5.2.1 Underlying principles

The EU cannot unilaterally decide to get involved in a particular policy area. There are plenty of checks and balances to ensure that it does not overstep its assigned policy-making role. The first constraint is that the EU can only intervene in a given policy area if the member states themselves have empowered it to do so: in other words, the Union can act only to the extent—and following the rules—laid down in the treaties. Article 4 TEU specifies: ‘competences not conferred upon the Union in the treaties remain with the Member States’. Where it does have competence (Box 5.1 and Table 5.1), responsibility may lie exclusively with the EU (as in external trade policy), or primarily with the member states (as in development cooperation). Sometimes, it is shared between the member states and the EU (as in transport policy). Given that the treaties are the primary law of the EU, every piece of EU legislation (secondary law) must cite one or more treaty article(s) as the authority for EU involvement in that policy area (the so-called ‘legal basis’—Box 5.1).

EU law includes a plethora of instruments: regulations, directives, decisions, recommendations, and opinions (Box 5.1). An important distinction is between regulations and directives, both of which are legislative acts (Box 5.1). Regulations are directly binding and must be applied across the EU. For example, to ensure common safeguards on goods imported from outside the EU, a regulation was passed (2015/478). A directive, however, sets out a goal that member states must achieve but grants discretion to the member states about which domestic laws and policies might be required to meet the goal. For example, the EU passed a (controversial) directive about copyright in 2019, which was designed— among other things—to ensure big technology companies such as Alphabet and Facebook compensate media companies for using their content. When that directive entered into force on 7 June 2019, member states had two years to introduce national laws to achieve the goals of the directive. The process by which member states incorporate EU directives into national law is called transposition (Box 5.1). National authorities must communicate the measures taken to the Commission, which is charged with overseeing the process and can bring infringement proceedings against member states that fail to transpose directives fully and/or effectively (see section 7.2). It has been suggested that, for clarity and public understanding, regulations should be called ‘laws’ and directives should be called ‘framework laws’.

Second, the EU is required to respect two fundamental principles when it makes law and policy. The first is subsidiarity, meaning that the EU should only act in circumstances where its intervention is likely to be more effective than that undertaken by the member states individually. For example, the Union has competence in p. 112↵p. 113↵environmental policy where collective European action is required, but subsidiarity means that the EU is not involved in garbage collection (although it may regulate packaging waste for products sold on the European market). The second fundamental principle is proportionality. The EU’s involvement is limited only to what is required to fulfil the objectives outlined in the treaties. Thus it can place labelling requirements on the sale of particular foodstuffs, but cannot ban them outright (unless they are proven to be very dangerous).

Even clearing these initial hurdles of determining competence, subsidiarity, and proportionality does not imply a successful outcome for a proposal. It also needs political approval. Under the OLP, the European Commission—a body representing the general interest of the EU—proposes draft legislation. Two other institutions, the EP (composed of the representatives of the EU’s citizens) and the Council (composed of representatives of the member state governments) are designated as co-legislators. This means that a new piece of legislation can only be adopted if both the EP and the Council (the latter by a qualified majority) agree to its content. Put another way, nothing can be enacted without a high level of political support.

It is important to note the changes in terminology that have taken place. The OLP was previously called the co-decision procedure when it was first introduced as part of the Maastricht Treaty in 1993. At that time, it covered a limited number of areas, most of which related to the single market. In the Treaty of Amsterdam, co-decision was simplified and its overall scope was extended to include areas like transport, environment, justice and home affairs, employment, and social affairs. Co-decision was subsequently retitled as OLP in the Lisbon Treaty, and now covers fully 85 areas of EU policy, including agriculture, fisheries, and the common commercial policy. Special legislative procedures—called the Consultation and Consent procedures—exist for certain more sensitive policy areas, including taxation (Box 5.2).

