The ‘constitution’ of the European Union
Every social organisation has a constitution. A constitution is the means by which the structure of a political system is defined, i.e. the relationship of the various parts to each other and to the whole is specified, the common objectives are defined and the rules for making binding decisions are laid down. The constitution of the EU, as an association of states to which quite specific tasks and functions have been allotted, must thus be able to answer the same questions as the constitution of a state.
In the Member States the body politic is shaped by two overriding principles: the rule of law and democracy. All the activities of the Union, if they are to be true to the fundamental requirements of law and democracy, must therefore have both legal and democratic legitimacy: the elements on which it is founded, its structure, its powers, the way it operates, the position of the Member States and their institutions, and the position of the citizen.
Following the failure of the Treaty establishing a Constitution for Europe of 29 October 2004, the EU ‘constitution’ is still not laid down in a comprehensive constitutional document, as it is in most of the constitutions of its Member States, but arises from the totality of rules and fundamental values by which those in authority perceive themselves to be bound. These rules are to be found partly in the European Treaties or in the legal instruments produced by the Union institutions, but they also rest partly on custom.
THE LEGAL NATURE OF THE EU
Any consideration of the legal nature of the EU must start by looking at its characteristic features. Although the EU’s legal nature was set out in two precedent-setting judgments of the Court of Justice in 1963 and 1964 relating to the then European Economic Community, the judgments are still valid for the European Union in its current form.
VAN GEND & LOOS
In this legal dispute, the Dutch transport company Van Gend & Loos filed an action against the Netherlands customs authorities for imposing an import duty on a chemical product from Germany which was higher than duties on earlier imports. The company considered this an infringement of Article 12 of the EEC Treaty, which prohibits the introduction of new import duties or any increase in existing customs duties between the Member States. The court in the Netherlands then suspended the proceedings and referred the matter to the Court of Justice for clarification as regards the scope and legal implications of the abovementioned article of the Treaty establishing the EC.
The Court of Justice used this case as an opportunity to set out a number of observations of a fundamental nature concerning the legal nature of the EU. In its judgment, the Court stated that:
‘The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. This view is confirmed by the preamble to the Treaty, which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens ... The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.’
COSTA v ENEL
Just a year later, the Costa v ENEL case gave the Court of Justice an opportunity to set out its position in more detail. The facts of this case were as follows. In 1962, Italy nationalised the production and distribution of electricity and transferred the assets of the electricity undertakings to the national electricity board, ENEL. As a shareholder of Edison Volt, one of the companies that was nationalised, Mr Costa considered that he had been deprived of his dividend and consequently refused to pay an electricity bill for ITL 1 926. In proceedings before the arbitration court in Milan, one of the arguments put forward by Mr Costa to justify his conduct was that the nationalising act infringed a number of provisions of the EEC Treaty. In order to be able to assess Mr Costa’s submissions in his defence, the court requested the Court of Justice to interpret various aspects of the EEC Treaty. In its judgment, the Court of Justice stated the following in relation to the legal nature of the EEC:
‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which ... became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights ... and have thus created a body of law which binds both their nationals and themselves.’
On the basis of its detailed observations, the Court reached the following conclusion:
‘It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.’
In the light of these judgments, the elements which together typically characterise the special legal nature of the EU are:
• the institutional set-up, which ensures that action by the EU is also characterised by the overall European interest, i.e. is reflected in or influenced by the Union interest as laid down in the objectives;
• the transfer of powers to the Union institutions to a greater degree than in other international organisations, and extending to areas in which States normally retain their sovereign rights;
• the establishment of its own legal order which is independent of the Member States’ legal orders;
• the direct applicability of Union law, which makes provisions of Union law fully and uniformly applicable in all Member States, and bestows rights and imposes obligations on both the Member States and their citizens;
• the primacy of Union law, which ensures that Union law may not be revoked or amended by national law and that it takes precedence over national law if the two conflict.
The EU is thus an autonomous entity with its own sovereign rights and a legal order independent of the Member States, to which both the Member States themselves and their nationals are subject within the EU’s areas of competence.
The EU has, by its very nature, certain features in common with the usual kind of international organisation or federal-type structure, as well as a number of differences.
The EU is itself not yet a ‘finished product’; it is in the process of evolving and the form it finally takes still cannot be predicted.
The only feature that the EU has in common with the traditional international organisations is that it too came into being as a result of an international treaty. However, the EU has already moved a long way from these beginnings. This is because, although the Treaties establishing the EU were based on international treaties, they led to the creation of an independent Union with its own sovereign rights and responsibilities. The Member States have ceded some of their sovereign powers to this Union. In addition, the tasks which have been allotted to the EU are very different from those of other international organisations. While the latter mainly have clearly defined tasks of a technical nature, the EU has areas of responsibility which together constitute essential attributes of statehood.
Through these differences between the EU and the traditional type of international organisation, the EU is in the process of acquiring a status similar to that of an individual state. In particular, the Member States’ partial surrender of sovereign rights was taken as a sign that the EU was already structured along the lines of a federal state. However, this view fails to take into account that the EU institutions only have powers in certain areas to pursue the objectives specified in the Treaties. This means that they are not free to choose their objectives in the same way as a sovereign state; nor are they in a position to meet the challenges facing modern states today. The EU has neither the comprehensive jurisdiction enjoyed by sovereign states nor the powers to establish new areas of responsibility (‘jurisdiction over jurisdiction’).
The EU is therefore neither an international organisation in the usual sense nor an association of states, but rather an autonomous entity somewhere in between the two. In legal circles, the term ‘supranational organisation’ is now used.
THE TASKS OF THE EU
The list of tasks entrusted to the EU strongly resembles the constitutional order of a state. These are not the narrowly circumscribed technical tasks commonly assumed by international organisations, but fields of competence which, taken as a whole, form essential attributes of statehood.
The list of tasks entrusted to the EU is very wide-ranging, covering economic, social and political action.
The economic tasks are centred around establishing a common market that unites the national markets of the Member States and on which all goods and services can be offered and sold on the same conditions as on an internal market and to which all Union citizens have the same, free access.
The plan to create a common market has essentially been fulfilled through the programme aimed at completion of the internal market by 1992, which was initiated by the then President of the Commission, Jacques Delors, and approved by the Heads of State or Government, with the Union institutions succeeding in laying down a legal framework for a properly functioning single market. This framework has now been fleshed out very largely by national transposition measures, with the result that the single market has already become a reality. This single market also makes itself felt in everyday life, especially when travelling within the EU, where identity checks at national borders have long since been discontinued.
