fast track co-decision

Why is fast track the way to go?
A quantitative and qualitative analysis of the first reading procedure in
co-decision
ECPR Conference
Porto
June 2010
Christine Neuhold, University of Maastricht
c.neuhold@maastrichtuniversity.nl
Rik de Ruiter, University of Twente
r.deruiter@utwente.nl
DRAFT
Please do not quote
1
Abstract
Since the introduction of the co-decision procedure by way of the Maastricht Treaty, the
procedure has been transformed considerably, leading some to coin it as a laboratory for
innovation and change. One of the most striking innovations is the fast track procedure,
which enables the institutions to adopt an act at first reading.
During the last legislative period more than 70 percent of acts were adopted at early
stages of the procedure, giving rise to the question both within and outside the EU
institutions of how this can be explained.
This paper aims to isolate factors that contribute to this trend. After a brief analysis of
quantitative data, two qualitative case studies are conducted to give an insight into
dynamics and trends at play.
2
1. Introduction
Ever since the introduction of the co-decision procedure by way of the Maastricht Treaty,
the procedure has been transformed considerably both constitutionally1 and informally,
leading some to coin it as a laboratory for institutional innovation and change (Raunio
and Shackleton 2003).2 Academics, journalists and politicians alike have observed the
trend of the informalisation of the procedure. This trend links up with a more general
informalisation of governance, defined as regular, non-codified and not publicly
sanctioned exchanges between public and/or private actors pursuing common goals
(Christiansen et al 2003: 7).
Within the co-decision procedure we can observe this tendency for example in fast track
procedures during first reading with its informal trilogues between non-mandated actors
that pre-negotiate solutions behind closed doors. This has given rise to questioning of the
legitimacy of the procedure and to flag up the consequential tension between
effectiveness and democratic prerogatives of the European Parliament (EP) (Raunio and
Shackleton 2003; Heritier and Reh 2009; De Clerck-Sachsse and Kaczynski 2009).
This article wants to add to the literature by going beyond the mere figures and normative
reflections. Scholars and practioneers have identified several variables that play a role in
the decision by MEPs to agree upon issues in first reading, such as the noncontroversiality of the dossier. This paper thus aims to contribute to this debate by
identifying and testing possible factors that contribute to the decision to agree upon
legislative dossiers at early stages of the procedure. This is done by way of an analysis of
quantitative data available on the use of the co-decision procedure and a comparative
case study of two policy dossiers.
In this quest this paper is structured as follows. Subsequent to an overview of the main
changes of the co-decision procedure has gone through, some implications of this
transformation for democratic governance are discussed. Second, based on previous
research and the analysis of quantitative data, several variables are identified that
influence the decision by MEPs to agree upon issues in first reading. Third, factors that
influence the decision to agree upon an issue at early stages of the procedure are isolated
by way of two case studies. The paper concludes with discussing the empirical findings
in light of the tension that results from the increasing use of the first reading procedure
and possible implications for the democratic legitimacy of the EU decision-making
process.
1
2
By way of the Amsterdam Treaty.
The authors would like to thank Johan Rotomski for his research assistance.
3
2. Development of co-decision and first reading: facts, figures and democratic
implications
2.1. An overview of the transformation of the co-decision procedure: facts and figures
The co-decision procedure has undergone rapid transformation since its inception by way
of the Maastricht Treaty, not only when it comes to constitutional provisions but also
with regard to the implementation of the procedure into the practical political process
(Raunio and Shackleton 2003; Maurer 2008; Priestley 2008; European Parliament 2009).
When it comes to constitutional reform of the procedure, it needs to be noted that the
procedure was streamlined by way of the Amsterdam Treaty and put the Council and the
EP on a completely equal footing. Whereas the Council had the right to reiterate its
Common Position subsequent to failed conciliation under the Maastricht Treaty, this
provision was abolished under the Treaty of Amsterdam. More importantly for the
perspective of this paper is that Amsterdam introduced the possibility to adopt an act at
first reading of the procedure, a practice that has become known as ‘fast tracking’ the
procedure. Moreover, the scope of the procedure was extended by Amsterdam to 38
Treaty articles and by way of the Nice Treaty to 44 (Raunio and Shackleton 2003;
Corbett et. al 2007; Reh and Heritier 2009).
The Treaty on the Functioning of the European Union (TFEU)3, also known as the
Lisbon Treaty, leaves the procedure itself practically untouched4 but foresees co-decision
together with qualified majority voting as the ordinary legislative procedure’ by
extending it to 40 new areas. The scope of the procedure is thus extended into thus far
unchartered waters for the EP, among which agriculture and fisheries5 and the common
commercial policy6. The EP also receives additional powers in fields where the EU did
not have any powers thus far such as tourism, sport or the new citizen’s initiative (De
Clerck-Sachsse and Kaczynski 2009: 9). Moreover what used to be the third pillar (now
Section V TFEU) of justice and home affairs now falls under co-decision in its entirety.
Examples of measures to be undertaken in this field would be minimum rules concerning
the definition of criminal offences or sanctions of a serious crime with a cross border
dimension.
3
The Treaty on the European Community has been amended and renamed as the Treaty on the Functioning of the
European Union (TFEU), whereas the Treaty on the European Union has been amended but keeps the same name. Both
are part of the same Treaty and are referred to in this paper as Treaty of Lisbon or Lisbon Treaty.
4
An important novelty under the Treaty of Lisbon is the fact that national parliaments are increasingly to be involved
in the legislative procedure. National parliaments will have 8 weeks time to examine draft European legislative acts. If
a third of them (a quarter in the field of justice and home affairs) oppose a draft, the Commission must review it.
Moreover, if over half of all national parliaments oppose an act subject to co-decision, the European legislator (a
majority of the European Parliament or 55% of the votes in the Council) must decide whether or not to proceed with
the legislative process. National parliaments may also take a case to the European Court of Justice if they consider that
a legislative act is contrary to the principle of subsidiarity.
