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s b which the EU enacts le!islation" o Although the law-making process looks complicated at first sight it is act#all transparent and r#le$!o%erned" o !e will &oc#s onl on the ordinar le!islati%e proced#re "#L$% which is set to beco'e e%en 'ore do'inant in the &#t#re&

There are two %er di&&erent t pes o& le!islation in the EU& o (irst the treaties establishin! the EU pro%ide a le!al "some would sa' constitutional(% &o#ndation &or all o& the EU s wor)" These treaties are re)ised e)er' few 'ears in a process that has alwa's *een politicall' and constitutionall' difficult& o Second there is the +da $to$ da * le!islation 'ade through the EU legislati)e process in the &or' o& re!#lations and directi%es& o This chapter e,amines the character of each t'pe of legislation the processes *' which it is made and the impact that it has on the U- constitution&

The Treaties o& the E#ropean Union are 'ade and a'ended at inter!o%ern'ental con&erences "I.Cs% at which go)ernments from the soon to *e twent'-eight mem*er states come together from time to time to strike diplomatic *argains& o The +#estions are whether the IGC process sho#ld be 'ade 'ore incl#si%e than it has *een in the past whether the trans&er o& powers to the E#ropean Union sho#ld be p#t be&ore the national electorate in a re&erend#' and whether the co#rts sho#ld be entitled to inter%ene in what is essentiall a political process" !e will e,a'ine closel the passa!e o& a partic#lar directi%e "the Race /irecti)e% and loo) at its i'pact on U- le!islation" o The law$'a)in! process in !eneral and the enactin! o& speci&ic re!#lations or directi%es is the res#lt o& cooperation between EU instit#tions interest !ro#ps.

national parlia'ents. and national b#rea#cracies" The E#ropean Parlia'ent /EP0 is directl elected to. and has o%er ti'e e'er!ed &ro' the shadow o&. the Co#ncil. with which it now has an e+#al role in the law$ 'a)in! process& o It has a stron!er de'ocratic clai' to participate in the law$ 'a)in! process than an' other institution of the European Union& o 1et t#rno#t in EP elections has been steadil &allin! across the EU since 2343 and this has had repercussions for the legitimac' of the E$& The chapter concl#des with a case st#d o& the Race Directi%e which incl#des the United -in!do'*s i'ple'entin! 'eas#re& o 5e will then loo) at the wa in which the EU*s law$'a)in! process operates and what happens in a sit#ation in which the Directi%e has not

been. or has been i'properl . i'ple'ented into national law" INTRODUCTION Legislation of EU is important as it *rings constitutional significant to U So far $art III of this *ook has considered the respecti)e roles of the U- go)ernment and U- $arliament in making primar' and secondar' legislation& To complete our e,ploration of the constitutional significance of legislation in the modern 0ritish constitution we need now to e,a'ine how le!islation is 'ade in the E#ropean Union /EU0" The pheno'enon o& EU le!islation is constit#tionall i'portant"

!e e,plore elsewhere in the *ook the r#le that EU law 6tr#'ps* an inconsistent national law& o (actorta'e 1oreo)er a si!ni&icant proportion o& polic that is !i%en le!al e&&ect b the U- Parlia'ent ste's not &ro' national initiati%es. b#t &ro' the EU A word of caution is needed2 do not e,pect the material co)ered in this chapter to *e simple& The EU is comple, opa3ue and largel' unintelligi*le to the a)erage European citi4en& To *e an effecti)e law'er there is howe)er no alternati)e to getting to grips with some aspects of these intricacies& The aim of this chapter is not to go into e)er' detail *ut to help 'ou to assess +the *igger picture5 of how EU legislation is made and what impact it has on the United -ingdom&

Efforts were made from 6778 to draft a treat' to simplif' matters and it took eight 'ears to secure agreement on institutional reform& The Lis*on Treat' is a classic e,ample of a compromise *etween what was institutionall' re3uired politicall' desired and realisticall' possi*le&

A& T1PES O( EU LEGISLATION7 AN OVERVIE5- treaty and regulation/directives There are two %er di&&erent )inds o& EU le!islation. e'er!in! &ro' %er di&&erent )inds o& le!islati%e process& The aim of the chapter is to e,plain the constitutional implications of each t'pe of legislation and legislati)e process for the U- constitution& o In section 6 EU treaties and the treat $creatin! process we loo) at treaties and the once e%er &ew ears* treat $ creatin! process" The two principal treaties are the Treat on E#ropean Union /TEU0 and the Treat on the (#nctionin! o& the E#ropean Union /T(EU0"

Some would sa' that these treaties are analogous to the codi&ied constit#tion of a nation state9although *e clear b#t the EU is not a state *ut rather a souped-up international organi4ation& The treaties which can be described as pri'ar le!islation( underpin the EU in the sense that the create the instit#tions and set o#t the basic processes through which da'-to-da' decision-making takes place& Since the mid-8:;7s the EU has re)iewed and responded to changing political circumstances "such as the enlargement of the EU or a wish for there to *e closer integration *etween mem*er states% *' amending and de)eloping the treat' framework& This process is do'inated b the !o%ern'ents o& the 'e'ber states&

0o, 86&8 and 0o, 86&6 outline how the treat' framework has de)eloped& That +semi-permanent treat' re)ision process( ma' ha)e come to a temporar' end with the Lis*on Treat' with EU leaders con&essin! that the were 6&ed #p* with ne!otiatin! E#ropean treaties"

o Section < of this chapter The e)er'da' legislati)e process deals with da $to$da le!islation in the &or' o&6directi%es* and re!#lations*" This secondar le!islation e'er!es &ro' h#!el co'ple, le!islati%e and political processes /set down in the TEU and T=EU%& The ela*orate institutional framework and legislati)e procedures see) to allow participation o& a wide ran!e o& di&&erent interests "including go)ernments of mem*er states directl' elected representati)es of the EU citi4ens sitting in the European $arliament the EU itself through the Commission and interest groups%& 0o, 86&88 gi)es some illustrations of directi)es and regulations& The T=EU and the TEU are constituent treaties that

empower EU institutions to enact legislation within the scope of the treaties& The EU s'stem has legal power to make secondar' legislation onl on the s#b8ect 'atter and accordin! to the proced#res laid down in the treaties" This is an i'portant r#le o& law iss#e2 EU instit#tions are a#thori9ed to act onl #nder the ter's o& the treaties: their powers are li'ited" This is a *ook a*out the 0ritish constitution so this chapter takes a special interest in how both )inds o& EU le!islation:the treaties and secondar le!islation:&it into the U- constit#tion and lawmaking s'stems&

National process to le!islate2 hold a referendum and EU treat' incorporated into domestic *' 8:>6 Act In relation to the treaties we will e,amine two main features of the national process& o (irst there is now a le!al re+#ire'ent that the U!o%ern'ent hold a national re&erend#' be&ore formall' agreeing to *e bo#nd b si!ni&icant treat chan!es&

o Second EU treaties are &or'all incorporated into Ulaw b Acts o& Parlia'ent" In practice this is done b a'endin! the E#ropean Co''#nities Act 234; which was the statute that first bro#!ht the treaties into national law in preparation &or the United -in!do'*s accession on 8 ?anuar' 8:><& The U- Parlia'ent there&ore has an opport#nit to debate treat re%isions agreed in principle *' the U- go)ernment altho#!h there is /as we shall see0 relati%el little scope &or Parlia'ent to do an thin! other than a!ree or9which has ne)er happened9disagree&

EU related to de)ol)ed go)t as well e)en though it is central issue rather than de)ol)ed matter #ur e,amination of the national side of EU law-making also needs to consider the &act that the United -in!do' has de%ol%ed !o%ern'ent and le!islati%e &#nctions to Scotland. 5ales. and Northern Ireland& Relations *etween the United -ingdom and the EU is a 'atter &or central !o%ern'ent rather than the de%ol%ed !o%ern'ents *ut the latter will o&ten ha%e %iews on proposed EU polic & These 'a not alwa s coincide with those o& the U- !o%ern'ent "for e,ample the Scottish Go%ern'ent 'a ha%e a di&&erent o#tloo) on how EU polic on &ishin! sho#ld de%elop &ro' that o& the U- !o%ern'ent%&

<" T=E>ES Later in this chapter need to consider legitimac' issue In relation to the treat'-making process we return to a dominant theme in Chapter ;9namel' le!iti'ac & @ou will remem*er that we raised the legitimac' 3uestion in relation to e,ecuti)e power and polic'making and asked whether the political institutions were sufficientl' representati)e and democraticall' accounta*le& Now we will *e as)in! whether the established process o& re%isin! the treaties is s#&&icientl le!iti'ate and whether alternati%e processes "which appear to *e more legitimate% are in fact radicall di&&erent&

Later in this chapter consider the constrain on ratification of treat' Another recurring theme from Chapter ; is the desire to constrain e,ec#ti%e power& !e will e,a'ine le!al constraints on and legal challenges to. the rati&ication o& EU treaties" Think a*out the United -ingdom(s constitutional culture and the strengths and weaknesses of its institutions& =rom a domestic U- perspecti)e what is the best wa in which to chal?len!e the EU treat $'a)in! process@ Thro#!h a le!al process "Audicial re)iew in the courts%B Or thro#!h political instit#tions "parliamentar' de*ates consultati)e referendums%B

Consider democrac' deficit issue on EU parliament The de'ocrac de&icit in Chapter ; related to the unelected nature of technocratic institutions such as the Commission and the relati)e difficult' in holding national ministers to account for work done at EU le)el in the Council& In this chapter the the'e reappears in relation to the E#ropean Parlia'ent "E$%& To what e,tent does the directl elected EP represent a solidar E#ropean people /a de'os0 tied to!ether in a pan$E#ropean de'ocrac based on E#rope$wide parties@

Consider the Constrain on Commission Does the Co''ission ha%e too '#ch power in the le!islati%e processB The Commission has a powerful right to initiate legislati)e proposalsC moreo)er it operates behind closed doors and tends to 'a)e decision b si'ple 'a8orit %ote "'a)in! it relati%el eas &or a Co''issioner to be o#t%oted0" 0ut what are the internal and e,ternal constraints on the role o& the Co''ission in the le!islati%e process@

Consider the impact of comple,it' of legislati)e process The EU*s le!islati%e process appears lab rinthine and con%ol#ted and it prod#ces a %ariet o& le!al 'eas#res which onl' adds to the con&#sion& @ou will remem*er from Chapter < that the r#le o& law prescribes that there be clear proced#res &or 'a)in! laws and that law sho#ld be clear so as to be able to !#ide the indi%id#al*s beha%io#r" Does the EU*s le!islati%e process #nder'ine the r#le o& law@ #r do the EU*s proced#res need to re&lect other /'ore i'portant0 %al#es@ I& so. how can the comple,it' of the law-making process and the different legal measures. be 8#sti&ied@

EU TREATIES AND T=E TREAT1$ CREATING PROCESS Re)ised treat' once e)er' few 'ear and e)er' state is formall' e3ual Let us *egin *' e,amining the once e%er &ew ears* acti%it o& re%isin! the EU treaties which pro)ide a le!al /and. ar!#abl . a 6constit#tional*0 basis &or all o& the &#nctions o& the EU" The !o%ern'ents o& the 'e'ber states do'inate the process& In formal terms e%er 'e'ber state is e+#al /whether it is >alta with a pop#lation o& ABB.BBB or Ger'an with a pop#lation o& C; 'illion0& An 'e'ber state 'a sa no* and e&&ecti%el halt the process o& a!reein! a treat re%ision9as happened when following a referendum in ;BBC. the !o%ern'ent o& Ireland te'poraril stopped the pro!ress o& rati&ication o& the Lisbon Treat "

<OD 2;"2 TREAT1 DEVELOP>ENT 8:58 Treat' of $aris "ECSC% 8:5> Treat' of Rome "EEC% 8:;D Single European Act 8::6 Treat' of 1aastricht "EU% 8::> Treat' of Amsterdam 6778 Treat' of Nice 677E Constitutional Treat' "failed% 677: Treat o& Lisbon

DEVELOP>ENT O( T=E EU TREAT1 (RA>E5OR-7 There are currentl' two principal treaties under which the EU operates2 o the Treat on the (#nctionin! o& the E#ropean Union "T=EU% which means the Treat establishin! /what was then called0 the E#ropean Econo'ic Co''#nit . signed at Rome on 65 1arch 8:5> "as a'ended and rena'ed b the Treat o& Lisbon%C and o the Treat on E#ropean Union /TEU0. which means the Treat' on European Union signed at 1aastricht on > =e*ruar' 8::6 "as amended *' the Treat' of Lis*on% The T(EU establishes the instit#tional &ra'ewor) and powers o& the EU and some pro)isions also create ri!hts and obli!ations that are enforcea*le in U- courts and tri*unals *ut it has e)ol)ed into its current state from se)eral earlier treaties&

The original Treat' of Rome created the European Economic Communit' "EEC% in 8:5> and was originall' signed *' the heads of si, European states "!est .erman' Ital' =rance the Netherlands 0elgium and Lu,em*ourg%& The United -ingdom Aoined the EEC in ?anuar' 8:><& The Treat' of Rome was not su*stantiall' amended "apart from the )arious Accession Treaties% for the ne,t thirt' 'ears *ut since then its amendments ha)e *een fre3uent and far-reaching& F The Single European Act "signed in 8:;D entered into force on 8 ?ul' 8:;>% which is an international treat' and not9despite its name9a piece of domestic legislation changed decision-making procedures in the Communit' institutions to speed up the completion of the single market within the e,isting Treat' of Rome& : The Treat' on European Union "the +1aastricht Treat' C signed in 8::6 entered into force on 8 No)em*er 8::<% made a num*er of significant changes& =or starters it renamed the EEC as the +European Communit'5 "EC% and created a new *od' the European Union "EU% that consists of three pillars& In addition to the first +Communit'5 pillar the Treat' on European Union "TEU% added two

further policies and forms of cooperation to the EC9namel' a +Common =oreign and Securit' $olic'5 and +$olice and ?udicial Cooperation in Criminal 1atters5& A separate $rotocol linked to the 1aastricht Treat' led to the creation of a common currenc' of which the United -ingdom decided to opt out& The 1aastricht Treat' also strengthened social and economic cohesion introduced common citi4enship and stated that the European Union would respect the fundamental rights as guaranteed *' the European Con)ention on Guman Rights "ECGR% and Has the' result from the constitutional traditions common to the mem*er states as general principles of Communit' law& The Amsterdam Treat' "signed in 8::> entered into force on 8 1a' 8:::% incorporated the +Social Chapter into the TEC *ut allowed the United -ingdom and the Repu*lic of Ireland to opt out of the Schengen Agreement which lifted the s'stematic internal *order controls *etween the mem*er states as well as the single European currenc' which was launched in 8:::&

The Treat' of Nice "signed in 6778 entered into force on 8 =e*ruar' 677<% was designed to reform the EU institutions in the run-up to enlargement of the European Union& The e,pansion from fifteen to twent'fi)e plus mem*er states after 677E necessitated a change in the relati)e )oting weights in the Council of the European Union a reduction in the si4e of the Commission and an increase in the num*er of seats in the European $arliament&

A" T=E <EGINNINGS7 T=REE SEPARATE CO>>UNITIES =rom the 8:57s until 8::< there were three separate co''#nities* through which mem*er states made collecti)e decisions on specified areas of polic'2 o coal and steelE o n#clear power /EURATO>0E and o broad E#ropean Econo'ic Co''#nit /EEC0" !e e,amined the reasons for these first steps towards European integration in Chapter ;&

<" >AASTRIC=T7 TREAT1 ON EUROPEAN UNION FTEUG Set up EU and pillar Ipolic'-makingJ A significant further step took place when the Treat' on European Union "TEU or +1aastricht Treat'(% came into force in 8::<& As well as introducing institutional reforms the TEU created 6the E#ropean Union* as an #'brella ter' &or the collecti%e decision$ 'a)in! o& the 'e'ber states through the European institutional framework& The character o& the decision$ 'a)in! %aried across three broad &ields o& polic 'a)in!. which beca'e )nown as 6pillars* "although this was not a term formall' used in the TEU%&

<OD 2;"H T=E PILLAR STRUCTURE7 Pillar I o The continuing *road scope of the European Communit' Pillar II o A common foreign and securit' polic' Pillar III o =rom 8::<-:> called +?ustice and home affairs(C from 8::> +$olice and Audicial cooperation in criminal matters(

$illar I- supranational in nature Pillar I *uilding on the European Economic Communit' "into which the Coal and Steel Communit' and EURAT#1 were merged% in%ol%ed s#ch close wor)in! between 'e'ber states that it came to *e descri*ed as a Inew le!al order and Is#pranational*& The character of this decision-making has se)eral features that marked it out from other international organi4ations& o >e'ber states a!reed that in relation to specified areas of policy no 'e'ber state sho#ld ha%e a %eto o%er decisions &a%o#red b others" o The instit#tions ha%e power #nder the treat &ra'ewor) to enact le!islation "in the form of directi)es and regulations% that are bindin! on 'e'ber states and their citi9ens"

o The E#ropean Co#rt o& J#stice /ECJ0 has power to interpret and en&orce "$illar I% Communit' law& o >e'ber states no lon!er ha%e &or'al e+#alit beca#se when %otin! in the Co#ncil "the institution representing the interests of the go)ernments of the mem*er states% lar!er co#ntries ha%e 'ore %otes than s'aller ones9known as 3ualified maAorit'( )oting "K1L%& o A directl elected Parlia'ent has gained !reater powers o& o%ersi!ht and in the le!islati%e process&

$illar II and III- intergo)ernmental $illars II and III di&&ered &ro' Pillar I in se%eral respects and the decision$'a)in! 'ethod process was there&ore described as 6inter!o%ern'ental*" In man' situations 'e'ber states co#ld %eto a polic that other 'e'bers &a%o#red" EMA1$LES #= INITIATILES TA-EN UN/ER $ILLARS II AN/ III2 o Three anti$cri'e a!encies ha)e *een esta*lished2 EuroAustC EuropolC and the European $olice College "Cepol%& o An a!ree'ent on e,tradition *etween the European Union and the USA&

C& T=E CONSTITUTIONAL TREAT1 T=AT (AILED- due to certain member states disagree In 6778 mem*er states agreed to start a process through which an EU +constitution( would *e drafted& #ne dri)ing force for a constitution was the need to adapt the decisionmaking processes and institutions to ensure that the' were effecti)e for an enlarged mem*erNship of twent'-fi)e plus& Another set of dri)ers was the need to make EU decision-making more transparent democratic and accounta*le& In 677E the !o%ern'ents o& 'e'ber states a!reed the te,t o& a Constit#tional Treat which was su*se3uentl' appro)ed *' the European $arliament& In order to *ecome *inding it was also necessar' for the Treat' to *e ratified( *' each mem*er state according to the re3uirements of its own national constitutional arrangements&

