Jean Monnet Center at NYU School of Law


2. Losing ground under the new co-decision procedure

The co-decision procedure introduced under the Treaty of the European Union in 1993 (Article 189b) provides that the EP delivers its opinion on the Commission proposal before the Council adopts a common position. In a second reading, the EP can then amend the common position of the Council. In the event that the Council does not approve all the amendments of the EP, a Conciliation Committee is convened. It is comprised of 15 members of the Council and the EP, respectively, and has six weeks to draw up a 'joint text'. If it fails to reach an agreement, the Council can confirm its common position, and the EP can reject the act with an absolute majority. This need for a consensus gave rise to numerous informal meetings called trilogues - where previously there had literally been no contact whatsoever. These trilogues, originally only applied in the conciliation phase proper, became, in the course of time, common practice in earlier stages of the interinstitutional decision-making process. The main reason is that, under the Amsterdam Treaty, co-decision matters were extended from 15 areas to 38 (or from 15 to 31 Treaty articles) and a formal possibility for concluding the decision-making process at the first reading was introduced, as long as a qualified-majority in the Council agreed with the EP's amendments to the de facto modified Commission proposal. Additionally, by introducing time limits in all phases of the decision-making process, the Amsterdam Treaty created a further need, namely, of changing the operational approaches. At present, in about 20% of the cases, a conclusion is achieved on the first reading; a conclusion is achieved on the second reading in about 50% of the cases; the rest of the cases go into conciliation (Interview with the Commission - September 2001).

After realising that it would not be able to handle the workload of potential conciliation in all these new areas, as defined in the Amsterdam Treaty, the Council, in particular, pressed for a multiplication of informal meetings with members of the EP, chairpersons, co-chairpersons, rapporteurs and co-rapporteurs to develop "early agreements" and to conclude the decision-making process on the first reading. Given that there are legislatory tasks subject to deadlines and given the limited resources of Coreper 1, which now has to deal with a vast range of co-decision matters, the Council is keen to seek early agreements so that the cumbersome and time-consuming conciliation procedure can be avoided. This is reinforced by the fact that the Presidency of the Council has strong motives to come to early agreements, because such agreements allow the Presidency to set the agenda within its presidential term.

In order to prepare the grounds for such early agreements, enormous informal meetings are called at short notice in an ad-hoc manner. This often by-passes the Commission (Interview with the Commission - September 2001). Members of Coreper 1 are most eager to meet with the rapporteurs, co-rapporteurs and the committee chairperson of the EP on a "one to one basis" (Interview at the EP - March 2000), but not so eager to meet with the Commission (Interview EP March 2001). The Commission's role as an intermediator and honest broker, presenting compromise proposals, is still, however, important. Some DGs are skilful in putting forward compromise proposals, others are less skilful (Interview at the EP - March 2001). The EP no longer uniquely depends on the Commission; instead, it maintains multiple direct contacts with the Council (Farrell and Héritier 2001). It is not that "somebody seriously tries to exclude the Commission from these events". (Interview at the EP - March 2001). However, the sheer proliferation of informal meetings which emerge on a de-central basis in the EP lead to "an absolute maze". As one interviewee noted, "We have got 50 proposals at the same time" (Interview at the EP - March 2001). They are not centrally co-ordinated, and even central figures in the EP do not know about all the meetings which are going on.

This puts the Commission in a bind. It finds it difficult to fit into this network, and " complains that it is not involved in things". (Interview at the EP - March 2001). It deplores the decentral and ad-hoc nature of these meetings (Interview with the Commission - September 2001). It particularly blames the Council for "highjacking" "their" proposals, which are the basis of discussions, and "running off and trying to negotiate behind our backs or reluctantly informing us - at short notice, before a meeting takes place?" (Interview with the Commission - September 2001). The Commission emphasises that it is "its" proposal which is being amended and that the rules of the legislative game provide that, if the Commission does not agree with any of the amendments proposed, unanimity is required in the Council.1 "[The] Council would like to forget that. We don't let them, but we have to run after them all the time like a schoolmaster reminding them." (Interview with the Commission - September 2001). Thus, the possibility of concluding at a first reading has made it more difficult for the Commission " keep up with everything and to ensure that we are in the loop, to protect the Commission's prerogatives with its right of initiative, its possibility to influence the vote in the Council, its defence of its own original proposal" (Interview with the Commission - September 2001). On the one hand, the Commission does neither wants, nor is able, to oppose "the very friendly contacts between the Council and the Parliament..."; on the other, "the balance is shifting a little bit away from us. Parliament is going through a kind of a phase, in which they are so amazed at the possibility of having direct contact with the Council that they've forgotten their own friends in the Commission over this" (Interview with the Commission - September 2001).

1 The Council has to find a qualified-majority in favour of the Commission's modified proposal in order to finish after a first reading since the general legal principle in Article 250 (1) of the TEU says that the Council can only adopt legislation by a qualified-majority if the Commission supports it.




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