5.2.2p. 114 Principal actors

The treaty describes the basic composition and powers of the main institutions and bodies that are directly involved in the EU’s policy-making process and Chapter 3 explores those institutions in depth. Recall that the European Commission enjoys an almost exclusive right to initiate legislative proposals, with its College acting collectively—formally by simple majority, but usually by consensus. MEPs in the EP have the power to adopt, amend, or reject the Commission’s legislative proposals, by majority, and then seek agreement with ministers from the member states who are represented in the Council, which also adopts, amends, or rejects the draft legislation. Only when both agree can the legislation be adopted. The European Council, comprising the heads of state or government from each member state, occupies an imprecise but significant role in the policy process. It is supposed to set the strategic priorities of the EU, but sometimes becomes involved in the policy-making process, either at the beginning, when it may set out strategic political directions or key priorities, or towards the end, if sensitive political issues are at stake. However—despite bringing together Europe’s most powerful political leaders—the European Council does not have the power to take legislative decisions.

The treaties also make reference to the Economic and Social Committee (comprising economic and social actors from each of the member states), and the Committee of the Regions (bringing together representatives of regional and local governments), which are consulted for their specialist views in policy areas within their remit (Box 3.6).

5.2.3p. 115 Key stages

Each chapter of the treaty dealing with a specific policy area lays down the procedure according to which policy decisions are made in that area. For legislation—not all EU decision-making involves legislation (Box 5.3)—that is normally the OLP (Figure 5.1). On the face of it, the procedure is very simple:

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Figure 5.1 Flowchart of Ordinary Legislative Procedure

When the Commission publishes its initial proposal, it is sent at the same time to a variety of different bodies—the EP, the Council, and the 27 national parliaments and, where required, the Committee of the Regions and the Economic and Social Committee. Some responses are subject to strict time limits. National parliaments have a period of eight weeks from the date of receipt of the proposal to formally indicate whether they think the principle of subsidiarity has been respected. They can also use this period to shape the position that their minister will take in the Council. There is no set time limit for the EP and the Council to complete their respective first readings, but the Council must await the EP’s position in order to take it into account when determining its own position. Second readings in the EP and the Council are subject to time limits, as is the conciliation process. Failure by the EP to amend or reject the Council’s position by the deadline means the proposed legislation is accepted. Failure by the Council to act by the deadline means it goes to conciliation.

p. 117↵If agreement is reached in the negotiations between Parliament and Council, the final adoption of a piece of legislation can be a formality. On the Council’s side, it takes the form of agreement at a ministerial meeting, normally passed without discussion and frequently by consensus, on a recommendation from Coreper. On the Parliament’s side, the final adoption of a piece of legislation is by a vote after a debate.

The OLP effectively follows the three key stages of policy-making:

p. 118↵The agenda-setting role is attributed mainly to the Commission, while the EP and the Council are the principal players in the second and third stages (i.e. negotiation and final decision). In practice, however, the policy cycle is not so neatly organized and these three stages are rather more fluid (Pollack 2020).¹ A ‘final decision’, when it occurs, is often merely the rubber-stamping of agreements reached earlier. Knowing when and where to intervene in the policy-making process is therefore very important for those trying to affect its outcome. This means understanding what happens in practice as much (or more) as what happens formally, both in terms of the key actors, and the policy area itself.

5.3.1 Institutional hierarchies

The treaty suggests that the EU’s three main institutions—the Commission, the Council, and the EP—operate as a triangle, each one directly connected to the p. 119↵other two. However, they can more accurately be visualized as three icebergs, whose tips are inhabited respectively by the commissioners, the ministers, and the MEPs. However, those iceberg tips are only the smallest, most publicized and visible part of far larger masses. Each commissioner and national minister is assisted by a large number of aides and officials who do the preparatory work on draft legislation, often leaving just a small number of issues to be dealt with directly at formal meetings of the Commission and Council. Decisions in all three institutions involve the accommodation of competing interests, with the result that the single ‘position’ of each institution is only arrived at after a process of intense internal negotiation.

Officials in the Commission—the ‘fonctionnaires’ (Box 5.1)—carry out much of the detailed policy-making work. They are responsible for the drafting of the Commission’s proposals and may attend meetings of the EP committees and Council working groups when they are being discussed. Turf battles within the Commission are not unknown, with the result that the ‘Commission position’ may not be supported with equal enthusiasm by all those bound by it. For example, a proposal to ban or restrict the use of a pesticide may be energetically supported by DG Environment, but only lackadaisically (if at all) by DG Agriculture.

