The European Legislative Process: The Ordinary and Special Legislative Procedures

The European Legislative Process: The Ordinary and Special Legislative Procedures

1. Introduction

The European Union does not adopt legislation through a single institution or a single procedure. Its legislative system is based on cooperation between institutions, the participation of Member States, and procedures established by the Treaties. These procedures determine who may initiate legislation, which institutions must participate, how disagreements are resolved, and what conditions must be satisfied before a proposal becomes binding EU law.

The legislative process reflects the constitutional structure of the Union. The European Parliament represents EU citizens through direct elections, while the Council of the European Union represents the governments of the Member States. The European Commission generally initiates legislation and is responsible for promoting the general interests of the Union. These institutions perform different functions, but their interaction determines the content and adoption of much of EU legislation.

The Treaties establish two principal legislative procedures:

• The ordinary legislative procedure, under which the European Parliament and the Council jointly adopt legislation on an equal footing.
• The special legislative procedures, under which legislation is adopted through arrangements specifically provided for by the Treaties, generally involving the participation of one institution in the decision-making of the other.

The ordinary legislative procedure is the general method for adopting EU legislation and applies to most policy areas. Special legislative procedures remain important in fields where the Treaties preserve particular institutional arrangements, including certain aspects of taxation, family law, competition, and institutional governance.

The legal foundation is found primarily in Articles 289 and 294 of the Treaty on the Functioning of the European Union (TFEU). Other provisions regulate the Commission’s right of initiative, institutional cooperation, national parliamentary scrutiny, voting, and the formal publication of adopted acts.

Understanding the legislative process is essential for interpreting EU law. The procedure used to adopt a measure determines its legal classification as a legislative act, identifies the institutions responsible for its adoption, and provides important safeguards concerning democratic participation, institutional balance, and the exercise of Union competences.

2. The Constitutional and Legal Framework

2.1. Article 289 TFEU: Legislative procedures

Article 289 TFEU distinguishes between ordinary and special legislative procedures.

Under Article 289(1), the ordinary legislative procedure consists of the joint adoption by the European Parliament and the Council of a regulation, directive, or decision on a proposal from the Commission. The procedure is defined in Article 294.

Article 289(2) provides for special legislative procedures in specific cases established by the Treaties. Under these procedures, a regulation, directive, or decision is adopted by the European Parliament with the participation of the Council, or by the Council with the participation of the European Parliament.

The distinction is constitutional rather than merely administrative. It determines which institution has legislative authority and what form of participation is required from the other.

Article 289(3) establishes that legal acts adopted by legislative procedure constitute legislative acts. This is important because not every regulation, directive, or decision is necessarily a legislative act. Some are adopted through delegated or implementing powers and therefore have a different legal classification.

The legal nature of an instrument depends on the procedure through which it was adopted, not simply on its title.

2.2. The role of the European Commission

The Commission generally has the right of legislative initiative. It prepares and submits proposals for regulations, directives, and decisions under the relevant Treaty legal bases.

This function reflects the Commission’s responsibility to promote the general interests of the Union and ensure the application of the Treaties.

The Commission’s role begins before the formal legislative process. It may identify a regulatory problem, assess whether EU-level action is justified, consult interested parties, examine possible policy alternatives, and prepare an impact assessment.

The Commission’s right of initiative is not absolute. The Treaties provide for particular exceptions in which legislative acts may be initiated by other institutions or actors.

Article 289(4) recognises that, in specific Treaty-defined cases, legislative acts may be adopted on the initiative of a group of Member States or the European Parliament, on a recommendation from the European Central Bank, or at the request of the Court of Justice or the European Investment Bank.

The important point is that the source of legislative initiative must be established from the relevant Treaty provision. It cannot be assumed that every legislative proposal originates exclusively with the Commission.

2.3. The role of the European Parliament

The European Parliament is the directly elected legislative institution of the Union.

Under the ordinary legislative procedure, it shares legislative authority with the Council. It examines proposals, adopts amendments, negotiates compromises, and approves or rejects legislative texts.

Its role is particularly important because it introduces direct electoral representation into EU law-making.

Under special legislative procedures, the Parliament’s powers vary. It may be required to consent to a proposal, meaning that it can approve or reject the text but cannot amend it under that procedure. Alternatively, it may be consulted and invited to deliver an opinion.

The Parliament’s participation is therefore not identical in every legislative field.

2.4. The role of the Council of the European Union

The Council represents the governments of the Member States. Its composition changes according to the policy area under discussion.

Under the ordinary legislative procedure, the Council acts as a co-legislator alongside the Parliament. National ministers negotiate the proposed legislation and determine the position of their respective governments.

Under special legislative procedures, the Council may have the principal legislative role, subject to the participation of the Parliament.

The Council’s preparatory work is also significant. National experts examine proposals in working parties, while the Committee of Permanent Representatives (COREPER) prepares matters for ministerial consideration.

This structure allows national governments to participate in the technical and political examination of EU legislation before formal adoption.

2.5. The legal basis determines the procedure

The legal basis of a proposed measure is one of the most important questions in EU legislative law.

