The Co-decision procedure is split up, if no immediate agreement can be found, in three phases:
Before the entry into force of the Lisbon Treaty, the co-decision procedure applied to nearly 70% of the legislative procedures and basically covers all of the areas requiring at least a qualified majority in the Council with the exception of the common agricultural policy and commercial policy.
However, it did not apply to several important areas that require unanimity in the Council, for example fiscal policy.
With entry into force of the Lisbon Treaty, co-decision now covers 40 additional areas (making it a total of 83 areas) and is therefore considered as the “ordinary legislative procedure”, as opposed to the “special legislative procedures”.
Documents that must undergo co-decision are marked with the code “COD”.
STEP 1: Commission Proposal
Under Co-decision, the Commission has the right of initiative and issues a proposal, which is sent to the European Parliament and the Council, both institutions working in parallel in analyzing and amending this proposal.
It must be noted that the Economic and Social Committee (ESC) and the Committee of Regions (CoR) must be consulted by the Commission and the Council where the Treaty requires it or if they deem it to be appropriate. In such cases, in order to avoid unnecessary delays, the Council or the Commission can set time limits for the submission of opinions. Moreover, the ESC and CoR can issue an opinion at their own initiative, or at a request of the European Parliament.
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STEP 2: First Reading in Parliament
The European Parliament delivers an opinion at first reading. There is no set time limit for the European Parliament to give its opinion but, on average, this phase lasts for eight months, with longer timelines depending on the technical or political complexity of the dossiers.
This opinion is prepared at two levels:
- At Parliamentary Committee level
- At Plenary level.
At Parliamentary Committee level:
When the Commission text reaches Parliament, the parliamentary committee responsible is named, along with any other committees which are asked for an opinion, and within this Committee, the political groups’ coordinators designate a Rapporteur entrusted with the drafting of the Report containing the proposed amendments, if any, put forward by the European Parliament. Other political groups may also appoint a “Shadow rapporteur”, who will be responsible for preparing the group’s position and monitoring the work of the rapporteur.
The parliamentary committee meets several times to study the draft report prepared by the Rapporteur, as well as amendments put forward by other MEPs. These amendments, together with those proposed by the parliamentary committees asked for an opinion, are put to the vote in the parliamentary committee responsible, on the basis of a simple majority.
Adoption in plenary
Once the report is adopted at Committee level, it goes to plenary. Additional amendments to the report, including amendments adopted in parliamentary committee, may be tabled by political groups or at least 37 Members and put to the plenary’s vote. As a general rule, the deadline for tabling new amendments in plenary is noon on the Thursday of the week preceding the session.
Plenary sessions follow a set script with strict limits on speaking times. Ahead of the vote, the Rapporteurs and Shadow Rapporteurs present their Report, followed by the relevant Commissioner, which bases its comments on the proposed Parliament amendments on a document prepared by its Directorate-General and ratified by the College of Commissioners following discussions in the Inter-institutional relations group.
In first reading, a simple majority (i.e. majority of MEPs present during the vote) is required to adopt the EP amendments, either on an amendment per amendment basis or “en bloc”. The latter refers to the case where the report has been adopted in parliamentary committee with a 90% majority and the Rapporteur requested that it report be voted in plenary without further amendment or debate.
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STEP 3: Amended Proposal by Commission
Following the EP first reading vote, the Commission usually issues a so-called “amended proposal”, which basically sets out its views on the amendments adopted by the EP, often in three sections:
- Amendments accepted by the Commission
- Amendments accepted by the Commission subject to re-drafting, the alternative wording being included in the document
- Amendments rejected by the Commission.
There again, the amended proposal is prepared by the Commission’s Directorate-General in charge of the dossier, on the basis of the mandate obtained from the College of Commissioners before the plenary. The Legal Service and the Secretariat-General are consulted, and the amended proposal is adopted by the College and published in the Official Journal.
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STEP 4: First Reading in the Council
The Council actually examines the Commission’s initial proposal in parallel to the European Parliament.
This work is conducted within specific working parties made up of representatives of the Member States and chaired by the representative of the Member State holding the six-monthly Presidency, assisted by the General Secretariat of the Council of Ministers. The Commission attends these meetings and is supposed to provide expert advice. The work done in the working parties is then presented to the Committee of Permanent Representatives (Coreper, Part I or II), which prepares every Council of Ministers decision. Decisions prepared by Coreper are adopted by the Council of Ministers either without debate, when an agreement has been found at the preparatory stage (“A” item), or with debate (“B” item).
Prior to reaching a Common Position, Council can adopt two intermediate steps, namely:
- The Council may, on occasion, reach an agreement in principle before the European Parliament delivers its opinion, commonly termed a “general approach”. This is not a common occurrence and is mainly used in cases where there is a strong impetus to reach a first reading agreement.
- More often, the Council reaches first a “political agreement” laying down the broad outlines of the proposed common position. The details of this agreement are subsequently finalised by the working party, verified by lawyer-linguists and formally adopted as a Common Position by the Council of Ministers at a subsequent meeting.