The EP’s detailed legislative work is done in its 20 standing (or permanent) committees, and most MEPs belong to one or more of these, according to their policy interests or expertise. The committees vary in size but each contains representatives of all the EP’s political groups in proportion to their size. At committee meetings, the MEPs discuss the Commission’s proposal in detail and agree on a report (prepared by a rapporteur—Box 5.1) that contains those amendments that have attracted the necessary majority. The rapporteur’s report is then sent to the EP plenary session, where the legislation is discussed and voted upon by all the MEPs, whereupon it becomes ‘the EP’s position’. Rapporteurs enjoy formal and informal agenda-setting powers, and skilful MEPs can use the role to influence policy outcomes (Thierse 2019).

MEPs are accountable to their respective electorates. Thus, they try to ensure that the interests of their constituents are represented and protected when they vote on proposed legislation. However, most MEPs also belong to one of the EP’s political groups, whose members try to vote together on draft legislation. The EP’s position is therefore normally a compromise between different positions among the MEPs, some of whom will have been out-voted in the committee or the plenary on details of importance to them.

The Council is similarly complex and meets in different policy-focused configurations—Environment Council, Economic and Financial Affairs, Agriculture and Fisheries, and so on. A General Affairs configuration is tasked with coordination but there is no hierarchy among the configurations. Given that different national ministers attend different configurations, the total ministerial membership is large (more than 250 people) and changes as a result of national elections, cabinet reshuffles, or other reallocations of responsibility in the member states. The Council’s political approach is also subject to change, as both left- and right-wing parties move in and out of power, or governing coalitions are formed or reformed at national level. Many different views co-exist in the Council, requiring a constant process of negotiation in order to achieve ‘the Council position’.

p. 120↵A key figure in determining the Council’s position is the Council chair, occupied by the minister from the member state that holds the rotating Council presidency (except in the Foreign Affairs Council, which is chaired by the high representative and which does not normally deal with legislation). Council presidencies can be more or less successful in terms of their ability to set, or at least shape, the policy agenda (see Tallberg 2004; Thomson 2008; Smeets and Vennix 2014). The Council presidency’s ability to determine which issues are discussed, when, and for how long, is thought to be a potentially useful power in the policy-making process (Häge 2017), although in practice the short tenure means a largely inherited agenda.

The detailed preparatory work for Council meetings takes place first in one or more of its 150 or so specialist technical working groups. These groups are composed of officials from the relevant national ministries in the member states, who discuss the Commission proposal article by article, registering agreements and disagreements and suggesting amendments. Any provisions that cannot be agreed at working group level (usually the more political aspects of the proposals) are sent up to Coreper. There they are agreed or sent back down to the working group or up to the ministers in Council for further discussion and/or agreement. A representative of the Commission attends all meetings in the Council hierarchy when a Commission proposal is being discussed. Officials from the Council’s General-Secretariat are also present, to take minutes and advise the presidency. The national civil servants who sit on these preparatory bodies negotiate on behalf of their member governments. But only ministers in the Council can take the final decision, which then constitutes ‘the Council’s position’.

5.3.2 Interinstitutional networks

Returning to the iceberg metaphor, the Commission, Council, and Parliament are much more interconnected and networked beneath the surface of the water than above it. Today, the connections between the legislative actors at EU level are extensive, complex, and shape much of what happens on a day-to-day basis. Negotiations between the institutions—and other key interests outside of the formal policy system—are an ongoing part of the policy process: between stakeholders and the Commission when the proposal is being drafted, between left-wing and right-wing political groups when the EP is trying to agree its position, and often between the Council presidency and a group of member states trying to block the adoption of a compromise.

