European Union Law

Topic 1 – History and Development of the EU

Background

Contemporary accounts of European integration came with the aftermath of WWII. There was hope for a new model of political cooperation in Europe. However, calls for such cooperation and integration pre-date even WWII, and go as far back to William Penn (English Quaker) who called for a European Parliament to end the mosaic of Europe in the early 18th century.

In 1947 the GATT (Genera Agreement on Tariffs and Trade) was signed in an effort to liberalise international trade – also, this was the same year the Marshall Plan was announced – it required an organisation to administer US aid in Europe – this became the Organisation for European Economic Co-operation (OEEC) and later, the Organisation for European Economic Development (OECD) in 1960.

Although intergovernmental, the OEEC and then OECD required some institutionalised coordination – a sort of step towards supranationalism – but as seen below, the ECSC was the pivotal move towards supranationalism.

Further examples of early cooperation came in the form of NATO (North Atlantic Treaty Organisation) in 1949, the 1948 Brussels Treaty and 1944 Benelux Treaty. 1949 saw the Committee of Ministers and a Parliamentary Assembly, which signed the ECHR (European Convention on Human Rights) in 1950. This established both a Commission and a Court of Human Rights which have been extremely important, even to this day.

With the failure of the UK to participate in more concrete moves towards integration, the French Foreign Minister, Robert Schuman, proposed the pooling of Franco-German coal and steel resources under a single High Authority, with the option for other states to participate. This proposal led to the setting up of the European Coal and Steel Community (ECSC) – which expired in 2002 (50 years). This was the first step towards integration going beyond intergovernmentalism – to a more supranational level.

The ECSC Treaty was signed in 1951 by France, Germany, Italy and the three Benelux countries (Belgium, Netherlands, Luxembourg).

The ECSC Treaty established four institutions:

  1. High Authority  – decision-making power
  2. Assembly – supervisory power
  3. Council – consultative role with some decision-making powers
  4. Court of Justice – judicial power

The period between 1951 and 1957 was slow in terms of the pace of integration – France was wary of German remilitarisation and instead of allowing rearmament within NATO, France proposed a single European army – this would require a single budget and joint institutions which led to the establishment of the European Defence Community (EDC) – the treaty was signed in 1952 by six ECSC states, Britain refusing to participate. 

  • If a single army were to exist, a unified foreign or ‘European foreign policy’ would need to exist – this resulted in a 1953 draft statute for a European Political Community (EPC) – but these efforts were stopped in the French national assembly – wary of German remilitarisation still.
  • As a result, 39 years lapsed before the Maastricht treaty was signed. 

–European Integration Theories

Integration has largely been a linear description. However, there have been many different phases – beginning with functionalism of the 1950s.

  • This is the belief that integration would be best furthered by focusing initially on discrete economic sectors, which would be managed by a technocratic and efficient supranational institution, far from politics.
  • Following this, as a more broad economic integration came about in the late 1950s, a neo-functionalist theory emerged, elaborated by Haas in the 1960s.
    • But, what are these theories exactly?
      • Functionalism – By promoting functional cooperation, you deter disputes. By engaging states in cooperative ventures you dispel the possibility of conflict (instead of keeping states apart).
      • Neo-functionalism – Premise is the same as functionalism, however, it sees integration as a process based on spill-over from one initially non-controversial, technical sector to other sectors of possibly greater political salience, involving a gradual reduction in the power of national governments and nationalism as a whole would also decline, and a commensurate increase in the ability of the centre (EU) to deal with the sensitive, politically charged issues. In the Haas-Schmitter model, size of unit, rate of transactions, pluralism, and elite complementarity are the background conditions on which the process of integration depends.
  • This assumption of neo-funcitonalism was challenged by the intergovernmental phase of the community in the 1970s, identified most starkly by the Luxembourg veto.
    • The neofunctionalist arguments were challenged by neo-realist and neo-rational accounts, amongst which liberal intergovernmentalism emerged as a particularly prominent theory.
      • Liberal intergovernmentalism – presents States rather than supranational institutions as the key actors in the integration process, to pursue their own agendas and protect their own spheres of power.
      • With the signing of the Maastricht Treaty and the SEA in the 1980s there was a small revival of neo-federalist ideals.
  • From the 1980s, the dichotomy underpinning the different theories of integration (supranationalism v. intergovernmentalism) has been questioned in light of some critics seeing the EU as a system of multi-level or network governance.
    • We see a broader concept of institutions in use through this theory, a focus which goes beyond supranational actors and institutions to include sub-national, infra-national, public and private entities.
    • Many new theories are arising within the multi-level broad idea, such as that of the rationalist approach which views decision-making as being driven by the pursuit of material interests by strategic actors, and the constructivist which lays more emphasis on the influences of norms, ideas, and principles in the process of integration.

–The Treaties

EEC and EURATOM Treaties – 1957

(a) EEC: Founding and Objectives

  • A conference in Messina in 1955 generated agreement on moving towards integration. 1956 Belgian report after the conference resulted in the basis of what was to become EURATOM and the EEC – the focus was specifically economic – but there was unlike with the ECSC, no temporal limit.
  • The primary treaty objectives were to:
    1. Establish a common market
    2. Approximate common economic policies
    3. Increase stability
    4. Raise standard of living
    5. Promote closer relationships between member states
      • Barriers to trade were abolished and a common tariff was introduced. National monetary and economic policies were to be harmonises as well as fiscal and social policies.
      • A European Social Fund was established to improve employment opportunities as well as an Investment Bank – a European Development Fund was set up for overseas countries.
  • The Parliamentary Assembly and the Court of Justice were to be shared with the ECSC, but there was to be a separate Council of Ministers and executive authority, the Commission. – Not until the Merger Treaty of 1965 that these were shared.