5
Art. 43 (2) TFEU
6
Other fields to which co-decision has been extended include monetary policy (Arts. 129 (3), 133 TFEU), economic
policy (Art. 121 (6) TFEU), and general rules for the structural funds (Art. 177 TFEU).
4
When it comes to the first reading of the co-decision procedure and the option of fast
tracking, formal rules are very vague. The article regulating co-decision7 only stipulates
that the Council acting by a qualified majority approves all the Parliament amendments
or if the EP has approved the proposal without amendment, the Council may adopt the
act. The Treaty, however, is silent when it comes to the question on how interinstitutional agreements between Council and EP should be reached and does not foresee
any time-limits for first reading. Soon after the Amsterdam Treaty came into force it
quickly became apparent that first reading had to be regulated by going beyond the
Treaty provisions, as this stage of the procedure was in fact increasingly used to adopt the
legislative act under scrutiny. In fact, there has been a stark increase of acts adopted
during first reading when we compare the data of EP 5 and EP 68. Whereas during the
legislative period of EP 5 around 28% of the acts were adopted at the early stage of the
procedure, the share of agreements during first reading has more than doubled to around
62% during the first half of EP 6. In the second legislative half of the 6th parliamentary
term the figure rose a striking 10% possibly indicating more legislative activity preceding
the 2009 EP elections.
Figure 1: Co-decision compared: 1993-2009
5,1%
21,8%
38,6%
22,9%
50,1%
72,0%
61,4%
28,0%
1993-1999
total 153
1999-2004
total 403
1st reading
2nd reading
2004-2009
total 454
3rd reading
Source: EP 2009
7
8
Formerly art. 251 TEC, now art. 291 TFEU.
EP 5 refers to the legislative period of 1999-2004 and EP 6 to the legislative term of 2004-2009.
5
Moreover, the number of quasi-first reading agreements has increased. During EP 6 a
new development occurred, relating to the conclusion of early second reading
agreements. An early second agreement refers to the institutions successfully completing
their institutional negotiations after the EP has adopted its first reading position but
before (or at the same time) that the Council has actually laid down its common position.
After the conclusion of inter-institutional negotiations the EP gives assurance9 to the
Council that if the Council adopts the agreement reached unchanged in its common
position, then the common position is to be adopted without amendment by the EP during
second reading. What is thus key here is that the Common Position of the Council is
adopted without changes by EP in second reading. It is noteworthy that 10.8% of all
second reading agreements are early second reading agreements, whereas 12.1% are
"classical" second reading procedures (European Parliament 2009: 12). When early
second reading agreements are included in the analysis, the number of agreements
reached between EP and Council at an early stage of the co-decision procedure is de facto
even higher than denoted by statistical data on fast track procedures.
2.2. Regulation of first reading procedures
It would go beyond the scope of this paper to probe into detail into the way the first
reading of the procedure is regulated, which implies that only the main elements, which
are of relevance for this paper, are given at this stage10.
As mentioned above, the Treaty article on co-decision does not stipulate clear procedures
to be followed during first and second reading of the procedure. An attempt to regulate
the procedure is the Joint Declaration on the Practical Arrangements for the (New) Codecision procedure, an inter-institutional agreement concluded in 1999 and amended in
2007. This agreement foresees that each institution will designate those who will
participate in each meeting and define their mandate and that, as standard practice, details
of the substance of the agreement under first reading will be provided.
Moreover, it is foreseen that the Presidency-in-office of the Council will endeavour to
attend meetings of EP committees and may provide information relating to the Council
position on the dossier concerned (EP 2007, p. 15). Overall one can thus conclude that
there is an attempt to shed light on negotiation practices in first reading. This is due to the
fact that inter-institutional agreements reached in trilogues are only known to a minority
of the respective institutions and thus one wants to ensure that negotiators are actually
mandated to negotiate by their respective institutions.
While the inter-institutional agreement regulates the relationship between the institutions,
the code of conduct for negotiating co-decision procedures has been drawn up to regulate
the conduct of MEPs within the parliamentary body11. What is of relevance for this paper
9
Normally this assurance is given by the Chair of the EP committee by way of a letter to the chair of the relevant
formation of COREPER.
10
A detailed overview is given in EP 2007 and EP 2009 and Reh and Hertier 2009.
11
As approved by the Conference of Presidents on 18th September 2008 and adopted by the EP plenary in May 2009 as
Annex XVI of the revised Rules of Procedure.
6
is the fact that it is clearly stipulated that resorting to early agreements is reserved for
uncontroversial and technical proposals or urgent situations. 12
2.3. Democratic implications of concluding acts at first reading
As mentioned above, the increasing use of fast track procedures has become of concern
both within and outside the EP due to the fact that it obfuscates accountability and is
questionable from the perspective of democratic legitimacy (Farell and Heritier 2003,
Reh and Heritier 2009). As De Clerck-Sachsse and Kaczynski put it:
There are also a number of concerns raised by this process, however. The ability to agree
upon a text after just one parliamentary reading means that much informal negotiation
between the responsible committee and the Council is necessary. This means that only a
limited number of actors (…) are involved in the negotiations. Moreover, the bulk of the
political debate takes place behind the closed doors of negotiating chambers rather than
publicly. This informality necessarily limits the transparency of the procedure and leaves
little room for political debate (2009 p. 11).
However, a claim we would like to explore further throughout this paper, is that it very
much depends on the substance of the dossier which is agreed upon under first reading
whether a problem is created from the perspective of democratic governance. The main
claim in this paper with regard to the democratic implications of the increasing use of the
first reading procedure is the following: as long as issues on which politicians are divided
along political cleavages that matter to voters are not dealt with under first reading, it is
not a problem from a democratic governance perspective that an early agreement is
reached between the EP and the Council under first reading.
