Contribution of the European Parliament to multilevel governance : building on a potential for a fuller right of legislative initiative for the European Parliament.
Date: 2017-03-31
Institutions: Directorate-General for Parliamentary Research Services
Subjects: EU Member State, EU law, EU law - national law, European Parliament, United States, governance, legal rule, legislation, legislative initiative, national agricultural policy

Contribution of
the European
Parliament to
multilevel
Building on a potential for a
governance
fuller right of legislative initiative
for the European Parliament

STUDY

Author: Peter Vavrík, EU Fellow at the University of Miami, 2015 -2016

Published by EPRS | European Parliamentary Research Service

PE 599.350 – March 2017

EN

Contribution of the European
Parliament to multilevel governance

Building on a potential for a fuller right of legislative initiative for the European Parliament

Peter Vavrík

This analysis was prepared in the framework of the EU Fellowship Programme and presents the results
of research on the full right of legislative initiative of the European Parliament in the light of the US
Congress  experience.  It  is  based  on  data  gathered for  the  purposes  of  the  research  from  national
parliaments  of  26  EU  Member  States,  analysis  of  59  replies by the  European  Commission  to  the
European Parliament's legislative initiative reports, and a case study on three complex US laws, carried
out on the basis of 15 interviews with Congressional staff.

As well as greatly appreciating the possibility to take up an EU Fellowship, provided by the European
Parliament and European Commission, the author, who is an official in the Directorate for Legislative
Acts in the Directorate-General of the Presidency of the European Parliament, would like to express his
intense gratitude to the European Union Center of Excellence in Miami, and in particular its Director and
Jean  Monnet  Professor, Joaquín  Roy,  for  all  their support,  and for the  opportunity  to  interact  with
students at the University of Miami and engage in numerous outreach activities.

AUTHOR
Peter Vavrík
Directorate-General for the Presidency, European Parliament
EU Fellow at the University of Miami, 2015-2016

ABOUT THE PUBLISHER
This paper has been published by the Directorate–General for Parliamentary Research Services of the
Secretariat of the European Parliament.

LINGUISTIC VERSIONS
Original: EN

This document is available online at:
http://www.eprs.ep.parl.union.eu (intranet)
http://www.europarl.europa.eu/thinktank (internet)
http://epthinktank.eu (blog)

DISCLAIMER AND COPYRIGHT
This document is prepared for, and addressed to, the Members and staff of the European Parliament
as background material to assist them in their parliamentary work. The content of the document is
the sole  responsibility  of  its  author(s)  and  any  opinions  expressed  herein  should  not  be  taken  to
represent an official position of the Parliament.

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the  source  is
acknowledged and the European Parliament is given prior notice and sent a copy.

Original manuscript completed in March 2017.
Brussels © European Union, 2017.

PE 599.350
ISBN 978-92-846-0815-7
doi:10.2861/342761
QA-04-17-318-EN-N

ABSTRACT

This study aims to examine the role of the European Parliament (EP) in European Union
(EU) legislative agenda-setting by means of its full right of legislative initiative. As well as
considering the evolution of the EP's powers to initiate legislation, it outlines the current
situation, where Parliament's possibilities to trigger the legislative process are limited.
Even though EU decision-making has its own specificities, the study attempts to explain
how the EU could benefit from the EP's full right of legislative initiative. By examining
constitutional traditions common to all EU Member States, available data on legislative
procedures applicable in the Congress of the United States and selected acts adopted
recently  by  the  Congress,  the  study  attempts  to  formulate  how  the  EP's  full  right  of
legislative  initiative  could  work  in  practice  and to touch  upon  obstacles that this  new
right would bring in the context of EU decision-making.

In the second part, the study focuses on the EP's role in the negotiation of international
free trade agreements to which the EU is a party. By analysing EU negotiating positions
for the Transatlantic Trade and Investment Partnership (TTIP), the study suggests that
the  time  has  come  to  redesign  the  EU  mechanism for  the  adoption  of negotiating
directives, by fully involving the EP in the process in order to ensure that the EU speaks
with one voice.

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TABLE OF CONTENTS

1. Introduction ................................................................................................................... 3

2. Problem definition......................................................................................................... 3

3. Chapter I: EP full right of legislative initiative ............................................................... 5

3.1. Some theory to start with ...................................................................................... 5

3.1.1. Democratic deficit ........................................................................................................ 5

3.1.2. Legitimating beliefs ...................................................................................................... 5

3.2. A brief history of EP legislative powers .................................................................. 6

3.2.1. The Paris Treaty............................................................................................................ 6

3.2.2. The budgetary Treaties (1970) ..................................................................................... 7

3.2.3. Single European Act ..................................................................................................... 7

3.2.4. Treaty of Maastricht..................................................................................................... 7

3.3. History of the EP right of legislative initiative ........................................................ 8

3.4. Where do we stand now?....................................................................................... 9

3.4.1. Citizens' initiative ......................................................................................................... 9

3.4.2. National parliaments.................................................................................................. 10

3.4.3. European Parliament's initiative ................................................................................ 10

3.4.4. Right to amend........................................................................................................... 12

3.5. Agenda setting...................................................................................................... 13

3.6. Do we need to change the status quo as regards the legislative initiative?........ 14

3.7. What do MEPs think about it?.............................................................................. 15

3.8. Where can we look for inspiration? ..................................................................... 16

3.9. Who has the right of legislative initiative in the EU Member States? ................. 16

3.10. How does the right of legislative initiative work in the US Congress?............... 17

3.10.1. Legislative initiative is a position taking tool ........................................................... 19

3.10.2. Length....................................................................................................................... 19

3.10.3. Co-sponsorship......................................................................................................... 20

3.10.4. Is it the member of Congress or rather the member's office who drafts a bill and
has the necessary expertise? ............................................................................................... 20

3.10.5. Role of Congressional committees........................................................................... 21

3.10.6. S.1177: Every Student Succeeds Act (ESSA) ............................................................. 21

3.10.7. H.R. 22: Fixing America's Surface Transportation Act or the FAST Act .................... 23

3.10.8. H.R. 2146: Bi-partisan Congressional Trade Priorities and Accountability Act of 2015
(TPA) ..................................................................................................................................... 24

3.11. Summary of legislative initiative applied in US Congress .................................. 24

4. Conclusions on the right of the legislative initiative ................................................... 25

4.1. How can the EU benefit from the EP's full right of legislative initiative? ............ 26

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4.1.1. EP - promoter of new (reformed) policies ................................................................. 26

4.1.2. EP – link with citizens ................................................................................................. 26

4.1.3. EP – open arena for discussing policies (not just ideas)............................................. 27

4.1.4. EP – its influence at international level through legislation ...................................... 28

4.2. Challenges of EP full right of legislative initiative................................................. 29

4.2.1. Erosion of legislative initiative ................................................................................... 29

4.2.2. EP internal procedures – 'winner takes it all'?........................................................... 29

4.2.3. Role of the other legislative branch – Council (Member States) ............................... 30

4.2.4. EU institutional triangle.............................................................................................. 30

4.2.5. Transparency and ethics ............................................................................................ 31

4.2.6. EP and Council capacities ........................................................................................... 31

5. Chapter II: Role of the European Parliament in negotiations on agreements between
the Union and third countries – scope for improvement in the next treaty change?.... 32

5.1. A bit of necessary history ..................................................................................... 32

5.2. Why is the post-Lisbon arrangement not sufficient?........................................... 33

5.3. The EU needs to speak with one voice................................................................. 34

5.4. Two 'mandates' for TTIP, a problem?................................................................... 35

5.4.1. Quantitative analysis of the 2 texts............................................................................ 35

5.4.2. Qualitative analysis of the 2 texts .............................................................................. 37

5.4.3. What does the Commission say about the texts?...................................................... 39

5.5. Role of the US Congress in negotiations of international trade agreements ...... 41

5.5.1. A very brief history ..................................................................................................... 41

5.5.2. Trade Promotion Authority ........................................................................................ 42

5.5.3. Mock markups and side agreements, side letters ..................................................... 44

5.5.4. Is Congress satisfied with TPA? .................................................................................. 45

6. Conclusion on the EP role in negotiations of trade agreements................................. 46

7. Annexes ....................................................................................................................... 50

7.1. Annex I: list of legislative initiative reports adopted by European Parliament.... 50

7.2.  Annex  II:  Holders  of  legislative  initiatives  in  the  EU  Member  States  and
corresponding statistics............................................................................................... 56

7.3. Annex III: Extract from TFEU relevant for the common commercial policy......... 61

7.4. Bibliography.......................................................................................................... 64

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1. Introduction

The EU continues to be an attractive project. Whether you are a fan of 'more Europe', or
you belong to those who are less enthusiastic about the EU's constant 'grab' of more
powers, or you are somewhere in between, it is clear that certain key EU features, such
as security and peace, and respect for human rights and freedom, are attractive to many
– be it states in the EU's vicinity, or just ordinary individuals who are coming to the EU
as legal or illegal immigrants, or who seek international protection given the situation in
regions which are facing major conflicts.

It  is  evident  that  the  EU  has  its  own  problems  and  that  there  is  room  for  reform  or
innovation as regards its policies and institutions. The challenges, such as the influx of
refugees,  terrorism,  climate  change,  the  financial  crisis  or  matters  resulting  from  the
2016 UK referendum, appear in the headlines on a daily basis. Opinions as to how those
problems should be tackled are very diverse. It is, however, important that a well working
institutional framework provides a platform for discussing responses to the issues and is
subject to democratic scrutiny. Some suggest that the EU institutions are engaged in a
system  of  governance  that defies  easy  categorization. 'The  Commission  has  executive
responsibilities  but  is  not  analogous  to  a  national  government.  The  European  Council
plays  a  key  governing  role  […]  but  is  not  the  EU's  government.  The  EP's  legislative
responsibilities resemble those of a national parliament, though the EP is not allowed to
initiate legislation…'.

Although the EU is an international organization with a very high degree of integration,
it is not a state. It nevertheless contains features of a (federal) state, such as (exclusive
or shared) competences and its own legal system, which is binding on a defined territory
and is overseen by a set of supranational institutions, the decisions of which are binding
on and enforceable in the Member States.  Despite all the specificities recognisable in
the EU, the constitutional set-up was inspired by the features of national institutions. It
is therefore natural that a comparison between national and EU mechanisms is made.

2. Problem definition

A modern parliament in a democratic society fulfils three basic functions, namely: (i) to
adopt legislation; (ii) to appropriate the money necessary for the operation of a state
and (iii) to exercise oversight over the other institutions, in particular the government;
to monitor the proper use of the budget and to ensure that policies are implemented to
achieve the objectives set.

Without trying to rank those roles, the focus of this paper is to look more closely at the
legislative functions of a democratic parliament, in particular the process of initiating a
legislative  process,  or  in  other  words  the  right  of  legislative  initiative, which  is  to  be
understood as the right to submit draft laws to the legislator with a view to their adoption
by  a  parliament.  According  to  parliamentary  law,  this  right  covers  both  the  right  to
introduce a legislative proposal and the right to amend it by other holders of that right.

The  separation  of  powers  combined  with  the  system  of  checks  and  balances  is  an
essential part of the constitutional order of every democratic society. Montesquieu, in
his  famous The  Spirit  of  the  Laws  (1748),  described  the  separation  of  political  power
among  a  legislature,  an  executive,  and  a  judiciary.  His  approach  was to  present  and

Contribution of the European Parliament to multilevel governance

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defend  a  form  of  government  which did not  excessively  centralize  all  its  powers in a
single monarch or similar ruler.

While the basic idea of separation of powers is key to a democratic form of government,
no  democratic  system  exists  with  an  absolute  separation  of  powers.  Governmental
powers and responsibilities overlap and are too complex and inter-related to be neatly
separated. As a result, there is an inherent measure of competition and conflict, but also
cooperation, among the branches of power.1 Concerning the right of legislative initiative,
there  are  two basic  models:  one  where  a  complete  separation  of  powers  applies  and
results in introducing all legislative proposals (or bills) exclusively by the members of a
legislative body. This model is represented by the US where all bills and resolutions are
introduced by Members of Congress. The second model is found in countries in which
the right to initiate the legislative process is shared among members of parliament and
an  executive  power,  represented  by the majority  of  parliaments  of  the  EU  Member
States, as explained later.

The constitutional architecture of the EU is markedly different from a national political
system, even  if the EP's legislative powers may be  said to  resemble  those  of national
parliaments. Still, although the EP belongs to the biggest directly elected parliaments in
the world, it doesn't have the full right of legislative initiative. Is this fact a real problem
that would need to be addressed in future modifications of the relevant Treaty provisions
or it is a 'non-problem', the assessment of which is a purely academic concern? Would
the EP full right of legislative initiative bring anything positive to the EU? If so, how would
it work in practice, in particular given the need to take into account the common good
of the whole EU as ensured by the European Commission (Commission) when exercising
its  monopoly  to  introduce  a  bill?  How  would  the  EU  legislative  process run,  if  751  EP
Members (MEPs) only used this right with restraint and tabled 2-3 legislative proposals
every year? Is there anything we can learn from the Congress? Or is agenda setting in
broad  terms the  only  domain  to  be  developed,  while  leaving to  the  Commission the
'technical' right to introduce a concrete bill? As well as replying to these questions, this
paper will go even further and aims to assess what role the EP should/could play in the
field of setting negotiation directives for international trade law negotiations. The reason
for  this  special  focus  is  to  assess  what  the  EP's contribution could  be to  multilevel
governance.

1 National Conference of State Legislatures, Separation of Powers -- An Overview.

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3. Chapter I: EP full right of legislative initiative

3.1. Some theory to start with

3.1.1. Democratic deficit
There are a number of publications which cover the general development and gradual
increase of EP powers throughout history.2 There are nevertheless not that many sources
that would  give  an  answer  to the question as  to why the EU  is  the only  international
organisation that contains a powerful representative institution (EP), and why the EP has
been successively empowered by the EU Member States. Many scholars and politicians
have over the years referred to a democratic deficit as the main reason for empowering
the EP. But as B. Rittberger explains in his article,3 the situation is more complex. As he
describes, when political elites delegate sovereignty to agents such as the Commission,
they opt for institutions which best serve their interests, and delegate powers to agents
only if the expected benefits of delegation exceed the expected costs.4 Powers can be
then delegated to majoritarian institutions (parliaments) which derive their legitimacy
from  accountability  to  voters  (procedural 
legitimacy)  and  to  non-majoritarian
institutions  (Commission)  (consequentialist  or  output  oriented  legitimacy).  Procedural
and output oriented legitimacy need to be balanced.

As  the  EU  competencies  have  grown, the EU  started  exercising  functions  that
traditionally belonged to the Member States. Consequently, to keep those legitimacies
balanced, EP powers needed to be reinforced to ensure that the increased efficiency and
output of non-majoritarian institutions is balanced with procedural legitimacy to keep
non-majoritarian institutions accountable to the majoritarian ones.

3.1.2. Legitimating beliefs
Rittberger continues by differentiating 3 legitimating beliefs:

Source  of  legitimacy  of a federal  state  legitimating  belief is  based  on  popular
1.
sovereignty at state and federal (union) level. The delegation of powers in favour of the
federal level creates an accountability gap that needs to be addressed by empowering a
federal (union) parliament.5

The intergovernmental  cooperation  legitimating belief  is  based  on  national
2.
sovereignty. The  accountability  gap  caused  by the delegation  of  powers  to an
international entity needs to be addressed domestically, e.g. by increasing the scrutiny
powers of national parliaments.6

The  economic  community 

3.
legitimacy  of  a
supranational policy on economic efficiency. As long as the efficiency is not hampered,
there  is  no  problem  to  proceed  with the empowerment  of  majoritarian  and  non-
majoritarian institutions.7

legitimating  belief bases  the 

2 A  very  good  publication  which  covers  a  number  of  sources  is  'Fifty  Years  On:  research  on  the

European Parliament', Hix, Raunio, Scully, JCMS 2003, Vol 41, pp. 191-202.

3 B. Rittberger, The Creation and Empowerment of the European Parliament, JCMS 2003, Vol 41,

pp. 203-225.
This is described as functional approach to institutional choice, see p. 204.

This theory explains why 'EU federalists' call for 'more Europe'.
This theory explains some of the demands made by the then UK Prime Minister, Mr. Cameron,
presented in his speech of 10 November 2015.
These theories are further explained in Rittberger (2003) on pp 209 and 210.

4

5

6

7

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These theories are very useful when analysing historical development of EP powers, in
particular those in the field of legislation.

3.2. A brief history of EP legislative powers

3.2.1. The Paris Treaty8
The history of the EU institutions is well covered by a number of books and articles.9 This
part will therefore focus on what relates directly to EP legislative powers.

Although there is no direct reference to any parliamentary dimension in the Schuman
Declaration of 9 May 1950, it became apparent shortly after the negotiations on the coal
and  steel  community  started,  that  some  mechanism whereby the  High  Authority
(Commission) would be answerable to a parliamentary assembly had to be put in place.10
From the archive documents it is evident that the creation of a parliamentary assembly
was motivated by separation of powers.11 It is nevertheless interesting that creation of a
parliamentary  assembly  was  not  considered 'optimal' according  to  the  report  of  the
French delegation from summer 1950.12

It is of course evident that institutional matters played a role during the negotiations of
the  Paris  Treaty; from  the  outcome  it  is  clear  though  that  the  economic  community
legitimating belief was considered the key and the main powers of the European Coal
and  Steal  Community (ECSC) were  vested  to  non-majoritarian  institutions – the High
Authority  and  the  Court  of  Justice.  “Given  the  Benelux  Governments' focus  on  the
potential  socio-economic  effects  of  the  ECSC,  the  legitimacy  deficit  was  perceived
differently  for  France  and  Germany;  it  was  evaluated  with  reference  to  potential
implications  for  policy-making  effectiveness  and  decision-making  efficiency.  The
Common Assembly, if endowed with legislative powers, as proposed by Germany, might
impede  efficiency”.13 In  addition,  the  Benelux  states  obtained  one  post  in  the  High
Authority, while Germany, Italy and France obtained two each; they promoted the role
of the Council of Ministers (Council), which was under a sort of direct control by national
governments. 'The Benelux states accepted the Common Assembly on condition that it
had  no  legislative  powers  and  hence  could  not  affect  policies  in  a  potentially
unpredictable manner.'14

8

9

10

Signed on 18 April 1951, effective from 23 July 1952.

E.g. j. McCormic, European Union Politics, Palgrave Macmillan, 2001.
In his report to the French National Assembly of 25 July 1950, R Schuman mentioned: 'Aussi est-il
nécessaire d'assurer la responsabilité effective de cette Autorité devant des représentants élus,
de prévoir d'autre part des recours juridictionnels, notamment contre des excès ou contre des
détournements de pouvoirs, et enfin d'établir une liaison organique entre la Haute Autorité et les
gouvernements des pays participants, sans lui enlever cependant son indépendance.
En  ce  qui  concerne  le  premier  point,  la  responsabilité  de  la  Haute  Autorité,  il  est  prévu  une
Assemblée  commune,  émanation  directe  des parlements  nationaux  représentant  la  volonté
populaire.'

11 Compare against the speech of J. Monnet of 11 September 1952 at the opening address to the

12

Assembly concerning the High Authority's programmes, p. 58 of publication.
Il a donc semblé normal d'instituer une Assemblée commune, formée de délégations des divers
Parlements.  C'est  en  l'état  actuel  des  choses,  la  solution la  moins  imparfaite  que  l'on  puisse
trouver au problème de la responsabilité de la Haute Autorité.

13 Rittberger, p. 213.
14

Idem.

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3.2.2. The budgetary Treaties (1970)15
The Rome Treaties brought only cosmetic changes, the Common Assembly of ECSC was
renamed  the  European  Parliamentary  Assembly  (ECSC,  Euratom,  EEC)  in  1958 and
became the European Parliament in 1962. The Budgetary Treaty of 1970 gave the EP the
last word on what was (until the Lisbon Treaty known as) "non-compulsory expenditure".
This was directly linked to the fact that all agricultural customs duties were paid directly
to the Communities as of 1975. Consequently, national parliaments lost control over a
considerable amount of money. Although France was advocating the intergovernmental
legitimating belief, the remaining 5 Member States were in favour of the federal state
legitimating  belief  and  consequently  called  for  removing the imbalance  between
procedural and consequentialist legitimacy by empowering the EP.

3.2.3. Single European Act16
Even though the consultation procedure was in place since the Rome Treaty, it was the
cooperation  procedure,  introduced  by  the  Single  European  Act,  which  gave the EP
limited possibility to influence agenda setting. Some say that the consultation procedure
was the procedural basis for codecision and also a first step towards building trust and
developing cooperation between the institutions.17

The assent procedure, which applied to e.g. the accession treaties, was inserted in EU
primary law.

Qualified majority  voting  in  Council  became the rule  for  all  internal  market  legislative
proposals. Consequently, the possibility of national parliaments to hold their executive
to account under qualified majority voting was diminishing. It was therefore decided that
if the EP  adopted  amendments  to  or  rejected  a  Council  common  position,  unanimity
would be required in Council to adopt a legislative act under the cooperation procedure.

It is also interesting to add that perceptions by some Member States as to what should
be the EP role in legislative process were contradictory. The Danish Parliament initially
rejected the treaty change on the grounds that it gave too much power to the EP. This
opposition had to be overcome by a referendum that approved the modifications of the
Treaties. On the other hand, the Italian and Greek parliaments hesitated to approve the
modifications on the ground that the European Parliament's powers were insufficient.

3.2.4. Treaty of Maastricht18
The  following  treaty  change  introduced  the  codecision  procedure  that  was  gradually
expanded to almost all policy areas and became the ordinary legislative procedure under
the Lisbon Treaty.19 Although there is a lot to be said about codecision, it is not the main
focus of this paper. The gradual application of codecision to the legislative areas in which
Council decided by qualified majority resulted in placing the EP on an equal footing with
Council.

15 Signed on 22 April 1970, effective from 1 January 1971.
16 Signed on 17 February 1986, entered into force on 1 July 1987.
17 20  Years  of  Codecision, Conference  Report,  Conciliations  and  Codecision  Secretariat,  European

Parliament, 5 November 2013.

