Why is fast track the way to go? Justifications for early agreement in the co-decision procedure and their effects

European Law Journal

Volumn 18, Issue 4, 2012, Pages 536-554

  de Ruiter, Rik ^a   Neuhold, Christine ^b  

^a UNIVERSITY OF TWENTE   (Netherlands)

^b MAASTRICHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864294957     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2012.00617.x     Document Type: Article

References (66)

1. M. Shackleton and T. Raunio, 'Co-decision since Amsterdam: A Laboratory for Institutional Innovation and Change', (2003) 10 Journal of European Public Policy 171-187.
2. M. Shackleton, 'The Politics of Codecision', (2000) 38 Journal of Common Market Studies 325-432.
3. H. Farrell and A. Héritier, 'Formal and Informal Institutions under Codecision: Continuous Constitution-Building in Europe', (2003) 16 Governance 577-600.
4. J. Golub, 'In the Shadow of the Vote? Decision Making in the European Community', (1999) 53 International Organization 733-764
5. H. Schulz and T. König, 'Institutional Reform and Decision-Making Efficiency in the European Union', (2000) 44 American Journal of Political Science 653-666
6. J. Golub, 'Survival Analysis and European Union Decision-Making', (2007) 8 European Union Politics 155-179
7. T. König, 'Divergence or Convergence? From Ever-growing to Ever-Slowing European Legislative Decision-Making', (2007) 46 European Journal of Political Research 417-444.
8. A. Rasmussen, 'Time choices in bicameral bargaining: Evidence from the Co-Decision Legislative Procedure of the European Union', (2008) Paper prepared for the Fourth Pan-European Conference on EU Politics
9. C. Reh, A. Héritier, E. Bressanelli and C. Koop, 'The Informal Politics of Legislation: Explaining Secluded Decision-Making in the European Union', (2005) Paper prepared for the APSA Annual Convention, 2-5 September, Washington.
10. A. Héritier and C. Reh, 'Codecision Transformed: Informal Politics, Power Shifts and Institutional Change in the European Parliament', (2009) Paper prepared for the UACES Conference on Exchanging Ideas on Europe, Ecole Supérieure des Sciences Commerciales d'Angers, 3-5 September.
11. The Treaty of Lisbon establishes the Treaty of the Functioning of the European Union (TFEU), which amends and replaces the Treaty establishing the European Community (TEC). The numbering of the articles used here refer to the consolidated version of the TFEU.
12. The ordinary legislative procedure is regulated in article 294 TFEU.
13. These time limits are normally three months (or four if an extension has been agreed).
14. Simple majority implies a majority of Members voting, whereas absolute majority is a majority of all Members of Parliament.
15. European Parliament, 'Activity Report 1 May 2004 to 13 July ', (2009) Brussels.2009
16. European Parliament, 'Conciliations and Codecision Activity Report, July 2004 to December ', (2007) Brussels.2006
17. J. De Clerck-Sachsse and P. M. Kaczynski, 'More Powerful, Less Legitimate? An Outlook for the 7th Term', (2009) CEPS Working Document no. 314, Brussels, 9.
18. European Parliament, Council and Commission, 'Joint Declaration on Practical Arrangements for the New Codecision Procedure (Art. 251 of the Treaty Establishing the European Community)', (2007)
19. T. Bunyan, 'Secret Trilogues and the Democratic Deficit', (2007) Statewatch Viewpoint.
20. European Parliament, 'Guidelines for First and Second Reading Agreements under the Codecision Procedure', (2004) Brussels
21. European Parliament, 'Activity Report 1 May 1999 to 30 April 2004', (2005)
22. C. Reh, 'The Informal Politics of Co-Decision: Towards a Normative Assessment', (2008) Paper prepared for the UACES Conference on Exchanging Ideas on Europe, University of Edinburgh, 1-3 September 2008, 20.2008
23. A. Rasmussen and M. Shackleton, 'The Scope for Action of the EP Negotiators in the Legislative Process: Lessons of the Past and for the Future', (2005)
24. A similar but less detailed formulation can be found in the EP's 2004 guidelines for First and Second Reading Agreements, in which it is stated that the decision to reach an early agreement with the Council should receive broad political support in the EP and should be taken in a transparent manner and announced in committee. Moreover, 'it should be justified in terms of political priorities, deadlines, risk of legal uncertainty, or the uncontroversial nature of the proposal' (European Parliament 2004).
25. See for a similar identification of the grounds of justification the Guide to Internal Procedures by the European Commission. In this guide, the Commission states that concluding at first reading should be encouraged by the Commission representatives in the case of technical and non-confrontational dossiers or certain politically urgent dossiers, but should not be adopted for more sensitive dossiers because of their substantial budgetary, legal or institutional aspects (European Commission 2007).
26. R. Imbeni, J. Provan and I. Friedrich, 'Improving the Functioning of the Co-Decision Procedure: Discussion Document Presented by the Vice-Presidents Responsible for Conciliation', (2001)
27. This author uses data from the legislative observatory of the EP on the 401 co-decision files that had their first reading in the first five years after the entry into force of the Amsterdam Treaty.
28. These authors constructed a dataset of all 797 co-decision files negotiated between mid-1999 and mid-2009. Their analysis covers both first and early second reading agreements The choice of Reh et al. to study only files on which there is a degree of contestation between the EP and Council that necessitates informal negotiations between these institutions to reach an agreement, restricts the use of this study to assess whether the justification for concluding early because of the technical or uncontroversial nature of a legislative file is present in practice.
29. For example, under the Luxembourg Presidency, a majority of documents that were adopted in first reading fell into the domain of legal affairs. When the UK was at the helm of the EU, the main focus was on legal acts within the field of Civil Liberties, Justice and Home affairs. When the Swedes were assuming the chair of the Council, a large majority of acts under consideration fell into the sphere of Economic and Monetary Affairs.
