ERA Forum (2021) 22:211–229

https://doi.org/10.1007/s12027-021-00671-9
ARTICLE

The basic principles of the European Union’s ordinary

legislative procedure

Jonathan Bauerschmidt1

Accepted: 7 June 2021 / Published online: 22 June 2021

© @ ERA 2021

Abstract
Every constitution needs to set out rules for the production of its laws. Legislation
refers to the making of laws and is central for democracies to assure collective self-
determination. Legislation is also fundamental to preserve liberty as Montesquieu
observed for states more than 250 years ago: “In a free state, every man who is con-
sidered a free citizen ought to be governed by himself. Hence, the people as a body
should have legislative power.” (De l’Esprit des lois, 1748, XI.6, p. 331) In large so-
cieties this requires to have representatives who discuss matters of common concern
and express the general will. For the European Union, the ordinary legislative pro-
cedure is the most important method for producing laws. This article shows that the
Treaty of Lisbon introduced a formal conception of legislation. The ordinary legisla-
tive procedure is governed by a series of procedural principles which determine the
relation between the European Parliament, the Council and the Commission as its
main actors. While the Treaties define a formal sequence to adopt legislation, nego-
tiations take place in informal Trilogues between these three institutions. In addition
to the procedural principles, the legislative acts adopted must adhere to substantive
principles related to their content.

Keywords Legislation · Ordinary legislative procedure · Democracy · Institutional

balance · Trilogue

Disclaimer: The views expressed by the author are strictly personal and do not engage the institution
for which he works.
 J. Bauerschmidt
[email protected]

1 Dr. iur., Member of the Legal Service, Council of the European Union, Brussels, Belgium
212 J. Bauerschmidt

1 Introduction: material and formal conceptions of legislation

In the modern era, two competing conceptions of legislation have emerged.1 The ma-
terial conception of legislation focuses on what legislation is and defines it as legal
rules of abstract and general application.2 This first conception of legislation has tra-
ditionally informed continental constitutional thought where it is contrasted with the
decision for a specific situation and addressed to an individual.3 The second, formal
conception of legislation focuses on who is in charge of exercising legislative func-
tions. Legislation is then formally defined as every act adopted in accordance with
a (parliamentary) legislative procedure. This formal conception has shaped Anglo-
Saxon constitutional thought where in Britain only the parliament enacts legislation4
and under the U.S. Constitution in accordance with Art. I, Sect. 1 “All legislative
Powers herein granted shall be vested in a Congress of the United States”.
When the European Communities were established, their competences to enact
legal acts were not originally conceived as being of a legislative nature. Rather, the
decision-making laid mostly in the hands of the Council of ministers which acted
upon proposals by the Commission. The European Parliament was at most consulted
in the Council’s decision-making. An attempt to categorize this law-making started
by analysing the final outcome of the procedure and the legal acts defined in Art. 189
EEC Treaty (now Art. 288 TFEU). In an emblematic ruling, the Court of Justice dis-
tinguished between a decision and a regulation in the following terms: “The essential
characteristic of a decision arises from the limitation of persons to whom it is ad-
dressed, whereas a regulation, being essentially of a legislative nature, is applicable
not to a limited number of persons, named or identifiable, but to categories of persons
viewed in the abstract and in their entirety.”5 This material conception of legislation
was also endorsed by scholars stating that “the legislative power relates to the func-
tion of enacting rules with a general and abstractly defined scope of application (this
is what a Continental European lawyer would call the ‘lois matérielles’)”.6
While jurisprudence also referred to the importance of the European Parliament
in the legislative procedure,7 it was only the Treaty of Lisbon which introduced a
formal conception of legislation. According to Art. 289(1) TFEU “[t]he ordinary leg-
islative procedure shall consist in the joint adoption by the European Parliament and
the Council of a regulation, directive or decision on a proposal from the Commis-
sion.” After the rejection of the Constitutional Treaty,8 this new provision dismisses

1 See on this distinction Schütze [26], p. 91 et sq.

2 Carré de Malberg [6], p. 1 et sq.
3 Schneider [25], p. 22 et sq.
4 Dicey [10], p. 39 et sq.
5 Case 117/86 Union de Federaciones Agrarias de Espana (UFADE) v Council, EU:C:1986:419, para. 9.
Similar in Joined Cases 16/62 and 17/62 Conf. des prod. de fruits v Council, EU:C:1962:47, p. 478 and
Case 25/62 Plaumann v Commission, EU:C:1963:17, p. 107.
6 Lenaerts [15], p. 13.
7 Case 138/79 Roquette Frères v Council, EU:C:1980:249, para. 33.
8 See the IGC mandate for the Lisbon Treaty in the Presidency Conclusions of the European Council of
21/22 June 2007, ST 11177/1/07 REV 1, Annex I, paras. 18 & 19 v).
The basic principles of the European Union’s ordinary legislative. . . 213

the attempt to define legislation in terms of the type of legal acts. Rather, the defin-
ing criterion for the ordinary legislative procedure is that legislative acts are adopted
jointly by the Parliament and the Council. A similar formalism was introduced for
the special legislative procedures where the Parliament acts with the participation of
the Council; or the Council after consulting the Parliament or with the consent of
the Parliament. And it is only where the Treaties explicitly state that an act has been
adopted in accordance with an ordinary or a special legislative procedure that this act
also constitutes a legislative act.9
The introduction of this formal conception of legislation does not mean that ma-
terial requirements for legislation have disappeared (5.). But it emphasizes the fun-
damental importance of procedural principles (2.). These principles determine the
relations between the various actors (3.) and shape the conduct of negotiations in the
ordinary legislative procedure (4.).

2 Principles governing the procedure

The ordinary legislative procedure is governed by a series of principles which are

by now enshrined in the Treaties. They are the principles of conferral (2.1.), democ-
racy (2.2.), institutional balance & sincere cooperation (2.3.) as well as legislative
transparency (2.4.).

