Policy-making is generally defined as the formulation of ideas or plans that are used by an organisation or government as the basis for making decisions. In the case of the European Union, this is a particularly complex process which is closely linked to the limits of the Union's competences as set out in the treaties that underpin EU law.
At European level, policy-making is the result of the interaction between EU institutions, Member States, but also a range of non-state actors from the civil society and the business sector, that can lobby decision-makers or seek to exert social and economic pressure.
As a sui generis organisation the EU does not have the complete political competences to govern its territory, and in this respect it does not fall under Machiavelli's classical definition of the state as the sovereign political entity in the internal order and independent in the international order. This is notorious for example in matters of defence where Member States hold their sovereignty by contrast with Trade legislation.
In fact, on policies such as the Common Security and Defence Policy Member States remain reluctant to transfer powers to EU institutions, and so these remain attached to intergovernmental models of decision-making and require a unanimous vote (the Qualified Majority vote excludes military and defence matters). The European Commission, despite its general monopoly over the legislative initiative in matters where the European Union has exclusive competence, holds a limited role on Common Foreign and Security Policy, where “the adoption of legislative acts shall be excluded” (Article 24 Treaty of European Union).
The European Council is more decisive in these matters. More specifically: “The Court of Justice of the European Union shall not have respect to these provisions, with the exception of its jurisdiction to monitor compliance with article 40 of the Treaty on European Union and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union”.
A Supranational Organisation is defined by the transfer of competences of States to a new related Institution, gathering determined powers with very specific and limited rules. For instance:
“Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with Member States. (Article 5 of the Treaty of the European Union).
“Under the principle of subsidiarity, in areas which do not fail within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
“Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”.
The State that combines three main elements: the political power, the territory and its people does not cease as a political entity, in fact the integration is seen as an advantage while bringing limits to its legitimacy of making decisions. Thus it represents a complex and interdependent relationship between the Member States and the European Union.
How legislation is approved in the European Union
The European legislation is constructed to achieve the objectives set out in the Treaties. The Treaties itself are the primary source of the European Law. All the secondary Law (that arises from legislative procedures) must comply with what is established by the Treaties and its main purpose is to apply certain mechanisms that can bring what is sought by them.
The legal binding acts that are adopted by the Ordinary legislative procedure are the Regulations, Directives and Decisions. The Regulation is applied in its entirety across the EU. It has therefore a wide range of effect. The Directive is more concise. It is a legislative act that expresses a goal that all European Members must achieve. It is up to each Member State to set the mechanisms it finds necessary to comply with it. This was the case of the Working Time Directive that stipulates minimum rest periods and a maximum number of working hours. The Decision is binding only for those to whom it is addressed being directly applicable (For example a Company or a specific Member State).
Art. 289. º nº 1: “The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission.”
There are three main Institutions involved in this standard decision-making procedure: The European Commission, promoting “the general interest of the Union and taking appropriate initiatives to that end”. The Council of the European Union representing the Member States at Ministerial level and the European Parliament directly elected by European citizens and representing them.
The European Commission has a unique role in the process having the legislative initiative to start a legislative act that exceptionally can depart “on the initiative of a group of Member States or of the Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank”. (Art. 289. º nº 4)
The two Institutions where lay the Power of decision: The European Parliament and the Council are not limited by a strict delimitation of competences that by inaction or refusal of the Commission to initiate a proposal blocked their will to deliberate certain issue. In this way Treaties prefigure the right of these Institutions to address the Commission to submit a proposal in certain areas that they consider useful to the realization of the Treaties or Common objectives. (Articles 225º and 241º of the Treaty on the functioning of the European Union).
While preparing legislation the European Commission takes into account already existing legislation and makes impact assessments in what economic, social and environment effects the new legislation might trigger. Consultations are also done with National Parliaments or stakeholders in a particular legislation proposal or mechanism already approved in line with global objectives such as the current Union Energy Strategy. Understanding of the decisions taken by the European Parliament and the Council of the European Union is not complete without knowing the work of units such as several Preparatory Bodies discussing technical items and helping to reach some consensus between the parts. The Committee of the Regions and the European Economic and Social Committee are two advisory bodies important in connecting citizens and local authorities with the decision-making Institutions giving proper consultation.
Policy-Making in the European Union is therefore the result of two different methods. The Community Method is seen as more effective as due respect to policies where the European Union has Exclusive or Shared Competences. This gives the Commission the right to initiate legislative proposals and develop the policies that the Union wants to implement. The Intergovernmental method stands as the relevant procedure forCommon Foreign and Security Policy since most part of the decision-making on this EU Policy requires agreement between all Member States. Moreover the Council of the European Union develops the Common Foreign and Security Policy based on guiding principles and positions held by the European Council, the ultimate Institution regarding Common Foreign Policy. The implementation of restrictive measures in response to the illegal annexation of Crimea and deliberate destabilization of Ukraine is one example of a decision being adopted by the rules conveyed in the Title V of the Treaty on European Union. This method stands for sovereignty maintenance and relevance of Cooperation as the Community method for European Integration. The balance between these two methods is crucial in European decision-making and the discussion of what suits best for the European project is present since the very beginning.
João Mota de Campos, João Luis Mota de Campos, António Pinto Pereira (2014) Manual de Direito Europeu. Coimbra: Coimbra Editores, 7th edition.