(b) Geographical Reach of the Community: Enlargement

  • UK in the 1950s chose to remain outside the EEC, and set up the EFTA in 1960 instead. In 1961 after policy change it made its first application.
  • Not until De Gaulle’s resignation in 1973 that allowed Britain to gain membership.
    • This occurred with Denmark and Ireland together.
    • Although Norway’s application was accepted, they did not ratify the Treaty after a national referendum. Greenland left the community in 1985.

(c) Community Decision-Making: Intergovernmentalism and Supranationalism

  • The geographic reach expanded between the EEC treaty and SEA. This period had tensions however between the intergovernmental view and a more supranational perspective.

–(i) The Luxembourg Accords

  • Crisis in 1956 when move came from unanimous to QMV (qualified majority voting) procedures. De Gaulle (French President) objected to the ‘federalist’ logic and policies being put in place, specifically over agricultural policies.
  • France refused to attend Council meetings and adopted an ‘empty chair policy’. This lasted 7 months after which a settlement was reached – known as the Luxembourg Accords or Compromise.
    • Had an impact on community development over the next two decades.
    • Key: France asserted even when the treaty provided for majority decision-making, discussion must continue until unanimity was reached whenever important national interests were at stake.
      • For many years, the plea of “important national interest at stake” was a kind of veto.
      • Recourse to QMV became the exception rather than the norm. – This was in effect a return to intergovernmentalism. The shift of power from the Commission to the Council undermined the position of the Parliament.
      • While there was an internal crisis, the community was finding a voice on the international stage – e.g. GATT signed in 1967.

–(ii) The Emergence of the EPC, European Council, and Comitology

  • The Luxembourg Accords gave states a de facto veto power. The period here also saw enhanced intergovernmentalism.
    • Davignon Report 1970 – quarterly meetings with foreign ministers.
      • 1973 Report – formed European Political Cooperation (EPC).
  • 1974 – European Council was established – regularized the holding of summits.
    • The decisions made here, although not binding, essentially dictated the way in which Community meetings would proceed and what initiatives were to be set in motion.

–(iii) Countervailing Trends: EP Direct Elections, Resources, Budgets and the ECJ (now CJEU)

  • Not all trends were towards intergovernmentalism however – there were some towards supranationalism.
  • 1976 – direct elections to Parliament were finally agreed by the member states.
    • This should-be success was undermined because the EP’s only role in the legislative process was a right to be consulted when a specific Treaty Article so provided.
    • Developments in relation to resources and the budget – strengthening the budget made the Community self-sufficient by 1970 and allowed for a more supranational role in that it was independent from financial support.
    • Jurisdiction of the ECJ – had a broad reading of Art. 308, enhancing the Community’s sphere of competence. It used the doctrine of direct effect in the 1960s and 1970s to make commuity policies more effective.
      • 1970 – triggered a policy of negative integration and influenced the Commission in its subsequent single market strategy by interpreting very broadly Treaty provisions on the abolition of non-tariff barriers to the free movement of goods. The principle of the supremacy of Community law over national law served to reinforce these judicial strategies.
      • The principle of supremacy of Community law over national law served to reinforce the judicial strategies employed by the Community.

5. Single European Act – 1987

  • Tindeman Report in 1974 and ‘Three Wise Men’ in 1978 both recommended the strengthening of the supranational elements of the Community.
    • Neither was acted on.
      • Followed by Genscher-Colombo plan and EU Parliament Draft Treaty on European Union
        • Nothing more materialized.
        • Fontainebleau European Council Summit 1984 – led to Dooge (EU identity) and Adonnino (political reform) Committees.
          • Dooge Report not acted on – but in 1985, European Council in Milan agreed, by majority to convene an intergovernmental conference to discuss Treaty amendment. This led to the SEA.
          • The SEA represented a political commitment to Lord Cockfield’s 1985 ‘White Paper’, which set a timetable for the removal of barriers.

(A) Institutional Changes

  • Enhanced Parliament’s power in the legislative process.
    • Created ‘cooperation’ procedure.
    • EP also given veto over accession to new member states.
    • Gave legal basis to European Political Cooperation (EPC) and the European Council, although not within the community treaties. A Court of First Instance was created (CFI) (now the General Court) to assist the ECJ (now CJEU)
    • Comitology’ procedure – Council delegates powers to the Commission on certain conditions – this was included in Art. 202 EC.

(B) Substantive Changes

  • Art 18 EC set out the aim of ‘”progressively establishing the internal market as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.’”
  • QMV introduced into a range of areas, which previously required unanimity.
  • Art. 95 became the principal Treaty provision for the enactment of measures to complete the single market.
    • This was significant as the previous unanimity requirement was a huge hinderance to the harmonisation process.
    • SEA added new substantive areas of Community competence, some of which had already been asserted by the institutions and supported by the Court, without any express treaty basis.
      • Additions covered: cooperation in economic and monetary union, social policy, economic and social cohesion, research and technological development, and environmental policy.

(C) Reaction and Assessment

  • Initial response was mixed. Some saw it positively after a period of malaise. Others, such as Pescatore (former ECJ judge) regarded it as a setback for integration.
    • According to J Weiler:
      • First, Parliament now plays the role it was intended to play under the Treaty of Rome.
      • Second, decision-making process takes less time.
      • Third, the interdependence of policy areas in Brussels = new dynamic.
      • SEA helped to kick-start the fulfilment of the Community’s objectives, especially through the new Art. 95 EC.