2.1 Conferral, Art. 5(1) & (2) TEU

Every action of a public authority requires a competence. Having a competence is

therefore a prerequisite to legal and legitimate exercise of power. For the European
Union the principle of conferral is enshrined in Art. 5(1) & (2) TEU and requires
that the Union only acts within the limits of the competences conferred upon it by the
Member States in the Treaties to attain the objectives set out therein. The fundamental
importance of this principle has been acknowledged by the Court of Justice early
on.10 Pursuant to the principle of conferral the Union has independent powers, which
it can legally and legitimately exercise in its own name.11 This also means that the
Union enjoys only conferred powers12 and the choice of the appropriate legal basis
has constitutional significance.13 In accordance with established case law, the choice
of a legal basis by the Union legislator must rest on objective factors amenable to
judicial review, which include the aim and the content of that measure.14

9 Art. 289(3) TFEU.

10 Case 20/59 Italy v High Authority, EU:C:1960:33, p. 338; Case 25/59 Netherlands v High Authority,
EU:C:1960:34, p. 373 et sq.
11 See to this end Case 11/70 Internationale Handelsgesellschaft, EU:C:1970:114, para. 3.
12 Opinion 1/03 Lugano Convention, EU:C:2006:81, para. 124.
13 Opinion 2/00 Cartagena Protocol, EU:C:2001:664, para. 5.
14 Opinion 1/15 EU-Canada PNR Agreement, EU:C:2017:592, para. 61; Case C-620/18 Hungary v Par-
liament and Council, EU:C:2020:1001, para. 38; Case C-626/18 Poland v Parliament and Council,
EU:C:2020:1000, para. 43.
214 J. Bauerschmidt

The legal basis in the Treaties determines whether the Union has a competence. It
also enshrines how this competence is exercised. For example to achieve the objec-
tives of the internal market Art. 114(1) TFEU empowers the European Parliament and
the Council “acting in accordance with the ordinary legislative procedure” to adopt
measures for the approximation of laws. Like other legal bases in the Treaties, this
provision contains the conferral of powers and determines the applicable legislative
procedure at the same time.

2.2 Democracy, Articles 9–12 TEU

Democracy as a founding value is enshrined in Art. 2 TEU and the Treaty of Lisbon
sets out in Art. 9–12 TEU the democratic principles. These provisions are a cul-
mination of a debate which has started in the early days of European integration,15
intensified since the Treaty of Maastricht16 and is by no means settled.17 According
to Art. 10 TEU the functioning of the Union is founded on representative democ-
racy and the Treaties envisage two strands democratic legitimacy. On the one hand,
citizens are directly represented at Union level in the European Parliament. On the
other hand, the Treaties recognize the democratic organization of all Union citizens
in their Member States. The Member States are therefore represented in the Euro-
pean Council by their respective Heads of State or Government and in the Council by
their respective government, which in turn must be democratically accountable to the
respective national parliaments and their citizens. The democratic legitimacy of the
European Union, as envisaged in Art. 10(2) TEU, is thus provided by the citizens of
the Union as a whole and by the peoples of the Member States.
The Treaties, however, do not address the key question of constitutional theory
whether the two strands of legitimacy emanate from two structurally different sub-
jects of legitimation or whether the source of legitimation is ultimately a single one.
At first glance, the two strands of legitimacy seem to presuppose also two different
subjects of legitimation: the individual citizens of the Union on the one hand and the
aggregate subject of the people on the other. But ultimately, it is more convincing to
comprehend individuals as the sole subjects of democratic legitimacy who are both
citizens of Member States and the Union.18 As illuminating as this theoretical insight
may be, it remains controversial and can therefore only be used very cautiously in
legal doctrine. This may also explain why the Court of Justice has so far developed
the principle of democracy only cautiously and then mostly in conjunction with other
general principles such as institutional balance and sincere cooperation.
The central motive for the Court is the effective participation of the European
Parliament in the legislative process as a “reflection, at Union level, of the fundamen-
tal democratic principle that the people should participate in the exercise of power

15 See only Pescatore [20], p. 505.

16 See only Curtin [8] and Weiler [28], p. 278 et sqq.
17 See for example the debate on European democracy in the Conference on the Future of Europe: https://
futureu.europa.eu/processes/Democracy.
18 See most insightful v. Achenbach [1], p. 416–423.
The basic principles of the European Union’s ordinary legislative. . . 215

through the intermediary of a representative assembly”.19 For legislative action of

the European Union, revisions of the Treaties have established that in normal cases
democratic legitimacy is provided by the European Parliament and the Council to-
gether. Semantically this is expressed by calling one procedure the “ordinary” leg-
islative procedure whereas other such procedures are “special”. However, the princi-
ple of democracy does not determine what is a normal case and should be decided
in an ordinary legislative procedure. This continues to be determined by the relevant
competence.20 In other words: not the claim on democratic legitimacy determines the
applicable procedure but the Treaty provision conferring the competence.

2.3 Institutional balance & sincere cooperation, Art. 13(2) TEU

Institutional balance and sincere cooperation are two crucial principles governing the
relations of the Union institutions in the ordinary legislative procedure.
The principle of institutional balance goes back to the beginnings of European
integration. In the Meroni judgment, the Court of Justice held with regard to Art. 3
ECSC-Treaty: “From that provision there can be seen in the balance of powers which
is characteristic of the institutional structure of the Community a fundamental guar-
antee granted by the Treaty”21 The Court subsequently developed this case law under
the term of institutional balance,22 without, however, attempting to define the con-
cept. It was not until the Chernobyl judgment in 1990 that the Court gave a more
detailed definition: “The Treaties set up a system for distributing powers among the
different Community institutions, assigning to each institution its own role in the in-
stitutional structure of the Community and the accomplishment of the tasks entrusted
to the Community. Observance of the institutional balance means that each of the
institutions must exercise its powers with due regard for the powers of the other in-
stitutions.”23 Today, the principle of institutional balance is enshrined in Art. 13(2),
1st sentence TEU according to which each institution shall act in accordance with the
powers conferred on it by the Treaties.
Like Montesquieu’s famous separation of powers at national level,24 the principle
of institutional balance entails three different aspects:25 First, powers must be sepa-
rated allowing each institution to enjoy a sufficient independence in order to exercise