The Treaties do not permit institutions to select whichever legislative procedure they consider convenient. The relevant Treaty provision determines the Union’s competence, the permissible form of action, and the procedure that must be followed.

The legal basis must be selected by reference to objective factors capable of judicial review, particularly the aim and content of the proposed measure.

Where a proposal contains several objectives or components, the institution must determine the appropriate legal basis in accordance with the applicable principles governing multiple legal bases.

An incorrect legal basis may affect the validity of an act because it can result in the use of the wrong legislative procedure or the exclusion of an institution whose participation was required.

The Court of Justice may review whether the correct Treaty basis was used and whether the resulting act complied with the institutional requirements established by the Treaties.

3. The Ordinary Legislative Procedure

3.1. Meaning and constitutional significance

The ordinary legislative procedure is established by Articles 289(1) and 294 TFEU.

It is the principal method through which EU legislation is adopted. The European Parliament and the Council act as equal co-legislators. Neither institution can ordinarily impose a legislative text on the other without agreement.

The procedure replaced the earlier co-decision framework in terminology under the Treaty of Lisbon, although the development of parliamentary legislative authority had begun much earlier.

Its constitutional importance lies in the combination of two forms of representation:

• The European Parliament represents citizens of the Union.
• The Council represents the governments of the Member States.

A legislative act adopted through this procedure therefore requires agreement between institutions representing both the Union’s citizens and its Member States.

The ordinary legislative procedure applies to a wide range of policy areas, including the internal market, environmental protection, consumer protection, transport, energy, employment, and many aspects of the area of freedom, security and justice.

The exact scope is determined by the relevant Treaty provisions.

3.2. Stage One: Preparation of the Commission proposal

The legislative process generally begins with the Commission identifying a problem or policy objective that may require EU action.

The preparation of a proposal can involve several stages.

Policy planning. The Commission identifies areas in which legislative or non-legislative action may be necessary. Its political priorities and annual work programme provide an important framework for this activity.

Consultation. The Commission may invite contributions from citizens, businesses, national authorities, civil society organisations, academics, and other stakeholders. Public consultations and targeted consultations help identify practical problems and assess the likely effects of different policy options.

Impact assessment. Where appropriate under the Commission’s better regulation framework, an impact assessment examines the expected economic, social, environmental, and administrative consequences of possible measures. It may compare different regulatory approaches and consider whether EU-level intervention is justified.

Drafting. The Commission prepares the proposed regulation, directive, or decision, together with the explanatory materials required by the relevant institutional procedures.

The proposal must identify an appropriate legal basis and explain the reasons for the proposed intervention.

The Commission also considers the principles of subsidiarity and proportionality. These principles are particularly important where the Union shares competence with Member States.

Under subsidiarity, the Union should act in areas of non-exclusive competence only where the objectives of the proposed action cannot be sufficiently achieved by Member States and can be better achieved at Union level because of the scale or effects of the action.

Proportionality requires that the content and form of Union action do not exceed what is necessary to achieve the Treaties’ objectives.

3.3. Submission to the Parliament and Council

Once the Commission has adopted its proposal, it formally submits it to the European Parliament and the Council.

The proposal is registered and assigned for examination within each institution.

It is also transmitted to national parliaments under the arrangements established by Protocol No 1 on the role of national parliaments in the European Union and Protocol No 2 on the application of the principles of subsidiarity and proportionality.

Where the Treaties require consultation, the proposal may also be sent to advisory bodies such as the European Economic and Social Committee or the European Committee of the Regions.

These bodies do not ordinarily act as co-legislators. Their opinions contribute to the legislative process by providing specialist, economic, social, regional, or local perspectives.

3.4. The Parliament’s examination

Within the European Parliament, the proposal is normally referred to the committee responsible for the relevant policy area.

The committee appoints a rapporteur who prepares a report and proposes a position on the Commission’s text.

Other political groups may appoint shadow rapporteurs to follow the file and participate in negotiations.

The committee examines the proposal, considers amendments, and may invite the Commission, national authorities, experts, and interested stakeholders to provide evidence or explanations.

The committee then votes on its report and proposed amendments.

Depending on the parliamentary procedure, the matter proceeds to a plenary sitting, where Members of the European Parliament consider and vote on the proposed legislative position.

The Parliament may support the Commission proposal, amend it, or take a different position within the limits of the applicable Treaty and parliamentary rules.

The adopted position is then communicated to the Council.

3.5. The Council’s examination

At the same time, the Council examines the Commission proposal through its own preparatory structure.

The proposal is usually assigned to a working party composed of national experts. These experts examine the technical provisions, identify national concerns, and consider possible amendments.

The matter may then proceed to COREPER, which coordinates the positions of Member States and prepares the political questions for the ministers.

The relevant Council configuration eventually considers the proposal.

The Council may develop a general approach before the Parliament has completed its first reading. A general approach is a political agreement or negotiating position among Member States. It can facilitate negotiations, but it is not itself the Council’s formal first-reading position under Article 294.

The Council’s preparatory work is therefore extensive, but it must be distinguished from the formal stages of the legislative procedure.