6. Maastricht Treaty  –  (Treaty on European Union) 1992

(A) The Three-Pillar Structure

  • Jacques Delors – Economic and Monetary Union – 1989 – three-stage process to achieve it.
  • Treaty on European Union – signed in 1992 in Maastricht.
    • Titles II, III and IV created 1st Pillar amendments to EEC, ECSC and EURATOM treaties
    • Title V created 2nd Pillar of the Common Foreign Security Policy (CFSP) – not supranational
    • Title VI created 3rd pillar of Justice and Home affairs (JHA) – not subject to supranational
    • Why a 3 pillar structure?
      • States wished for some established mechanism through which they could cooperate.
        • The member states did not want a highly supranational mechanism however, as the Commission and ECJ already played such a role – the JHA and CFSP are highly sensitive areas of national sovereignty and therefore they wanted a more intergovernmental framework – however they wanted a mechanism to have regular meetings and thereby reduce transaction costs associated with ad hoc meetings.

(B) The Common Provisions

  • Although the provisions of the TEU were expressly non-justiciable, they contained high rhetoric on solidarity between States.
  • Includes:
    • Balanced and sustainable economic and social progress, though the creation of an area without internal frontiers, the strengthening of economic and social cohesion, and the establishment of the EMU including a single currency.
  • Although the provisions were not justiciable, several provisions were cited by the ECJ and some rendered justiciable by the Amsterdam Treaty.

(C) Changes to the Community Treaties

–(i) Institutional Changes

  • Increase in Parliament’s legislation involvement – by the introduction of the co-decision procedure – was Art. 251 EC.
    • Most significant: Allowed the EP to block legislation, which it disapproved. Also given the power to request the Commission to initiate legislation and block the appointment of a new Commission.
    • Other: Art. 7 placed the Court of Auditors on a footing equal to the other four institutions.
      • Art. 8 provided for both a European System of Central Banks and a European Central bank
      • Art. 195 made provisions for a Parliamentary Ombudsman
      • Art. 263 established a ‘Committee of the Regions’

–(ii) Substantive Changes

  • Art. 5 established the principle of subsidiarity – intended to delineate in which action was best taken at community level and national level.
  • Art. 17-21, concept of European Citizenship was introduced.
  • Art. 98-124, new provisions on the EMU and laid foundations for a single currency
  • Fourthly, further areas of competence added: culture, public health, trans-European networks, etc.

(D) Common Foreign and Security Policy

  • Second and third pillars were more intergovernmental – but not entirely disconnected from the Community as they involved some institutions, especially the Council.
    • Lisbon Treaty removed the three-pillar structure.

(E) Justice and Home Affairs

  • Originally (in Maastricht Treaty) dealt with asylum, immigration, etc. – integrated in the Amsterdam treaty. However, prior to the Lisbon Treaty, the third pillar also included cooperation on a range of international crime issues – established EUROPOL.
    • The Lisbon Treaty brought the third pillar into the general fabric of the Treaty.
      • Note: Decision-making was more intergovernmental and less supranational under the third pillar, while it existed.

(F) Reaction and Assessment

  • Note: obscurity and secrecy of negotiation process, complexity of structure and mixed institutional reforms, borrowing of Community institutions for the intergovernmental pillar policy-making, and the many opt-outs and exceptions attached much critical comment.
    • Perceived loss of unity and coherence of the Community’s legal order (intergovernmental pillars)
    • D. Curtin: Maastricht Treaty = umbrella union à constitutional chaos. One step forwards, two steps back.
    • ‘variable geometry’ or ‘a-la-carte integration’ perceived as undermining cohesiveness and unity of the Community order.

(G) Further Enlargement

  • Accession of Norway, Sweden, Austria and Finland, signed in 1994 in Corfu – only latter three acceded in 1995.

7. Treaty of Amsterdam 1997

  • Consolidation rather than extension of Community powers.
  • Signed in 1997 – effect May 1st 1999. Deleted obsolete provisions of the EC Treaty and adapted others.

(A) Common Provisions

  • Tried to enhance EU legitimacy.
  • Principle of ‘openness’ added to Art. 1
  • New objectives put into Art. 2 – promotion of a high level of employment and establishment of ‘freedom, security and justice’.
  • Art. 6 – declared union was founded on respect for HR, democracy and the rule of law, and respect for these principles was a condition for EU membership under Art. 49 EU.
  • Art. 7 – If a serious and persistent breach was identified by a member state, some its rights could be suspended.

(B) The Community Pillar

  • Institutionally:
    • Most important change was the amendment and extension of the co-decision procedure.
    • Parliamentary assent was required also as a Commission President was appointed.
    • In terms of legitimizing the Community to its citizens, freedom of access to documents (Art. 255) and data protection (Art. 286) were introduced.
    • Substantive:
      • Scope of Community power enhanced.
      • Importantly, third pillar (JHA) was included into the fabric.
      • Art. 11 – provided that the Council could authorize ‘closer cooperation’ between Member States.

(C) Common Foreign and Security Policy

  • Only a small change to 2nd pillar – in the Commission’s rile permitting it to submit implementation proposals.
    • The CFSP was given a higher status as the Sec-Gen was nominated a ‘High Representative’.
    • Tried to facilitate cooperation/coordination between the member states.