19 Case C-130/10 Parliament v Council, EU:C:2012:472, para. 81 with reference to Case 138/79 Roquette
Frères v Council, EU:C:1980:249, para. 33 and Case C-300/89 Titanium dioxide, EU:C:1991:244, para.
20.
20 Case C-300/89 Titanium dioxide, EU:C:1991:244, paras. 20 et sq.
21 Case 9/56 Meroni v High Authority, EU:C:1958:7, p. 152 (emphasis added).
22 Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster, EU:C:1970:115, para.
9; Case 138/79 Roquette Frères v Council, EU:C:1980:249, para. 33; Case 149/85 Wybot v Faure,
EU:C:1986:310, para. 23.
23 Case C-70/88 Parliament v Council, EU:C:1990:217, paras. 21 et sq.
24 Montesquieu [19], XI.6, p. 327 et sqq. See also Art. 16 of the Declaration of the Rights of Man and of
the Citizens of 1789: “Toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation
des pouvoirs déterminée, n’a pas de Constitution.” Troper [27], p. 157 et sqq.
25 Möllers [18], p. 43 et sqq. similar Lenaerts & Verhoeven [16], p. 44 et sq.
216 J. Bauerschmidt

its powers.26 Second, the ban on usurpation prohibits against the exercise of a par-
ticular power by an institution to which this power has not been allocated under the
Treaties.27 Third, the aspect of balance is already semantically underlined by the term
of institutional balance. According to this, the powers of an institution are not to be
considered in isolation, but must be understood within the institutional framework. In
the Meroni judgment, the aspect of balance reinforces the allocation of powers under
the Treaties and prevents arbitrary reallocation of these powers. The Court addresses
the concerns precisely when it speaks of the “balance of powers” and uses this aspect
to prevent the delegation of large discretionary powers to a body not governed by
the Treaties.28 In addition, institutional balance is used to sanction procedural errors:
with reference to the powers in the Treaties, the Court interprets the procedural rights
of the Parliament as essential procedural requirements and declares legislative acts
violating them null and void.29 But also the procedural rights of other institutions,
such as the Commission’s right of initiative in the ordinary legislative procedure, are
interpreted in light of the institutional balance established by the Treaties.30 For the
Court of Justice, the principle of institutional balance forms the crucial background
for understanding the powers and procedures in relation to the legal entity of the
European Union as a whole.31
The functional counterpart to the principle of institutional balance is the princi-
ple of sincere cooperation. While the former focuses on the separation of powers and
the balance between the institutions, the latter requires them to cooperate loyally. The
principle of sincere cooperation is today enshrined in Article 13(2) 2nd sentence TEU
and prevents the Union from disintegrating into a multitude of isolated and mutually
blocking centres of power. Instead, the institutions are to cooperate with each other.
This has mainly procedural consequences and the Court obliges institutions to enter
into dialogue.32 For the ordinary legislative procedure, this puts certain limits to the
Commission’s right to withdraw a legislative proposal.33 At the same time, the ne-
cessity for dialogue does not augment a right of consultation to a right of co-decision

26 Case 5/85 AKZO Chemie, EU:C:1986:328, paras. 37–40 (internal organization of the Commission);
Case C-345/95 France v Parliament, EU:C:1997:450, para. 32 (internal organization of the Parliament).
The aspect of separation is closely related to yet distinguishable from institutional autonomy, Bauerschmidt
[3], p. 179 et sqq.
27 Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster, EU:C:1970:115, paras. 8
et sq. (interference of the Council with the implementing powers of the Commission); Case 149/85 Wybot
v Faure, EU:C:1986:310, para. 23 (power of the Council and the Commission to request an extraordinary
session of the Parliament).
28 Case 9/56 Meroni v High Authority, EU:C:1958:7, p. 152; Case 98/80 Romano, EU:C:1981:104, para.
20.
29 See from the more recent jurisprudence Case C-133/06 Parliament v Council, paras. 56 et sq.; Case
C-77/11 Council v Parliament, EU:C:2013:559 paras. 21, 28, 52 et sqq.
30 Case C-409/13 Council v Commission, EU:C:2015:217, paras. 64–75.
31 See in detail Bauerschmidt [3], p. 185 et sqq.
32 Case 204/86 Greece v Council, EU:C:1988:450, para. 16; Case C-65/93 Parliament v Council,
EU:C:1995:91, para. 23.
33 Case C-409/13 Council v Commission, EU:C:2015:217, paras. 83, 97–105.
The basic principles of the European Union’s ordinary legislative. . . 217

for the Parliament where the Treaty framers deliberately did not foresee the ordinary
legislative procedure.34

2.4 Legislative transparency, Art. 15(2) & (3) TFEU

The principle of transparency is inherent to the Union’s legislative process. The

Treaties have rightfully been interpreted as establishing a close relationship between
legislative procedures and the principle of transparency.35 Since the Treaty of Lis-
bon, Art. 15(2) TFEU states on the publicity of deliberations that the European Par-
liament shall meet in public, as shall the Council when considering and voting on
draft legislative acts. Art. 15(3) TFEU also extends legislative transparency to access
to documents in accordance with the Transparency Regulation (EC) 1049/2001.36
Although Art. 4(3) of the Transparency Regulation foresees an exception for such
access if disclosure would seriously undermine the institution’s decision-making pro-
cess, the Court of Justice has interpreted this exception very narrowly when it comes
to legislative procedures. Already Recital (2) of the Transparency Regulation makes
clear that public access to documents is related to the democratic nature of the Union
institutions, strengthens their legitimacy and renders them more accountable to the
citizens in a democratic system.37 To this end, the purpose of the Transparency Reg-
ulation is to give the public the widest access possible and exceptions must be inter-
preted strictly.38 In the words of the General Court it is therefore precisely the open-
ness of the legislative process which contributes to the greater legitimacy regardless
of whether certain documents were produced at an early, late or final stage of the
decision-making process or whether they were produced in a formal or informal con-
text.39 The principle of transparency and the strict interpretation of exceptions by
the Union courts continues to influence legislative practice in the ordinary legislative
procedure.

