Introduction

British constitutionalism defines (primary) legislation as an act adopted by the Queen-in-Parliament. Behind this “compound” legislator stands a legislative procedure. This legal procedure links the House of Commons, the House of Lords and the monarchy. European constitutionalism also adopts a procedural definition of legislative power. However, unlike British constitutional law, the Treaties distinguish two types of legislative procedures: an ordinary legislative procedure and special legislative procedures. Article 289 TFEU states:

European “legislation” is thus – formally – defined as an act adopted by the bicameral Union legislator. According to the ordinary legislative procedure, the European Parliament and the Council act as co-legislators with symmetric procedural rights. European legislation is therefore seen as the product of a “joint adoption” by both institutions. But the Treaties also recognize special legislative procedures. The defining characteristic of these special procedures is that they abandon the institutional equality between the European Parliament and the Council. Logically, then, Article 289(2) TFEU recognizes two variants. In the first variant, the European Parliament acts as the dominant institution, with the mere “participation” of the Council in the form of “consent”. The second variant inverts this relationship. The Council is here the dominant institution, with the Parliament either participating through its “consent”, or in the form of “consultation”.

Having analysed the various Union institutions in Chapter 1, this Chapter explores their interaction in the creation of European (secondary) law. Sections 1 and 2 respectively discuss the ordinary and special legislative procedures in more detail.