18 Signed on 7 February 1992, entered into force on 1 November 1993.
19 Signed on 13 December 2007, entered into force on 1 December 2009.

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3.3. History of the EP right of legislative initiative

Reading the title, some might think that this chapter will be very brief, given that the EP
has, strictly speaking, limited possibilities to trigger the legislative process with the legal
consequences which that entails.

As described above, the EP acquired the right to amend (a part of the budget) with the
1970 budgetary treaty. It had the power to propose amendments in the framework of
the consultation procedure since 1958. There was no obligation for the Council to accept
such amendments. With the budget it was different as the EP had the last say (by means
of its amendments) on non-compulsory expenditure.

In  preparation  for  the  intergovernmental  conference  that  preceded  the  Maastricht
Treaty, the EP adopted its position as regards the upcoming Treaty changes. The Treaty
amendments contained in the resolution of 22 November 1990 went quite far as regards
the right to introduce a proposal.20 The Commission's power of initiative was maintained.
However, the EP proposed that it could ask the Commission by a majority of its Members
to  submit a legislative  proposal.  If  the  Commission  refused  to  do so, the EP  would
continue directly with the first reading.

The  result  is  well  known: the  Maastricht  Treaty  did not  change  the  Commission's
monopoly to introduce a legislative draft proposal. The EP nevertheless obtained a right
to request the Commission to submit any appropriate proposal on matters on which it
considered that  a  Community  act  is  required  for  the  purpose  of  implementing  the
Treaty.21 Plus, one cannot forget the codecision procedure22 which was introduced by
the Maastricht Treaty and by which the EP acquired the right to influence a number of
policy areas.

There was another change which had an impact on the EP views on its right of legislative
initiative. With the Maastricht Treaty, a 3-pillar structure was introduced and remained
in place until the Lisbon Treaty. In addition to the first Community pillar, there were two
other intergovernmental pillars created - common foreign and security policy and justice
and home affairs. By their very nature, it was the Member states that had a formal right
of initiative in those areas.

The codecision procedure and the logical right of Member States to propose legislation
under the second and third pillar were decisive in developing the EP's priorities for the
upcoming decade, as regards the right of legislative initiative.

From  its  resolution  of  13  March  1996  on  the  convening  of  the  Intergovernmental
Conference23 it is clear that the EP priority was not its full right of legislative initiative but
rather the extension of codecision.24 As regards the legislative initiative, the EP expressly
stated that the right of initiative of the Commission should be maintained25 and should

20 See amendments on Article 188a (new), OJ C 324, 24.12.90, pp. 232 -233.
21 Article 138b.
22 Article 189b.
23 OJ C 96, 1.4.96, p 77.
24 Point 21.6.
25 Point 21.4.

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also apply to justice and home affairs.26 In a way, the EP was fighting so that the right of
legislative initiative would be centralised in the Commission in all cases.

A  similar  approach was also  evident  from  the  EP  resolution  of  18  November  1999  in
which the  EP  expressed 'its  opposition  to  any  attempts  to  challenge  at  the  IGC  the
Commission's monopoly of the right of initiative under the first pillar'.27

The next attempt to introduce a right for the EP to make legislative proposals came with
the unsuccessful Constitutional Treaty that among other important issues, dealt with the
involvement  of  national  parliaments  in  EU  decision  making.  According  to  available
documents28 it seems that some Convention members were in favour of extending the
Commission's right of legislative initiative to the European Parliament.29 However, the
EP's official position was very clear. The EP resolution of 16 May 200230 in its para 12:

“Considers that legislation - Community 'law' – must be adopted on the sole initiative of
the  Commission  by  the  two  branches  of  the  legislative  authority,  the  Council  and
Parliament, which are responsible for political choices…”

And,  in  para  34: 'Takes  the  view  that  the  exercise  by  the  Union  of  its  competences,
whether exclusive, shared, additional or coordinating competences, must no longer be
thwarted by paralyzing (no power of initiative, unanimous decision making, ratification
by the Member States)'

We know what the result was. The Constitutional Treaty was rejected by the referenda
in France and the Netherlands and the upcoming intergovernmental conference leading
to  the  conclusion  of  the  Lisbon  Treaty was limited in scope.  Although  there  was  an
attempt to include the right of legislative initiative in the EP resolution of 11 July 2007
on  the  convening  of  the  Intergovernmental  Conference  (IGC),  amendment  1631 was
rejected and the final text doesn't contain any reference to this matter.

3.4. Where do we stand now?

The Lisbon Treaty brought a number of innovations which can influence the EU legislative
process  at  its  early  stages.  Although  none  of  them  has  changed in substance  of  the
Commission's  monopoly  they  aim  at  bringing  the  decision  making  closer  to  citizens,
involving more national parliaments and ultimately also the European Parliament.

3.4.1. Citizens' initiative
On the basis of Article 24 of the Treaty on Functioning the European Union (TFEU) the
European parliament and Council adopted a Regulation on the citizens' initiative.32 In line
with that Regulation at least one million EU citizens, coming from at least 7 out of the 28
Member States, can invite the European Commission to propose legislation on matters

26 Point 5.2
27 OJ C 189, 7.7.2000, p. 222, para. 26.
28 The European Convention, Note on the plenary meeting - Brussels, 23 and 24 May 2002, Point 20.
29 The  European  Parliament  and  the  Proceedings  of  the  European  Convention,  A Study of  the

proceedings of the European Convention accompanied by archive documents, 2007.

30 OJ C 180E, 31.7.2003, p. 493.
31 Amendment  16  was  tabled  by  F.  Speroni,  on  behalf  of  the  UEN  Group  and  read:
'19a. Hopes that the IGC may provide an opportunity, in the light of the anticipated modification
of the Treaties, to give the European Parliament the right of legislative initiative;' It was rejected
by a simple vote (show of hands). Not even a roll call vote was requested.

32 OJ L 65, 11.3.2011, p. 1.

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where the EU has competence to legislate. As shown on the website dedicated to the
Citizens  initiative33,  this innovation has  attracted  people's attention and already
triggered discussion in a number of sensitive areas, such as 'Water is a public good, not
a commodity' or 'One of us'.

3.4.2. National parliaments
'The Treaty of Lisbon set out for the first time the role of national parliaments within the
European Union. National parliaments can, for instance, scrutinise draft EU laws to see
if they respect the principle of subsidiarity, participate in the revision of EU treaties, or
take part in the evaluation of EU policies on freedom, security and justice.'34 In practice,
within eight weeks any national parliament may submit a reasoned opinion arguing why
it  considers  that  a legislative  proposal does  not  comply  with  the  principle  of
subsidiarity.35 The 2014 Annual Report on relations between the European Commission
and national Parliaments suggests that national parliaments do use this possibility. Of
509  contributions,  there  were  21  reasoned opinions  that  questioned  the  principle  of
subsidiarity.36 2013 was more interesting as there were 88 reasoned opinions submitted
and in one case (on the proposal for a Council regulation on the establishment of the
European  Public  Prosecutor's  Office)  the  number  of  reasoned  opinions submitted
reached the  threshold  that  activates  the  yellow  card  procedure.  Although  this
mechanism is important for relations between the EU and the Member States and the
role of national parliaments in the EU decision making, their involvement is not decisive
from the point of legislative initiative. It is nevertheless interesting to follow the debates
linked the reinforced role of national parliaments, which was one of the key points made
by the former UK Prime Minister Cameron.

3.4.3. European Parliament's initiative
The  Treaty  of  Lisbon  maintained  the  Commission's  monopoly whilst nevertheless
reinforcing the role of the European parliament. Its right to request the Commission to
submit  a  proposal,  which  was already introduced  by  the  Maastricht  Treaty,  was
developed further in Article 225 TFEU which reads:

'The European Parliament may, acting by a majority of its component Members, request
the Commission to submit any appropriate proposal on matters on which it considers that
a Union act is required for the purpose of implementing the Treaties. If the Commission
does not submit a proposal, it shall inform the European Parliament of the reasons.'

As  compared  to  the  Maastricht  treaty,  the  novelty of  the  above  provision is  that  the
Commission is obliged to justify when it doesn't follow the EP request, described by some
as an 'indirect initiative right'.37

Looking at the list of legislative initiative reports which are based on Article 225 TFEU (or
its 'predecessors')  the  EP  has  used  this  option  in  59  cases.38 In  eight  instances  the
procedure is either pending or just finished; there is therefore no yet follow up by the
Commission.  The  remaining  51  occasions  on  which  the  EP  made  concrete

33 http://ec.europa.eu/citizens-initiative/public/basic-facts
34 http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00007/National-parliaments
35 http://www.eipa.eu/files/repository/eipascope/20090709111616_Art3_Eipascoop2009_01.pdf
36 Annual Report 2014 on relations between the European Commission and national Parliaments,
COM(2015)  316,  (http://eur-lex.europa.eu/resource.html?uri=cellar:967e4243-20be-11e5-a342-
01aa75ed71a1.0023.02/DOC_2&format=PDF).

37 Parliament's legislative initiative, Library Briefing, 24.10.2013.
38 Situation at the end of 2016. See Annex I.

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recommendations  were  treated  by  the  Commission  in  a  very similar  way:  the
Commission  looked  at  the  EP's  suggestions  and  listed  all  the  ongoing  or  planned
initiatives  focusing  on  the  points  raised  by  the  EP.  One  cannot  conclude  that  the
Commission would disrespect the EP or would not justify its reasoning. Nevertheless, as
showed in Annex I, of the 51 legislative initiative reports, the Commission admitted only
in three cases that the EP's recommendations might actually lead to a new legislative
proposal.  In  the  remaining  48  cases,  the  Commission  concluded  by  saying  that  the
relevant legislative proposal was under way, or would be under way upon completion of
preparatory work, such as an impact assessment, or that there was no need to address
the issue by means of legislative instruments. There was also the following remark:

“Whilst the [EP] report sets out an interesting attempt to tackle what is a difficult subject
and  to  propose  a  general  European  solution  …  study  would  have  to  explore  the
implications”39 [of EP recommendations]. The Commission continued by saying that its
resources were now focused on other matters and had therefore no time to carry out
the study right now.

In general, although the language of the reasonably detailed Commission's answers to
EP  recommendations  is  respectful,  it  makes  it  nevertheless  clear  that  it  is  up  to  the
Commission  to  ultimately  decide  whether  and  how  the  EP's  recommendations  are
followed and that the Commission's right of initiative needs to be respected.40

Five years after the Lisbon Treaty entered into force, one can conclude, that modification
of  the  provision  corresponding  to  Article  225  TFEU  didn't  change  institutional
cooperation much as regards the legislative initiative and that the Commission considers
EP recommendations as one of many sources of ideas for EU legislative activities. In a
way, as regards the effects produced by the EP resolutions adopted pursuant Article 225
TFEU, they don't differ much from the usual own-initiative reports containing all sorts of
input for the upcoming legislative work by the Commission.

Plus, these recommendations are adopted by the EP as a body implying that the right of
legislative  initiative  of  individual  EP  Members  is  lagging  even  more  as  they  are  not
mentioned in any of the Treaties in relation to initiating legislation. To be 'fair' with the
Treaties  provisions,  there  are  references  to  the  EP  as  the 'legal' initiator  of  decision-
making procedures, namely in these cases:

 Article 7 TEU - serious breach by a Member State of the EU's values

 Article 14 TEU - decision establishing the composition of the EP

 Article 48(2) TEU - proposal for the amendment of the Treaties

 Article 223(1) TFEU - provisions necessary for the election of EP Members

 Article  223(2)  TFEU - conditions  governing  the  performance  of  the  duties  of  its

Members

 Article 223(2) TFEU - political parties at European level

 Article 228(4) TFEU - Ombudsman's duties

39 See  Commission's  reply  to  EP  resolution  on  the  limitation  periods  in  cross-border  disputes

involving injuries and fatal accidents (2006/2014(INL)).

40 See Commission's reply to EP resolution on Heating and cooling from renewable energy sources,

(2005/2122(INL)).

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 Article 231 TFEU - EP Rules of Procedure

Although  the  list  contains  references  to 'heavy' procedures,  such  as  Article  7  TEU  or
treaty changes, a number of instances in which the EP applies its 'real' legislative initiative
is limited to its internal business and is thus logical that such areas are initiated by the
institution directly concerned. The same patterns apply (e.g.) to the rules of procedure
of the Court of Justice of the European Union.

To finish the chapter on the EP initiative, according to Article 225 TFEU, the EP Rules of
procedure lay down that “any Member may table a proposal for a Union act on the basis
of the right of initiative granted to Parliament under Article 225”.41 Despite this option,
it  is  mostly  political  groups  or  parliamentary  committees  who  initiate the Article  225
process, rather than the individual Members who rarely trigger the procedure.

3.4.4. Right to amend
The report on legislative initiative by the Venice Commission42 considers both the right
to introduce a legislative proposal and the right to propose amendments as two basic
components  of  the  right  of  legislative  initiative.  While  the  former  is  rather  limited  as
regards the EP, the latter is very much developed.

Historically, the EP's  role  in the legislative  process  was  to  present  its  position  to the
Commission's proposal or Council position through amendments. Depending on the type
of  procedure, the  adopted  amendments  had  different  consequences.  Amendments
adopted in the framework of consultation and cooperation procedures were not binding
on Council. The situation changed with codecision which requires that both legislative
branches  agree  on  the  text.  That  naturally  leads  to  compromises  or,  in  rare  cases,  in
failure to agree and finish the legislative process without adopting a piece of legislation.

The Lisbon  Treaty marked a  shift  from  adopting  amendments  towards  adopting
Parliament's position. Article 294 (3 and 4) TFEU expressly refers to a 'position at first
reading' as  the  document  which the EP  adopts.  Also 'If the  Council  approves  the  EP's
position, the act concerned shall be adopted in the wording which corresponds to the
position  of  the  European  Parliament.' This  may  sound  like  a  cosmetic  linguistic
adaptation.  It  nevertheless  means  that the EP  no  longer  amends  but  takes  its own
position  which  is  presented  in a  consolidated  form  rather  than a set  of  individual
amendments. By doing so it presents its view on the whole legislative proposal rather
than simply on bits and pieces. This practice has already been applied by the Council for
a  long time  as  the  Council  takes  a  legislative proposal, 'processes  it' and  produces  an
amended bill.

Unlike  the  right  to  recommend that  the Commission  in  line  with  Article  225  TFEU
presents a legislative proposal, the right to amend is widely used by EP Members acting
either  individually  or  with  other  Members  or  by  means  of  political  groups  or
parliamentary committees. According to statistics covering the 7th parliamentary term
(2009-2014), in total 44 47243 amendments were tabled at plenary stage, of which nearly
half were adopted and the other half rejected. To interpret the figures carefully, they
correspond to the amendments tabled and voted at plenary stage when the right to table
amendments  is  limited  to  political  groups  and  40+  Members,  in  some  cases  to
legislative  and  non-legislative
committees.  And,  the  above  figure  covers  both 

41 Rule 46(2).
42 Adopted at its 77the Plenary Session, 12-13 December 2008.
43

'Number of session amendments tabled' - document available on the EP web page.

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documents.  The  part  falling  under  legislation  would approximately be  half  of  those
numbers.

To get a precise idea about the number of amendments tabled at committee stage, in
principle  by  individual  Members,  the  plenary  figures  would  have  to  be  significantly
multiplied, e.g., in 2012, two years after a new tool facilitating the creation and handling
of amendments was launched, 100 000 amendments were tabled via that tool, again this
figure  covers  both legislative  and  non-legislative  texts.  That  suggests  that  there  were
several hundred amendments tabled at different stages and by different actors in the 7th
parliamentary  term  which  proves  that  the 'amendment' culture  is  very  advanced  and
widely  used  by  Members  in  order  to  adopt  their  position  on  the  points  of  their
(constituency) interests.

3.5. Agenda setting

Public policy making is a complex process which can be divided into 4 stages: 1. setting
of  the  agenda,  2.  specification  of  alternatives  from  which  a  choice  is  made,  3.  an
authoritative  choice  among  the  specified  alternatives  in  a  legislative  vote  or  a
presidential decision and 4. implementation of the decision.44

As shown above, the EP is extensively involved in stage 3. Although its possibilities to
directly initiate legislation are limited, it uses relevant platforms to get involved in stage
1 and influence the agenda setting process which narrows the set of conceivable subjects
to the set that actually becomes the focus of attention.

Then-President Schulz in a number of speeches criticised 'summitisation', by which one
EU institution dominates agenda setting and attempts to exclude EP from the decision-
making process or to put it in a position of a 'yes man'.45 The EP Secretary General Welle
often refers to the 'unused potential of the Lisbon Treaty' when he outlines ideas about
the role the EP should play in the legislative cycle. As Welle mentioned on a number of
occasions it is important 'who is setting the agenda? As you know, if somebody else is
setting the agenda then 80% of the decision is made by this somebody else'.46 Rather
than waiting for future changes of the Treaties which might or might not address setting
the agenda, the EP uses the means available to have an impact on Commission's priorities
developed into legislative initiatives.

What are the EP's possibilities to set the agenda? A reference was made to legislative
initiative reports which would be one possibility, not the most decisive one though.

Article 17 TEU is another option. Its last sentence provides that the [Commission] 'shall
initiate  the  Union's  annual  and  multiannual  programming  with  a  view  to  achieving
interinstitutional  agreements.' Details  of  this  provision  are  developed  in the  latest
Interinstitutional Agreement on Better Law-Making which was adopted by EP on 9 March
2016.47 The  Agreement  foresees  joint  conclusions  signed  by the EP,  Council  and
Commission on multiannual programming priorities (Point 5) and engagement of the 3
institutions in a dialogue before and after the adoption of the Commission annual Work
Programme (points 6-11) resulting in a joint declaration (EP, Council and Commission) on

44

John W. Kingdom, Agendas, Alternatives, and Public Policies, Longman, p. 3.

45 Speech by EP President Martin Schulz to the Members of the European Commission, 26.4.2012.
46 The European Union and Democracy, Klaus Welle at the Krieger School of Arts and Sciences, Johns

Hopkins University, Washington, 25 August 2015.

47 OJ L 123 of 12 May 2016, p. 1.

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interinstitutional  programing.  The  agreement  also  stipulates  that

the
annual 
'Commission will give prompt and detailed consideration to requests for proposals for
Union acts made by the European Parliament or the Council pursuant to Article 225 or
Article 241 of the Treaty on the Functioning of the European Union respectively.' (Point
10). It remains nevertheless to be seen whether the Agreement will change anything as
regards the readiness of the Commission to develop EP ideas contained in its legislative
reports more extensively, how much effort will be needed to reach an agreement on the
multiannual  or  annual  programing  and,  more  importantly,  to  what  extend  are  the
agreement followed in practice.

Another important feature of the above Agreement is the Commission's commitment
“to respond to any issues raised by the co-legislators in relation to analyses concerning
'European added value' and concerning the 'cost of non-Europe'.” (Point 10).

The Cost of non-Europe study48 prepared by the European Parliament Research Service,
contributed  significantly  to  setting  the agenda  of  the  current Juncker  Commission.  As
underlined by Welle, 'the cost of non-Europe means what we are missing because we
don't have enough Europe.'49 As he underlined, the Ten-Point Juncker Plan for Growth
without  debt  contains  a  number  of  elements  that  appear 'in  our  cost  of  non-Europe
exercise, especially the focus on digital Europe, the Single Market, the service sector, and
the completion of the EMU'. Whether we accept calculations contained in the study, the
exercise produced an important element in the ongoing discussion about e.g. 'ever closer
Union', as it turns the discussion from defending the EU and its policies into a positive
discussion focused on the gains if the EU develops further in the respective policy field.
In  this  way, the EP  and  its  services  contributed  significantly  to  the  setting  of  overall
principles by the  current  Commission  who,  using  its  prerogatives,  is  in  the  process  of
translating them into legislative initiatives.

3.6. Do we need to change the status quo as regards the legislative
initiative?

There  are  surely a number  of  issues  that  are  much  more  pressing  than theoretical
disputes as to whether the right of legislative initiative should be 'liberalised' by involving
more actors to launch legislative proposals.

At the same time a number of actors, not necessarily belonging to the 'Eurosceptic' camp
but also the general public and media refer to Brussels being too remote, dealing with
technicalities and being detached from the everyday problems of EU citizens. It is not
easy to respond to these vague statements, not necessarily based on scientific facts. One
has  to  nevertheless  think about what  would  be  the  ways  to  bring  Brussels  closer  to
citizens  or  engage  citizens  more  in  EU  decision making.  The  citizens' initiative  is  one
possibility. The other possibility is to allow EP members and/or political groups to use
their  natural  ties  with  their  constituents  and  reflect  their  wishes  and  concerns  in  a
proposal for action. Today an MEP can ask the Commission a question as to what is or
will  happen  in  a  sphere of  Citizen's  concern, an EP  committee  can  organize  a  hearing
devoted  to  a  problem,  the  EP  can  ask  the  Commission  to  come  up  with  a  legislative
proposal, can express its wishes in countless non-legislative reports, can table thousands
of  amendments  to  a  legislative  proposal,  can  use  its  institutional  weight  to  influence

48 The last version of the mapping dates back to April 2015.
49 The EP as a Democratic Gatekeeper - Evolutions and Future Challenges, Klaus Welle, A talk with

Master Students at the Catholic University of Leuven, 13 February 2015.

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agenda setting, can use its services to draw up analysis outlining needs for action. The EP
can set up special committees or committees of inquiry. Despite all that, there is still a
very important element missing – the ability to directly define the agenda setting that
would trigger the legislative process.

In this context it is very interesting to follow the recent EP resolution of 16 February 2017
on  possible  evolutions  of  and  adjustments  to  the  current  institutional  set-up  of  the
European Union, which contains the following paragraph:

'62.  Proposes, moreover, that in line with the common practice in a number of Member
States, both chambers of the EU legislature, the Council and, in particular, the Parliament,
as the only institution directly elected by citizens, should be given the right of legislative
initiative, without prejudice to the basic legislative prerogative of the Commission;'

It  seems  that  the  EP  is,  after  27  years,  officially  requesting  the  right  of  legislative
initiative.