3 The actors in the ordinary legislative procedure

The procedural principles determine the relations of the actors in the ordinary legisla-
tive procedure. The main actors are the Parliament, the Council and the Commission
which form a decision-making triangle (3.1.). In addition, national parliaments are
formally involved (3.2.) and certain bodies are consulted (3.3.). Finally, the European
Council gives political guidance but does not exercise legislative functions (3.4.).

34 Case C-48/14 Parliament v Council, EU:C:2015:91, paras. 58–60.

35 Opinion of AG Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325, paras.
39 et sq.
36 Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents [2001] OJ L 145/43.
37 Cases C-39/05 P and C-52/05 P Sweden and Turco v Council, EU:C:2008:374, para. 34; Case C-280/11
P Council v Access Info Europe, EU:C:2013:671, para. 27.
38 Case C-266/05 P Sison v Council, EU:C:2007:75, para. 63; Cases C-39/05 P and C-52/05 P Swe-
den and Turco v Council, EU:C:2008:374, para. 36; Case C-280/11 P Council v Access Info Europe,
EU:C:2013:671, para. 30.
39 Case T-540/15 De Capitani v Parliament, EU:T:2018:167, para. 101.
218 J. Bauerschmidt

Fig. 1 Decision-making triangle

3.1 Decision-making triangle: Commission, Parliament and Council

The main actors in the ordinarly legislative procedure have a triangular relationship
as can be seen in Fig. 1: the Commission proposes legislation and the Parliament and
the Council both adopt legislation.
The Commission has the power of legislative initiative under Art. 17(2) TEU and
Art. 294(2) TFEU. It is therefore for the Commission to decide whether or not to sub-
mit a proposal for a legislative act. By virtue of that power, it is for the Commission
to promote the general interest of the Union and take appropriate initiatives to that
end, to determine the subject-matter, objective and content of that proposal.40 The
involvement of the Commission in the legislative process does not end, once the pro-
posal is submitted. Rather, the Commission promotes contacts and seeks to reconcile
the positions of the Parliament and the Council. Moreover, the Commission may alter
its proposal at any time during the legislative process as long as the Council has not
acted and may even withdraw its proposal.41
The European Parliament and the Council exercise jointly legisliatve functions in
accordance with Art. 14(1) & 16(1) TEU. In the ordinary legislative procedure they
act as co-legislators with symmetric procedural rights which are set out in Art. 294
TFEU. They are thus on an equal footing and it is necessary that they both adopt
the same legislative act. One cannot act without the other. This requirement has far
reaching consequences for the conduct of negotiations which will be examined in the
next section.
In relation to the Commission, the co-legislators may make amendments and may
even introduce measures that were not foreseen in the initial proposal. They are also
not bound by the Commission’s impact assessment, which inform the co-legislators
of the effect of their action, as these impact assessments are not binding on either
the Parliament or the Council.42 This is the result of the Union legislature’s broad

40 Case C-409/13 Council v Commission, EU:C:2015:217, para. 70.

41 See Art. 293 TFEU and Case C-409/13 Council v Commission, EU:C:2015:217, para. 72 et sq.
42 Case C-343/09 Afton Chemical, EU:C:2010:419, paras. 30 & 57.
The basic principles of the European Union’s ordinary legislative. . . 219

discrection which applies not only to the nature and scope of the measures to be
taken, but also, to a certain extent, the finding of the basis facts. However, the Union
legislators must be able to show before the Court that in adopting the act they actu-
ally exercised their discretion, which presupposes the taking into consideration of all
the relevant factors and circumstances of the situation the act was intended to reg-
ulate. The information the institutions may rely on when exercising their discretion
includes, but is not limited to information in the public domain, workshops by the
Parliament and scientific documents used by Member States in Council meetings,
without them having to be official Council documents.43

3.2 National parliaments

The Treaty of Lisbon explicitly involves national parliaments in the Union’s legisla-
tive process for the first time. These procedural rights strengthen the democratic le-
gitimacy of the ordinary legislative procedure. Protocols No 1 on the role of national
parliaments and No 2 on the application of subsidiarity and proportionality oblige the
Commission to send its legislative proposals to national parliaments at the same time
those are sent to the European Parliament and the Council. National parliaments then
have 8 weeks to raise concerns about the legislative proposal. If at least one third44
of the national parliaments express the view in reasoned opinions that the draft leg-
islation does not comply with the subsidiarity principle, the draft must be reviewed.
The Commission may then decide to maintain, amend or withdraw the proposal. In
the ordinary legislative procedure, the Commission has to review its proposal if it re-
ceives a “yellow card”, meaning the reasoned opinions of at least half of the national
parliaments. If the Commission choses to maintain the proposal, then it must justify
its position in a reasoned opinion and forward it to the European Parliament and the
Council. The Union legislators must then consider whether the proposal is compatible
with the principle of subsidiarity. If the Council, by a majority of 55% of its members,
or the Parliament, by the majority of the votes cast, consider that the proposal is not
in line with the principle of subsidiarity, the proposal will not be examined further.45
Such a conclusion is, however, rather theoretical as the Commission will most likely
either modify or withdraw its proposal in light of massive concerns.

