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Consultation is, in brief, legislation decided by the Member States in the Council of Ministers, with Parliament's role purely consultative. It was originally the only legislative procedure possible for any EU legislation other than administrative legislation.

Once the Commission has put forward a proposal, the text is submitted to the Council for a decision, and to the Parliament for an opinion. If required or appropriate, the text is also submitted to the Economic and Social Committee and the Committee of the Regions for their opinion. The Council's decision is normally by unanimity rather than QMV under this procedure.

While the Parliament has no decisive voting role here, it can influence the outcome by virtue of its democratic mandate, or procedurally by delaying issuing its opinion, since the Council cannot act until the Parliament has given its opinion. The ECJ has ruled that the Council of Ministers cannot ignore the opinion of Parliament, and has struck down legislation where the Council 'jumped the gun' and agreed legislation without waiting for Parliament's opinion.

Areas subject to the Consultation procedure

Prior to the Treaty of Lisbon, the main traditional area remaining under this procedure was agriculture, but this has been moved to co-decision by Lisbon. Currently the procedure covers:

  • action on proposals from the High Representative (27 TEU)
  • foreign policy budget appropriations (41 TEU)
  • the ordinary revision procedure for the Treaties (48 TEU)
  • measures concerning social security or social protection (21 TFEU)
  • measures de-liberalising capital movement from/to third countries (64 TFEU)
  • measures ensuring administrative cooperation (74 TFEU, Irish opt-out)
  • measures in respect of identity cards/passports (77 TFEU, Irish opt-out)
  • emergency measures on immigration under the Common Asylum Policy (78 TFEU, Irish opt-out)
  • family law measures with cross-border implications (81 TFEU, Irish opt-out)
  • operational police cooperation (87 TFEU, Irish opt-out)
  • harmonisation of indirect taxes (113 TFEU)
  • measures for the creation of European intellectual property rights (118 TFEU)
  • adoption of provisions for the excessive deficit procedure (126 TFEU)
  • conferral of specific tasks upon the European Central Bank concerning certain policies (127 TFEU)
  • adoption of certain governance measures with respect to the ECB (129 TFEU)
  • abrogation of derogation of states from joining the euro (140 TFEU)
  • establishment of the Employment Committee (150 TFEU), the Social Protection Committee (160 TFEU)
  • adoption of co-decision in respect of certain Social Legislation policy areas (155 TFEU)
  • establishment of measures primarily of a fiscal nature in energy policy (194 TFEU)
  • adoption of rules on the association of countries and territories with the EU (203 TFEU)
  • foreign policy decisions not covered by the consent procedure (218 TFEU)
  • filling of vacancies in the Commission (246 TFEU)
  • conferral of jurisdiction on the ECJ in respect of 'industrial property rights' (262 TFEU)
  • amendments to the statutes of the European Investment Bank (308 TFEU)
  • measures laying down the system of funding for the EU (311 TFEU)
  • adopting the use of co-decision in enhanced cooperation (333 TFEU)

As can be seen from the above list, and the requirement for unanimity that is normal in the procedure, the consultation procedure is 'inter-governmental' in character, and is used where the Member States prefer to restrict the possibility of interference in their actions. The list includes various sensitive topics such as family law, decisions that affect the operation of subsidiary EU institutions such as the Central Bank, and areas that are new to the the EU such as intellectual property.




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