European decision-making process on intellectual property rights
Before the entry into force of the Lisbon Treaty, there was not an European legal basis for intellectual property rights. Measures in this field followed essentially two procedures.
First, legislation concerning EU-wide intellectual property rights was adopted using the “residual powers” clause: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures” (art. 308 TEC).
Second, EU legislation harmonising intellectual property national law was adopted using a Qualified Majority Vote (QMV) system within the Council and the co-decision procedure (European Parliament and Council on an equal footing) because it was needed for the establishment and functioning of the internal market (art. 95 TEC).
With the entry into force of the Lisbon Treaty, a new legal basis has been introduced for intellectual property rights. Art. 118 of the Treaty on Functioning of the European Union states:
In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.
The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament
As provided by this article, intellectual property legislation is now adopted following 2 procedures: 1) the ordinary legislative procedure (the previous “co-decision”) with a QMV system within the Council; 2) a special legislative procedure (consultation procedure, in particular) with a unanimity vote system within the Council.
Ordinary legislative procedure (art. 294 TFEU)
This procedure begins with the Commission proposal sent to EP and Council simultaneously. In the European Parliament, the proposal is referred to the responsible committee(s) that chooses a rapporteur whose main task is to draft a report on the legislative proposal. The proposal is also sent to one or more committees expected to deliver opinions. In order to perform his duty, the rapporteur consults different actors such as lobbies, trade unions, the European Commission and national governments. The report, once discussed and adopted by the committee(s), is sent to the EP plenary session. Here, the EP adopts its position on the proposal and the act is considered adopted if the Council agrees with the Parliament's position. Otherwise, the Council adopts its own position which must be sent to the EP for the second reading.
The responsible committee(s) discusses the common position of the Council and adopts a recommendation that must be sent to the EP plenary session. Here, there are 3 possibilities:
- the EP rejects the common position and the Act is deemed not to be adopted
- the EP adopts the common position and the Act is deemed to be adopted
- the EP proposes amendments to common position
In the last case, the European Commission delivers an opinion on EP's amendments that are sent to the Council for its second reading. The Act is adopted if the Council approves all the EP's amendments (by a qualified majority in case of positive opinion of the Commission, unanimously in case of negative opinion of the Commission). If the Council does not approve all the amendments, a Conciliation Committee is convened.
The Conciliation Committee is composed of 27 members of the EP and of an equal number of members of the Council. Its task is to find an agreement between the the two institutions in order to adopt a joint text. Also the EC plays a role in this stage, trying to reconcile the positions of the EP and the Council. If the Conciliation Committee adopts a joint text within 6 weeks, it must be approved by the Parliament and the Council in order to be approved. In case the Conciliation Committee does not agree on a joint text or the joint text is not approved by the EP or the Council, the Act is deemed not to be approved.
Special legislative procedures
In some cases provided by the Treaties, special legislative procedures apply covering the former cooperation, consultation and assent procedures. It is necessary, therefore, to explain how the consultation procedure works because it applies to language arrangements in the field of intellectual property rights.
Under this procedure, legislation can be adopted by the Council on the basis of a proposal made by the Commission and after having consulted the EP. The Council can act unanimously (in case of language arrangement, for example) or by a qualified majority depending on the policy area concerned. About the institutions' role, the Council is the leading actor under this procedures. As a matter of fact, the European Parliament must be compulsorily consulted but its position does not bind the Council. If substantial amendments are approved after the opinion, the EP must be consulted again.