3.7. What do MEPs think about it?

Officially,  the  idea  of  a  full  legislative  initiative by the  EP is  not  on  the  agenda.  As
demonstrated, the last time the EP requested the right to launch a legislative process
dates back to the IGC preceding the Maastricht treaty more than two decades ago. Since
then the EP has focused on the interinstitutional balance leading to the conversion of
codecision  into  the  ordinary  legislative  procedure.  It  also  stressed  that  the  initiative
should only be in the hands of the Commission, implying that the Council should not have
that right in specific areas, which was the case prior to the Nice Treaty.

In the 2000 MEP Survey, nearly 80% of MEPs either strongly agreed or agreed that the
EP should have the right to initiate legislation.50

Richard Corbett, British Member of the European Parliament, doesn't however consider
the monopoly to initiate the legislative process as being decisive. As he mentions 'Even
if the Commission has a monopoly on producing the first formal draft, it does not have a
monopoly on ideas. Most Commission proposals are made in response to the desiderata
of the European Council, the European Parliament, the ordinary Council of Ministers and
individual Member  States.'51 More  than the  formal  right  to  introduce  a  draft,  he
underlines  the  importance  of the detailed  legislative  work by MEPs  throughout  the
amendment process after the Commission draft has been published. 'In some national
parliaments, when a government publishes a legislative proposal, it is usually clear what
will come out of the procedure […]. Such is certainly not the case in EP. A draft directive
[submitted by Commission] really is a draft – MEPs go through it paragraph by paragraph
amending and rewriting it'.52 R. Corbett also stresses that a good MP in a national context
is  someone  who is  a  good  debater.  An  effective  MEP  is  somebody  who  is  good  at
explaining, persuading and negotiating with colleagues from different countries.

50 Scully, Farrel, MEPs as Representatives: Individual and Institutional Roles, JCMS 2003, Volume 41,

Number 2, p. 281.
Initiation of EU Legislation, House of lords 2008, p. 139.

51

52 Corbett, Jacobs, Shackleton, The European Parliament at Fifty: A View from the Inside, JCMS 2003,

Volume 41, Number 2, p. 358.

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3.8. Where can we look for inspiration?

One  of  the  points  discussed  in  the  framework  of  the  new  settlement  for  the  United
Kingdom in the European Union53 in 2015-2016 was the role of national parliaments and
in particular a more effective possibility to block a legislative initiative in case it is not in
line with the principles of subsidiarity and proportionality. While the whole reasoning
behind this issue outlined by Mr Cameron in his speech of 10 November is much more
complex  than  the  initiation  of  legislation,  rather  than  creating 'breaks' or  additional
'checks and balances' in the current system, one might consider whether there are ways
how some features of the current legislative process could be improved to ensure that
decisions are taken as closely as possible to the citizens.

The EU is not the United States. One cannot nevertheless ignore the fact that the right
of Members of US Congress to introduce a bill is fundamental to the task of representing
voters.54 Before going into details as regards the US legislative process a consideration
of the legislative practices of the EU Member States has to be made.

3.9. Who has the right of legislative initiative in the EU Member States?

The concept of 'constitutional traditions common to the Member States' is already part
of the TEU in its Article 6(3) in relation to EU fundamental rights. Suggesting that this
'legal base' could serve as a justification for legislative initiative becoming the right of
MEPs  would,  of  course,  not  be  correct.  At  the  same  time, in  case  of  proposing  new
procedures  in  the  field  of  EU institutional  mechanisms,  the  EU  Member States often
compare the EU to their own national procedures. Looking closer at the data contained
in Annex II, Table 5, that cover 26 EU Member States55 there are two things which are
clear:

1. EU Member States are classical parliamentary democracies where government

depends on and is supported by a majority in the respective national
parliament. That implies that the government/executive is the place where
policy (legislative) proposals originate as demonstrated by the 85 % success
ratio of governmental proposals that became law.

2. Despite the fact that the EU government success ratio in proposed/adopted

legislative proposals is very high, the government is not the sole holder of the
legislative initiative. In every Member State there are other actors who have the
right of legislative initiative - individual members of parliament, political groups,
regions, citizens etc.

The overall numbers are clear; it is nevertheless worth looking at the details. It is very
interesting  to  conclude  that  holders  of the legislative  initiative  other  than  the
government use their right despite the fact that the government is primarily responsible

53 See European Council conclusions of 18-19 February 2016.
54 M.  Oleszek,  Introducing  a  House  Bill  or  Resolution,  Congressional  Research  Service,  August 6,

2015, R44001.

55 The  data  cover  recent  legislative  terms  of  respective  national  parliament  and  were  collected
thanks to a kind help of Lawyer Linguists from the EP Directorate for Legislative Acts. Even though
the gathered data don't cover exactly the same reference periods, they show a clear trend as to
who the holders of legislative initiative are in the EU Member States and what is their success
ratio.

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for drawing up policy proposals or their adaptations. 48.7 % of all legislative proposals
were  tabled  by  the  holders  of  legislative  initiative  other  than  the  government  while
47.2 % of legislative initiatives originated in a government (Annex II, Table 5)56. The data
also shows that one out of seven adopted laws didn't originate in the government.

Looking closer at the respective Member States or waves of enlargement it is possible to
draw a number of conclusions. In the Benelux countries (Annex II, Table 1), a number of
governmental proposals significantly prevail over those made by other actors. Although
the government success ratio of the remaining EU founding Member States is still high,
the  numbers  from  Germany  and  in  particular  from  France  and  Italy  show  that  other
players  are  very  active  in  using  the  right  of  their  legislative  initiative.  As  the  Benelux
states' position in creating the EP predecessor prevailed, this might be one of the reasons
why the EP wasn't equipped with the right of legislative initiative. This argument is surely
very indicative as the exact numbers were surely different 65 years ago. It nevertheless
provides indications as regards the constitutional traditions of the Member States and
their preferences as regards the right of legislative initiative.

The  data  also  show  that  in  a  number  of  Member  States  which  joined the EU  in  2004
(Annex II, Table 3), individual members of Parliament are active in introducing legislative
proposals  and  also  successful  in  having  their  proposals 'converted' into laws,  e.g.  In
Hungary  every  3rd law  was  proposed  by  a  member  of  parliament.  In  Lithuania, on
average, every second law originated on the side of a member of parliament.

There are many ways of interpreting the data collected. The facts enable us to conclude
that:

 In every Member State a government is by far more successful in having its legislative

proposals adopted into laws,

 In every Member State either an individual MP (or a prescribed number of MPs) have
the right to introduce a legislative proposal and by doing so take a position on the
respective topic,

 The extent to which MPs use that right and the degree of their success varies.

3.10. How does the right of legislative initiative work in the US Congress?

While both in the EU and the US ideas and recommendations for legislation come from
a wide variety of sources the situation is different as regards the formal introduction of
a  proposal.  As  mentioned,  save  for  specific  cases,  in the EU  the  Commission  has  a
monopoly on presenting a legislative proposal. In the US, only a Member of the House
or Senate may formally introduce legislation, though occasionally a member introduces
legislation  by  request  of  the  President.57 By  doing  that  a  Senator  or a Representative
takes a position on a sphere of his/her interest. MEPs can take a position by means of
amendments as far as legislation is concerned.

Although there are many similar features in both EU and US legislative decision making,
there are also a number of differences. The legislative initiative is not the only one.

56 These  statistics  are  not  perfect  as  it  is  perfectly  possible  that  the  proposals  tabled  by  'non-
governmental' players may well include a proposal introduced by e.g. members of parliament or
a political group that belongs to a ruling party.

57 V. Heitshusen, Introduction to the Legislative Process in the U.S. Congress, Congressional Research

Service, November 30, 2012, R42843 p. 5.

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Unlike in the EU Member States, in the US the executive doesn't have to be backed by a
majority in Congress. It is nothing exceptional that the president and the majority in the
US Congress  don't  come  from  the  same  political  camp. In  the  114th  Congress,  the
administration was  led  by  president  Obama  who  was  nominated  by  Democrats  while
both chambers of the Congress were dominated by Republicans. However, in the 115th
Congress for the first time since 2010 Republicans hold a majority in both chambers of
Congress and at the White House.

It surely has an impact on legislative effectiveness and underlines the necessity that both
Republicans and Democrats need to cooperate in order to get their ideas enacted into
laws.

Article I of the US constitution lays down that 'All legislative Powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate and House
of  Representatives'. The  constitutions  of  many  EU  Member  States  contain  similar
provisions. Article 1 nevertheless implies that Congress legislates with everything that
that implies, including the legislative initiative.

There  are  a  number  of  very  good  tools  that  offer  either  an  overview  or  data  on  the
proposals introduced. The website www.congress.gov gathers all data on legislation, e.g.
it shows that there were 10 084 bills58 introduced by sponsors coming either from the
House or Senate in the 114 Congress (2015-2016). However, this number is very high as
compared  to the number  of  legislative  proposals  in  any  EU  Member  State,  and  it
underlines the fact that the right to introduce a bill in US is widely used; the reality is that
only a fraction of the bills introduced become law. Data made available by govtrack.us
show that only 3% of the bills introduced in the 114 Congress became laws, and this rate
varies between 3 and 5 % after 2000.

The  webpage provides  other  interesting  data  calculated  on  the  basis  of  predefined
algorithms,  e.g.  it  predicts the probability as  to whether  a proposal  which  has  been
introduced will make it to a committee or the floor (plenary) or it eventually becomes a
law.  Taking  into  account  data  covering the first  10  months59 of  2015  (6257  bills
introduced  in  that  period)  available  on  govtrack  it  provides  a  number  of  interesting
outcomes:

 only 1 200 bills have more than 10 % probability of becoming law

 half of all bills are shorter than 5 pages,

 2 200 bills are bi-partisan meaning that there is at least one cosponsor from another

party

 1 800 bills  have  more than  10  cosponsors (supporters  of  a bill  whose names  were

added to the bill either at the moment of its introduction or later).

What could that indicate?

58 The  Congress  is  not  a  continuous  body  and  therefore  whatever  is  not  enacted  under  a  given
Congress is usually introduced again under the subsequent Congress, which contributes to explain
the high number of bills introduced by each Congress (many of which are identical texts precisely
for this reason).

59 The data had to be downloaded and further processed to be able to filter them in excel format,

for which I am very grateful to my colleague R. Mallia from DLA.

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3.10.1. Legislative initiative is a position taking tool
Why do members  introduce  an  act?  For  some  it  might  not seem very  logical  but
introducing  a legislative  proposal  doesn't  necessarily  mean  that  the  author's  primary
objective is to have it adopted. Kingdom60 notes that introducing a bill gets people talking
and gets people to examine the issue. He then continues and describes three incentives
that drive 'Hill people' to engage in agenda-setting activities:61

g) Satisfying constituents (including donors) and to get publicity for new policy

incentives,

h) Enhancing intra-Washington D.C. reputation of members of Congress and
i) To promote the member's conception of good public policy.

As described by Koger,62 a member may introduce a bill that aims to stop another bill
which is  another  reason  why  a  legislative  proposal  is  introduced.  As  underlined  by
another source 'in fact, the passage isn't always the objective'.63

No matter what the actual objective of a bill is, what seems to be a common feature by
the author is the will to take a position on the respective policy area or a problem without
necessarily focusing on the adoption of a bill. There are number of factors that determine
the survival factor of a bill, such as technical feasibility, value acceptability within policy
community, tolerable costs, anticipated public acquiescence and reasonable chance for
receptivity among elected decision makers.64

In this regard the situation on both sides of the Atlantic is not fundamentally different
meaning  that  both  members  of  Congress  and  MEPs  take  positions,  while  the  former
introduce a bill in order to take a position, the latter table amendments.

3.10.2. Length
In general, save for a small number of very complex bills, most of the bills are less than
five pages long.65 The length of a bill that makes it through Congress is a different story
as  very  often  a  short  and  noncontroversial  bill  can  serve  as  a 'vehicle' for  a  more
important and complex bill66 or the adopted bill gets longer in the amendment process.
According to the Economist, the average length of an adopted bill in 1948 was two and
half pages, now it is 20.67

It  is  not  easy  to  compare the length  of  US  and  EU  position  taking  tools  as  in  the  US
members of Congress introduce whole bills and in the EU MEPs table amendments to

60

61

John W. Kingdom, Agendas, Alternatives, and Public Policies, Longman, p. 129.
Idem, p. 38.

62 G.  Koger,  Position  Taking  and  Cosponsorship  in  the  U.S.  House,  Legislative  Studies  Quarterly,

XXVIII, May 2013, p. 230.

63 Strand, Johnson, Climer, Surviving in Congress, The Congressional Institute, 2015, p. 92.
64

John W. Kingdom, Agendas, Alternatives, and Public Policies, Longman, p. 139.

65 The  length  is  a  complex  issue.  Like  in  the  EU,  where  legislation  adopted  by  the  European
Parliament and Council in ordinary legislative procedure often provides a delegation for adoption
of  detailed  rules  by  means  of  delegating  or  implementing  acts  by  the  Commission,  the  acts
adopted by the Congress in the legislation process often delegate adoption of more detailed rules
to the executive or US agencies in the rulemaking process. This paper, however, focuses on norms
adopted by legislature.

66 That  was  the  case,  e.g.  of  H.R.  22,  formerly  the  Hire  More  Heroes  Act,  that  has  become  the

Senate's vehicle for passage of the DRIVE Act.

67 Outrageous bills, The Economist, November 23 2013.

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proposals  presented  by  the  Commission.  Plus,  internal  EP  rules  stipulate  that  each
amendment  should  concern  only  a  very  small  text  unit which leads  to  the  fact  that
amendments are usually not longer than one page. If figures concerning the length are
considered from a general perspective one can conclude that, save for complex texts,
the length of a majority of position taking tools in the EU and the US is not too different.

3.10.3. Co-sponsorship
Co-sponsorship is an important aspect to consider as regards legislative effectiveness. Of
86  acts  adopted  in  11  months  in  2015,  only  9  (10%)  had  no  cosponsors.  The  average
number of cosponsors for an act adopted in that period is nearly 20. Looking at the bills
that 'died' in the adoption process during that period (6142), 1,336 had no cosponsors
(22%) and the average number of cosponsors for a bill was 12. Those numbers indicate
that  co-sponsorship  increases the chances of  getting  the  act  adopted  and the vast
majority of bills with no cosponsors never get adopted or are 'dead on arrival'. These are
very  simplistic  conclusions  as  regards  co-sponsorship, which  is  developed  in greater
detail in the paper by G. Koger, where the above date come from.

3.10.4. Is it the member of Congress or rather the member's office who drafts a bill and
has the necessary expertise?
The answer is 'not necessarily' or 'rarely', in particular in the case of complex proposals.
It is hardly possible to use relevant statistical data as to who really wrote a respective
bill. As in  the  EU,  although  only  strictly  defined  players  have  the  right  to  formally
introduce  a  legislative  proposal,  there is  no  monopoly  as  regards  ideas  for  legislative
action. There are therefore countless number of sources where the idea for a draft bill
can emerge. It could be a citizen, NGO, interest group, business or any sort of institution
with a public interest who will develop an idea for legislative action and at some point
will start searching for a member of Congress who will formally introduce a bill. Of course
it includes a possibility that a member of Congress comes up with an own idea that is
materialised in a legislative proposal.

Although a number  of  sources  consider  the  introduction  of  a bill as a  formal  and
necessary  step  that  triggers  the  legislative  process,68 there  is  more  than  a  formal
procedural step involved.

Save for bills that are 'dead on arrival' and the purpose of which is not necessarily to have
them passed, the personality of the bill sponsor, but also the cosponsors and their variety
is important too. Using the search engine on www.congress.gov page it is easy to find
out that Charles Rangel (D-NY), a very influential Representative sponsored 15 bills that
became law (2009-2016). There are probably more possibilities as to how to interpret
the  fact  that  he  is  on  the  top  of  the  list  for that  period,  one  of  them  referring  to his
position of a chair in the most powerful committee in the House of Representatives, the
Ways and Means Committee. In that capacity Mr Rangel sponsored a number of bills that
paved the way for the economic agenda of President Obama. Among a number of very
complex  acts,  he  sponsored  the  Patient  Protection  and  Affordable  Care  Act ('Obama
Care').69 As well as promoting policy changes brought by those bills and later acts, he also
became  an  active  promoter  of  the  bills  which differs  from  the  position  of  an EP
rapporteur who has a different role given that the Commission is the author and the EP
rapporteur is preparing the EP position on the legislative proposal.

68 Strand, Johnson, Climer, Surviving in Congress, The Congressional Institute, 2015, p. 99.
69 H.R.3590.

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3.10.5. Role of Congressional committees
In a search for who is behind bill drafting a few acts were selected based on these criteria:

 Complex  acts  counting  several  hundreds  of  pages of considerable  expertise  which
often exceeds the possibilities of rather small offices of Congress members to draft
them,

 Acts adopted recently to increase the chance of identifying actors involved in drafting

who would still remember this phase,

 Acts  that  were  adopted  with bi-partisan support  and  are  technical  rather  than
politically controversial, in other words acts that could be described in EU culture as
'ministerial'

 The success ratio of a sponsor in his/her legislative activity and easy understandability

of an act was an optional criterion

On the above basis I had a closer look at the Every Student Succeeds Act and the FAST
Act. In particular, I focused on the following questions:

 What happened before a bill was introduced?

 Who was involved in the drafting of a bill and what role did the sponsor play in this

pre-introduction process?

 How drafters addressed a lack of expertise?

 What was the role of government in the pre-drafting process?

After contacting the offices of the sponsors of those acts I was advised to discuss details
with the relevant Senate committee where the core of the drafting took place before the
respective bill was introduced.

3.10.6. S.1177: Every Student Succeeds Act (ESSA)
The  Act  represents  a bi-partisan educational  policy  reform  that  expands  state
responsibility over schools and reduces the federal test-based accountability system of
the No Child Left Behind Act of 2002.70 It is a very complex piece of legislation that comes
to nearly 400 pages in its PDF version, and was supported with unusually high support –
final vote in the House (359-64), in the Senate (85-12). It was sponsored by the Chair of
the  Senate Committee  on  Health,  Education,  Labor  and  Pensions  (HELP),  Senator  L.
Alexander (R-TEN). According to govtrack, the bill had a 46% chance of being enacted.

After meeting legislative staff members from both the majority and minority offices of
the HELP committee I was able to expand my research questions.

What happened before a bill was introduced? Who was involved in the drafting of the bill
and what role the sponsor played in this pre-introduction process? How did the drafters
address the lack of expertise?

Anybody  with  a  continental  legislative  background  would  probably  work  with  a
presumption  that  given  the  expertise  required  for  drafting such  a  complex  piece  of
legislation, one has to liaise with a ministry/directorate general or state department for
education where the necessary expertise is concentrated.

70 More  details  could  be  fined  in  an  overview  published  on  the  web  page  of  the  Senate HELP

Committee.

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I was therefore surprised to learn that the work on a discussion draft of the above bill
started  in  the  HELP  committee  under  the  leadership  of  Mr  L.  Alexander  whose  staff
(majority  office)  prepared  the  first  draft.  The  discussion  draft  was  discussed  with  the
minority office (Dem) and the outcome of those debates was presented to an informal
public consultation. In addition five hearings were organized by the HELP Committee. All
that  aimed  at  ensuring the support  of  stakeholders  that  was  very  important  and  also
generated massive feedback from interest groups, teachers, intendants and others. As
underlined by both offices, it takes an enormous effort to reflect the received feedback
in the draft. And in a situation where it is impossible to have expertise on all aspects of
such a bill, one has to find a way how to learn from experts and also find a way how to
keep a general overview and balance of different elements of the bill that are interlinked.
As  pointed  out,  every  stakeholder  often  stresses  a  specific  point  of  interest  not
necessarily  taking into  account  another  related  issue.  The  person or  rather  a team  of
legislative drafters have to take that into account.

Mr L. Alexander has a long track of activities in the field of education. He has been the
U.S. Education Secretary and University of Tennessee president. In combination with the
chairmanship  of  the  HELP  committee  it  made  him  a 'valuable' sponsor  for  such  an
important bill in driving the relevant discussions. To paint a full picture, one has to stress
the cooperation between both camps of the HELP committee since the early stages of
the bill.

The role of the chair acting in a sponsor capacity is very important also due to procedural
reasons. Although every Member can introduce any number of acts, only 381 bills out of
7,304 were finally reported by a House or a Senate committee. That means that the fate
of 95 % of bills finished after those bills were referred to a relevant committee but never
made it on the committee agenda or, if they were debated the relevant committee didn't
adopt a report that would move them upstream of the legislative chain to a floor debate.
A decision as to what bill is put on the committee agenda lies in the hands of its chair or
a broader political consensus.

What was the role of government in the pre-drafting process?

This is a 'million dollar question' for anybody from the EU continental legislative culture.
Even  if  members  of  parliament  of  every  EU Member State  have a right  of  legislative
initiative, proposals like the one above on education policy are drafted by the relevant
government body, e.g. a ministry.

I was therefore surprised to learn that the majority office (Rep) had no contacts with the
administration  led  by  the  president  coming  from  Democratic  political  camp.  It  was
admitted that later in the legislative process the administration was asked to comment
on  specific  technical  questions  but  it  was  nothing that  would  imply  substantial  policy
changes in the piece of legislation debated. The input from the administration experts
appeared in the pre-introduced draft bill only via contacts between the Minority office
(Dem) and the administration. That communication also provided an opportunity to send
signals from the administration that had to be taken into account later in the process to
avoid a presidential veto.

In conclusion, both legislative staff members stressed that Congress legislates and the
administration implements. The ESSA provides a number of areas that will need to be
followed up by means of implementing legislation, the field where the possibilities of the
Congress to influence the implementation process are limited.

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The above description focuses on the drafting stage that precedes the introduction of a
formal bill. The legislative process is naturally much more complex, as the bill after being
reported by the HELP Committee to the Senate floor had to be debated in the senate and
after a similar  process  finished  in  the  House, both  chambers had  to  settle their
differences leading to an identical act that still had to be signed by the President.

