Part 3: Formal Negotiations and Decision-Making Process
The EU Decision Making Process
101. This is a complex process and can be tricky to navigate. For ease this guidance focuses on the Ordinary Legislative Procedure ( OLP). To drill into the detail on the process, especially with regard to a specific initiative, or to discuss Delegated and Implementing Acts (secondary legislation) talk to your SGEUO desk officer.
The European Parliament actually has a useful interactive guide to the whole process. However, we've also developed the diagram below - (don't be scared it's actually much simpler than it first seems). The first thing to realise is that 80% of legislation is agreed at the First Reading stage - so the bottom two sections don't apply!
Ordinary legislative procedure
103. The Commission has the sole right to initiate EU legislation and therefore formal negotiations always start with a proposal from the Commission.
- Council and Parliament Positions
104. Whilst on paper the European Parliament takes a position first, in practice discussions in each institution often occur concurrently and sometimes the Council will reach a position first, although this cannot be formally endorsed until the Parliament has reached a position.
105. The Presidency will determine (based on their schedule and priorities) whether and when to begin holding discussions among member states on the Commission's proposal. This may take place both at a Ministerial level and at Official Level.
106. At Ministerial level, the Commission may present its proposal at a Council meeting followed by an 'Exchange of Views' among Ministers. This can often set the tone for Council level deliberations and provide useful insight into positions.
107. At Official level this takes place in the relevant Working Party, for example the Working Party on Environment can be considering any number of dossiers at any one time. The Presidency will set the schedule and agenda - often a single Working Party will meet for an entire day on a bigger dossier; but in some cases a single Working Party can cover multiple agenda items in a day or two day session.
108. When agreement cannot be reached among officials in the Working Party the Presidency may decide to put certain issues for decision to a discussion at the level above - the Committee of Permanent Representatives (either Ambassador or Deputy Ambassador level), or in the case of Agriculture to the Special Committee on Agriculture - for a political steer.
109. In this way some dossiers can be bumped up and down from the senior official/political level, including reappearing on Council agendas for a Ministerial decision on key issues - especially where the Presidency is pressing for a result on their watch.
110. Each piece of draft legislation sent to the European Parliament is assigned to the relevant Parliamentary Committee. One member is appointed as the 'rapporteur' to produce a report where amendments to the Commission's document are often suggested. Shadow rapporteurs, representing the other political groups, are also appointed. In the process of drafting the report the Rapporteur and Shadow Rapporteurs may take evidence in formal or informal proceedings and be heavily lobbied.
111. The Rapporteur needs to find an agreement within their own political group and with the other groups, so engaging with the Shadows is as critical as with the lead Rapporteur. Key people like assistants to MEPs, Committee Secretariat Staff and Political Group Advisers also play important roles.
112. Once the report is ready it is voted on in the Committee and if agreed passes for approval in a vote at the next Plenary session. This report then forms the negotiating line for the Rapporteur to take in trilogue with the Council and Commission.
- Informal Trilogues
113. The development of the process of informal negotiations between the Council (represented by the Presidency) and the Parliament (represented by the Rapporteur and often with Shadow Rapporteurs) with the presence of the Commission helps assure a high number of First Reading agreements - there is no time limit on a First Reading stage.
114. The representatives will hold meetings with each other to work through positions and seek to identify compromises, with each taking those compromises back to their respective institutions to be validated at official level.
115. In practice, discussions between the Council Presidency and the Rapporteur can start even before agreement on the position has been reached in either body. This takes place to facilitate the ability to find a compromise in both positions that the other institution can accept.
116. Once an overall package which can be agreed is identified, the COREPER chair will send a letter of assurance to the relevant Parliamentary Committee that the Council will accept the text as it stands, if agreed by the Parliament in Plenary.
117. Once negotiations have been finalised, and the Council and Parliament have agreed the legal text, it will be adopted and published in the EU's Official Journal. It then becomes law, and takes effect on the date specified within the document.
118. Although the Commission has the sole right to propose legislation, the Council and the Parliament can seek to influence the Commission by preparing documents on a topic where they consider the Commission should be taking action.
119. Council conclusions and own-initiative reports from the Parliament are examples of such documents.
120. It can be useful to monitor the development of these documents to gain insight into the likelihood and nature of future action on a given topic and to seek to shape and influence, as required.
121. The Council may also produce Council Conclusions, and the Parliament a report or a resolution, in response to non-legislative documents published by the Commission such as Communications or Action Plans.
122. These Conclusions or Resolutions in 'response' to the Commission are also useful to monitor with regard to the direction of travel. In some cases we may wish to engage with the UK Government on the lines the UK will take in negotiating Council Conclusions.
123. In such instances get in touch with your SGEUO Desk Officer to discuss. Early identification of a topic of interest is key as Conclusions can be drafted quickly where the Presidency wants to see them agreed.
Justice and Home Affairs opt-in and Schengen opt-out
124. Protocol 21 governs the JHA opt in, which means that the UK and Ireland are not automatically bound by JHA measures (that is those adopted under Title V of Part Three of the TFEU), but they can choose to participate (opt-in).