In both cases, the Council however only finalises its position once it has sight of the European Parliament’s first reading amendments and the Commission’s resulting amended proposal.
There are different scenarios possible, but in the areas of culture, freedom of movement, social security and coordination of the rules for carrying on a profession, the Council always needs to reach unanimity (abstentions not counting as a negative vote).
In all other areas, the scenarios can be:
- If the European Parliament has not adopted any amendments to the Commission’s proposal and the Council accepts without alteration the Commission’s proposal, the act can be adopted by qualified majority.
- If the Council does not introduce any amendments and accepts all the amendments adopted by the European Parliament, the act can be adopted by qualified majority.
In both this case and the scenario set out above, the outcome is an early first-reading-agreement. The legislative act is then submitted directly for the signature of the Presidents and Secretaries-General of the European Parliament and of the Council, and is published in the Official Journal, ending the procedure.
- If the Council introduces amendments to the European Parliament adopted text, two sub-options are possible: (1) If the Council’s position is in line with the Commission’s amended proposal, it can adopt its Common Position by qualified majority; (2) If the Council position is not in line with the Commission’s amended proposal, then unanimity is required to adopt its Common Position. In this case, we go to second reading. The Council’s Common Position is forwarded to the European Parliament together with a “Statement of reasons” (all of which must be translated into all the official languages) usually at the plenary session following its formal adoption. The time limits laid down by the Treaty for the subsequent stages of the procedure start to run when Parliament receives the common position, or more precisely on the day following this formal receipt.
No time limit is laid down in the Treaty for the adoption of a common position by the Council. This phase lasts on average 15 months from the start of the procedure, depending on the complexity of the dossiers. The adoption of certain politically sensitive common positions has however, in some cases, taken several years!
Possibility of holding informal trialogues:
When the co-legislators are seeking to conclude an agreement at first reading, it is often the case that they organise informal tripartite meetings attended by representatives of the European Parliament (rapporteur and, where appropriate, shadow rapporteurs), the Council (chair of the working party and/or Coreper), and the Commission (department responsible for the dossier and the Commission’s Secretariat-General).
The aim is to ensure that the Parliament amendments adopted in plenary are wholly acceptable to the Council. The Commission frequently plays a mediating and editing role in respect of these compromise texts.
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STEP 5: Commission Communication on the Council Common Position
In this document, which is forwarded to the European Parliament in tandem with the common position, the Commission explains why it has decided to support or oppose the common position. The Commission also comments on the Council’s reaction to the EP amendments which it had supported in plenary at the first reading.
STEP 6: Second Reading in Parliament
A three-month time limit (with a possible one-month extension) is imposed for the European Parliament to take action on the basis of the Council’s common position.
The adoption procedure is broadly similar to that at first reading, but with substantial restrictions on the nature of the amendments that can be tabled at second reading, namely:
- The amendments must aim to restore wholly or partly an amendment adopted at first reading and not accepted by the Council; or
- The amendments must concern a part of the common position which did not appear in, or is substantially different from, the Commission’s initial proposal; or
- The amendments must introduce a compromise between the positions of the co-legislators.
- The amendments must seek to take account of a new fact or legal situation which has arisen since the first reading.
If new European elections have taken place, the rules for first reading will apply.
At Parliamentary Committee level:
The procedure for second reading in parliamentary committee generally follows the rules and practice of the first reading, with the difference that the text to be amended is the Council’s common position and not the Commission’s proposal and a major restriction as to who can table amendments: only full members of the lead Committee can table amendments, and not just any MEP as is the case in first reading!
Only the lead Committee is involved, the Opinion giving Committees only being consulted in exceptional cases.
The amendments adopted in parliamentary committee constitute “the recommendation for second reading”, which is normally defended by the same rapporteur as at first reading. It includes proposed amendments, where appropriate. Amendments may also be tabled personally by other Members of the European Parliament.
The proposed amendments are put to the vote in the parliamentary committee responsible, which takes a decision by simple majority.
Adoption in Plenary:
The plenary makes its position known on the basis of the amendments included in the recommendation adopted by the parliamentary committee and any amendments tabled in plenary by political groups or by a minimum of 40 Members. The rules on the admissibility of amendments applying to the parliamentary committee are also applicable for amendments tabled at the plenary stage.
The plenary adopts amendments by absolute majority.
Different scenarios can occur:
- If the EP approves the Council Common position without amendments or does not take a decision within the time limit, or is unable to reach the absolute majority required to adopt tabled amendments, the President of Parliament will declare that the common position is approved and the act is adopted in accordance with the common position.
- If the EP rejects the Common Position by an absolute majority, the act is deemed not to have been adopted and the procedure ends. It must be noted that this right to simply reject the Council’s common position has never been used in practice by the Parliament.
- If the EP proposes amendments to the common position and obtains the required absolute majority, the amended text is forwarded to the Council and the Commission.
