In the context of the European Union, ‘opinion’ has several distinct meanings. There are a number of different contexts, under the Treaties, in which the EU institutions or bodies may be asked to deliver, or choose to offer, formal opinions. Under Article 288 TFEU, opinions are listed as one of the types of legal acts that may be adopted by the institutions. However, unlike regulations, directives or decisions, neither opinions nor recommendations have binding force.
The European Parliament gives opinions on legislative proposals referred to it under the consultation procedure. The Parliament’s opinion is embodied in a report sent by the relevant committee for adoption in the plenary session. It comprises two components: a motion for resolution and (where appropriate) detailed amendments proposed to the legal text in question. Under the consent procedure, the Parliament’s opinion – traditionally known in French as an avis conforme – can only approve or reject a proposal; there is no possibility of amendment. If the Council acts in the absence of an opinion being received from the Parliament, the resulting measure may be invalid, because an ‘essential procedural requirement’ has been ignored (see Isoglucose case). The European Economic and Social Committee (EESC) and the Committee of the Regions may also give opinions on draft legislation referred to them.
Until the Lisbon Treaty, a similar status applied to opinions given by the Parliament under the co-decision procedure. However, the view expressed by the Parliament is now called a ‘common position’, with equal standing to that of the Council of Ministers. Indeed, arguably the Parliament’s position has higher status, in that it forms the text to which the Council itself makes amendments. In all cases where the Parliament gives an opinion, it is drafted by a rapporteur appointed for the purpose.
Under certain circumstances, the European Commission or the Council of Ministers may be required to give an opinion before the adoption of a decision by another institution or by the member states collectively. As part of the enlargement process, for example, the Council must seek the opinion of the Commission (as well as the consent of the Parliament) on the proposed accession of an applicant state (Article 49 TEU). Before the European Council can invoke either the ‘ordinary’ or ‘simplified’ revision procedures to amend the Treaties, an opinion is required of both the Commission and Parliament (Article 48 TEU). The European Central Bank (ECB), which may also deliver opinions in its own right (Article 132 TFEU), is consulted on any proposed institutional changes in the monetary field. As part of the excessive deficit procedure, the Commission must give an opinion verifying that a member state has an excessive deficit, if it wishes the Council to address the issue (Article 126 TFEU).
Outside the legislative process, the Court of Auditors may deliver opinions at the request of one of the other institutions (Article 287(4) TFEU). The Economic and Financial Committee (Article 134(2) TFEU) may deliver opinions on its own initiative or at the request of the Council or Commission. The Political and Security Committee (PSC) (Article 38 TEU) may do so on its own initiative or at the request of the Council.
In a quasi-judicial role, the Commission may issue a ‘reasoned opinion’, when it believes that a member state has failed to fulfil a treaty obligation (Article 258 TFEU). If the state does not comply with this opinion, the Commission may bring a case before the European Court of Justice (ECJ).
The Court itself also receives and issues opinions. Under Article 252 TFEU, the function of the advocate-general is to give an impartial, independent, non-binding ‘reasoned submission’ – known as an opinion in the Court’s rules of procedure and in its official European Court Reports – before the body reaches its final judgment in any case. Less commonly used is the procedure under Article 218(11) TFEU, which allows the Commission, the Council, the Parliament or a member state to seek the opinion of the Court on the compatibility between the Treaties and an agreement that the Union proposes to conclude with a non-member state or an international organisation. In this specific case, such opinions are binding. In December 1991, the Court found certain parts of the initial draft agreement on the European Economic Area (EEA) to be illegal and they had to be significantly redrafted (Opinion 1/91).
September 2012
Copyright: Anthony Teasdale, 2012
Citation: The Penguin Companion to European Union (2012), additional website entry