound by the European Parliaments opinion when deciding to adopt or reject a proposal.

However, because a Commission representative attends the committee meetings, as well as the plenary meetings, the Commission is usually well aware of the feelings of the European Parliament on a particular issue. The European Parliament also has the power to dismiss the entire Commission, and therefore politically, the Commission will not normally run completely counter to the European Parliaments opinion. In theory, the Commission's role in steering a proposal through the legislative process is that of the "honest broker" who will try as far as possible to reconcile the positions of the Council and the Parliament, and if that means re drafting a proposal then so be it.

The same principle applies to amendments of a proposal. Where the Commission proposal as a whole is approved, but only on the basis of amendments which have been adopted, the vote on the draft legislative resolution will be postponed until the Commission has stated its position on each of Parliament's amendments.

If the Commission is not ready to state its position on all of the European Parliament amendments at the end of Parliament's vote on its proposal, it will inform the President or the committee responsible as to when it will be in a position to do so.   The proposal will then be placed on the draft agenda of the next plenary session.

If the Commission announces that it does not intend to adopt all Parliament's amendments, the rapporteur of the committee responsible or, failing him, the chairman of that committee will make a formal proposal to Parliament as to whether the vote on the draft legislative resolution should proceed. Before submitting this proposal, the rapporteur or chairman of the committee responsible may request the President to suspend consideration of the item.

Should Parliament decide to postpone the vote, the matter will be deemed to be referred back to the committee responsible for reconsideration.

In this case, the committee responsible will, orally or in writing, report back to Parliament within a period decided by Parliament which may not exceed two months.

Only amendments tabled by the committee responsible and seeking to reach a compromise with the Commission will be admissible at this stage.

If a committee has had a proposal referred back to them they are required under the terms of that referral to report within the deadline given and, where appropriate, to table amendments seeking to reach a compromise with the Commission, but not to reconsider all the provisions approved by Parliament.

However, within these terms of reference, in view of the suspensory effect of the referral, the committee enjoys a greater degree of freedom and may, where necessary in the interests of the compromise, propose reconsidering provisions which received a favourable vote in Parliament.

In such cases, in view of the fact that the only admissible amendments from the committee are those seeking to reach a compromise, the report that the committee has to present to the European Parliament must clearly state which provisions already approved would fall if the proposed amendments were adopted.

Therefore, if someone is seeking to amend a proposal which is governed by the consultation procedure, and the Commission has not accepted all of the European Parliaments amendments, then the only amendments that are going to be tabled are those that seek to reach a compromise with the Commission. So if the Commissions stance on a particular issue runs counter to an organisations concerns, then it may be better for such an organisation to push for outright rejection of the proposal, rather than trying to get it amended.

If, on the other hand, an organisation's concerns on an issue are likely to be accommodated by the Commission, then notifying both your MEPs and the relevant person in the Commission may produce the result you are hoping for. The key point to bear in mind at this stage is that the two key players are the MEPs and the Commission. They are the people to contact at this particular point in the process.

Once the committee in charge of the proposal and the Commission have reached a compromise with the Commission in relation to the amendments the proposal will be passed back to the European Parliament, along with a draft legislative resolution.

If the draft legislative resolution is approved, then this will be sent to the Committee of Permanent Representatives, who will then refer the proposal and the amendments to a working party. The Committee of Permanent Representatives, commonly known as COREPER, basically helps prepare the work of the Council. Each Member State has a permanent representative to the EU, along with support staff, whose job it is to collate the information which will form the basis of that country´s national position on an issue. Please click here for links to each Committee of Permanent representatives

COREPER is made up of 9 separate sub committees, who deal with specific issues which are governed by the consultation procedure. These subcommittees are

  • Political and institutional affairs
  • Legal affairs
  • Justice and home affairs
  • Economic and financial affairs
  • Agricultural affairs (this will include fisheries)
  • Industrial affairs, transport, energy and internal market
  • External relations
  • Social affairs, environment, and regional policy
  • Administrative affairs

So to give a UK example, if a proposal was going through which related to agriculture, and an organisation still had concerns regarding the proposal, then at this stage they would probably be looking to notify the following with their concerns:

a) COREPER, and more specifically the subcommittee who deal with agricultural affairs.
b) The national representative of COREPER 1, which prepares internal market, environment and social affairs Council meetings. To find out who your national representative is in COREPER 1 please click here
c) You can also find your national representative of COREPER 2, who tend to deal with foreign affairs, institutional questions and ECOFIN, by clicking on the link in the preceding paragraph.
d) Their national ministry, which in the UK would be DEFRA.

COREPER prepare the work of the Council. Once it gets to the actual Council meeting, the Council will examine the amended proposal and either

(i) adopt it as it is, in which case it will become law, or
(ii) reject it, in which case it will be either killed off completely or the Commission will come out with a new proposal.
(iii) amend it further. This will usually require unanimity ie all the different government representatives will have to agree the amendment.

The consultation process applies to

  • Police and judicial cooperation in criminal matters
  • Revision of the Treaties
  • Discrimination on grounds of sex, race or ethnic origin, religion or political conviction, disability, age or sexual orientation
  • EU citizenship
  • Agriculture
  • Visas, asylum, immigration and other policies associated with the free movement of persons
  • Transport (where it is likely to have a significant impact on certain regions)
  • Competition rules
  • Tax arrangements
  • Economic policy