This claim is based on a reasoning of Simon Hix who proposes that more (left-right)
political divisions between MEPs need to gain presence in the EP in order to increase the
democratic quality of the EU decision-making process (Hix 2006). Hix claims that
especially a focus on left-right issues would increase political debate and competition in
the policy process. A competitive battle to win control of the policy process has at least
three positive effects. First, political battles allow citizens to identify the protagonists and
understand the likely consequences of one or the other side being able to implement their
agenda.
Second, competition also produces a mandate for the winners. If a particular political
coalition emerges victorious from a political battle (for example those who are elected to
political office, such as the Commission President) the members of the coalition can
claim that they should be given a chance to try out their policy agenda.
Third, following an open political battle, those on the losing side are willing to accept the
outcome of a contest if they expect that they will be on the winning side in the not too
distant future. With the experience of watching and participating in a democratic debate,
and with politicians who are forced to respond to voters’ concerns and develop rival
12
See paragraph 2 of the Code of Conduct.
7
policy ideas, public support for the EU would gradually begin to build. In sum, from a
democratic governance perspective loosely based on the ‘political contestation’ reasoning
of Hix (2006)13, issues on which politicians and voters are divided along political
cleavages should not be concluded in the earliest stage of the co-decision procedure.
Open debate and political competition on these issues (which is less present when the codecision procedure is fast-tracked) is crucial for democratizing the EU political system
and ensuring public support for the EU in the longer run. Only when these contested
issues are decided via the fast track co-decision procedure problems are created from the
perspective of democratic governance.
3. State of the art: what influences the choice for first reading?
As stated previously, the intentions of the architects of the first reading procedure with
regard to when this procedure should be applied were clear from the start. The early
agreement procedure was intended for non-controversial issues, where there was little
likelihood of substantial disagreement between EP and Council. In the co-decision guide
the Commission states that ‘Commission representatives should be encouraged to use the
possibility of concluding the procedure at first reading in the case of technical and noncontentious dossiers’ and that ‘it is not advisable to pursue this objective without due
consideration in the case of dossiers that are more sensitive (particularly in budgetary and
institutional terms)’ (European Commission 1999: 8-9).
Although the intentions of the architects of the first reading procedure leave little room
for a broad and extensive use of the first reading procedure, it became apparent earlier
that in practice there has been a rapid increase of first reading procedures, and given the
large numbers (i.e. 72%), even to non-technical and politically salient dossiers (see also
Farrell and Heritier 2004). Hence, the non-controversial nature of issues cannot be the
(sole) explanation for why issues are decided under first reading.
So far the analysis of factors that might influence the decision to fast-track the legislative
procedure has been somewhat neglected in the academic debate. The contributions that
do examine this question identify the following factors to have an influence on early
agreements between the Council and the EP during first readings.
First, the role of the rapporteur and the Council presidency are claimed to be important in
the decision to fast track a legislative procedure (Rasmussen 2008; Hoyland 2006;
Costello and Thompson 2010). At first reading, EP rapporteurs, that have been coined as
legislative entrepreneurs, can take advantage of having a rather large scope for
concluding compromises on behalf of the EP that fit their preferences, whereas the room
for manoeuvre generally diminishes as the legislative process proceeds (Benedetto 2005).
The Council Presidency also has an incentive to conclude early to obtain a result within
the relatively short duration of its six months at the helm of the EU. Agreement is
especially likely to occur when the rapporteur from the EP and the presidency from the
Council come from the same country or party family.
13
Although Hix especially focuses on left-right issues, we also include issues which are not purely left or right, but on
which citizens and politicians are clearly divided.
8
Second, the tendency to fast track the procedure has increased over the years as the
working relationship between the EP and the Council has become closer and bargaining
uncertainty between them has been reduced (Rasmussen 2008). In other words the actors
have been submitted to a process of socialization or - as the EP puts it - in the greater
familiarity of the institutions with the procedure. Greater trust and more flexibility in
working together are seen as having enabled the institutions to reach agreement at a faster
pace (European Parliament 2007: 10).
Third, the fact that only a simple majority of the EP is needed at first reading is also
believed to be a crucial factor as it is easier for the parliamentary body to adopt
legislation14 (European Parliament 2009: 11).
A fourth point mentioned in the literature on the choice for fast-tracking the co-decision
procedure is that the higher workload of the legislators due to the expansion of codecision has led to an increase in work for the EP and, hence, MEPs are more eager to
conclude early in order to save as much time and energy as possible (Rasmussen 2008).
Fifth, entirely new legislative acts and EU directives are less likely to be concluded early
than the remaining set of files (Sloot and Verschuren 1990). Because directives require
national implementation, member states can be expected to be less flexible when
negotiating them, thus leading to a longer bargaining process.
The EP itself also tries to come up with an answer to the question why there is an
increasing trend towards first reading agreements, besides the fact that there seems to be
a higher number of uncontroversial and rather technical proposals. One reason that is
given, is that since the enlargement of 2004 it seems increasingly difficult to find a
common position within the Council and the early input of the EP can be seen as
facilitating consensus building among the Member States. The fact - that is also alluded
to in the academic literature - that Council Presidencies are very eager to reach agreement
under their Presidency is also underlined by the EP. The political urgency of the
proposals also seems to play a role. It is noteworthy that in order to be able to conclude
early the EP prepares first readings more exhaustively by way of hearings and impact
assessments (European Parliament 2009: 11-12)
The observations on the choice for fast-tracking a legislative procedure are taken in this
paper as the basis for selecting two policy dossiers for an in-depth comparative case study
of two policy dossiers: the animal testing directive15 and the data retention directive16. As
Rasmussen correctly points out, the EU policy process is characterized by a lot of caseby-case decision-making that does not follow predictable patterns, leading to low
explanatory power of the estimated regression models in large-N studies (see for example
Rasmussen 2008). Therefore, we will probe into the factors that influence the decision to
14
In second reading an absolute majority of MEPs is needed to adopt legislation.
Directive of the European Parliament and the Council on the protection of animals used for scientific purposes.