4. The First Reading

4.1. Parliament’s first-reading position

Under Article 294(3) TFEU, the European Parliament adopts its position at first reading and communicates it to the Council.

The Parliament may approve the Commission proposal without amendments or adopt a position that modifies the proposed text.

The first reading does not have a Treaty deadline. This allows the institutions time to examine complex proposals, although political and administrative considerations may encourage earlier agreement.

The Council then examines the Parliament’s position.

4.2. Council approves Parliament’s position

Under Article 294(4), if the Council approves the Parliament’s first-reading position, the act is adopted in the wording corresponding to that position.

This is the simplest route to adoption.

It demonstrates the central feature of the ordinary legislative procedure: the two institutions must agree on the same legislative text.

4.3. Council does not approve Parliament’s position

If the Council does not approve the Parliament’s position, it adopts its own position at first reading and communicates it to the Parliament.

Under Article 294(6), the Council must explain the reasons that led it to adopt its position. The Commission must also inform the Parliament fully of its own position.

The procedure then moves to the second reading.

5. The Second Reading

The second reading is more structured than the first because the Treaties establish specific deadlines and voting requirements.

5.1. Parliament’s second-reading options

Under Article 294(7), the Parliament has three months from the communication of the Council’s first-reading position. This period may be extended by one month.

The Parliament may take one of three principal decisions.

Approval or failure to act. If the Parliament approves the Council’s position or does not take a decision within the prescribed period, the act is adopted in the wording corresponding to the Council’s position.

Rejection. The Parliament may reject the Council’s position by a majority of its component Members. If it does so, the proposed act is not adopted and the legislative procedure ends.

Amendments. The Parliament may propose amendments to the Council’s position. The amended text is sent to the Commission and the Council.

The second-reading rejection power is constitutionally important because it prevents the Council from adopting legislation without the Parliament’s agreement.

5.2. Council’s second-reading decision

The Council then has three months, extendable by one month, to examine the Parliament’s amendments.

If the Council approves all the amendments, the act is adopted.

However, if it does not approve all the amendments, the Presidents of the Parliament and Council convene the Conciliation Committee within six weeks, with the possibility of an extension of two weeks.

The Commission participates in the conciliation process and takes the necessary initiatives to reconcile the positions of the two co-legislators.

The Council’s second-reading decision is therefore the point at which unresolved disagreements may lead to the final formal stage of the ordinary legislative procedure.

6. Conciliation and the Third Reading

6.1. The Conciliation Committee

Conciliation is designed to resolve disagreements that remain after the second reading.

The Conciliation Committee consists of an equal number of representatives of the Council and the European Parliament. The Council side is represented by Member State representatives, while the Parliament side is represented by Members of the European Parliament.

The Commission participates and works to facilitate agreement.

The Committee examines the differences between the Parliament’s second-reading amendments and the Council’s position. Its objective is to produce a joint text acceptable to both institutions.

Conciliation is not simply another opportunity for general political discussion. It is a formal Treaty stage with a defined membership, purpose, and deadline.

6.2. The six-week deadline

Under Article 294(10), the Conciliation Committee has six weeks from its first meeting to agree on a joint text. This period may be extended by two weeks.

If the Committee fails to agree on a joint text within the prescribed period, the proposed act is not adopted.

The possibility of failure is important. The ordinary legislative procedure does not guarantee that a proposal will become law.

The institutions must reach agreement within the Treaty framework. If they cannot do so, the legislative process ends without adoption.

6.3. Adoption of the joint text

If the Conciliation Committee agrees on a joint text, the Parliament and Council proceed to the third reading.

Under Article 294(13), each institution has six weeks from approval of the joint text by the Conciliation Committee to adopt the act in accordance with that text.

The Parliament votes by a majority of the votes cast. The Council acts by qualified majority, subject to the Treaty provisions governing the particular act.

Neither institution can amend the joint text at this stage. They must approve or reject it.

If both approve the joint text, the act is adopted.

If either institution fails to approve it, the proposal is not adopted.

The third reading therefore provides a final confirmation mechanism rather than a new opportunity to renegotiate the substance of the measure.

6.4. The importance of conciliation

Although the ordinary legislative procedure permits up to three readings, many proposals are adopted earlier.

The formal possibility of conciliation remains constitutionally important because it provides a structured method for resolving disagreements without allowing either co-legislator to dominate the process.

The threat that a proposal may fail encourages compromise during earlier negotiations.

Conciliation also demonstrates that the EU legislative system is based on institutional agreement rather than a simple hierarchy between the Parliament and the Council.

7. Trilogues and Informal Legislative Negotiations

7.1. Meaning of a trilogue

In practice, much of the negotiation between EU institutions takes place through informal meetings known as trilogues.

A trilogue involves representatives of:

• The European Parliament.
• The Council of the European Union.
• The European Commission.

The objective is to identify a compromise that can be accepted by both co-legislators.

Parliament is normally represented by its negotiating team, including the rapporteur and representatives of the relevant political groups. The Council is represented by the Presidency, supported by the General Secretariat and national representatives as appropriate. The Commission participates as the institution that proposed the legislation and as a facilitator of negotiations.