In some this was a parliamentar' processC in others there was the additional prere3uisite of a referendum& It was at this point that the proAect to create a constitution came unstuck& 0' mid-6775 the Constit#tional Treat had been appro%ed in thirteen 'e'ber states b#t %oters in re&erend#'s held in (rance and the Netherlands %oted 6no*"

/& T=E LIS<ON TREAT1- failed initially due to Ireland refuse to ratify, however accepted in later In 677> the go)ernments of the mem*er states agreed a plan 0(2 accepting that the idea of a Constitutional Treat' was now dead the !a%e their assent to the Lisbon Treat . which re&or's the e,istin! TEU and Treat Establishin! the E#ropean Co''#nit /TEC0. rena'in! the latter the 6Treat on the (#nctionin! o& the E#ropean Union* /T(EU0" Under EU law the Treat cannot enter into &orce #nless and #ntil all o& the 'e'ber states ha%e rati&ied it& According to an Irish S#pre'e Co#rt ruling in 8:;> an 'a8or a'end'ent to the EU Treat entails an a'end'ent to the Irish Constit#tion9and that in turn re+#ires a re&erend#'"

The Lisbon Treat was re8ected b Irish %oters in a re&erend#' on 86 ?une 677; b#t. &ollowin! ass#rances &ro' the E#ropean Union on )arious matters "for e,ample ta,ation powers famil' polic' and guarantees for Ireland s political neutralit'% endorsed b K4"2 per cent o& Irish %oters "on a turnout of 5: per cent% on 6 #cto*er 677:& The constitutional courts of .erman' and the C4ech Repu*lic considered legal 3uestions a*out the compati*ilit' of the Lis*on Treat' with their national constitutions and held that ratification could go ahead& The Lisbon Treat ca'e into &orce on 2 Dece'ber ;BB3"

E& UNITED -INGDO> OPT$OUTSno euro, need routine border line, not bound by decision related to Area of Freedom, Security and Justice At se)eral points in the de)elopment of the European Union the U!o%ern'ent has ta)en the %iew that it is not in the United -in!do's national interest to take part in so'e aspects o& the E#ropean Unions wor)& Opt$o#ts ha%e there&ore been ne!otiated at the %ario#s ti'es at which the founding treaties are re)iewed& These are set o#t as protocols to the treaties "the num*ering here referring to where the' appear at the end o& the Lisbon Treat %&

Area2 o Protocol 2C states that the United -in!do' is not obli!ed to adopt. or co''itted to adoptin!. the e#ro without a separate decision to do so *' its go)ernment and $arliament& A similar protocol was negotiated *' /enmark& o $rotocol 67 is in relation to +Schengen the term for the agreement now reached *' twent'-fi)e mem*er states to the effect that the will not ha%e ro#tine border controls& #nce people are within the +Schengen area the' ma' mo)e around freel' without showing passports at fi,ed *order posts& The United -in!do' and Ireland ha%e ne%er participated in this initiati%e"

o Under Protocol ;; the United -in!do' and Ireland do not alwa s ta)e part and are not bo#nd b decision$'a)in! in relation to 6Title IV o& Part HL o& the T(EU:that is. the 6Area o& (reedo'. Sec#rit and J#stice* "formerl' $illar III under the 1aastricht and Amsterdam Treaties%& This includes policies on *order checks as'lum and immigration&

(" TREAT1 O( LIS<ON The Treat' of Lis*on addresses the lack of efficienc' ineffecti)eness comple,it' and pro*lems of legitimac' not *' replacing the two treaties after 1aastricht with a single treat' "which would ha)e *een impossi*le to sell to an alread' sceptical pu*lic% *ut *' amending the e,isting treaties "the Lis*on Treat' started life as the HReform Treat'O%& It di%ides the content between the TEU "principles and ob8ecti%es. pro%isions on the instit#tional &ra'ewor) general pro)isions and the Common =oreign and Securit' $olic'% and T(EU "containin! the details on how the EU is to &#nction%& The pro)isions of the two treaties are e3ual in weight and )alue& #ne of the no)elties is that the first HCommunit'H and the third "$olice and ?udicial Cooperation in Criminal 1atters% pillar are merged into one unitar' supranational organi4ation with a unitar' legal personalit'&

In addition Art& 8 TEU declares that2 The Union shall *e founded on the present Treat' and on the Treat' on the =unctioning of the European Union "hereinafter referred to as Hthe TreatiesH%& Those two Treaties shall ha)e the same legal )alue& The Union shall replace and succeed the European Communit'& In other words all re&erences to the 6E#ropean Co''#nit * are replaced with re&er?ences to the new 6E#ropean Union* In addition there will *e a President o& the E#ropean Co#ncil "often casuall' referred to in the press as the +President o& E#rope*% and a Gigh Representati)e of the Union for =oreign Affairs and Securit' $olic' "see Chapter ;%&

A hand&#l o& states had opt$o#ts prior to the Lisbon Treat & 0oth /enmark and the United -ingdom secured an opt-out from the third stage of Economic and 1onetar' Union "that is the common +euro5 currenc'% and the United -ingdom and Ireland are not a part' to the Schengen *order control arrangements although the' participate in certain pro)isions relating to Audicial and police cooperation& The second opt-out under the Lis*on Treat' relates to the change from unanimous decisions to 3ualified maAorit' )oting "K1L% in the sector of $olice and ?udicial Cooperation in Criminal 1atters& The United -ingdoms +red lines5 approach to the 677>I.C resulted in special pro)isions dealing with the integration of the former third pillar into the T=EU 86 although *oth the United -ingdom "and Ireland% ma' opt in to the new polic' in the future& As discussed in Chapter D the Charter of =undamental Rights of the European Union was a political document until the Lis*on Treat' came into force& It now has the same

force as the treaties upon which the European Union is founded&

G" T=E TREAT1$>A-ING PROCESS So far we ha)e considered the *asic structure and content of the treaties& 5e now 'o%e on to e,a'ine the process b which these treaties are a!reed"

Inter!o%ern'ental con&erences /IGCs0- involved govt of states, arranged periodically, no regular schedule, no duration limit E)er since its founding man' of the EUs most important institutional changes were the result of protracted negotiations at inter!o%ern'ental con&erences /IGCs0 where !o%ern'ents o& 'e'ber states9 in the form of ministers, diplomats, and civil servants9dra&ted the EUs !o%ernin! treaties" I.Cs are arran!ed periodicall to re%iew the treat &ra'ewor) of the EU& IGCs ha%e no re!#lar sched#le2 the are called into bein! b the E#ropean Co#ncil. which as we will see shortl' consists of senior political and official representati)es from the mem*er states as well as the Commission and the European $arliament& Nor is their d#ration li'ited in ti'e2 negotiations leading to the

signing of the >aastricht Treat 233; too) o%er two ears& - /etailed e,planation a*out the process Rena#d Deho#sse and Pa#l =a!nette7


The negotiations that ga)e rise to the Treaties of $aris and Rome were *ut the first in a long series of diplomatic *argains *etween the mem*er states& The too) the classic &or' o& IGCs rather than constitutional assem*lies& =ormall' the go)ernments ne)er departed from the canons of international practice& The o#tco'e. arri%ed at thro#!h discrete and co'ple, ne!otiations was not a constitution b#t a treat a!reed #pon b Ithe =i!h contractin! partiesI"

As such it co#ld onl enter into &orce a&ter bein! rati&ied b all the 'e'ber states"

In these conferences in which each co#ntr was represented b a dele!ation o& !o%ern'ent o&&icials mi,ing diplomats and e,perts drawn from economic ministries e)er'thing had to *e decided *' consensus& National e,perts !athered in wor)in! !ro#ps to e,a'ine the details o& the arran!e'ents while the heads o& dele!ation:#s#all senior diplo'ats : 'et re!#larl to assess the pro!ress o& the ne!otiations and settle the 'ost sensiti%e iss#es in close cons#ltation with &orei!n 'inisters" In addition the heads o& state and !o%ern'ents 'et bilaterall or '#ltilaterall to pro%ide the political i'pet#s and address the most contentious issues&

The I.C 677> was con)ened in order to draft the Treat' of Lis*on and it intended to push through treat' reform )er' 3uickl'& The detailed )ersion of the Lis*on Treat' which appeared in #cto*er 677> ga)e the mem*er states onl' two weeks to de*ate the pro)isions and signal their consent& #n the one hand the speed with which the Lis*on Treat' was agreed is easil' understood2 after all the ke' changes had alread' *een de*ated in detail *' the Con)ention and *' the IC. 677E& #n the other hand the accelerated process e,posed the mem*er states to the charge that the' were essentiall' tr'ing to resell a package that had *een reAected *' )oters in two mem*er states&

Alternati)e method of negotiating Icon)entionJ e,ist other than I.C It should be added that an alternati%e 'ethod o& ne!otiation e,ists "first tried in 8::: to draft the Charter of =undamental Rights%& The con%ention 'ethod was #sed a&ter ;BB2 with a )iew to dra&tin! a constit#tion for the EU& Although the draft Constitution ultimatel' failed the con%ention 'ethod has not disappeared entirel &ro' %iew2 under the Lis*on Treat' Art" AC/H0 TEU specifies the re3uirement to use it under the ordinar' procedure for re)ising the treaties altho#!h the Co#ncil 'a choose the si'pli&ied 'ethod&

=" SIGNATURE. RATI(ICATION. AND ENACT>ENT O( TREATIES Si!nat#re *' Gead of States Once a te,t o& a treat has e'er!ed &ro' an IGC or con%ention it is si!ned b each head o& state or !o%ern'ent "in the case of the United -in!do' this is normall' a role &or the Pri'e >inister0 to indicate a willin!ness to be bo#nd b the treat in international law&

Rati&ication of treat' in U- su*Aect to Constitutional Reform and .o)ernance Act 6787 and con)ention

After signature the ne,t step is for there to *e a process o& rati&ication in each 'e'ber state& =rom the perspecti)e of international law ratification can take )arious forms *ut often in)ol)es the lodging of a formal document& The constitutional and legal steps that a go)ernment must take within its own state *efore formal ratification is a matter for the constitution of each countr'& In the United -in!do' the go)ernment(s legal authorit' to ratif' treaties was formerl' a prerogati)e power *ut is now re!#lated b the Constit#tional Re&or' and Go%ernance Act ;B2B. Pt ;" The power to rati& EU treaties is s#b8ect to &#rther /le!al and con%entional0 constraints&

Rati& and Enact'ent at the sa'e ti'e due to U- go)t would not ratif' if parliament refuse to pass the 0ill and *' Act U- go)t need consent from $arliament *efore ratif' The process o& preparin! &or rati&ication "an action in international law% and the process o& !i%in! e&&ect to the treat in do'estic law "an action in national law% !o hand in hand" This is partl' for practical reasons2 o the U- !o%ern'ent wo#ld not want to rati& a treat and so *ecome bo#nd b it in international law i& there were to be the sli!htest ris) that the U- Parlia'ent wo#ld re&#se to pass a <ill incorporating the treat' into national law& So by convention a <ill needs to be passed be&ore rati&ication "although it will not come into force until all mem*er states ha)e ratified the treat'%&

o A further reason wh' preparing for ratification and incorporation happen at the same time is that for the reasons a*out to *e e,plained the U- !o%ern'ent is #nder a stat#tor d#t to obtain the consent o& the UParlia'ent be&ore rati&ication ta)es place" It is con%enient &or this appro%al to be si!ni&ied in the <ill that will incorporate the treat & So for e,ample the E#ropean Union /A'end'ent0 Act ;BBC which incorporated the Lisbon Treat into U- law states in s& E2 +The Treat o& Lisbon is appro%ed &or the p#rposes o& section 2; o& the E#ropean Parlia'entar Elections Act ;BB; "c& 6E% "$arliamentar' appro)al of treaties increasing the European $arliamentHs powers%(

The E#ropean Union Act ;B22 The 3uestion of whether there should *e a referendum emerged "not for the first time% in relation to the draft Constitutional Treat' in 677E& The Ugo)ernment agreed that there should *e one *ut in the e)ent there was no need to put the treat' to the )ote *ecause it *ecame clear that other mem*er states were not going to ratif' the treat' "following failures to o*tain appro)al in referendums in their countries%& A referendum had *een held in 8:>5 in which si,t'se)en per cent of people who )oted supported continued mem*ership in the "former% European Economic Communit'

- Constitutional lock *eside EUA- E draft treaty must approved by each !ouse and amend "E and "FE need primary legislation A n#'ber o& constit#tional loc)s /to be satis&ied be&ore the United -in!do' co#ld appro%e EU treaties or sanction the trans&er o& so%erei!n powers to the EU% existed before the European Union Act 2011 entered into force "and continue to e,ist%& o The dra&t treat '#st be appro%ed b each =o#se o& Parlia'ent2 s# $%&' of the European (ommunities Act $)*+# o An treat a'endin! the &o#ndin! 23L4 Treaties /now T(EU0 or the 8::6 Treat' of European Union "1aastricht% /TEU0 re+#ires pri'ar le!islation2 s# , of the European nion %Amendment' Act +--.#

- EUA- re3uire Act post-legislati)e referendum and ministerial statement on significant future transfer of power In addition to these constitutional safeguards the E#ropean Union Act /EUA0 ;B22 introduces a referendum re3uirement on an' si!ni&icant &#t#re trans&er o& power to the European Union "ss 6 < and D EUA%& These pro)isions contain re3uirements for o an Act o& Parlia'ent. o 'a8orit s#pport in a national post$le!islati%e re&erend#' and o a 'inisterial state'ent in the cases o& ordinar treat a'end'ents in relation to TEU or T=EU "s&6 EUA%&

- EUA- mem*er state has to act unanimousl' *' decisions of E& Council to re)ise the pt& < of T=EU without ordinar' wa' to re)ise treat' Isuch as I.CPCon)entionJ pro)ided without increase competence to treat' The' also address certain amendment procedures using the 6si'pli&ied re%ision proced#re* "s" H EUA% that e,tend the o*Aecti)es competences or powers of the EU or facilitate the decision-making procedures *' remo)ing 0ritain(s )eto right in the Council or the European Council& The simplified re)ision procedure is set o#t in Art" AC/K0 TEU and allows >e'ber States actin! #nani'o#sl b 'eans o& a Decision o& the E#ropean Co#ncil to re%ise Part H T(EU "+Union Policies and Internal Actions*% and to b pass the len!th proced#res o& an ordinar re%ision o& the Treaties "that would re3uire an I.C which ma' or ma' not *e preceded *' a European Con)ention%&

There is an important rider2 the proposed re%ision '#st 6not increase the co'petence con&erred on the Union in the Treaties*&

- EUA- if competence transfer is insignificant then referendum is not re3uired This 3ualification is repeated *' the +significance condition( in s" H/A0 EUA7 i& the proposed re%ision and trans&er o& co'petences are insi!ni&icant a re&erend#' is not re+#ired"

$ Can the referendum procedure *ind the future $arliamentB =rom the $arliament(s action in enacting an Act to modif' legislati)e process which show $arliament accept +manner and form( of $S which can *ind the future parliament A more detailed discussion of these pro)isions would 3uickl' get too technical for present purposes and would also disguise an important constitutional issue7 to what e,tent are the re&erend#' loc)s in the EUA le!all bindin! on a &#t#re Parlia'ent@ Co#ld the ne,t Parlia'ent decide to appro%e a si!ni&icant trans&er o& power to the EU on the basis o& an Act o& Parlia'ent alone i&e& clearl disobe in! the rele%ant pro%isions in the EUA@

>" Gordon and >" Do#!an7 If Dicey view of PS then cannot bind the future Parlia ent! !hether the U- $arliament possesses the legislati)e authorit' to create *inding OreferenNdum locksO to which future go)ernments will *e *ound to adhere criticall' depends on our understanding of the doctrine of parliamentar' so)ereignt' which in the a*sence of a codified constitutional te,t ser)es as the central organising principle of the Uconstitution& In accordance with the orthodo, conception of parlia'entar so%erei!nt as influentiall' e,plicated b A"V" Dice . Parlia'entIs a#thorit Mto 'a)e or #n'a)e an law whate%erM ser%es to precl#de the le!islat#re &ro' bindin! its s#ccessors either a*solutel' as to the su*stanti)e scope of its future lawmaking power or as to the procedure *' which this power is to *e e,ercised&

I& this classical anal sis o& the so%erei!nt of $arliament remains applica*le toda' the re&erend#' loc)s contained in ss ;. H and K o& the EUA will be le!all #nen&orceable and could *e entirel' disregarded *' a future go)ernment which sought to enact legislation securNing an e,tension of the power or competence of the European Union&

>" Gordon and >" Do#!an7 If anner and for of PS" then can bind the future parlia ent and in fact parlia ent see ed accept the anner and for of PS! The /ice'an orthodo,' has not howe)er gone unchallenged& #f particular rele)ance to the present in3uir' is the O'anner and &or'M conception o& the so%erei!nt o& Parlia'ent which deri%es &ro' the wor) o& Sir I%or Jennin!s" The manner and form theor' is a reconfiguration of the notion of parliamentar' so)ereignt' which postulates that $arliamentHs power to make or unmake an' law whate)er must include the power to legislate so as to modif' the future lawmaking process&

$arliament thus remains una*le to *ind its successors a*solutel' as to the su*stance of future legislation *ut it is #nderstood to be constit#tionall capable o& le!islatin! to ens#re that &#t#re stat#tes '#st be created in a partic#lar wa . in accordance with a speci&ied M'annerM andNor M&or'O& As such if the reinterpretation of the doctrine of parliamentar' so)ereignt' offered *' the manner and form theor' is accepted the re&erend#' loc)s contained in the EUA co#ld be %iewed as le!all %alid alterations o& the le!islati%e process with which &#t#re parlia'ents wo#ld be bo#nd to co'pl in order to enact legislation e,tending the power or competence of the European Union&

!hether the manner and form theor' of parliamentar' so)ereignt' should now *e seen to ha)e displaced the traditional /ice' orthodo,' is a matter which cannot *e e,plored at length in this article& There ma' *e conceptual and indeed principled reasons for preferring the position set out *' ?ennings to that of /ice' and Sir !illiam !ade /ice'Hs most influential defender& And it can further *e argued that conte'porar de%elop'ents in U- constitutional practice can be %iewed as pro%idin! si!ni&icant e%idence that a shi&t to the 'anner and &or' interpretation of legall' unlimited legislati)e authorit' has occurred&