3.3 The consultative bodies

The ordinary legislative procedure is also informed by consultative bodies. On the

one hand, the legal basis may foresee mandatory consultation of the Economic and
Social Committee (e.g. Art. 114(1) TFEU for the harmonisation of the internal mar-
ket), the Committee of the Regions (e.g. Art. 175 TFEU for cohesion policy), the
Court of Justice (e.g. Art. 257 TFEU for specialised courts) or the Court of Auditors
(e.g. Art. 322 TFEU for the financial regulation). On the other hand, the European

43 Case C-343/09 Afton Chemical, EU:C:2010:419, paras. 33–41.

44 In the case of Art. 76 TFEU, in the area of freedom, security and justice, already a quarter of the national
parliaments are sufficient.
45 Art. 7(3) Protocol No 2.
220 J. Bauerschmidt

Central Bank needs to be consulted on any proposed Union act falling within its field
of competence in accordance with Art. 127(4) & 282(5) TFEU in order to give an
opinion. These mandatory consultations are to be taken into account by the Union
legislators and are reflected in the citations of the final legislative act, e.g. “having
regard to the opinion of”. Some consultation is carried out in accordance with sec-
ondary law. For example the European Data Protection Supervisory is consulted by
the Commission in accordance with Art. 42 of Regulation (EU) 2018/1725 where a
proposal for a legislative act may have an impact on the protection of individuals’
rights and freedoms with regard to personal data. Such consultation not required for
in the Treaties is reflected in the Recitals of the final legislative act.

3.4 The European Council

The European Council’s main task is to give political guidance. Composed of the 27
Heads of State or Government of the Member States as well as the Presidents of the
European Council and the Commission (who are both members without the right to
vote), the European Council defines the general political directions and priorities of
the Union. However, in accordance with Art. 15(1), 2nd sentence TEU the European
Council shall not exercise legislative functions, which are left to the Parliament and
the Council.
From a formal point of view, this distinction is ensured by the fact that the Euro-
pean Council is not involved in the adoption of legislation and Art. 294 TFEU does
not foresee a role for this institution in the ordinary legislative procedure. From a sub-
stantive point of view, it is more difficult to draw a clear line between giving general
politicial guidelines, which the European Council is allowed to do, and shaping on-
going legislation especially on controversial points. In fact, the Treaties even foresee
that the European Council is seized in some particularly sensitive policy fields upon
request of a member of the Council. In the so-called “emergency break procedures”
the ordinary legislative procedure is suspenend and only resumes after the European
Council could discuss the matter within a period of four months.46 This is possible
for “important aspects of social security systems” under Art. 48(2) TFEU and “fun-
damental aspects of the criminal justice system” in Art. 82(3) & 83(3) TFEU.47 In
addition, the European Council sometimes gives political guidelines on other sensi-
tive files especially where multiple decision-making procedures are ongoing.48

4 Negotiations under Art. 294 TFEU

For the ordinary legislative procedure Art. 294 TFEU sets out a formal sequence of
stages to adopt legislative acts (4.1.). An informal practice has developed where the

46 See Dougan [11], p. 643 et sq.

47 Similar involvement upon request of nine Member Sates exist in special legislative procedures regarding
the European Public Prosecutor‘s Office, Art. 86 TFEU, and police cooperation, Art. 87 TFEU.
48 See for example the Conclusions of the European Council of 10 and 11 December 2020 in document
EUCO 22/20 regarding the Multiannual Financial Framework (MFF) as well as Regulation (EU, Euratom)
2020/2092 on a general regime of conditionality for the protection of the Union budget.
The basic principles of the European Union’s ordinary legislative. . . 221

Parliament and the Council adopt their respective positions for a legislative text (4.2.)
and then enter into informal Trilogue negotiations (4.3.). While the informal Trilogue
negotiations take place against the background of the formal procedure under the
Treaties, the political agreement still needs to be formally adopted in accordance
with Art. 294 TFEU (4.4.).

4.1 The ordinary legislative procedure under Art. 294 TFEU

Art. 294 TFEU sets out a formal sequence under the ordinary legislative procedure.49
After receiving the Commission’s proposal, the Parliament and the Council are to
vote on their respective positions in a series of three readings with a Conciliation
Committee before the third reading. Only where both the Parliament and the Council
approve the same text, is the legislative act finally adopted.
In first reading (Art. 294(3)–(6) TFEU), the Parliament adopts its position by the
majority of the votes cast. It can reject the proposal, approve it or amend it. Then
the bill moves to the Council which acts by the qualified majority of its members.
If the Council approves the Parliament’s position, the legislative act is adopted. If
the Council disagrees, it adopts its position at first reading and transmits it to the
Parliament, bringing the procedure to second reading.
In second reading (Art. 294(7)–(9) TFEU), the Parliament can vote on the text
for a second time and has three choices. The Parliament may approved the Council’s
position by a majority of the votes cast; or it can reject this position by a majority of
its component members. Thus, approval is easier than rejection. Parliament may also
propose further amendments by a majority of its component members. This amended
text is then transmitted to Council which, acting by qualified majority, may either
approve all the Parliaments amendments or reject them. In the latter case, the negoti-
ations enter the conciliation stage.
The conciliation stage is the last chance to save the draft legislative act (Art.
294(10)–(12) TFEU). In the Conciliation Committee representatives from the Coun-
cil and an equal number of representatives from the Parliament have “the task of
reaching an agreement on a joint text”. While using the Parliament’s and Council’s
position at second reading as a basis, the Conciliation Committee has a wide margin
of discretion in choosing the method for resolving disagreements. Since the Treaty
framers wanted this procedure to be effective, their very aim was that the points of
view of the Parliament should be reconciled on the basis of examining all the aspects
of disagreement.50 This is also confirmed by Art. 294(11) TFEU where the Com-
mission participates in the Conciliation Committee’s proceedings and takes all the
necessary initiatives to reconcile the different positions. The Conciliation Committee
has six weeks to find a joint text, otherwise the proposed act is deemed not adopted.
In third reading (Art. 294(13)–(14) TFEU), the joint text of the Conciliation Com-
mittee still needs to be approved by the Parliament by a majority of the votes cast and
by the Council by qualified majority. The institutions do not have a power to make
any amendments. If only one of them disagrees with the joint text of the Conciliation
Committee the proposal is finally rejected.