3.10.7. H.R. 22: Fixing America's Surface Transportation Act or the FAST Act
The  Act  authorizes  budgetary  resources  for  surface  transportation  programs  for the
financial years 2016-2020; reauthorizes taxes that support the Highway Trust Fund, and
expenditure  from  that  Fund;  reauthorizes  the  Export-Import  Bank;  and  improves  the
Federal permit review process for major infrastructure projects.71 Despite the fact that
the quality  of  surface  infrastructure  is  something that was heavily  criticized  and  is
brought up by  many  presidential  candidates  in  the 2016  primaries,  the  topic was
considered as not being partisan as was also confirmed by the study of John W. Kingdom
quoted earlier.

The Act was adopted with bi-partisan support, and the figures corresponding to the final
votes in the House (359-65) and in the Senate (83-16) are not that different from the act
referred to earlier. Its PDF version comes to 490 pages.

Its  sponsorship  is  a  bit  more  complicated  than  ESSA  but  is  nothing  unusual in  the  US
legislative process.

H.R. 22 was initially introduced by Representative R. Davis (R-IL) under the name Hire
More Heroes Act. After contacting the office of the sponsor with my questions on what
happened  in  the  pre-introduction  phase,  I  was  immediately directed to  the  Senate
Committee  on  Environment  and  Public  Works.  That  way  I  learned  about  bill  S.1647 -
Developing  a  Reliable  and  Innovative  Vision  for  the  Economy Act  (DRIVE  Act)  which
contains the core of the FAST act. It has become apparent that H.R. 22, formerly the Hire
More Heroes Act had become the Senate's vehicle for passage of the DRIVE Act. There
are many reasons why one bill is used as a vehicle for another bill. In this case, one of the
reasons was that a spending bill has to originate in the House, that is why a vehicle was
found  for  ideas  that  were  developed  mostly  in  the  above  Senate  committee.  Looking
closely at bill S.1647 it is clear that this legislative proposal was to be considered as a
heavyweight one. It was sponsored by the committee chair, Senator J. Inhofe (R-OKL)
and  was  cosponsored  by  another  3 Senators  (1 Rep,  2  Dem),  one  of them  being  Sen.
Barbara Boxer (D-CAL), the ranking member (minority leader) in the same committee. It
was therefore clear that the bill would have a prominent place on the committee agenda
and  would  belong  to the 5  %  of  bills  that  are  reported  by  committee  even  though
govtrack predictions were that there was only a 22% chance that the bill would become
law.

When  discussing  my  questions  with a  legislative  staff  member of  the majority  office
many of the previous conclusions were confirmed.

The starting point for putting policy objectives in a legislative proposal was the previous
reauthorization act and bill S.2123 that was introduced in the previous Congress. New
elements added to that platform were based on input from a number of stakeholders
coming  from the administration,  state  departments,  other  members  of  Congress  and
industry. Like in the ESSA, the challenge was to reflect the various inputs in one text that

71 Statement  by  the  Press  Secretary  on  H.R.  22,  The  White  House,  Office  of  the  Press  Secretary,

December 04, 2015.

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would work and would get passed. On the other hand, unlike in the case of ESSA, contacts
with the US Transportation Department were more intensive. Like in the case of ESSA
those contacts with the administration were limited to very technical issues aiming at
workable legislative language. The role of the administration was to stay as technical as
possible  and  provide  the  requested  technical  expertise.  The  White  House  was  not
involved and 'stayed silent' throughout the process.

3.10.8. H.R. 2146: Bi-partisan Congressional Trade Priorities and Accountability Act of
2015 (TPA)
TPA  is  a 'famous' Act  that  enables  legislation  approving  and  implementing  certain
international  trade  agreements  to  be  considered  under an expedited  legislative
procedures  for  limited  periods,  provided  that  President  observes  certain  statutory
obligations.72 On US side, TPA enables that the ongoing negotiations on the Transatlantic
Trade and Investment Partnership (TTIP) are concluded and the outcome submitted to
Congress for a 'fast track' approval. It also applies on the Trans Pacific Partnership (TPP).

Like the FAST Act, TPA is the act that was adopted with a bi-partisan support, not that
overwhelming  though  (House  219-211,  Senate  62-37).  Another  act  (Defending  Public
Safety Employees' Retirement Act) served as a vehicle for the adoption of TPA.

As regards sponsor(s) TPA was introduced simultaneously in the House by Paul Ryan (R-
WI),  the  chair  of  the  Ways  and  Means  Committee  who  has  meanwhile  become  the
Speaker of the House and in the Senate by Orrin Hatch (R-UT), the Chair of the Senate
Finance  Committee.  Like  in  previous cases,  both  sponsors  were  chairs  of  powerful
committee and in line with a longstanding legislative practice, these chairs traditionally
introduce this type of a bill.

Meeting  Sandra  Strokoff  and  Mark  Synnes  who  represented  the  House  Office  of  the
Legislative  Counsel  and  provided  drafting  assistance  to  the  House  Ways  and  Means
Committee  I  learned  that the  core  of  the  pre-introduction  activities took  place  in  the
relevant congressional committees. Although they largely based their starting version on
the previous  TPA  granted  to  President  Bush  in  2002,  new  elements  had  to  be
incorporated in the 2015 TPA.

3.11. Summary of legislative initiative applied in US Congress

In  order  to  generalise  an  outcome  one  would  need  to  study  many more  bills  that
eventually  became  laws.  The three above  case  studies  nevertheless  provide  an
opportunity to conclude that:

 Congress legislates and the administration (executive) implements,

 The role of the administration at the early stages of the legislative process is limited
to technical questions based on concrete requests made by the relevant committee,73

 Complex  bills  are  drafted  by the Congressional  committee  (staff)  with  the  help  of
legislative drafters, who invest a lot of effort in the preparation of bills before they

72 Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy. CRS Report RL33743,

June 15, 2015.

73 With this statement I don't want to undermine the position of the executive. The White House
issues Statements of Administration Policy that express its views on ongoing legislative activity.
One cannot also ignore the fact that the US system of checks and balances provides the
President with the right to veto a bill passed by Congress.

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are actually introduced,

 The  drafters  are  the  ones  who  manage the feedback  seeking  exercise,  liaise  with

stakeholders and translate their feedback into legislative proposals,

 Although Congressional committees do not have all the relevant expertise necessary
for drafting a complex bill, they are the places where a limited number of drafters put
the input  received  from  stakeholders  (who  might  have  very  specific  interests)
together, thus ensuring that the bill is balanced, and its different elements can work
together,

 Despite the fact that any Member can introduce a bill, in order to get the bill on the
committee  agenda  it  is  important  that  the  bill  gets bi-partisan support  and  is
sponsored or supported by a committee chair and a ranking member.

4. Conclusions on the right of the legislative initiative

The principle of separation of powers into the legislative, executive and judiciary has an
impact on who the constitutional holders of legislative initiative are.

On the one  hand, the  purist  approach,  which  applies  in  the  United  States,  reserves
legislating with everything that that includes to the US Congress.

On  the  other  hand there  are  other  models  in  which  the  executive  (government,
President) play a more active role and share the initiation of legislation with members of
parliament (or  groups  of  members  or  political  groups)  of  legislative  power.  In  the  EU
Member  States  the  executive  dominates  the  process  of  initiating  legislation  which  is
implied  by  the  fact  that  a  stable  government  normally  disposes of a  parliamentary
majority that enables it to implement their program priorities.

A third 'sui generis' model in this regard is the system that has been operational in the
EU  and  which  reserves  the  right  to  formally  introduce  a  legislative  proposal  to  the
Commission which has  effectively  a monopoly  on  the legislative  initiative.  This
independence of the Commission 'was intended to grant it a “unique position” to identify
the general interest of the Community. In their intentions, such an interest was not to be
conceived as a sum of the national interests of the Member States, the prevailing interest
of one of the big Member States, or that of the founding Member States. Rather, the
Commission was supposed to be able to adopt legislative proposals that would be based
on the most advanced national legislation or on innovative regulation that pursued the
interest of the entire Union.'74

While the objective of this paper is not to question the rationale behind the motives of
the EU legislative process  and architecture laid down 60 year ago, one has to consider
the  question  of  whether  successive  treaty  changes,  a  gradual  shift 
from
intergovernmentalism  towards  supranationalism  and  evident  changes  of  the
institutional architecture which reinforced the position of the EP, haven't reached the
point where the EU agenda setting mechanism could be improved by upgrading the EP's
right to amend, to a full right of legislative initiative.

74 P.  Ponzano,  C.  Hermanin,  D.  Corona,  The  Power  of  Initiative  of  the  European  Commission:  A

Progressive Erosion?, p. 25.

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4.1. How can the EU benefit from the EP's full right of legislative
initiative?

4.1.1. EP - promoter of new (reformed) policies
The EU goes through turbulent times when one crisis is followed by another. One cannot
argue that there is a lack of solutions to different crises. The problem seems to be a lack
of  leadership,  willingness  to  take  action  and  go  for  solutions  that  don't  have  to
necessarily offer a complete answer to a crisis but could be a 'startup' version 1.0 that is
upgraded over the time.

The Commission  is  sometimes  accused  of  being  bureaucratic  and  not  having the
necessary  legitimacy  gained through elections.  Although  this  kind  of  argument  is
presented mostly by a Eurosceptic camp, it causes the situation that mainstream political
parties might not be eager supporters of Commission ideas either. They might instead
take a 'wait and see' approach and comment on a proposal once it comes, taking into
account the 'political costs' necessary for its approval. Consequently, the EU has ended
up  in  a  situation  in  which  Commission  proposals  are  very  much  developed  on  facts,
'scientifically' based and take into account the EU-wide interest which is all fine but may
lack decisive political support at the 'arrival' time.

The EU institutions cooperate very well. The language used by stakeholders during the
legislative  process  is  very  seldom  undiplomatic.  Thus,  many  times  a  rapporteur
appointed by the  relevant EP  committee  will  praise  the  Commission  for  its  very  good
proposal and will at the same time table a number of amendments which, combined with
modifications  coming  from  other  Members  or  political  groups,  result  in  a  legislative
outcome  that  might  radically  depart  from  the 'entry' version.  An  open  and  inclusive
discussion that involves the possibility to generate diverse ideas is by all means a good
feature  of  the  legislative  process.  It  might nevertheless  lead  to  a  situation  where  the
amendment  process  resulting  in  text  that  is  markedly  different  from  the  initial  form
dilutes the initial idea into a compromise that is not easy to interpret and even more
difficult to apply in real situations.

It is not just different terminology but the notion of 'rapporteur' and 'sponsor' offers a
different perception of the role of a legislative body. A Rapporteur is an independent
person,  that  scrutinises  a Commission proposal  and  brings  his/her  views,  very  rarely
approving everything that  was proposed by the Commission.  A  sponsor,  on the  other
hand,  is  an  owner  of  the  proposal,  and  has  therefore  a  good  reason  to  advocate  it
throughout the process with much more involvement than an 'independent' rapporteur.

If the EP  had  a  full  right  of  legislative  initiative,  sponsors  would  have  an  interest  in
supporting their proposals, organising hearings, using media to increase support for their
legislative ideas, work on the ground with stakeholders to get them on board and start
building a support coalition right from the beginning.

4.1.2. EP – link with citizens
The fact that EP is the only directly elected EU institution doesn't provide it only with a
legitimacy  directly  derived  from  the  holders  of  power  but  also  offers  a  natural  link
between elected MEPs and their constituency where they spend a lot of time. This is not
to  say  that  Council  members  (Member  States  executive  representatives)  or the
Commission with all its members of staff that are present in EU delegations, don't have
direct  contact  with  citizens.  The 'quality' of the direct  link  between  voters  and  the
representatives they elect (MEPs) is nevertheless different. The EU negotiating directives
for TTIP are not a perfect example. But imagine if those directives were adopted jointly

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with the Council on the basis of a proposal initiated by the EP to which the Commission
would provide its input based on the technical expertise gained over the years. In that
situation,  once  the  mandate  was  adopted,  the  EU  would  have  all  the  institutions  on
board  which  would  naturally  support  what  they  voted  for  and  communicate  their
message to their constituents. Instead, the EU has two sets of negotiation mandates, a
de iure mandate contained in the Council negotiating directives and another a de facto
mandate contained in the EP own initiative report. The documents overlap in many areas
but also offer different views on some TTIP aspects, such as ISDS, GMO or data privacy.
This resulted in a situation in which the EP was presenting different views on a number
of areas under negotiations. Not only was it not an example of the EU institutional unity
that is necessary in negotiations with third partners, but it also sent a negative signal to
EU stakeholders on the overall negotiation way. Combined with a legitimate campaign
of TTIP opponents, the public support for the deal is declining.75

Admittedly,  the  above  example  is  not  ideal  given  the  current  EU  institutional
mechanisms in the field of international trade. It nevertheless shows that EP support,
rather than a reservation or opposition, for a sensitive political project is crucial from the
outset as it sends a strong message to the general public.

The EP with a full right of legislative initiative would play an important role in enhancing
support by EU citizens for projects that require EU wide solutions.

4.1.3. EP – open arena for discussing policies (not just ideas)
Bearing  in  mind  the  EP  statistics  (the number  of  procedures)  for  the  7th  term  (2009-
2014) the EP  plenary  dealt  with  1798  non-legislative  procedures  (e.g. own initiative
reports,  motions  for  resolutions)  and  919  legislative ones (e.g.  ordinary/special
legislative  procedure,  budget).  Comparable  numbers  from the  US  Congress  show  that
there were more than 9,000 bills before the 113th Congress (2013-2014) and 1700 other
texts  which  one  can  describe  as the equivalent  of  EP  non-legislative  documents
(resolutions).  If  a  similar  comparison  is  made  with the national parliaments  of the EU
Member States the gap between legislative and non-legislative business would be even
bigger. The Slovak Parliament, for example, very rarely deals with resolutions of a non-
legislative nature. The vast majority of Slovak MP activities is devoted to legislative work.

In the Slovak case the explanation is that the country belongs to a traditional continental
parliamentary  democracy  where  the  government  is  supported  by  a  parliamentary
majority. Legislative ideas are submitted to the parliament either directly by government
or by MPs. Legislative proposals by the opposition are tabled directly by opposition MPs
thus leaving very little margin for other items which would have to be tabled by non-
legislative  resolutions.  It should be  mentioned  that  there  isn't  much  sympathy  or  a
constitutional tradition to debate and adopt documents of a declaratory nature that do
not have the power of an act.

The  US  Congress  case  shows  that the  right  to  initiate  bills  directly  by  members  of
Congress results in much more focus on legislative activities.

Why  is  this  relevant?  For  a  simple  reason,  the  language,  focus,  feasibility  or  impact
assessment of ideas is considered much more in depth in the case of legislative proposals
than  non-binding  resolutions.  A  simple  comparison  of  a  legislative  text  and  a  non-
legislative  resolution  suggests  that  while  the  latter  can  contain  a  list  of  objectives
(wishes) to be achieved the former needs to contain clear ways as to how to achieve

75 Standard Eurobarometer 84, Autumn 2015, p. 31.

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those objectives. It would be too easy to start to criticise the content of EP non-legislative
reports, but one should not be surprised to see that the same report asks for maintaining
flexibility  on  the  labour  market  while  ensuring  full  employment.  Such  a  statement
doesn't  have  much  space  in  a  legislative  text  which  needs  to  outline  how  to  achieve
either one or the other objective.

The EP's full right of legislative initiative would enable the EP to grow in its legislative
shoes and balance its powers with its constitutional significance, in light of the fact that
the EU is founded on the principles of representative democracy.76 It has a potential to
generate resource savings given that the House would be dealing predominantly with
procedures that produce binding outcomes rather than non-binding ideas which are not
difficult to ignore.

The last remark under this heading is linked to the ongoing 'Brexit' discussions, namely
the reinforced roles of national parliaments that would result in an enhanced possibility
to oppose EU legislative initiatives. While there is no reason to comment on the roles of
national parliaments in this paper, another possibility as to how to influence EU topics
would be bringing forward proposals that are of interest for EU citizens. Given that any
standard political party in a given Member State usually has its representatives in the EP,
one way of addressing the concerns of EU capitals is proposing topics that are of their
interest, in case the Commission doesn't come with the relevant initiative.

4.1.4. EP – its influence at international level through legislation
The EP's influence in international relations through legislation is limited. Not necessarily
due  to  the lack  of  full  legislative  initiative  but  mainly  due  to  the  fact  that
'communitarisation' of the foreign policy pillar happened only recently. The EP is fully
involved in codecision in fields such as immigration, visas and different funds dedicated
to e.g. support of human rights in the world. It must grant its approval to international
agreements to which the EU is a party by means of a yes/no vote.

In  addition  to  legislative  activities the EP  influences  EU  foreign  relations  by  other
activities of a non-legislative nature, such as election observation missions, or different
resolutions  on  human  rights  or  awards  granted  to  human  rights  defenders  (Sakharov
Prize).

The  example  of the US  Congress  shows  that  a  legislative  body  has,  by  means  of  a
legislative initiative, a great potential to influence relations that go beyond the borders
of a given state. The Justice Against Sponsors of Terrorism Act (S.2040) is a bill that was
introduced in  2015 by  Sen.  John  Cornyn  [R-TX]  and  was  cosponsored  by  another  22
Senators on a bi-partisan basis. It opened a quite lively discussion in which a number of
presidential candidates got involved (e.g. Clinton, Sanders) who voiced their support. Its
main objective is to allow victims of 9/11 and other terrorist acts to sue foreign countries
and others that funded Al Qaeda or ISIS. Commentators agree that the most affected
foreign  country  is  Saudi  Arabia,  who  allegedly  supported  the  hijackers  of the planes
involved in the 9/11 attacks.

If it was one of thousands of bills that was introduced by an individual Member there
would  probably  not have  attracted much  attention.  Its bi-partisan support  by
'heavyweight' Senators and the fact that the Senate Judiciary Committee passed this bill
unanimously by 19 votes, changed the situation. The White House statement was that it
was highly unlikely that the then-President Obama would sign the bill in its current form.

76 Article 10(1) TEU.

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Saudi Arabia already warned the US that it would sell off billions in American assets if the
U.S. Congress passed a bi-partisan bill that would allow victims of 9/11 and other terrorist
attacks to sue foreign governments.

The bill meanwhile became a law and was the only piece of legislation in the 2nd Obama
term that was passed despite the presidential veto with massive majority in the Senate
(97-1) and the House (348-77).

The case shows that a mere proposal, if adopted, has far reaching consequences and has
greater potential to start a serious discussion rather than a non-binding tool which can
be easily forgotten.

4.2. Challenges of EP full right of legislative initiative

4.2.1. Erosion of legislative initiative
If the EP  had  a  full  right  of  legislative  initiative  as  of  the  next  Treaty  modification,  its
benefits would have to be carefully considered in the light of expected 'costs'.

If an individual Member alone had a right to table a legislative proposal, it is reasonable
to expect a very high number of proposals. The US example shows that one member of
Congress  introduced  16  bills  in  the  113th congress  over  two  years.  Even  if the
'productivity' of EU legislators would be 50% of their US colleagues, it would result in
3,000 new legislative proposals every year. That would significantly influence the current
practice  where every Commission proposal  is  submitted  to  and  considered  by  other
legislative stakeholders. This practice is tenable with a few hundred proposals but surely
not with thousands of procedures every year. Even if proposals that are dead on arrival
are  disregarded, the situation  with  that  many  proposals would lead  to competition
between them, coalition building, co-sponsorship and other activities that make the idea
in the respective legislative proposal so appealing that it gets its agenda slot. That also
corresponds to what is happening in the US where less than 10% of the bills introduced
are reported to congressional committee and thus moved on in the legislative process.
More than 90 % of bills are never treated by any of the legislative stakeholders and serve
more for the purposes of taking  a position  rather  than bringing  about a  change.  That
brings  us  to a couple  of  hundred procedures  on  the  US  side  that  make  it  down  the
legislative  chain,  the  number  that  is  not  far  from  the  number  of  procedures
corresponding to current EP capacities.

Another argument against the right of initiative for individual MEPs which is linked to
legislative capacity is the fact that the constitutional practices of the parliaments of EU
Member States ensure that every proposal gets treated. Thus even if an MP from a minor
political party makes a proposal, it is added to the agenda and voted.

These  considerations  suggest  that  the holders  of  the right  of  initiative  should  not  be
individual MEPs but rather larger groups of MEPs requiring some threshold, such as a
minimum number  of  MEPs.  Such  a  requirement  would  limit the  number  of  proposals
coming from the EP. It would also be reasonable to expect that a legislative idea from a
larger  group  would  pay  attention  to  the  wider  EU  interest  and such proposals  would
therefore be of a quality that is necessary to trigger serious legislative debate and not
just to take a stance on something.

4.2.2. EP internal procedures – 'winner takes it all'?
Another  argument  against  the  right  of  initiative  for  individual  MEPs  is  based  on  the
system of political parties at the EU level. Unlike the US or in a few EU Member States,
the organisation of work in the EP is currently influenced by the eight political groups.

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In the US a chair, be it at committee or floor level, decides which bill is added to the
agenda  for  further consideration.  Such  a  model  is  easier  to  apply  in  a  system  of  two
parties  and  less  so  in  situation  in  which  a  majority  is  formed  by  a  coalition  of  more
political parties or groups. Although that the two biggest political groups (EPP and S&D)
cooperated in  a  sort  of 'grand 'coalition  mode prior  to  the  EP  President  elections  in
January 2017, the EP culture is such that all political opinions are at least formally taken
into account and get a point on the agenda be it at the committee or plenary stage. The
system in which political groups or a defined number of MEPs are holders of a legislative
initiative  would  address  this  point  too  and  would  imply  that  all  legislative  proposals
would get a place at least on the committee agenda.

4.2.3. Role of the other legislative branch – Council (Member States)
The  right  of  legislative  initiative  granted  to the EP  would  naturally  open  the  same
possibility for the other legislative branch – the Council. The question would therefore
be whether such a right would be granted to an individual Member State or to a group
of Member States and thus require some threshold.