If this is the case the EUA while still an unprecedented constitutional e,periment can perhaps be seen to &it with the e'er!in! reco!nition that the 'anner and &or' theor pro%ides the best acco#nt o& Parlia'entIs conte'porar le!islati%e power& =or in promulgating the EUA the coalition go)ernment seems implicitl' to ha)e em*raced the logic of the manner and form understanding of parliamentar' so)ereignt'& And in enactin! a stat#te which p#rports to 'odi& the &#t#re le!islati%e process it see's that Parlia'ent has accepted an interpretation o& its so%erei!n a#thorit which per'its it to 'a)e stat#tor alterations to the 'anner and &or' which '#st be &ollowed &or the creation o& %alid le!islation&

- Although EUA used to restore the national so)ereignt' *ut at the same time parado,icall' it amount to renunciation part of legislati)e power i&e& re3uire referendum Irestrict $SJ Pro&essor Vernon <o!danor goes a step further and asks whether the EUA has transformed +$arliament5 from a traditionall' *icameral *od' "that was competent to legislate on all matNters% to a tricameral *od' that includes the electorate in the law-making process& #*)iousl' $arliament is not a static institution2 it was reformed in the past "think a*out the e,tenNsion of the franchise in the nineteenth and earl' twentieth centur' or the $arliament Acts 8:88 and 8:E:% and will *e reformed in the future "think a*out a wholl' or partiall' elected Gouse of Lords or a Gouse of Commons elected *' proportional representation%& To what e,tent 0ogdanor asks is $arliament after such a reform identical "in constitutional terms% to $arliament *efore the reformB Are there limits to $arliament(s a*ilit' to redefine itself without *ecoming an entirel' new *od'B

5" <o!danor7 Suppose that $arliament to take an e,treme and implausi*le e,ample were to pass a statute re3uiring the consent of the Institute of /irectors *efore legislation relating to certain indus trial matters could *e passed& !ould $arliament then ha)e *een redefined so as to include the Institute of /irectorsB !ould such a redefinition *e accepted as )alid *' the courtsB Could $arliament create as man' e,tra cham*ers as it liked and at what point would such a multicameral legislature no longQ r *e the same $arliamentH as the one we ha)e toda'B !hat indeed is the criterion for a parliament *e ng the Hsame $arliamentHB

It is therefore difficult to escape the conclusion that the E#ropean Union Act i'poses a s#bstanti%e li'itation #pon the powers o& Parlia'ent *' arguing that the Act 'ields merel' manner and form entrenchment& The Act i'poses a precondition o%er the area in which Parlia'ent can le!islate& It therefore red#ces the area in which Parlia'ent can le!islate witho#t sec#rin! the appro%al o& %oters in a re&erend#'& If that is so it has altered the rule of recognition& Parlia'ent can now. on this interpretation. do an thin! it li)es e,cept a'end a E#ropean Union treat or transfer significant powers or competences to the Union witho#t a re&erend#'&

It therefore seems reasonable to concl#de that the re&erend#' re+#ire'ent in the E#ropean Union Act depri%es the le!islat#re of its so)ereign power to legislate on certain E#ropean Union 'atters b re+#irin! for these matters the assent o& a bod e,ternal to the le!islat#re" It amounts there&ore to a partial ren#nciation o& the le!islati%e power and so is a su*stanti)e restriction rather than one in)ol)ing merel' the manner or form in which legislati)e power is e,ercised& 0ut if $arliament can successfull' *ind itself in this wa' wh' not also in othersB

It is ironic that an Act purportedl' designed to protect the so)ereignt' of $arliament raises such serious pro*lems for the doctrine which comes to resem*le nothing more than the smile on the face of the Cheshire cat& In see)in! to restore national so%erei!nt the E#ropean Union Act has. parado,icall . restricted parlia'entar so%erei!nt &

$ Although EUA seek to amend the wa' for the future parliament to legislate *ut in order to repeal it still onl' need simple maAorit' 0ogdanor(s o*ser)ations are powerful2 the EUA does indeed inAect a new stimulant "direct democrac'% into the U-(s traditional form of go)ernment "representati)e democrac'%& 0ut is his anal'sis of the EUA accurateB It is tr#e that the EUA p#rports to tar!et &#t#re !o%ern'ents and Parlia'entsC howe)er the' re'ain #ne+#i%ocall able to repeal or a'end the EUA with a si'ple 'a8orit in Parlia'ent" Also upon closer e,amination the EUA is act#all directed at Treaties a'endin! or replacin! TEU or T(EU "s& 6 EUA% and the amendment of T=EU under Art& E;"D% TEU "ss < and E EUA%&

In short the EUA does not /and cannot0 #nilaterall chan!e the r#le o& reco!nitionC *ut it does see) to condition the e,ercise o& 'inisterial power "s& 5 *ut also ss < D > ; : 87 EUA% =inall' how different is the EUA from the de)olution legislation for Scotland !ales and Northern Ireland which also in)ol)ed Acts of $arliament preceded *' referendumsB

Le!al challen!es to U!o%ern'ent plans to rati& EU treaties The draft treaties that ha)e emerged from I.Cs and the more recent con)ention ha)e *een deepl' politicall' contentious within the United -ingdom and most other mem*er states& It is therefore not s#rprisin! that people ha%e atte'pted to brin! challen!es in the U- co#rts to +#estion the law&#lness o& !o%ern'ent s actions or proposed actions #nder its treat $ 'a)in! powers "see 0o, 86&D%& In the three 'ost recent challen!es the !ro#nds o& re%iew related to &ail#re o& the U!o%ern'ent to hold a re&erend#'"

$ Legal challenge failed to the argument that referendum needed Iin the pastJ e)en though *reach the con)ention promise in manifesto or legitimate e,pectation LE.AL CGALLEN.ES T# EU TREATIES IN TGE UNITE/ -IN./#1 In 8:>8 Ra'mond 0lack*urn a litigant in person well known for *ringing legal actions a*out constitutional matters attempted to pre)ent the United -ingdom from acceding to the Communit'& Ge sought a declaration that the go)ernment would *e acting unlawfull' if it were to sign the Treat' of Accession to the EC& In essence his argument was that the go)ernment would *e surrendering Hthe so)ereignt' of the Crown in $arliament& The Court of Appeal struck out his action&8:

=inanced *' the *illionaire *usinessman Sir ?ames .oldsmith Lord Rees-1ogg a cross-*ench peer and former editor of The Times applied for Audicial re)iew against the =oreign Secretar' the da' *efore the 0ill incorporating the 1aastricht Treat' was to recei)e ro'al assent in ?ul' I::<&67 The application *' Rees1ogg was peremptoril' dismissed *' the Gigh Court so lea)ing the wa' clear for the Crown to proceed with ratification& The draft Constit#tional Treat was also su*Aect to legal challenge in the Court of Appeal in 677<& Like 0lack*urn the applicants in this case sought to argue that the go)ernment would *e acting unlawfull' andPor contrar to con%ention were it to rati& the Constit#tional Treat witho#t prior electoral appro%al" o The Court of Appeal had no difficult' in finding that the applicants* case was not serio#sl ar!#able"

In =e*ruar' 677; a U- Independence $art' "U-I$% acti)ist lost a legal challenge relating to the !o%ern'ent*s re&#sal to hold a re&erend#' on the Lisbon Treat & o Stuart 0ower accused ministers of a *reach of contract& Ge said that the treat' was effecti)el' the same as the European Constitution on which the go)ernment promised a pu*lic )ote at the 6775 general election& o The Audge in 0righton Count' Court said the e&&ect o& breachin! a 'ani&esto co''it'ent was political. not le!al"

The last of the Audicial re)iew challenges to EU treaties was in J#ne ;BBC& o This time it was *' 1r Stuart !heeler a *arrister turned in)estment *anker who had made a fortune pioneering spread *etting( and was once the Tories( *iggest donor "he now *acks U-I$%& Ge sought a Gigh Court order to force the go)ernment to hold a re&erend#' on the Lisbon Treat agreed *' mem*er state go)ernments in /ecem*er 677>& As $rime 1inister Ton' 0lair had pre)iousl' promised a U- referendum on the 677E draft Constitutional Treat' "an e,ecuti)e decision%& After the treat' was signed a European Union 0ill was introduced into $arliament in 1a' 6775 and pro)ided for the Constitutional Treat' to *e gi)en effect in domestic law su*Aect to the outcome of a referendum "a parliamentar' decision%& 1r !heeler claimed that the refusal to hold a referendum in relation to the Lis*on Treat' "which is ultimatel' a decision for

$arliament% was unlawful *ecause it was in breach o& the clai'ant*s le!iti'ate e,pectation& o Uns#rprisin!l . the Ad'inistrati%e Co#rt re8ected his clai'"

Re&resh2 6 wa' to regulate go)t(s action- *' $arliament IpoliticalJ or *' court IlegalJ Although none of the legal challenges were high profile let alone successful the' do raise a *roader 3uestion of constitutional significance2 are the courts *est placed institutionall' to decide the 3uestion of whether or not a referendum on the Lis*on Treat' "or an' other amending treat'% should *e heldB @ou will recall that the p#rpose o& p#blic law is to re!#late actions b the !o%ern'ent& This it does in two wa s"

The first wa' is political& o Those who e,ercise political power "for e,ample go)ernment officials% are held to acco#nt thro#!h political instit#tions "for e,ample& Parlia'ent%C o we saw in Chapter ; that !o%ern'ent 'inisters and senior ci%il ser%ants are re!#larl s#b8ected to scr#tin "for e,ample de*ates answering 3uestions and committees%& The other wa in which the go)ernment is to account is thro#!h the law and the co#rt$ roo'" o Chapter 8D will illustrate how indi)iduals ma' seek Audicial re)iew of go)ernment action "instead of seeking political redress for e,ample *' lo**'ing for parliamentar' scrutin'%&

- U- mainl' focus on political rather than legal in the aspect of EU The United -in!do' has historicall &a%o#red the &irst 'ethod o& political acco#ntabilit "although as we saw in Chapter 6 we are seeing a mo)e from a HpoliticalH to a HlegalH constitution%& It is therefore #ns#rprisin! that the reperc#ssions o& U- 'e'bership in the EU are lar!el political" #ne need onl' look at the La*our $art'Hs attitude towards referendums in relation to the Lis*on Treat' or the lasting political di)isions within the Conser)ati)e $art' to get a sense of the political difficulties that the EU poses for part' leaders&

- Legal challenge is insi!ni&icant compared to political or constitution Iother Europe continentJ Le!al challen!es such as the one b >r 5heeler Fe,a'ple abo%eG pale into insi!ni&icance when co'pared to the political ra'i&ications o& EU 'e'bership and also when co'pared to the constit#tional challen!es on the E#ropean continent9most famousl' in #er any where the claimants argued "ultimatel' unsuccessfull'% that the 1aastricht Treat'6E and the Lis*on Treat'65 were incompati*le with certain pro)isions of the 0asic Law&

Social le!iti'ac iss#e7 - Although EU *ecome more formalist *ut the more important is the social legitimac' Iacceptance *' the peopleJ of integration In concluding the first part the E#ropean Union has lon! str#!!led with the notion o& 6le!iti'ac *" It be!an to !i%e itsel& a 6h#'an &ace* *' incorporating human rights social Austice and proportionalit' in its case law "which were onl' later included in the *od' of the treaties%& The s'm*olic choice of a con)ention method to draft a Constitutional Treat' in addition to the &or'al re+#ire'ent o& an IGC is another e,ample of the EUs atte'pts to appear less elitist and &or'alist and to i'pro%e its le!iti'ac ratin!&

EU o&&icials are constantl stressin! the shared herita!e and histor of the mem*er states "rather than. sa . the need to 'a)e its e,ec#ti%e instit#tions 'ore de'ocratic%& =as the EU been s#ccess&#l in con%incin! its citi9ens that it has a sec#re constit#tional &o#ndation /rather than 'ere c#lt#ral rhetoric 0@ Joseph 5eiler an important US scholar of European constitutionalism e'phasi9es the need &or social le!iti'ac " ?&G&G& !eiler The Constitution of Europe2 /o the New Clothes Ga)e an EmperorB and #ther Essa's on European Integration "8::: Cam*ridge2 Cam*ridge Uni)ersit' $ress% p& ;< !hat defines the *oundar' of the polit' within which the maAorit' principle should appl'B There is no theoretical answer to this 3uestion& It is determined *' long term )er' long term factors such as political

continuit' social cultural and linguistic affinit' and a shared histor'& No one factor determines this *ut the interpla' of some or all& $eople accept the maAoritarian principle of democrac' within a polit' to which the' see themsel)es as *elonging& The process o& inte!ration:e%en i& decided #pon de'ocraticall 9 *rings a*out then initiall' at least a loss of direct democrac' in its actual process of go)ernance& 5hat beco'es cr#cial &or the s#ccess of the integration process is the social le!iti'ac o& the new inte!rated polit despite this loss of total control o)er the integrated areas *' each polit'

- Referendum(s result cannot reall' show the social legitimac' as the result ma' related to national issue rather than to the EU issue some oppose e)en without knowing the content of treat' and referendum on such ha)e to *e carried out fre3uentl' Social le!iti'ac is a 'a8or challen!e for the EU "as well as a maAor theme of this chapter and Chapter ;%& To what e,tent does the EU co''and pop#lar s#pport@ This 3uestion is related to the re&erend#' iss#e" #*)iousl' national go)ernments could increase peoples sense of *elonging to the EU if it made them stakeholders of the future of the Union for e,ample *' holding a referendum& <#t a re&erend#' is a %er cr#de 'echanis' for ascertaining peopleHs

preferences and not a %er reliable co'pass either"

Re&erend#'s are o&ten in&l#enced b national iss#es "and held for national purposes% as opposed to real E#ropean ones and so a referendu could easily disinte$rate into a poll on voters% "dis&'satisfaction with their own $overn ent( To illustrate CB$3B per cent o& ne!ati%e %otes in =rance the Netherlands and Ireland were 'oti%ated b protest %otin! a!ainst the national !o%ern'ent not b dis$satis&action with the EU" Ask 'ourself whether it is sensible to hold a re&erend#'. sa . on the details o& the Lisbon Treat @ "(ort per cent o& Irish 6No* %oters admitted that the' opposed the Treat witho#t )nowin! its content&%

5o#ld it not 'a)e 'ore sense to as) a +#estion on principle such as whether the United -in!do' sho#ld contin#e to be a 'e'ber o& the EUB !e saw that this +#estion was as)ed in a re&erend#' in 234L and that o%er two$thirds s#pported contin#ed 'e'bership" Sho#ld this political* +#estion be as)ed at re!#lar inter%als in order to ens#re contin#ed le!iti'ac @ Or was this 6constit#tional* +#estion decided in 234L. and the 'atter laid to rest once and &or all@

/emocrac' legitimac' relied on 6 t'pesC inp#t Ithe procedure which deficit in EUJ or o#tp#t Iresult of common welfare for citi4en which EU fulfilled The degree of the EU*s de'ocrac de&icit depends on the bench'ar)s that are used to assess the EU*s de'ocratic +#alit and potential& The sociologist (rit9 Scharp& for e,ample distin!#ishes between two &or's o& le!iti'ac "

!e are familiar with 6inp#t$ oriented* le!iti'ac which &oc#ses on proced#ral criteria "how we elect o#r law$'a)ers and how we hold them to acco#nt in transparent institutions% for determining the popular will "+go)ernment *' the peopleH%& I& this bench'ar) is #sed the EU clearl &alls short o& the standards o& de'ocrac set *' the mem*er states&

0ut if we focus on the EU*s o#tp#t$ oriented* le!iti'ac . which is !enerated b achie%in! citi9ens* s#bstanti%e co''on wel&are and !oals "+!o%ern'ent &or the people*% the EU has a '#ch better trac) record& Twent $ei!ht states ha%e 8oined the EU %ol#ntaril "not one has re3uested to lea)e% and the EU has through inter- institutional cooperation i'pro%ed the co''on wel&are in %ario#s polic &ields "we will *e looking at the impact of the Race /irecti)e later in this chapter%&

- Gowe)er maAorit' rule and the effecti)eness does not itself define democrac' de'ocrac re+#ired people con%inced that the are tr#l !o%ernin! the'sel%es <#t is o#tp#t$oriented le!iti'ac eno#!h to raise the EU*s de'ocratic pedi!ree@ <eate -o&iler$-oeh et" al"7 I &&TJhe distincti)eness of democratic legitimac' lies not "merel'% in reali4ing a certain kind of com*ination of input output and social legitimac' *ut in reali4ing the fundamental )alues of democrac'& It is the principle of autonom' that stands at the centre stage of the democratic proAect& All modern traditions of democratic thought9 from Li*eralism to Repu*licanism to Social /emocrac'9share the underl'ing notion that for people to de)elop as free and e3ual the' ha)e to *e autonomous I&&&J Autonom' implies that people are free and e3ual in the determination of their own li)es I&&&J

De'ocrac re+#ires 'ore than 'erel a co''it'ent to pop#lar so%erei!nt 'a8orit r#le. or e&&ecti%e proble' sol%in!2 All these practices ma' well *e related to the practice of democrac' b#t Mthe the'sel%es do not de&ine de'ocrac O& A political s'stem is not democratic *ecause particular decision-making procedures are in place which we commonl' associate with democratic rule& 5hat de'ocrac re+#ires is a co''it'ent towards reali9in! a condition in which9negati)el' defined9people are not alienated &ro' political decisions and in which9positi)el' defined9people are con%inced that the are tr#l !o%ernin! the'sel%es I&&&J It is onl' when people are granted autonom' and the forms of participation that enable citi9ens to act a#tono'o#sl that the will identi& with the state that is to sa' re!ard the state as le!iti'ate"

/emocrac' thus re+#ires that people not 8#st en8o the ri!ht to %ote *ut it also i'plies that citi9ens en8o e+#al entitle'ents and ri!hts to participate in co''#nicati%e processes o& debate and deliberation which Oempower citi4ens to participate in pu*lic opinion in wa's that will permit them to *elie)e that pu*lic opinion will *ecome potentiall' responsi)e to their )iewsO& Andrew7 The role o& the citi9en:ci%ic societ :as well as the responsi%eness o& EU laws to new social changes and demands are %ital in!redients in the assess'ent o& the le!iti'ac o& the EU*s legislati)e process "see further Chapter ;%&

T=E EVER1DA1 LEGISLATIVE PROCESS7 T=E >A-ING O( REGULATIONS AND DIRECTIVES In this ne,t section of the chapter we mo)e from the once in a while( processes of treat' re)ision to the more ordinar' to e%er da world o& the 'a)in! o& re!#lations and directi%es b the EU"

EU e,cl#si%e co'petence7 The EU has si, e,clusi)e competences& In these areas the EU is the sole legislator and decisionmaker& The mem*er states take no decisions and do not interfere with the competence in these matters transferred to the EU& Article < T=EU2 +The Union shall ha)e e,clusi)e competence in the following the customs union9that is the internal free trade 4one *etween mem*er states who appl' the same European customs duties "ta,es% to goods coming into the EU 4oneC the economic and monetar' polic' of the EU including sharing a single currenc' the euro o)erseen *' the European Central 0ank in =rankfurtC o competition laws to ensure a le)el pla'ing field *etween European *usinesses controlling state aid from national go)ernments "the European Commission has primar' competence for enforcing EU competition law%C

a common position in international trade negotiations such as the !orld Trade #rgani4ation "!T#% trade rounds as part of a common international trade polic'C conser)ation of marine *iological resources "part of the common fisheries polic' *etween EU states%C and the concluding of some international agreements&