(COM 2008) 543 final)
16
Directive of the European Parliament and the Council on the retention of data processed in connection with the
provision of public electronic communication services (COM2005) 438 final)
15
9
fast track the co-decision procedure in policy dossiers, which are according to the
political and scholarly debates unlikely candidates for early agreements. The two policy
dossiers chosen are concluded in an early stage of the co-decision procedure, but are in
fact cases where according to the literature one would not expect the negotiations to be
wrapped up by using the fast-track procedure. By taking unlikely cases for fast-tracking
the co-decision procedure – according to the literature - it becomes possible to identify
factors that influence the legislator’s decisions to conclude early that are thus-far
neglected in previous studies.
As shown several factors are identified within the academic and political debate that
seem to increase the chance that the fast track procedure is chosen to deal with a policy
dossier under the co-decision procedure. Three of those factors were taken into account
when it comes to the case selection of policy dossiers, which thus resulted in the selection
of the animal testing directive and the data retention directive17. First, the choice was
made to look at two directives. Second, the directives selected introduced for the largest
part new legislation. Third, the rapporteurs in the case of the selected directives were not
from the same country or party family as the Council presidency during the time-span
when agreement was reached on the directive, between the EP and the Council.
The empirical analysis of these unlikely cases for fast-tracking the co-decision procedure
indicates that the factors that determine the choice for fast-tracking are primarily related
with the urgency of the policy dossier for both the EP and the presidency of the Council.
This urgency can be determined by external shocks (e.g. terrorist attacks) in combination
with institutional factors, such as the end of a period a member state holds the Presidency
of the Council. In the quest of the case study analysis a number of interviews were
conducted18.
4. Fast tracking the co-decision procedure in practice: brief analysis of quantitative
data
In order to root the cases within a broader political context and to obtain an indication of
some of the trends prevalent under co-decision, in a first step all acts that were concluded
in first reading of the co-decision procedure during the time-span of 01-01-2004 until 3112-2009 were analysed.19
In the context of the quantitative analysis, 338 acts were up for scrutiny. In order to
examine the question whether seemingly technical, uncontroversial issues are covered in
first reading, legislative acts were classified as to whether they were codified, repealed,
recast or adopted according to the 2006 regulatory procedure with scrutiny.
17
We do not claim that these cases are representative for all dossiers agreed upon under first reading, but by selecting
these cases we aim to show that there are a range of variables neglected by explorative studies of other scholars that
influence the decision to agree a dossier under first reading or early second reading. It has to be stressed that although
the analysis of two cases of course has the drawback of limited applicability one can still uncover important dynamics
and trends (Burns 2006).
18
See annex.
19
The dataset only consisted of completed procedures within that time-span of the previous legislative period.
10
When thus analyzing the 338 acts that were adopted in first reading during the time
period of 01-01-2004 until 31-12-2009, we can observe the fact that 140 were actually
amended by way of inter-institutional bargaining, 109 were repealed (and normally
replaced with new legislation)20. 25 acts were adopted according to the procedure of
recasting acts and only 45 fell under procedure of codification and were as such defined
as being uncontroversial.21 29 acts fell into the domain of comitology and were adopted
according to the new regulatory procedure with scrutiny.
This implies that a majority of the legislative acts adopted during EP 6 did not fall under
the procedure of codification but were in fact either amended or repealed and as such
replaced by new legislation. This of course does not give us any indication as to the
quality of these legislative acts that were adopted by way of inter-institutional bargaining
but does provide evidence for the claim that the Commission not only presented technical
and uncontroversial proposals (EP 2009, p. 7)
Figure 2: Zooming in on first reading dossiers: 2004-2009
Source: Own calculations based on Legislative Observatory (OIEL)
In a second step the data were examined on the distribution of the first reading
agreements across different EP committees, i.e when it comes to the question which
committee was the leading committee. This provided a first indication of the distribution
of policy issues and a quantitative indication of issues salience in so far as some policy
fields are considered to be more politically salient and give rise to more political
controversy than others, as indicated above.
20
It is noteworthy that in EP 6 six co-decision procedures were repealed without being replaced by existing legislation.
Recasting is a technique to adopt a single legislative text which at the same time amends a previous act. Codifies that
amendment with the unchanged provisions of the earlier act, and at the same time repeals that act. This approach is i.a.
enshrined in the EP’s rules of procedure (EP 2009, p. 7)
21
11
The empirical findings indicate that the bulk of acts (76) were adopted by the Committee
on Legal Affairs and the Committee on the Environment, Public Health and Food Safety
(61). A comparatively large share of acts fell also within the Committee on Transport and
Tourism (25) and the Committee of the Internal Market and Consumer Protection (22).
This observation does not come as a surprise as these committees are also customers of a
bulk of co-decision procedures in general.
What is striking is the large share of co-decision acts adopted in first reading by the Civil
Liberties, Justice and Home Affairs (LIBE) committee. In accordance with the extension
of co-decision into this area it is noteworthy that during the legislative period of 20002004, 8 acts were adopted under co-decision whereas this figure rose to 38 in EP 6 (EP
2009). Even more strikingly, a clear majority of these acts were adopted in first reading,
i.e. 32 acts were adopted according to the fast track procedure during the period of 1st
January 2004 till 31st December 2009. This can give us an indication that with coming
into force of the Lisbon Treaty this trend might become even more pertinent as codecision now applies in its entirety to measures falling within the domain of justice and
interior affairs.
Figure 3: Acts concluded in first reading: committee responsible 2004-2009
Source: Own calculations based on Legislative Observatory (OIEL)
12
Moreover the data was examined as regards to whether one can discern a difference
between the rotating Presidencies of the Council when it comes to taking the fast track. In
this quest it was not only of interest whether certain countries tend to push legislation
through in first reading but also whether one can discern a difference as regards to policy
domains. This analysis was firstly conducted in order to be able to isolate the role of the
Presidency, which is in the literature seen as playing a main role in pushing for early
reading agreements22. Moreover, we wanted to assess whether a difference can be
observed as regards to salience of policy domains, i.e. whether more potentially salient
legislation is adopted under certain Presidencies as opposed to others.