The internal market is backed up by the economic and monetary union.
The EU’s task in economic policy is not, however, to lay down and operate a European economic policy, but to coordinate the national economic policies so that the policy decisions of one or more Member States do not have negative repercussions for the operation of the single market. To this end, a Stability and Growth Pact was adopted to give Member States the detailed criteria which their decisions on budgetary policy have to meet. If they fail to do this, the European Commission can issue warnings and, in cases of continuing excessive budgetary deficit, the Council can also impose penalties.
The EU’s task in monetary policy was and is to introduce a single currency in the EU and to control monetary issues centrally. Some success has already been achieved in this area. On 1 January 1999, the euro was introduced as the single European currency in the Member States which had already met the convergence criteria established for that purpose. These were Belgium, Germany, Ireland, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal and Finland. On 1 January 2002 the national currencies of these States were replaced with euro bank notes and coins. Since then, their day-to-day payments and financial transactions have been made in only one currency — the euro. Greece and Sweden had, initially, failed to meet the convergence criteria. Greece was included on 1 January 2001. Sweden, which could not meet the criteria principally due to the fact that it did not participate in the exchange rate mechanism of the European Monetary System (the ‘waiting room’ for the euro), is subject to a derogation in that the Commission and the European Central Bank must present convergence reports for Sweden at least every two years, in which they can recommend Sweden’s participation to the Council. If such a recommendation is made and approved by the Council, Sweden will not be able to refuse to participate. However, there is currently little support amongst the Swedish population for joining the euro area. In a 2003 referendum, 55.9 % were against the introduction of the euro. In a survey in December 2005, 49 % were still against the euro, while 36 % were in favour. The situation is different with regard to Denmark and the United Kingdom. These Member States secured an opt-out, which allows them to decide if and when the procedure for verifying compliance with the criteria for joining the single currency is initiated. The new Member States are also obliged to adopt the euro as their national currency as soon as they meet the convergence criteria. None of the new Member States has an opt-out clause, and most of the new Member States wish to introduce the euro as soon as possible. Slovenia (1 January 2007), Cyprus (1 January 2008), Malta (1 January 2008) and Slovakia (1 January 2009) have already achieved this, extending the ‘euro area’ — countries which have the euro as their currency — to a current total of 16 Member States.
6 December 1977, Brussels.
Demonstration in favour of elections based on universal suffrage for the European Parliament and of the single currency during the European Council meeting on 5 and 6 December 1977.
In addition to the area of economic and monetary policy, there are many other economic policy areas in which the EU has responsibilities. These include in particular agricultural and fisheries policy, transport policy, consumer policy, structural and cohesion policy, research and development policy, space policy, environment policy, health policy, trade policy and energy policy.
In social policy the EU has the task of ensuring that the benefits of economic integration are not only felt by those active in the economy, but also shape the social dimension of the single market. One of the starting points for this has been the introduction of a social security system for migrant workers. Under this system, workers who have worked in more than one Member State, and therefore fallen under different social insurance schemes, will not suffer a disadvantage with regard to their social security (old-age pension, invalidity pension, health care, family benefits, unemployment benefits). A further priority task of social policy, in view of the unemployment situation in the EU, which has been a source of concern for a number of years, has been the need to devise a European employment strategy. This calls on the Member States and the EU to develop a strategy for employment and particularly to promote a skilled, trained and adaptable workforce, in addition to which labour markets should also be made adaptable to economic change. Employment promotion is regarded as a matter of common concern, and requires Member States to coordinate their national measures within the Council. The EU will contribute to a high level of employment by encouraging cooperation between Member States and, if necessary, complementing their action while respecting their competences.
With regard to the actual area of politics, the EU has tasks in the areas of Union citizenship, policy on judicial cooperation in criminal matters and common foreign and security policy. Union citizenship has further strengthened the rights and interests of nationals of the Member States within the EU. Citizens enjoy the right to move freely within the Union (Article 21 TFEU), the right to vote and stand as a candidate in local elections (Article 22 TFEU), entitlement to protection by the diplomatic and consular authorities of any Member State (Article 23 TFEU), the right to petition the European Parliament (Article 24 TFEU) and, in the context of the general ban on discrimination, the right to be treated by all Member States in the same way as they treat their own nationals (Article 20(2) in conjunction with Article 18 TFEU). With respect to common foreign and security policy, the EU has, in particular, the tasks of:
• safeguarding the commonly held values, fundamental interests and independence of the EU;
• strengthening the security of the EU and its Member States;
• securing world peace and increasing international security;
• promoting international cooperation;
• promoting democracy and the rule of law, and safeguarding human rights and basic freedoms;
• establishing a common defence.
Since the EU is not an individual state, these tasks can only be carried out step by step. Traditionally, foreign and especially security policy are areas in which the Member States are particularly keen to retain their own (national) sovereignty. Another reason why common interests in this area are difficult to define is that only France and the United Kingdom have nuclear weapons. Another problem is that some Member States are not in NATO or the WEU. Most ‘common foreign and security policy’ decisions are therefore still currently taken on the basis of cooperation between states. In the meantime, however, a range of tools has emerged in its own right, thus giving cooperation between states a firm legal framework.
In the area of judicial cooperation in criminal matters, the main role of the EU is to carry out tasks that are in the interests of Europe as a whole. These include, in particular, combating organised crime, preventing trafficking in human beings and prosecuting criminal offences. Since organised crime can no longer be effectively countered at national level, a joint response at EU level is needed. Two very positive steps have already been taken with the directive on money-laundering and the creation of a European police authority, Europol, which has been operational since 1998 (Article 88 TFEU). This cooperation is also concerned with facilitating and accelerating cooperation in relation to proceedings and the enforcement of decisions, facilitating extradition between Member States, establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism, trafficking in human beings and the sexual exploitation of women and children, illicit drug trafficking and illicit arms trafficking, money-laundering and corruption (Article 83 TFEU). One of the most significant advances in EU judicial cooperation was the creation of Eurojust in April 2003 (Article 85 TFEU). Based in The Hague, Eurojust is a team of magistrates and prosecutors from all EU countries. Its job is to help coordinate the investigation and prosecution of serious cross-border crimes. From Eurojust the Council may establish a European Public Prosecutor’s Office in order to combat crimes affecting the financial interests of the Union (Article 86 TFEU). Further progress has been made with the European arrest warrant, which has been valid throughout the EU since January 2004. The warrant can be issued for anyone accused of an offence for which the minimum penalty is more than one year in prison. The European arrest warrant is designed to replace lengthy extradition procedures.