Trilogues may take place during the first or second reading. They are particularly important because they allow institutions to negotiate a possible agreement before reaching the end of the formal Treaty stages.

7.2. Political agreements and formal adoption

A trilogue may produce a provisional political agreement on the legislative text.

However, that agreement is not itself the final adoption of the act.

The Parliament and Council must still complete the relevant formal procedures. The agreed text must be approved through the applicable institutional voting processes and must satisfy the requirements of the ordinary legislative procedure.

This distinction is essential.

A political agreement may make adoption highly likely, but it does not replace the formal legal act or the Treaty requirements governing its adoption.

7.3. Transparency and accountability

Trilogues have become a central feature of practical EU law-making, but their informal character has raised questions about transparency and public accountability.

Negotiations may involve complex compromises that are difficult to understand without access to the relevant documents and institutional positions.

The principle of openness is recognised in Article 15 TFEU, which requires the Union institutions to conduct their work as openly as possible, subject to the relevant Treaty and legal rules.

Article 10 TEU also establishes that the functioning of the Union is founded on representative democracy.

These principles are relevant when assessing the accessibility of legislative documents, the transparency of negotiations, and the ability of citizens and stakeholders to understand how legislation is developed.

The practical need for compromise must therefore be balanced with the democratic importance of transparency.

8. Special Legislative Procedures

8.1. Meaning and legal basis

Special legislative procedures apply in specific cases established by the Treaties.

Article 289(2) TFEU defines them as procedures in which a regulation, directive, or decision is adopted by the European Parliament with the participation of the Council, or by the Council with the participation of the European Parliament.

Unlike the ordinary legislative procedure, special procedures do not establish equal co-legislative authority between the Parliament and the Council in the same manner.

The exact allocation of authority depends on the relevant Treaty provision.

In many important examples, the Council adopts the legislative act while the Parliament must either give its consent or be consulted.

However, the Treaty definition is broader than a simple Council-only model. Some special procedures provide for the Parliament to adopt the act with the participation of the Council.

The legal basis must therefore be examined in each case.

8.2. The consent procedure

Under the consent procedure, the Parliament may approve or reject the proposed act but cannot amend its text within that procedure.

The Council cannot adopt the measure without obtaining the Parliament’s consent where the relevant Treaty provision requires it.

Consent is therefore a significant institutional safeguard.

Although the Parliament does not negotiate amendments through the formal consent vote, its ability to reject the proposal gives it substantial influence over the legislative outcome.

The procedure is used in certain areas where the Treaties require a heightened institutional safeguard.

Examples include certain measures concerning action to combat discrimination under Article 19 TFEU and the use of Article 352 TFEU, which provides a legal basis for action necessary to attain Treaty objectives where the Treaties have not provided the necessary powers.

Consent is also required in various procedures concerning the conclusion of international agreements under Article 218(6) TFEU. However, international agreement procedures are not all legislative procedures in the technical sense. The applicable Treaty provision must be examined rather than treating every consent vote as an ordinary special legislative procedure.

The distinction is important because the Parliament’s consent may be required for a decision concerning an international agreement even though that decision is not necessarily a legislative act.

8.3. The consultation procedure

Under the consultation procedure, the Parliament is required to deliver an opinion before the Council adopts the relevant legislative act.

The Parliament may support the proposal, oppose it, or suggest amendments.

However, the Council is not generally required to follow the Parliament’s substantive recommendations.

The Council must nevertheless comply with the obligation to consult the Parliament where the Treaty requires consultation.

Consultation is not a purely optional courtesy. It is a procedural requirement.

If the Council adopts an act without obtaining an opinion where consultation is mandatory, the resulting act may be unlawful and subject to annulment.

The Council must also consult the Parliament again where the proposal is substantially amended in circumstances requiring renewed consultation under the applicable case law.

This protects the Parliament’s right to participate in the legislative process at the stage and in the manner required by the Treaties.

8.4. The distinction between consent and consultation

The two procedures give the Parliament different forms of influence.

Under consent, the Parliament can prevent adoption by rejecting the proposal. It cannot amend the text through the formal consent procedure.

Under consultation, the Parliament must be heard, but the Council may proceed without accepting its proposed amendments.

The distinction may be summarised as follows:

Feature	Consent	Consultation
Parliament’s role	Approves or rejects	Delivers an opinion
Ability to amend through the procedure	No	May propose amendments
Council’s obligation	Must obtain consent	Must consult
Can Parliament prevent adoption?	Yes, by withholding consent	Not ordinarily through its opinion alone
Main function	Institutional approval	Procedural participation and advice

Both procedures preserve a role for the Parliament, but neither gives it the same co-legislative position that it enjoys under the ordinary legislative procedure.

9. Examples of Special Legislative Procedures

The Treaties provide for special legislative procedures in a number of policy areas. The following examples illustrate the diversity of these arrangements.

9.1. Certain aspects of taxation

Taxation is an important example of an area in which the Treaties preserve a significant role for the Council.

Under Article 113 TFEU, the Council may adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties, and other forms of indirect taxation where harmonisation is necessary to establish and ensure the functioning of the internal market and avoid distortion of competition.