49 See for overviews Lenaerts & Van Nuffel [17], p. 663 et sqq.
50 Case C-344/04 IATA and ELFAA, EU:C:2006:10, para. 58.
222 J. Bauerschmidt

Legislative acts which have been adopted still need to be signed by the President
of the Parliament and by the President of the Council and are subsequently published
in the Official Journal in accordance with Art. 297(1) TFEU.51

4.2 Parliament’s legislative resolution and Council’s general approach

While Art. 294 TFEU sets out a strict formal sequence, the institutions have devel-
oped an informal practice which operates within the framework set out under the
Treaties. The power to enter into such arrangements for cooperation is expressly ac-
knowledged by the Treaties in Art. 295 TFEU. Already before the Treaty of Lisbon,
the Parliament, the Council and the Commission made a Joint Declaration on the
Practical Arrangements for the Codecision Procedure where they acknowledged that
informal contacts have proven to be useful for the effective decision-making.52 This
practice has been maintained under the Treaty of Lisbon. It foresees an ex-ante con-
trol where the Parliament and the Council adopt their respective positions which is
the basis for Trilogue negotiations. The outcome of these negotiations is then subject
to ex-post control because the co-legislators still need to formally adopt the text.
To begin with, the Parliament and the Council respectively define their positions
on the Commission’s proposal. In the Parliament the preparatory work is done in the
relevant committee best suited to deal with the substance, which may also involve
other committees. The Parliament’s committee appoints a rapporteur who is respon-
sible for preparing the committee’s report and presenting it to the plenary. The rap-
porteur is assisted by the chair of the committee and a number of shadow rapporteurs
who are appointed by the various political groups to follow the relevant report and
to find compromises within the committee. This allows the various political groups
to express themselves while ensuring that work on the text progresses.53 In order to
formalise the Parliament’s position, either the plenary adopts a legislative resolution
by a majority of the votes cast authorizing the committee to enter into negotiations.
In the alternative, the committee can use its report as a negotiation mandate if this is
announced at the beginning of a part-session and no political group or the medium
threshold of MEPs (76 members) has requested a plenary vote.54 This procedure
ensures that the plenary either votes on the Parliament’s position or (for less contro-
versial proposals) at least has the possibility to vote.
On the Council’s side, most of the detailed work is done in the relevant working
party composed of national officials who examine and discuss the Commission’s pro-
posal. Although these discussions are not public, the documents exchanged are sub-
ject to legislative transparency. It is for the rotating Council presidency to find com-
promises which can be supported by a qualified majority of the Council members.
Where there is an impasse in negotiations or the file needs more political guidance,
the proposal is discussed at the level of ambassadors of Member States in Coreper or

51 Legislation is published in the L-series of the OJ.

52 Joint Declaration on Practical Arrangements for the Codecision Procedure, OJ C 145/5.
53 See Ruiter [23].
54 See Rule 71(2) of the Parliament’s Rules of Procedure (2021).
The basic principles of the European Union’s ordinary legislative. . . 223

Commission proposal Parliament position Council position Compromise text

1. Article 1 Article 1 Article 1

2. This Regulation lays This Regulation lays This Regulation lays
down X and Y. down X, Y and Z. down X and Y.

Fig. 2 A stylized four-column table

at the level of ministers in the Council.55 About 40–50% of all pieces of legislation
are discussed by ministers in the various Council configurations at some point.56 In
order to formalize the Council’s position, either the Council at the level of minis-
ters approves the so-called General Approach or Coreper at the level of ambassadors
gives a negotiating mandate for proposals which are less controversial.

4.3 The trilogue negotiations

The Parliament and the Council then enter into negotiations on the basis of their
respective positions. The Commission also takes part in these negotiations as a facil-
itator to find compromise. These tripartite meetings are called Trilogues. They bring
together representatives from the three institutions in an informal format:57 for the
Parliament this usually involves the rapporteur and the chair of the committee, but
may also include the shadow rapporteurs from the different political parties. For the
Council, usually the ambassador of the Member State holding the rotating Council
Presidency as well as the chair of the relevant working party participate. The Com-
mission is typically represented by the relevant director-general and other officials
knowledgeable in the field.
The aim of the Trilogue is to reach an agreement on a set of amendments ac-
ceptable to the Parliament and the Council, which must subsequently be approved by
those institutions in accordance with their respective internal procedures. The legisla-
tive discussion conducted during the Trilogue may concern both political and tech-
nical legal issues. In order to have a full overview, the discussions are based on a
table divided into four columns. These “four-column tables” contain the Commis-
sion’s proposal, the Parliament’s and the Council’s respective positions and an empty
fourth column to find a compromise text. Moreover, the Recitals and the Articles of
the draft legislative act are broken down into lines. Negotiators then go through this
table line-by-line with a view to finding a compromise for each line in the fourth
column. A stylized four-column table looks like Fig. 2.
Since the Trilogue negotiations are not public, but rather held in camera, public
access to the four-column tables contributes to strengthening democracy by allowing
citizens to scrutinize all the information which forms the basis of a legislative act. The

55 See on the internal organisation of the Council Bauerschmidt [4], sect. b.

56 Rozenberg et al. [24], p. 11 et sq.
57 Joint Declaration on Practical Arrangements for the Codecision Procedure, para. 8: “Each institution,
in accordance with its own rules of procedure, will designate its participants for each meeting, define its
mandate for the negotiations and inform the other institutions of arrangements for the meetings in good
time.”
224 J. Bauerschmidt

General Court has, therefore, held that despite the informal nature of the Trilogues the
four-column tables are part of the legislative procedure and subject to the strict rules
of legislative transparency.58 Moreover, it is clear that the informality of the Trilogues
has proven to be very successful allowing the representatives from the Parliament and
the Council to effectively and flexibly find common ground in many legislative pro-
cedures. In fact, around 90% of the agreements in the ordinary legislative procedure
are reached at first reading and are preceded by Trilogue negotiations.59