In the past, the EP was sensitive about the possibility of Member States being able to
initiate the legislative process in the field of justice and police cooperation. As the EP
didn't have a corresponding right, instead of focusing on being entitled to initiate the
legislative process the EP stressed that the community method should be used and that
the Commission monopoly preserved.

4.2.4. EU institutional triangle
Enabling the EP and Council to legally initiate the EU legislative process would no doubt
have a significant impact on the position of the Commission.

It would be a challenge to ensure that the current procedures that precede the adoption
of a proposal by Commission are somehow respected by the other legislative initiative
holders. Namely:

 the impact  assessment process in  which  the  Commission  assesses  the need for  EU
action and the potential economic, social and environmental impacts of alternative
policy options,

 interservice consultation – the  process  that  takes  into  account  views  of  other
Commission  Directorate  Generals  (ministries)  that  might  have an interest  in
addressing their point of view relevant for the proposal,

 and, in particular, ensuring that the general interest of the Union is taken into account
in a proposal and not an interest that is conceived as a sum of the national interests
of Member States or EP political groups.

As  Treaty  changes  concerning the EP  role  in  codecision  were  made  in an incremental
way, it is reasonable to suggest that if the EP had the full right of legislative initiative one
day,  it  would  coexist  with the  right  of  legislative  initiative  of  the  Commission  and the
Council. The redesigned system would have to contain a system of checks and balances.
E.g.  if  the  commission  opposes  a  proposal  introduced  by the EP  or the Council, the
quorum necessary for its adoption would increase. This is already happening in situations
in which Council unanimity is required for points that are opposed by the Commission.
Such a mechanism would introduce a sort of veto.

Time would then show whether the modified roles as regards agenda setting would lead
more towards the continental model in which the executive introduces the core policy
initiatives and keeps a very high success adoption ratio of its proposals. Or it would go

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more  towards  the  US  model  in  which the  legislative  branch  legislates  and  the
administration focuses on implementation.

4.2.5. Transparency and ethics
Parker  and  Alemano  consider  the 'formative' stage  of  legislation – in  which  draft
legislation is conceived and crafted – as more reliably open and inclusive in the EU than
in the US. They argue that 'legislation that goes from the Commission to the European
Parliament and Council is the product of an elaborate administrative process that will
generally  include  extensive  stakeholder  consultations,  Impact  Assessment  (IA),  Inter-
Service Consultation (ISC), and final adoption by the EU College of Commissioners'.77 As
regards the deliberative (post-proposal) stage for implementing and delegated acts, they
consider the EU rulemaking system less transparent than the one present in US given
that, unlike in the US, there is normally no impact assessment process for implementing
legislation in EU.

The EP has focused on the pre-legislative phase quite seriously. Given that there were
instances when the EP was not satisfied with Commission impact assessments, the EP
has established internal procedures by which it undertakes scrutiny and oversight of the
executive, particularly through ex-ante and ex-post evaluation of EU legislation - before
and  after  it  is  adopted  by  the  Union's  institutions - and  analyses  the  need  for,  or
effectiveness of, action at European level.

Once a Commission proposal reaches the EP, it is referred to the lead committee with
other  committees  invited  to  submit  their  opinions. As in  the  case  of  the  Commission
Directorates General, EP committees bring different standpoints to bear on the relevant
Commission proposal.

These examples are mentioned to demonstrate that the EP has been focusing on agenda
setting from a very early stage and created services that could offer to future holders of
legislative  initiative  a  focus  similar  to  the  one  applied  by  the  Commission  in  the  pre
proposal phase.

A legislative initiative for other stakeholders than the Commission would surely attract
the interest of lobbyists and interest groups that might find it easier to convince a MEP
or a political group or a Member State to submit a proposal, rather than convincing the
Commission to take an action. It is therefore likely that the transparency register, which
has been set up to answer core questions such as what interests are being pursued, by
whom and with what budgets, would have to be redesigned as it is currently operated
jointly by the EP and the Commission on a voluntary basis.

4.2.6. EP and Council capacities
The main focus of this paper is to consider the constitutional necessity and advantages
offered by endowing the EP with the right of legislative initiative. Such a broad matter
naturally opens other practical issues one of them being the capacity of new holders of
the  legislative  initiative  to  draw  up  legislative  proposals  of  the  required  quality  and
supported by the relevant facts. Comparing the typology of legislative services offered
by  the  staff of the  Congress  and the  EP  there  isn't  any  significant difference.  Like the
Congress, the EP has as its disposal policy expertise within committee secretariats who

77 R.  Parker,  A.  Alemano,  Towards  Effective  Regulatory  Cooperation  under  TTIP:  A  Comparative

Overview of the EU and US Legislative and Regulatory Systems. 13 May 2014, p. 59.

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can get support from other departments.78 Further research in the relevant policy field
is  ensured  in  the  US  by  the  Congressional  Research  Service,  and  in  the  EP  by  the  EP
Research Service (EPRS). Drafting support is provided by Legislative Counsels on the US
side and EP legislative drafters from Directorate for Legislative Acts on the EU side. It
would be very bold to conclude that because the EP services to some extent mirror those
in  Congress,  the  EP  is  therefore  ready  to  start  introducing  legislative  proposals  like
members of Congress. The scheme of EP services nevertheless shows the EP's readiness
to get seriously involved in agenda setting and play an important role not only in the
current system in which the EP needs to convince the Commission to submit a proposal
but to get upgraded to a level whereby the EP can trigger the legislative process with its
own proposals.

5. Chapter II: Role of the European Parliament in negotiations
on agreements between the Union and third countries – scope
for improvement in the next treaty change?

This chapter will look at the EP role in negotiations on agreements between the EU and
third countries, more specifically international trade agreements, with a view to reflect
the EP's  role  in  EU  agenda  setting in  areas that  go  beyond  EU  borders.  There  will  be
opponents who would consider this debate not very useful or perhaps premature given
the recent Lisbon arrangements by which the EP acquired the right to consent also to
international trade agreements to which the EU is a party.79

the degree  of  transparency  of  negotiations, 

International trade agreements to which the EU is a party have different dimensions or
dilemmas, such as bilateralism versus multilateralism, 'simple' versus 'mega' free trade
agreements,
involvement  of  non-
governmental organisations, civil society, etc. This paper will primarily focus on roles of
the different  EU  institutions  and  the  benefits  of  uniting  the  voice  of the EU  by
empowering the EP to take part in negotiations on EU international trade agreements
from the beginning, on an equal footing with the Council.

5.1. A bit of necessary history

As there are publications that offer a very comprehensive and detailed overview of EU
trade  policy  mechanisms,80 this  chapter  will only briefly  refer  to  pre  and  post  Lisbon
mechanisms.

Before  the  Lisbon  Treaty entered  into  force in  December  2009,  the  negotiations  of
international  trade  agreements  were  fully  controlled  by  the  Member  States  via  the
Council. The negotiations were conducted by the Commission on the basis of a mandate
approved  by  the  Council.  Before concluding  the  negotiations  by  the  Council,  in a few
cases such as association agreements, the EP was required to give its consent; in some

78 Though  the  EP  does  not  have  the  same  supporting  capacity  that  benefits  Congress,  suffice  to

mention the Congressional Agencies such as CBO and GAO.

79 Article 218(6)(a) TFEU.
80 See for example articles of R. Leal-Arcas: Is EC Trade Policy up to Par?: A Legal Analysis over Time—
Rome, Marrakesh, Amsterdam, Nice, and the Constitutional Treaty, Columbia Journal of European
Law, Spring, 2007.

The EU Institutions and their Modus Operandi in the World Trading System, Columbia Journal of
European Law, Winter, 2005/2006.

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cases, the EP was consulted. In the area of international trade agreements the EP had no
say. As suggested by some authors, rather than being a well thought out mechanism, this
situation was a consequence of the unwillingness of Member States to allow the EP to
have a substantial say on the common commercial policy. Consequently, following the
Nice Treaty, 'The European Parliament was the big loser with regards to the new Article
133  EC  [Treaty]81 (the  predecessor  of  Article  207  TFEU  concerning  the  common
commercial policy). 'The Commission's Opinion at the IGC in January 2000 suggested the
extension of co-decision to the common commercial policy. This proposal did not see the
light because the European Council refused to apply the principle of parallelism and, in
the words of the Commission, this failure to increase the role of the European Parliament
in  EU  decision-making  under  Article  133  EC  is  regrettable  for  the  democratic
accountability of the Union's trade policy.'82 Although 'the European Parliament [did] its
best  to  provide  some  scrutiny  of  EC  commercial  policy  …  it  [had]  has  very  limited
powers'83 to do so.

Against this model, the Lisbon Treaty has brought a considerable change as regards the
EP's role given that 'measures defining the framework for implementing the common
commercial policy' are adopted by the EP and Council in accordance with the ordinary
legislative procedure since December 2009.84 In addition to that, the EP's consent is now
required for all international trade agreements to which the EU is a party. This shift is,
no doubt, a step forward as compared to the pre-Lisbon time. Many EU parliamentarians
would  surely  agree  that  the  Lisbon  change  was  a  very  important  step  towards  EP
participation in EU international trade relations. Maximalists would argue that this shift
was unsuccessfully suggested already a decade before Lisbon, the fact that democratic
oversight over EU international negotiations in the field of trade was achieved by the
Lisbon Treaty should therefore be viewed as a minimum rectification of the institutional
architecture 'bug'.

5.2. Why is the post-Lisbon arrangement not sufficient?

Economic  globalisation  is  the 'gradual  integration  of  national  economies  into  one
borderless global economy'.85 It encompasses international liberalized trade and foreign
direct investments.

As underlined by the EP President Schulz in his speech of 21 April 2015 delivered in Rome,
“In today's world, parliaments don't stop their work at the national borders anymore.
Parliaments have to think about the consequences of international events on their work.
Because the borders between what is decided nationally and internationally are blurring.
Whether  they  are  about  trade,  data  exchanges  or  strategic  partnerships – many
international treaties have consequences on national policies and practices. They should
therefore be a concern for parliaments from the moment negotiations start until their
final conclusion and implementation.”

81 Rafael Leal-Arcas, Is EC Trade Policy up to Par?: A Legal Analysis over Time—Rome, Marrakesh,
Amsterdam, Nice, and the Constitutional Treaty, Columbia Journal of European Law, Spring, 2007.
Idem.

82

83 Rafael  Leal-Arcas,  The  EU  Institutions  and  their  Modus Operandi  in  the  World  Trading  System,

Columbia Journal of European Law, Winter, 2005/2006.

84 Article 207(2) TFEU.
85 P. Van den Bosche, W. Zdouc, The Law and Policy of the World Trade Organisation, Cambridge

University Press, 2015, p. 5.

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The EU is naturally different from the US where trade and tariffs were a major cause of
the  tensions  that  led  to  the  American  revolution  at  the  end  of  18th century  and  was
expressed by the slogan 'No taxation without representation' implying that if taxes or
import/export tariffs were necessary, then the Americans wanted their own assemblies
to impose them.

What is trade policy about? According to The Commission Directorate General for Trade,
EU trade policy is working to (a) create a global system for fair and open trade, (b) open
up  markets  with  key  partner  countries  and  (c)  make  sure  others  play  by  the  rules.
Although  the  cross  border  dimension  of  international  trade  is  its  essential  part,  the
ultimate goal of a mega free trade agreement, such as the negotiated Transatlantic Trade
and  Investment  Partnership  (TTIP),  is  to  make  it  easier  for  companies  to  sell  their
products or provide services in new territories and eventually cut red tape that firms face
when exporting and create a set rules to make it easier and fairer to export, import and
invest.86 Going even more closer into the concrete details, trade includes trade in goods,
services,  public  procurement,  vehicles,  cosmetics,  textile,  food  safety  and  animal  and
plant  health,  engineering, 
intellectual  property,  medical  devices,  pesticides,
pharmaceuticals  and  others,  which  have  to  meet  some  standards  and  fulfil  agreed
conditions to be allowed by trading partners to enter their territory.87 That brings us to
the  sphere  in  which  any  parliament  has  its  say  given  that  policy  areas  such  as the
protection of the environment, public health, economic affairs and the internal market,
that traditionally come under  detailed  parliamentary  scrutiny.  This justifies  the EP
interest in the common commercial policy and more specifically in international trade
matters.

5.3. The EU needs to speak with one voice

Although there is a clear parallel between traditional internal policies and international
trade,  the  latter  requires  that  specific  procedures  apply.  Namely,  it  is  necessary  that
there is one negotiator on the EU's behalf which is the Commission and the remaining
EU  players  involved  in  the  process  speak  with  one  voice.  While the current  Treaty
provisions provide  a  clear  mechanism: the Council  adopts  mandate - the Commission
negotiates  and  keeps  both  EP  and  Council  informed - the Council  concludes  the
negotiations after the EP gives its consent, there is still room for improvement as regards
the EP role in defining the binding negotiation mandate.

At  the  moment,  in  line  with the statutory  provisions of  the  treaties, the EP 'shall  be
immediately and fully informed at all stages of the procedure'88 and 'the Council shall
adopt  the  decision  concluding  the  agreement  […]  after  obtaining  the  consent  of  the
European Parliament in the following cases: […] (v) agreements covering fields to which
either  the  ordinary  legislative  procedure  applies,  or  the  special  legislative  procedure
where consent by the European Parliament is required.'89

86

Inside  TTIP,  An  overview  and  chapter-by-chapter  guide,  Directorate-General  for  Trade  of  the
European Commission, Publications Office of the European Union, 2015.

87 There are number of publications on TTIP, one of the first books focused on TTIP was put together
by  J.  Roy,  R.  Dominguez,  The  TTIP,  Miami-Florida  European  Union  Center/Jean  Monnet  Chair,
2014.

88 Article 218(10) TFEU. The relevant Treaty provisions are in Annex III.
89 Article 218(6)(a)(v) TFEU.

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The practice shows that the information stage is implemented via frequent reporting to
the EP Committee on International Trade (INTA) and the possibility for MEPs to consult
negotiating texts.

As regards the consent phase, nobody questions that this procedure allows only for a
'yes' or 'no' vote in line with the fact that agreements agreed internationally cannot be
subject  to  unilateral  changes  made  by  the  approval  bodies  like  a  parliament.  It
nevertheless implies that the EP naturally scrutinises the outcome of the negotiations
against  the  objectives  (mandate).  In  the  early  years  following  the  Lisbon  treaty  this
exercise  was  far from  an 'obligatory  ride'.  The  SWIFT,  PNR  and ACTA  cases  and  some
fisheries agreements showed that the EP has its expectations as regards the content of
agreed international agreements and doesn't hesitate to refuse to consent. Rather than
'manifesting' its power, this situation shows that the EP is active in getting involved early
in the negotiation process and wants its voice to be heard along with the voice of the
Council.  It  seems  therefore  very  beneficial,  that  the  Commission  effectively  listens  to
both the EP and Council and de facto recognised that the EU negotiating mandate in the
case of TTIP consists of two parts90 – one is the official mandate adopted by Council on
17 June 2013 (and declassified more than a year later on 9 October 2014) and the second
is the EP resolution with recommendations for TTIP adopted on 8 July 2015.

5.4. Two 'mandates' for TTIP, a problem?

Statutorily, there is only one binding mandate – the text adopted by the Council. The
Commission  is  nevertheless  in  a  very  complicated  position.  As  well  as  conducting
negotiations on  the  basis  of the  Council  directives  and  trying  to  achieve  as  much  as
possible in direct talks with the US negotiating team, they have to bear in mind the de
facto requirements which the EP voted with a large majority (436/241). Even though the
EP text is not legally binding, the Commission takes it seriously as the EP will use it to
assess  the  negotiated  text as  compared  to  the EP's objectives  and  is  therefore  an
important  part of  the  consent procedure  that  concludes  the TTIP negotiations  on  the
side of the EP one day.

Against this background it appears useful comparing the two mandates in order to see
whether the EU players speak with one voice.

5.4.1. Quantitative analysis of the 2 texts
The first impression after reading both texts is that they have a comparable structure
and there doesn't seem to be an obvious contradiction.

Length

The EP text (more than 7,700 words in English) is nearly twice as long as the Council text
(more than 4,300 words). Given that the general scope of both texts is not that different,
the  qualitative  analysis  will  show  that  the EP  text  is  more  concrete  and  detailed  in  a
number of issues.

WTO terminology

90 'Trade and investment policy is an exclusive competence of the EU. Democratic oversight of EU
trade negotiations lies with the governments of the Member States, represented in the Council, and
with the European Parliament. In addition to the mandate given by Member States before the start
of the negotiations, the European Parliament adopted in May 2013 and July 2015 resolution on the
EU  trade and  investment  negotiations  with  the  US,  providing  guidelines  to  EU  negotiators  for  the
conduct of the negotiations.' The Transatlantic Trade and Investment Partnership (TTIP) – State of
Play, 27 April 2016.

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In some places the Council text appears to refer to standard notions of WTO texts more
than the EP text, e.g. the EP text makes it clear that the 'highest levels of protection of
health and safety [shall be secured] in line with the precautionary principle laid down in
Article 191 TFEU'91 while the Council text calls for 'recognising the right for the Parties to
appraise and manage risk in accordance with the level of protection that each side deems
appropriate, in particular when relevant scientific evidence is insufficient'.92 The latter is
a  notion  contained  in  the  WTO  Agreement  on  the  Application  of  Sanitary  and
Phytosanitary  Measures  (SPS  Agreement),  in  particular  in  its  Article 5(7).  Rather  than
referring to the precautionary principle that is contained in the EU document (TFEU), the
Council refers to the document that is a benchmark for both negotiating parties. Nobody
should question that Council is giving up the precautionary principle in the mandate, it
just uses different ways of referring to it.

Normativity

The Council text contains 31 places in which its language uses a clear binding formulation
'shall', e.g. 'The Agreement shall provide for the reciprocal liberalisation of trade in goods
and services'. There are 50 places where less prescriptive language is used by employing
'will',  e.g. 'The  goal  will  be  to  eliminate  all  duties  on  bilateral  trade…'. 15  places
containing 'aim' formulations, e.g. 'The aim of negotiations on trade in services will be…'
and 41 places  with  open formulations 'should', e.g. 'The Agreement  should  develop a
framework…'.

The EP text contains one 'shall' and 16 'will' formulations. There are 52 references to the
less obligatory 'ensure' form, e.g. 'to ensure that the negotiations on rules of origin aim
at…'. 'Aim' appears in the text 14 times, 'should' formulations 26 times. Although this
mechanical counting of different formulations might so far give an impression that the
EP text is more open to negotiations, there are 10 places in the EP text where a rather
categorical 'must' wording is used, e.g. 'quality standards for energy products must be
respected'. Plus there is a formulation that 'there will be no agreement' on matters on
which the EU and the US have very different rules, such as GMOs, the use of hormones
in the bovine sector, REACH.93

The normativity evaluation is far from perfect and requires more detailed analysis that
can provide an answer as to which text is more categorical or more open to consider the
results of the negotiations. It is nevertheless possible to assume that the EP and Council
used their own language to define their respective priorities by formulations 'shall' or
'must'. Given the 'must' formulations and the 'there will be no agreement' notion, it is
possible to believe that the EP text contains a few 'hand breaks' that are likely to 'kill' the
deal if it contains provisions that were practically excluded by EP.

Timeline

The  Council  text  was  adopted  nearly two years  before  the  EP  text. The  advantage  of
Council  adopting  the  text  earlier  was  that  the  Council  negotiating directives  were a
prerequisite  for  launching  the  actual  negotiations  with the US  side,  and  had  to  be
followed by the EU negotiators (Commission). Although the EP text came later, it doesn't
mean that the EP didn't take a position on TTIP. The EP adopted two resolutions on the

91 Point 2(c)(i) of the EP text.
92 First indent of point 25 of the Council text.
93 Point 2(c)(iii) of the EP text.

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TTIP negotiations before they were launched, one in October 201294 and the second one
in  May  2013.95 The  fact  is,  however,  that  detailed  EP  recommendations  for  TTIP
negotiations comparable to the Council negotiation mandate came two years after the
Council. As a consequence, the EP text appears to be more detailed and reflects issues
that were not present at the moment of adoption of the Council text, e.g. the Council
text is open to an investor-to-state dispute settlement (ISDS) which has since become
highly controversial. Consequently, the EP calls for replacing ISDS with a new system and
takes the word of the Commission President Juncker who stated that 'he will not accept
that  the  jurisdiction  of  courts  of  Member  States  is  limited  by  special  regimes  for
investment disputes'.96 This is not to say that Council was in favour of a 'wild' ISDS, quite
to the contrary bearing in mind the condition for ISDS stipulated under points 22 and 23
of the Council text. There is nevertheless a clear difference in the approaches of the two
institutions, while Council considers ISDS as an option, provided that the conditions were
met, the EP makes it clear that ISDS has to be replaced with a different mechanism, which
was effectively followed up by the Commission who presented a new scheme based on
a permanent basis.97

5.4.2. Qualitative analysis of the 2 texts
The quantitative analysis of the 2 texts provides preliminary hints as to how those papers
differ. In order to see whether there are differences as regards the actual wording of
provisions on relevant subjects a more detailed textual analysis is needed.

