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Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
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EU Law
Handout- 4
Institutions
Introduction The relationship between the EU institutions is very important; since it is the different level of powers ascribed to the different institutions and the synchronisation of their functions that formulate the checks and balances within the Union legal order. It is thus the institutional balance that prevents one institutional actor from becoming more powerful than ever, rather than the more conventional scheme of ‘separation of powers’. Again, the powers of the respective institutions have evolved over time. Therefore, the notion of institutional balance is not a static one. Currently, according to Article 13 TEU, there are the following seven institutions in the Union legal order: I. The European Parliament, II. The European Commission, III. The Council of the European Union, IV. The Court of Justice of the European Union and the General Court, V. The Court of Auditors, VI. The European Central Bank, and VII. The European Council. The TEU has reinforced the unity of the institutions by providing expressly for a single set of institutions within an ‘institutional framework’ and subject to the principle of conferral (Article 13 TEU). The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states. European Council: The European Council is now one of the institutions of the EU and is listed in Article 13 TEU. It is of great importance. It originally arose out of informal meetings between the heads of state or government of the Member States during the 1970s. Since 1974, it has held regular summits and its composition has been formalised. It now meets at least twice a year. At these meetings, high-level decisions about the future development of the European Union are made and disputes between Member States (for example, over budget contributions) are addressed. The CFSP (Common Foreign and Security Policy) is subject to specific rules and procedures and is largely defined and implemented by the European Council, together with the Council. (See Articles 24, 26, 27, 31 and 32 TEU)
Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
Cell no. 01678170237
The European Council, however, has no legislative powers, and any legislative action must be taken by the Council of the EU. The European Council was first given a legal basis by the Single European Act. Article 15 TEU sets out the tasks of the European Council and states that it is ‘to provide the Union with the necessary impetus for development and to define the general political guidelines’ of the EU. It comprises: the heads of state or governments of the Member States, the ministers for foreign affairs, the President of the Commission, & the High Representative for Foreign Affairs and Security Policy. Now the European Council has become an institution, it also has standing before the European Court of Justice, in respect of an action under Article 263 TFEU ‘to review the legality of acts by the European Council intended to produce legal effects vis-à-vis third parties.’ It must be emphasised that the European Council is a separate institution to the Council. It does not have any legislative powers but, because of its status, it has great political power. It should be noted that its members are heads of governments of the Member States, except for France where the President (who is head of state) is a member, together with the French Prime Minister. The European Council should not also be confused with the Council of Europe, which is a non-EU, totally separate body with different membership, different powers and institutions, dealing mainly with cultural and social matters. The Council of Europe’s main achievement is arguably the European Convention on Human Rights and Freedoms (ECHR, 1950). The TEU provides (in Article 15 (5)) for an election by qualified majority of a President for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President’s term of office in accordance with the same procedure. The President of the European Council prepares and chairs meetings of the European Council, to be held every six months. He (or she) ‘drives forward’ its work and represents the Union ‘at his [or her] level’ and ‘without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy’. The functions of the President are only very generally described in the Lisbon Treaty (see Article 15(3) and 15(6) TEU). It will only become clear gradually how these functions are actually carried out and what effect the actual weight of the President’s authority will have in respect of EU policies. The European Parliament: The greatest institutional evolution in the historic development of the European Union has been the enhancement of the powers and status of the European Parliament (EP). The Parliament has gone from being merely a ‘talking shop’ in 1957 with the power, at most, to be consulted (sometimes) by the Council on legislative proposals, to being a co-legislator in nearly all the areas of the Treaty with real powers of scrutiny and supervision over the other institutions. The ‘story’ of the EP’s development reflects the increasing preoccupation with the problem of the ‘democratic deficit’ at the heart of the institutional arrangements of the European Union. In 1979 the first direct elections to the EP took place, making it the only directly elected international body in the world. However, this was insufficient per se to address the democratic deficit unless the European Parliament was also accorded real powers and a real part in the legislative process. Each Treaty has substantially increased the powers of the Parliament;
Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
Cell no. 01678170237
The ‘co-decision procedure’ (Article 251 EC) was added to the EC legal order by the Maastricht TEU. The European Parliament legislated in conjunction with the Council and was finally granted the power of veto over legislation. This procedure was significantly extended in scope by the ToA which also replaced the cooperation procedure by co-decision in all areas except those relating to Economic and Monetary Union. The ToA also greatly simplified the co-decision procedure in a way that strengthened the position of the Parliament so that the European Parliament finally became a co-legislator with the Council in those areas in the Treaty to which this procedure applies. The Lisbon Treaty finally extended the co-decision procedure to become the ordinary legislative procedure (see Article 294 TFEU).