THE POWERS OF THE EU
The Treaties establishing the EU do not confer on the Union institutions any general power to take all measures necessary to achieve the objectives of the Treaty, but lay down in each chapter the extent of the powers to act. As a basic principle, the EU and its institutions do not have the power to decide on their legal basis and competencies; the principle of specific conferment of powers (Article 2 TFEU) continues to apply. This method has been chosen by the Member States in order to ensure that the surrender of their own powers can be more easily monitored and controlled.
The range of matters covered by the specific conferment of powers varies according to the nature of the tasks allotted to the EU. Competences which have not been transferred to the EU remain in the exclusive power of the Member States. The EU Treaty explicitly states that matters of national security stay under the exclusive authority of the Member States.
This naturally begs the question of where the dividing line is between EU competences and those of the Member States. This dividing line is drawn on the basis of three categories of competence:
• exclusive competence of the EU (Article 3 TFEU) in areas where it can be assumed that a measure at EU level will be more effective than a measure in any Member State that is not coordinated. These areas are clearly set out and comprise the customs union, the establishing of the competition rules necessary for the functioning of the internal market, the monetary policy of the euro States, the common commercial policy and parts of the common fisheries policy. In these policy areas only the European Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the European Union or for the implementation of Union acts (Article 2(1) TFEU);
• shared competence between the EU and the Member States (Article 4 TFEU) in areas where action at European level will add value over action by Member States. There is shared competence for internal market rules, economic, social and territorial cohesion, agriculture and fisheries, environment, transport, trans-European networks, energy supply and the area of freedom, security and justice, and also for common safety concerns in public health matters, research and technological development, space, development cooperation and humanitarian aid. In all these areas the EU can exercise competence first, but only with regard to matters laid down in the relevant Union instrument, and not to the entire policy area. The Member States exercise their competence to the extent that the EU has not exercised, or has decided to cease exercising, its competence (Article 2(2) TFEU). The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to respect the principles of subsidiarity and proportionality. The Council may, on the initiative of one or more of its members, request that the Commission submit proposals for repealing a legislative act;
• competence to carry out supporting action (Article 6 TFEU). The EU’s competence to carry out supporting action is limited to coordinating or providing complementary action for the action of the Member States; the EU cannot harmonise national law in the areas concerned (Article 2(5) TFEU). Responsibility for drafting legislation therefore continues to lie with the Member States, which thus have considerable freedom to act. The areas covered by this category of competence are protection and improvement of human health, industry, culture, tourism, education, youth, sport and vocational training, civil protection and administrative cooperation. In the areas of employment and economic policy, the Member States explicitly acknowledge the need to coordinate national measures within the EU.
It should be noted that the EU’s competences in the area of coordination of economic and employment policy and in the area of common foreign and security policy do not fall under any of these three categories, and therefore do not belong to this set of competences. However, a declaration is made stating that the EU’s common foreign and security policy will not affect the Member States’ competence for their own foreign policy and national standing in the world. In addition to these special powers to act, the Union Treaties also confer on the institutions a power to act when it is essential for the operation of the single market or for ensuring undistorted competition (see Article 352 TFEU — dispositive powers or flexibility clause). These articles do not, however, confer on the institutions any general power enabling them to carry out tasks which lie outside the objectives laid down in the Treaties, and the Union institutions cannot extend their powers to the detriment of those of the Member States. In practice, the possibilities afforded by this power were used very often in the past, since the EU was over time faced repeatedly with new tasks that were not foreseen at the time the founding Treaties were concluded, and for which accordingly no appropriate powers were conferred in the Treaties. Examples are the protection of the environment and of consumers or the establishment of the European Regional Development Fund as a means of closing the gap between the developed and underdeveloped regions of the EU. Now, however, specific jurisdiction has been given in the abovementioned fields. These specific provisions have meant that the practical importance of the dispositive powers has very much declined.
The exercise of these powers requires the approval of the European Parliament. Finally, there are further powers to take such measures as are indispensable for the effective and meaningful implementation of powers that have already been expressly conferred (implied powers). These powers have acquired a special significance in the conduct of external relations. They enable the EU to assume obligations towards non-member countries or other international organisations in fields covered by the list of tasks entrusted to the EU. An outstanding example is provided by the Kramer case ruled on by the Court of Justice. This case concerned the EU’s capacity to cooperate with international organisations in fixing fishing quotas and, where considered appropriate, to assume obligations on the matter under international law. Since there was no specific provision laid down in the Treaty, the Court inferred the necessary external competence of the EU from its internal competence for fisheries policy under the common agricultural policy.
However, in the exercise of these powers, the EU is governed by the subsidiarity principle, taken over from Roman Catholic social doctrine, which has acquired virtually constitutional status through being embodied in the EU Treaty (Article 5(3)). There are two facets to it: the affirmative statement that the EU must act where the objectives to be pursued can be better attained at the Union level, which enhances its powers; and the negative statement that it must not act where objectives can be satisfactorily attained by the Member States acting individually, which constrains them. What this means in practice is that all Union institutions, but especially the Commission, must always demonstrate that there is a real need for common rules and common action. To paraphrase Montesquieu, when it is not necessary for the EU to take action, it is necessary that it should take none. If the need for Union rules is demonstrated, the next question that arises concerns the intensity and the form that they should take. The answer flows from the principle of proportionality that has entered Union law through the decisions of the Court of Justice of the European Union, and is established in the EU Treaty in conjunction with the competence provisions (Article 5(4)). It means that the need for the specific legal instrument must be thoroughly assessed to see whether there is a less constraining means of achieving the same result. The main conclusion to be reached in general terms is that framework legislation, minimum standards and mutual recognition of the Member States’ existing standards should always be preferred to excessively detailed legal provisions.
National parliaments can also now check compliance with the principles of subsidiarity and proportionality. For this purpose, an early warning system has been introduced, allowing national parliaments to issue a reasoned position within eight weeks following transmission of the legislative proposal, setting out why the legislative proposal in question does not meet the subsidiarity and proportionality requirements. If this reasoned position is supported by at least a third of the votes allocated to the national parliaments (where each national parliament has two votes, or, in the case of chamber systems, one vote per chamber), the legislative proposal must be reviewed again by the institution that issued it (usually the Commission). Following this review, the proposal can be retained, amended or withdrawn. If the European Commission decides to retain the draft, it must issue a reasoned opinion, stating why it considers the draft to follow the subsidiarity principle. This reasoned opinion is sent to the EU legislator together with the reasoned opinions of the national parliaments so that they can be taken into account in the legislative procedure. If, by a 55 % majority of the Members of the Council of the EU or by a majority of the votes cast in the European Parliament, the EU legislator is of the opinion that the proposal does not comply with the subsidiarity principle, the legislative proposal is not examined any further.