STEP 7: Commission Opinion on European Parliament Amendments
The Commission must deliver an opinion on the European Parliament’s amendments. This opinion is usually the reflection of the comments made orally by the relevant Commissioner in plenary, prior to the vote.
The Commission’s position on the European Parliament’s amendments will determine the type of vote necessary in the Council, namely:
- If the Commission has given a negative opinion on at least one amendment, the Council will have to act unanimously as regards acceptance of the European Parliament’s position overall.
- If the Commission has given a positive opinion on all the EP amendments, than qualified majority is sufficient for the Council if it accepts the European Parliament’s text.
Normally, where an agreement at second reading appears to be attainable, informal contacts are established between the co-legislators in order to reconcile their positions.
There is now laid-down format for these meetings but, as a general rule, they involve the rapporteur (accompanied where necessary by shadow rapporteurs from other political groups), the chairperson of the relevant Council working party (and often the next Presidency representative) assisted by the General Secretariat of the Council and representatives of the Commission (usually the expert in charge of the dossier and his or her direct superior assisted by the Commission’s Secretariat-General and Legal Service).
The objective is to get agreement on a package of amendments acceptable to the Council and the European Parliament. The Commission’s endorsement is particularly important, in view of the fact that, if it opposes an amendment which the European Parliament wants to adopt, the Council will have to act unanimously to accept that amendment. If these contacts prove fruitful, the Coreper chair will send a letter to the chair of the parliamentary committee responsible, whereby the Council undertakes to approve the European Parliament’s amendments if they are in line with the compromise identified jointly. The compromise amendments are then tabled either in parliamentary committee (if they are identified at an early stage) or, more frequently, just before the plenary session. They are co-signed for their groups by the rapporteur and the principal shadow rapporteurs, thereby guaranteeing the required absolute majority. The political groups within the European Parliament coordinate their votes in order to adopt the amendments negotiated with the Council. If those amendments are adopted in accordance with the agreement reached, the Council will adopt the act and the procedure will be concluded.
STEP 8: Second Reading in the Council
The Council also has three months (with a possible one-month extension) to approve the Parliaments’ second reading text. The time limit starts to run from the official receipt of the amendments resulting from the European Parliament’s second reading, in all the official languages.
The Council’s internal procedure is broadly similar to the preparation of the common position: the competent working party prepares a position which is submitted to Coreper and adopted by the Council.
Two broad scenarios can be identified:
- If the Council, voting by a qualified majority on Parliament’s amendments, and unanimously on those which have obtained the Commission’s negative opinion, approves all of Parliament’s amendments no later than three months after receiving them, the act is deemed adopted;
- In all other cases, Conciliation must be initiated, the Conciliation Committee having to be convened within six weeks (with a possible two-week extension).
STEP 9: Conciliation
The Conciliation Committee brings together members of the Council (usually the Member States’ representatives within Coreper) or their representatives and an equal number of representatives of the European Parliament (in practice, 27 MEPs and 27 substitutes, representing the weight of the political groups and usually members of the parliamentary committee responsible for the dossier, three Vice-Presidents of the European Parliament being permanent members of the Conciliation Committee), as well as the Commissioner responsible.
In practice, a large part of the negotiations are conducted during informal trialogues involving small teams of negotiators for each institution, with the Commission playing a mediating role.
The Committee must be convened within 6 weeks (with a possible extension by 2 weeks). It then has a further 6 weeks (with a possible 2 weeks extension) to reach an agreement.
The objective is to agree on a “joint text”, each institution delegation having its own approval rules: qualified majority for the Council’s delegation (unanimity in cases where the Treaty specifies an exception to the qualified majority rule) and simple majority for the European Parliament’s delegation.
- If the Committee cannot approve a joint text by the deadline, the procedure stops and the act is not adopted.
- If the Committee agrees on a joint text, it must the Council and Parliament have six weeks (with a possible two weeks extension) to approve it. The Council acts by a qualified majority and Parliament by an absolute majority of the votes cast. If they do not meet the deadline to approve the text, the procedure stops and the act is not adopted.
In practice, these periods of time are often too short to allow negotiations to be conducted, since the matters at issue may be extremely complex and involve a large number of interested parties. As a result, contacts frequently take place even before the formal conclusion of the Council’s second reading, when it becomes clear that the Council will not accept all the amendments of the European Parliament. Since the Council has 3 (4) months in which to complete its second reading, the time thereby made available to the negotiators may be used to develop contacts, especially through informal trialogues.
In practice, they use a four-column document containing
(1) the Council’s common position,
(2) the EP’s amendments at second reading,
(3) the Council’s position on the EP amendments (mostly in the form of compromise suggestions) and
(4) the EP delegation’s position on the Council’s proposals.
Any compromise suggestions made by the Commission tend to take the form of footnotes.
The European Parliament (by a majority of the votes cast; no amendment may be tabled) and the Council (by a qualified majority with certain exceptions) must adopt the act within six (or eight) weeks, in line with the joint text. In practice, it has happened in two cases that the required majority could not be reached in Parliament.