(D) Police and Judicial Cooperated in Criminal Matters (PJCC)

  • Criticism of the Maastricht treaty was that many HA policies were unsuited to intergovernmental processes.
  • Parts of JHA pillar relating to visas, asylum, immigration and free movement were incorporated into the EC – the other provisions were subjected to institutional controls closer to those under the community pillar. The Third Pillar was renamed the ‘Police and Judicial Cooperation in Criminal Matters’.
  • AIM: provide citizens safety etc. by developing a ‘common action’ in three areas: police cooperation in criminal matters, judicial cooperation in criminal matters and the prevention of racism and xenophobia.

(E) Reactions and Assessment

  • Two benchmarks – institutional reform to cope with prospective enlargement and broader concerns about the EU’s legitimacy.
  • Viewed against these benchmarks, the Amsterdam Treaty does not do well.
    • Why?
      • Enlargement through institutional reforms not addressed.
      • Little to address broader concerns of legitimacy.
      • It had a more general impact in two respects:
        • Eroded distinction between pillars (especially 3rd)
        • Constitutionalized and legitimated mechanisms for allowing different degrees of integration and cooperation between groups of states.

8. Nice Treaty 2001

A) The IGC

  • EEC existed from ’57 to ’85 without a single IGC.
    • Amsterdam’s failure to address institutional reforms with prospective enlargement made and IGC inevitable.
    • Nice Treaty was concluded in December 2000 after a notoriously fractious European Council Summit.

(B) The Community Pillar

  • Made a number of changes, particularly to the institutional structure.
  • Major political achievement = agreement on issues related to enlargement
    • Weighting of votes in the Council
    • Distribution of seats in the EP
    • Composition of the Commission
    • EP’s power was further enhanced by extension of the co-decision procedure to a considerable range of Treaty Provisions
    • Made changes to the Court system, strengthened powers of the CFI (now, General Court).

(C) CFSP and PJCC

  • Modest changes to 2nd and 3rd Pillars – rules superseded by Lisbon Treaty however.

(D) Enhanced Cooperation

  • Art. 43 – allowed closer cooperation
  • Relevant provisions altered by Lisbon Treaty 2009.

(E) The Charter of Rights

  • Cologne European Council 1999 – created the charter.
  • Significant development in substantive terms.
    • 2004 IGC looked at the legal status of it.

(F) Enlargement

  • Purpose of Nice was to make institutional changes in light of prospective Community enlargement – 2004 brought ten states into the Community.
  • Policy of conditionality meant that candidate states were required to adapt their laws and institutions in significant way before any date of accession was set, at a time when they had little or no influence on EU policy.
    • Requirement to comply with the Copenhagen criteria was set by European Council in 1993 – this was to adopt entirely the acquis of the Community – this was a considerable burden for the countries.

(G) Reaction and Assessment

  • Primary aim: Institutional change in light of prospective enlargement of the Community.
  • There was procedural dissatisfaction with the Treaty. There was also substantive dissatisfaction – important issues were left untouched – reflected in ‘Declaration 23 on the Future of the European union’ – called for a ‘deeper and wider debate’. It identified four forgotten/untouched issues:
  1. Delimitation of powers between EU and the Member States
  2. Status of the Charter of Fundamental Rights
  3. Simplification of the Treaties, and;
  4. Role of National parliaments.

9. Constitutional Treaty 2004 (FAILED)

(A) From Nice to Laeken

  • Declaration 23 appended to the nice Treaty explicitly envisaged that the four issues would be considered at the 2001 IGC. However, a growing consensus emerged in 2001 over two crucial issues:
  1. Content of the reform agenda – the fours issues were not discrete. They resonated with the balance of power within the EU and the vertical distribution of authority between the EU and Member States.
    1. Consensus that there should be a more fundamental re-thinking of the institutional and substantive fundamentals of the EU.
    2. Reform Process – Accepted that if a broad range of issues was to be discussed, the result should be legitimated by input from a broader constituency.
  • This consensus was reflected in the Laeken Declaration – The four issues became ‘headings’. The Laeken Declaration also embraced the Convention model.

(B) Convention on the Future of Europe

  • Three stage methodology – 1) Listening, 2) Examination, 3) Proposal.
    • Divergence of realization on the purpose of the convention – advisory v. actualizing.
      • Consensus actually required on a Constitutional Treaty for Europe.
      • Constitutional idea took hold in Sept 2002.
      • Constitutional Treaty divided into 4 parts
        • Part I – dealt with basic objectives and values of the EU
        • Part II – contained charter of rights – that was binding under Part I.
        • Part III – Policies and functions of the EU
        • Part IV – Final Provisions

(C) IGC and (Non-)Ratification

  • Members States not willing to give up all power however. Could not agree on a final text in Dec 2003. The presidency of the Council passed to Ireland in 2004 and agreement was secured in June 2004.
  • 15 member states ratified – however France and Netherlands rejected in national referenda. Consequently, a number of states postponed their ratification. The Council in 2005 decided to hold a time of ‘reflection’.
  • Never became law, however, the 2009 Lisbon treaty drew heavily from the Constitutional Treaty.

(D) Reaction and Assessment

  • Whether it was wise for the UE to ever have embarked on this ambitious project?
    • Why fix something that is working well?  – Dangerous issues brought up in this project that are best left to less formal mechanisms. Also, the Nice Treaty could operate the EU well enough.
    • Set of issues concerned over the way in which the Convention operated. Some cast doubt on the participatory credentials of the Convention.
    • Debate on the content of the Constitutional Treaty – some were critical of further federalization. Others were critical about a perceived increase in intergovernmentalism in the Treaty. Some applauded the distribution of competences and others were arguing the provisions were uncertain and unclear.