THE INSTITUTIONS OF THE EU
Article 13 of the TEU (institutional framework)
1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.
The Union’s institutions shall be:
— the European Parliament,
— the European Council,
— the Council,
— the European Commission (hereinafter referred to as ‘the Commission’),
— the Court of Justice of the European Union,
— the European Central Bank,
— the Court of Auditors.
2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practise mutual sincere cooperation.
3. The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.
4. The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.
OVERVIEW OF THE EU INSTITUTIONS, ACCORDING TO THE TFEU
|MEMBER STATE||VOTES IN THE COUNCIL||SEATS IN THE EUROPEAN PARLIAMENT|
Another question arising in connection with the constitution of the European Union is that of its organisation. What are the institutions of the Union? Since the EU exercises functions normally reserved for States, does it have a government, a parliament, administrative authorities and courts like those with which we are familiar in the Member States? Action on the tasks assigned to the EU and the direction of the integration process was intentionally not left to Member States or to international cooperation. The EU has an institutional system that equips it to give new stimuli and objectives to the unification of Europe and to create a body of law that is uniformly devised and binding in all the Member States in the matters falling within its responsibility.
The main players in the EU institutional system are the EU institutions — the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank and Court of Auditors. The ancillary bodies in the institutional system of the EU are the European Investment Bank, the European Economic and Social Committee and the Committee of the Regions.
The European Parliament (Article 14 TEU)
The European Parliament represents the peoples of the EU Member States. It is an amalgamation of the ECSC Joint Assembly, the EEC Assembly and the Euratom Assembly, which were combined to form an ‘assembly’ under the 1957 Convention on Certain Institutions Common to the European Communities (‘first merger Treaty’). The name was not officially changed to ‘European Parliament’ until the EC Treaty was amended by the Treaty on European Union, although this step merely reflected what was already common usage dating back to the Assembly’s own change of its name to ‘European Parliament’ in 1958.
Composition and election
Since the entry into force of the Lisbon Treaty on 1 December 2009, the European Parliament has had 754 seats. This exceeds the maximum of 751 Members laid down in the TEU (Article 14(2)), but must be accepted for the 2009-14 legislative period, as the MEPs elected in June cannot lose their seats. However, the maximum number of Members must be adhered to at the next elections in 2014. These are allocated to the Member States so that although each Member from a highly populated Member State represents more citizens than every Member from a State with a low population, no State with a lower population has more seats than a State with a higher population. As a general rule, the minimum number of seats per Member State is six, and the maximum 96, but, owing to the late entry into force of the Lisbon Treaty, an exception has been made for Germany in the 2009-14 legislative period, permitting it to continue to have 99 Members (MEPs elected in June 2009 cannot lose their seats because of the entry into force of the Lisbon Treaty) .
The exact composition has yet to be determined by the Council. This should have been done in time for the direct elections to the European Parliament in June 2009. However, since the Lisbon Treaty did not enter into force before the elections in June 2009, the new rules on the composition of the European Parliament could not be applied to the 2009-14 legislative period. Instead, the distribution of seats resulting from the accession of Bulgaria and Romania applied for these elections to the European Parliament. Upon the entry into force of the Lisbon Treaty on 1 December 2009, the number of Members rose by 18 to 754, with the new Members coming from 12 different Member States.
The composition of the European Parliament is shown in graphic form below; this is the situation in the current 2009-14 legislative period. The changes brought about by the Lisbon Treaty are indicated.
5 Quaestors (advisory)
5 Quaestors (advisory)
The President, Vice-Presidents and Quaestors make up the Bureau, which is elected by Parliament for terms of two and a half years. Another body, the Conference of Presidents, also includes the chairs of the political groups. It is responsible for the organisation of Parliament’s work, and relations with the other EU institutions and with non-Union institutions.
PARLIAMENT PLENARY SESSION WITH 754 MEMBERS
|MEMBER STATE||SEATS IN THE EUROPEAN PARLIAMENT|
|FRANCE||72 + 2|
|UNITED KINGDOM||72 + 1|
|POLAND||50 + 1|
|NETHERLANDS||25 + 1|
|BULGARIA||17 + 1|
|MALTA||5 + 1|
Up to 1979, representatives in the European Parliament were selected from the membership of national parliaments and delegated by them to the European Parliament. The direct general election of MEPs by the peoples of the Member States was provided for in the Treaties themselves, but the first direct elections were not held until June 1979, a number of earlier initiatives having been fruitless. Elections are now held every five years, which corresponds to the length of a ‘legislative period’. Following decades of efforts, a uniform electoral procedure was finally introduced by the act concerning the election of representatives of the European Parliament by direct universal suffrage of 20 September 1976, as last amended by Council decision of 25 June and 23 September 2002 (known as the Direct Elections Act). Under this act, each Member State lays down its own election procedure, but must apply the same basic democratic rules: direct general election, proportional representation, free and secret ballots, minimum age (for the right to vote, this is 18 in all Member States except Austria, where the voting age was reduced to 16), renewable five-year term of office, incompatibilities (MEPs may not hold two offices at the same time, e.g. the office of judge, public prosecutor, Minister; they are also subject to the laws of their country, which may further limit their ability to hold more than one post or office), election date and equality between men and women. In some countries (Belgium, Greece and Luxembourg), voting is compulsory. In addition, a statute for Members of the European Parliament came into force on 14 July 2009. This new statute makes the terms and conditions of MEPs’ work more transparent and contains clear rules. It also introduces a uniform salary for all MEPs, which is paid from the EU budget.
Now that it is directly elected, Parliament enjoys democratic legitimacy and can truly claim to represent the citizens of the EU Member States. But the mere existence of a directly elected Parliament cannot satisfy the fundamental requirement of a democratic constitution, which is that all public authority must emanate from the people. That does not only mean that the decision-making process must be transparent and the decision-making institutions representative; parliamentary control is required, and Parliament must lend legitimacy to the Union institutions involved in the decision-making process. A great deal of progress has been made in this area over recent years. Not only have the rights of Parliament been continually extended, but the Treaty of Lisbon has explicitly established the obligation for EU action to adhere to the principle of representative democracy. As a result, all citizens of the Union are directly represented in Parliament and entitled to participate actively in the EU’s democratic life. The underlying objective of this is that decisions at EU level are taken as openly as possible and as closely as possible to the citizen. The political parties at EU level are to contribute to the shaping of a European identity and to articulate the will of the Union’s citizens. If there is any deficit to the current democratic model of the EU, it is that the European Parliament, unlike the true parliaments in a parliamentary democracy, does not elect a government that answers to it.