In order for new legislation to be adopted, the OLP requires a high level of agreement among the main institutional actors, securing both a qualified majority in the Council, and a majority in the Parliament. Many different interests have to be reconciled at all stages of the procedure. The result is a constant search for compromise, with explanation, persuasion, and negotiation taking place at multiple levels both within and between the institutions. The importance of compromise is evident in the ways in which the institutions organize themselves and their respective work programmes in order to fulfil their legislative responsibilities. As mentioned above, written agreements co-exist with a number of tacit understandings about p. 121↵‘how things should be done’ in order to ensure a harmonious working environment that encourages cooperation and facilitates agreement.

Interinstitutional cooperation and transparency are the two key prerequisites for an efficient policy-making process that is based on compromise and consensus. In the 1990s, early experience with the co-decision procedure/OLP made clear that, if agreement was to be reached within a reasonable amount of time, interinstitutional discussions and negotiations needed to get underway sooner rather than later, once the Commission had presented its proposal. Regular meetings, known as trilogues (Box 5.4), were therefore scheduled between the key players in each of the three institutions to assist in the search for compromises (Delreux and Laloux 2018; Brandsma et al. 2021). They constituted a relatively ‘safe’ forum for negotiating compromises before proposals were officially put to a vote. In practice, the most commonly used legislative procedure is a single reading with a trilogue (Figure 5.2). Over recent years, trilogues have come under some scrutiny (Hillebrandt and Leino-Sandberg 2021). Some observers of the EU policy-making process have criticized the process for prioritizing speed and efficiency over inclusive and transparent decision-making.

p. 122↵An interinstitutional agreement on better law-making, published in 2003 and updated in 2016, lays down how the Commission, Council, and EP coordinate their individual and joint legislative activities (OJEU 2016). The three institutions agreed to keep one another permanently informed about their work throughout the legislative process and to synchronize the handling of dossiers (Box 5.1) by their respective preparatory bodies. They have also developed mechanisms of interinstitutional signalling to indicate what will or will not be acceptable to the relevant legislative partner. Thus, although the OLP requires the Council to await the EP’s first reading position before it adopts its own common position, Council ministers frequently issue a ‘political agreement’ to indicate which elements of the Commission’s proposal (and the EP’s proposed amendments) would or would not be acceptable to the Council. Similarly, the EP might choose, after adopting amendments, to postpone the final vote to establish its first reading position on a Commission proposal, in order to negotiate with the Council.

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Figure 5.2 How it really works: Legislative procedure

In 2016, the presidents of the three institutions signed their first Joint Declaration about legislative priorities for 2017. They followed this with a second Joint Declaration, signed in 2017, to identify priority files for 2018–19. Joint Declarations set out broad priorities for the EU and identify the important legislative files that will help deliver on those priorities. The idea behind them is to bring the three institutions together more closely in the programming of legislation. The first two declarations identified fully 90 legislative files to be given priority treatment during 2017–19. Initial reactions suggest that EU policy-makers find the Joint Declarations helpful in focusing attention and resources on key priorities. They are another effort to entrench and streamline interinstitutional working.

5.3.3 A variety of actors

Neither EU institutions nor member states operate in a vacuum when engaging in policy-making. The policy outcomes they produce affect countless people who need to be p. 123↵informed about them, and who may have valuable contributions to make regarding their design. As a result, large numbers of people are engaged in identifying the state of play on dossiers under discussion and, more controversially, in ensuring that particular interests are either protected or are at least unharmed by proposed legislation.

Although the Commission enjoys the right of legislative initiative—and the ‘power of the text’ is an important one—it is generally accepted that the Commission should be open to input from interested parties. It is also in the Commission’s interest, from an early stage in the process, to determine the best way to deal with an existing situation, and to identify possible difficulties of implementation once the legislation has been enacted. To this end, the Commission engages in widespread consultations in order to ensure that its proposed legislation will be both fit for purpose and likely to be acceptable to a majority of stakeholders (Bunea 2017). The information gathered during this process is important and useful to policy-makers who have to be aware of the wide range of interests that need to be p. 124↵accommodated in any proposed legislation. Since 2001, the Commission has taken steps to diversify the ways in which it conducts policy consultations, in an effort to counter potential biases in the process in favour of certain, often more powerful, stakeholders such as business (Binderkrantz et al. 2021). Similarly, MEPs and national government officials may consult interested parties when determining what position to take on a new Commission proposal.