 

10. Lisbon Treaty 2009

(A) IGC

  • Hangover from the Constitutional Treaty project was toxic. Two years later, they did not want the work that went into the project to go to waste and decided it was time for a Reform Treaty. It was to contain two principal substantive clauses; which amended the TEU and EC Treaty to become the TFEU and the Union should have a single legal personality and the word ‘Community’ throughout would be replaced with the word ‘Union’.
  • The term ‘Constitution’ was not to be used – obvious on political grounds.
    • No flag, anthem or motto.
    • Portugal had presidency during second half of 2007 and wanted to move forward aggressively with the Reform Treaty so it would bear its name. The 2007 IGC was power politics with a vengeance.
      • Signed on 13 December 2007
        • Ireland rejected it – but overcome in an Irish referendum in October 2009 after concessions were made to Ireland. The final hurdle was the unwillingness of the Czech president to ratify it – but he did so after a constitutional challenge to the Czech Constitutional Court was rejected.

(B) Formal Architecture

  • The Lisbon Treaty amends the TEU and TFEU.
  • It has 7 articles, of which 1 and 2 are the most important – plus numerous protocols and declarations.
    • Art. 1 amends the TEU and contains some principles that govern the EU as well as revised provisions concerning the CFSC and enhanced cooperation.
    • Art. 2 amends the EC Treaty and, which is renamed the TFEU. The EU is henceforth to be founded on the TEU and TFEU and they have the same legal value. The ‘Union’ is to replace and succeed the EC.

(C) Substantive Architecture: General

  • Dilemma: the desire to frame the revised TEU to embrace the Unions’s constitutional principles – had to be tempered by the political need to produce a document that the did not resemble or replicate Part I of the Constitutional Treaty.
    • It did however improve the architecture of the TFEU – divided into Seven Titles.

(D) Substantive Architecture: The Pillar Structure and the CFSP

  • The Lisbon treaty is not built on the Pillar system, but the rules relating to the CFSP are distinctive and look something akin to a ‘pillar’. The approach to the CFSP in the Lisbon Treaty in 2009 largely replicated the Constitutional Treaty. However, the CJEU still is excluded from the CFSP.

(E) Reaction and Assessment

  • ‘Official’ v ‘Unofficial’ reactions to the Treaty.
  • Official:
    • Relief that the Treaty reform had finally been concluded. After going for more than a decade.
    • Unofficial:
      • Diversity of opinion that marked reaction to and assessment of the Constitutional Treaty – because the latter drew so heavily on the former.

Conclusions on the Treaties

  • Formal Treaty amendment not spread evenly over the EU’s history. Between EEC and SEA = stable – after SEA was one of almost continuous Treaty revision.
  • Treaty Reform is a continuation of politics by other means.
    • The Lisbon Treaty is to be amended in a small way as regards EMU.
    • Period since EEC inception has been very significant to institutional and substantive change to its powers.
    • Institutionally, the EP has moved from a player on the fringes to the centre of the decision making process.
      • The European Council has gone from strength to strength beginning outside the letter of the Treaty to a major institutional player.
      • Substantively, the complex Treaty changes should not mask the general effect, which has been an increase in the areas over which the EU has competence. The EU’s solely economic focus is well and truly over.

 

Topic 2 – The EU Institutions and their Functions

The Commission

  • “Commission” means both the College of Commissioners and the permanent Brussels bureaucracy which staffs the Commission services. We are going to look at the former here.

(A) President of the Commission

  • Indirectly elected. There was fear that this would politicize the process – but the increase in legitimization that would arise was seen to outweigh this.
    • Art. 14(1) TEU states that the EP shall elect the President of the Commission.
      • State power is retained in Art. 17(7) however – The EC in QMV puts forward to the EP a candidate. This candidate is then elected by a majority of members.
        • If the candidate does not get majority votes in the EP, then a new candidate is ut forward within a month.
        • The President lays down guidelines for the Commission and appoints a vice-president.
          • The President can request the resignation of a Commissioner.
          • The President plays an important role in shaping overall Commission policy, in negotiating with the Council and the Parliament, and in determining the future direction of the EU.

(B) College of Commissioners

–(i) Size

  • One commissioner for each state? Should this not be the case.
    • Argument for the latter is that the Commission does not represent the MS’s interests.
    • Lisbon Treaty decided to slim down the Commission – until October 2014 there will be 1 member per MS. After this, 2/3 will be put in place – unless the European Council decides to alter this unanimously.
    • The composition must reflect the demographic and geographical range of all MS’s.
      • In a deal with Ireland, it looks as though a unanimous vote will take place. The status quo would remain.

–(ii) Appointment

  • Convention on the Future of Europe proposed that the President-elect of the Commission would choose Commissioners from a list of three names put forward by each member state and that these would be approved by the EP.
    • The Lisbon Treaty has retained greater MS influence however.
      • The College is then subject to a vote of approval by the EP.
        • However, the formal appointment is made by the EC, acting by QMV.
        • Commissioners are chosen on grounds of general competence and their independence must not be in doubt.

–(iii) Removal

  • Can be compulsorily retired if the person no longer fulfils the conditions for performance of the job, or for serious misconduct.
  • Decision is made by the ECJ on application by the Council.

–(iv) Decision-making

  • College operates in 4 different ways.
    • Meetings (weekly)
    • Written procedure – when all points have been already agreed.
    • Empowerment – where an individual commissioner is given the power to make a decision.
    • Delegation – used for routine business.