At the same time, as the data is grouped over time – from January 2004 to December
2009 - this also enables us to analyze whether there was an increase in activity before or
after decisive events such as EP elections.
Figure 4: Fast track procedures according to Council Presidency (procedure completed)
Source: Own calculations based on OIEL
In this context it becomes apparent that smaller Member States such as Slovenia and
Luxembourg23 seem to favor the fast track; possibly as it enables them to push through
legislation relatively quickly and claim legislative successes. Another plausible
explanation is the fact that smaller and newer Member States try to avoid second and
third reading due to the very restrictive time-limits prevalent. Moreover we can somewhat counter-intutively - see some decreased legislative activity before the EP
22
The data comprises a detailed list of all the legislation adopted under the different Presidencies from 2003-2009.
Under the Luxembourgese Presidency 34 acts were adopted in first reading in 2005 and under the Slovenian
Presidency 66 acts were adopted under fast track procedure.
23
13
elections.24 This can be explained by the fact that we analysed the data as regards to the
procedure being completed. The picture is somewhat different when we examine the
number of acts actually dealt with under first reading under respective presidencies; 53
fell into the period of the French Presidency and 30 into the period of the Czech
presidency.
When looking at priorities set under the respective chairmanships we find that under the
Luxembourgese 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 it is
noteworthy that the main focus was on legal acts within the domain of Civil Liberties,
Justice and Home Affairs25. When the Swedes were assuming the chair of the Council,
one has to note that a large majority of acts under consideration fell into the sphere of
Economic and Monetary Affairs, which might be explained by the financial crisis26. In
the latter example, however, not in all dossiers was the procedure actually completed.
From this quantitative analysis we can conclude that the bulk of co-decision dossiers
were adopted in first reading within policy fields such as justice and home affairs and
economic matters. These are in fact domains where we would expect differences between
political groups, where national interests are at stake that impact on the daily life of
citizens in EU Member States. We also can observe a difference in priorities as regards to
policy domains under different Presidencies, which do seem to be very much influenced
by external events such as the London bombings or the financial crisis.
These observations, together with the factors influencing the choice to fast track a
legislative procedure drawn from the literature, form the basis for the selection of our
case studies. The two policy dossiers (i.e. the animal testing directive and the data
retention directive) touch upon highly controversial issues that are according to the
political and academic debate unlikely candidates for conclusion at early stages of the
procedure. Those directives introduced for the largest part new legislation and the
rapporteur of the EP and the Council presidency at the time were not from the same
country or party family. Moreover the two legislative acts were adopted with different
Member States at the helm of the EU.
5. Fast tracking the co-decision procedure in the practical political process: a
comparative case study
5.1. The animal testing directive
The animal testing directive is an interesting case also insofar as it is a possible example
of an early second reading agreement and as such reveals important inter-institutional
dynamics also in the light of the implementation of the Lisbon Treaty27. As regards to the
(political) debate within the EP, it seems that, at least at first glance, the former can be
compared to a first reading agreement. Within the institutions this form of agreement is
24
27 acts were adopted under the French Presidency and 11 under the Czech.
8 out of 27 acts adopted were within that policy field.
26
7 out of the 37 acts dealt with under the Swedish Presidency fell into that sphere.
27
The procedure is not yet completed.
25
14
referred to as pre-negotiating Common Positions (Interview, 15. March 2010). It is
interesting to note that a bulk of the acts adopted at early stages of the procedure after
Lisbon are in fact early second reading agreements (Interview, 15. March 2010).
When it comes to the substance, the Directive on animal testing tries to overcome two
dilemmas at the same time. On the one hand it tries to improve animal welfare without
hampering the fight against diseases and on the other to succumb to the demand to
maintain more extensive animal welfare rules in some EU Member States without
harming the internal market.28 Around 12 million animals are used for scientific research
each year in the EU. This number is to be reduced by way of the proposed legislation as it
foresees that animals can be used for experiments only if this is necessary for scientific
purposes. Up-to date scientific knowledge is available on factors influencing animal
welfare as well as the capacity of the animals to sense and express pain, suffering,
distress and lasting harm. It was therefore seen as necessary by the institutions to improve
the welfare of animals used in scientific procedures by raising the minimum standards for
the protection of those animals in line with the latest scientific developments (European
Commission 2008). A new piece of legislation was thus to be put forward to replace
Council Directive 86/609/EEC of 24 November 198629.
The proposal for the new directive, which deals with very sensitive issues, such as raising
minimum standards for the welfare of animals used in scientific procedures, was put
forward by the Commission in November 2008 and first discussed and voted on in the EP
Agricultural Committee30 in January 2009 and in March 2009 respectively31. The EP
Environment Committee gave its opinion on 17. February 2009.
The EP wrapped up its internal negotiating process by May 2009 without negotiating
with the Council however, as the Czech Presidency did not put this dossier on its agenda,
as it was being described as not being a pressing item (Interview, 14. January 2010).
During the Swedish Presidency this piece of legislation was seen as a priority however,
which is i.a. reflected by the fact that the Swedish agricultural minister came to the EP
Agricultural committee to flag up the fact that this is one of the top items on the agenda.
This was then succeeded by several trilogues32 and discussions between both parties.
The allegations that these trilogues are opaque and that there is a lack of political debate
are refuted by those involved in the process:
Yes, it is true that these trilogues are conducted behind closed doors but this is
necessary if you want to reach a compromise in a certain amount of time (…); The
larger the group the more difficult it will be to reach a consensus. Furthermore,
each political group in the Parliament is represented via their (shadow) rapporteur
in these negotiations. And we did debate and negotiate intensively. One of our
28
Proposal for a Directive of the European Parliament and of the Council on the Protection of Animals used for
scientific purposes (COM(2008) 543 final.