4.4 Fitting the political agreement into Art. 294 TFEU

The Trilogues have been criticized for not ensuring sufficient democratic representa-
tion because a limited number of representatives from the three institutions negotiate
a text which under Art. 294 TFEU needs to be adopted by the Parliament’s plenary
and the Council at ministerial level.60 Therefore, the Trilogues seem to exhibit the
same democratic deficit as the Conciliation Committee under Art. 294(10) TFEU.
This criticism underestimates, however, that the Parliament and the Council not
only exercise an ex-ante control over their negotiators by giving them a mandate,61
they also have considerable ex-post control over the outcome of the Trilogue ne-
gotiations. In contrast to the outcome from the Conciliation Committee which the
Parliament and the Council in accordance with Art. 294(13) TFEU have to take as
a fait accompli and can only accept or reject without amendments, the compromise
text found in the Trilogues may be rejected by the co-legislators and send back for
further negotiations. While the informal Trilogue negotiations take place against the
background of the formal procedure set out in Art. 294 TFEU, the political agreement
still needs to be formally adopted giving the Parliament and the Council considerable
ex-post control.
The requirement to formalize the political agreement in accordance with the proce-
dure set out in Art. 294 TFEU puts the representatives in the Trilogues into a constant
“two-level game”.62 According to this theory, the representatives in the Trilogues
must not only reach a political agreement among themselves. For this political agree-
ment to be viable, representatives must also ensure that the result will be supported
by the Parliament’s plenary and the Council at the level of ministers. In order to hold
representatives in the Trilogues accountable, they are required to report back to their
respective constituencies. In the Parliament, the negotiation team is obliged to report
back and update the responsible committee after every Trilogue meeting.63 While the
Council does not have a formal obligation in its Rules of Procedure, the rotating Pres-
idency regularly reports back to the relevant working party and, if necessary, requests
Coreper or the Council for an update of the mandate for Trilogue negotiations.

58 Case T-540/15 De Capitani v Parliament, EU:T:2018:167, para. 74.

59 European Parliament [13], p. 10.
60 See v. Achenbach [2], p. 35 et sq., Farrell & Héritier [14], p. 1204 et sqq.
61 See above 4.2.
62 See in general Putnam [21] and applied to the Trilogue negotiations Delreux & Laloux [9], p. 302 et sqq.
63 See Rule 74(3) of the Parliament’s Rules of Procedure (2021).
The basic principles of the European Union’s ordinary legislative. . . 225

When finally negotiations in the Trilogue lead to a provisional agreement, the re-
sponsible committee in the Parliament will hold a single vote whether to approve this
agreement.64 In addition, also the plenary can hold a vote on the provisional agree-
ment tabled by a committee and where this provisional agreement fails to secure the
majority of the votes cast, the Parliament’s President can set a deadline for amend-
ments.65 On the Council’s side, the outcome of Trilogue negotiations is first examined
in the relevant working party and then Coreper verifies that there would be a qualified
majority if the Council were to vote on the text. It is only after this verification that
the chair of Coreper forwards a letter to the chair of the responsible committee in the
Parliament indicating the Council’s willingness to accept the Trilogue outcome.66
The mechanisms to exercise ex-ante and ex-post control have been strengthened
in recent years.67 This may not alleviate all the concerns voiced against Trilogues,68
but it shows that the co-legislators seek to strengthen the democratic accountability
of Trilogue negotiations.

5 Substantive principles for the content of legislative acts

In addition to the procedural principles which govern the relations between the ac-
tors and the negotiations in the ordinary legislative procedure, legislative acts must
also adhere to a number of substantive principles. While each legal basis may already
give legislative action a certain direction, the principles of subsidiarity and propor-
tionality are of particular horizontal importance (5.1.). The protection of fundamen-
tal rights (5.2.) and the prohibition to delegate essential elements of a legislative act
(5.3.) establish further requirements which combine material and formal aspects of
the concept of legislation. Finally, the Union legislator is under a duty to state reasons
(5.4.).

5.1 Subsidiarity and proportionality, Art. 5(3) & (4) TEU

The principles of subsidiarity and proportionality are enshrined in Art. 5(3) & (4)
TEU and are applied in accordance with Protocol No 2. In the strategic discourse
about the “correct” level of action, the principle of subsidiarity allows opponents of
centralized action at Union level to express their political preferences also with legal
arguments. Subsidiarity thus allows to bring together supporters and opponents of
Union action in a discourse oriented towards the common good.69 This also helps

64 See Rule 74(4) of the Parliament’s Rules of Procedure (2021).

65 Rule 59(3) of the Parliament’s Rules of Procedure (2021), which is, however, rarely used in practice.
66 Joint Declaration on Practical Arrangements for the Codecision Procedure, paras. 14, 18 & 23 at the
various stages in the first and second reading.
67 Especially in the Parliament’s Rules of Procedure: Rosén & Stie [22].
68 V. Achenbach [2], p. 34 et sq. also mentions information asymmetries because Parliament committees
are public whereas the Council working parties and Coreper are not.
69 See only Estella [12], p. 177 et sqq.
226 J. Bauerschmidt

explain why the Court of Justice has taken a cautious approach and grants the Union
legislator a wide margin of appreciation when applying the principle of subsidiarity.70
The principle of proportionality limits the exercise of Union competences and
requires that legislation is appropriate for attaining legitimate objectives and does
not go beyond what is necessary to achieve them. As regards judicial review, the
Court allows the Union legislator a considerable margin of discretion and only veri-
fies whether a measure is manifestly inappropriate.71