Shared Co'petences7 The )ast maAorit' of other policies come under this heading& In these areas *oth mem*er states and the EU ha)e the power to make laws& If the EU has stopped taking initiati)es in this area "or if it ne)er did so% mem*er states ha)e the option of taking action themsel)es using their own initiati)e and resources& Article E T=EU2 +The Union shall share competence with the 1em*er States where the Treaties confer on it a competence which does not relate to the areas referred to in Arts < Ie,clusi)e competenceJ and D Isupporting competenceJ(& Shared competence *etween the Union and the 1em*er States applies in the following principal areas2 o the internal marketC o social polic' for the aspects defined in this treat'C o economic social and territorial cohesionC o agriculture and fisheries e,cluding the conser)ation of marine *iological resourcesC

the en)ironmentC consumer protectionC transportC trans-European networksC energ'C the area of freedom securit' and Austice "this har*ours the pro)isions on $olice and ?udicial Cooperation in Criminal 1atters in Title IL TEC and Title LI TEU%C o common safet' concerns in pu*lic health matters for the aspects defined in this treat'C and o other Union competences& o o o o o o

S#pportin! co'petence7 There are a num*er of areas in which the Commission has )er' little direct in)ol)ement& The EU can financiall' support the actions of the mem*er states that ha)e agreed to coordinate their domestic policies through the EU in the following areas& Article D T=EU2 HThe Union shall ha)e competence to carr' out actions to support coordinate or supplement the actions of the 1em*er States& The areas of such action shall at European le)el *e2 o the protection and impro)ement of human healthC o industr'C o cultureC o tourismC o education )ocational training 'outh and sportC o ci)il protectionC and o administrati)e cooperation&

A" S=ARED. EDCLUSIVE. AND SUPPORTING CO>PETENCES IN T=E EU As we saw in Chapter ; the EU used to consist of three pillars( created *' the TEU in 8::6 and underpinned *' the TEC which set out the institutional framework that ser)ed all three pillars as well as detail on the scope of the European Communit' "$illar 8%& Ser)ing all three pillars were common pro)isions on institutional and procedural arrangements and the principles "ma'*e e)en constitutional principles(% on which the EU operates& 0ut the law adopted in the first +Communit'( pillar "EC law% and the law adopted in the second and third pillars of the EU had different legal effects& The Lis*on Treat' merges the first and third pillars and a*olishes the European +Communit'(9the distinction is no longer necessar' *ecause the +Communit'( is replaced and succeeded *' one organi4ation2 the Union& After a fi)e-'ear transition the old third pillar "$olice and ?udicial Cooperation in Criminal 1atters% will mo)e into the generall' applica*le mechanisms of the Union "which is

*ased on those of the old first or Communit' pillar% set out in T=EU& EU policies enacted in the Area of =reedom Securit' and ?ustice will *e determined *' the ordinar' legislati)e procedure of K1L and the ordinar' legislaNti)e procedure and will e)entuall' fall within the Aurisdiction of the European Court of ?ustice "EC?% and ha)e primac'( o)er national law& Legislation in this area can *e initiNated on a proposal from the Commission or on the initiati)e of a 3uarter of the mem*er states "Art& >D T=EU%& #ne commentator has said that con)erting the third pillar "$olice and ?udicial Cooperation in Criminal 1atters% into a stronger Area of =reedom Securit' and ?ustice is +the single most re)olutionar' achie)ementH of the Lis*on Treat'& The second pillar "Common =oreign and Securit' $olic'% is outlined in TEU and remains su*Aect to specific intergo)ernmental procedures& It remains outside the Aurisdiction of the EC? "Art& 6>5 T=EU%& The principles of attri*uted power su*sidiarit' and proportionalNit' are located in TEU *ut it contains no legal *ases for the adoption of Union legislation& According to /ougan cthe TEU has more the character of a mission statement coupled with some *asic

organi4ingprinciples on uses such as the institutional architectureH& The decisions made pursuant to Common =oreign and Securit' $olic' will remain distinct as regards their effects within the national legal s'stems from an' other Union acti)it'&

Area of Competence in Lis*on treat' The Lisbon Treat consists o& areas of2 o e,cl#si%e co'petence "Art" H T(EU% o shared co'petence "Art" A T(EU% and o other co'petences are listed in Arts L and K T(EU"

Nation state has less input into the law-making process 0ut the basic law$'a)in! process re'ains the sa'e #nder Lisbon& The directl elected E#ropean Parlia'ent can sc#pper plans p#shed &orward b !o%ern'ents& The Co''ission is responsible "often contro%ersiall % for preparin! policies and dra&t laws. and steerin! the' thro#!h the le!islati%e process9policies that some !o%ern'ents o& 'e'ber states 'a disa!ree with& 1oreo)er the ECJ. co'prisin! 8#d!es independent o& !o%ern'ents of the mem*er states has the &inal sa i& disp#tes arise abo#t the powers o& the EU instit#tions to 'a)e law or take action&

The &or'al 6inp#ts* o& 'e'ber state !o%ern'ents in the EU lawmaking process is through the *od' )nown as the Co#ncil of the European Union& E%en here a !o%ern'ent 'a ha%e to accept a law with which it disa!rees beca#se O>V "according to which each mem*er state has a fi,ed num*er of )otes that is roughl' determined *' its population *ut is progressi)el' weighted in fa)our of smaller countries% now applies in relation to 'ost polic areas" The EU*s acti%ities are here deri%ed &ro' T(EU according to which the EU can 'a)e le!islation 9 directi%es and re!#lations9 which directl creates le!all bindin! ri!hts and obli!ations bindin! pu*lic authorities *usinesses and citi4ens in mem*er states& The original focus was on economic polic' *ut the EU(s competences

ha)e significantl' e,panded o)er the 'ears&

=ormal and informal channel *' Uinto the legislati)e process The EU*s le!islati%e process. as in the United -in!do' can *e seen as a networ) o& co''#nication channels7 o some of which are !i%en &or'al constit#tional stat#sC o others of which are +#ite in&or'al "for e,ample the lobb in! o& the Co''ission b press#re !ro#ps%& To &or'#late and a!ree on polic and to gi)e polic' formal legal )alidit' dialo!#e is needed between people representin! di&&erent interests"

1em*er states pool their so)ereignt' so that the' can gain collecti)e le)erage otherwise the' would not ha)e legislati)e reflect this interest The *est wa' in which to understand the EU is as a bod to which the 'e'ber states ha%e decided to pool their so%erei!nt & In other words the 'e'ber states ha%e decided to dele!ate their decision$'a)in! powers to an additional institutional le)el in order to !ain an a'o#nt o& collecti%e le%era!e. in&l#ence. and e&&ecti%eness that the states on their own wo#ld not otherwise ha%e possessed& Each of the EU instit#tions in%ol%ed in the le!islati%e process has *een desi!ned to re&lect di&&erent t pes o& interest"

No single EU institution is legislature There is no sin!le instit#tion that is. b itsel&. the EU 6le!islat#re*& Directi%es and re!#lations are made through the interactions of the Co''ission. the Co#ncil. and the E#ropean Parlia'ent& Chapter ; considered the )arious +e,ecuti)e( functions of the European Council the Council and the Commission& Co#ncil and Co''ission also pla' a role in the le!islati%e process& The third instit#tion in the process is the E#ropean Parlia'ent&

<" T=E EUROPEAN PARLIA>ENT Co-legislator- Council and $arliament The European $arliament "in )arious guises% is one of the original institutions that dates *ack to the European Coal and Steel Communit' "ECSC%& 0ack in 8:56 it was called an +assem*l'5 and mem*ership was drawn from the national parliaments of the mem*er states& It has radicall' changed since then& =rom 8:>: mem*ers of the European $arliament "1E$s% ha)e *een directl' elected& 0efore 8:;D the European $arliament was +consulted( *' the Council onl' *efore enacting legislaNtion& In other words the European $arliament(s opinion was not *inding on the Council& The European $arliament had alwa's argued the case for it to *e an e&&ecti%e co$le!islator with the Co#ncil"

This was graduall' introduced *eginning with the cooperation procedure in the Single European Act& The TEU esta*lished and the Amsterdam Treat' e,tended and made more effecti)e the 6co$ decision proced#re* which is now known as the +ordinar le!islati%e proced#re* in Art" ;C3 T(EU" It ac)nowled!es the parit o& the E#ropean Parlia'ent and the Co#ncil meaning that assent &ro' both instit#tions is re+#ired be&ore le!islation can be adopted" The EU now has a 6two$cha'ber le!islat#re*2 'inisters o& the national !o%ern'ents represent the 'e'ber states in the Co#ncil and the political !ro#ps represent the E#ropean Union citi9ens in the E#ropean Parlia'ent"

EU parliament is working parliament different from de*ating parliament Iin U-J and perhaps more accuratel' is controlling parliament In the course of its lifetime the European $arliament has transformed itself from a consultant assem*l' to a wor)in! parlia'ent& It sho#ld not be co'pared with a traditional debatin! parlia'ent2 the E#ropean Parlia'ent has &ewer powers than. sa . the 5est'inster Parlia'ent to hold the !o%ern'ent to acco#nt or to prescribe new le!islation" 0ut through its political independence and %eto power the E#ropean Parlia'ent e,ercises 'ore in&l#ence o%er the law$'a)in! process than 'ost 'e'ber states* le!islat#res and is th#s si'ilar to the US Con!ress"

P" Dann7 The de*ating parliament is what in continental Europe is often percei)ed as the ideal parliaNment2 it is centred around its plenar' which ser)es as the forum of the nation and draws its importance from mirroring different opinions in societ' within the parliament& This t'pe is mostl' found in parliamentar' s'stems where the maAorit' part' in parliament forms the go)ernment leading to in the words of !alter 0agehot a fusion of maAorit' part' and go)-ernment& The political opposition uses the plenar' to attack go)ernmental measures as well as to la' out its own proposals& In short2 de*ate is the centre of parliamentar' life& The 0ritish Gouse of Commons is the pre-eminent e,ample& The working parliament on the other hand recei)es its character and power from *eing fairl' separated from the go)ernment and from operating as a counter-weight to it& Not the fusion of maAorit' part' and go)ernment *ut the institutional com*at *etween legislature and e,ecuti)e characterises the s'stem and there*' the legislature&

1oreo)er an incompatNi*ilit' rule which for*ids mem*ers of the e,ecuti)e from sitting in the legislature pre)ents pu*lic de*ates *etween go)ernment and opposition on the floor& It is more the strong and specialised committees and less the floor which functions as the main locus in working parliaments& These committees ac3uire e,pertise and power to control the *ureaucrac' and hea)il' shape lawmaking& In sum2 working committees are at the heart of parliamentar' life& The US Congress is the classic e,ample of this t'pe of parliament& I&&&J At first glance it would seem that there are man' similarities *etween the European $arliament and the working parliament model& Ne)ertheless it should *e mentioned that certain of its features are 3uite original to the European $arliament&

These &eat#res 8#sti& the consideration o& a third t pe which can *e seen as a s#b$ cate!or o& the wor)in! parlia'ent& This t'pe shall *e more precisel' named a Icontrollin! parlia'entI& As such it e'plo s basicall the sa'e instr#'ents as a wor)in! parlia'ent "such as the US Congress0. b#t its powers are !enerall 'ore o& a ne!ati%e and controllin! nat#re than an a#tono'o#sl creatin! one" In this respect the ter' Icontrollin! parlia'entI is 'ore appropriate&

Election2 citi4ens in Europe can represent and )otes e)er' fi)e 'ears Elections are held e%er &i%e ears and e%er citi9en o& a 'e'ber state has the ri!ht to %ote and to stand as a candidate in the 'e'ber state o& residence "rather than nationality% on the same conditions as those appl'ing to nationals of that state& The EP is elected b a %ariet o& electoral s ste's "closed list ordered list open list and single transfera*le )ote%& It was credited *' the .erman =ederal Constitutional Court as *eing can additional independent sourceH of democratic legitimac'2 it is the directl elected representati%e bod * o& 'ore than LBB 'illion EU citi9ens "o)er <>5 million eligi*le )oters in 6787% whose interests it represents in de*ates with the other EU institutions&

Low turnout at EU election In Chapter ; howe)er we said that legitimac' stems from support and the EP contin#es to s#&&er &ro' a lac) o& interest in its wor) and &ro' a perception that it is an irrele%ant instit#tion that accommodates second- rate politicians&

The a%era!e EU$wide t#rno#t was AH per cent which was the lowest since the &irst direct elections to the E#ropean Parlia'ent in 8:>:& Although turnout actuall' rose in se)en countries and was lower in Eastern than in !estern Europe al'ost e%er where t#rno#t was &ar below le%els in national elections& 1oreo)er %oters in E#ropean elections tend to &oc#s 'ainl on national iss#es not E#ropean ones"

/ecline in turnout alarm the issue of legitimac' A stead' decline of turnout and interest o)er thirt' 'ears is a maAor concern not onl' for national and European politicians b#t also &or the le!iti'ac o& the instit#tion itsel&" In a *ar*ed comment the .erman Court added that the E#ropean Parlia'ent Icannot. and need not. F"""G co'pl with the re+#ire'ents that arise on the state le)el from the citi9ens e+#al political ri!ht to %oteI& o ; <Ver&G ;NBC This can mean either that the EP sho#ld be 8#d!ed accordin! to a di&&erent /that is. lower0 standard o& de'ocratic le!iti'ac than national parlia'ents or that it is 6not #p to the 8ob

- 0ut issue *tw participate democrac' and legitimac' is comple,- more democrac' does not reall' mean more legitimac' low turnout ma' onl' show weakness in the supranational democrac' more participation also need to *e depend on what participation is it& !hat can *e done to address the democrac' and legitimac' deficits in the E$B J" <londel et" al"7 An often un3uestioned assumption has *een that the legitimac' pro*lems of the European Union stem in large part from the Hdemocratic deficitH of its institutions and therefore that an increase in the democratic content of these institutions wouldH automaticall' increase legitimac'& Low le)els of participation in European $arliament elections are presumed to *oth reflect and accentuate the pro*lems of democrac' and legitimac' in the Union&

1et the connection between participation. de'ocrac . and le!iti'ac is not si'ple" o One and not necessaril' the most important indication of this is that the election o& the E#ropean Parlia'ent b direct #ni%ersal s#&&ra!e did not ostensibl increase. to sa the least. the le!iti'ac o& the Union" C'nics might indeed suggest with some o*)ious e,aggeration *ut with a grain of truth that the direct elections to the European $arliament increased rather than diminished the )isi*ilit' if not necessaril' the realit' of its lack of legitimac'&

o Secondl and more importantl' le!iti'ac itsel& is not 'onolithic 7 on the contrar it can be e,pected to go up and down to *e concerned with se%eral and perhaps 'an bodies at the sa'e ti'e as well as to relate to speci&ic &ields or to *e *ounded rather than #ni%ersal" The e,tent and breadth o& the le!iti'ac o& the Union has there&ore to be e,plored not whether that level of $overnance is or is not le$iti ate( o Thirdl . de'ocrac is a co'ple, concept and the atte'pt to appl it at the s#pranational le)el multiplies this comple,it'& I&&&J

In short it is not the case that 'ore de'ocrac wo#ld necessaril lead to 'ore le!iti'ac C neither is it the case that 'ore participation wo#ld necessaril 'ean 'ore le!iti'ac " 5hile low t#rno#t ma' *e a sign of a si!ni&icant wea)ness in the process o& de'ocratic representation at the s#pranational le%el b#t the con%erse does not hold in all circ#'stances2 'ore participation wo#ld not necessaril indicate a 'ore representati%e political process at the E#ropean le%elC the e&&ect wo#ld depend on the )ind o& participation in%ol%ed&

E,pensi)e +tra)el circus( *tw 0russels and Stras*ourg for EU $arliament The E#ropean Parlia'ent has two 'eetin! places" It cond#cts the b#l) o& its wor) in <r#ssels. <el!i#'" A !rowin! n#'ber o& plenar sessions are held in <r#ssels which is also where committee meetings take place political groups meet and where the offices of the 1E$s are *ased& =owe%er for twel%e &o#r$da plenar sessions a ear. it 'eets in Strasbo#r!. (rance which is also its official seat& The General Secretariat o& the E#ropean Parlia'ent. the Parlia'ent*s ad'inistrati%e bod . is based in L#,e'bo#r!&

This +tra%ellin! circ#s* in%ol%es relocatin! >EPs. their sta&&. and a si9eable section o& the EU*s b#rea#crac for one wee) e%er 'onth at considerable cost to the ta,pa er "an estimated annual cost of P;BB'% and the en%iron'ent "it generates at least 67 777 e,tra tonnes of C76 emissions9e3ualing 8< 777 return flights from London to New @ork%& It ga)e rise to an online petition to establish one 6seat* &or the EP. which attracted 2";' si!nat#res and was &iercel debated at the EP*s petitions co''ittee hearin!" o L&Philips

Role of EU $arliament now *ecome similar or e)en greater influence than state $arliament N. N#!ent7 0ut notwithstanding the increased powers and influence it has secured the E$ is still widel' )iewed as not *eing 3uite a proper parliament& The main reasons for this are2 it canNnot o)erthrow a go)ernmentC its formal legislati)e powers remain weaker than those of national parliamentsC and in some important spheres of EU polic' acti)it'9nota*l' E1U and foreign and defence policies9it is largel' confined to informationrecei)ing and conNsultati)e roles& Gowe)er the e,tent to which there is a Hformal powers gapH *etween the E$ and national parliaments has greatl' narrowed o)er the 'ears and in man' important respects the

Lisbon Treat has narrowed it &#rther Fdi&&erence btw EP and national parlia'entG& Indeed the E$ ma' *e said to ha)e *een the principal institutional *eneficiar' of the Treat' with gains for it including2 o si!ni&icant e,tensions to its le!islati%e powersC o stron!er b#d!etar and powersC

o EP appro%al beco'in! necessar &or a n#'ber o& i'portant decisions that hitherto onl re+#ired Co#ncil appro%al such as the use of enhanced cooperation and a wide range of international agreements& Gowe)er when assessing the importance of the E$ attention should not *e restricted to its formal capa*ilities&