29
OJ L 358, 18.12.1986, p. 1. Directive as amended by Directive 2003/65/EC of the European Parliament and of the
Council (OJ L 230, 16.9.2003, p. 32).
30
Committee on Agriculture and Rural Development. (AGRI)
31
Neil Parish MEP (EPP/UK) was rapporteur on this dossier in the previous legislative period.
32
In total there were 6 trilogues, 5 under the Swedish and 1 under the Spanish Presidency.
15
trilogue sessions lasted for 4.30 hours. At one point even the interpreters went home
and we continued the debates in English until we reached a compromise which was
acceptable to all parties involved. (Interview, 14. January 2010).
Another interviewee brought it to a point when saying:
What is often eclipsed from the academic debate is that there is not necessarily
less debate due to time pressure as there are no time-limits in first reading
(Interview, 14. January 2010).
The process is seen as being inclusive as from the side of the EP the rapporteur (in this
case from EPP) and the respective shadow rapporteurs33 are being represented. In the
practical political process it is noteworthy that a distinction is being made between formal
and informal trilogues, which basically comes down to the fact that in formal trilogues
higher ranking officials from the institutions are present and a difference in procedural
rules prevails.
In this specific case of the animal testing directive during the informal
trilogues the EP negotiated with the Head of the Council Working Party (both from the
Spanish and Swedish Presidency respectively) and with a Head of Unit of the
Commission. In the formal trilogues, of which there were two, the EP negotiated with the
respective Chair of COREPER I and a Director General of the Commission. In this case
only the rapporteur can speak from the side of the EP and shadow rapporteurs cannot take
the floor. In formal trilogues translations into all languages requested is available, where
in the informal trilogues translations only took place from English into German and vice
versa34.
Moreover, the rapporteur constantly reported back on the debates in committee, which is
open to the public, and in this case many stakeholders were present (Interview, 14.
January 2010).
When it comes to the negotiations between the institutions one has to note that a political
compromise was reached in December 2010. According to the rapporteur35 the
Parliament was successful in carrying through Parliament's first reading position on many
critically important points for example when it comes to the EP’s position with regard to
inspections of breeders, suppliers and users of animals used for testing. That way, high
animal welfare standards will apply throughout Europe but will not prevent research
important for the protection of human health and human dignity from being carried out
(European Parliament, Press release, 8. December 2009).
It is has to be stated, however, that the negotiations were then not concluded due to the
fact that the Treaty of Lisbon came into force on 1st of December 2009 and an agreement
still had to be reached under the Spanish Presidency as regards to the new rules on
delegated and implementing acts.
33
In this case the shadow rapporteurs were nominated by the Group of the Greens/European Free Alliance, Group of
the Alliance of Liberals and Democrats for Europe (ALDE), European Conservatives and Reformists (ECR), and the
Group of the Progressive Alliance of Socialists and Democrats (S&D).
34
German was the language of the rapporteur in this case.
35
Elisabeth Jeggle (EPP/D) was the rapporteur within EP 7.
16
It seems that a final compromise between the institutions was reached under the Spanish
Presidency in April 2010 also when it comes to the implementation of the directive. The
directive will however be adopted by the EP only in September 2010 as the legal and
linguistic services of the institutions examined this matter for a rather prolonged period.36
The Council however adopted the directive as an A point, i.e. it was passed without much
political controversy.37
5.2. The data retention directive
EU legislation on the retention of data generated by the use of electronic communication
services was judged necessary by the European institutions; these ‘traffic data’ can play a
role in the prevention, investigation, detection and prosecution of terrorism and organized
crime (European Commission 2005). In many cases traffic data are not needed any longer
for billing or other business purposes and are, hence, not available for public authorities
whenever there is a legitimate case to access these data. This makes it harder for public
authorities to fulfill their crime-fighting duties and easier for criminals/terrorists to
communicate with each other without the fear that communications data can be used by
law enforcement authorities against them. There is also an internal market component to
data retention. Differences in the legal, regulatory, and technical provisions in member
states concerning the retention of traffic data present obstacles to the internal market for
electronic communications, as service providers are faced with different requirements
regarding the types of data to be retained as well as the conditions of retention.
Important milestones in the run-up to the adoption of EU legislation on data retention
were the conclusions of the Justice and Home Affairs (JHA) Council of 20 September
2001, the conclusions of the JHA Council of 19 December 2002 and the declaration on
combating terrorism of 25 March 2004 issued by the European Council. At the JHA
Council of 29 and 30 April 2004 France, UK, Ireland and Sweden submitted a joint
proposal for a framework decision on the retention of communications data, whereby the
Council would have sole legislative power. The EP unanimously rejected this Council
proposal. The EP took the view that Article 95 of the EC treaty is the correct legal basis
for EU level activity with regard to data retention, which would necessitate the adoption
of a directive and not a framework decision. The adoption of an EU directive would mean
that the EP is fully integrated into the legislative process with the power of co-decision.
In the conclusions of the European Council of 16 and 17 June 2005, as well as the special
JHA Council meeting of 13 July 2005 following the London terrorist bombings this
request for legal action at the EU level was confirmed. With the UK at the helm of the
EU in the second half of 2005, the data retention dossier was made one of the priorities of
the UK presidency. The UK wanted to reach agreement on EU legislation before the end
of 2005. While the Council was generally in favour of deciding this under the third pillar,
the UK presidency preferred the fast track co-decision procedure because if the Council
had gone ahead with the 3rd pillar proposal, there were increasing chances that the EP
36
The vote in the AGRI committee will take place in July 2010.
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, Brussels, 26th May 2010.
37
17
would start legal proceedings, thereby causing delays (Interview 8th March 2007;
Interview 9th March 2007).