The Council acts unanimously under a special legislative procedure after consulting the European Parliament and the European Economic and Social Committee.

This requirement reflects the sensitivity of taxation to national fiscal sovereignty.

Member States retain important responsibilities for determining their tax systems, and the Treaties therefore establish a demanding decision-making requirement for certain EU-level tax measures.

Other Treaty provisions establish special procedures for particular tax-related matters. The precise legal basis and voting requirement must always be checked.

9.2. Certain measures concerning family law

Article 81(3) TFEU provides a special arrangement for measures concerning aspects of family law with cross-border implications.

The Council acts unanimously under a special legislative procedure after consulting the European Parliament.

The provision also establishes an important procedural safeguard. The Council may, on a proposal from the Commission, adopt a decision determining those aspects of family law with cross-border implications that may be the subject of acts adopted through the ordinary legislative procedure.

Such a decision requires unanimity and notification to national parliaments. If a national parliament objects within six months, the decision cannot be adopted.

This mechanism illustrates how the Treaties permit a specific policy field to move from a special to an ordinary legislative procedure, subject to strict safeguards.

9.3. Measures to combat discrimination

Article 19(1) TFEU permits the Council, acting unanimously under a special legislative procedure and after obtaining the consent of the European Parliament, to take appropriate action to combat discrimination based on the grounds listed in that provision.

These grounds include sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation.

The provision demonstrates the use of the consent procedure in an area involving important social and constitutional interests.

Article 19(2) also provides for the adoption of basic principles of Union incentive measures, excluding harmonisation of national laws and regulations, through the ordinary legislative procedure.

The same Treaty article therefore illustrates how different procedures may apply within a related policy field depending on the type of measure.

9.4. Article 352 TFEU: The flexibility clause

Article 352 TFEU permits the Union to adopt appropriate measures where action is necessary to attain one of the objectives set out in the Treaties, but the Treaties have not provided the necessary specific powers.

Its use is subject to strict conditions.

The Council acts unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.

The Commission must draw national parliaments’ attention to proposals based on this provision in accordance with the relevant Treaty requirements.

Article 352 cannot be used to expand the Union’s competences beyond the framework established by the Treaties or to circumvent express limitations on Union powers.

It is a mechanism for addressing situations in which action is necessary to achieve Treaty objectives but a specific legal basis is unavailable.

9.5. Other Treaty-based special procedures

Special legislative arrangements also exist in areas involving institutional organisation, certain aspects of judicial cooperation, and particular measures concerning the functioning of the Union.

Examples include provisions governing:

• Certain aspects of the European Parliament’s electoral procedure under Article 223 TFEU.
• Certain aspects of the organisation and jurisdiction of the Court of Justice under the relevant Treaty provisions.
• Certain measures concerning the European Union’s own resources and financial arrangements, which are governed by specific Treaty procedures rather than being treated as ordinary legislative acts.

These examples show why it is necessary to distinguish special legislative procedures from other special decision-making procedures.

Not every unanimous Council decision, consent vote, or institutional agreement is automatically a special legislative procedure within Article 289.

10. The Participation of National Parliaments

10.1. National parliamentary scrutiny

The EU legislative process is not limited to the institutions in Brussels and Strasbourg.

National parliaments have a formal role in monitoring draft EU legislative acts, particularly in relation to subsidiarity.

Protocol No 1 and Protocol No 2 to the Treaties establish procedures through which national parliaments receive legislative proposals and may assess whether the Union is acting within the limits of the subsidiarity principle.

This system is commonly associated with the early warning mechanism.

The objective is to ensure that legislative action at Union level respects the constitutional division of responsibilities between the Union and the Member States.

10.2. The eight-week period

Under Protocol No 2, national parliaments generally have eight weeks from the transmission of a draft legislative act to submit a reasoned opinion explaining why they consider that the proposal does not comply with subsidiarity.

Each national parliament has two votes, distributed according to the arrangements for bicameral systems.

Where the required threshold of reasoned opinions is reached, the draft must be reviewed under the yellow-card procedure.

The institution that submitted the draft, usually the Commission, must reconsider the proposal. It may maintain, amend, or withdraw it, giving reasons for its decision.

For certain proposals concerning the area of freedom, security and justice, a higher threshold applies under the orange-card procedure. If the relevant threshold is reached, and the Commission maintains the proposal, the Parliament and Council must consider the subsidiarity objection under the conditions established by the Protocol.

The early warning mechanism does not give national parliaments a general veto over EU legislation. It is a procedural safeguard focused on subsidiarity.

10.3. The significance of national parliamentary participation

National parliamentary scrutiny connects EU law-making with domestic constitutional systems.

It provides a formal opportunity for national legislatures to assess whether a proposed measure should be adopted at Union level or whether its objectives can be sufficiently achieved by Member States.

This is particularly important in areas of shared competence, where the Union and Member States may both have legislative responsibilities.

The mechanism does not replace the legislative powers of the European Parliament and Council. Instead, it adds a constitutional check to the process.

11. Voting Rules and Institutional Decision-Making

The legislative process also depends on the voting rules applicable within each institution.

11.1. Voting in the European Parliament

Under the ordinary legislative procedure, the Parliament generally adopts its first-reading position by a majority of the votes cast.