Status in Judicial Review proceedings
In a series of highly creative judgments, the Court rewrote the Treaty in order to give the European Parliament the status of an institution whose actions could be judicially reviewed where they had legal effects with respect to third parties, and to bring actions itself under Article 263 TFEU to protect its prerogatives. ( Les Verts v EP ; EP v Council (Comitology) ; EP v Council (Chernobyl) ). These changes were then formally recognised in the changes to the EC Treaty introduced by the Maastricht TEU. In the Treaty of Nice, the European Parliament was given the status of a ‘privileged’ applicant under Article 230 EC (now Article 263 TFEU) putting it in the same position as the Council, the Commission and the Member States, having unrestricted standing in judicial review proceedings. This gives the European Parliament the power to challenge acts of the other institutions ( EP v Council (Waste Case) ).
EP and the Commission
Since the Maastricht TEU, the appointment of the Commission as a whole has been subject to a vote of approval by the European Parliament; since the ToA, the nominee for the President of the Commission has also had to be approved by a majority vote of the Parliament. Through the censure vote under Article 234 TFEU, the European Parliament can, by a two-thirds majority, force the resignation of the Commission as a whole. The Commission must reply to oral and written questions from the Parliament (Article 230 TFEU). Each year, the Parliament poses roughly 4,500 written questions and 600 questions for oral response; this is a very significant part of its role as scrutineer of the other institutions.
EP and the Council
The Council has accepted that it should respond to question from the EP, as required by the Parliament’s own Rules of Procedure (Rules of Procedure 44, 45 and 46). EP reports on the activities of the Council three times a year, and the President of the Council must present an address to the EP at the beginning of every year.
Other relevant powers of the EP
EP has also standing committees and subcommittees which fulfil a vital role in the functioning of the EP, as they comment on the legislative proposals put forward by the Commission on their respective areas of expertise and can also produce own initiative reports. In the TEU, the EP was given the power to set up temporary committees of inquiry (Art 226 TFEU), to appoint an Ombudsman (Art 228 TFEU) etc. The TEU also introduced Art 227 TFEU allowing all citizens of the EU to petition to the European Parliament.
Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
Cell no. 01678170237
The European Commission: The term ‘Commission’ is used in two ways: first, to describe the high-level political appointments constituting the ‘College of Commissioners’ and secondly, the permanent bureaucracy in Brussels. The European Commission is the institution which above all, represents the Union’s interests. The Commission currently consists of 27 Commissioners chosen on the grounds of their competence, by the governments of the 27 Member States. From 1 November 2014, when a new Commission is appointed the number of members of the Commission will correspond to two-thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number (Article 17(5) TEU; see also Article 244 TFEU). The independence of the members of the Commission must be beyond doubt (Art 17(3) TEU, Commission v. Edith Cresson ). Appointment of the Commission The President of the Commission is proposed to the European Parliament by the European Council acting by qualified majority and this person is then elected by the European Parliament by a majority of its component members. The Commissioners are then selected according to a strict system of rotation laid down by the European Council (Article 244 TFEU); the Commission as a whole is then subject to a vote of approval by the Parliament. The President then appoints the Vice Presidents from among the Commissioners. One of the Vice Presidents is the High Representative of the Union for Foreign Affairs and Security Policy (Article 18 TEU); who is appointed by the European Council, acting by a qualified majority, with agreement of the President of the Commission. The Commission is divided into a number of departments called Directorates-General or Services which are similar to ministries each covering different areas of policy such as agriculture, industry etc. Although the Parliament does not have the power to veto the appointment of individual Commissioners, it can veto the appointment of the Commission as a whole. This power is rarely used but several proposed Commissioners have been forced to withdraw, or been withdrawn by the government which proposed them, after the Parliament had signalled its disapproval. Thus, the European Parliament demonstrated that it can effectively supervise the Commission and that its powers are to be taken seriously. Functions of the Commission Under Article 258 TFEU (ex Article 226 EC), the Commission is entrusted with the role of investigating infringements of the Treaties by the Member States. Where possible, the matter will be resolved informally by negotiation and discussion; where this is not possible, the Commission brings the Member