Article 10 of the TEU (representative democracy)
1. The functioning of the Union shall be founded on representative democracy.
2. Citizens are directly represented at Union level in the European Parliament.
Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.
3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.
4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.
However, the reason for this deficit is that, quite simply, no government in the normal sense exists at EU level. Instead, the functions analogous to government provided for in the Union Treaties are performed by the Council and the European Commission according to a form of division of labour. Nevertheless, the Treaty of Lisbon gave Parliament extensive powers in respect of appointments to the Commission, ranging from election by Parliament of the President of the Commission on the recommendation of the European Council, to Parliament’s vote of approval of the full college of Commissioners (‘right of investiture’). However, Parliament has no such influence over the membership of the Council, which is subject to parliamentary control only insofar as each of its members, as a national Minister, is answerable to the national parliament.
The role of the European Parliament in the EU’s legislative process has increased considerably. The raising of the co-decision procedure to the level of ordinary legislative procedure has, in effect, turned the European Parliament into a ‘co-legislator’ alongside the Council.
In the ordinary legislative procedure, Parliament can not only put forward amendments to legislation at various readings but also, within certain limits, get them accepted by the Council. Union legislation cannot be passed without agreement between the Council and the European Parliament.
Traditionally, Parliament has also played a major role in the budgetary procedure. The Treaty of Lisbon further extended the budgetary powers of the European Parliament, stipulating that Parliament must approve the multiannual financial plan and giving it co-decision powers on all expenditure (compulsory and non-compulsory expenditure are no longer distinguished).
Parliament has a right of assent to all major international agreements concerning an area covered by co-decision, and to the Accession Treaties concluded with new Member States laying down the conditions of admission.
The supervisory powers of the European Parliament have also grown significantly over time. They are exercised mainly through the fact that the Commission must answer to Parliament, defend its proposals before it and present it with an annual report on the activities of the EU for debate. Parliament can, by a two-thirds majority of its members, pass a motion of censure and thereby compel the Commission to resign as a body (Article 234 TFEU). Several such motions have been put before the Parliament, but none has yet been even near achieving the required majority. The resignation of the Santer Commission in 1999 was triggered by Parliament’s refusal to discharge it with regard to financial management; the motion of censure that had also been brought was unsuccessful, although only by small margin. Since in practice the Council also answers parliamentary questions, Parliament has the opportunity for direct political debate with two major institutions. These supervisory powers of Parliament have since been boosted. It is now also empowered to set up special Committees of Inquiry to look specifically at alleged cases of infringement of Community law or maladministration. A committee of this kind was used, for example, to look into the Commission’s responsibility for the delay in responding to ‘mad cow disease’ in the United Kingdom, which also represented a threat to human life and health. Also written into the Treaties is the right of any natural or legal person to address petitions to Parliament, which are then dealt with by a standing Committee on Petitions. Finally, Parliament has also made use of its power to appoint an Ombudsman to whom complaints about maladministration in the activities of Union institutions or bodies, with the exception of the Court of Justice, can be referred. The Ombudsman may conduct enquiries and must inform the institution or body concerned of such action, and must submit to Parliament a report on the outcome of his or her inquiries.
The basic rules governing the workings of Parliament are set out in its rules of procedure.
The MEPs form political groups. Given Parliament’s status as a Union institution, these are Union-wide party political groupings that cut across national lines.
Parliament holds its week-long plenary sessions in Strasbourg once a month, except in August. Additional sessions may also be held, particularly in connection with the budget. Shorter sessions (lasting one or two days) are held in Brussels. Lastly, emergency sessions may be convened to deal with current major issues, enabling Parliament to set out its position without delay on matters of importance (such as Union affairs, international affairs, violations of human rights). All plenary sessions are open to the public.
POLITICAL GROUPS IN THE EUROPEAN PARLIAMENT (2)
An absolute majority of the votes cast is usually sufficient for a decision to be taken. As Parliament increases in importance, however, ever stricter requirements are imposed with regard to MEPs’ attendance. A whole range of decisions may be adopted only if supported by an absolute majority of all Members of Parliament. Finally, any motion of censure against the European Commission must not only be backed by a majority of MEPs but also requires two thirds of the votes cast to be in favour.
PERMANENT COMMITTEES OF THE EUROPEAN PARLIAMENT
|Foreign Affairs Committee (with ‘Human Rights’ and ‘Security and Defence’ subcommittees)|
|International Trade Committee|
|Budgetary Control Committee|
|Economic and Monetary Affairs Committee|
|Employment and Social Affairs Committee|
|Environment, Public Health and Food Safety Committee|
|Industry, Research and Energy Committee|
|Internal Market and Consumer Protection Committee|
|Transport and Tourism Committee|
|Regional Development Committee|
|Agriculture and Rural Development Committee|
|Culture and Education Committee|
|Legal Affairs Committee|
|Civil Liberties, Justice and Home Affairs Committee|
|Constitutional Affairs Committee|
|Women’s Rights and Gender Equality Committee|
The European Council decided that Parliament’s seat was to be in Strasbourg and thus ended the provisional status of an arrangement that had been in place for 30 years. It had become established practice for plenary sessions to be held in Strasbourg and Brussels, meetings of the political groups and committees to be held in Brussels during weeks when Parliament was not sitting, and for Parliament’s Secretariat-General to be based in Luxembourg. The Council’s decision on the location of the seats of the institutions confirmed the validity of these arrangements, subject to the proviso that the 12 periods of monthly plenary sessions should be held in Strasbourg. The unsatisfactory result of this decision is that MEPs and some Parliament officials and employees must commute between Strasbourg, Brussels and Luxembourg — a very costly business.
The European Council (Article 15 TEU)
The European Council grew out of the summit conferences of EU Heads of State or Government. At the Paris Summit in December 1974 it was decided that meetings should be held three times a year and described as the European Council. Since then, the European Council has become an independent body of the European Union (Article 13 TEU).
The Heads of State or Government and the President of the European Commission meet at least twice every half a year in this context. When the questions under discussion so demand, the Members of the European Council can decide to seek the support of a Minister and, in the case of the President of the Commission, of one Member of the European Commission to assist them in their work (Article 15(3) TEU).
