Chapter 4 Legislation and decision-making


  • There are four ‘regular’ types of legal instruments: Regulations, Directives, Decisions, and Recommendations and Opinions.
  • Regulations and Directives are the two legislative instruments that have general application, and Decisions are used for individual cases. Regulations are directly applicable in the member states once they are adopted at EU level, whilst Directives first need to be transposed by the member states into domestic legislation.
  • Recommendations and Opinions are non-binding instruments. Non-binding instruments also occur under other names, such as ‘Guidelines’.
  • The EU’s Common Foreign and Security Policy uses a different set of legal instruments, which have no legal effects within the member states.
  • Decision-making procedures in the EU differ along three main dimensions: the involvement of the Commission, the involvement of the European Parliament, and the voting rule used in the Council of Ministers. The more politically sensitive an issue is or the closer to member state governments’ vital interests, the smaller the role of the Commission and the EP in the associated decision-making procedure will be and the more likely the Council will be to decide by unanimity.
  • The ordinary legislative procedure seeks to define a balance between the Commission, the Council and the EP. In this procedure, the European Commission has the exclusive right of initiative, and both the Council and the EP have to approve a proposal and can amend it. Decision-making in the Council takes place by qualified
  • Over time, decision-making under the ordinary legislative procedure has increasingly taken place in informal ‘trilogues’ between the Council, the EP and the Commission. In these trilogues, the three institutions negotiate a mutually acceptable compromise, which is subsequently formally confirmed by the EP and the Council.
  • Special legislative procedures differ from the ordinary legislative procedure because the EP cannot amend proposals or is only consulted and/or voting in the Council takes place by Under the Common Foreign and Security Policy, the Commission and the EP have even smaller roles than under the special legislative procedures, and the European Council takes important decisions alongside the Council of Ministers.
  • The Open Method of Coordination (OMC) is a policy-making procedure that does not yield any binding decisions but attempts to bring about policy coordination through a process of benchmarking and learning.
  • Qualified majority voting (QMV) is a voting rule that seeks to balance the interests of small and large member states. As a result, it requires a double majority in the Council.
  • Although QMV is important in the background of Council decision-making, formal votes are often avoided in the Council and the member states try to find consensus before resorting to a vote.
  • Member state parliaments can raise objections to a legislative proposal if they feel the proposal violates the subsidiarity principle. If enough national parliaments do so, the initiator of the proposal needs to review the proposal and justify any revisions made (or not made).
  • ‘Differentiated integration’ has been presented as a way to overcome the wide variety of interests and local circumstances in the EU. At the same time, it has been criticized for leading to a fragmented Europe of ‘first rate’ and ‘second rate’ member states.
© Herman Lelieveldt and Sebastiaan Princen 2022

Cambridge University Press