Interest representatives (or lobbyists) based in Brussels work for and speak on behalf of companies, trade associations, trades unions, NGOs, law firms, think tanks, academic institutions, and local, regional, and municipal authorities. Their activities have attracted considerable controversy. Some interest representatives prepare amendments to be presented by MEPs in the EP’s committee and plenary sessions. Others target national ministers and officials in an attempt to influence the position they will defend during discussions and votes on draft legislation in the Council. Research on lobbying (Box 5.1) in the EU echoes much of the research conducted on lobbying in national settings. Lobbyists often struggle to achieve their aims when a public policy issue is highly salient, grabs the public’s attention, and involves a larger policy network or community (Dur and Mateo 2014; Keller 2018). However, as issues begin to lose their salience, lobbyists can employ a range of tactics—some noisy, others quiet (Culpepper 2011)—to try to shape the policy-making process in ways that meet their interests. On most issues, there is lobbying from a variety of viewpoints, sometimes diametrically opposed to each other. Often it is the case that lobbyists attempt to change legislative proposals—making them less damaging to their interests—as opposed to blocking them altogether (Box 5.5).

p. 125↵In 2011, in an effort to shed some light on their existence and activities, the Commission and the EP amalgamated two previously separate registers and established a common Transparency Register for interest representatives. The Transparency Register was upgraded in 2021 and the Council has now signed up to it, although it is optional for member states’ permanent representations in Brussels to do so. As of April 2021, this register listed 12,489 organizations—with the equivalent of 24,703 people working full-time—of which 1,594 people had registered access to the EP. It is difficult to identify the precise number of people engaged in lobbying the EU because entries in the register are voluntary. However, commissioners, most MEPs, and senior officials in the EU’s institutions will not normally meet lobbyists who are not on the register, meaning that in practice there is a strong incentive to register.

Under the register’s terms, interest representatives must register and undertake to comply with a code of conduct if they wish to access the buildings or meet senior EU officials (who will not meet with those not on the register, and will log any meeting with those that are). In the EP, participation as a speaker at events organized by committees or intergroups (unofficial groupings of MEPs who are interested in a particular topic) is conditional on registration. The code of conduct requires interest representatives to: declare what interests they are representing; provide information on their staff, finance, clients, and any affiliation they have; not engage in any covert activities; and accept that they may be subject to investigations. The EP, Commission, and Council set up a joint secretariat to monitor compliance. Also, the EP rules of procedure now lay down that rapporteurs, shadow rapporteurs, and committee chairs shall, for each report, publish online all scheduled meetings they had on the matter with interest representatives falling under the scope of the Transparency Register.

The EU policy landscape is a complicated one and, in that respect, no different from the policy landscape in any advanced democracy. Governmental actors live and work alongside lobbyists but also alongside think tanks—often with political agendas—who churn out policy proposals and a large press corps that frames much of the broader political and policy debate (De Bruycker 2019). Coalitions of different types of actor with shared policy interests form to advocate for policy change (or continuity in the face of calls for change). These coalitions are often vitally important in determining the policy agenda and the specifics of EU legislative output (Quaglia 2010; Rozbicka 2013; Donnelly 2018). But, unlike formal institutions, they are not always easily identifiable and researchers have to get up close to trace their activities and influence.

5.4.1 Is the process transparent?

Concern about transparency has resulted in a number of measures aimed at making the policy-making process more open to the public. The Interinstitutional Agreement on Better Law-making, discussed above, was not just about stronger networking and joint working between the EU’s institutions. The EU institutions themselves also undertook to keep the public better informed at every stage, including by broadcasting Council’s political debates and votes on legislative proposals, and publishing the results of their deliberations. Commitments such as these involved more of a cultural shift for the Council than for the Parliament. Contrasting attitudes towards transparency within those two institutions are in large part explained by the different nature of the policy-making process within them. The Parliament’s committee and plenary sessions have always been open to the public and are broadcast live, and the majority of its parliamentary documents are available in all 24 official languages in electronic format via a register. Such transparency would—or should—be considered routine in any well-functioning democratic system.