The Treaty of Lisbon created the office of President of the European Council 3. The President of the European Council, unlike the Presidency up to now, has a European mandate, not a national one, running for two and a half years on a full-time basis. The person appointed President should be an outstanding personality, selected by qualified-majority voting of the Members of the European Council. Re-election is possible once. The President’s tasks comprise the preparation and follow-up of European Council meetings and representing the EU at international summits in the area of foreign and security policy.
The actual function of the European Council itself is to establish the general policy guidelines for EU action. It does so by taking basic policy decisions and issuing instructions and guidelines to the Council or the European Commission. The European Council has in this way directed work on economic and monetary union, the European Monetary System, direct elections to Parliament and a number of accession issues.
The Council (Article 16 TEU)
Composition and Presidency
The Council is made up of representatives of the governments of the Member States. All 27 Member States send one representative — as a rule, though not necessarily, the departmental or junior minister responsible for the matters under consideration. It is important that these representatives are empowered to act with binding effect on their governments. The very fact that governments may be represented in various ways obviously means that there are no permanent members of the Council; instead, the representatives sitting in the Council meet in nine different configurations depending on the subjects under discussion. These are: (1) ‘General Affairs and External Relations Council’: as the ‘General Affairs Council’, this Council coordinates the work of the Council in its various configurations and, together with the President of the European Council and the European Commission, prepares the European Council meetings; as the ‘Foreign Affairs Council’, it handles the EU’s action abroad in accordance with the strategic guidelines of the European Council and ensures that the EU’s action is consistent and coherent. The ‘General Affairs and External Relations Council’ is made up of the Foreign Ministers; its general affairs meetings are chaired by the ruling Presidency, and those on foreign affairs are chaired by the High Representative of the Union for Foreign Affairs and Security Policy. There are eight further Council formations attended by the Ministers from the Member States responsible for the areas concerned: (2) ‘Economic and Financial Affairs’ (commonly known as the Ecofin Council), (3) ‘Cooperation in the fields of Justice and Home Affairs’, (4) ‘Employment, Social Policy, Health and Consumer Affairs’, (5) ‘Competitiveness’, (6) ‘Transport, Telecommunications and Energy’, (7) ‘Agriculture and Fisheries’, (8) ‘Environment’ and (9) ‘Education, Youth and Culture’.
The Presidency of the Council — with the exception of the Council of Foreign Ministers, which is chaired by the High Representative of the Union for Foreign Affairs and Security Policy — is held by each Member State in turn for six months. The order in which the office of President is held is decided unanimously by the Council. The Presidency changes hands on 1 January and 1 July each year (2008: Slovenia and France; 2009: the Czech Republic and Sweden; 2010: Spain and Belgium; 2011: Hungary and Poland; 2012: Denmark and Cyprus; 2013: Ireland and Lithuania, etc.). Given this fairly rapid ‘turnover’, each Presidency bases its action on a work programme agreed with the next two Presidencies and therefore valid for a period of 18 months (‘team Presidency’). The Presidency is mainly responsible for overall coordination of the work of the Council and the committees providing it with input. It is also important in political terms in that the Member State holding the EU Presidency enjoys an enhanced role on the world stage, and small Member States in particular are thus given an opportunity to rub shoulders with the ‘major players’ and make their mark in European politics.
20 July 1979, Strasbourg.
Simone Veil becomes the President of the first European Parliament, elected by universal suffrage.
The seat of the Council is in Brussels.
The top priority of the Council is legislation, which it carries out together with Parliament in the co-decision process. The Council is also responsible for ensuring coordination of the economic policies of the Member States. It also establishes the budget on the basis of a preliminary draft from the Commission, although this must still be approved by Parliament. In addition, it issues a recommendation to Parliament on giving discharge to the Commission in respect of the implementation of the budget, and is responsible for appointing the members of the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions. The Council is also is responsible for concluding agreements between the EU and non-member countries or international organisations.
The Council’s working procedures are set out in detail in its rules of procedure. In practice, the Council’s activities are basically made up of three stages, as follows.
Preparation for Council meetings
Preparatory work for Council meetings is carried out by two permanent bodies within its organisational structure: the Permanent Representatives Committee and the General Secretariat.
The Permanent Representatives Committee, which is referred to as Coreper, a contraction of its French title Comité des représentants permanents, prepares the ground for the Council’s work and performs the tasks assigned to it by the Council. To enable it to carry out all these tasks, it is divided up into Coreper I (comprising the Deputy Permanent Representatives and primarily responsible for preparatory work on more technical matters dealt with by the various Councils) and Coreper II (comprising the Permanent Representatives themselves and basically responsible for all policy matters). Agriculture is the one area not subject to this division of tasks; a Special Committee on Agriculture (SCA, also known by its French abbreviation CSA — Comité spécial de l’Agriculture) was set up in 1960 and assumed Coreper’s tasks on agricultural matters.
Preparations for Council meetings by Coreper and the SCA are of two kinds. Firstly, efforts are made to reach agreement at committee level, in connection with which the committees can draw on the assistance of around 100 permanent sector-specific working parties within the Council. They may also call on the services of ‘ad hoc groups’, which are assigned to deal with a particular problem within a specified period. Secondly, preparatory work must ensure that the issues to be discussed and decided on at Council meetings have been worked out in advance, and that the Council members are properly briefed. These dual approaches are reflected in the agenda of meetings: issues on which it was possible to reach agreement are referred to as ‘A items’ and those questions which are undecided and need to be discussed further are known as ‘B items’.
The General Secretariat provides administrative assistance to the Council (and also to Coreper and the SCA). In particular, it handles the technical side of preparations for meetings of the Council, is in charge of providing interpretation facilities (the representatives of the Member States speak in their own language), ensures that any required translations are provided, provides legal advice to the Council and the committees, and administers the Council’s budget.
Meetings of the Council
Meetings of the Council are convened by its President (the representative of the Member State holding the Presidency of the Council or the High Representative of the Union for Foreign Affairs and Security Policy) on his or her own initiative, at the request of one of its members or at the request of the European Commission. The President draws up a provisional agenda for each meeting, consisting of a Part A and a Part B.
The Council only discusses and reaches decisions on documents and drafts which are available in the 23 official languages (Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish). If a matter is urgent, this rule may be dispensed with by unanimous agreement. This also applies to proposals for amendments tabled and discussed in the course of a meeting.
Meetings at which the Council discusses or votes on legislative proposals are open to the public. In practice, this means that the meetings are transmitted to rooms with a live audiovisual feed in the Council building.