(C) Commission Bureaucracy

  • Four layers:
    • Commissioner with a portfolio for a certain area
    • Director General (heads up a DG)
      • Has a number of directorates
  • Head of Division or Unit
  • Proposals for legislation etc. come from within the relevant DG usually.
  • It is not uncommon for different DG’s involved with a measure to have different angles on it. The term ‘multi-organization’ has been used to describe the priorities of different parts of the administration.
  • Positions and promotions are based on merit. This is because national interests can sometimes overtake. As such, there is an informal quota regime.

(D) Powers of the Commission

  • Set out in Art. 17 TEU.
    • Shall promote the general interests of the Union. Ensure the application of treaties. Oversee the application of Union law under the CJEU. Execute budget.
      • Exception for CFSP.

–(i) Legislative Power

  • Has the right of legislative initiative (Art. 17(2)). Most have to pass by the EP, but it is essentially a ‘motor of integration’ for the EU.
  • Develops the overall legislative plan for any single year.
  • Develops general policy strategies.
    • Exemplified by the Commission’s White Paper on the Completion of the Internal Market, which shaped the SEA.
    • The Commission, under President Jacques Delors spearheaded the EMU.
    • Has capacity in certain limited areas, to enact EU norms without the formal involvement of any other EU institution.
    • The Commission also exercises delegated power – Art 290 TFEU.

–(ii) Administrative Power

  • Significant administrative responsibilities – reflected in Art. 17(1) TEU.

–(iii) Executive Power

  • Two important areas:
    • Role in establishment of the EU’s budget. – expenditure, particularly in relation to agricultural support.
    • External relations – per Nugent: (1) External trade relations (e.g. WTO and less formal e.g. USA and Japan directly); (2) External agreements; (3) Represents the EU at international conventions/organizations; (4) Acts as a key point of contact between EU and non-member states; (5) Entrusted with accession of states to the EU.

–(iv) Judicial Power

  • Possesses two kinds of judicial powers – foundation is Art.17(1):
    • (1) Brings action against member states when in breach of EU law. These are brought under Art. 258 TFEU. This is of course the last resort.
    • (2) Investigates and initial judge of Treaty violation, whether by private firms or member states.
      • Competition policy and state aids.

(E) Downfall of the Santer Commission and Subsequent Reform

  • Concern for some time regarding fraud and mismanagement. A Committed of Independent Experts was established under the auspices of the EP and Commission.
    • Concluded: “difficult to find anyone who has even the slightest sense of responsibility.”
    • Romano Prodi took over as President – Introduced a new Code of Conduct for Commissioners and set up the Task Force for Administrative Reform (TFRA).
      • TFRA produced a White Paper – concluded there was a need for concentration on core functions such a policy conception, political initiative and enforcing EU law.

 

(F) Role of the Commission

  • Always been the political force most committed to integration.
  • Some think its force is in decline after light touching on the Nice and Constitutional Treaties.

The Council of Ministers

(A) Composition

  • Art. 16(2) TEU – Consists of a representative of each member state at ministerial level, who is authorized to commit the government of that State.
  • Council meets when convened by the President.
    • Meetings divided into two parts: (1) deals with legislative acts; (2) deals with non-legislative acts
      • When it meets on (1), it must do so in public.
      • There are ten council configurations. – 352 Votes by QMV
        • General Affairs Council – deals with matters that affect more than one EU policy.
        • Foreign Affairs and Security Policy – chaired by the High Rep.
        • Economics and Finance Council – budget, EMU and financial markets.
        • Justice and Home Affairs.
        • The other councils deal with sectoral issues: Transport, telecommunications and energy, employment, social policy, health and consumer affairs, agriculture and fisheries, competitiveness, environment, education, youth culture and sport.
        • The Ministers responsible for such areas in their own country will attend the respecting configurations.

(B) Presidency of the Council

  • Presidency is in rotation and decided by qualified majority. There is a different presidency for each configuration.
    • NB: CFSP is chaired by the High-Rep.
    • Draft Decision in the Lisbon Treaty – ‘team system’ – presidency held by pre-established groups of three member states for 18 months. The groups are made up on a basis of equal rotation among the Member States, taking into account diversity and geographical balance.
    • The President has assumed greater power in recent years – how?
      • Strong central management became necessary to combat centrifugal tendencies in the Council.
      • Growing competency required further substantiated cooperation.
        • Greater leadership was required.
        • NB: Prior to Lisbon, the President also held the chair of the European Council.

(C) Committee of Permanent Representatives

  • Lisbon provides that the work of the Council is to be prepared by the Committee of Permanent Representatives (COREPER) and it should carry out the tasks assigned to it by the Council.
    • Staffed by senior national officials and operates at two levels.
      • COREPER II – more important and consists of permanent reps who are of ambassadorial rank. Deals with contentious matters. Also liaisons with national governments.
      • COREPER I – deputy permanent representatives responsible for issues such as the environment, social affairs and the internal market and transport.
      • Considers draft legislation that emanate from the Commission and helps set the agenda for Council meetings.
      • A large number of working groups feed into the council.

(D) Council Secretariat

  • In addition to the COREPER, the Council has its own General Secretariat, under the responsibility of the Secretary General.
    • This furnishes administrative functions to the Council and COREPER.
    • Become increasingly important, especially in relation to EU Foreign and Defence Policy, Treaty negotiation and legal drafting.

