Topic 2

Chapter 2 – The Institutions


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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