The current European Commission, which came into office in November 2014, has pursued a “better regulation” agenda, aiming to streamline legislation and cut red tape.
Policymaking is the process of developing ideas or plans that are then put in place through legislation, creating a regulatory system.
Policymaking in the European Union (EU) takes place across four EU institutions:
Member States such as the United Kingdom (UK) have several opportunities to feed into this policymaking process through their representation in the European Parliament (elected representatives of the European Parliament) and the Council (representatives of national governments).
EU policy can be developed and new policy introduced for a number of reasons and in a number of ways. The European Commission continually works to identify where policy development may be needed, or existing legislation requires review. At the same time, the Presidency of the Council rotates every six months and each country will have priorities for their Presidency that may require policy development.
Many factors can drive new policy development including social need and technological progress, meaning legislation is no longer fit for purpose. The current European Commission, which came into office in November 2014, has pursued a “better regulation” agenda, aiming to streamline legislation and cut red tape. The stated intention is to create a clear, consistent framework which promotes better jobs and growth. There is a strong focus on improved impact assessment, which as yet does not include scientific issues.
To begin policy development, the European Commission develops proposals. It does this by inviting input from citizens, stakeholders and experts through consultations and expert committees to develop these.
If a proposed Commission policy is expected to have ‘considerable economic, social and environmental impacts’, the preparation of an Impact Assessment (IA) is required. This applies to both legislative and non-legislative initiatives as well as delegated acts and implementing measures, where the Commission can make more technical changes and amend non-essential aspects of legislation.
IAs must verify the existence of a problem, identify its underlying causes, assess whether EU action is needed, and analyse, quantifying where possible, the advantages and disadvantages of different approaches. Commission guidelines specify that IAs are usually not required when, ‘there is little or no choice available for the Commission (for instance when the Commission is implementing previous policy decisions already subject to an IA); Impacts cannot be clearly identified (for instance, in the case of broad policy communications); or Impacts are small (for instance, the repeal of a redundant act)’.
The proposal then undergoes a process of scrutiny and debate by MEPs from the 28 EU Member States and representatives from the governments of each state in the Council.
Policymaking in the EU typically takes place by ‘ordinary legislative’ procedure. This procedure involves the Commission, Parliament and Council, who aim to come to agreement on the final legislation.
The European Commission proposal is considered by the co-legislators: the European Parliament and the Council. This is the ‘first reading’ of the proposed policy.
In the Council, proposals are considered by specialised working groups which go over the texts to agree as far as they can and report upwards to senior officials and then to national ministers in Member States. How far ministers are directly involved – whether in Member State capitals or in Brussels – depends on the issues and how far they generate controversy among Member States. The Council may agree on a ‘general approach’ before the Parliament has agreed on its position, to give them an idea of the Council’s general view of the Commission’s policy proposal.
In the European Parliament a specialist Committee of MEPs is assigned to lead in scrutinising, debating and developing amendments to the proposed policy. The Committee also agrees a negotiating team for discussions with the Council. One MEP from this Committee is elected rapporteur. They will lead the development of a committee report, suggesting any amendments they think should be made to the Commission’s policy proposal. This report is presented to the rest of the Parliament and an overall Parliamentary position is developed. This will form the basis of the Parliament’s position to debate with the other co-legislator, the Council.
As a co-legislator, the Council can choose to agree with the Parliament’s position, or suggest amendments. Any amendments must be debated with the Parliament through further ‘readings’ of the text until an agreement is reached.
‘Trilogue’ meetings can also be arranged between the members and representatives of Commission, Parliament and Council as an informal way of engaging and facilitating agreement in addition to the formal agreement process.
A Conciliation Committee (made up of an equal number of Council representatives and MEPs) reaches agreement on the final joint text. This Committee must agree in order for the policymaking process to continue. The policy is adopted when Parliament and Council approve the text after a ‘third reading’, where they cannot make any further textual changes.
The Presidents and Secretary-Generals of both institutions sign the text and it becomes official once it is published in the Official Journal of the European Union.
Once a piece of policy is in place, it can be reviewed and adapted at certain times if necessary. This may be to take into account changes in an area of legislation due to technical and scientific advances, for example the revision of the Medical Device Directives in 2012. The Commission can propose a reform of an existing policy which is passed to the Parliament and Council for agreement through ordinary legislative procedure.
Once it has been adopted, EU legislation may be subject to challenge in the national and European court systems. Legislation can be annulled by the European Court of Justice if it infringes upon EU treaties or fundamental rights. The European Court of Justice can also enforce the law against national governments if they do not comply with EU law.