5.2 Fundamental rights, Art. 52(1) of the Charter

Regulations, directives and decisions adopted in the ordinary legislative procedure

can limit the fundamental rights enshrined in the Charter. In accordance with Art.
52(1) of the Charter, such limitations must be provided for by law, respect the essence
of those fundamental rights, and must be necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and free-
doms of others. Where interferences with fundamental rights are at issue, the Court
has recognized that the extent of the Union legislator’s discretion may be limited,
depending on factors such as the area concerned, the nature of the right at issue guar-
anteed by the Charter, the nature and seriousness of the interference and the object
pursued by the interference.72 Moreover, Art. 52(1) of the Charter has been inter-
preted by the Court as requiring that the legal basis which permits the interference
with fundamental rights must itself define the scope of the limitation on the exercise
of the right concerned.73

5.3 Non-delegation of essential elements, Art. 290(1) TFEU

The Union legislature cannot delegate the adoption of rules which are essential to the
subject-matter. Rather, the provisions which require political choices and are essen-
tial for the matter in question fall within the responsibilities of the Union legislature.
The prohibition of delegating essential elements precedes the Treaty of Lisbon.74 It

70 Case C-377/98 Netherlands v Parliament and Council, EU:C:2001:523, paras. 32 et sq.; Case C-491/01
British American Tobacco (Investments) and Imperial Tobacco, EU:C:2002:741, paras. 180–185; Joined
Cases C-154/04 and C-155/04 Alliance for Natural Health a.O., EU:C:2005:449, paras. 104–108; Case
C-58/08 Vodafone a.O., EU:C:2010:321, paras. 76–79; Case C-176/09 Luxembourg v Parliament and
Council, EU:C:2011:290, paras. 80–83; Case C-547/14 Philip Morris Brands a.O., EU:C:2016:325, paras.
218–224; Case C-151/17 Swedish Match, EU:C:2018:938, paras. 70–75.
71 Case 265/87 Schräder, EU:C:1989:303, para. 22; Case C-189/01 Jippes, EU:C:2001:420, paras. 82 et
sq.; Case C-58/08 Vodafone a.O., EU:C:2010:321, paras. 51–53; Case C-176/09 Luxembourg v Parliament
and Council, EU:C:2011:290, para. 62; Case C-304/16 American Express, EU:C:2018:66, paras. 85 et sq.;
Case C-151/17 Swedish Match, EU:C:2018:938, paras. 35 et sq. See on judicial review only Blumann [5],
p. 450 et sqq.
72 Joined Cases C-293/12 and C-594/12 Digital Rights Ireland, EU:C:2014:238, para. 47.
73 Opinion 1/15 EU-Canada PNR Agreement, EU:C:2017:592, para. 139; Case C-311/18 Facebook Ireland
and Schrems, EU:C:2020:559, para. 175.
74 See only Case 25/70 Köster, EU:C:1970:115, para. 6; Case C-133/06 Parliament v Council,
EU:C:2008:257, para. 45.
The basic principles of the European Union’s ordinary legislative. . . 227

is now expressly laid down for delegated acts under Art. 290(1) TFEU and also ap-
plies for implementing acts under Art. 291(2) TFEU.75 The requirement to regulate
all essential elements is an expression of the principle of democracy and prevents the
democratically legitimate Union legislature from conferring excessive and undefined
powers to the executive. This is what the French call domaine de la loi and the Ger-
mans Gesetzesvorbehalt. The “domain of the law” marks the subject matter which
is reserved for rule-making by the legislator and combines material and formal as-
pects of the concept of legislation. For the Court, identifying the elements of a matter
which must be categorised as essential must be based on objective factors amenable
to judicial review, and requires to take into account the characteristics and particular
features of the field concerned.76

5.4 Duty to state reasons, Article 296(2) TFEU

Finally, the Union legislator is under a duty to state reasons in accordance with
Art. 296(2) TFEU. In accordance with the Court’s settled case law, Union legislation
must show clearly and unequivocally the reasoning of its authors. This is to enable
the persons concerned to understand the motivation for those measures and to enable
the Court to exercise its power of review. At the same time, Union legislation is not
required to go into every relevant point of fact and law. Rather, for acts of general
application it suffices to disclose the essential objective pursued by the Union legis-
lature and it would be excessive to require a specific statement of reasons for all the
various technical choices made.77

6 Conclusion

The ordinary legislative procedure is the most important method for producing laws
in the European Union. It allows for collective self-determination of Union citizens
who are represented directly in the European Parliament and indirectly in the Coun-
cil. Legislation is at the same time a guarantee for liberty understood as “the right to
do everything the law permits.”78 The Treaty of Lisbon introduced a formal concep-
tion of legislation which is governed by a series of procedural principles. They govern
the triangular relationship between the Parliament, the Council and the Commission
who are the key actors in the ordinary legislative procedure. Once the Parliament and
the Council have defined their respective positions on a proposal by the Commission,
negotiations between those three institutions take place in informal Trilogues. The
participants in these Trilogues are subject to ex-ante and ex-post control in order to

75 Case C-355/10 Parliament v Council (Schengen Borders Code), EU:C:2012:516, paras. 64–66; Case
C-363/14, Parliament v Council (Europol), EU:C:2015:579, para. 46.
76 Case C-355/10 Parliament v Council (Schengen Borders Code), EU:C:2012:516, paras. 67 et sq.; Case
C-363/14, Parliament v Council (Europol), EU:C:2015:579, para. 47. See on this case law for example
Chamon [7].
77 Case C-221/09 AJD Tuna, EU:C:2011:153, paras. 58 et sq.; Case C-304/16 American Express,
EU:C:2018:66, paras. 85 et sq.; Case C-151/17 Swedish Match, EU:C:2018:938, paras. 79–82.
78 Montesquieu [19], XI.3, p. 325: “La liberté est le droit de faire tout ce que les lois permettent.”
228 J. Bauerschmidt

ensure the democratic accountability of Trilogue negotiations. Beyond setting proce-

dural principles, the Treaties also create substantive requirements for legislative acts
and thus combine material and formal aspects in the concept of legislation.

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