It is in the Council that the individual interests of the Member States and the Union interest are balanced. Even though the Member States primarily defend their own interests in the Council, its members are at the same time obliged to take into account the objectives and needs of the Union as a whole. The Council is a Union institution and not an Intergovernmental Conference. Consequently it is not the lowest common denominator between the Member States that is sought in the Council’s deliberations, but rather the right balance between the Union’s and the Member States’ interests.
Under the EU Treaties, majority voting is applied in the Council — as a general rule, a qualified majority is sufficient (Article 16(3) TEU). A simple majority, where each Council member has one vote, is applied only in individual cases and in less sensitive areas. (A simple majority is therefore currently achieved with 14 votes).
The methods for calculating the qualified majority will change in various stages.
Up until 1 November 2014, the weighted voting system introduced by the Treaty of Nice and giving large Member States more influence will be used. Under this system, a qualified majority is achieved when there is a majority of Member States with at least 255 votes out of 345, although one Member State can also demand that these Member States represent at least 62 % of the EU population.
Since 1 January 2007 the number of votes each Member State can cast has been as follows.
WEIGHTING OF VOTES
On 1 November 2014 the new double majority system comes into force, under which a qualified majority is achieved when at least 55 % of the Member States representing 65 % of the EU population vote for a legislative proposal. To prevent less populous Member States from blocking the adoption of a decision, a blocking minority must consist of at least four Member States, and, if this number is not achieved, a qualified majority is deemed achieved even if the population criterion is not met. The system is complemented by a mechanism very similar to the ‘Ioannina compromise’: if a blocking minority is not achieved, the decision-making process can be suspended. In this case, the Council does not proceed with the vote, but continues negotiations for a reasonable period of time, if requested by Members of the Council representing at least 75 % of the population or at least 75 % of the number of Member States required for a blocking minority.
From 1 April 2017 the same mechanism will apply, but the percentages for the establishment of a blocking minority will change to at least 55 % of the population or at least 55 % of the number of Member States. The Council can amend this system de jure by a simple majority. However, one of the protocols stipulates that negotiations must first be held in the European Council, and that any decision made in that regard must be unanimous.
The importance of majority voting lies not so much in the fact that it prevents small States from blocking important decisions, as that it makes it possible to outvote individual large Member States. However, the ‘Luxembourg Agreement’ remains a major political factor, at least as far as voting practice is concerned. It grants the right to veto a Community measure in cases where a Member State considers that its vital national interests are at stake, and was used to solve a crisis which arose in 1965 when France, afraid that its national interests in the financing of the common agricultural policy were threatened, blocked decision-making in the Council for over six months by a ‘policy of the empty chair’.
In the case of decisions to be taken in especially sensitive political areas, the Treaties require unanimity. The adoption of a decision cannot be blocked by means of abstentions, however. Unanimity is still required for decisions on such matters as taxes, the rights and obligations of employees, amendments to citizenship provisions and determining whether a Member State has infringed constitutional principles, and for laying down principles and guidelines in the areas of common foreign and security policy or police and judicial cooperation in criminal matters.
The High Representative of the Union for Foreign Affairs and Security Policy (Article 18 TEU)
The High Representative of the Union for Foreign Affairs and Security Policy has not become the EU foreign minister, as planned in the constitutional project; however, their position within the institutional set-up has been considerably strengthened and expanded. Initially, the office of High Representative will be merged with that of Commissioner for Foreign Affairs. This gives the High Representative a base in both the Council, where they hold the presidency of the Foreign Affairs Council, and the Commission, where they are Vice-President in charge of foreign affairs. The High Representative is appointed by the European Council, acting by a qualified majority, with the agreement of the President of the Commission. He or she is assisted by a newly created foreign service, made up of officials from the European Commission 4 and the General Secretariat of the Council and seconded representatives of the diplomatic services of the Member States.
The European Commission (Article 17 TEU)
First Vice-President: High Representative of
the Union for Foreign Affairs and Security Policy
First Vice-President: High Representative of
the Union for Foreign Affairs and Security Policy
It was originally agreed that from 2014 the European Commission would no longer have a representative from each Member State, but would have a number of Members corresponding to two thirds of the number of Member States, i.e. for the current total of 27 Member States, the number of Members of the Commission in 2014 would be 18. To this end, a rotation system would be introduced to ensure that there would be a Commissioner from each Member State in two out of any three consecutive Commission periods of office. However, the European Council was given the power to change this composition by unanimous vote, and it notified its intention to do so in the conclusions of its meeting of 18 and 19 June 2009 in Brussels. At that meeting, the European Council agreed to take a decision following the entry into force of the Lisbon Treaty and in accordance with the necessary legal procedures, under which the Commission will continue to have a national from every Member State. This met one of the basic requirements set by Ireland when it organised its second referendum on the Lisbon Treaty.
The Commission is headed by a President who is assisted by seven Vice-Presidents, including the High Representative of the Union for Foreign Affairs and Security Policy as the first Vice-President. Over time, the President’s position within the Commission has been considerably strengthened. He or she is no longer ‘first among equals’ but enjoys a prominent position in that the Commission must work ‘under the political guidance’ of its President (Article 17 TEU). The President thus has a ‘power to provide guidance’. The President decides as to the internal organisation of the Commission in order to ensure that it acts consistently and efficiently. He or she also allocates responsibilities among the Commissioners, and may reshuffle the allocation of those responsibilities during the Commission’s term of office. The President appoints the Vice-Presidents, and can force a Member of the Commission to resign. The prominent position of the President is also reflected by his or her membership of the European Council.
The President and Members of the Commission are appointed for a term of five years using the investiture procedure: the European Council, acting by a qualified majority, nominates the person it intends to propose for election by the European Parliament as President of the Commission, taking into account the majority vote of the European Parliament. The European Parliament then elects the President by a majority of its members. If the candidate does not obtain the required majority in Parliament, the European Council proposes a new candidate to Parliament within a month. The Member States then draw up a list of people to be nominated as Members of the Commission. This list is adopted by the Council, acting by a qualified majority and by common accord with the President. Once the Commission President has been elected by the European Parliament, the other Members of the Commission are subject to a vote of approval by Parliament. After approval by Parliament, the Members of the Commission other than the President are formally appointed by the Council of the EU, acting by a qualified majority.
The Members of the Commission must be chosen ‘on the grounds of their general competence’ and be ‘completely independent in the performance of their duties’ (Article 17(3) TEU). They may neither seek nor take instructions from any government.
The seat of the European Commission is in Brussels.