At second reading, the Treaty establishes a more demanding requirement for rejecting the Council’s position or adopting amendments: an absolute majority of the Parliament’s component Members.

At third reading, the joint text is approved by a majority of the votes cast.

The distinction between a majority of votes cast and an absolute majority of component Members is important.

An absolute majority is calculated by reference to the full membership of the Parliament, not merely the Members present and voting.

11.2. Voting in the Council

The Council generally acts by qualified majority under the ordinary legislative procedure, unless the Treaties provide otherwise.

Under the standard qualified majority rule, a proposal requires the support of at least 55% of Member States, currently at least 15 of the 27, representing at least 65% of the EU population.

A blocking minority must generally include at least four Member States.

Where the Treaties require unanimity, every Member State must support the decision, subject to the applicable rules on abstention.

Special legislative procedures may therefore involve different voting requirements, including unanimity.

The voting rule is determined by the relevant legal basis, not by a general assumption that every Council legislative decision uses qualified majority voting.

11.3. Article 293 TFEU and the Commission proposal

Article 293 TFEU establishes an important rule concerning amendments to Commission proposals.

Where the Council acts on a Commission proposal, it may generally amend that proposal only by unanimity, subject to the exceptions identified in the Treaties.

This provision protects the Commission’s role in the legislative process and gives it influence over the content of proposals.

The Commission may also alter its proposal at any time while the Council has not acted, subject to the applicable Treaty framework.

The provision should not be interpreted as meaning that every amendment during the ordinary legislative procedure requires unanimity. The Treaty establishes specific rules for the Council’s treatment of Commission proposals, while Article 294 regulates the respective positions and voting requirements of the co-legislators at different stages.

12. Formal Adoption, Signature, and Publication

12.1. Completion of the legislative procedure

Once the Parliament and Council have agreed on the final text through the applicable procedure, the legislative act is formally adopted.

The adopted act must satisfy the relevant requirements concerning legal form, reasoning, signature, and publication.

Article 296 TFEU requires legal acts to state the reasons on which they are based and to refer to proposals, initiatives, recommendations, requests, or opinions required by the Treaties.

The statement of reasons is important because it explains the purpose of the measure and provides a basis for understanding the institution’s assessment of the legal and factual circumstances.

It may also assist the Court of Justice when reviewing the legality of the act.

12.2. Signature

Article 297 TFEU establishes the rules governing the signature of legislative acts.

Legislative acts adopted under the ordinary legislative procedure are signed by the Presidents of the European Parliament and the Council.

Legislative acts adopted under a special legislative procedure are signed by the President of the institution that adopted them.

The signature is part of the formal process by which the adopted act is authenticated.

12.3. Publication in the Official Journal

Legislative acts are published in the Official Journal of the European Union.

Under Article 297 TFEU, they enter into force on the date specified in them or, if no date is specified, on the twentieth day following publication.

Publication is essential to legal certainty. It enables individuals, businesses, national authorities, and courts to identify the applicable legal rules.

The date of adoption should therefore be distinguished from the date of publication and the date on which the act enters into force.

These dates may be different.

12.4. Entry into force and application

Entry into force does not necessarily mean that every substantive provision becomes applicable immediately.

A legislative act may provide for delayed application, transitional arrangements, phased implementation, or different dates for particular provisions.

A regulation may become legally effective on one date while certain obligations apply from a later date.

A directive may enter into force upon publication but establish a later deadline for Member States to transpose its provisions into national law.

The legal consequences must therefore be determined by examining the final text rather than assuming that publication produces immediate application of every obligation.

13. Legislative Acts and Non-Legislative Acts

A further distinction is necessary between legislative acts and non-legislative acts.

Under Article 289(3) TFEU, acts adopted by legislative procedure are legislative acts.

However, regulations, directives, and decisions may also be adopted outside a legislative procedure.

For example, delegated acts under Article 290 TFEU and implementing acts under Article 291 TFEU may take the form of regulations, directives, or decisions but are non-legislative acts.

The difference concerns the legal authority and procedure through which the act was adopted.

A delegated act may supplement or amend non-essential elements of a legislative act within the limits of the delegation.

An implementing act establishes uniform conditions for implementing legally binding Union law where such conditions are required.

Neither should be confused with a legislative act adopted by Parliament and Council through the ordinary or a special legislative procedure.

This distinction is important for determining the institutional authority involved, the procedural safeguards available, and the legal limits governing the measure.

14. Judicial Review of the Legislative Process

The legislative process is subject to judicial review by the Court of Justice of the European Union.

Article 263 TFEU allows the Court to review the legality of legislative acts and other acts intended to produce legal effects vis-à-vis third parties.

The Court may examine whether an institution has complied with the Treaties and with the procedural requirements governing the adoption of the act.

14.1. Incorrect legal basis

If an institution selects an incorrect legal basis, the resulting act may be invalid.

The choice of legal basis determines the Union’s competence and the procedure to be followed. An error may therefore affect the institutional balance and the rights of participation of the Parliament, Council, or other required participants.