On September 21 2005 the Commission acted in line with the preferences of the UK and
the EP, by submitting a proposal for a directive on data retention pursuant to Article 95 of
the EC Treaty, thus providing the basis for negotiations with the Council. The
Commission was more interested in submitting this under co-decision instead of having a
framework decision, because in the former case the Commission has the right of initiative
while otherwise the Council would have been the initiator (Interview, 8th March 2007).
The two proposals (i.e. the framework decision and the directive) were virtually identical.
The Commission was clearly aware of the sensitivity of the directive and states in its
proposal that a balanced approach is needed, in which the retention periods of 1 year for
mobile and fixed telephone traffic data and six months for traffic data related to internet
usage will cover the main needs of law enforcement, whilst limiting the associated costs
for industry and the intrusion into the private life of citizens (European Commission
2005). The Commission proposal on data retention was dealt with by the Committee on
Civil Liberties, Justice and Home Affairs, with Alexander Nuno Alvaro (ALDE) as the
rapporteur. The Committee was aware of the wish of the British Council presidency to
see a compromise system adopted at first reading before the end of 2005. The Conference
of Presidents confirmed that the EP was also interested in reaching a compromise by the
end of 2005. It is noteworthy that the rapporteur labeled this procedure as an ‘extremely
accelerated legislative procedure that should not be the rule, especially not in light of the
better regulation plans at the European level’ (European Parliament 2005a). Regular
meetings were held with the Council and Commission during this time in order to discuss
the state of affairs in the various institutions.
Subsequently, the Committee on Civil Liberties, Justice and Home Affairs defined its
position on the draft directive on November 24 2005. The report of the rapporteur
included 46 amendments agreed upon in the Committee (European Parliament 2005a).
The main amendments emphasize the protection of privacy of citizens. This is reflected
in amendment 3, in which a reference is made to article 7 and 8 of the Charter of
Fundamental Rights, explicitly recognizing the right to respect private life and the
protection of personal data. Also amendment 5 emphasizes the right of citizens to legal
protection and compensation against misuse of information38. A new article 3a is
included as an amendment in the report of the rapporteur on the access to retained data,
which restricts the use by other government bodies and private companies. The term
‘prevention’ is excluded from the Commission proposal because in the eyes of the
members of the civil liberties committee it is a vague concept and makes the retained data
more vulnerable to abuses. The issue of proportionality is also raised. It is stated that it is
unclear whether this directive does not go beyond what is necessary and proportionate in
order to achieve the objectives (amendment 14). The Committee on Industry, Research
and Energy and the Committee on the Internal Market and Consumer Protection issued
their opinions on the Commission proposal for a directive. The amendments were related
to the costs of storing traffic data for companies such as electronic communication
38
See also amendment 9, 15, 19, 37, 38.
18
providers and requirements for reimbursement by the member states for all extra costs
incurred in order to comply with obligations imposed on them as a result of the directive.
The civil liberties committee adopted the report by Alexander Nuno Alvaro, amending
the proposal under the 1st reading of the co-decision procedure. Although Alvaro had
initially secured the support of a broad coalition in the Committee for his report, it was
clear for many members in the committee that if this report was adopted, it would not be
accepted by the Council (Interview 9th March 2007).
It has to be underlined that the report of the Committee on civil liberties did not function
as the basis for the discussion in the EP, especially because two political groupings in the
EP (the EEP and PES) reached an agreement on a compromise text with the Council at
the beginning of December behind the back of the rapporteur (Interview 9th March 2007).
This defection from the broad coalition supporting the report of the rapporteur happened
as follows: the Council sent out its position and Charles Clarke (UK home secretary) met
each party group leader individually. The EPP and PSE then held a joint meeting, without
the other party groups, and decided to accept the Council text (Interview 8th March 2007).
Three reasons can be identified as regards to why the EPP and PSE accepted this text.
Firstly, they were wary of the negative publicity that the EP would get for delaying an
urgent piece of legislation. The UK presidency indicated that the EP would be held up to
blame for hindering anti-terrorism measures (Interview 8th March 2007).
Secondly, on a more speculative note, the UK presidency promised in return to change
the legal basis for deciding on a range of major security-related issues, that are currently
in the third pillar and therefore outside the competence of the EP. The offer was that
these security issues would in the future be decided under the 1st pillar39, giving the EP
co-decision powers on many new areas (Interview 8th March 2007).
Thirdly, the reason why the PSE changed sides was related to the reaction to the London
and Madrid bombings. There were labour governments in both these countries at the time
of the negotiations of the proposal, and these can be seen as the main proponents of data
retention. Hence, for many socialist MEPs it would have been difficult to sell this issue
back home if they were blocking data retention at EU level (Interview 9th March 2007).
As a result, the European Parliament was able to adopt on a resolution on data retention
by 378 votes in favour, 197 against and 30 abstentions on December 14th 2005. This
compromise text was adopted just before the end of the British Council presidency, as
pressed for by the UK.
The amendments finally adopted differed on some key issues when compared to the
amendments agreed upon by the civil liberties Committee (European Parliament 2005a;
Official Journal of the EU 2006). The main differences are the omission of the paragraph
in which it was stated that it would be mandatory for member states to reimburse telecom
companies for all additional costs of retention, storage and transmission of data, and
leaving out restrictions with regard to data retention in order to protect the privacy of
citizens. The latter was of low salience within the Council, but very important to the EP
(Interview 8th March 2007, Interview 9th March 2007). However, the EP still did not
39
Article 42 TFEU.
19
succeed in getting through its demands, as the outcome was that data protection would be
regulated on a national basis. Moreover, the final text of the directive mentions that the
legislation covers ‘all serious crimes’ and not only ‘very serious crimes’ (as listed in the
European Arrest Warrant catalogue) as requested for by the civil liberties committee. The
GUE, Greens and UEN groups and some members from the ALDE group voted against
the directive in the final vote. Alexander Nuno Alvaro did not stand behind the
compromise adopted and withdrew his name as rapporteur (European Parliament 2005b).
