1. Art.138b(2) of the EC Treaty.Google Scholar

2. Idem, Art.138c.

3. Idem, Art.138d.

4. Idem, Art.138e.

5. Idem, Art.189b.

6. See the opinion of Jean-Claude Piris, “After Maastricht, Are the Community Institutions more Efficacious, more Democratic and more Transparent?” (1994) 19 E.L.Rev. 449, 469–470.

7. See Art.189b(2): “The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament.”

8. See recently Case C-65/90 Parliament v. Council [1992] E.C.R. 1–4593.

9. See Idem, para.16, which is drafted in an all-embracing manner: “II résulte de la jurisprudence de la Cour que l'exigence de consulter le Parlement européen au cours de la procédure législative, dans les cas prévus par le traité, implique l'exigence d'une nouvelle consultation à chaque fois que le texte finalement adopté considéré dans son ensemble, s'écarte dans sa substance même de celui sur lequel le Parlement a déjà été consulté, à l'exception des cas où les amendements correspondent, pour l'essentil, au souhait exprimé par le Parlement lui-même.“

10. See the text of Art.189b(2), supra n.7, and compare with the text of Art.189c(a): “The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position.”

11. It is true that the European Parliament has ample opportunity to express its views at later stages. However, a further opinion after reconsultation would be adopted by simple majority while amendments adopted during the second reading require absolute majority.

12. See Art.189b, para.2 (the three-month time limit for the Parliament to decide on the common position), para.3 (the three-month time limit for the Council to act on the Parliament's amendments), para.S (the six-week time limits for the conciliation committee to approve a joint text and then for the Council and the Parliament to approve it) and finally para.6 (the six-week time limits for the Council to confirm its common position and for the European Parliament to reject it).

13. See Art.189b(2): “If within three months of such communication, the European Parliament … (c) indicates, by an absolute majority of its component members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position.”

14. This is to distinguish it from the conciliation committee mentioned in para.4, which takes place at the end of the second reading and must be convened systematically if no agreement is reached.

15. In fact, it could even be argued that it is there to provide information for the European Parliament only and not reciprocal information.

16. This optional conciliation was convened during the discussion of the text regulating the power of motorbikes. See the Commission's proposal (1992) O.J. C93/116 and the common position (1993) O.J. C193/1.

17. An inter-institutional agreement which was negotiated in order to organise the meetings of the conciliation committee seems to support the views of the Council: point 14 specifies that the present agreement is applicable to the optional conciliation with due regard to the provisions of the Treaty. This recognises that the optional conciliation is different from the conciliation of para.4 and that the inter-institutional agreement can apply only in so far as the rules contained therein conform with the specificity of the optional conciliation (for instance, its role).

18. (1993) O.J. C329/141.

19. See Art.189b(4), where the role of the Commission is emphasised as regards the conciliation committee: “The Commission shall take part in the Conciliation Committee's proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council.”

20. See Mégret, et al. , Le droit de la CEE (1979), Vol.9, pp.135–136Google Scholar and Wyatt, and Dashwood, , European Community Law (1993), pp.47–48.Google Scholar

21. See point 3 of the non-paper of the legal service of the Council SN 1404/94: “La doctrine développée par le Service juridique à propos du paragraphe 3 de l'ancien article 149, doit être confirmée en ce qui concerne la portée de l'article 189 A, paragraphe 2 relatif aux modifications de la proposition de la Commission. Ce pouvoir est ouvert à la Commission ‘tant que le Conseil n'a pas statué’: or, celui-ci ‘statue’ des lors qu'il adopte une position commune. Aussi, toute modification de la proposition après l'adoption d'une position commune est sans incidence sur la procédure qui se poursuit sur la seule base de la position commune ‘acte du Conseil’ (cf. ci-dessus). Les mêmes considérations doivent également continuer à s'appliquer au droit de retrait de la Commission, qui ne subsiste en tout cas plus après l'adoption de la position commune, conformémenl à la doctrine constante du Service juridique à propos de la procédure de coopération.”

22. See the argument based on the effet utile developed by Dashwood, “Community Legislative Procedures in the Era of the Treaty on European Union” (1994) 19 E.L.Rev. 343.