14.2. Failure to consult

Where the Treaties require consultation with the Parliament or an advisory body, failure to obtain the required opinion may constitute a breach of an essential procedural requirement.

The Council cannot disregard a mandatory consultation merely because it believes that the opinion would not change the outcome.

The consultation requirement protects the institutional position of the body whose participation is required.

14.3. Failure to comply with voting requirements

The applicable voting rules are also legally significant.

An act adopted without the required majority or unanimity may be unlawful.

The Court may examine whether the institution complied with the voting conditions established by the relevant Treaty provision.

14.4. Infringement of subsidiarity and proportionality

The legislative process must respect subsidiarity and proportionality where those principles apply.

Protocol No 2 provides mechanisms for national parliamentary scrutiny, while the Court of Justice may review compliance with subsidiarity under the conditions established by the Treaties and relevant procedural rules.

Proportionality is also a general principle governing the exercise of EU powers. The content and form of Union action must not exceed what is necessary to achieve the objectives of the Treaties.

14.5. Institutional balance and democratic requirements

The Court may also review whether the institutions have respected the allocation of powers established by the Treaties.

The legislative procedure is not simply a sequence of administrative steps. It is part of the constitutional structure of the Union.

The participation of the Parliament, the Council, and the Commission must therefore comply with the requirements of the applicable Treaty provisions.

15. Practical Method for Analysing an EU Legislative Act

When examining an EU legislative measure, the following method provides a useful starting point.

First, identify the legal basis. Determine which Treaty article authorises the measure and establishes the applicable procedure.

Second, identify the type of legislative procedure. Establish whether the act was adopted under the ordinary or a special legislative procedure.

Third, identify the participating institutions. Determine whether the Parliament and Council acted as co-legislators or whether one institution adopted the act with the participation of the other.

Fourth, examine the Commission’s role. Identify the source of the proposal and whether any Treaty exception to the Commission’s ordinary right of initiative applies.

Fifth, examine the procedural history. Determine whether the proposal was adopted at first reading, second reading, or following conciliation. Where relevant, examine the role of trilogues and the opinions of advisory bodies.

Sixth, verify the voting requirements. Establish whether qualified majority, unanimity, an absolute majority, or another voting rule applied.

Seventh, examine the final act. Identify the date of adoption, signature, publication, entry into force, and application.

Eighth, consider judicial review. Determine whether the legal basis, procedure, institutional participation, and substantive provisions comply with the Treaties.

This approach helps distinguish procedural legality from the substantive content of the measure. Both are essential to understanding the validity and operation of EU legislation.

16. Key Takeaways

• Articles 289 and 294 TFEU establish the ordinary and special legislative procedures.
• The ordinary legislative procedure is the principal method of EU law-making.
• Under the ordinary procedure, the European Parliament and Council act as equal co-legislators.
• The Commission generally has the right of legislative initiative, although the Treaties provide specific exceptions.
• The ordinary procedure may involve up to three readings and, where necessary, a conciliation process.
• At first reading, the Parliament adopts its position and communicates it to the Council. The Council may approve that position or adopt its own.
• At second reading, the Parliament may approve, reject, or amend the Council’s position.
• If the Council does not approve all the Parliament’s second-reading amendments, a Conciliation Committee may be convened.
• Conciliation seeks to produce a joint text that must subsequently be approved by both institutions at third reading.
• Trilogues are informal negotiations involving the Parliament, Council, and Commission. They do not replace the formal Treaty procedure.
• Special legislative procedures apply in specific cases established by the Treaties.
• Under the consent procedure, the Parliament may approve or reject a proposal but cannot amend it through the formal consent vote.
• Under the consultation procedure, the Parliament must be consulted, but the Council is not generally bound by its opinion.
• National parliaments may scrutinise draft legislative acts for compliance with subsidiarity under the early warning mechanism.
• Voting requirements vary according to the applicable Treaty provision.
• Legislative acts must comply with formal requirements concerning reasoning, signature, publication, and entry into force.
• Delegated and implementing acts are non-legislative acts even when they take the form of regulations, directives, or decisions.
• The Court of Justice may review whether an EU legislative act was adopted in accordance with the Treaties and the applicable procedural requirements.

17. Frequently Asked Questions

1. What is the ordinary legislative procedure in the European Union?

The ordinary legislative procedure is the main method of adopting EU legislation. Under Articles 289 and 294 TFEU, the European Parliament and the Council jointly adopt regulations, directives, or decisions on a proposal from the Commission. Both institutions must agree on the final text.

2. Which institutions participate in the ordinary legislative procedure?

The European Parliament and the Council are the two co-legislators. The Commission normally initiates the proposal and participates throughout the process, including by providing explanations and facilitating negotiations.

3. How many readings are possible under the ordinary legislative procedure?

The procedure may involve up to three readings. Many proposals are adopted at first or second reading. If disagreements remain after the second reading, a Conciliation Committee may be convened, followed by a third reading if a joint text is agreed.

4. What happens if the Parliament and Council cannot agree?

If the institutions cannot agree during the first reading, the process may proceed to the second reading. If they cannot resolve their differences after the second reading, conciliation may take place. If the Conciliation Committee fails to agree on a joint text, or if either institution rejects the joint text at third reading, the proposal is not adopted.