125. There are two ways to do that: (1) opt in at the beginning, which must be done within 3 months of the proposal being presented to the Council, or (2) opt in after the measure has been adopted. For the latter there is no timescale, but approval will be required from the Commission or the Council and conditions may be imposed.
126. Whether opting in or not, the UK is entitled to a seat at the negotiating table, but will only have a vote where the opt-in has been notified at the beginning. Clearly, this will have a significant impact on negotiating weight.
127. Opt-in decisions are irreversible. Generally speaking, they apply to the principle legal measures, i.e. Directives, Regulations and Decisions. But it can be complicated for example, if the measure has a JHA and non- JHA legal base the UK will expect to exert its opt-in privileges.
128. Protocol 19 - the Schengen opt-out - is more complicated. The Schengen acquis is the body of law that governs the EU's borderless area, including visas, asylum, border controls and police and judicial cooperation. The UK and Ireland only participate in the police and judicial cooperation elements, with the prerogative to opt out of any new JHA measures which "build on" those aspects of the Schengen acquis. Again, there is a 3 month timescale for this.
129. Any complications? Yes, if the UK decides to opt out, the Commission can eject the UK from all or part of the rest of the Schengen acquis if that is necessary to protect the practical operability of the system. The Commission must (and will) try to retain maximum participation, but this is an important factor for the UK to consider when taking its decision.
UK Government decision making and scrutiny
130. The UK Government normally takes opt in decisions at Ministerial level, although there is also a fairly strict process for Parliamentary scrutiny - more information on that can be found here.
131. The lead UKG Minister should write to Scottish Ministers seeking SG views on devolved elements. With new measures this normally happens close to the 3 month deadline. It is therefore important in dossiers with a strong devolved interest that policy leads are in touch with their counterparts in UKG well in advance of the formal correspondence.
132. For further policy advice on these matters contact the Justice EU Team, or for legal issues the SG EU Solicitors Group.
How we engage in the process
133. Once the European Commission has published its proposal for new legislation you will need to carefully consider the Scottish Government's position. If we've been engaged upstream, the work to identify our priorities, ideas and views will be immensely helpful in this analysis.
134. You'll need to:
- analyse the proposal to work out your priorities;
- assess what is negotiable and what compromises you can accept; and
- ensure you are included in the development of the UK line.
135. Essentially, if this is a priority dossier we need to develop a negotiating line - this is important to both engage with the UK Government and to engage directly on the dossier where that is relevant.
Key issues to consider when thinking about a negotiating line:
- Is EU legislation appropriate? Consider proportionality and subsidiarity. Are there alternatives to regulation?
- Is there competence creep? Again we should be challenging this via the UK as soon as possible so discuss with your lawyer.
- What is the impact of the proposal? Has the Commission produced an adequate Impact Assessment?
- Is the draft in line with Scottish objectives? What would need to be done to domestic legislation? Does Scottish legislation go beyond the EU proposal?
- Is the drafting of the proposal sufficiently clear and unambiguous? This is important to avoid problems during the transposition and implementation phase.
- Is there sufficient time allowed to transpose and implement the measure?
- Consider the practicality and enforcement of the proposed legislation.
Ensure you are included in the UK position
136. Early consultation with the lead UK Department and with regulators is extremely important to get a full picture of the potential impacts of a proposal. The Westminster European Affairs Committee ( EAC) is required to approve the UK line before the UK can sign up to an agreement in Council. Scottish Ministers should be included in any EAC write-round which relates to a matter with devolved interest.
137. These write rounds can have tight deadlines so be prepared to get Ministerial clearance quickly. Close working with your UK counterparts can help this process go more smoothly and avoid surprises.
138. This is particularly important where the views of Scottish Ministers may differ significantly from the UK Government and these differences need to be discussed at the earliest possible stage in developing the UK position.
139. You should observe the Concordat on Coordination on EU Policy Issues which sets out how Whitehall departments should work with us on the negotiation and implementation of EU legislation. It is worth taking the time early in the negotiations to build good relations with all interested colleagues in the office and the other Devolved Administrations so that you are able to call on them at short notice later on.
140. Remember that Wales and Northern Ireland can be useful allies if Scotland takes a different position on a matter to the UK Government.
141. When negotiations begin in Brussels on the legislative proposal, continue to work closely with your UK counterparts. The legislative proposal is initially discussed within the Council at the working group stage, where all member states and the Commission are represented by officials.
142. The process of getting agreement across 28 member states means that the Presidency will have to seek to narrow down issues under discussion and force member states to focus on the issues most important to them. The opportunities to influence are therefore much greater earlier in the process before positions have become entrenched.
Engaging in developing the UK Position
SGEUO policy advisers have a standing invitation to attend the Agriculture and Fisheries Council Coordination ( AFCC). These meetings are held in advance of the Council itself and the Special Committee on Agriculture ( SCA). These meetings involve participation from the Devolved Administration offices based in Brussels, UKREP and DEFRA policy leads back in London.