23. Art.189b(2): “If within three months of such communication, the European Parliament: (a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position.”

24. See Dashwood, op. cit. supra n.22.

25. This was the directive on the application of open network provision to voice telephony; see the common position (1993) O.J. C193/1.

26. See “Rapport d'activités du 2ème semestre de 1994” of the parliamentary delegation to the conciliation committee, unpublished.

27. See the report of the Commission on the functioning of the Treaty on European Union SEC(95)731, p.19: “Si l'on s'en tient aux seules propositions de la Commission présentées depuis l'entrée en vigueur du Traité, la durée moyenne de la procédure est inférieure à 300 jours. Cependant, il sera nécessaire d'affiner cette appréciation sur une période plus longue.”

28. See infra Sections III.A and B on the problems of comitology and amounts deemed necessary.

29. Reg.3378 of 22 Dec. 1994 amending Reg.1576/89/EEC laying down general rules on the definition, description and presentation of spirit drinks, and Reg.1601/94/EEC laying down general rules on the definition, description and presentation of aromatised wines, wine-based drinks and wine product cocktails following the Uruguay Round of the multilateral trade negotiations (1994) O.J. L366/1.

30. It is worth noting also that in this last category can be found the text on legal protection of biotechnological inventions which was ultimately rejected by the European Parliament.

31. This might not even be a useful test since for the directive on the approximation of the laws of the member States relating to lifts, one conciliation meeting was convened but the six-week time limit was extended for two more weeks while informal negotiations were under way. A provision guaranteeing the use of lifts by handicapped people was at the centre of the negotiations. The agreement on the final drafting of the article was formalised by the written procedure (the exchange of the agreement of both institutions is done in writing; no formal meeting of the conciliation committee is then necessary).

32. Some compromises have in fact taken place right at the end of the time limit.

33. For the conciliation committees on the directives on volatile organic compounds emissions, on packaging and packaging waste, and on harmonisation of norms for lifts, and on the “Socrates” and “Youth for Europe” programmes.

34. See infra Section III.

35. See the amended proposal COM/94/48 final—COD 437 and the common position (1993) O.J. C193/1.

36. The delegation of the Parliament to the conciliation committee has expressed the wish for a new constitutional convention entailing the systematic rejection of the common position in such a case. However, no such practice has yet had time to develop. See also Rules of Procedure, Art.78(4): “Parliament shall vote on a motion to reject the Council text.”

37. See the Commission's proposal (1989) O.J. C10/3, the amended proposal (1993) O.J. C44/36, the common position (1994) O.J. C101/65 and the rejection by the European Parliament.

38. The Commission's proposal was first published in 1989.

39. Also ecologist associations such as Greenpeace lobbied and campaigned efficiently in order to win over MEPs to their views about the text.

40. See the Commission's proposal (1993) O.J. C222/5.

41. See the Parliament's opinion (1993) O.J. C176/95 and the common position (1994) O.J. C137/42.

42. See the final text (1994) O.J. L280/83.

43. See the Commission's proposal (1992) O.J. C227/3.

44. See the opinion of the European Parliament (1993) O.J. C194/325 and the common position (1994) O.J. C91/82.

45. See the final text (1994) O.J. L365/24.

46. See the Commission's proposal COM/93/708 final (1994) O.J. C66.

47. See the Commission's proposal COM/93/523 final (1994) O.J. C160.

48. E.g. the Council accepted 18 of the 22 amendments put forward during the second reading. See EPdocA4–14/94 for the position of the European Parliament after the second reading. See also the opinion delivered by the European Parliament (1994) O.J. C217/18 and the common position (1994) O.J. C244/51.

49. This recognition did not go as far as the European Parliament wished: it had hoped that equal opportunities would also be protected in this context.

50. See e.g. the opinion of the European Parliament (1994) O.J. C217/24, the common position (1994) O.J. C232/57, the amendments of the European Parliament for the second reading EPdocA4–13/94 and (1994) O.J. C323/17.