Decision-making within the Council, on the other hand, has historically been more opaque, due to the so-called ‘consensual reflex’ that lingers throughout its various layers as a consequence of the EC’s original voting rules based on unanimity (Heisenberg 2005). For many years after majority voting rules were introduced, national officials and ministers still continued to try to reach agreements acceptable to as many members of the Council as possible, in an attempt to avoid publicly out-voting one or more of their colleagues, and when votes were taken, the voting records were not publicized (the chair would simply conclude that the necessary majority had been reached). Only since the introduction of co-decision in 1992 has data on voting at ministerial level in the Council been made publicly available.

Early research on voting in the Council revealed a culture of consensus—formal votes and divisions were quite rare, even if heated policy debates might have preceded the final moment of decision (Hayes-Renshaw and Wallace 2006; Novak 2013; Häge 2017). Various factors—including geography, economic preferences, and political ideology—play a role in shaping how member state governments approach negotiations in the context of Council decision-making (see, for example, Hosli et al. 2011; Thomson et al. 2012; König and Luig 2012; Bailer et al. 2015). More recent research hints at the development of more politicized patterns of voting in the Council (Bressanelli et al. 2020; Pircher and Farjam 2021), especially as the EU has become more politicized and visible in domestic political debates.

p. 127↵The Council has slowly improved access to information about its meetings and its documents. Online streaming of parts of Council meetings is now commonplace. Nevertheless, the real negotiations continue to take place away from the cameras, lending credence to the view that most deals are still done behind closed doors in the interests of achieving consensus. The Council’s processes in its preparatory bodies were judged to constitute ‘maladministration’ by the European Ombudsman (2018). The Council continues to be divided into a minority pro-transparency coalition and a majority of more sceptical member states, who have managed to slow down the pace of transparency within the Council since 2006 (Curtin 2014; Hillebrandt et al. 2014; Hillebrandt and Novak 2016). The Council is a strange institution insofar as it acts as a legislative body within the structures of the EU and yet comprises members who, in their ministerial day jobs, are part of their national executive branch of government. Although the Council provides a highly institutionalized and structured venue for member states to interact, those same interactions are still international and quasi-diplomatic in a way that might help explain their greater secrecy.

It is significant that the conciliation and trilogue processes in the OLP, which bring together representatives of the Commission, the EP, and the Council, also take place behind closed doors. This is because it is easier to reach an agreement on controversial issues if the negotiations take place largely in private. The European Ombudsman (2016), however, criticized the lack of transparency of the trilogue process and, since that decision, the Parliament, Council, and Commission have worked to try and improve the situation. Further improvements, especially around public access to documents, could, however, still be made, and in 2018 the General Court of the EU (in De Capitani v. European Parliament, Case T-540/15) clarified that the Parliament must, in principle, grant access to documents relating to ongoing trilogues because they constitute ‘a decisive stage in the legislative process’.

5.4.2 Is the process efficient?

Assessing the efficiency of the EU’s legislative process has both quantitative and qualitative dimensions. It is relatively easy to produce figures on the number of legislative acts adopted each year, the stage in the process at which they are adopted and the average length of time required to adopt them (Tables 5.2 and 5.3). Undertaking a qualitative assessment, however, is a more difficult exercise, because of the value judgements it is likely to contain about the process as a whole and the content of the output.

Quantitatively, the output of the OLP compares favourably to the output of many national systems (an average of 90 legislative acts adopted annually since 2000), though much of that is technical legislation, which, in a national context, would normally be left to the executive to deal with through secondary (or subordinate) legislation. EU legislative output follows a certain rhythm, which is linked to both the EP’s legislative term and the five-year life of each Commission. There are good reasons for this rhythm. A newly elected EP takes time to get itself organized—to p. 128↵decide on the composition and leadership of the committees and other organizational bodies, to agree on the appointment of rapporteurs for specific dossiers, and generally to get into a sustained tempo of work. Similarly, a newly appointed Commission must establish its priorities in legislative terms and either continue or set in train a series of consultations and drafting exercises in order to produce proposals for legislative acts. Steering a legislative proposal through the various stages of the decision-making process in each of the institutions takes time. It also requires large amounts of coordination and communication at various levels both within and between the institutions.