(E) Powers of the Council

  • Lisbon provides scant guidance on the powers of the Council –
    • Art. 16(1) TEU merely provides: “The Council shall, jointly with the EP, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the treaties.”
    • The Council exercises an important role in seven ways:
  1. Council has to vote its approval of nearly all Commission legislative initiatives before they become law.
  2. Council has become more proactive in the legislative process through the use of Art. 241 TFEU – this provides the Council by simply majority may request the Commission to undertake any studies which they feel is desirable.
  3. Council can delegate power to the Commission, enabling the latter to pass further regulations within a particular area.
  4. Complexity of EU decision making process has necessitated greater inter-institutional collaboration between the Commission, Parliament and Council.
  5. Plays a major role in the EU’s budget.
  6. Concludes agreements on behalf of the EU with third states or international organizations.
  7. Significant powers in relation to the CFSP.

(F) Role of the Council

  • Represents national interests.
  • Does not exist in harmony with the Commission, but is it not exactly at odds with it either.
  • The balance of power within the EU is dynamic and not static.
    • Some go on to say that with the SEA, as derived in the Council, it is a ‘unique blend of the intergovernmental and the supranational.’
    • Wallace and Renshaw: To view the Council as a victory of intergovernmentalism would be a misunderstanding. It cannot act alone – it is dependent on relationships with the other EU institutions. These relationships have changed since the 1990s – the EP has gained more power as co-legislator with the Council, the Commission has lost ground.

The European Council

(A) Composition

  • It has evolved over the years.
  • Governing provision is Art. 15 TEU.
    • Provide Union with impetus for development and define general political directions and priorities thereof. NO legislative functions.
    • Consist of the Heads of State or Government of the Member States.
    • Decisions are taken by consensus unless otherwise provided for.
    • Meetings normally held in Brussels.

(B) Presidency of the European Council

  • Prior to Lisbon, the MS that held the Presidency of the Council also chaired the EC for the same period.
    • Single hat’ view – there should be one President for the Union – this should connect with the locus of power and in that, the president of the Commission should hold this position. The presidency of the EC should continue to rotate on a six-monthly basis. The ‘real head’ of the Union would be the President of the Commission whose legitimacy would be increased by election.
    • Separate hats’ – There should be a President for the Commission and another for the European Council, and the executive power would be exercised by both. The Presidency of the EC would not rotate. It was felt that this would not work in an ever expanding EU.
      • The separate hats view prevailed.
        • Lisbon Treaty – EC Prsident elected by QMV for 2.5 years renewable once. EC should define general political directions and priorities of the EU; and gave the President of the EC increased powers.
          • Herman van Rompuy (current EC President) – former Belgian Prime Minister.

(C) Rationale

  • MS interestes are represented in the Council  – the EC came about as a result of disagreement between MS’s.
  • EC was due to the need for a focus of authority of the highest political level, in order that the general EU strategy could be planned, and that its response to broader world problems could be properly focused.

(D) Role

  • Plays a central role in shaping EU policy and establishing the parameters in which the other institutions operate.
  • Issues that concern the Council can be grouped as follows:
    • Development of the Union – Major Treaty changes preceded by an IGC.
    • Confirm important changes in the institutional structure of the EU – The final decision on the enlargement of the Parliament following German unification was taken by a summit of the European Council.
    • Can provide a focus for significant constitutional initiatives that affect the operation of the Union – agreements between the three major institutions will often be made or finalized at a summit meeting (Subsidiarity, Transparency etc.)
    • European Council will consider the state of the European Economy as a whole – Because there must be a growing convergence between national economic policies. Also because of the centrality of economic policies to the health of the EU.
    • Conflict Resolution – One of the rationales for its evolution.
    • Initiation/development of particular policy strategies – E.g. the Social Charter in 1989, drugs and terrorism policies.
    • Central to external relations – negotiations with the WTO for example.
    • Considers accession to the EU.

(E) Role of the European Council

  • It is an example of change.
  • Evolved from ad hoc meetings outside the letter of the Treaty to a more structures pattern of summits.
  • Central to the decision making process.
    • No important developments internally or externally occur without having been considered by the European Council. The concluding resolutions of not have the force of law. They nonetheless provide the framework in which the other institutions consider specific policy issues.
    • Galloway & Westlake – “… it is no exaggeration to say that, since 1975, most of the major political decisions of the European Community have been taken in the European Council.”
    • Relationships between the EC and the other institutions have also evolved.
      • The meetings were viewed with suspicion early on. Now, they are the catalyst for securing decisions on major initiatives.
      • KEY ISSUES in the post-Lisbon world will be the relationship between the President of the European Council and the President of the Commission, and the country that holds the Presidency of the Council for a six-month period.
        • The interplay will shape policies and priorities of the EU.
        • Argued that such an interplay will lead to intergovernmentalism.
          • However, elevating the President of the Commission to a ‘sole’ presidency of the EU would likely do more damage as the executive authority has traditionally always been split and in this respect, the Lisbon Treaty represents continuity with past practice.

 

High Representative of the Union for Foreign Affairs and Security Policy

(A) Powers

  • High Rep is not listed in Art. 13 TEU and is therefore NOT an EU institution in the formal sense of the term.
  • High Rep is appointed by the EC by QMV with the agreement of the Commission President.
    • Conducts the EU’s CFSP, takes part in the work of the EC, chairs the Foreign Affairs Council and is also vice-president of the Commission.