=or when the comparison with national parliaments is e,tended to encompass what actuall' happens in practice the powers e,ercised b the EP are. in se%eral )e respects co'parable to the powers e,ercised b 'an national parlia'ents& Indeed it is not difficult to make out a case that in e,ercising some of its functions9'ost partic#larl scr#tinisin! le!islati%e proposals 9the EP e,erts a !reater in&l#ence o%er a&&airs than do the 'ore e,ec#ti%e$do'inated parlia'ents o& 'an 'e'ber states"

Representation *' uni)ersal suffrage and the no& not so proportionate to each of mem*er state The Treat o& Lisbon chan!ed the co'position o& the E#ropean Parlia'ent& It ceased to *e composed of representati)es cof the peoples of the States *rought together in the Communit' "Art& 8;:"8% TEC% and instead is now co'posed o& representati%es o& +the Unions citi9ens* "Art& 8E"6%"8% TEU%& These representati%es are elected 6b direct #ni%ersal s#&&ra!e in a &ree and secret ballot* "Art& 8E "<% TEU%& The total n#'ber o& representati%es 'a not e,ceed 4LB +pl#s the President*. and representation o& the citi9ens o& the Union is +de!ressi%el proportional* with a ini u threshold of six e bers per e ber state and no mem*er state *eing allocated more than ninet'- si, seats&

In contrast an >EP elected in the United -in!do' "which has se%ent $two seats and a pop#lation o& KB 'illion% represents 44B.BBB citi4ens whereas an 1E$ from L#,e'bo#r! "which has si, seats &or LBB.BBB citi9ens% represents appro,imatel' onl CH.BBBB L#,e'bo#r! citi9ens"

1E$ )ote according to political rather than national >EPs tend to wor) and %ote accordin! to their political. rather than national affiliations& There are se%en E#rope$wide political !ro#ps the )iews of which co%er the entire spectr#' o& E#ropean inte!ration &ro' the &ederalists "who support the creation of European =ederation *ased on the idea of unit' in di)ersit'% and the E#rosceptics "a group of nation-state so)ereignists and anti-corruption fighters% at the 'ar!ins to the %ast 'a8orit o& inte!rationists in the 'iddle. who fa)our an +e%er$closer #nion* &or E#rope"

U- RE$RESENTATI#N IN TGE EUR#$EAN $ARLIA1ENT2 The United -ingdom is di)ided into twel)e electoral regions made up of the nations and regions as follows& o East 1idlands o Eastern o London "comprises the se)ent'four !estminster parliamentar' constituencies in the .reater London area% o North East o North !est o Northern Ireland o Scotland o South East o South !est "which since ?une 677E includes residents of .i*raltar% o !ales o !est 1idlands o @orkshire and the Gum*er

Each constituenc' has *etween three and ten 1E$s and each 1E$ in a region repreNsents each person li)ing there& The United -ingdom has se)ent'-two representati)es in the E$& The nine English regions elect fift'-nine 1E$s Scotland elects si, and !ales elects four 1E$s& In Northern Ireland three 1E$s are elected under its own s'stem of proportionate representation& The 1E$s sit in political groups2 the' are not organi4ed *' nationalit' *ut *' politiNcal affiliation& .roups are not parties *ut looser coalitions& There are currentl' se)en political groups in the European $arliament& Twent'-fi)e mem*ers are needed to form a political group and at least one 3uarter of the mem*er states must *e represented within the group& 1em*ers ma' not *elong to more than one political group&

So'e >EPs do not belon! to an political !ro#p and are )nown as non$attached* >EPs" The position adopted *' the political group is arri)ed at *' discussion within the group& >EPs e,ercise their 'andate in an independent &ashion and no >EP can be &orced to %ote in a partic#lar wa " At present <E per cent of 1E$s are women& The U- has 65 female "<5 per cent of its total%& #n 66 ?une 677: the UConser)ati)e $art' contro)ersiall' withdrew from the European $eoples $art' "the largest political group in the E$% and with their European colleagues launched the antifederalist European Conser)ati)es and Reformists .roup which includes fift'-three 1E$s from across ten mem*er states&

C" T=E LEGISLATIVE PROCESS (OR REGULATIONS AND DIRECTIVES Co''ission- draft Co#ncil and EP has < different procedureconsultation consent and ordinar' legislati)e procedure Co#ncilK1LPUnanimous )oting The law-making process of the EU has a reputation for *eing endlessl' comple,& It is true that there were once no fewer than twent'-two different wa's of enacting a piece of legislation& 0ut the Lisbon Treat has reduced the main le!islati%e proced#res that regulate the relationship between the E#ropean Parlia'ent and the Co#ncil to three& The Co''ission responsi*le for introd#cin! dra&t directi%es and re!#lations be!ins b identi& in! the Article in the T(EU that "in its

)iew% pro%ides a le!al base for the proposed legislation& The Article in +#estion will deter'ine what role is pla ed b the E#ropean Parlia'ent& o Under cons#ltation it merel' has a cons#ltati%e role and the Co#ncil has the &inal word on whether to adopt amend or reAect a proposal& o Under consent an absol#te 'a8orit of all >EPs is re+#ired with respect to the ad'ission o& new 'e'ber states and a'end'ent o& the proced#ral r#les !o%ernin! E#ropean Parlia'ent elections& o Under the ordinar le!islati%e proced#re the E#ropean Parlia'ent has the power to %eto le!islation e%en tho#!h the Co''ission and Co#ncil are in &a%o#r of it&

In the Co#ncil too di&&erent proced#res /#nani'o#s %otin! and O>V0 appl . dependin! #pon the T(EU pro%ision under which a regulation or directi)e is made& /ot sure what it means0 o An o)erl' comple, decisionNmaking process that was onl' understanda*le to the e,perts participating in the process would gi)e rise to transparenc' and legitimac' concerns& o As is we shall howe)er after the Lis*on Treat' the ordinar' legislati)e procedure "Art& 6;: T=EU% applies to )irtuall' all EU polic' areas&

D" T=E CENTRALIT1 O( T=E CO>>ISSION IN T=E LEGISLATIVE PROCESS Commissions initiate the legislation that are su*Aect to co-decision procedure Under the TEU all legislation is adopted *' the Council after consulting the $arliament& The proposal will t'picall' *e su*Aect to a process of consideration and negotiationC if agreed the legislation is e)entuall' adopted and pu*lished& #ur focus here will instead *e on legislating under the T=EU& (or'al responsibilit &or initiatin! le!islati%e proposals under this treat' lies with the Co''ission in all o& the areas that are s#b8ect to the co$ decision proced#re& It is important to note that the Co''issions ri!ht o& initiati%e is

a 6ri!ht to propose* legislation not a ri!ht to le!islate It does not pre%ent the Co#ncil or the E#ropean Parlia'ent &ro' as)in! the Co''ission to &or'#late and introduce an' appropriate proposal9altho#!h the Co''ission is not bo#nd to follow such re3uests&

Commission influenced *' other factors of interest In practice the Co''ission 'a be in&l#enced b a ran!e o& interests" In short the Commissions role in initiating legislati)e proposals is2 o e,cl#si%eC o cr#cial in relation to its &or'#lation and contentC and o political9legislation must *e technicall' sound and politicall' feasi*le &

Initiati)e is real power in legislati)eonl' after initiate then Council and E$ act under ordinar' legislati)e procedure Although there is no single source of ideas that prompts a proposal the Co''issions ri!ht o& initiati%e !i%es it real power in the le!islati%e process& It pu*lishes an annual work proNgramme listing the initiati)es it intends to take& In 6788 the programme included action in the financial ser)ices sector the promotion of energ' efficienc' and a legislati)e proposal on personal data protection& Under Art& 6:E"6% T=EU2 +The Co''ission shall s#b'it a proposal to the E#ropean Parlia'ent and the Co#ncil"H Once a le!islati%e proposal has been s#b'itted. it then beco'es the propert o& the le!islat#re

/Co#ncil and EP actin! #nder the ordinar le!islati%e proced#re0" - $ro*lems is onl' few proposals are reall' come from Commission itself other is from the )arious +outsiders( factors to lead the Council to make proposals E#roscepticF EUG politicians and co''entators li)e to e,press their a%ersion to the Co''issions 'onopol o& initiati%e* for gi)ing an unelected *od' such a central role in the polic'making process& Christopher <oo)er and Richard North The point a*out H0russelsH was that it acted as a ne,us& It had *ecome the centre of an immense and comple, network linking institutions and organisations throughout the Communit'2 not least the administrations of all the mem*er states& #n an' gi)en da' in 0russels would *e not onl' the officials of the Commission itself *ut also thousands of )isitNing national ci)il ser)ants all

in onQ wa' or another engaged in Hthe European construction& Countless thousands more were at w#&Hk *ack home in each countr' all participating in what had *ecome the most comple, legislati)e machine e)er known&57 This was reflected in the bewilderin! %ariet o& wa s b which proposals &or Co''#nit laws ca'e abo#t in the &irst place& As /elorsH stud' group on su*sidiarit' had reported in 8::6 onl HB o& LHL proposals 'ade b the Co''ission in the pre)ious 'ear ori!inated with the Co''ission itsel&" The rest ca'e &ro' other so#rces ranging from the civil servants of national governments to an arra o& anon 'o#s co''ittees which might incl#de pro&essional cons#ltants. acade'ics. en%iron'ental press#re !ro#ps NGOs or e%en co''erciall &#nded lobb ists actin! on behal& o& a partic#lar ind#str or co'pan "

It wo#ld later be esti'ated that there were HBBB s#ch co''ittees operatin! in <r#ssels. and be ond the' 24B.BBB lobb ists o& one )ind or another across the EU ranging from pan-European trade associations representing whole industries to the representati)es of indi)idual local authorities pleading for a share in regional funding&

Although Commission need to consult so the mem*er state(s interest is not e,cluded *ut Lo**'ing affect Commission(s proposal which cannot *e considered as Commission consult them it is rather that the groups pushing the idea to Commission =rom the 8:;7s onwards the 'e'ber states reali9ed that polic 'a)in! b the Co''ission was not e,traneo#s to national polic 'a)in! "and *ecame an,io#s to ens#re that their national interests were not e,cl#ded from the formation of Communit' in) est%& #)er time the Co''ission has enlar!ed the scope o& its cons#ltation processes to assist its anal sis and to i'pro%e its processes& <#t this has opened the door still &#rther &or so$called 6sta)eholders* who 'a be a&&ected b partic#lar le!islation or the lack of it& These are interest !ro#ps that represent pro&essional !ro#ps and

trade associations. and. 'ore !enerall . ci%il societ " There are &ir's o& cons#ltants who 6lobb * on behal& o& partic#lar interests at the European as well as the national le)els& Lobb in!. which in%ol%es or!ani9ations 6p#shin!* &orward their %iews to the Co''ission. is di&&erent &ro' cons#ltation. which in%ol%es the Co''ission 6p#llin!* %iews &ro' others" The Co''ission is the ob8ect o& '#ch lobb in! acti%it . at all sta!es &ro' polic &or'ation thro#!h the initiation o& a le!islati%e proposal and its de)elopment to the adoption and implementation of legislation&

0#M 86&87 -E@ C#NCE$TS AN/ TER1S2 Ci%il societ o refers to the *road collection of associations and groups "including pri)ate firms trades unions communit' groups and nongo)ernmental organi4ations% acti)e *etween the le)el of the indi)idual and the state& o These groups generall' operate independentl' of direct go)ernment control& Lobb in! o is an atte'pt to in&l#ence polic 'a)ers to adopt a course of action ad)antageous or not detrimental to a particular group or interest& o A lobb ist is a person e'plo ed b a !ro#p. &ir'. or!ani9ation. re!ion. or co#ntr to carr o#t lobb in!& o Lo**'ists in 0russels are increasingl' referred to as interest representati)es&

A rapporte#r o is the >e'ber o& the E#ropean Parlia'ent responsible &or preparin! a report o& one o& the Parlia'ent*s co''ittees" Transparenc o re&ers to the process o& 'a)in! EU doc#'ents and decision$'a)in! processes more open and accessible to the p#blic"

$ 0ut EU depend upon ci)il societ' and politic consensus rather than ad)ersarial !estminster model so consultation *' Commission allow for informal input Cons#ltation cannot be described as an internal Co''ission e,ercise& It allows &or in&or'al inp#t &ro' a ran!e o& %oices and interests& The Co''issionIs strate! &or in%ol%in! interest !ro#ps is two&old" In the earl sta!es o& the polic process. the Co''ission cons#lts as widel as possible ")ia the Internet open forums seminars and conferences%& <#t d#rin! the polic &or'#lation and i'ple'entation process the Co''ission '#st cons#lt the rele%ant e,pert co''ittees "national officials and e,perts% who are there to offer detailed technical ad)ice&

The EU has a s ste'ic dependence #pon or!ani9ed ci%il societ . and the di&&#sion o& power *etween and within its constituent parts res#lts in an orientation towards 6consens#s politiesI as opposed to the ore co petitive politics that often characteri)es the adversarial *est inster odel&

Assistant for Commission- /. ensure draft effecti)el' to achie)e the goal and politicall' accepta*le Commission still master the Te,t The thirt'-three Directorates$ General /DGs0. the Idepart'entsI o& the Co''ission are each responsible &or a partic#lar area o& polic & The te,t o& proposed le!islation that a DG prod#ces has to ser%e two p#rposes2 o it must *e dra&ted e&&ecti%el to achie)e the desired polic' goalsC and o it '#st also be politicall acceptable9the Co''ission will not p#t &orward a te,t #nless it )nows that it has broad s#pport &or a 'eas#re" Thro#!ho#t the le!islati%e process the Co''ission re'ains 'aster o& the te,t of an' proposal for legislation

It is up to Commission to decide whether the amendment I*' CouncilPEU $arliamentJ is adopted Council onl' can amend if act unanimousl' Altho#!h as we will see shortl' the E#ropean Parlia'ent and the Economic and Social Committee "ECOSOC0:a cons#ltati%e bod to the Co#ncil the Co''ission and the E#ropean Parlia'ent9'a propose a'end'ents b#t it is #p to the Co''ission to decide which i& an . o& these a'end'ents are #lti'atel p#t &orward &or adoption either b the Co#ncil alone or in con8#nction with the E#ropean Parlia'ent& The Co#ncil can 'a)e a'end'ents to the proposal onl i& it acts #nani'o#sl "

Although /S ha)e the considera*le power on proposal howe)er in the end the final decision in the hand of Commission The powers and reso#rces o& the DGs %ar considerabl and 'ost polic proposals will *e the res#lt o& coordination between se%eral DGs "take for instance a proposal on energ' which will attract input from /.s dealing with energ' *ut also industr' transport consumers and the en)ironment%& The Co''ission #ses its power o& initiati%e 'ost clearl in areas in which it has e,cl#si%e or shared co'petences "for e,ample competition polic'%& In other areas howe)er the nat#re o& the polic andNor the li'ited capacit of the Co''ission will c#rb its central role in the polic 'a)in! process& The &inal decision as to proposed le!islation still rests with the twent $ei!ht Co''issioners&

Tension *tw /. other EU institutions and national go)t can reduce the Commission(s influence on legislati)e process Naturall' there will be debates and disa!ree'ents a'on! the indi%id#al Co''issioners and their DGs& <#t as with the Ca*inet in the United -ingdom the principle o& collecti%e responsibilit applies which 'eans that a %ote in &a%o#r o& a polic will re&lect the o&&icial position o& the entire Co''ission" A tension can th#s be identi&ied between the Co''issions &or'al power o& initiati%e and the need to cons#lt and cooperate with other EU instit#tions and the national !o%ern'ents which ar!#abl . has red#ced the Co''ission*s in&l#ence in the le!islati%e process"

Co'itolo! assist Co''ission in polic $'a)in! The Co''ission will in the formulation and implementation of polic' liaise with di&&erent co''ittees co'posed o& e,ternal national o&&icials and e,perts in a s'stem called co'itolo! *" @ou will recall from Chapter ; that most EU law-making is not enacted as legislation *' the Council and European $arliament *ut as implementation measures under the e,ecuti)e duties of the Commission& Some legislati)e acts are necessaril' incomplete and re3uire further implementation and monitoring& A s ste' o& co''ittees co%erin! %irt#all all aspects o& EU polic 'a)in! assists the Co''ission in line with a procedure known as comitolog'(& In 677: there were ;;3 s#ch co'itolo! committees&

The co''ittees are &or#'s &or disc#ssion and for proble'$ sol%in! thro#!h scienti&ic e%idence& The' consist o& representati%es &ro' 'e'ber states /&or e,a'ple. scienti&ic e,perts0 and are chaired b the Co''ission"

- /ifficult of committee- act supranational with helping the commission and also intergo)ernmental in represent national interest It is di&&ic#lt to concei%e the instit#tional role o& the co''ittees" o On the one hand the s#pport the Co''ission as a s#pranational entit with enforcing powers2 the Co''ission can ens#re that 'eas#res re&lect the sit#ation in e%er 'e'ber state" o 0ut on the other hand the mem*ers of the co''ittee represent the interests o& the 'e'ber states "c inter go)ernment alism(%2 committees enable the Co''ission to establish dialo!#e with national ad'inistrations be&ore adoptin! i'ple'entin! 'eas#res"

- Committee *est to *e understood as gatekeeper without amendPreAect(s power can refer their different opinion to Commission The' are best #nderstood as 6!ate)eepers* who can neither a'end nor re8ect Co''ission proposals *ut who 'a re&er the' to the Co#ncil i& the proposal is not in accordance with the Co''ittee*s opinion&

- New implementing polic' power and Commission also conferred such power su*Aect to super)ision of committee The Lis*on Treat' draws a new distinction *etween legislati)e acts "Art& 6;: T=EU% delegated acts "Art& 6:7 T=EU% and implementing acts "Art& 6:8 T=EU%& It is possible &or a le!islati%e act itsel& to dele!ate the power" This e'powers the EP in sit#ations o& co$decision" Alternati)el' Article ;32 pro%ides that le!islati%e acts can con&er i'ple'entin! powers on the Co''ission s#b8ect to the s#per%ision o& 6co'itolo! * co''ittees o& representati%es o& the 'e'ber states&

- Although E$ *e put in e3ual foot with Council for new categor' of polic'-implementing decisions *ut did not co)er all comitolog' acti)it' so still less effecti)e >" Stiac)teton7 The de*ate a*out comitolog' ma' seem arcane *ut it raises essential 3uestions a*out the openness and accounta*ilit' of the EU s'stem& The decisions in)ol)ed are not simNpl' technical2 in the earl' 8::7s for e,ample the le)el of controls needed to stop the spread of *o)ine spongiform encephalopath' "0SE or Hmad cow diseaseH% was decided in a comitolog' committee the Leterinar' Committee& All such decisions are taken )er' far from the pu*lic ga4e remaining in the hands of the Commission and national e,perts& Ad)ocating a more powerful role for the E$ was designed therefore to impro)e the transNparenc' of the s'stem&

I&&&J #)er a long period mem*er states did graduall' agree to strengthen the $arliamentHs rights& These mo)es culminated in the Lisbon Treat which placed the EP on an e+#al &ootin! with the Co#ncil &or a new cate!or o& polic $i'ple'entin! decisions. )nown as Idele!ated actsI I#nder Art" ;3B T(EUJ& Gowe)er the decision did not co%er all co'itolo! acti%it and the dispute *etween the institutions continues& The differences of )iew show that the Parlia'ent still e,ercises less$ e&&ecti%e in&l#ence o%er polic $ i'ple'entin! decisions than it does o%er polic $'a)in!"