5. What is a trilogue?

A trilogue is an informal negotiation involving representatives of the European Parliament, the Council, and the Commission. Its purpose is to identify a compromise on proposed legislation. Any provisional agreement must still be approved through the formal legislative procedure.

6. What is the difference between the ordinary and special legislative procedures?

Under the ordinary procedure, the Parliament and Council act as equal co-legislators. Under a special procedure, the allocation of legislative authority is determined by the relevant Treaty provision. In many cases, the Council adopts the act after obtaining the Parliament’s consent or consulting it.

7. Can the European Parliament block legislation?

Yes. Under the ordinary procedure, it can reject the Council’s position at second reading or refuse to approve a joint text at third reading. Under the consent procedure, it can prevent adoption by withholding its consent.

8. Can the Council adopt legislation without the Parliament?

In certain special legislative procedures, the Council adopts legislation after consulting the Parliament or obtaining its consent. The Parliament’s participation remains a Treaty requirement, but it does not act as an equal co-legislator in the same way as under the ordinary procedure.

9. Does the Commission always initiate EU legislation?

No. The Commission generally has the right of initiative, but the Treaties establish specific exceptions. In certain fields, legislative initiatives may originate from a group of Member States or the European Parliament, or follow a recommendation or request from another institution.

10. What is the role of national parliaments in EU law-making?

National parliaments receive draft legislative proposals and may assess whether they comply with subsidiarity. Under the early warning mechanism, they may submit reasoned opinions within eight weeks. If the applicable threshold is reached, the proposal must be reviewed under the relevant Treaty protocol.

11. What happens after an EU legislative act is adopted?

The act is formally authenticated and signed in accordance with Article 297 TFEU. It is then published in the Official Journal of the European Union. It enters into force on the date specified in the act or, if no date is specified, on the twentieth day following publication.

12. Are all EU regulations and directives legislative acts?

No. Regulations, directives, and decisions may be adopted through legislative or non-legislative procedures. Delegated and implementing acts, for example, may take these legal forms but are not legislative acts under Article 289(3) TFEU.

13. Can an EU legislative act be challenged before the Court of Justice?

Yes. Article 263 TFEU provides for judicial review of the legality of legislative acts and other acts intended to produce legal effects vis-à-vis third parties. The Court may examine competence, procedural compliance, institutional balance, and other grounds of legality.

18. Conclusion

The European legislative process is a structured system of institutional cooperation designed to ensure that EU law is adopted through legally defined procedures. The ordinary legislative procedure establishes the European Parliament and the Council as equal co-legislators, while the special legislative procedures preserve particular arrangements in policy areas where the Treaties allocate authority differently.

The Commission’s role in initiating legislation, the Parliament’s democratic representation, and the Council’s representation of national governments form the central institutional framework of EU law-making. National parliamentary scrutiny, advisory opinions, public consultations, and informal negotiations add further dimensions to this process.

The legislative procedure is not merely a technical mechanism for producing regulations and directives. It is a constitutional safeguard. It determines how Union competences are exercised, how institutional authority is distributed, and how the interests of citizens and Member States are represented in the adoption of binding law.

For this reason, the validity of an EU legislative act depends not only on whether its substantive provisions are compatible with the Treaties, but also on whether it was adopted by the appropriate institutions, under the correct legal basis, and in accordance with the required procedure.

Understanding these procedural foundations provides the necessary framework for studying the subsequent stages of EU law: its implementation by Member States, its interpretation by national courts and the Court of Justice, and the mechanisms through which compliance with Union law is enforced.

19. Primary Legal Sources and Further Reading

Treaties and protocols

1. Article 10 TEU – Representative Democracy
2. Article 11 TEU – Democratic Participation and Consultation
3. Article 225 TFEU – European Parliament Requests for Commission Proposals
4. Article 241 TFEU – Council Requests to the Commission
5. Article 289 TFEU – Legislative Procedures
6. Article 293 TFEU – Commission Proposals and Council Amendments
7. Article 294 TFEU – Ordinary Legislative Procedure
8. Article 296 TFEU – Reasons for Legal Acts
9. Article 297 TFEU – Signature, Publication, and Entry into Force
10. Article 113 TFEU – Harmonisation of Indirect Taxation
11. Article 19 TFEU – Action to Combat Discrimination
12. Article 81(3) TFEU – Family Law with Cross-Border Implications
13. Article 352 TFEU – Flexibility Clause
14. Protocol No 1 – The Role of National Parliaments in the European Union
15. Protocol No 2 – Application of the Principles of Subsidiarity and Proportionality

Institutional resources

1. European Parliament – Ordinary Legislative Procedure
2. Council of the European Union – Ordinary Legislative Procedure
3. Council of the European Union – Special Legislative Procedures
4. European Commission – Law-Making Process
5. EUR-Lex – Ordinary Legislative Procedure
6. EUR-Lex – Special Legislative Procedure
7. European Parliament – Legislative Procedure: Stages and Practical Arrangements
8. Council of the European Union – Guide to the Ordinary Legislative Procedure