Some terms used by the EU are unique to them or may be confusing or mysterious for other reasons. Here we offer a few examples, with our explanatory notes: ‘may’ and ‘shall’, ‘taking into account’, ‘legislative procedures’, ‘approximation’ of laws, ‘consensus’.
1. Instruction v. Permission
The treaties often use the terms ‘may’ and ‘shall’ and the different uses raise interesting challenges. To open, here is what the EU’s English Style Guide (https://ec.europa.eu/info/files/english-resources-english-style-guide_en) says:
“10.23 Positive imperative. To impose an obligation or a requirement, EU legislation uses shall.”
“10.25 Positive permission. To give permission to do something, EU legislation uses may”
Here are some early examples using ‘shall’ from the:
CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION (TEU)
Article 3: 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability…
It shall promote economic, social and territorial cohesion, and solidarity among Member States.
In each of these cases, and in many others, the apparent imperative is softened, if not altogether dissolved, by what follows: “shall work for”, without saying how, and “shall promote” meaning that they won’t be held to account if “cohesion” is not achieved, even though that is a major ambition of the EU.
The EU, as a legal entity, is legally obliged to work towards something but the means are not specified because their “infinite variety” (Shakespeare) makes it impossible. Perhaps therefore this Article doesn’t belong in a legal constitution but a political declaration or a statement of intent.
Article 4: 2. The Union shall respect the equality of Member States before the Treaties…
Although this is an imperative we have shown that it is not observed.
Article 4: 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
This is a ‘principle’ set up to look good in the treaties but not applied in practice. And the instruction that the Member States must (an alternative to ‘shall’) respect and assist the Union and each other, has been shown to make no sense during the covid-19 pandemic.
Article 5: 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States…
We cover this in another topic in this series (see Treaties-6).
Article 9: In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.
This too is breached more than observed; by treating its member states unequally (for example, Greece and Italy and—in their own view at least, Poland and Hungary) the EU treats the citizens of such states unequally too.
Article 10: 1. The functioning of the Union shall be founded on representative democracy.
We wonder what “founded on” might mean when there is little evidence of democracy in EU practice. Perhaps they have simply redefined the term to cover (or obscure) the lack of the real thing. They do argue that the European Parliament represents democracy but we have shown that it doesn’t (see Treaties-2 and linked posts for details).
The powers of the EU Parliament are restricted by its own executive regarding changes to EU law. “If a legal add-on is proposed as a delegated act, the parliament has a chance to veto it. If it is an implementing act, MEPs are powerless to intervene.” It seems that the European Parliament is excluded from voting on legislative details by the Lisbon Treaty (TEU).
And here are some early examples using ‘may’ (sometimes followed by a ‘shall’):
Article 17: 2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
Do the “Treaties provide otherwise” anywhere? This is an odd use of ‘may’, which doesn’t seem to fit their own definition above. The “may only” gives the clue that this is a negative, though given the appearance of a positive. Only the Commission may propose legislation (is permitted to do so); we will have to search for proposals other than legislative ones. Are we left with the impression that no one other than the Commission can expect any proposal to be adopted? The ‘shall’ here is odd too; perhaps the ‘may’ and the ‘shall’ should be swapped between the two sentences. That would be more truthful, though perhaps rather too clear.
Article 17: 8. The European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body…
Article 36: The European Parliament may address questions or make recommendations to the Council or the High Representative.
But, apparently, not to the Commission itself. Article 3 of PROTOCOL (No 2) (ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY) has this, which confirms the subsidiary status of the Parliament:
For the purposes of this Protocol, “draft legislative acts” shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act.
Clearly, in legal terms as in everyday use, “initiatives”, “requests” and “recommendations” are not the stuff of proposals, and cannot expect to be adopted, unless the Commission chooses to turn one into a proposal.
Article 48: 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties… These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
So they may submit proposals for the amendment of the treaties. As far as we know if any proposals have been submitted they haven’t led the Commission to adopt any amendments; the Union’s ‘competences’ appear to have increased steadily over the years without the inconvenience of amending the treaties. The rest of Article 48 constrains any amendment to the treaties, though it does not appear to have constrained the Union from absorbing more competences (see Treaties-6 for more on this).
Amending the Treaties requires unanimity of all members which is tortuous and uncertain – so, much easier ways of avoiding this, or even discussing it openly, are found instead.
Article 48: 7. Where the Treaty on the Functioning of the European Union…provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case.
Unanimity is required, but if that proves impossible to achieve then it isn’t required. (Strictly, the TFEU only “provides” for the Council to act in unanimity if it wishes to, but if they can’t agree amongst themselves unanimity may be imposed on the fractious ministers.)
2. ‘Taking into account’
Variations on this phrase appear quite often in the Treaties and probably mean as little, in EU practice, as they appear to mean. Here are some examples (our emphases throughout this section):
Article 17: 7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members.
The European Council “shall propose…” and then the Parliament shall elect him or her, except in practice, when the Parliament’s declared preference, under the spitzenkandidat procedure, was overruled in 2019. (See https://www.politico.eu/article/who-killed-the-spitzenkandidat-european-parliament-election-2019-transition/)
Law-making dominates the activities of the EU institutions and while the European Parliament has to approve all laws it does not have the power to initiate them, which lies with the non-elected Commission and the Council. This is already evident in the volume of unnecessary legislation to which member states and their peoples have to conform in order to participate in the union projects.
Article 36: The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration.
(Not ‘He or she’ note) Key words here are “shall…consult” and “taken into consideration”, which are even weaker in practice than they appear to be in the treaty. The practice is better revealed by “inform it”.
Article 50: 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.