Normativity

As mentioned, EP text contains several 'must' provisions

a) Point  2(a)(iv)  lays  down  that  TTIP 'must  not prevent  efforts  made  in  order  to
reach  significant  improvements  on  the  multilateral  level;  TTIP must  ensure
synergies with other trade agreements currently being negotiated. The Council
text  appears  less strict,  its point  6,  third  indent,  reads: 'The  preamble  […]  will
refer, inter alia, to: […] The commitment of the Parties to an Agreement in full
compliance  with  their  rights  and  obligations  arising  out  of  the  WTO  and
supportive of the multilateral trading system'. Although the wording of both texts
adopt a different approach, one cannot argue that the texts are contradictory or
not homogeneous given that it is still to be seen what impact TTIP would have on
a multilateral system.

b) the  EP  further  requests  in  point  2(b)(i)  that 'different  proposals  for  [market
access]  areas must be  balanced'.  A  mirror  provision  appears  in  point  2  of  the
Council  text  that  reads 'The  Agreement shall  be ambitious,  comprehensive,
balanced …'. It seems therefore that both institutions put the same emphasis on
this aspect.

c) Another 'must' that appears in point 2(b)(xii) of the EP text is more difficult to
compare  with  a  relevant  provision  in  the  Council  text.  The  EP  asks  the
Commission 'to incorporate, as a key point, a comprehensive and unambiguous
horizontal self-standing provision, based on Article XIV of the General Agreement
on Trade in services (GATS), that fully exempts the existing and future EU legal
framework for the protection of personal data from the agreement without any

94 P7_TA(2012)0388.
95 P7_TA(2013)0227.
96 Recital P of the EP text.
97 For more details consult the factsheets on investment protection.

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d)

condition that it must be consistent with other parts of the TTIP'. As well as using
a strong 'must' formulation, there is another element here – the key EP request
not  to  make  compromises  as  regards  standards  of  EU  data  protection  rules.
The  Council  text  doesn't  contain  any  specific  reference  to  data  protection  or
privacy. Some of the provisions are open to the inclusion of other sectors (point
25,  4th indent)  or  point 42.  The  emphasis of the  EP  in  this  regard  seems  to  go
much further than any general provisions of the Council text.
In point 2(b)(xvi) the EP emphasises that 'the digital economy must be central to
the  transatlantic  market'.  Although  there doesn't  seem  to  be  a  corresponding
provision  in  the  Council  text,  the  EP  wording  is  to  be  understood more as  an
emphasis on the digital economy rather than a strong requirement towards TTIP.
e) Further  on  in  point  2(d)(ii)  the  EP  stresses  that 'provisions  [on sustainable
development] must be aimed at further improving levels of protection of labour
and environmental standards; an ambitious trade and sustainable development
chapter must also include rules on corporate social responsibility based on OECD
Guidelines for Multinational Enterprises and clearly structured dialogue with civil
society'.
Although the Council would surely not want to go in the opposite direction, its
formulations in points 31 and 32 are less normative as the relevant text reads:
'The Agreement will include commitments by both Parties in terms of the labour
and environmental aspects of trade and sustainable development. Consideration
will  be  given to  measures  to  facilitate  and  promote  trade  in  environmentally
friendly and low carbon goods […] The Agreement will also include provisions to
promote adherence  to  and  effective  implementation  of  internationally  agreed
standards and agreements in the labour and environmental domain as a necessary
condition  for  sustainable  development.''[…]  It should  also  include  provisions in
support of internationally recognised standards of corporate social responsibility'.
This  comparison  suggests  that  the  above  points  are  important  for  the  EP  as
reflected in the rather normative language used and one should therefore expect
that the absence of those matters in the final deal could cause problems on the EP
side when considering its consent for the agreement.

f) Point 2(d)(vii) of the EP text stipulates that the 'energy chapter must integrate
clear guarantees that the EU's environmental standards and climate action goals
must not be undermined'.
As  regards the energy  sector, the Council  text  states  in  point  37  that 'The
Agreement will include provisions addressing trade and investment related aspects
of energy and raw materials.
As regards environmental standards point 25 of the Council text reads:
'Regulatory compatibility shall be without prejudice to the right to regulate in
accordance  with  the  level  of  […] environmental  protection […]  that  each  side
deems appropriate.
Although  the  wording  is  not the same  in  both  texts,  it  appears  that  both
institutions put the same emphasis on the energy chapter.
Intellectual property rights, Geographical indications
The  EP  text  calls  in  its  point 2(d)(xvi)  on  the  Commission 'to  ensure  that  TTIP
includes an ambitious, balanced and modern chapter on and precisely defined
areas  of  intellectual  property  rights,  including  recognition  and  enhanced
protection of geographical indications'. In point 2(d)(xix) the EP asks to 'to secure
full recognition and strong legal protection of EU geographical indications'.
The Council text in its point 29 reads:

g)

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'The negotiations shall aim to provide for enhanced protection and recognition
of  EU  Geographical  Indications through  the  Agreement,  in  a  manner  that
complements and builds upon the TRIPS, also addressing the relationship with
their prior use on the US market with the aim of solving existing conflicts in a
satisfactory manner.'
If the text is interpreted as a guideline or an objective to be achieved, and not
taken 'word for word',  one  could  argue  that  the  goal  is  the  same.  There  are
nevertheless  differences,  while the EP  demands  full  recognition  of  EU
geographical indications, the Council calls for enhanced protection and outlines
that conflicts should be solved in a satisfactory manner. This wording could imply
that the Council is more open to a compromise on this matter than the EP is.

Red line

The wording of the EP text in point 2(c)(iii) could be interpreted as an EP red line as it
states that:

'where the EU and the US have very different rules, there will be no agreement, such as
on public healthcare services, GMOs, the use of hormones in the bovine sector, REACH and
its implementation, and the cloning of animals for farming purposes, and therefore not to
negotiate on these issues'.

Although the Council text doesn't contain a provision that would be openly drawing a
red line, one may nevertheless interpret some of the Council provisions in the sense that
negotiations should not be conducted in areas where the two negotiating parties are far
apart.

On the other hand, in theory, if any of the 'banned' sectors appear in the deal, the EP
would probably have no choice but to vote against the deal while the Council could still
vote  in  favour  of  such  a  deal  as  the  Council  mandate  seems  to  be  open  to  different
scenarios.

Other points from the EP text

Compared to the Council mandate, the EP text is more detailed as regards e.g.

 Market access for services (point 2(b)(v)),

 It  calls  for the removal  of  current  US  restrictions  on  maritime  and  air  transport

services (point 2(b)(vi))

 The EP underlines the point (point 2(b)(ix)) on visa facilitation and asks to increase
political pressure on the US to guarantee full visa reciprocity and equal treatment for
all EU citizens. There is no 'mirror' provision in the Council text.

impact  assessment  that  will  examine 

 Both  institutions  agree  that  prior  to  initialling  the  agreement,  there  should  be  a
sustainability 
its  economic,  social  and
environmental impact. While the Council vaguely sates that consequently measures
should be proposed to minimize potential negative impacts (point 33), the EP suggests
that 'adjustment costs could partly be taken up by EU and Member State funding.'
(point 2(d)(vi)

5.4.3. What does the Commission say about the texts?
It might be a deficiency of the research but there doesn't seem to be an official follow up
to the Council text in the form of comments. This is in a way understandable because,
for the Commission, this is a binding mandate that they have to follow and in case there
are issues, those are probably discussed between the Commission and Council.

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On  the  other  hand,  as  the  EP  text  is  formally  speaking  not  binding,  the  Commission
presented a follow up report to the EP text on 21 October 2015.98

In  general,  the  Commission's follow  up  to  the  EP  text  is  written  using  very  positive
language, welcoming EP support.

Except for one point on the full visa reciprocity, which the Commission says goes beyond
the  negotiating  mandate,  there doesn't  seem  to  be  a  disagreement  with  what the EP
demands. It is nevertheless useful to look at different wordings:

 'On  the  EP  request  to  ensure  that  TTIP  preserves  the  EU  high  standards  […]  the
Commission wishes to stress again that TTIP will in no way lower or undermine the
EU's high standards […]'

 'The Commission can reassure the Parliament that it will remain a strong defender of

the multilateral system […]'

 'The Commission shares the EP's view that […]'

 'The Commission takes note of Parliament's request on […] those issues go beyond

trade policy'

 'The right to regulate by EU and Member States' regulators will not be put in question.
The European  Parliament's role  within the EU  decision-making  process  and  its
democratic scrutiny will be preserved, the Commission will for its part not accept any
changes in its right of initiative.

 'The Commission agrees that […]'

 The Commission will give careful consideration to EP request for […]'

 'The Commission takes very careful note of EP concerns'

 'The Commission fully shares Parliament's view on […]'

 'The EP's recommendations are in line with the Commission's negotiating objectives

[…]'

 'The Commission broadly agrees with EP recommendations on […]'

The objective of the above quotes is to show that there are many EP recommendations
that the Commission agrees with, others that will be carefully considered, on some the
Commission takes note of the EP's requests and there are a few which it deems go either
beyond the (Council) mandate or beyond the trade area.

The Commission is in a very difficult position which they seem to manage very well. They
have to follow the negotiating directives adopted by Council, ensure that the EP voice is
heard, conduct the actual negotiations while keeping in mind both texts which offer, in
a  number  of  places,  different  options for  interpretation,  report  back  to the EP  and
Council and hope that all that effort will one day result in a well agreed deal with the
United States.

98 Follow  up to  the  European  Parliament  resolution  containing  the  European  Parliament's
recommendations to the European Commission on the negotiations for the Transatlantic Trade
and Investment Partnership (TTIP), adopted by the Commission on 21 October 2015.

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5.5. Role of the US Congress in negotiations of international trade
agreements

According  to  the  US  constitution  the  Congress  shall  have the power  to  regulate
commerce with foreign nations.99 In practice the Congress lays down guidelines before
negotiations start, is consulted during the negotiation process and the outcome of such
negotiations is submitted for its approval. Plus, the Congress needs to pass the bills that
implement a trade agreement into the US legal order. It is the executive power led by
the president who has the exclusive authority to negotiate treaties and exercise broad
authority over the conduct of the nation's foreign affairs.100

Congress  thus  plays  an  important  and  direct role  in  designing  and  implementing  US
international trade policies and in assessing the impact of trade agreements on the US
economy.101 Congress has made it clear that trade is an important aspect of US foreign
economic  and  security  policy  because  it  generates  broad  benefits  for the US  and  the
global economy.102 The impact of trade on the economy is nevertheless a divisive topic
everywhere, as is clearly seen in the EU as regards the  negotiations on TTIP and also in
the US with regard to the Trans Pacific Partnership that was concluded in 2015 .

There  are  number  of  possible  answers  as  to  why  trade is controversial.  Some  would
argue that as well as importing goods from a trading partner, also lower standards, e.g.
in the field of environment, food safety or labour are imported and thus lower domestic
norms. Others would add that trade deals are negotiated in a non-transparent manner
without  public  scrutiny.  Although  trade  agreements  generate  profits overall,  their
welfare  effects  are  asymmetric  as  they  produce  uneven  distribution  of  losses.103
Consequently,  this  controversy  generates  political  competition in  which  the  US
legislative and executive branches actively participate. As probably everywhere, trade
policy  debates  at  such  a  high  level  like  the  US  Congress  include  those  who  are
'ideologically' pro  or  anti  trade  focused  and  those  who  decide  on  the  basis  of the
outcome provided by the negotiated trade deal.

5.5.1. A very brief history
The tariffs, set by Congress, were the main trade policy instruments for the first 150 years
of the United States.104

Two legislative events that influenced significantly US trade policy occurred in the 1930s.
The first was the 'Smoot-Hawley' Tariff Act105 which set prohibitively high tariff rates and
led  to  retaliatory  tariffs  by  major  US  trade  partners.  In  1934  Congress  enacted  the
Reciprocal  Trade  Agreements  Act106 that  authorized  the  President  to  enter  into
reciprocal trade agreements that reduced tariffs within pre-approved levels. The latter

99 Article I, Section 8 of the US Constitution.
100 Article II, Section 2 of the US Constitution.
101 Trade  Agreements:  Impact  on  the  U.S.  Economy,  J.K.  Jackson,  Congressional  Research Service,

RL31932, February 4, 2010.

102 Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy. CRS Report RL33743,

June 15, 2015, p. 11.

103 J. Kucik, A. Moraguez, The Domestic Politics of Trade Agreement Ratification. September 2013.
104 Trade  Promotion  Authority  (TPA)  and  the  Role  of  Congress  in  Trade  Policy.  I.F.Fergusson,

Congressional Research Service, June 15, 2015. RL 33743, p. 2.

105 P.L. 71-361.
106 P.L. 73-316.

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act presented the first version of trade negotiating authority on the basis of which 19
tariff-cutting  trade  deals  were  concluded  between  1934 and  1939  (e.g.  with the UK,
Czechoslovakia and Canada).  Trade  negotiating  authority  granted  to  the  president
worked well for a couple of decades and was extended 11 times until it was reformed in
1974 by the Trade Act of 1974.107 Before 1974 trade negotiations were predominantly
about cutting tariffs. It was a straightforward process – Congress determined what the
President's margin to agree tariff reduction was, which was consequently followed by
the negotiators and introduced in the US legal order. In the 1960s it became apparent
that the GATT rounds could not provide further room for trade liberalisation by cutting
tariffs as those were already low. Therefore, to continue liberalizing world trade, non-
tariff barriers need to be addressed. To address the issue and process agreements that
required  changes  in  US  law going beyond  tariff  modifications,  the  Trade  Act  of  1974
stipulated  that  non-tariff  barrier  agreements  could  only  enter  into  force  if  Congress
passed implementing legislation.108

Some in Congress argued that such implementing legislation could not be subject to the
ordinary debate and amendment process as US trading partners might be reluctant to
negotiate  agreements  that  are  subject  to  unlimited  congressional  debate  and
amendments. As a solution a fast track mechanism was established that is referred to as
Trade Promotion Authority (TPA).

5.5.2. Trade Promotion Authority
TPA has the following features:

 In the first place Congress passes a bill that defines the negotiating objectives for the

executive which conducts trade negotiations.

 It stipulates the way the executive consults with Congress during the negotiations and

prescribes time limits for notifications.

 If TPA conditions are met, Congress will consider trade agreements and the necessary
bills  implementing  them  under  expedited  legislative  procedures,  with  time  limited
debate and with no possibility to table amendments.

Strictly speaking, TPA doesn't grant a new authority to the President as the President
poses  inherent  authority  to  negotiate  with  other  countries.  However,  if  such  an
agreement requires changes in the US legal order, the modifications can only be enacted
by Congress. TPA therefore provides an opportunity for the President to ensure that the
relevant bills will be treated as a priority and will not be amended during the legislative
process. As every trade deal provides benefits to all parties to the deal, Congress doesn't
offer this generous option 'for free' but lays down conditions. Although, in theory, the
President  can  go  ahead  with  trade  negotiations  without  TPA,  in  reality,  no  trade
agreement was approved without TPA in the last 30 years. The executive finds it easier
to wait for the Congress mandate, conduct negotiations, consult with Congress and other
stakeholders in the course of the negotiations and get 'priority' treatment with an up or
down vote for the implementing bills at the end. This process inevitably requires that the
relevant actors cooperate and find consensus on the key trade negotiations objectives.

107 P.L. 93-618.
108 Trade  Promotion  Authority  (TPA)  and  the  Role  of  Congress in  Trade  Policy.  I.F.Fergusson,

Congressional Research Service, June 15, 2015. RL 33743, p. 4.

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The practice shows that this process is complex, complicated and controversial as shown
by the majorities secured for the TPA adopted in this century.

Following  the  request  of  President  G.W.  Bush, TPA  was  renewed  in  2002  by  the Bi-
partisan Trade Promotion  Authority  Act of  2002 (BTPA).109 The  original  House  version
was  passed  by one vote  (215-214),  the  Senate  version  was  passed by 66  to  30.  The
compromise version contained in the conference report was adopted by the House (215-
212)  and  by  the  Senate  (64-34). The BPTA  was  used  for  approving  implementing
legislation  for  trade  agreements  with  e.g.  Australia, the Central  American  countries,
Peru,  Colombia  and  South  Korea.  As  BPTA  expired  in  2007  a  new  TPA  needed  to  be
passed by Congress to enable the executive to proceed with the upcoming trade deals,
such as the Trans Pacific Partnership and TTIP. That happened by adopting H.R. 2146, Bi-
partisan Congressional Trade Priorities and Accountability Act of 2015.110 The final vote
on the 2015 TPA was nearly as narrow as the one in 2002, given the House final vote 218-
206 and the necessary 60 vote majority required in the Senate (60-38).

The legislative history of the 2015 TPA might appear rather complicated and was already
touched on in the previous chapter. The fact is that the bill was introduced along the
tradition  by  the  chairs  of  the House  Ways  and  Means  Committee  P.  Ryan  and  of  the
Senate  Finance  Committee  O.  Hatch.  The  bill  was  drafted  by  the  legislature  with  the
support of committee staff and Legislative Council. As outlined by the Legislative Council
S. Strokoff, although the 2015 TPA is a 'brand' new act, it's drafting process was largely
launched  on  the  basis  of  the  previous  TPA  and  was  developed  further  during  the
legislative process on the basis of the compromises reached.

In the 2015 TPA, Congress sought to achieve four major goals:111

 To  define  trade  policy  priorities  and  to  have  those  priorities  reflected  in  trade

agreement negotiating objectives,

 To  ensure  that  the  executive  adheres  to  these  objectives  by  requiring  periodic

notification and consultation with Congress,

 To define the terms and procedures under which the President may enter into trade
agreements and under which the respective implementing bills may be approved,

 To reaffirm Congress's overall constitutional authority over trade.

Including the possible extension the 2015 TPA will expire in 2021.

Like the EU negotiating directives or the EP text, the current TPA consists of several parts
and  starts  with  the  objectives  that  are  classified  into  Overall  Trade  Negotiating
Objectives (section 102(a)) and Principal Trade Negotiating Objectives (section 102(b)).
Under the former there are 13 goals such as obtaining more open and reciprocal market
access, reduction or elimination of trade barriers etc. The Principal objectives are divided
into 21 chapters that develop more in detail the Overall Objectives, e.g. as regards trade
in goods, services and agriculture, digital trade, intellectual property and investment etc.

109 P.L. 107-210.
110 P.L. 114-26.
111 Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy. CRS Report RL33743,

June 15, 2015, p. 8.

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The  sections  that  follow,  i.e.  103,  104,  105  and  106  stipulate  important  procedural
requirements  for  TPA,  such  as  Congressional  oversight,  consultations  and  access  to
documents, notice and implementing bills.

It  is  very  interesting  to  have  a  brief  look  at  the  TPA  language.  The  part  devoted  to
objectives uses broad legislative language that uses the present tense 'The […] objectives
[…] are: to obtain […], to ensure […], to promote […], to recognize […], to take account
[…], to expand […]' etc. That wording cannot be interpreted as being non mandatory. At
the same time, one could argue that there doesn't seem to be imperative provisions like
the ones present in the EP text. TPA seems to provide a clear set of objectives and gives
the necessary room for manoeuvre to the negotiators as to how far they would be able
to go to achieve those objectives.

Looking at further sections of TPA, the language becomes normative in several provisions
that lay down what the President or the United States Trade Representative (USTR) shall
do as regards, e.g. the consultation process or deadlines.

Although it is not the purpose of this paper it seems that the TPA wording is closer to the
Council text rather that the EP text, setting out objectives with reasonable detail while
keeping the language general enough to leave the space for negotiators to manoeuvre,
if needed. As regards procedural provisions, there is no need for the EU texts to be more
detailed, as in the case of TPA, bearing in mind the detailed provisions contained in TFEU.

5.5.3. Mock markups and side agreements, side letters
A committee markup is the key formal step a Congressional committee ultimately takes
in  order for  a  bill  to  advance  to  the  floor.  Normally,  a  committee  chair  chooses  the
proposal that will be placed before the committee for markup: a referred bill or a new
draft text. At this meeting, members of the committee consider possible changes to the
proposal  by  offering  and  voting  on  amendments  to  it,  including  possibly  a  complete
substitute for its text.

While the markup is a traditional element in a congressional legislative process, there is,
strictly  speaking,  no  markup  for  bills  implementing  a  trade  agreement,  that are
submitted to a yes or no vote under TPA. There is therefore no room for a markup as
modifications  to introduced  implementing  bills  are  not  allowed.  It  is  nevertheless
important  for  all  stakeholders  to  engage  in  an early  consultation  process  and  avoid a
situation where the implementing bills fail. Over the years a mock markup process has
been developed which has become a traditional method for the House Ways and Means
Committee and Senate Finance Committee to provide their views on the implementing
bills before they are formally sent to both houses. That also provides an opportunity to
the two committees to organize hearings on the implementing bills. The whole process
is purely advisory and it is up to the president to accept the advice.112

Outside  of  formal  TPA,  Congress  sometimes  insisted  on  additions  or  clarifications  to
trade agreements resulting in side agreements or side letters that can involve additional
obligations accepted by the relevant parties after the signature of the trade agreement.
Some examples are the environment and labour side agreements of NAFTA.113

112 TPA, Frequently Asked Questions, CRS Report 43491, p. 26.
113 Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy. CRS Report RL33743,

June 15, 2015.

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5.5.4. Is Congress satisfied with TPA?
The  EU post  Lisbon  mechanism  applicable  to  the  negotiation  and  conclusion  of
international trade agreements is still in the early stages and therefore probably still a
bit too early to evaluate. It is nevertheless clear that the EP takes its role seriously and
uses all means available in order to make its voice heard. The near future will show to
what extent the EP was successful in securing its priorities in the negotiated trade deals.

The  US  Congress  is  in  a  different  situation.  Unlike  the  EU  system,  both  chambers  are
involved in the process of defining negotiation objectives and other relevant conditions
on the US side.

Congress has a number of possibilities as to how to effectively influence upcoming trade
agreements:

(a) by defining negotiation objectives and other procedural requirements in TPA,
(b) by being regularly informed and consulted by USTR,
(c) by approving the negotiated deal and the necessary implementing bills (yes

or no vote),

(d) by influencing the content of implementing bills through a 'mock markup',
(e) by  requesting  additional  guarantees  from  the  other  party  to  a  trade

agreement in a form of side letters.

While Congressional involvement in actions under points (a) and (c) could be described
as unilateral and are thus under the full control of the US legislative body, the other areas
require cooperation or at least discussion with other players such as the President and
USTR. Given that the actions under points (a) and (c) are well established and nobody
seems to question whether and to what extent the US Congress should be involved, the
attention will be paid predominantly to action under point (b) – consultations with USTR.
As  examined  by  a  detailed  Analysis  of  Free  Trade  Agreements  and  Congressional  and
Private Sector Consultations under Trade Promotion Authority,114 this phase appears to
be decisive for Congress in order to influence the final outcome of the negotiations.

