The co-decision procedure is a legislative process introduced by the Treaty of Maastricht (Treaty on European Union) 1991 and now enshrined in Article 294 TFEU. In the co-decision procedure, the European Parliament and the Council jointly adopt (i.e. co-decide) legislation. The Parliament now shares legislative authority with the Council. Co-decision requires consensus to be reached between the Council and the Parliament for legislation to be adopted.
The co-decision procedure has been applied to most Directives adopted since the Maastricht Treaty and has given Parliament a much greater role and influence in the formulation of EU legislation in the field of employment and industrial relations.
By virtue of its co-decision power, the legislative power of the Parliament is greatly strengthened. Where the Council and Parliament cannot agree on proposed legislation, a compromise is sought through the establishment of a ‘Conciliation Committee’. If agreement cannot be reached, the proposed legislation ‘shall be deemed not to have been adopted’. Effectively, the Parliament has a veto power: it is able, by absolute majority vote, to block a proposed legislative measure. The Parliament remains powerless, however, to enact legislation by itself.
The outcome is that the EU institutional framework resembles a dual legislative system, albeit with certain important specific qualities: the Council reflects national interests; Parliament is divided along party political lines; decisions in the Council may require unanimity, whereas in Parliament a majority will suffice; Parliament can veto but cannot initiate or enact legislation by itself. In practice, Parliament can exercise greater influence over EU legislation, through the process whereby it scrutinises legislative proposals more closely, is able to propose amendments, and may exercise a veto.
The Maastricht Treaty (1991) and the Nice Treaty (2000) extended the co-decision procedure to legislative proposals in some of the areas of employment and industrial relations. The Maastricht Treaty allowed qualified majority voting in some of the areas listed in Article 137(1) EC (now Article 153(1) TFEU):
- improvement of the working environment to protect workers’ health and safety;
- working conditions;
- information and consultation of workers;
- the integration of persons excluded from the labour market;
- equality between men and women;
- the combating of social exclusion;
- the modernisation of social protection systems.
The Treaty of Nice 2000 extended co-decision procedures applicable to further areas listed in Article 137(1) EC (now Article 153 (1) TFEU):
- protection of workers where their employment contract is terminated;
- representation and collective defence of the interests of workers and employers, including co-determination;
- conditions of employment for third country nationals legally residing in Community territory.
However, such extension requires a unanimous vote in the Council (Article 153(2) TFEU). A requirement of unanimity means that such procedures are less used and less successful. The co-decision procedure, when combined with qualified majority voting in the Council, is the formula most likely to produce Union legislative action in the field of employment and industrial relations.
In practice, the co-decision procedure affects not only the dynamics of the legislative process but also has a potential effect on the European social dialogue. Coupled with qualified majority voting, the co-decision procedure makes it easier for the Parliament to promote or block legislation. This may provide an indirect incentive to the social partners to negotiate and conclude agreements in the social dialogue.