Again the practice of the EU subverts the apparent intention of its treaties. The “guidelines” turned into a mandate before they were implemented, and “in the light of” the mandate casts a very different light. And “taking account of the framework” simply hasn’t happened; ‘negotiations’ began and continued without any such framework having been developed or taken into account.
Next, from the:
CONSOLIDATED VERSION OF
THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)
Article 7: The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.
In practice the EU is not bothered by inconsistencies “between its policies and activities”. How on earth would it take “all of its objectives into account” and what could it mean to act “in accordance with the principle of conferral of powers”? On such matters the EU neither knows nor cares, in practice, though its leaders do care that we should believe what they say in the Treaties.
This we take to mean that powers conferred on the Commission are its alone and evermore shall be so.
Article 9: In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
Despite the imperative, this is surely no more than propaganda, intended to persuade an uncritical audience of the Union’s benevolence. Reading the lengthy list helps one to forget the imperative.
Article 12: Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
Article 27: When drawing up its proposals with a view to achieving the objectives set out in Article 26, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate provisions.
For example, Greece and Italy. See Article 4: 2 above for an apparent internal contradiction. (Article 4.2 “The Union shall respect the equality of Member States before the Treaties…”)
Taking into account how hard it is for some economies to compete is a license to doing whatever the EU likes, including nothing at all.
3. Legislative Procedures
The terms ‘ordinary’, ‘simplified’ (TEU p42), ‘regular’ and ‘special’ are often prefixed to the phrase ‘legislative procedure’, but do not appear to be defined in this context in the Treaties. However, in the EU Glossary: https://eur-lex.europa.eu/summary/glossary/ordinary_legislative_procedure.html we find:
ORDINARY LEGISLATIVE PROCEDURE (CODECISION)
The ordinary legislative procedure consists in the joint adoption by the European Parliament and the Council of a regulation, directive or decision in general on a proposal from the Commission.
Article 289: 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission.
We note that the EU institutions mentioned are expected to adopt Commission proposals, when they are consulted.
SPECIAL LEGISLATIVE PROCEDURE
The majority of EU legislation is adopted by means of the ordinary legislative procedure whereby the European Parliament and the Council decide on an equal footing (co-decision) on a legislative proposal made by the European Commission.
However, Article 289(2) of the Treaty on the Functioning of the European Union (TFEU) provides that, for certain cases defined in specific treaty articles, the Council is the sole legislator and the Parliament is required to either:
give its consent to the Commission’s proposal; or
to be consulted on it.
Article 289: 2. In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.
That’s an interesting combination under “required”; it implies that if the Parliament does not give its consent in these ‘special’ cases, then the Council and Commission will (‘may’?) go ahead anyway as long as they can show that the Parliament was “consulted”.
The European Parliament does not “exercise legislative and budgetary functions”, as stated in Article 14 (TFEU), though it may veto proposed legislation (except that in practice it doesn’t). The Parliament is redundant, other than as a screen and to reinforce the pretence that the EU is democratic.
4. ‘Approximation’ of Laws
Article 114: 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall…adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
(Our emphases) “The approximation of law is a unique obligation of membership in the European Union. It means that countries aspiring to join the European Union must align their national laws, rules and procedures in order to give effect to the entire body of EU law contained in the acquis communautaire.” (Europa Aug 2, 2019.)
Elsewhere the word ‘approximation’ appears to be used synonymously with ‘harmonisation’. (If you want to follow this up, see https://pdfs.semanticscholar.org/75ae/26a90265695b2a184b2797044e98892a1cb6.pdf)
Article 114: 4. If, after the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to maintain national provisions…
This is consistent with the Europa definition above, “…must align their national laws…”. And it is clear from the list of institutions that harmonisation (or ‘approximation’) measures can be adopted without the involvement of the European Parliament.
5. Consensus is used frequently in relation to discussions and decisions of the EU’s institutions. It is a suitably slippery word in everyday English, used about equally to mean ‘majority’ and ‘all’. The EU appears to use the second meaning:
Definition (from https://iate.europa.eu/search/standard/result/1600997998569/1): decision-making procedure where a vote is not taken but the decision is adopted if no one opposes it.
“Language level note: Instead of simply voting for an item and adopting the majority decision, a group using consensus is committed to finding solutions that everyone actively supports, or at least accepts. …By definition, a consensus decision does not go against the will of an individual or a minority. If significant concerns remain unresolved, a proposal can be blocked and prevented from going ahead.”
From the EU’s Comments on the European Council’s and Council’s Rules of Procedure:
“Given the lack of a formal adoption procedure in Union law, the Council decides on conclusions by consensus, meaning that a vote is not taken but they are not passed if any Council member opposes them.”
“As regards the procedures for adoption, Council statements in the minutes the content of which relates directly to a legislative act must be adopted according to the same voting method as the legislative act itself. On the other hand, statements which have intrinsic content not directly related to the adoption of a legal act by the Council constitute political positions taken by the Council and must therefore be adopted by consensus.”
“There are three voting rules provided for in the Treaty, namely: the Council acts by a majority of its members, by qualified majority or unanimously. Neither a ‘consensus’ nor a ‘common accord’ constitutes a voting rule within the meaning of the Treaty in respect of the adoption of Council acts.”
We can’t find an EU definition of this term, which is attached to a wide range of items following the main Treaty pages. Perhaps the EU is using the term in a conventional, dictionary way. Here is a possible definition that seems to fit the use in the Treaties (and some other agreements):
“The original draft of a diplomatic document, especially of the terms of a treaty agreed to in conference and signed by the parties.
• an amendment or addition to a treaty or convention.”