E" IN(LUENCE O( NATIONAL PARLIA>ENTS ON POLIC1>A-ING The abilit o& national parlia'ents in general and the U$arliament in particular to scr#tini9e polic 'a)in! at EU le%el is anal sed in detail in Chapter C"

(" T=E DECISION$>A-ING PROCESS IN T=E ORDINAR1 LEGISLATIVE PROCEDURE Co-decision legislati)e procedure *tw Council and E$- can *e done fewer than < readings The co$decision le!islati%e proced#re was introd#ced b the >aastricht Treat and e,tended and re%ised b the A'sterda' Treat in 8:::& It is a &ra'ewor) &or ne!otiations between the Co#ncil and the E#ropean Parlia'ent which is set out in Arts ;3H and ;3A T(EU& The procedure pro)ides for a 'a,i'#' o& three parallel sta!es in the European $arliament and Council called 6&irst readin!*. 6second readin!*. and 6conciliation*. or 6third readin!*" Since the A'sterda' Treat "8:::% the proced#re 'a be co'pleted. and a proposal 'a be

adopted in &ewer than three readin!s&

So unlike the U- s'stem in which a 0ill must complete all its stages to *ecome an Act i& the Co#ncil and Parlia'ent reach a!ree'ent earlier in the process the le!islation is adopted witho#t reco#rse to the re'ainin! sta!es"

- $roposal can *e adopted e)en after the first reading Iearl' agreementJ although streamline the process *ut undermine the democratic process Interestingl' this can be done e%en a&ter the &irst readin!" The num*er of these so-called +earl' agreements( has increased considerabl o%er the last ten ears" The ad%anta!e of these earl' agreements is that the can be #sed to consolidate and strea'line e,istin! le!islation& The disad%anta!e is that especiall' in relation to new EU le!islation "such as the EU(s Climate $ackage 677: on emissions cuts renewa*les and energ' efficienc'% the earl a!ree'ents #nder'ine the de'ocratic process&

As a newl elected EP President ?er4' 0u4ek pu*licl' declared that there sho#ld be 6as &ew &irst readin! a!ree'ents as possible* in the future as c#ttin! short the le!islati%e process does not pro%ide &or proper dialo!#e* on the iss#es"

- Lis*on re-la*el co-decision as ordinar' legislati)e procedure I#L$Jconsent from Council and E$ is needed Co-decision was alread' esta*lished as *' far the most important procedure when the Lisbon Treat si!ni&icantl added to the pre)ious fort'-three polic' areas *' including fort' new areas such as agriculture fisheries Austice and home affairs and the *udget and re$labellin! it the ordinar le!islati%e proced#re "#L$%& /Note that the OLP does not co%er Co''on (orei!n and Sec#rit Polic "0 #L$ is *ased on the principle of parit'2 the consent o& both Co#ncil and E#ropean Parlia'ent is re+#ired *efore legislation can *e adopted&

Unlike pre)ious legislati)e procedures #L$ introduces the following inno)ations2 o the E#ropean Parlia'ent is !i%en a third readin! o& le!islationC o the E#ropean Parlia'ent has a %eto ri!ht "which can no lon!er be o%ert#rned b a #nani'o#s Co#ncil%C o in the e)ent of disa!ree'ent between the Co#ncil and the E#ropean Parlia'ent the will ne!otiate the &inal wordin! o& the proposal to!ether in the Conciliation Committee&

- Similar to U- Commission- Ci)il ser)ice related to drafting Council with E$ similar to Commons and Lords in legislati)e role In essence the law$'a)in! process in the EU 'irrors that o& the national s ste's& R" 5atson and R" Corbett7 In London for instance it is the ci%il ser%ice and the !o%ern'ent that dra&t and table le!islation" In <r#ssels that task is per&or'ed b the Co''ission& In the U- the te,t is then e,amined amended and "usuall'% appro%ed b both the =o#ses o& Co''ons and Lords" In the EU that le!islati%e role is !i%en to the Co#ncil and the Parlia'ent&

If the proposal is relati)el' straightforward and these two colegislators can agree on its contents then the te,t ma' *e appro)ed after Aust one reading in each institution& If agreement *etween the two is harder to reach then two or e)en three readings ma' *e re3uired&

Le!islati%e process7 In the following paragraphs we will set out the formal steps of the #L$ In s#''ar 7 o 8st E$ appro)e- Council appro)edthen Act adopted o 6nd E$ appro)e-Council disagreed Iadopt common positionJ- E$ appro)ed- then Act adopted o <rd E$ appro)e- Council disagreed Iadopt common positionJ-E$ amend- Council appro)ed- then Act is adopted o Eth E$ appro)e- Council disagreed Iadopt common positionJ-E$ amend- Council disagree- refer to cc o 5th E$ appro)e- Council disagreed Iadopt common positionJ-E$ amend- Commission disagreeCouncil need unanimous to resurrect- then Act is adopted o Dth E$ appro)e- Council disagreed Iadopt common positionJ-E$ reAect- refer to cc

(irst readin! - No time limit and considered *' committee first *efore $arliament if Council and E$ appro)e then Act is adopted Under the OLP the E#ropean Parlia'ent considers the Co''issions proposal9although the principle of parit' means that the Commission passes its legislati)e proposal to *oth the Council and the European $arliament& <e&ore the E#ropean Parlia'ent the proposal is considered &irst b one of twent' co''ittees "each consisting of *etween twent'-eight and eight'-si, 1E$s% set #p with responsibilit &or di&&erent s#b8ect areas" The co''ittees disc#ss the s#bstanti%e polic o& the proposed 'eas#re consider (ommission and (ouncil proposals and where necessar' appoint one o& their 'e'bers as 6rapporte#r* to draw #p the Co''ittee*s report "which includes amendments

to the te,t% which is then presented to the E#ropean Parlia'ent sittin! in plenar session&

At the first reading stage the Council and European $arliament will agree their respecti)e positions I& Parlia'ent adopts a'end'ents at this sta!e b a si'ple 'a8orit %ote then the Co#ncil appro%es the E#ropean Parlia'ent*s a'end'ents or i& the E#ropean Parlia'ent does not propose an the act can be adopted& I& the Co#ncil does not appro%e of the te,t as appro)ed *' the European $arliament it concl#des its &irst readin! b adoptin! a co''on position. which it sends to the E#ropean Parlia'ent Fsecond readin!G The first reading is not s#b8ect to an ti'e li'its"

Second readin! - Su*Aect to time-limit E$ can adopt reAect or amend The second reading is s#b8ect to strict ti'e li'its" As regards the co''on position "and within three 'onths or &o#r. i& e,tended% the European $arliament ma'2 o adopt it "in which case the act co'es into e&&ect0E o re8ect it "in which case the proposed act will not co'e into e&&ect if )oted *' an absol#te 'a8orit o& >EPs%C or o propose a'end'ents "with an absol#te 'a8orit o& >EPs%&

- E$ is the onl' the parliament can impro)e the te,t although theoreticall' can make radical polic' changes *ut in practice more likel' to success in certain areas Essentiall' the European Parlia'ent is the onl instit#tion that has the opport#nit to 6i'pro%e* the te,t9although it must of course sta within the li'its o& what is !enerall acceptable to the Co''ission and the Co#ncil" In theor it co#ld e%en s#!!est radical polic chan!es. making it a +conditional a!enda setter*" o G"Tsebelis In practice the E#ropean Parlia'ent*s a'end'ents are 'ore li)el to s#cceed if "similar to parliamentar' committees in the domestic conte,t% the' are li'ited to proced#ral chan!es. clari&ications. and scr#tini9in! the 'eas#re" o A'ie -reppel

- Amendment *' the E$ considered *' Commission and Council The new te,t is then sent to the Co''ission and Co#ncil &or consideration& If the Co#ncil re8ects the te,t the OLP is e,ha#sted and the proposal is withdrawn& o Re&er to Conciliation co''ittee I& it appro%es the amendments a +#ali&ied 'a8orit is needed to adopt the amended proposal& I& the Co''ission re8ects the a'end'ents the Co#ncil needs a #nani'o#s %ote to sa%e the proposal&

- E$ had the right to )eto Iif council did not appro)e in the first reading and adopt a common positionJ and Council cannot resurrect *ut rarel' use in practice In the #L$ the E#ropean Parlia'ent has a real %eto "as opposed to a conditional one in the other procedures%C the Co#ncil cannot res#rrect proposed le!islation e%en i& 'inisters #nani'o#sl &a%o#r this. and it will &all" In that case the 'atter 'a be re&erred to the Conciliation Co''ittee& =owe%er the power o& the %eto sho#ld not be e,a!!erated2 in practice the E#ropean Parlia'ent %etoes le!islation %er rarel &

- $ower of )eto rarel' used due to EU legislation result of compromise the )eto power onl' a threat rather than practical uses The reason for this is practical politics2 o EU le!islation "like national legislation% tends to be the res#lt o& co'pro'iseC o power o& the %eto &orces >EPs either to accept or to re8ect a piece of legislation9it does not reco!ni9e shades o& !re " The E#ropean Parlia'ent does not want to alienate other parties b &r#stratin! their ai's and ob8ecti%es and so the )eto is used sparingl' It is thro#!h the threat o& the %eto rather than throu$h the exercise itself that the E#ropean Parlia'ent sec#res its in&l#ence&

Third readin!7 Conciliation - /isagreement *tw Council and E$ refer to CC which contain same no& from E$ and 1inisters In the case of disa!ree'ent between the Co#ncil and the E#ropean Parlia'ent the Conciliation Co''ittee '#st be con%ened within si, wee)s "or eight if e,tended% o& the Co#ncils decision" The Conciliation Co''ittee !ro#ps to!ether twent $ei!ht 'inisterial 'e'bers of the Co#ncil "or their official representati)es% and an e+#al n#'ber o& representati%es &ro' the E#ropean Parlia'ent for the purpose of direct ne!otiations"

- #utcome referred to Council and E$ and must adopt within D weeks The o#tco'e o& the conciliation is &orwarded to the Co#ncil and the E#ropean Parlia'ent for a third readin!" In case of agreement the Co#ncil and E#ropean Parlia'ent '#st adopt the 8ointl established te,t within si, wee)s from appro)al&

- E$ still can reAect or without agreement the proposal is withdraw At this stage the E#ropean Parlia'ent can still re8ect the proposal with an absol#te 'a8orit of the 1E$s "this is sometimes descri*ed as the E#ropean Parlia'ents 6second %eto*%& In the absence o& a!ree'ent the proposal is a#to'aticall withdrawn"

Le!islation process and the le!iti'ac Increase the E$ power impro)e democratic *ut at the same time decrease power of commission and mem*er states =rom a pu*lic law perspecti)e the institutional conse3uences of the #L$ ha)e an impact on democrac' Altho#!h increasin! the powers o& the E#ropean Parlia'ent !oes so'e wa' towards i'pro%in! the &la!!in! de'ocratic credentials of the EU it does so at the e,pense o& the powers o& the 'e'ber states "acting through the Co#ncil% and the Co''ission&

Council can adopted the re)ised te,t after conciliation e)en commission o*Aect The Commissions primar' power to initiate legislation has to *e weighed against the Council or European $arliaments power to amend the proposal& A&ter the conciliation proced#re the Co#ncil 'a adopt a re%ised te,t b +#ali&ied 'a8orit "that is mem*er states( )otes are weighted according the si4e of their populations% e%en the Co''ission ob8ects"

Commission(s legislati)e power is reduced as it is not included in the final stage of decision-making *ut initiati)e power still )er' power as it is much harder to shape the legislation once it has *een formall' pu*lished So does the loss o& the Co''issions in&l#ence and power correspond to a gain for the European $arliamentB #ne school of thought suggests that the e%ol#tion o& the EU*s le!islati%e re!i'e &ro' cons#ltation to co$decisionNOLP has s#bstantiall red#ced the Co''ission*s le!islati%e powers *ecause it is not incl#ded in the &inal sta!es o& decision$'a)in!&

The Co''ission can *e compared to a traditional *ureaucrac' that has the power to initiate le!islation *ut which lac)s an power to deter'ine its &inal content" The co#nter$ar!#'ent is that so lon! as the Co''ission has the ri!ht to initiate le!islation it retains its central a!enda$settin! power beca#se it is '#ch harder to shape le!islation once it has been &or'all p#blished&

#L$- increase the interinstitutional cooperation N" N#!ent7 The ordinar le!islati%e proced#re ill#strates in a specific wa' the !rowth in interinstit#tional cooperation& Amongst its conse3uences it has2 o "8% enco#ra!ed the instit#tions to de%iseN accept a co'pro'ise te,t at an earl le!islati%e sta!eE o "6% increased the need &or the Co#ncil to be sensiti%e to the EPIs %iewsC o "<% 'ade trialo!#e 'eetin!s *etween representati)es of the Commission the Council and the E$ a )ital feature of much EU lawmakingC and

o "E% pro'oted /the alread e,tensi%e0 in&or'al e,chan!es between representati%es o& the instit#tions to sound out positions disco%er what 'a be possible. and identi& areas where pro!ress 'a be 'ade& In short the proced#re has !i%en a power&#l sti'#l#s to a c#lt#ralI chan!e in the relations between the Co''ission. the Co#ncil and the EP that has *een under wa' since the creation of the cooperation procedure *' the SEA At the heart of this cultural change is the notion that the three instit#tions '#st wor) closel with one another and when legislation is *eing made the' must operate on the *asis of a !en#inel trian!#lar relationship"

- EU legislati)e process similar to national 6-cham*er parliament conform to R#L and more accounta*le As a result in a relati)el' short space of time legislati)e politics in the EU has e%ol%ed into so'ethin! that wo#ld be &a'iliar to obser%ers o& two$cha'ber parlia'ents in other democratic political s'stems& The EU(s law-making process is not onl' sophisticated effecti)e and similar to national political s'stems *ut it also satis&ies )e criteria o& the r#le o& law& o Although not as simple and straightforward as law-making in the United -ingdom "which is not alwa's an asset if 'ou think a*out the relati)e ease with which constitutional statutes can *e amended or repealed% co$ decision is a co'prehensible and accessible decision$ 'a)in! proced#re"

o The law$'a)in! instit#tions and proced#res are identi&iable and clear" o In short law$'a)in! in the EU is a slow. transparent. and r#le$!o%erned process& o E%er law is scr#tini9ed b the twent $ei!ht national !o%ern'ents. the directl elected E#ropean Parlia'ent and the technocratic Co''ission& =urthermore as we saw in Chapter ; EU le!islation '#st pass b a hi!h KB$4B per cent %ote "slightl' lower after 678E% and two o& three law$'a)in! instit#tions "the e,ception is the Commission% are acco#ntable either to the people or to their national representati%es& 1oreo)er a 'e'ber state 'a choose to ha%e its national parlia'ent appro%e all EU %otes "like /enmark and Sweden%&

- Ar!#'ent2 Although process is open and transparent *ut most citi4ens still felt distant and comple, R" 5atson end = Corbett7 Polic $'a)in! in the EU presents a parado,& On one hand man' of its core proced#res are open pluralistic consensual and transparent& On the other hand there is %er little p#blic )nowled!e of EU institutions and procedures which for most citi4ens re'ain distant and onl' occasionall' feature on their radar screen& As a result processes that are not necessaril' "much% more ela*orate than e3ui)alent national procedures o&ten appear to o#tsiders to be &ri!ht&#ll co'ple,"

- No rule of EU remained unchanged Contin#e7 EU procedures ha)e also e)ol)ed tremendousl' o)er the last few decades& #f course no procedure could *e hallowed *' centuries of tradition as might *e found in some mem*er states& <#t what is stri)in! abo#t the EU is that %irt#all no proced#re has re'ained #nchan!ed &or 'ore than two decades& That &l#idit is li)el to re'ain"

As the Union has grown *oth in si4e and importance -the num*er of actors seeking to influence encourage *lock or simpl' report on its policies has grown immensel'& As we discussed in this chapter the E$(s standing is further undermined *' low turnouts at elections which potentiall' threatens the legitimac' of the entire law-making process& The response to that charge is that concepts such as legitimac' "with its input output and social dimensions%

and democrac' "within and *e'ond the nation state% def' simple definiNtion and call for more nuanced understandings especiall' in the conte,t of a supranational organi4ation like the EU&

G" INCORPORATING EU LEGISLATION INTO NATIONAL LA5 Regulation /irecti)e /ecision Recommendation as +secondar' legislation( The le!islati%e process res#lts in one o& the &o#r principal t pes o& EU le!islation&

Article ;CC T(EU7 To e,ercise the UnionHs competences the institutions shall adopt regulations directi)es decisions recommendations and opinions& o A re!#lation shall ha)e general application& It shall *e bindin! in its entiret and directl applicable in all >e'ber States& o A directi%e shall be bindin! as to the result to *e achie)ed #pon each >e'ber State to which it is addressed *ut shall lea)e to the national authorities the choice of form and methods& o A decision shall be bindin! in its entiret & A decision which specifies those to whom it is addressed shall be bindin! onl on the'&

o Reco''endations and opinions shall ha)e no *inding force& These &o#r t pes o& le!islation are referred to as +secondar le!islation whereas the treaties are referred to as pri'ar le!islation& !e will *e concerned onl' with the two main t'pes of legislation2 re!#lations and directi%es& #nce the te,t of a re!#lation or directi%e has finall' *een adopted b the Co#ncil o& the EU the ne,t 3uestion is how this secondar le!islation relates to the do'estic le!al s ste'& The stat#s o& re!#lations and o& directi%es is 3uite different&

Re!#lations- 1irectly applicable in domestic Re!#lations a#to'aticall beco'e le!all e&&ecti%e in do'estic law once the' ha)e *een appro%ed b the EU instit#tions in accordance with the TEC& The are 6directl applicable*. meaning that the' re+#ire no &#rther action to create le!al e&&ects" In other words the U- Parlia'ent pla s no role in 6transposin!* the' into U- law& Indeed it 'a be contrar to EU law &or a national !o%ern'ent to #se do'estic le!islation to i'ple'ent a re!#lation e)en if it thinks that it might *e desira*le to do so& o Co''ission % Ital