The Analysis looks closer at the TPA that was in place in the period 2002-2007 on the
basis  of  which the US  concluded  10 free  trade agreements  and took  part  in  the  WTO
Doha Round.

According to the Analysis, 83 % of the consultations took place at staff level, 9 % with
individual  senators  or  representatives,  3%  with  the  staff  of  individual  senators  or
representatives,  2  %  with  other  committees  and only  1  %  with  the  newly  created
Congressional  Oversight  Group  (COG),  a  bicameral  institution  that  involved  Members
from  all  committees  that  has  something  to  say as  regards  jurisdiction  over  free trade
agreements. While elected Members play an essential role when political decisions are
taken,  the  above  numbers  show  that  the  congressional  staff  from  the  relevant
committees  are the  ones  who  can  make  relevant  contributions  in  the time  when  it  is
possible to have an impact during the negotiation phase.

In practice, however, it is not that easy to fully exploit this opportunity. More than half
of  the  congressional  staff  interviewed for  the  purposes  of  the  analysis  viewed  the
consultations as a good conduit for information flow from USTR but not as a good forum
for  working  together  and  developing  policy  jointly,  or  in  other  words  they  felt  well
briefed but not consulted.

114 Published by the US Government Accountability Office (GAO-08-59) on Nov 7, 2007.

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As regards timing, the staff felt that one way to achieve more meaningful input was to
allow more time for feedback that would allow them to consult with their committee or
member and develop a response to USTR. An interesting point that demonstrated how
complex the area of international trade is was a remark that if the staff asked a question,
they received  a  full  reply.  But  if  staffers  didn't  know  what  to  ask,  they  were at a
disadvantage  in  obtaining  pertinent  information.  This  might sound  like  a  point  that
addresses the incompetency of the staff that should not be that difficult to solve. How
can USTR answer questions if Congressional staffers don't know what to ask? The issue
is,  however,  more  complex.  The  way  trade  agreements  are  drafted  is  very  complex.
There  are  numerous  references  to  WTO  texts  that  are  often  used  as  reference
documents. The language involves a great deal of specialised terminology and jargon that
not everybody understands. All that leading to the fact that principles that are heavily
discussed  by the media  or  politicians  look  quite  different  in the text  of  a  free  trade
agreement. It was therefore underlined that it is necessary to have access to expert staff,
e.g. through the Congressional trade office.

Another issue raised by most congressional staff was that the committees didn't have
meaningful input into the selection of the trading partner. Some staff also criticized USTR
for not fully informing them about important changes in draft texts under negotiation.

Although  most  trade  staff  were familiar  with  the  mock  markup  process,  it  was  also
underlined that it is too late to focus on a deal at the end when the deal is essentially
done and it is difficult, if not impossible, to change the terms of the agreement. That
implies that earlier attention by Congress is important.

Some  also  mentioned  that  technical  obstacles,  such  as  access  to  the  classified
negotiating documents by staff with security clearance in a special room, don't make the
process of providing congressional input easier.

The above criticism doesn't mean that the consultation process is bad; it simply implies
that the discussion as to how to make the congressional voice heard is probably further
advanced than the discussion in the EU where it appears useful to coordinate better the
kick off phase (mandate) first and then discuss how to translate priorities defined in the
mandate into a negotiated text.

6. Conclusion on the EP role in negotiations of trade agreements

One can suggest that option 1 is keeping the mechanism that is currently applicable in
line  with  the  relevant  Treaty  provisions,  meaning  that  Council  adopts  the  official
negotiation  guidelines, the Commission  negotiates  and  keeps the EP  and  Council
informed and the EP's consent is granted at the end, followed by the Council concluding
the  process.  This  procedure  has  been  in  place  since  December  2009  and  it  would
probably be unfair to conclude that the process is failing at this moment. Yes, there were
international  instruments  such  as  SWIFT  or the Fisheries  agreement  with  Morocco  to
which EP didn't consent but many others made it to the end.

The  above  analysis  of  the  Council  and  EP TTIP texts shows  that they  are  drafted  in a
different manner and the degree of homogeneity varies. There aren't probably obvious
contradictions but a number of nuances are drafted differently, in a number of provisions
one  or  the  other  institution  used a different  level  of  normativism  thus  placing  an
emphasis on not entirely the same aspects of the negotiation outcome.

Those who are in favour of keeping the status quo might use the following arguments:

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(a) Under the Treaties there is just one negotiating mandate, the one approved by
Member the States gathered in Council. Like it or not this is how the Treaties are
designed.

(b) The EP's  role  is  fully  recognised  under  the  Treaties,  it  is  regularly  and  fully
informed, has access to the negotiating texts and has at its disposal a 'nuclear
power' at the end by which it can stop the deal.

(c) More deep involvement of the EP in the shaping of the official EU mandate would

make the process longer and more complicated if not impossible.

(d) It is not an exception that different constitutional systems offer different options
as regards  the  involvement  of  respective  chambers  of  legislature  in  the
negotiation and conclusion of international trade agreements.

(e) If the EP wishes to do so, it can adopt its own recommendations for the outcome
of the negotiation, despite its power to stop the deal at the end; such a position
is its own paper that can differ from the official mandate but at the same time
should  not  expect  to  be  followed  in the  areas  that  depart  from  the  official
position.

(f) It is legitimate to expect that there would be EP representatives who would not
be in favour of changing the status quo, which enables the EP and Council to use
their 'liberty' in drafting their respective papers. If the EP doesn't agree with the
Council text or its approach or language, it is not forced to compromise but has
room for outlining its own position. Plus, in case the situation evolves as was the
case  with  ISDS  in  TTIP,  the  EP  has  a  possibility  to  update  its  position  to
negotiations.

Option 2 is redesigning the current mechanism by ensuring that both chambers of EU
legislative power – the EP and Council act on equal footing. In practical terms it would
mean that the relevant treaty provisions would have to be adapted in order to ensure
that e.g. the decision to enter into negotiations on an international trade agreement and
a negotiating mandate as such would be adopted by the EP and Council by means of the
ordinary legislative procedure (OLP).

Those who are in favour of such a change could argue this way:

(a) While  the  current  Treaties  provisions  are  clear  and  the  EP  uses  its  options
provided in this regard, it is not sustainable to keep the status quo long-term. The
EP has showed its legitimate interest in the negotiations of international trade
agreements  and  outlined  its  priorities.  Some  might  describe  this  as 'power
grabbing' but the fact is that rather than waiting for the final vote going against a
negotiated deal, the EP needs to indicate openly what are its requirements for
the deal in order to give its consent when the time comes. The EP has shown that
nobody can take a 'yes' vote for granted.

(b) The common commercial policy belongs to the field of EU exclusive competence.
It is therefore necessary that full democratic oversight is ensured in a procedure
that leads to EU commitments at the international level.
It is worth mentioning at this point a reference to legitimating beliefs that were
discussed  more  in  detail in  chapter  I.  If  trade  agreements where the EU  is  a
contracting party were signed solely by the EU institutions, this question of how
to address the lack of involvement of Member States would have been on table.
And the involvement of the EP in defining 'official' negotiating directives would
have been tackled a long time ago. The fact is that no free trade agreement is is
based on the exclusive EU competence given that trade agreements usually have
other elements that come from mixed or other competences, such as national

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security or defence, what makes those agreements mixed and requires that they
are also ratified by Member States. That is probably one of the reasons why it has
taken  time  to  enhance  EP  role in  the  field  of  the  common  commercial  policy
under the Lisbon Treaty.

(c) It  is  important  that  the  EU's 'mouth' that  speaks  at  international  trade
negotiations on the EU's behalf (the Commission), speaks with one voice - a joint
EP and Council mandate that serves as a reference point. This prevents the other
negotiating party from exploiting differences in the negotiating mandates against
the EU.

(d) Adoption of such a negotiating mandate by means of a decision in OLP addresses
transparency issue that proved to be very controversial in the case of TTIP. OLP
doesn't leave any room for keeping the negotiating mandate secret as the OLP
procedure  has  prescribed  steps  in  the  Treaties,  is  scrutinised  openly  by  the
respective institution and its outcome is published at the end.

(e) If the EP is involved in writing the negotiating mandate, it takes its responsibility
for the planned objectives and uses its influence to communicate the expected
achievements to the public and respective constituency of individual MEPs who
become Council and Commission allies. TTIP case showed that at some point EP
with  its  recommendations  acted  as  one  of  many  contributors  to  TTIP,  even
criticizing the Council for not releasing the mandate.

(f) OLP is a procedure that might take time, in average 19 months were necessary to
conclude an OLP procedure in the last EP legislative term 2009-2014.115 This time
might be longer or shorter depending on priorities put to the respective agenda
point. Even if the negotiating mandate would be a top priority, it is likely that the
OLP  would  not  last  shorter  than  12  months  from  the  moment the  institutions
start  discussing  first  draft  until  the  final  outcome  is  published  in  the  Official
Journal.
Adding a new player in the process of defining the EU binding mandate would not
make it easier, it is nevertheless very likely that this aspect would not block the
procedure  or  make  it  unreasonably  longer.  On  the  other  hand,  resolving
differences between the approval bodies at the beginning of the process would
bring  the  above  advantages,  it  is  therefore  worth  investing  that  time  at  the
beginning.

(g) The  US  experience  shows  that  clear  statutory  requirements  that  involve  both
chambers of Congress on an equal footing in defining the mandate, don't solve
all  problems  regarding  the  involvement  of the legislature  in  negotiations  on
international trade agreements. At the same time, well established procedures
that put both legislative chambers on an equal footing allow the US trade actors
to focus  on  how  the  negotiation  objectives  are practically translated  into  the
negotiated  trade  deals  and  try  to  answer  questions:  how  to  achieve  a  true
consultation process that works both ways.

The EU is developing its own pace taking into account its own specificities. I therefore
don't  want  to  conclude  the  paper  by  saying  that  EU  trade  procedures  need  to  be
redesigned to copy those of the Congress.  Going towards Option 2 would nevertheless
mean that the EU addresses the reasons of some of the current institutional deficiencies
in the field of international trade agreements rather than the consequences. It seems

115 A guide to how the European Parliament co-legislates under the ordinary legislative procedure,

p. 35.

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that the EU invests a considerable amount of time and energy in order to ensure that the
EP  is  fully  informed  and  feels 'on  board'.  This  is  happening  not  only  by  applying  the
relevant  Treaty  provisions  but  also  by  means  of  the  EP  and  Commission  Framework
agreement  that  has  provisions  on  the  involvement  of  EP  Members  in  international
delegations.  Once  the  EP,  together  with the  Council,  controls  the negotiation  process
from the beginning, all actors can focus more on the substance of the negotiations and
save time and energy by eliminating unnecessary interinstitutional discussions.

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7. Annexes

7.1. Annex I: list of legislative initiative reports adopted by European
Parliament116

Title

Follow up by Commission (COM)

Statute  for  social  and  solidarity-based
enterprises

Not yet adopted by the JURI Committee

2016/227(INL)

Establishment  of  an  EU  mechanism  on
democracy, 
law  and
the 
fundamental rights

rule  of 

2015/2254(INL)

Adopted by the EP plenary on 25.10.2016,
not yet followed by COM

Civil law rules on robotics

Not yet adopted by the JURI Committee

2015/2103(INL)

Common  minimum  standards  of  civil
procedures

Not yet adopted by the JURI Committee

2015/2084(INL)

Protection of vulnerable adults

Not yet adopted by the JURI Committee

2015/2085(INL)

Cross-border recognition of adoptions

Not yet adopted by the JURI Committee

2015/2086(INL)

Limitation periods for traffic accidents

Not yet adopted by the JURI Committee

2015/2087(INL)

Reform  of  the  electoral 
European Union

law  of  the

2015/2035(INL)

Bringing  transparency,  coordination  and
convergence  to  corporate  tax  policies  in
the Union 'Luxleaks'

2015/2010(INL)

European system of financial supervision
(ESFS) review

2013/2166(INL)

Adopted
commented by COM

on

11.11.2015,  not 

yet

COM  refers  to a  number  of  legislative
proposals made following the EP vote

COM will not introduce a new legislative
proposal,  it  will  be  the  task  of  the  new
COM

Review of the European Arrest Warrant

2013/2109(INL)

COM will not introduce a new legislative
proposal, instead will focus on improving
the implementation of EAW

116 Situation at the end of 2016

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COM will prepare a report after the 2014
elections

COM will not introduce a new legislative
proposal until 2016

Improving the practical arrangements for
the holding  of the European elections  in
2014

2013/2102(INL)

Parliament's  rights  in  the  appointment
procedure of future Executive Directors of
the  European  Environment  Agency -
amendment of Article 9 of Regulation (EC)
No 401/2009 of the European Parliament
and  of  the  Council  on  the  European
Environment  Agency  and  the  European
Environment 
and
Observation Network

Information 

2013/2089(INL)

EU  donor  coordination  on  development
aid 2013/2057(INL)

COM doesn't propose to follow up with a
legislative proposal

Combating violence against women

2013/2004(INL)

One area raised by EP might be followed
by  a  legislative  proposal,  others  don't
require new proposals

Composition of the European Parliament
with a view to the 2014 elections

European  Council  Decision  reflected  EP
proposal

2012/2309(INL)

Better governance for the single market

2012/2260(INL)

COM doesn't propose to follow up with a
legislative proposal

Towards  a  genuine  Economic  and
Monetary Union

COM  has  already  acted  or  will  follow  up
with non-legislative measures

2012/2151(INL)

Access to basic banking services

COM might make a legislative proposal

2012/2055(INL)

Information and consultation of workers,
anticipation 
of
restructuring

and  management 

2012/2061(INL)

COM will make a report which might make
ground for future legislative proposal

Statute for a European mutual society

2012/2039(INL)

launched  a  consultation,  once
legislative

COM 
closed,  COM  will  consider 
proposal

Law  of  Administrative  procedure  of  the
European Union

2012/2024(INL)

COM  will  launch  a  detailed  stocktaking
exercise  and  consider  all  options  to
address EP recommendations

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Application  of  the  principle  of  equal  pay
for  male  and  female  workers  for  equal
work or work of equal value

COM  is  or  will  carry  out  studies  which
might 
legislative
proposal

lead  to  preparing  a 

2011/2285 (INL)

Jurisdictional system for patent disputes

2011/2176(INL)

14th company law directive on the cross-
border transfer of company seats

2011/2046(INL)

Insolvency  proceedings  in the  context  of
EU company law

2011/2006(INL)

Improving the economic governance and
stability  framework  of  the  Union, 
in
particular in the

euro area

2010/2099(INL)

Cross-border  crisis  management  in  the
banking sector

2010/2006(INL)

Proposal for a regulation of the European
Parliament  on  the  detailed  provisions
governing  the  exercise  of  the  European
Parliament's right of inquiry

2009/2212(INL)

for  the
interim  measures 
Proposed 
freezing and disclosure of debtors' assets
in cross-border cases

2009/2169(INL)

COM accepted the EP recommendations,
there was nevertheless no action needed
as  the  matter  was  already  addressed  in
other legislative instruments

already 

launched 

public
COM 
its
consultation  on  the  matter  and 
reflection  on  the  future  action  will  be
finalised in the near future

COM is currently carrying out an in-depth
evaluation  of  the  application  of  the
Insolvency  Regulation,  its  report  and  a
public  consultation  for  the  future  policy
options are foreseen by end 2012

COM  presents  a  list  of  actions  already
taken  and  refers  to  upcoming  MFF
instruments  that  are  on  the  way  in  the
near future

COM  will  push  with  urgency  to  deliver  a
new  framework  and  will  provide  further
details  in  its  communication  in  autumn
2010,  to  be  followed  up  with  legislative
proposals in Spring 2011 (not necessarily
following EP recommendations)

No COM follow up found

COM welcomed the EP recommendations
and  support  which  is  likely  to  facilitate
forthcoming  negotiations  for  adoption
which  should  start  under  the  Polish
Presidency

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(EC)  No
Amendment  of  Regulation 
864/2007  on  the  law  applicable  to  non-
contractual obligations (Rome II)

2009/2170(INL)

Cross-borders transfers of company seats

2008/2196(INL)

Guidelines for a proposal of a regulation
of  the  European  Parliament  and  the
Council  on  the  implementation  of  the
initiative,  pursuant  to  Article
citizens'
11(4)  of  the  Treaty  on  the  European
Union

2008/2169(INL)

Lamfalussy follow up - Future structure of
supervision

2008/2148(INL)

E-justice

2008/2125(INL)

European Authentic Act

2008/2124(INL)

Legal  protection  of  adults:  cross-border
implications

2008/2123(INL)

European  initiative  for  the  development
of micro-credit in support of growth and
employment

2008/2122(INL)

No COM follow up found

It  is  appropriate  for  the  next  COM  to
decide on how to proceed

COM will make a proposal once the Lisbon
treaty is in place, not necessarily following
all EP recommendations

the 

Many  of 
recommendations  are
already being addressed, or are included
list  of  EP
in  current  COM  work.  A 
recommendations is commented in detail
by COM, there doesn't seem to be a one
recognition  that  COM  would  admit  that
EP  idea  is  good  and  will  trigger  further
COM action.

COM  lists  initiatives  already  taken  or
planned for future

Given  the  complexity  of  the  issue  COM
intends  to  initiate  broad consultation  on
this subject by publishing a Green Paper

The  Hague  Conference  on  Private
International  Law  needs  to  enter  into
force 
consider
afterwards whether anything more needs
to be done at EU level.

first,  COM  might 

COM  lists  initiatives  already  taken  or
planned for future

Alignment  of 
Comitology Decision

legal  acts  to  the  new

COM  lists  initiatives  already  taken  or
planned for future

2008/2096(INL)

Recommendations  on  the  application  of
the  principle  of  equal  pay  for  men  and
women

2008/2012(INL)

COM  lists  initiatives  already  taken  or
planned for future.

regards 

actual
“As 
recommendations  in  the  annex  to  the

Parliament's 

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Statute of the European Ombudsman

2006/2223(INL)

Transparency of institutional investors

2007/2239(INL)

Hedge funds and private equity

2007/2238(INL)

Proposal to amend the Treaty provisions
concerning 
the
European Parliament

the  composition  of 

2007/2169(INL)

The  limitation  periods  in  cross-border
disputes 
fatal
accidents

injuries  and 

involving 

2006/2014(INL)

The European private company statute

2006/2013(INL)

resolution,  the  Commission  stresses  that
it  cannot  prejudge  the  results  of  the
ongoing analysis at this stage.”

COM agreed to the EP amendments to the
statute of the Ombudsman

COM  lists  initiatives  already  taken  or
planned for future.

list  of  EP 

recommendations 
is
A 
commented 
in  detail  by  COM,  there
doesn't seem to be a one recognition that
COM would admit that EP idea is good and
will trigger further COM action.

COM  lists  initiatives  already  taken  or
planned for future

No COM follow up found

“Whilst the report sets out an interesting
attempt  to  tackle  what 
is  a  difficult
to  propose  a  general
subject  and 
European  solution  …  any  study  would
have  to  explore  the  implications”  [of  EP
recommendations].

COM has no time to do it right now.

can 

adopted, 

“The  Commission  has  taken  note  of  the
Parliament's  Resolution. Before  any
initiative 
the
be 
Commission, 
in  accordance  with  the
better  regulation  principles,  has  to  carry
impact  assessment,
out  a  detailed 
considering  possible  alternatives,  as  well
as examining the added value that an EPC
statute could bring.”

Protecting  European  healthcare  workers
from  blood  borne 
infections  due  to
needle stick injuries

2006/2015(INL)

Succession and wills. Green Paper

2005/2148(INL)

In  principle  the  Commission  would  be
willing  to  launch  a  legislative  initiative
with  a  view  to  amending  Directive
2000/54/EC  in  the  way  requested  in
Parliament's resolution.

COM  lists  initiatives  already  taken  or
planned for future

Heating  and  cooling  from  renewable
energy sources

EP  text  backs  the  COM  strategy  for  the
promotion of renewable energy use in the

Contribution of the European Parliament to multilevel governance

Page 55 of 67

2005/2122(INL)

Access to the institutions' texts

2004/2125(INL)

in
less-used 
Regional  and 
Europe in the context of the enlargement
and cultural

languages 

diversity

2003/2057(INL)

EU  and  will  therefore  be  considered  for
future  COM  strategy.  “Obviously  the
Commission's  right  of  initiative  will  need
to be respected”.

COM  lists  initiatives  already  taken or
planned for future.

No COM follow up found

Adoption  of  the  statute  of  European
Members

2003/2004(INL)

Specific case.

It  was  not  up  to COM  to  present  leg
proposal.

Price system for books

No COM follow up found

2001/2061(INL)

Car  insurance:  third  part  liability,  better
legal  protection  of  accident  victims,  5th
directive

2000/2126(INL)

No COM follow up found

Protection of the financial interests of the
European Union using criminal law

No COM follow up found

1999/2184(INL)

Electricity  network  access  for  renewable
energies

No COM follow up found

1998/2101(INL)

European health card

1995/2189(INL)

Regulation of claims resulting from traffic
accidents  occurring  in  another  Member
State

1995/2078(INL)

No COM follow up found

No COM follow up found

General  Community  strategy  for  the
forestry sector

No COM follow up found

1994/2195(INL)

Contribution of the European Parliament to multilevel governance

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7.2. Annex II: Holders of legislative initiatives in the EU Member States
and corresponding statistics

Table 1 - Founding Member States

Country

Legislative
initiative

Tabled/adopted
laws

Percentage

of
all
proposed/adopted

Success
ratio  in
%

99,4

10

90

31,5

40

21

71,8

4,7

76

2,6

76

18

91

Belgium117

Government

712/708

of

2418/233

Members 
parliament
(MPs)

Germany118

Government

484/434

22,75/75,2

77,25/24,8

57,3/78,5

32,3/15,6

273/86

Political  groups
(Bundestag)

Group  of  5%
MPs
(Bundestag)

5/2

0,6/0,3

9,7/3,1

19,5/78,7

80,5/21,3

11,6/79,1

88,4/20,9

Bundesrat

82/17

France119

Government

320/230

MPs
chambers)

(both

1317/62

422/322

3227/85

Italy120

Government

MPs

Citizens (50000)

Economy
Labour

The 
and 
National
Council121

Regional
Parliaments

Luxembourg122 Government

228/173

MPs

16/3

Netherlands123 Government

1245/1137

93,4/98,2

6,6/1,8

90,4/95,8

117 2010-2014.
118 2009-2013.
119 Data cover XIV legislature which started in June 2012.
120 Data cover XVI term (2008-2013).
121 On economic and social matters only.
122 2011-2013.
123 2005-2015, budget bills are not included in the figures.

