EU Co-Decision Procedure

The EU has three different procedures for making law. The one that applies to the software patent directive is the co-decision procedure, in which the European Parliament and the EU Council have to reach an agreement.

There are three key institutions that play a role in the co-decision procedure: the EU Commission, the EU Council, and the European Parliament. It's not necessary to know all of the details but it is important to understand what those institutions are about, and what their functions are.

The EU Commission is, simply speaking, the initiator and project manager. A legislative proposal is first drafted and put forward by the EU Commission. Unlike the way it works in most countries, it's not the parliament that makes the first step. The EU Commission is based in Brussels and is run by civil servants that are employees of the EU. The president of the EU Commission and the commissioners are appointed by the EU Council and require a vote of approval by the EU Parliament.

The EU Parliament has limited rights compared to national parliaments but under the co-decision procedure it has more power than under the other procedures. The members of the European Parliament ("MEPs") are elected directly by the citizens of the EU member states. The most recent European elections took place in June of 2004. The number of MEPs per country is relative to the size but not proportional. For instance, Germany as the largest country elects 99 MEPs but Luxembourg elects 6. So there is 1 MEP per 800,000 Germans versus 6 MEPs for about half the number of Luxembourgers.

The EU Council is the representation of the member countries. If you compare it to a company, the EU Council is like the Shareholder Meeting where all the owners of a company get together and take decisions. The member countries are represented by their national governments. Compared to the EU Parliament, the EU Council generally has more power. That causes some problems, also in the process on the software patent directive, but otherwise the member countries would have to relinquish more of their sovereignty. If the EU became a full-fledged parliamentary democracy, then we would have a "United States of Europe" while the current EU is somewhere in between a free trade zone and a single state.

Unless there is very broad consensus on a legislative proposal, the co-decision procedure requires some back-and-forth between the European Parliament and the EU Council. There can be up to three readings in each institution. If the first readings in either institution don't result in an agreement, then there is a second reading in the European Parliament. If the second reading in the European Parliament leads to a different position than what the EU Council decided in its first reading, then there is a second reading in the EU Council. If there is still no agreement, then there is a conciliation proceeding. If the conciliation produces a result (which is not certain, and it may take time), then the EU Council and the European Parliament both hold a third reading to approve the outcome of the conciliation.

At first sight, it looks like the European Parliament and the EU Council are equals in this, but that's not exactly true. The disadvantage to the European Parliament is its second reading. In a second reading, the European Parliament cannot propose any new amendments. It can only reaffirm those of the first reading. And to reaffirm any amendment, or to reject the entire legislative proposal, an absolute majority of all members of the parliament is required in each case. In other words, all absences and abstentions technically support the legislative proposal of the EU Council. So it takes a very broad majority in the European Parliament to accomplish anything in a second reading.

Click here to read about the legislative proposals that have been made for a software patent directive