Directi%es- give time for the member state to implement the directives Directi%es are 6directed* at 'e'ber states not citi4ens or *usinesses and !i%e 'e'ber states discretion to choose the 'ethod b which to i'ple'ent the directi%e" A directi%e re+#ires the United -in!do' and other 'e'ber states to a'end their laws so as to reach the res#lt speci&ied in the directi%e& The process b which this happens is )nown as 6i'ple'entin!*. or 6transposin!*. the directi%e& >e'ber states ha%e a speci&ied ti'e "usuall' twel)e or eighteen months% in which to achie)e this&

0#M 86&88 EMA1$LES #= RE.ULATI#NS AN/ /IRECTILES o Council Regulation No& ;<EP677> on #rganic $roduction and La*elling of #rganic $roducts "replaces Council Regulation "EEC% 67:6P8::8% o Regulation "EC% No& EE<P677: of the European $arliament and of the Council of 6< April 677: setting emission performance standards for new passenger cars as part of the EU(s integrated approach to reduce C76 emissions from light-dut' )ehicles

o Commission Regulation "EC% No& D<8P677: of 8< ?ul' 677: la'ing down detailed rules for the implementation of Anne, I to Regulation "EC% No& >;P677: of the European $arliament and of the Council on the t'pe-appro)al of motor )ehicles with regard to the protection of pedestrians and other )ulnera*le road users amending /irecti)e 677>PEDPEC and repealing /irecti)es 677<P876PEC and 6775PDDPEC o Council /irecti)e 6777P>;PEC of 6> No)em*er 6777 esta*lishing a general framework for e3ual treatment in emplo'ment and occupation o Council /irecti)e 8:::P<8PEC of 6D April 8::: "the Landfill /irecti)e% on the landfill of waste o /irecti)e 677:PD7PEC of the European $arliament and of the Council of 8< ?ul' 677: on the ma,imum design speed of and load platforms for wheeled agricultural or forestr' tractors

- Effect- makes constitutional political and technical changes Re!#lations and directi%es can 'a)e7 o important constit#tional chan!es "for e,ample e+#al treat'ent in e'plo 'ent% and o ha%e &ar$reachin! political conse+#ences "for e,ample settin! e'ission per&or'ance standards &or cars0 o 'ore co''onl deal with hi!hl technical 'atter "for e,ample the 'a,i'#' desi!n speed o& &orestr tractors %&

- Local go)t ma' use primar' and secondar' legislation to implement In the United -ingdom where there is a need to chan!e the law this can *e done b an Act o& Parlia'ent& o =or e,ample the Anti$Terroris' Cri'e and Sec#rit Act ;BB2 implemented certain EU antiterrorism measures while the Cri'e /International Co$ operation0 Act ;BBH i'ple'ented se%eral o#tstandin! EU co''it'ents in the area of police and Audicial cooperation&

>ore co''onl howe)er the go)ernment ma' choose to transpose a directi%e into En!lish law b 'a)in! dele!ated le!islation& o So'e directi%es are tric)ier than others& o Co#ncil Directi%e EECNC3NKLA +on the appro,imation of the laws of the 1em*er States relating to the permissi*le sound le)el and the e,haust s'stem of motor )ehiclesH re+#ired twent $si, separate stat#tor instr#'ents /Sis0 to i'ple'ent it properl " o Onl two Sis were needed to transpose the EC E'plo 'ent Directi%e "/irecti)e 6777P>;PEC% into national law which made unlawful discrimination on the grounds of se,ual orientation and religion or *elief in emplo'ment and )ocational training&

- EU law has no direct effect on U*ut E,ecuti)e can implement it *' delegated legislation *' power conferred *' Act Section ;/;0 applies to 'eas#res o& EU law that are neither directl applicable nor ha%e direct e&&ect& This pro)ision !i%es 'inisters a power to !i%e e&&ect to s#ch 'eas#res b dele!ated le!islation /e"!" Sis0" @ou will recall from Chapter 88 that the dele!ated le!islati%e power incl#des the power to 'a)e s#ch pro%ision as 'i!ht be 'ade b Act o& Parlia'ent" As a result s#ch secondar le!islation 'a a'end an Act o& Parlia'ent "s& 6"E% EC A%& In those cases where Schedule 6 ECA limits the scope of s& 6"6% an Act of $arliament is necessar' to implement the measure&

E#ropean Co''#nities Act 234;. s" ;/;07 Su*Aect to Schedule 6 to this Act at an' time after its passing Ger 1aAest' ma' *' #rder in Council and an' designated 1inister or department ma' *' order rules regulations or scheme make pro)ision9 o "a% for the purpose of implementing an' EU o*ligation of the United -ingdom or ena*ling an' such o*ligation to *e implemented or of ena*ling an' rights enAo'ed or to *e enAo'ed *' the United -ingdom under or *' )irtue of the Treaties to *e e,ercisedC or o "*% for the purpose of dealing with matters arising out of or related to an' such o*ligation or rights or the coming into force or the operation from time to time of su*section "8% a*o)eC

and in the e,ercise of an' statutor' power or dut' including an' power to gi)e directions or to legislate *' means of orders rules regulations or other su*ordinate instrument the person entrusted with the power or dut' ma' ha)e regard to the o*Aects of the EU and to an' such o*ligation or rights as aforesaid&

Other stat#tes also con&er 'ore speci&ic powers on ministers to use delegated legislation to transpose directi)es2 for e,ample s" A4 o& the =#'an Tiss#e Act ;BBA and s" 2LK o& the En%iron'ental Protection Act 233B"

CASE STUD17 T=E RACE DIRECTIVE In this section we will e,amine the Race /irecti)e& =irst we will e,amine the st'listic and su*stanti)e differences *etween the Race /irecti)e and the implementing legislation& The /irecti)e states its *road purpose in Art& 8 *efore defining ke' concepts "+discrimination and +harassment(% in Art& 6& C#UNCIL /IRECTILE 6777PE<PEC of 6: ?une 6777 implementing the principle of e3ual treatment *etween persons irrespecti)e of racial or ethnic originD7 Articie 8 $urpose The purpose of this /irecti)e is to la' down a framework for com*ating discrimination on the grounds of racial or ethnic origin with a )iew to putting into effect in the 1em*er States the principle of e3ual treatment& Article 6 Concept of discrimination o =or the purposes of this /irecti)e the principle of e3ual treatment shall mean that there shall *e no direct or indirect discrimination *ased on racial or ethnic origin& o =or the purposes of paragraph 82

direct discrimination shall *e taken to occur where one person is treated less fa)ourNa*l' than another is has *een or would *e treated in a compara*le situation on grounds of racial or ethnic originC indirect discrimination shall *e taken to occur where an apparentl' neutral pro)ision criterion or practice would put persons of a racial or ethnic origin at a particular disadN)antage compared with other persons unless that pro)ision criterion or practice is o*Aecti)el' Austified *' a legitimate aim and the means of achie)ing that aim are approNpriate and necessar'& o Garassment shall *e deemed to *e discrimination within the meaning of paragraph 8 when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of )iolating the dignit' of a person and of creating an intimidating hostile degradNing humiliating or offensi)e en)ironment& In this conte,t the concept of harassment ma' *e defined in accordance with the national laws and practice of the 1em*er States& o An instruction to discriminate against persons on grounds of racial or ethnic origin shall *e

deemed to *e discrimination within the meaning of paragraph 8& As we ha)e mentioned implementing legislation is re3uired for a directi)e& The mem*er states were re3uired to transpose the Race /irecti)e into domestic law *' 8: ?ul' 677<& 1uch of the necessar' legislation was alread' a)aila*le domesticall' in the form of the Race Relations Act 8:>D& 0ut where additional changes to the law were needed to complete transposition of D7 I6777J #? L8;7P66& & Aie p ace /irecti)e these were supplied *' the Race Relations Act "Amendment% Regulations :3o< "SI 677<P8D6D% "cthe 677< Regulations(%& Race Relations Act "Amendment% Regulations 677< "SI 677<P8D6D% s& < Racial discrimination o In section 8 of the 8:>D Act "racial discrimination% after su*section "8% insert O"8 A% A person also discriminates against another if in an' circumstances rele)ant for the purNposes of an' pro)ision referred to in su*section "80% he applies to that other a pro)ision criterion or practice which he applies or would

appl' e3uall' to persons not of the same race or ethnic or national origins as that other *ut which puts or would put persons of the same race or ethnic or national origins as that other at a particular disad)antage when compared with other persons which puts that other at that disad)antage and which he cannot show to *e a proportionate means of achie)ing a legitimate aim&O Section <"8A% translates the a*stract concepts of direct and indirect discrimination in the /irecti)e into a specific scenario& A discriminates against 0 on grounds of race if su*secNtions "a% and "*% appl' and A cannot show that he or she is pursuing a legitimate aim using proportionate means& The same process of transposition is )isi*le in relation to +harassment(& /irecti)es t'piNcall' contain an element of discretion& In this case Art& < of the /irecti)e allows for the concept of harassment to *e defined cin accordance with the national laws and practice of the 1em*er States79 *ut the same pro)ision deems it to *e a form of discrimination if certain conditions are met& These conditions

are cited )er*atim in s& 5"<A% of the 677< Regulations& Race Relations Act "Amendment% Regulations 677< "SI 677<P8D6D% s& 5 Garassment o After section < of the 8:>D Act insert - Garassment <A& "8% A person su*Aects another to harassment in an' circumstances rele)ant for the purNposes of an' pro)ision referred to in section 8 "80% where on grounds of race or ethnic or national origins he engages in unwanted conduct which has the purpose or effect of )iolating that other personHs dignit' or creating an intimidating hostile degrading humiliating or offensi)e en)ironment for him& European Union Committee on EU $roposals to Com*at /iscrimination Ninth Report GL $aper D; <7 ?une 6777 Lord Lester of Geme Gill "col& 88:<% !e are Austl' proud in this countr' of the fact that we were the first to introduce legislaNtion to tackle racial discrimination in the areas co)ered *' our Act with the Commission for Racial E3ualit' to *e the strategic enforcement agenc'& 0ut in some

respects the directi)e impro)es upon our own legislation& It is not a complete car*on cop'& The concept of indirect discrimination in Section 8"8 %"*% of our Act is e,pressed in narrowl' technical language more like an alge*raic theorem of Euclid or an income ta, Act than a human rights measure& In m' )iew the directi)e impro)es upon that with a more generous concept which tackles the real pro*lems of discrimination& As Lord Lester notes the Race /irecti)e modifies the categories of indirect racial discrimiNnation& The first categor' was created *' the Race Relations Act 8:>D and is on grounds of colour or nationalit'& The second was introduced *' the Race Relations Act "Amendment% Regulations 677< to compl' with the Race /irecti)e and is on grounds of race ethnic or national origin& According to Art& 6"6%"*% of the /irecti)e indirect discrimination occurs c where an apparentl' neutral pro)ision criterion or practice would put persons of a racial or ethnic origin at a particular disad)antage compared with other persons unless that pro)ision criterion or practice is o*Aecti)el' Austified *' a legitimate aim and the means of achie)ing that aim are appropriate and necessar'H&

=or e,ample a department store that *ans persons wearing headgear might *e sued for race discrimination& Although the rule is neutral as to race on its face it has the practical effect of e,cluding for e,ample Sikh men and *o's who wear a tur*an or ?ewish men or *o's who wear a 'armulka in accordance with practice within their ethnic or religious group& A claimant who can show that mem*ers of a parNticular ethnic group are put at a disad)antage( *' such a rule makes a prima facie case of discrimination& Using delegated legislation has o*)ious ad)antages for the go)ernment2 gi)en the alread' o)ercrowded legislati)e timeta*le for 0ills in $arliament it would *e impossi*le to use primar' legislation to transpose all directi)es& The downside is that delegated legislation recei)es less parliamentar' scrutin' than 0ills& In particular there is little opportunit' to de*ate draft delegated legislation and mem*ers of $arliament "1$s% ha)e no opportunit' to make amendments9onl' to appro)e or reAect it as it stands& Critics "including some 1$s% argue that in this respect the U$arliament is hardl' more than a con)e'or *elt2 it has little choice *ut

to incorporate the contents of directi)es precisel'& Although the Ugo)ernment has the right to choose the +forms and methods( of achie)ing the o*Aecti)es of a directi)e in practice this ma' lea)e little room for manoeu)re& 6 !ould the situation change if a maAorit' of 1$s were to *e against implementing the /irecti)eB <& Suppose that the U- go)ernment had )oted against the adoption of the /irecti)e in the Council of 1inisters *ut had *een out)oted& /o 'ou think that the adoption of the /irecti)e would then *e undemocraticB Gow can it *e AustifiedB The Race /irecti)e also pro)ides an illustration of how the EU legislati)e process operates including the role of the U- $arliament and what happens in cases in which the /irecti)e has not or has *een improperl' transposed into national law& The first step is to consider the legal *asis of the Race /irecti)e& Article 8: T=EU I&& &TJhe Council acting unanimousl' on a proposal from the Commission and after consulting the European $arliament ma' take appropriate action to com*at discrimination *ased on se, racial or ethnic origin

religion or *elief disa*ilit' age or se,ual orientation& Article 8: T=EU does not its elf prohi*it discrimination on these gi)en groundsC instead it is designed to ena*le the EU to adopt measures to com*at discrimination on the grounds listed and within the o)erall framework of the Treat'& Using Art& 8: T=EU as the legal *asis the EU adopted in 6777 a package of antidiscrimination measures consisting of two directi)es9 the Race /irecti)e "6777PE<PEC% and EC E3ual Treatment =ramework /irecti)e "6777P>;P EC%9 and an anti-discrimination action programme to run from 6778 to 677D& The Treat' of Nice which came into force on 8 =e*ruar' 677< reinforced Art& 8< TEC which now pro)ides for the adoption of incenti)e measures countering discrimination to *e adopted *' the Council *' K1L& The Race /irecti)e was adopted in ?une 6777 *' the Council& Although Art& 8: T=EU is clearl' ground*reaking in terms of polic' de)elopment the space that it gi)es to the three main EU institutions cannot *e said to facilitate the adoption of new measures& The Commission is permitted *ut not o*liged to actC measures re3uire unanimit' in the Council which is

e,tremel' difficult to attainC and the European $arliament has onl' a consultati)e role in implementing Art& 8: T=EU not the co-decision role that we ha)e outlined& .i)en the normall' slow process of EU law-making it is surprising how 3uickl' the Race /irecti)e was adopted& #ne plausi*le reason is that the EU wanted to respond to the electoral success of the right-wing =reedom $art' in Austria in =e*ruar' 6777 with a legislati)e gesture that committed itself to com*ating racism& <& !hich /. was primaril' responsi*le for the measureB Gow man' /.s were associatedB o !hat was the Commissions position to the European $arliament(s amendments after the single readingB o /o 'ou think it is right that such an important and far-reaching piece of legislation "some mem*er states had to introduce new antidiscrimination legislation create a *od' for the promotion of e3ual treatment of all persons and redefine direct and indirect discrimination and harassment in their national law% was rushed throughB

alter their e,isting laws& The mem*er states ma' re3uest an additional period of up to three 'ears co *ring their legal s'stems into line with the pro)isions on disa*ilit' and age& If the Commission *elie)es that a mem*er state has *reached EU law it is entitled to initiate an +infringement procedure( under Art& 65; T=EU #nce the deadline for meeting the transposition of a directi)e into national law has elapsed one of two9or e)en *oth9 preliminar' processes will *e launched *' the European Commission that aim to resol)e the issue as 3uickl' as possi*le with the mem*er state in 3uestion& Under +non-communication( a mem*er state will *e notified that it has failed to comNmunicate to the European Commission its national measures implementing the EC legislation *' the re3uired deadline for transposition& The mem*er state will initiall' *e gi)en a two-month phase within which to communicate its reasons& Under +non-conformit'( a mem*er state will *e notified *' the European Commission that its national measures do not conform with the /irecti)e& The mem*er state will *e

gi)en a reasona*le time *' the European Commission to esta*lish conformit' in its legislation& In ?ul' 677E the Commission announced that it was taking legal action against Austria .erman' =inland .reece and Lu,em*ourg for failing to pass all of the necessar' national measures to introduce amend or update their e3ualit' legislation& Either no legislation had *een passed or communicated to the Commission or gaps in the legislation had left the transposition incomplete& #n 6E =e*ruar' 6775 =inland and Lu,em*ourg were found *' the EC? to ha)e failed in their o*ligations under the /irecti)e& Although all of the mem*er states e)entuall' transposed the /irecti)e into national law the Commission as +.uardian of the Treaties( studies the 3ualit' of the implementing national legislation in detail to see if it correctl' reflects the re3uirements of the /irecti)e& If the Commission is unhapp' with the wa' in which a mem*er state has implemented a directi)e it commences a two-step infringement procedure under Art& 65; T=EU& =irst the Commission sends a +letter of formal notice( e,plaining wh' it thinks the mem*er state has incorrectl' implemented the /irecti)e into its

national law& The mem*er state then has two months within which to repl'& If it does not repl' or if the Commission is not con)inced *' the repl' the Commission can go to the ne,t step of the infringement procedure *' sending a +reasoned opinion(& This sets out in much more detail the legal arguments& #n 6> ?une 677> the Commission followed the second step *' announcing that it had sent formal re3uests to fourteen mem*er states to implement the Race /irecti)e full'& Again the countries concerned9 Spain Sweden the C4ech Repu*lic Estonia =rance Ireland the United -ingdom .reece Ital' Lat)ia $oland $ortugal Slo)enia and Slo)akia9were gi)en two months in which to respond& If after two months the Commission still thinks that the mem*er state has incorrectl' transposed the /irecti)e it can at this point refer the case to the EC? in Lu,em*ourg& If the EC? upholds an infringement case it ma' impose a financial penNalt' on the mem*er state in 3uestion under Art& 6D7 T=EU which can 3uickl' run into milNlions of euros per da' during which the mem*er state fails to compl' with the EC?(s ruling&

