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The Union's founding principles
Simplification of the instruments at the Union's disposal in its action is a vital
point of the Laeken Declaration laying down the Convention's mandate.
The Convention's work has made it possible to meet this expectation by clarifying the existing system. From now on the typology of acts is limited to six instruments (law, framework law, regulation, decision, recommendation and opinion) as opposed to more than 15 acts at present (five basic acts and numerous "atypical acts", making it difficult to get an overall grasp).
Thus, Article I-32 enumerates the six new legal acts and distinguishes between the legislative and the non-legislative level, which is without precedent in the Treaty establishing the European Community (EC Treaty).
As regards the implementing acts, the Commission's role is reinforced to the extent that it is conferred with implementing powers. The Member States are also more closely involved in the process of monitoring the exercise of these powers. On the other hand, the Commission's primary role in respect of legislative delegation has been officially recognised.
The provisions relating to the signature, publication and entry into force of the Union's acts are identical to those of the EC Treaty (Article I-38). Likewise, Article I-37 is in line with the equivalent rules in the existing treaties as regards the grounds on which the acts are based and the freedom of the institutions to choose the type of act to adopt, when the texts do not specifically stipulate it.
Finally, acts in the framework of the second and third pillars are expected to disappear together with the structure of the pillars which justifies their existence. Consequently, it will be possible to use only the six types of acts mentioned above, also in the case of these specific domains.
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Article I-32 distinguishes between legislative acts and non-legislative acts. Each category is addressed in a specific article: Article I-33 for legislative acts and I-34 for non-legislative acts.
There are two types of legislative acts -- laws and framework laws.
At present, Article 249 of the EC Treaty lists the five existing basic acts (directive,
regulation, decision, recommendation and opinion) and states their effects. Correspondences
can be established between these acts and the new names. Hence, the definition of
a European law corresponds to what is currently known as a regulation. Like a regulation,
a European law is directly applicable in all Member States and does not need to be
transposed into domestic law. The definition of a European framework law corresponds
to that of directive. It lays down the results to be achieved but leaves it to the
Member States to choose the measures to be taken to achieve these results within
a given time limit.
Article I-33 lays down the procedures for adopting laws and framework laws, in most cases on the basis of the ordinary legislative procedure.
There are four types of non-legislative acts -- regulations, decisions, recommendations
In the draft submitted by the Convention, a regulation is a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitution. These regulations may also take the form of delegated regulations or implementing acts.
Besides, according to the new definition, a decision includes both a decision addressed to specified recipients and a general decision, which is not the case at present, because decisions are binding only on those to whom they are addressed.
Finally, the power to adopt recommendations, which up to now is generally vested exclusively in the Commission, has been extended to the Council (Article I-34).
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The draft constitutional treaty proposes dividing the implementing powers currently enshrined in Article 202 of the EC Treaty into delegated regulations (Article I-35) and implementing acts as such (Article I-36).
The Commission becomes the only body responsible for adopting delegated regulations designed to supplement or amend certain non-essential elements of a law or framework law (Article I-35 specified that "a delegation may not cover the essential elements of an area"). Hence, definition of the more technical aspects may be delegated to the Commission, in compliance with the implementing conditions set out in the laws or framework laws (content, scope and duration of delegation). Besides, this delegation may only be performed under the control of the two branches of the legislative power - in other words the Parliament or the Council may decide to revoke the delegation and it may enter into force only with the tacit approval of the co-legislators.
Article 36, which is devoted to implementing acts as such, recalls that the de
facto implementation of Community rules is normally a matter for the Member States.
If the Union's intervention is justified on the basis of the
principle of subsidiarity
, implementing powers may be conferred on the Commission or even on the Council in
specific cases which are duly justified. The adoption of implementing acts is in
principle a matter for the Commission, while Article 202 of the EC Treaty provides
that the Council, the holder of the implementing power, confers implementing powers
on the Commission. The Union's implementing acts take the form of European implementing
regulations or European implementing decisions.
To the extent that the Commission exercises a power which, in principle, is derived from the Member States; it makes sense that it should be assisted by committees of representatives of the Member States, whose task is to deliver an opinion on the draft implementing measures proposed by the Commission. This control system is known under the term "comitology".
Article I-36 stipulates that the general rules of comitology are laid down by law and hence no longer by the Council alone, as is the case at present. Besides, these mechanisms, pursuant to the wording of this article, will be mechanisms for control "by Member States". This could place a restriction on the role of the European Parliament, whose codecision rights were significantly enhanced following the adoption in June 1999 of the new "comitology" decision.
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In the existing treaties, legal acts of a non-Community nature may be adopted in the field of common foreign and security policy (CFSP), common security and defence policy (CSDP) and freedom, security and justice (JHA), i.e. in the second and third pillars based on intergovernmental cooperation and not the logic of Community integration. Hence, in the field of the CFSP, Article 13 of the Treaty on European Union (EU Treaty) stipulates that the Council shall recommend common strategies and implement them, in particular by adopting joint actions and common positions. Besides, Article 34 of the EU Treaty lists the acts which the Council may adopt in the field of JHA. These include common positions, decisions and framework decisions, and conventions.
Following the disappearance of the pillar structure proposed by the Convention, these different acts will also have to be eliminated. As regards CFSP, CSDP and JHA, the acts which will be used in future will be the acts of Community law set out in the new typology (Article I-32). Article I-39 confirms that European decisions may be used in the field of CFSP and that "European laws and European framework laws are excluded". As regards CSDP, under Article I-40, only European decisions may be used. Finally, as regards JHA, the former acts used are eliminated and replaced by laws and framework laws (Article I-41).
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|I-32||The legal acts of the Union (new typology)||New provisions|
|I-33||The legislative acts||Significant changes
|I-34||The non-legislative acts|
|I-39||Particular rules concerning CFSP||Significant changes
|I-40||Particular rules concerning CSDP|
|I-41||Particular rules concerning JHA|
The fact sheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Convention.