Contribution of the European Parliament to multilevel governance

Page 57 of 67

MPs

131/49

9,6/4,2

Founding
Member
States
summary

Governments

MPs

49,15/84,2

43,83/12,2

37

84

18,7

Table 2 - Enlargements 1973-1995

Country

Legislative
initiative

Tabled/adopted
laws

Percentage

all
of
proposed/adopted

Success
ratio 
%

in

United
Kingdom124

Government

MPs

26/26

100/5

20,6/84

79,4/16

Ireland

Government

100-120125

MPs

1/87126

Spain127

Government

147/120

MPs

Senate

Regional
parliaments

Citizens 
000)

(500

292/17

10/2

28/0

23/0

Portugal128

Government

345/266

(political

1050/139

MPs
groups)

29,4/86,3

58,4/12,2

2/1,4

5,6/0

4,6/0

24,7/65,5

75/34,2

4/1

0,3/0,3

Citizens (35 000)

Greece129

Government

MPs

178/0

100

5

81,6

5,8

20

0

0

77

13

25

Finland130

Government

944/914

22,8/99

96,8

124 Data for UK represent 2013-2015 yearly averages.
125 This figure represents number of acts proposed by government every year.
126 2002-2007, as precise data for government bills are not available, IRL figures are not included in

the EU averages.

127 2011-2015.
128 2011-2015.
129 According  to  the  electronic  archives  of  the  Greek  Parliament  (from  1993 to  today)  of  178  law
proposals tabled by members of the parliament, zero became law in 22 years. All adopted laws
were initiated by the government.

130 Data cover period 2011-2014.

Contribution of the European Parliament to multilevel governance

Page 58 of 67

3191/9

77,2/1

0,3

MPs

Citizens
(50000)131

Sweden

Government

179132

MPs

2900/20133

Parliamentary
committee

Government

MPs

Enlargements
1973-1995

Table 3 - Enlargement 2004

Country

Legislative
initiative

Tabled/adopted
laws

24,4/83,6

72,5/15,85

88,9

6

Percentage

of
all
proposed/adopted

Success
ratio in %

Czech
Republic134

Government

347/271

MPs, Senate

248/65

Regions

26/3

Cyprus

Government

MPs

Estonia135

Government

430/395

Political groups

148/16

Committees

MPs

Latvia136

President

Government

Parliamentary
committee

At least 5 MPs

Citizens (10%)

40/36

36/6

7/7

859/855

176/173

208/123

1/0

55,8/80

40/19,2

4,2/0,8

65,7/87

22,6/3,5

6/8

5,7/1,5

0,5/0,6

68,6/73,8

14/15

16,6/10,6

0,07/0

78

26

11,5

91,8

11

90

16

100

99,5

98

59

0

131 Complete data are not available. The only 1 law adopted on the bases of citizen initiative concerns

gender neutral marriage.

132 In 2014 the SV government introduced 179 bills, nearly all of become laws.
133 SV MPs proposed 2900 motions in 2014, of which 20 were adopted. As they are both legislative

and non-legislative, they are not taken into account in calculating EU averages.

134 Data cover period 2010-2013.
135 2012-2015.
136 2011-2014.

Contribution of the European Parliament to multilevel governance

Page 59 of 67

Lithuania137

President138

99/88

Government

990/929

MPs

Hungary139

President

Government

MPs

2257/875

0/0

596/572

901/272

Committees

22/20

Poland

President

3/4,5

29,6/49,2

67,4/46,3

39,2/66,2

59,3/31,5

1,5/2,3

Government

Senate 
(upper
chamber  of  the
Parliament),

a group of at least
15  members  of
the  Sejm  (lower
chamber)

or a committee

Citizens (100 000)

Slovenia140

Government

MPs

386/322

77/22

National  Council
(Lower House)

4/1

7/0

5000 voters

Slovakia141

Government

MPs

Parliamentary
committee

Government

MPs

2004
Enlargement

269/249

668/55

3/3

Table 4 - Enlargements 2007-2013

81,4/93,3

16,2/6,3

0,8/0,3

1,5/0

28,6/81

71/18

0,3/1

54,1/75,8

39,5/19

89

94

39

96

30

91

83,4

28,5

25

0

92

8

100

90,7

29,5

137 2012-2015.
138 Doesn't  include  proposals  for  ratification  of  international  treaties,  which  drafted  by  the

Government and tabled by the President.

139 2010-2014.
140 Data cover period 2011-2014.
141 2012-2015.

Contribution of the European Parliament to multilevel governance

Page 60 of 67

Country

Legislative initiative

Tabled/adopt
ed laws

Percentage

of
all
proposed/adopt
ed

Succes
s  ratio
in %

515/429

425/92

618/445

1081/51

1/0

986/800

91/20

Bulgaria142

Government

MPs

Romania143

Government

MPs

Citizens

Croatia144

Government

Members/(political)gro
ups

Enlargemen
ts 
2007-
2013

Government

MPs

54,7/82,3

45,3/17,7

36,4/90

63,5/10

0.05/0

91,5/97,5

8,5/2,5

61/90

39/10

83,3

21,6

72

4,7

0

81

22

78,7

16,1

Table 5 - EU global overview

EU145 Legislative initiative

Percentage

of
proposed/adopted

all

Success ratio in
%

Government

MPs

47,2/83,4

48,7/14,3

85,6

17,6

142 2009-2013.
143 2012-2015.
144 2011-2015.
145 Data from 20 Member States were used to calculate averages.

Contribution of the European Parliament to multilevel governance

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7.3. Annex III: Extract from TFEU relevant for the common commercial
policy

Article 207

(ex Article 133 TEC)

1. The common commercial policy shall be based on uniform principles, particularly with
regard to changes in tariff rates, the conclusion of tariff and trade agreements relating
to  trade  in  goods  and  services,  and  the  commercial  aspects  of  intellectual  property,
foreign direct investment, the achievement of uniformity in measures of liberalisation,
export policy and measures to protect trade such as those to be taken in the event of
dumping or subsidies. The common commercial policy shall be conducted in the context
of the principles and objectives of the Union's external action.

2.  The  European  Parliament  and  the  Council,  acting  by  means  of  regulations  in
accordance with the ordinary legislative procedure, shall adopt the measures defining
the framework for implementing the common commercial policy.

3.  Where  agreements  with  one  or  more third  countries  or  international organisations
need  to  be  negotiated  and  concluded,  Article  218  shall  apply,  subject  to  the  special
provisions of this Article.

The Commission shall make recommendations to the Council, which shall authorise it to
open the necessary negotiations. The Council and the Commission shall be responsible
for ensuring that the agreements negotiated are compatible with internal Union policies
and rules.

The  Commission  shall  conduct  these  negotiations  in  consultation  with  a  special
committee appointed by the Council to assist the Commission in this task and within the
framework of such directives as the Council may issue to it. The Commission shall report
regularly to the special committee and to the European Parliament on the progress of
negotiations.

[…}

5. The negotiation and conclusion of international agreements in the field of transport
shall be subject to Title VI of Part Three and to Article 218.

6. The exercise of the competences conferred by this Article in the field of the common
commercial policy shall not affect the delimitation of competences between the Union
and the Member States, and shall not lead to harmonisation of legislative or regulatory
provisions of the Member States in so far as the Treaties exclude such harmonisation.

Article 218

(ex Article 300 TEC)

1.  Without  prejudice  to  the  specific provisions  laid  down  in  Article  207,  agreements
between the Union and third countries or international organisations shall be negotiated
and concluded in accordance with the following procedure.

2. The Council shall authorise the opening of negotiations, adopt negotiating directives,
authorise the signing of agreements and conclude them.

3.  The  Commission,  or  the  High  Representative  of  the  Union  for  Foreign  Affairs  and
Security Policy where the agreement envisaged relates exclusively or principally to the

Contribution of the European Parliament to multilevel governance

Page 62 of 67

common  foreign  and  security  policy,  shall  submit  recommendations  to  the  Council,
which shall adopt a decision authorising the opening of negotiations and, depending on
the subject of the agreement envisaged, nominating the Union negotiator or the head of
the Union's negotiating team.

4.  The  Council  may  address  directives  to  the  negotiator  and  designate  a  special
committee in consultation with which the negotiations must be conducted.

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the
signing of the agreement and, if necessary, its provisional application before entry into
force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the
agreement.

Except where agreements relate exclusively to the common foreign and security policy,
the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii)  agreement  on  Union  accession  to  the  European  Convention  for  the
Protection of Human Rights and Fundamental Freedoms;

(iii)  agreements  establishing  a  specific 
organising cooperation procedures;

institutional  framework  by

(iv) agreements with important budgetary implications for the Union;

(v)  agreements  covering  fields  to  which  either  the  ordinary  legislative
procedure applies, or the special legislative procedure where consent by
the European Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon
a time-limit for consent.

(b)  after  consulting  the  European  Parliament  in  other  cases.  The  European
Parliament shall deliver its opinion within a time-limit which the Council may set
depending on the urgency of the matter. In the absence of an opinion within that
time-limit, the Council may act.

7.  When  concluding  an  agreement,  the  Council  may,  by  way  of  derogation  from
paragraphs  5,  6  and  9,  authorise  the  negotiator  to  approve  on  the  Union's  behalf
modifications to the agreement where it provides for them to be adopted by a simplified
procedure  or  by  a  body  set  up  by  the  agreement.  The  Council  may  attach  specific
conditions to such authorisation.

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity
is required for the adoption of a Union act as well as for association agreements and the
agreements referred to in Article 212 with the States which are candidates for accession.
The Council shall also act unanimously for the agreement on accession of the Union to
the  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental
Freedoms; the decision concluding this agreement shall enter into force after it has been
approved  by  the  Member  States in  accordance  with  their  respective  constitutional
requirements.

Contribution of the European Parliament to multilevel governance

Page 63 of 67

9. The Council, on a proposal from the Commission or the High Representative of the
Union  for  Foreign  Affairs  and  Security  Policy,  shall  adopt  a  decision  suspending
application of an agreement and establishing the positions to be adopted on the Union's
behalf in a body set up by an agreement, when that body is called upon to adopt acts
having  legal  effects,  with  the  exception  of  acts  supplementing  or  amending  the
institutional framework of the agreement.

10. The European Parliament shall be immediately and fully informed at all stages of the
procedure.

11.  A  Member  State,  the  European  Parliament,  the  Council  or  the  Commission  may
obtain  the  opinion  of  the  Court  of  Justice  as  to  whether  an agreement  envisaged  is
compatible with the Treaties. Where the opinion of the Court is adverse, the agreement
envisaged may not enter into force unless it is amended or the Treaties are revised.

Contribution of the European Parliament to multilevel governance

Page 64 of 67

7.4. Bibliography

Books, articles

S.I.Akhtar,  V.C.Jones,  TTIP  Negotiations,  Congressional  Research  Service,  February  4,  2014,
R43387.

R.  Leal-Arcas,  Is  EC  Trade  Policy  up  to  Par?:  A  Legal  Analysis  over  Time—Rome,  Marrakesh,
Amsterdam,  Nice,  and  the  Constitutional  Treaty,  Columbia  Journal  of  European  Law,  Spring,
2007.

R.  Leal-Arcas,  The  EU  Institutions  and  their  Modus  Operandi  in  the  World  Trading  System,
Columbia Journal of European Law, Winter 2005/2006.

Corbett,  Jacobs,  Shackleton,  The  European  Parliament  at  Fifty:  A  View  from  the  Inside,  JCMS
2003, Volume 41, Number 2.

Ch. M. Davis, How Legislation is Brought to the House Floor: A Snapshot of Parliamentary Practice
in the 113th Congress (2013-2014), Congressional Research Service, February 13, 2015, R43912.

D. Dinan, Governance and Institutions: The Unrelenting Rise of the European Parliament, Journal
of Common Market Studies, 2014, Vol. 52, pp109-124.

I. F. Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, CRS
Report RL33743, June 15, 2015.

I. F. Fergusson, TPA, Frequently Asked Questions, Congressional Research Service, July 2, 2015,
R 43491.

M. Froman, Getting Trade Right, Democracy Journal, Fall 2015, No 38.

M.J.Garcia,  International  Law  and  Agreements:  Their  effect  upon  U.S.  Law,  Congressional
Research Service, January 23, 2014, RL32528.

D. S. Hamilton, S. Blockmans, TTIP's Broader Geostrategic Implications, Paper No. 5 in the CEPS -
CTR project “TTIP in the Balance'' and CEPS Special Report No. 105, April 2015.

V.  Heitshusen,  Introduction  to  the  Legislative  Process  in  the  U.S. Congress,  Congressional
Research Service, November 30, 2012, R42843.

J.K. Jackson, Trade Agreements: Impact on the U.S. Economy, Congressional Research Service,
RL31932, February 4, 2010.

T. Jans, S. Piedrafita, The Role of National Parliaments in European Decision-Making, EIPASCOPE
2009/1.

J. W. Kingdom, Agendas, Alternatives, and Public Policies, Longman, Second Edition, 1995

G.  Koger,  Position  Taking  and  Cosponsorship  in  the  U.S.  House,  Legislative  Studies  Quarterly,
XXVIII, May 2013, p. 230.

M. Kohler, European Governance and the European Parliament: From Talking Shop to Legislative
Powerhouse, Journal of Common Market Studies 2014, Volume 52, Number 3, pp. 600-615.

J.  Kucik,  A.  Moraguez,  The  Domestic  Politics  of  Trade  Agreement  Ratification,  Princeton,
September 2013.

McCormic, European Union Politics, Palgrave Macmillan, 2001.

M.  Morrisson  and  others,  U.S.  Trade  Concepts,  Performance,  and  Policy:  FAQ,  Congressional
Research Service, March 25, 2016, RL 33944.

M.  Oleszek,  Introducing  a House  Bill  or Resolution,  Congressional  Research  Service,  August  6,
2015, R44001.

M. Oleszek, Introducing a Senate Bill or Resolution, Congressional Research Service, September
15, 2015, R44195.

J.Paulsson, The Pyramids Case, Arbitration Academy Paris, year 2012.

Contribution of the European Parliament to multilevel governance

Page 65 of 67

R.  Parker,  A.  Alemano,  Towards  Effective  Regulatory  Cooperation  under  TTIP:  A  Comparative
Overview of the EU and US Legislative and Regulatory Systems. 13 May 2014.

P.  Ponzano,  C.  Hermanin,  D.  Corona,  The  Power  of  Initiative  of  the  European  Commission:  A
Progressive Erosion?

E. Poptcheva, Parliament's legislative initiative, Library of the European Parliament, 24 October
2013.

Hix, Raunio, Scully, Fifty Years On: research on the European Parliament', JCMS 2003, Vol 41.

A. Ripoll Servent, A. MacKenzie, The European Parliament as a 'Norm Taker”? EU-US Relations
after the SWIFT Agreement, European Foreign Affairs Review 17, Special Issue (2012), 71-86.

B. Rittberger, The Creation and Empowerment of the European Parliament, JCMS 2003, Vol 41.

J. Roy, R. Dominguez, The TTIP, Miami-Florida European Union Center/Jean Monnet Chair, 2014.

I.  Shihata,  Towards  a  Greater  Depoliticization  of  Investment  Disputes:  The  Roles  of  ICSID  and
MIGA.

Scully, Farrel, MEPs as Representatives: Individual and Institutional Roles, JCMS 2003, Volume
41, Number 2.

J.M.Smith,  Why  Certain  Trade  Agreements  Are  Approved  as  Congressional-Executive
Agreements Rather Than Treaties, Congressional Research Service, April 15, 2013, 97-896.

Strand, Johnson, Climer, Surviving in Congress, The Congressional Institute, 2015.

P. Van den Bosche, W. Zdouc, The Law and Policy of the World Trade Organisation, Cambridge
University Press, 2015.

C. Volden and A. Wieseman, Legislative Effectiveness in the United States Congress, Cambridge
University Press, 2014.

M. Wagner, Regulatory Space in International Trade Law and International Investment Law, 36
University of Pennsylvania Journal of International Law 1 (2014-2015)

S. Woolcock, B. Holzer, P. Kusumu, TTIP and Consumer Protection, Paper No. 11 in the CEPS - CTR
project 'TTIP in the Balance' and CEPS Special Report No. 115, July 2015

Speeches

Address given by Robert Schuman to the National Assembly on the state of negotiations on the
Schuman Plan (25 July 1950).

Speech  of Jean Monnet  of  11  September  1952  at  the  opening  address  to  the  Assembly
concerning the High Authority's programmes. From the Schuman Declaration to the birth of the
ECSC: The role of Jean Monnet, CARDOC Journals, No 6

Speech by EP President Martin Schulz to the Members of the European Commission, 26.4.2012.

Klaus Welle, 'The European Union and Democracy', Johns Hopkins University, Washington DC, 25
August 2015

Klaus Welle, The EP as a Democratic Gatekeeper - Evolutions and Future Challenges - A talk with
Masters Students at the Catholic University of Leuven, 13 February 2015.

Official documents

The Schuman Declaration of 9 May 1950.

Memorandum on the Schuman Plan Institutions, summer 1950.

Note on the plenary meeting of the European Convention, 29 May 2002.

The European Parliament and the Proceedings of the European Convention.

Contribution of the European Parliament to multilevel governance

Page 66 of 67

Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011
on the citizens' initiative, OJ L 65, 11.3.2011, p. 1.

European citizens' initiative, basic facts.

Communication from the Commission on the European Citizens' Initiative "Water and sanitation
are a human right! Water is a public good, not a commodity!", 19.3.2014, COM(2014) 177 final.

Communication from the Commission on the European Citizens' Initiative "One of us", 28.5.2014.

COM(2014) 355 final.

National parliaments in the EU.

Annual Report of the Commission for 2014 on relations between the European Commission and
national Parliaments, 2.7.2015, COM(2015) 316 final.

Legislative initiative reports listed in Annex I.

EP Rules of Procedure.

EP Plenary Statistics.

European  Parliament decision  of  9  March  2016 on  the  conclusion  of  an  Interinstitutional
Agreement  on  Better  Law-Making  between  the  European  Parliament,  the  Council  of  the
European Union and the European Commission.

Mapping  the  Cost  of  Non-Europe,  2014-19,  European  Parliamentary  Research  Service,  March
2014.

Initiation of EU Legislation, House of lords 2008, p. 139.

European Council conclusions of 18-19 February 2016.

Alexander, Murray: Senate Passes Bill to Fix No Child Left Behind, 85-12, Press release.

Directives for the negotiation on the Transatlantic Trade and Investment Partnership between
the European Union and the United States of America, 17 June 2013.

European  Parliament resolution  of  8  July  2015 containing  the  European  Parliament's
recommendations to the European Commission on the negotiations for the Transatlantic Trade
and Investment Partnership (TTIP) (2014/2228(INI)).

Standard Eurobarometer 84, Autumn 2015.

Better Regulation, European Commission website.

European Commission, website of DG Trade.

Inside  TTIP,  An  overview  and  chapter-by-chapter  guide,  Directorate-General  for  Trade  of  the
European Commission, Publications Office of the European Union, 2015.

Investment Partnership (TTIP) – State of Play, 27 April 2016.

Commission's factsheets on investment protection.

Follow  up  to  the  European  Parliament  resolution containing  the  European  Parliament's
recommendations to the European Commission on the negotiations for the Transatlantic Trade
and Investment Partnership (TTIP), adopted by the Commission on 21 October 2015.

The Constitution of the United States

Analysis of  Free  Trade  Agreements  and  Congressional  and  Private  Sector  Consultations  under
Trade Promotion Authority, US Government Accountability Office (GAO-08-59) on Nov 7, 2007.

A guide to how the European Parliament co-legislates under the ordinary legislative procedure.

How Our Laws Are Made, J. V. Sullivan, Parliamentarian, U.S. House of Representatives, July 24,
2007.

Contribution of the European Parliament to multilevel governance

Page 67 of 67

US Congress acts

H.R. 22, Fast Act.

H.R.3590.

Every Student Succeeds Act.

S. 1647: Developing a Reliable and Innovative Vision for the Economy Act.

Justice Against Sponsors of Terrorism Act.

Smoot-Hawley' Tariff Act, P.L. 71-361.

Congress enacted the Reciprocal Trade Agreements Act, P.L. 73-316.

The Trade Act of 1974, P.L. 93-618.

Bi-partisan Trade Promotion Authority Act of 2002, P.L. 107-210.

H.R. 2146 Bi-partisan Congressional Trade Priorities and Accountability Act of 2015 (P.L. 114-26).

This  analysis  was  prepared  in  the  framework  of  the  EU
Fellowship  Programme  and  presents  the  results  of
research reflecting on the full right of legislative initiative
of the European Parliament in the light of the experience
of  the US  Congress.  It  is  based on  data  gathered  for  the
purposes of the research from national parliaments of 26
EU Member States, analysis of 59 replies by the European
Commission  to  the  European  Parliament's  legislative
initiative reports and a case study on 3 complex US laws,
carried  out  on 
interviews  with
the  basis  of  15 
Congressional staff.

Q
A
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0
4
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1
7
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3
1
8
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E
N
N

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Published by the Directorate-General for Parliamentary Research Services,
European Parliament

PE 599.350
ISBN 978-92-846-0815-7
doi:10.2861/342761

This document is prepared for, and addressed to, the Members and staff of the European
Parliament as background material to assist them in their parliamentary work. The content
of the document is the sole responsibility of its author(s) and any opinions expressed herein
should not be taken to represent an official position of the Parliament.