The Race /irecti)e sets out minimum re3uirements& 1em*er states ma' therefore pro)ide for a higher le)el of protection against discrimination in national legislation& In the followNing case the EC? had to interpret the Race /irecti)e in a reference from a 0elgian la*our court& The Centre for E3ual #pportunities and Com*ating Racism "a *od' charged with the promotion of e3ual treatment in 0elgium% *rought proceedings against a compan' called =irma =er'n which speciali4ed in the sale and installation of doors& #ne of its directors had stated pu*licl' on national tele)ision that his compan' was not going to recruit +immigrants< *ecause their customers did not want 1oroccans in their homes to install the doors& It should *e noted that there was no e)idence that the compan' had in fact reAected a Ao* applicant on the *asis of race or ethnicit' The 3uestion *efore the EC? was whether the pu*lic stateNment amounted to direct discrimination and whether the compan' had infringed the Race /irecti)e which had *een implemented in 0elgian Law against /iscrimination 677<& The U- and Irish go)ernments inter)ened in the case arguing that there could *e no direct

discrimination *ecause "a% the compan' had not acted on its discriminator' stateNments and "*% there was no identifia*le )ictim of discrimination& Case C-5EP7> Centrum )oor geiiAkheid )an kansen en )oor racisme*estriAding w =irma =er'n NLf ?udgment of 87 ?ul' 677; I68J !ith regard to the first and second 3uestions Ireland and the United -ingdom of .reat 0ritain and Northern Ireland maintain that it is not possi*le for there to *e direct discriminaNtion within the meaning of /irecti)e 6777PE< so that the directi)e is inapplica*le where the alleged discrimination results from pu*lic statements made *' an emplo'er concerning its recruitment polic' *ut there is no identifia*le complainant contending that he has *een the )ictim of that discrimination& I6EJ The o*Aecti)e of fostering conditions for a sociall' inclusi)e la*our market would *e hard to achie)e if the scope of /irecti)e 6777PE< were to *e limited to onl' those cases in which an unsuccessful candidate for a post considering himself to *e the )ictim of direct discrimiNnation *rought legal proceedings against the emplo'er&

I65J The fact that an emplo'er declares pu*licl' that it will not recruit emplo'ees of a certain ethnic or racial origin something which is clearl' likel' to strongl' dissuade certain candiNdates from su*mitting their candidature and accordingl' to hinder their access to the la*our market constitutes direct discrimination in respect of recruitment within the meaning of /irecti)e6777PE<& The e,istence of such direct discrimination is not dependant on the iden-tification of a complainant who claims to ha)e *een the )ictim& I6;J In the light of the foregoing the answer to the I3uestionJ must *e that the fact that an emplo'er states pu*licl' that it will not recruit emplo'ees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Art 6"6%"a% of /irecti)e 6777PE< such statements *eing likel' strongl' to dissuade certain candidates from su*mitting their candidature and accordingl' to hinder their access to the la*our market& The EC? accepts the definition of direct discrimination in the Race /irecti)e as a situation in which +one person is treated less fa)oura*l' than

another I&&&J in a compara*le situation& There did not alwa's ha)e to *e an identifia*le complainant for a claim to come within the scope of the /irecti)e& Such a re3uirement would *e contrar' to the o*Aecti)e of the /irecti)e which is +to foster conditions for a sociall' inclusi)e la*our marketH& As a result the emplo'er was guilt' of direct discrimination in respect of recruitment *ecause such statements were likel' strongl' to dissuade certain candidates from su*mitting their canNdidature and accordingl' to hinder their access to the la*our market9e)en though no particular claimant could *e identified& The =irma =er'n case raises interesting issues a*out the scope of direct discrimination and the enforcement powers of e3ual treatment *odies such as the E3ualit' and Guman Rights Commission "EGRC%& In the United -ingdom it is alread' unlawful to pu*lish ad)ertiseNments that indicate an intention to discriminate and the EGRC is e3uipped with )arious enforcement powers under the Race Relations Act 8:>D and E3ualit' Act 677D in respect of discriminator' ad)ertisements

discriminator' practices and in circumstances in which it thinks that a person is likel' to commit an unlawful act& 0ut the EGRC does not ha)e the legal standing to *ring proceedings in cases in which there is no complainant& Indi)idual complainants must therefore issue proceedings in response to an emplo'ers pu*lic stateNments of its discriminator' recruitment polic'& TGE RACE /IRECTILE IN TGE UNITE/ -IN./#1 In the United -ingdom the go)ernment drafted the Race Relations Regulations 677< designed to amend the definitions of indirect discrimination and harassment contained in the Race Relations Act 8:>D& In April 677> the UCommission for Racial E3ualit' preNsented a written memorandum to the Select Committee on European Union in which it )oiced support for the new policies of the EU& U- Commission for Racial E3ualit' !ritten 1emorandum to the Select Committee on European Union "April 677>% o #f most significance for the CRE "and most likel' for the CEGR% is the EC proposal to e,tend and reinforce its e3ual opportunities

polic'& New initiati)es designed to pre)ent and com*at discrimination outside of the la*our market are welcomed in particular especiall' for those areas of e3ualit' which currentl' do not enAo' the same le)el of protection against discrimination pro)ided in the EU Race /irecti)e "6777PE<PEC%& o The CRE considers that religion *elief disa*ilit' age and se,ual orientation all merit simiNlar le)el and scope of protection as pro)ided for in the EU Race /irecti)e& Indeed the CRE has considera*le e,perience of working on religious discrimination and therefore considers that a Ole)eling upO of other grounds including religion is important& In this regard the Uhas alread' gone further in the direction of Hle)eling upH of all grounds of discrimination I&&&J& 0ut other sections of the pu*lic were hostile to the new measure *ecause it was percei)ed to harm *usiness interests and U- social polic'& Euro sceptics argued that the /irecti)e re)ersed the *urden of proof in cases in)ol)ing discrimination in the workplace and that emplo'ers would *e +forced to pro)e( their innocence in

court& A spokesperson for the former EU Commissioner for Emplo'ment and Social Affairs Anna /iamatopoulou e,plained2 Tt is a shift in the *urden of e)idence& The claimant still has to come up with a solid factual case to get the process going&H 0ut the /irecti)e clearl' puts the onus on the accused to pro)e his or her innocence +once the complainant has esta*lished facts from which a court or tri*unal can presume discrimination& The Conser)ati)e $art' argued that the /irecti)e would fuel a compensation culture( *' tilting the *alance in fa)our of third-part' organi4ations and lo*N*ies "for e,ample )ictim groups% to file race discrimination lawsuits on *ehalf of claimants& The /ail' Telegraph claimed that the /irecti)e was +the most dramatic e)idence to date of the EU(s sweeping new powers to dictate social polic'H&D< D< Am*rose E)ans-$ritchard and .eorge ?ones +=irms forced to pro)e the' are not racist( /ail' Telegraph 8: 1a' 6777& Gie European Union Committee on EU $roposals to Com*at /iscrimination was de*ated in the Gouse of Lords on

<7 ?une 6777 and offers a contrasting perspecti)e& European Union Committee on EU $roposals to Com*at /iscrimination Ninth Report GL $aper D; Lord !allace of Saltaire "cols 88>:;7% 1' Lords some large issues of principle lie *ehind the directi)es2 first the e,pansion of EU Aurisdiction )ersus the principle of su*sidiarit'C secondl' accepta*le degrees of di)ersit' of national cultures and practices against the desira*ilit' of uniform standards across the sinNgle market and the wider European Communit'C thirdl' the accepta*ilit' and legitimac' of Europe-wide rules on such sensiti)e issues as discrimination o)erriding national legislation and different national traditionsC and fourthl' accepta*le )ariations in the implementation and enforcement of common rules once agreed& I hope that in future Ger 1aAest'Hs .o)ernment will ensure that the 3uestion of how those rules are to *e implemented and enforced in all mem*er states will *e discussed as much as is the principle of the legislation& The fifth point is the desira*ilit' of sufficient fle,i*ilit' in defining such )er' comple, concepts

as discriminaNtion disa*ilit' social ad)antage or genuine occupational 3ualification )ersus the dangers of legal uncertaint' and Hfu44'H law which threaten to condemn go)ernments and companies to 'ears of e,pensi)e litigation *efore national and European courts& !e approached the in3uir' cautiousl' and in some cases e)en scepticall'& Ne)ertheless as a whole the committee welcomed *oth the race directi)e and with a num*er of further 3ualifications the intentions *ehind the framework directi)e& =or me the e)idence recei)ed from the C0I was the most persuasi)e& The C0I stated in its written e)idence2 H#ur mem*ers *elie)e that the directi)es meet the su*sidiarit' and proportionalit' tests and deser)e support& The directi)es address genuinel' transnational issues and will help complete the single market& .uaranteeing common le)els of protection throughout Europe will help tackle unfair competition and make it easier for European citi4ens to work a*road and mo)e freel' *etween mem*er statesH& The C0I which is not e,actl' a Leftwing organisation went on to sa'2

The U- has one of the most comprehensi)e s'stems of discrimination law in Europe I&&&J Significant e,perience in this area means the U - is well placed to lead the de*ate in Europe and our priorit' should *e to ensure that the directi)es create a clear and workNa*le frameworkH& I&&&JThe race directi)e largel' follows 0ritish legislation& !e ha)e *een assured that its impleNmentation will re3uire onl' minor amendments to 0ritish legislation& The num*er of 0ritish citi4ens who work elsewhere in the EU or who tra)el across the EU for stud' or leisure continues to rise 'ear *' 'ear& The e,tension of ci)il li*erties protection across the EU is therefore clearl' in 0ritainHs interests and will ensure that other states *ring their domestic law and practice up to the standard alread' in place in the United -ingdom and in particular in Ireland and the Netherlands& Under the Race /irecti)e all mem*er states must also ha)e or create a speciali4ed *od' for the promotion of e3ual treatment on grounds of race and ethnic origin& The /irecti)e re3uires as a minimum that the *od' *e a*le to gi)e independent assistance to )ictims

of discrimination conduct independent sur)e's concerning discrimination pu*lish indeNpendent reports and make recommendations on discrimination issues& Three commissions e,isted in the United -ingdom at the time2 the E3ual #pportunities Commission "created under the Se, /iscrimination Act 8:>5%C the Commission for Racial E3ualit' "esta*lished *' the Race Relations Act 8:>D%C and the /isa*ilit' Rights Commission "set up *' the /isa*ilit' Rights Commission Act 8:::%& #n 8 #cto*er 677> the three e3ualNit' commissions merged into the new E3ualit' and Guman Rights Commission "esta*Nlished under the E3ualit' Act 677D%& It is a non-departmental pu*lic *od' "N/$0% which means that it is accounta*le for its pu*lic funds *ut independent of go)ernment& The new Commission has not onl' taken o)er the work of the three pre)ious e3ualit' commissions *ut has also taken on responsi*ilit' for the other aspects of e3ualit'2 ageC se,ual orientationC and religion or *eliefC as well as human rights& The EU is not solel' responsi*le for the Commission(s creation *ut it did put the +sinNgle e3ualit' *od'( on the political agenda& The second E3ual

Treatment /irecti)e in 6777 re3uired mem*er states to enact legislation prohi*iting discrimination in emplo'ment on grounds of age disa*ilit' se,ual orientation and religion and *elief& It had to *e transposed *' mem*er states into their national law *' 6 /ecem*er 677<& The /irecti)e2 o prohi*its discrimination in the la*our market on grounds of religion and *elief disNa*ilit' age and se,ual orientationC o pro)ides the same *asic rights of protection as the Race /irecti)eC and o re3uires emplo'ers to make reasona*le adAustments to cater for the needs of a person with a disa*ilit' who is 3ualified to do the Ao* in 3uestion& Such adAustments ma' for e,ample *e to workplaces working patterns or the distri*ution of tasks among emplo'ees& The United -ingdom(s /epartment of Trade and Industr' "/TI% pu*lished a .reen $aper on implementation of the /irecti)e entitled Towards E3ualit' and /i)ersit' "6778%& The .reen $aper made the case for merging the e,isting e3ualit'

commissions into a single e3ualit' *od'& The E3ualit' Act 677D created the Commission on E3ualit' and Guman Rights "CEGR% which has responsi*ilit' for all si, e3ualit' grounds "age disa*ilit' gender proposed commenced or completed gender reassignment race religion or *elief and se,ual orientation%& S& =redman HE3ualit'2 A new generationBH "6778% <7 Industrial Law ?ournal 8E5-D; 8D; The EU assumption of responsi*ilit' for ensuring that 1em*er States take measures to com*at discrimination on grounds of race ethnic origin religion age disa*ilit' and se,ual orientation is a welcome if *elated de)elopment& Gowe)er a closer look at the pro)isions has re)ealed that the su*stanti)e content has incorporated man' of the limitations familiar to domestic law& In particular the method of categorisation of groups and the definitions of discrimination remain pro*lematic& Ne)ertheless there is an e,plicit in)itation within the directi)es for 1em*er States to take the law further& #ne such step is *eing taken within U- legislation& The imposition of a positi)e dut' within U- race

discrimination legislation represents a significant reinforcement of e,isting attempts to create a new generation of e3ualit' laws& Although the details of this dut' remain distur*ingl' )ague and its aims remain unformulated this is certainl' the direction of the future&R KUESTI#NS o !h' is the legislati)e process for making EU regulations and directi)es so comple,B o !hat is the relati)e power of the European Commission the Council of the European Union and the European $arliament in the law-making processB o /oes the Commission act at the *ehest and under the control of the mem*er states or is it an indi)idual and autonomous actor in the polic'making processB o The Council em*odies the recurrent tension in the construction of the European Union *etween the supranationalists and the intergo)ernmentalists& !h'B o !h' did the Commission choose the form of a directi)e rather than a regulation in its attempt to com*at racismB

o Is the Race /irecti)e contro)ersialB =ind arguments *oth for and against& o /o 'ou think that =irma =er'n was decided correctl'B !h' did the United -ingdom and Ireland inter)ene in this caseB 5 =URTGER REA/IN. 0ache I& .eorge S& and 0ulmer S& The $olitics in the European Union <rd edn "6788 #,ford2 #U$% 0ogdanor L& Imprisoned *' a /octrine2 The 1odern /efence of $arliamentar' So)ereignt'5 "6786% <6"8% #,ford ? Legal Studies 8>:-8:5 Craig $& The Lis*on Treat'2 Law $olitics and Treat' Reform "6787 #,ford2 #U$% /ougan 1& +The Treat' of Lis*on 677>2 !inning minds not hearts( "677;% E5"<% Common 1arket Law Re)iew D8>->7< 1aurer A& and !essels !& National $arliaments on Their !a's to Europe2 Losers or LatecomersB "6778 0aden0aden2 Nomos% $iris ?&-C& The Lis*on Treat'2 A Legal and $olitical Anal'sis "6787 Cam*ridge2 Cam*ridge Uni)ersit' $ress%

Tse*elis .& and .arrett .& +The institutional foundations of intergo)ernmentalism and supranationalism in the European Union( "6778% 55"6% International #rgani4ation <5> !allace G& $ollack 1&A& and @oung A&R& "eds% $olic'-1aking in the European Union Dth edn "6787 #,ford2 #U$%& #NLINE RES#URCE CENTRE =urther information a*out the themes discussed in this chapter can *e found on the #nline Resource Centre at www&o,fordte,t*ooks&co&ukPorcP lesueur6ePR o & CASE STU/@2 !GAT GA$$ENS !GEN TGE C#11#NS AN/ L#R/S /ISA.REE


o In a *icameral parliamentar' s'stem rules are needed a*out the relati)e powNers of each cham*er of the legislature& In some constitutions each Gouse has e3ual power and the consent of*oth is re3uired for legislation& This is not so in the United -ingdom where the Commons "domi-nated *' the go)ernment% has power to disregard the )iews of the Lords and present a 0ill for ro'al assent& !hat are the Austifications for this arrangementB !hat are the limits on the Commons( a*ilit' to push through legislationB o In the United -ingdom these rules are partl' in the form of a constitutional con)ention "the +Salis*ur'-Addison con)ention% and partl' in legislation "the $arliament Act 8:88 as amended *' the $arliament Act 8:E:%& This chapter e,plores the differences and similarities *etween these two differNent kinds of constitutional norm& o /uring the passage of a 0ill the Salis*ur'-Addison con)ention is that the Lords will gi)e a Second Reading to a manifesto 0ill( and a)oid making wrecking

amendments( that change the go)ernment(s manifesto intention& o If at the end of the legislati)e process there is deadlock*etween the Commons and Lords the $arliament Acts allow a 0ill to recei)e ro'al assent without the agreement of the Lords& This mechaNnism has *een used on onl' a handNful of occasions since it was created in 8:889*ut alwa's in highl' contentious circumstances& o This chapter also e,amines the role of the courts in regulating disputes *etween the Commons and Lords& The courts ha)e no remit to adAudicate on *reaches of constitutional con)ention& In the Attorne' .eneral ) ?ackson litiNgation "677E-75% a prohunting presNsure group sought to challenge the legal )alidit' of the Gunting Act 677E "*anNning hunting in England and !ales% which had recei)ed ro'al assent under the $arliament Acts& This pro)ided the courts with an opportunit' to conNsider the longrunning de*ate o)er the nature of legislation enacted without the Lords( consent& Some commentaNtors suggest that it opens the door to future courts

modif'ing the principle of parliamentar' supremac'& 0#M 86&D LE.AL CGALLEN.ES T# EU TREATIES IN TGE UNITE/ -IN./#1 S In 8:>8 Ra'mond 0lack*urn a litigant in person well known for *ringing legal actions a*out constitutional matters attempted to pre)ent the United -ingdom from acceding to the Communit'& Ge sought a declaration that the go)ernment would *e acting unlawfull' if it were to sign the Treat' of Accession to the EC& In essence his argument was that the go)ernment would *e surrendering +the so)ereignt' of the Crown in $arliamentH& The Court of Appeal struck out his action&8: T =inanced *' the *illionaire *usinessman Sir ?ames .oldsmith Lord Rees-1ogg a cross-*ench peer and former editor of The Times applied for Audicial re)iew against the =oreign Secretar' the da' *efore the 0ill incorporating the 1aastricht Treat' was to recei)e ro'al assent in ?ul' 8::<&67 The application *' Rees1ogg was peremptoril' dismissed *' the Gigh Court so lea)ing the wa' clear for the Crown to proceed with ratification

8: 0lack*urn ) Attorne' .eneral I8:>8J 8 !LR 87<>& 67 R ) Secretar' of State of State for =oreign and Commonwealth Affairs e, parte Rees-1ogg I8::EJ K0 556& See further R& Rawlings +Legal politics2 The United -ingdom and ratification of the Treat' on European Union "$art Two%5 I8::EJ $u*lic Law <D>-:8C .& 1arshall cThe 1aastricht Treat' proceedings( I8::<J $u*lic Law E76& The a)erage EU-wide turnout was E< per cent which was the lowest since the first direct elections to the European $arliament in 8:>:& Although turnout actuall' rose in se)en coun-tries and was lower in Eastern than in !estern Europe almost e)er'where turnout was far *elow le)els in national elections& 1oreo)er )oters in European elections tend to focus mainl' on national issues not European ones& A stead' decline of turnout and interest o)er thirt' 'ears is a maAor concern not onl' for national and European politicians *ut also for the legitimac' of the institution itself& In a *ar*ed comment the .erman Court added that the European $arliament +cannot and need not I&&&J compl' with the re3uirements that arise on the state le)el from the citi4ens e3ual

political right to )ote&E6 This can mean either E6 I*id& KUESTI#NS o A group of 1$s *elie)e that ethnic minorities should *e treated +differentl'( in emplo'ment situations& Is there an'thing that the' can do to pre)ent the SI from transposing the Race /irecti)eB