51. In French the “Montana Estimés Ntcessaires” or MEN.

52. The term “comitology” refers to the various committees controlling the measures taken by the Commission to implement primary legislation. There are three main categories of committee procedures—consultative, management and regulatory—but the last two give large powers of control to the Council.

53. See Decision 87/373 (1987) O.J. L197/33.

54. See Case 302/87 Parliament v. Council [1988] E.C.R. 5615. The European Parliament tried to have the decision annulled but the EGJ considered that the Parliament did not have locus standi under Art.173 and rejected the claim on this basis. Nothing was said on the merits.

55. See (1993) O.J. C20/175.

56. It was impossible to agree to a joint text on voice telephony partly because of comitology. If the modus vivendi had been in force then an agreement would probably have been reached.

57. See infra n.62.

58. E.g. under Art.45 of the French Constitution of 1958 the “commission mixte paritaire”, the institution which draws up compromise texts between the Sénat and the Assemblée Nationale consists of 14 MPs (seven from each chamber).

59. Sometimes this number goes up to four when more than one topic is on the agenda.

60. The number is inevitably increased when e.g. the agenda covers more than one text: more commissioners will be present.

61. Contacts between civil servants in the various institutions are established early in the procedure.

62. The trilogue is a reduced negotiation forum where each institution is represented. It can meet at various hierarchical levels: the president of COREPER, the chairman and the relator of the parliamentary committee and the Commission member in charge of the dossier, or the President of the Council, the president of the Parliament delegation, and the commissioner in charge.

63. According to the European Parliament, the Council delegation takes too long and requires too many suspensions to reach an agreement between the various member States. Informal negotiations have also taken place with a specific member State delegation rather than the whole Council delegation. This was the case with the German delegation for the “Socrates” and “Youth for Europe” programmes.

64. There were nine ministers for the meeting of 4 Mar. 1994 and ten for that of 21 Mar. 1994.

65. There was an exception to this situation during the meeting of 5 Dec. 1994 for the deliberation on the “Socrates” and “Youth for Europe” programmes: seven ministers and six permanent representatives were present. As both programmes were discussed during the same conciliation meeting, there were two ministers presiding in turn.

66. Dashwood, , op. cit. supra n.22, at p.357. seems to think that it is unrealistic to expect ministers to attend these lengthy deliberations. However, conciliation meetings would be considerably shorter if ministers were systematically present.Google Scholar

67. There is an identity of organs between the Council and the Council delegation to the conciliation committee.

68. In fact the composition of the parliamentary delegation changes with each conciliation exercise and includes three permanent members only.

69. However, it is worth noting that the qualified majority required for any rejection of a text might be a serious obstacle for the European Parliament. E.g. it attempted to reject the directive on engine power of motorcycles after the optional conciliation which would have put an end to the whole legislative procedure. The Parliament failed to reach the required majority. It was forced to negotiate as a result.

70. Because of a national election campaign, Mr Bangemann could not attend the first conciliation committee on the directive on harmonisation of lifts. He was replaced by Mr Flynn.

71. See the final text (1995) O.J. C52/1.

72. E.g. in the negotiations which took place on harmonisation of technical norms for lifts, agreement was delayed since the Council rejected for a while the drafting of a provision creating an obligation for all new lifts to be adapted to the needs of handicapped people. It is worth noting that the unions of lifts manufacturers were not opposed to such a provision in the least.

73. See supra n.12.

74. In practice the meeting is formally convened on the same day that it is held, so as not to lose time. However, an informal notice is circulated beforehand to inform participants of the date of the conciliation meeting.

75. For a similar proposal see Justus Lipsius, “The 1996 Intergovernmental Conference” (1995) 20 E.L.Rev. 235: “The European Parliament should always be able to participate in the adoption of legislative acts, either on a consultative basis, or through a new ‘co-decision procedure’ which would give it larger powers; the co-operation procedure should disappear; the assent procedure for legislative acts, which is completely inadequate, should also disappear.”

76. This was already considered during the negotiations of the TEU. No decision was made then but the matter was added to the list of those to be examined at the IGC of 1996.

77. On this point see Piris, op. cit. supra n.6, at pp.478–479Google Scholar, and Lipsius, , op. cit. supra n.75, at p.263.Google Scholar