State before the Court of Justice. Under an additional procedure introduced by the Maastricht TEU, an additional paragraph in Article 260 TFEU (ex Article 228 EC) has permitted the Commission to bring a further action against a Member State that has not complied with the Court’s Article 258 judgment, which may result in the Court imposing fines. Under Articles 101 and 102 TFEU (ex Articles 81 and 82 EC), there are the provisions that govern competition law in the Union and the Commission has the principal role in this area. The Commission has the very important role of initiating legislation – all legislative proposals are drawn up by the Commission. The Council and European Parliament can propose policies for legislative action to the Commission under Article 241 TFEU (ex Article 208 EC) or Article 225 TFEU (ex Article 192 EC), respectively, but the Commission
Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
Cell no. 01678170237
undermining the Commission’s monopoly over initiatives for legislation. The Council has the task of taking final decision in, and of carrying out, the proposals submitted to it by the Commission under the TEU and the TFEU and of acting on an inter-governmental basis under the CFSP where decisions are taken jointly by the European Council and the Council, acting jointly, usually by unanimity (Art 31 TEU). However, there is no body, at European or national level to hold the Council itself accountable. Voting in the Council The Council can legislate either unanimously, by a qualified majority or (now in very rare cases) by a simple majority. The voting system varies between different policy areas and is specified in the relevant Treaty Article. Where the Council is required to act by a qualified majority, the votes of its members are weighted according to a system provided by Article 238 (2). QMV is a system of weighed voting. Clearly, from the Union standpoint, it makes for more rapid and effective decision-making than unanimity as the consent of all parties is not required. Lisbon broadened the use of unanimity further, but still there remain some sensitive areas where unanimity continues to be required. As far as QMV is concerned, the voting strengths in the Council are listed in Protocol No 36 on Transitional Provisions and the distribution of votes for each Member State (after accession in January 2007 of Romania and Bulgaria) until 31 October 2014 is as follows: Germany, France, Italy, United Kingdom, each 29 Spain, Poland, each 27 Romania 14 Netherlands 13 Belgium, Czech Republic, Greece, Hungary, each 12 Austria, Bulgaria, Portugal, Sweden, each 10 Denmark, Ireland, Lithuania, Slovakia, Finland, each 7 Cyprus, Estonia, Latvia, Luxembourg, Slovenia, each 4 Malta 3 Total votes 345 For a QMV, 255 votes are required, representing a majority of the members (where the legislative proposal does not come from the Commission, a two-thirds majority is required). A new and very significant element to voting weights was added by the ToN and came into effect on 1 January 2005: In addition to the qualified majority specified above, a Member State may ask for confirmation that the votes in favour represent at least 62 per cent of the total population of the Union. If this is found not to be the case, the decision will not be adopted. This provision favours Germany, with its large population, and makes up for the fact that its weighting of votes does not properly represent its size. In general, small countries are still over-represented in terms of the weighting of votes and this new requirement compensates, to some degree, for this. For a QMV on a Commission proposal, ‘at least a majority’ of the Member States must be in favour. Where the vote is taken on a proposal not put forward by the Commission, then two-thirds of Member States must vote in favour.
Barrister–at–Law (Lincoln’s inn)
LLB Hons, Upper Second Class (University of London)
Cell no. 01678170237
The Ioannina Compromise tries to remedy the shortcomings of QMV. It does represent some progress because under its terms, the Member States are committed to trying to come to some form of compromise acceptable to all. The Lisbon Treaty, like the Constitution, tried to make the QMV system a little more transparent. Representation of EU population in the voting system is being treated as a vital element under the reform (Art 238 TFEU). COREPER – Article 240(1) TFEU COREPER is a French acronym for the Committee of Permanent Representatives. Clearly, ministers of the Member State governments are busy people. Much of the work in the Council is done by COREPER. These are permanently posted senior national officials appointed at ambassadorial rank, who address the issues and negotiate on behalf of their governments. The main task of this body is to scrutinise and sift proposals coming from the Commission prior to a final decision being taken by the Council. The relationship between the European Council and the Council Although the European Council is now a fully-fledged institution (Article 13 TEU), it has no legislative function. Therefore, any legislative action which may have been decided upon by the European Council will need to be carried out by the Council. The European Council therefore acts in conjunction with