30. We are aware that we partly select our cases on the dependent variable. However, we have good reasons to do this. The aim is not to assess a causal relationship between a dependent and independent variable. By selecting two cases from the population of all fast tracked co-decision files that share many of the same characteristics as legislative files that are most often fast tracked, we aim to come to conclusions on the dominance in the practical political process of justifications to embark on the fast track that are valid for a larger number of directives than only the two studied.
31. A. Maurer, 'The Legislative Powers and Impact of the EP', (2003) 41 Journal of Common Market Studies 227-247
32. J. Golub, 'The Study of Decision-Making Speed in the European Union: Methods, Data and Theory', (2008) 9 European Union Politics 167-179.
33. The empirical data are collected by way of the analysis of official documents published by the European institutions, a review of secondary literature on the directives, and interviews with MEPs, staff members of the EP and the Council and assistants of MEPs.
34. T. J. McIntyre, 'Data Retention in Ireland: Privacy, Policy and Proportionality', (2008) 24 Computer Law & Security Report 333-334
35. F. Bignami, 'Privacy and Law Enforcement in the European Union: The Data Retention Directive', (2007) 8 Chicago Journal of International Law 233-255.
36. Interview with EP official 8 March 2007; interview with assistant of MEP 9 March 2007
37. A. Ripoll Servent, 'Setting Priorities: Functional and Substantive Dimensions of Irregular Immigration and Data Protection under Co-Decision', (2005) 5 Journal of Contemporary European Research 235-236
38. R. Kardasheva, 'The Power to Delay: The European Parliament's Influence in the Consultation Procedure', (2009) 47 Journal of Common Market Studies 385-409
39. C. DeSimone, 'Pitting Karlsruhe Against Luxembourg? German Data protection and the Contested Implementation of the EU Data Retention Directive', (2010) 11 German Law Journal 301.
40. E. Kosta and P. Valcke, 'Retaining the Data Retention Directive', (2006) 22 Computer Law and Security Report 373
41. Interview with EP official, 8 March 2007.
42. European Commission, 'Directive of the European Parliament and the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC', COM2005, 438, Brussels.2005
43. European Parliament, 'Report of the EP rapporteur on the proposal for a directive of the EP and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC', Brussels.2005
44. Interview with assistant of MEP 9th March 2007.
45. The party has since been renamed into Group of the Progressive Alliance of Socialists and Democrats (S&D).
46. Interview with assistant of MEP 9 March 2007.
47. Interview with EP official 8 March 2007.
48. Interview with EP official 8 March 2007.
49. Interview with assistant of MEP 9 March 2007.
50. Interview with EP official 8 March 2007; Interview with assistant of MEP 9 March 2007.
51. European Economic and Social Committee, 'Opinion on the proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public and electronic communication services and amending directive 2002/58/EC', Brussels.2006
52. European Parliament, 'Council's activities, COD/2005/0182', Brussels.2006
53. European Commission, 'Proposal for a Directive of the European Parliament and of the Council on the protection of animals used for scientific purposes', COM/2008/0543 final; Four Paws and Human Society International, 'Revision of Directive 86/609', last time visited on 8/31/2011.(2008)
54. Neil Parish (EPP, UK) was the rapporteur for this proposal in EP 5 and Elisabeth Jeggle (EPP, DE) in EP 6.
55. European Parliament, 'Report on the proposal for a directive of the European Parliament and of the Council on the protection of animals used for scientific purposes', COM(2008)0543-C6-0391/2008-2008/0211(COD), Brussels.(2009)
56. It was adopted by 540 votes to 66, with 34 abstentions.
57. Interview with assistant of MEP, 14 January 2010
58. In total there were SIX trialogues, five under the Swedish and the Spanish Presidency.
59. Interview with Council official 14 January 2010b; Interview with EP official 15 March 2010.
60. In this case, the shadow rapporteurs were nominated by the Group of the Greens/European Free Alliance, Group of the ALDE, European Conservatives and Reformists, and the Group of the Progressive Alliance of S&D.
61. Council of the European Union, 'Position of the Council at first reading with a view to the adoption of a directive of the European Parliament and of the Council on the protection of animals used for scientific purposes', (2010) 26th May, 6106/10; Council of the European Union, 'Council agrees on stricter rules for animal experimentation', (2010) Press release 9550/10 11 May2010.
62. European Parliament, 'EU wants fewer animals used in research', (2010)
63. P. Mansell, 'Animal testing directive clears its final hurdle', (2010) In Clinical news, September 14 and Euractiv, 'EU wants fewer animals used in research', (2010
64. European Parliament and Council, 'Directive 2010/63/EU of the European Parliament and of the Council on the Protection of Animals Used for Scientific Purposes', (2010) 53 Official Journal of the European Union 33-79, L276 (20.102010).
65. Although the data retention directive is a dossier with some very particular characteristics-ie an agreement between the UK Council Presidency and the main political groups in the EP behind the back of the EP rapporteur-the general dynamics related with reasons to fast track the co-decision procedure are most likely to be the same for other directives with similar characteristics. The main difference between the data retention directive-an urgent dossier and a political priority of the Council Presidency-and other dossiers with similar characteristics is that in the latter files the rapporteur is likely to play a larger role in connecting the priorities of the Council Presidency with those of the EP.
66. The reinforced justification ground in the case of the data retention directive is visualised in Figure 5 by a thicker arrow than the one for the animal testing directive case.