 

(B) Role of the High Representative

  • Argued that the ‘triple hats’ worn by the High Rep could lead to institutional schizophrenia, with the incumbent being subject to conflicting loyalties.
    • But, we should not necessarily be worried – it is a two way street. The decisions the High Rep makes will have an impact on policy, but conversely, the overall direction of the EC will have an impact on the decisions of the High Rep.

The European Parliament

  • The story is one of gradual transformation and evolution from a relatively powerless body in 1952 to the powerful institution it is today.
    • Under the ECSC, EEC and EURATOM – it was intended to exercise consultative and supervisory powers, but not to play any substantive legislative role.
    • The EP now exercises substantial powers of a legislative, budgetary and supervisory nature.
      • However, the problems of the EU’s democratic legitimacy have not necessarily been resolved.

 

(A) Composition and Functioning

  • Art. 14(2) TEU – composed of representative of the Union’s citizens. Not to exceed 750, plus the President. Representation shall be degressively proportional, with a min threshold of six per MS. No MS shall have more than 96.
    • There have been criticisms over the degressively proportional representation system.
    • Another concern is that the uniform electoral procedure, as required by Art. 233 TFEU has not yet been drawn up.
    • Decision – elected on the basis of proportional representation generally (except UK = FPTP) – elections are by direct universal suffrage and are secret and free.
    • Parliament’s term is 5 years.
    • MEPs sit according to political grouping rather than nationality.
      • Currently seven groups: European People’s Party, Party of European Socialists, Group of the Alliance of Liberals and Democrats for Europe – these are the three biggest.
      • Art. 224 TFEU deals with the parties – provides that the EP and Council should lay down the regulations governing political parties at EU level and in particular, rules regarding their funding.
      • Parliament elects its own President, along with 14 vice-presidents – for 2.5 year terms.
        • Collectively, these from the Bureau of Parliament. This is a regulatory body responsible for the Parliament’s budget and admin, organizational and staff matters.
        • EP has twenty standing committees. These are vital since they consider legislative proposals from the Commission.
        • Art. 232 TFEU states that the Parliament is to adopt its own rules of procedure and Art. 223(2) TFEU requires it to lay down the regulations and general conditions governing the performance of its Members’ duties.

(B) Powers

–(i) Legislative Power

  • SEA introduced the cooperation procedure.
  • Maastricht introduced the co-decision procedure.
    • This made the EP a co-equal partner, or something close, with the Council in areas where it applied.
    • Renamed the ordinary legislative procedure in the Lisbon Treaty – and its remit was extended to 40 further areas.
    • The co-equal status is affirmed in Art. 14(1) TEU.
    • Certain areas require assent from the EP – also
    • EP now has a veto power over delegated acts, but the reality of this is uncertain – time will tell.
    • These changes have brought the EP into the fore of the EU institutions. Its role has been further enhanced by regular meetings with the Council, Commission and EP inter-institutional conferences.
      • ECJ held that the EP could be a plaintiff in annulment proceedings, although only where its prerogatives had been infringed.
      • The Court also famously included the EP as a respondent in annulment proceedings even though only the Commission and Council were mentioned under the relevant article in that time.
      • The EP’s role in relation to CFSP is smaller.

–(ii) Dismissal and Appointment Power

  • Commission’s accountability to the Parliament has been strengthened.
    • Approval en bloc.
    • The EP has always had the power to censure (motion of censure) the Commission and require its resignation.
    • Since Maastricht, the EP can also participate in the Commission’s appointment.
      • Art. 14(1) TEU must be read with Art. 17(7) TEU which provides for European Council influence over the candidate put before the EP.

–(iii) Supervisory Power

  • The EP monitors the activities of the other institutions, principally the Commission, through the asking of questions and the establishment of committees of enquiry.
    • Permitted in Art. 226 and 227 TFEU.
    • Maastricht provided for the appointment by the Parliament of an Ombudsman.
      • The Ombudsman would receive complaints regarding ‘instances of maladminstration’ as well as to ‘conduct inquiries’ either on its own initiative or on the basis of complaints received.
      • The EU Courts are restricted from the Ombudsman’s scope.
        • The Ombudsman is empowered, under Art. 228 TFEU to conduct own-initiative enquiries.
        • The Ombudsman has been a success and the office is seen as a source of administrative norms rather than simply a mediation facility for individual complaints.
          • Reference to the Ombudsman is made in Art. 43 of the EU Charter of Fundamental Rights.
            • Ombudsman uses Art. 41 (right to good administration) a lot.
            • The annual reports from the Ombudsman contain a wealth of information about the complaints received and their resolution.

–(iv) Budgetary Power

  • The EP has important powers in relation to the budget. – Commission write it.
  • Outlined in Art. 314 TFEU.

(C) Role of the European Parliament

  • The EP has assumed a much more powerful role as of late, since the SEA. Its legislative, supervisory and budgetary powers have increased, as have its power over the appointment of the Commission.
  • Its influence is seen most over primary legislation.
  • It is an independent institution whose members are not bound to support a particular governing majority and which does not have a permanent majority coalition.per R. Corbett.
  • Why has the EP been allowed this power surge?
    • Auel and Rittberger argue that the driving force was the need to alleviate the legitimacy deficit.
      • Input legitimacy = legitimate because they reflect the ‘will of the people.’
      • Output legitimacy = political choices carefully made promote welfare.
        • The transfer of competence from MS to EU created an asymmetry between input and output legitimacy, and hence, a deficit since the normal mechanism fro input legitimacy was through national parliaments.
        • One response was to heighten intergovernmentalism – another was to increase the powers of the EP – for obvious reasons, the latter succeeded. 
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