The European Economic and Social Committee was also opposed to the directive and
voiced its concern on the ‘disproportionate provisions’ and their infringements on
fundamental rights (EESC 2006). On 21st February 2006 the Council formally adopted
the Directive on data retention, with the Irish and Slovak delegations voting against
(European Parliament 2006).
The main motivation for the choice for the fast track co-decision procedure in the case of
this highly sensitive dossier is the demand of the UK presidency to boast results within
the quest of the fight against terrorism, especially in light of the London bombings of July
2005. A majority in the EP shared this concern and had the same preference as the UK
within the co-decision procedure, despite the highly controversial nature of the directive.
Moreover, if the EP would not agree under first reading with this directive, the chance
was quite high that the Council would proceed with its plan to adopt a framework
decision on data retention. This view is confirmed by the rapporteur. The Council
threatened that ‘if you don’t go along with our position on this, then we will continue
working on the same proposal in the third pillar’ (Interview 8th March 2007). This would
in turn have completely eclipsed the EP from the decision making process. The choice to
adopt the directive under first reading at least ensured some involvement in the decisionmaking process with regard to data retention. However, this resulted in a watered down
version of some of the amendments that were adopted in the civil liberties committee.
Moreover, only a restricted discussion took place of the possible negative implications of
the directive for telecommunications companies and the privacy of citizens.
6. Conclusion
Within the last legislative period there has been a stark increase in first reading
procedures. The question as to how this trend towards the so-called fast track procedure
can be explained was raised both within and beyond the EU institutional conglomarate.
When probing into the factors driving institutional actors to conclude at early stages of
the procedure we found that the argument advocated by the institutions, that for the most
part technical and non-salient issues are concluded by way of taking the fast-track, is
somewhat flawed. Out of 338 acts that were adopted in first reading during the previous
legislative period, we can observe the fact that 249 were amended or repealed and as such
subject to inter-institutional bargaining. It is thus not apparent that a vast bulk of dossiers
concluded are purely technical and subject to the procedure of codification of acts.
Moreover one can also observe that a majority of acts concluded within politically salient
policy domains such as environment and Justice and Home Affairs. This is of interest in
20
light of the fact that the Lisbon Treaty will be extended into the areas of freedom,
security and justice and this tendency is thus prone to continue.
This gives rise to the question of the role of the EP as a political actor and to the role of
political debate. The latter is reduced due to the fact that a limited set of actors prenegotiate legislation - not only secluded from the public eye - but also obfuscating the
process for interest groups and non-governmental organizations, who are unable to follow
the process. Political contestation is thus confined only to a limited set of actors, even
with regard to issues on which politicians and voters are divided, such as law and order
issues (Hix 2006). In these dossiers, fast tracking the co-decision procedure may indeed
lead to an undermining of the democratic legitimacy of the EU system of governance. It
remains to be seen whether the Lisbon Treaty provisions on national parliaments are able
to compensate for this loss of democratic legitimacy.
When it comes to the question of whether we can observe a trend as regards to whether
more legislative acts are adopted in first reading under the respective rotating
Presidencies we find that smaller Presidencies seem to make increasing use of the
procedure as it enables them to claim legislative successes under their chairmanship. It
goes without saying that the quantitative data is silent when it comes to the factors that
influence the conclusion under the different Presidencies. Complementing this data with
empirical qualitative studies can thus be more instructive.
What we also find, somewhat counter-intuitively, is the fact that there is no increased
legislative activity before EP elections when we look at procedures that were completed
at first reading. The picture differs however when one examines the number of legislative
acts dealt with under the respective Presidencies in first reading: more than 50 dossiers
where negotiated under French chairmanship and the Czech Presidency dealt with more
than 30 acts.
Rapporteurs can also be seen as being key driving forces to reach an agreement. This was
reflected in the animal testing directive and is mirrored in the literature, but what has
been somewhat eclipsed so far40 is that rapporteurs can also be circumvented if the
Presidency advocates this and has the power resources. The empirical findings on the
data retention directive indicate that being a large Member State pursuing a strong
political interest is one of such power resources. This case is also a clear example of
urgency, which is driven by issue salience.
A trend that can also be observed is that there seems to be a shift from first reading
agreements to early second reading agreements. These are in fact somewhat first readings
in disguise as agreement is reached between the institutions and a recommendation is
given for EP plenary to accept the Council common position without amendment. It is
noteworthy that this is not clearly denoted by statistical data.
40
For an exception see Ripoll Servant 2009.
21
What seems to be key in reaching an agreement at early stages of the agreement - and this
is confirmed by the case study on the animal testing directive - is the fact that this seems
to be driven by interests of Presidency. The nationality of the Presidency as opposed to
the rapporteur seems however not to be of importance. Whereas the animal testing
directive was not tabled by the Czech Presidency as it was judged as not being key it was
seen as a priority under Swedish chairmanship. Political agreement was then also found
under the latter but negotiations could not be concluded as implementing rules to be
introduced by way of the Lisbon Treaty were still outstanding. It will however not even
been wrapped up under the Spanish Presidency as legal and linguistic services were still
looking into this matter. This also gives an indication as regards to the importance of
institutional rules.
Our data thus indicates that substance is not a clear predictor as regards to whether an act
is adopted at first reading. Inter-institutional dynamics, at times combined with external
shocks, are however key.
This gives rise to the question whether the institutions will continue on the same path as
regards to concluding acts at early stages of the procedure now that the Lisbon Treaty is
in force. First observations indicate that this will be indeed the case.
This implies that the institutions will have to adapt their negotiating practices in order to
ensure open and wide-spread political debate on issues that are considered important for
the daily life of EU citizens.
22
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Interviews41
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Interview with Council official, January 14th 2010
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41
Around 30 interviews were conducted by the authors with MEPs and their staff during the years 2001-2002 i.a.
probing into the effects of co-decision on committee members. For details see: EIPA 2002.
25