As a result, the legislative output of the first year or so of the life of a new Parliament and Commission tends to be rather sparse. In contrast, the final year or 18 months of the legislative term sees a sustained effort to get as many procedures concluded as possible, if only because of uncertainty about their eventual fate in a new, unknown configuration after the next elections. This political reality explains the increased number of completed dossiers in the six months prior to the end of each legislative assembly’s term.p. 129↵

Similarly, each Council presidency period is marked by the conclusion of procedures or, at least, agreement on its stance on a particular dossier. Normally, both of these reach a peak in the last month of the presidency’s six-month term of office, as the holder tries to wrap up as many agreements as possible—seen as a hallmark of ‘a good presidency’.

The procedural stage at which the final decision is reached between the Council and the Parliament is another means often used to assess the efficiency of the EU’s legislative process. Since the introduction of co-decision/OLP, there has been a steady increase in the number of dossiers agreed at an early stage in the process. The 2014–19 term confirmed that early stage agreements (at first or second reading) have become the norm. At the same time, there has been a corresponding decrease in the number of issues that have been subject to conciliation. The 2014–19 term was the first ever without any conciliations. At face value, this suggests that the EU institutions are working well together to coordinate their positions in order to reach agreement without having to resort to additional readings.

It now takes an average of 20 months to reach agreement on dossiers adopted under the OLP. The general desire to avoid extra readings where possible means that even difficult dossiers are now being agreed earlier in the process, thereby accounting for the increase in the average amount of time required for first and second reading agreements since 1999–2004 (Table 5.3). However, it should be remembered that, while strict time limits apply to the second reading and conciliation (third reading) phases of the procedure, no such limits apply to the first reading. It is therefore possible for either the EP or the Council to continue their internal first reading discussions on the dossier indefinitely, with no legal or administrative consequences (apart perhaps from the irritation of those actors wanting a rapid outcome to the deliberations). More positively, the lack of a set time limit for the first reading gives the actors the opportunity to iron out difficulties and explore p. 130↵alternative solutions, which could facilitate interinstitutional agreement at the end of the first reading. Taking a long time to reach an agreement may also be an indicator of the complexity of the dossier, or of the initial distance between the positions of the various actors, which takes time to resolve. Time is often a valuable resource in all senses in EU policy-making.

The qualitative aspects of the legislative procedure are more difficult to measure. The fact that so many diverse actors and administrations have poured over legislative proposals—far more than is usually the case for national legislation—might augur well for its quality. However, the need for a very high level of support to get anything through the system might mean agreements tending towards the lowest common denominator (though not as much as under EU procedures where unanimity is required in the Council). Once something is adopted, it can become entrenched in that similarly high thresholds are needed to change or repeal it. In that sense, the EU can be quite susceptible to path dependency both in terms of policy and process. A regularly voiced criticism of EU policy is that a ‘one-size-fits-all’ approach across 27 diverse member states can lead to policies that are not sufficiently adapted to national circumstances (although often such criticisms can be a cover for those who are simply opposed to legislating or regulating in a certain policy area). Such criticisms make the principle of subsidiarity—and the distinction between regulations and directives—even more important to the workings of the EU. A ‘one-size-fits-all’ approach can be replaced, in policy areas where a group of member states, but not all, wish to pursue integration. The Enhanced Cooperation procedure was introduced in the Treaty of Amsterdam to allow member states to move at different speeds and towards different policy goals (Box 5.6).

A fascinating, and ongoing, point of debate is the extent to which a seemingly never-ending period of ‘crisis’ is changing how the EU works, including how it makes policy (Riddervold et al. 2021). Some have suggested that EU policy-making has p. 131↵gone through a process of ‘crisisification’ (Rhinard 2019), arguing that a series of crises have affected EU policy-making in a way that prioritizes the early identification of policy challenges and often abbreviated mechanisms of decision-making. The question of whether seemingly perpetual crisis will fundamentally alter the way the EU makes policy remains an open one.