AFCC offers the opportunity to hear the latest information on agenda, advise further on the Scottish Government position and highlight areas of particular Scottish interest which may differ from the UK position. By having these meetings we are able to ensure all offices and interested parties are aware of particular concerns to mitigate possible surprises on the day when it comes to dialogue at a Minister to Minister level. The AFCC allows for colleagues across administrations to build effective relationships with counterparts and work together to build a cohesive UK position in advance of Council.
The briefing is circulated in draft in advance of the
meeting, by which stage colleagues in Scotland should already have
been sighted on and involved in drafting the briefs. The
provides a backstop to this and an opportunity to emphasise the
critical issues. The meetings also allow for intelligence gathering
in terms of other Member States' positions and insight into how the
is looking at influencing proposals as they come to a climax. The
intelligence gathered is fed back to policy leads.
Jonathan Robertson, Policy Adviser - Agriculture and Fisheries, SGEU Office
Attendance at Working Groups
143. You should consider the benefit of attendance at working groups if there are specific Scottish interests at stake. If you cannot attend yourself, speak to your SGEUO desk officer about attending on your behalf.
144. This allows us to gather first hand intelligence on the direction of negotiations between member states as they develop the Council position. By this route we can identify clearly if there are other member states who share specific concerns we may have. This may be useful if we want to build alliances - for example, we could share with them our evidence to support their position.
145. In many areas we ask UKRep colleagues before attending working parties although there are some where it is common practice and almost assumed (Environment, Agriculture, Fisheries). Even if there are no Scottish-specific interests, it may be worthwhile using a visit to Brussels to attend a meeting to get a feel for the process alongside a wider programme of meetings.
146. When attending a meeting for the first time, discuss protocol issues with your SGEUO desk officer, who in most cases will be able to do the tour and get you set up in the right place at the right time.
Using Opportunities at Council
147. When proposals are being presented to Council with an early Exchange of Views or for a Policy Debate on key issues, there is an opportunity to influence the UK Speaking Note to reflect the Scottish position.
148. Scottish Ministers also regularly attend Councils in key areas - Agriculture and Fisheries; Justice and Home Affairs; Environment - and want to influence the UK position on the items being discussed. These may be updates on progress on key dossiers or general policy debates. There are also opportunities for them to hold bilateral meetings in the margins with other member states to share Scottish views and gather intelligence.
Don't forget the Parliament!
149. In almost all areas now the European Parliament also has a critical legislative role, therefore don't forget about engaging with and seeking to influence the relevant Committees and MEPs.
150. Each piece of draft legislation sent to the European Parliament is assigned to the relevant Parliamentary Committee. One member is appointed as the 'rapporteur' to produce a report where amendments to the Commission's document are often suggested. Shadow rapporteurs, representing the other political groups, are also appointed. Other Committees can be asked to issue a formal opinion on draft legislation, if the policy area is of their competency.
151. Our MEPs can be very influential so it's good to get to know them, and their support staff. If a key dossier with specific Scottish interests is being discussed consider providing our Scottish MEPs with a briefing on the issue - even if they're not on the Committee we can do so with a view to asking that they engage with their political group representatives who are on the Committee.
152. Once the rapporteur's report has been produced, other committee members may also submit amendments. The report is then put to a vote in the committee - on each amendment and then whether to accept the report as a whole. This report is then used as a basis for the Parliament's negotiations with the Council and Commission (trilogues) where the European Parliament and the Council try to devise a common text. This common text has to be approved by the committee before the report is voted on by the whole Parliament in one of the plenary sessions.
153. The Scottish Government's European Parliament Liaison Officer in the SGEUO will be able to help you engage with the EP.
The Joint Ministerial Committee (Europe)
154. Another mechanism to engage with Whitehall and other devolved Administrations on European matters is through the Joint Ministerial Committee (Europe) which meets at both Official and Ministerial level.
155. As set out in the Memorandum of Understanding, the JMC(E) meets:
"a. to consider non-devolved matters which impinge on devolved
responsibilities, and devolved matters which impinge on
b. where the UK Government and the devolved administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom;
c. to keep the arrangements for liaison between the UK Government and the devolved administrations under review; and
d. to consider disputes between the administrations."
156. The JMC(E) meets four times a year, prior to Council meetings to discuss relevant policy areas. It is chaired by the Foreign Secretary or the Minister of Europe and attended by Ministers from the Devolved Administrations and relevant Whitehall departments.
157. The Ministerial meeting is preceded by a meeting of officials from all four administrations. The Officials meeting takes place approximately 2-3 weeks prior to the Ministerial meeting and it offers the opportunity for Scottish Officials to inform Whitehall as to the position of Scottish Ministers and likewise to feed information back as to the views of both Whitehall and the other Devolved Administrations.
158. This initial meeting helps steer the focus of the Ministerial Committee, highlighting areas of interest or concern for the Devolved Administrations. This ensures that the Ministerial meeting is focused on the issues that are important and the views of the Devolved Administrations are heard prior to Council meetings.
159. For more information on the JMC(E), please contact the European Relations Division.
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