The Commission is first of all the ‘driving force’ behind Union policy. It is the starting point for every Union action, as it is the Commission that has to present proposals and drafts for Union legislation to the Council (this is termed the Commission’s right of initiative). The Commission is not free to choose its own activities. It is obliged to act if the Union interest so requires. The Council (Article 241 TFEU), the European Parliament (Article 225 TFEU) and a group of EU citizens acting on behalf of a citizens’ initiative (Article 11(4) TEU) may also ask the Commission to draw up a proposal. Since the Treaty of Lisbon, in the specific cases provided for by the Treaties, legislative acts may be adopted on the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank.
The Commission has primary powers to initiate legislation in certain areas (such as the Union budget, the Structural Funds, measures to tackle tax discrimination, the provision of funding and safeguard clauses). Much more extensive, however, are the powers for the implementation of Union rules conferred on the Commission by the Council and Parliament (Article 290 TFEU).
The Commission is also the ‘guardian of Union law’. It monitors the Member States’ application and implementation of primary and secondary Union legislation, institutes infringement proceedings in the event of any violation of Union law (Article 258 TFEU) and, if necessary, refers the matter to the Court of Justice. The Commission also intervenes if Union law is infringed by any natural or legal person, and imposes heavy penalties. Over the last few years, efforts to prevent abuse of Union rules have become a major part of the Commission’s work.
Closely connected with the role of guardian is the task of representing the Union’s interests. As a matter of principle, the Commission may serve no interests other than those of the Union. It must constantly endeavour, in what often prove to be difficult negotiations within the Council, to make the Union interest prevail and seek compromise solutions that take account of that interest. In so doing, it also plays the role of mediator between the Member States, a role for which, by virtue of its neutrality, it is particularly suited and qualified.
Lastly, the Commission is — albeit to a limited extent — an executive body. This is especially true in the field of competition law, where the Commission acts as a normal administrative authority, checking facts, granting approval or issuing bans and, if necessary, imposing penalties. The Commission’s powers in relation to the Structural Funds and the EU budget are similarly wide-ranging. As a rule, however, it is the Member States themselves that have to ensure that Union rules are applied in individual cases. This solution chosen by the Union Treaties has the advantage that citizens are brought closer to what is still to them the ‘foreign’ reality of the European system through the workings and in the familiar form of their own national system.
The Commission represents the Union in international organisations and is in charge of the day-to-day running of Union diplomatic missions outside and within the EU. On the basis of powers conferred on it by the Council, the Commission is responsible for negotiating agreements with international organisations and non-member countries, including Accession Treaties with new Member States. The Commission represents the Union in the courts of the Member States and — where necessary together with the Council — before the Court of Justice.
ADMINISTRATIVE STRUCTURE OF THE EUROPEAN COMMISSION
Directorate-General for Communication
Bureau of European Policy Advisers
Directorate-General for Communication
Bureau of European Policy Advisers
|Directorate-General for Economic and Financial Affairs|
|Directorate-General for Enterprise and Industry|
|Directorate-General for Competition|
|Directorate-General for Employment, Social Affairs and Equal Opportunities|
|Directorate-General for Agriculture and Rural Development|
|Directorate-General for Energy|
|Directorate-General for Mobility and Transport|
|Directorate-General for the Environment|
|Directorate-General for Climate Action|
|Directorate-General for Research|
|Joint Research Centre|
|Directorate-General for the Information Society and Media|
|Directorate-General for Maritime Affairs and Fisheries|
|Directorate-General for the Internal Market and Services|
|Directorate-General for Regional Policy|
|Directorate-General for Taxation and Customs Union|
|Directorate-General for Education and Culture|
|Directorate-General for Health and Consumers|
|Directorate-General for Justice, Freedom and Security|
|Directorate-General for External Relations|
|Directorate-General for Trade|
|Directorate-General for Development|
|Directorate-General for Enlargement|
|EuropeAid Co-operation Office|
|Directorate-General for Humanitarian Aid (ECHO)|
|Directorate-General for Human Resources and Security|
|Directorate-General for Informatics|
|Directorate-General for the Budget|
|Internal Audit Office|
|European Anti-Fraud Office|
|Directorate-General for Interpretation|
|Directorate-General for Translation|
|Office for Infrastructure and Logistics in Brussels|
|Office for Infrastructure and Logistics in Luxembourg|
|Office for the Administration and Payment of Individual Entitlements|
|European Personnel Selection Office|
The Court of Justice of the European Union (Article 19 TEU)
Any system will endure only if its rules are supervised by an independent authority. What is more, in a union of states the common rules — if they are subject to control by the national courts — are interpreted and applied differently from one state to another. The uniform application of Union law in all Member States would thus be jeopardised. These considerations led to the establishment of a Community Court of Justice in 1952, as soon as the first Community (the ECSC) was created. In 1957 it also then became the judicial body for the other two Communities (E(E)C and Euratom). Today it is the judicial body of the EU.
1 November 1992.
This photo of a suitcase on a map of Europe illustrates the free movement of people, introduced by the Maastricht Treaty.
The judicial work is now carried out on three levels by:
• the Court of Justice as the highest instance in the Community legal order (Article 253 TFEU);
• the General Court (Article 254 TFEU);
• the specialised courts, which may be appointed to the General Court to decide on cases in particular areas (Article 257 TFEU).
Court of Justice
COMPOSITION OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
The Court of Justice currently consists of 27 judges and eight Advocates General, who are appointed ‘by common accord of the Governments of the Member States’ for a term of six years. Each Member State sends one judge. In order to ensure a degree of continuity, partial replacement of half the judges and Advocates General takes place every three years at the beginning of the judicial year on 6 October. They may be reappointed.
The Court is assisted by eight Advocates General, whose term of office corresponds to that of the judges; they enjoy judicial independence. Four of the eight Advocates General are always from the ‘large’ Member States (Germany, France, Italy and the United Kingdom) and the other four come from the remaining 23 Member States on an alternating basis. The office of Advocate General is based on that of the Commissaire du gouvernement in the Council of State (Conseil d’État) and administrative courts in France. It must not be confused with the position of public prosecutor or similar post found in many countries. Advocates General were introduced in the Court to counterbalance the original ‘single-tier’ nature of court proceedings, i.e. the absence of any appeal procedures. Their task is to submit ‘opinions’ to the Court in the form of (non-binding) proposals for a Court decision based on a fully independent and non-partisan survey of the questions of law raised in the case concerned. The opinions are an integral part of the oral procedure and are published together with the judgment in the Court Reports. Advocates General can only influence the judgment through the strength of the arguments in their opinions; they are not involved in any deliberations or voting on the judgment.
Selection of judges and Advocates General
The judges and Advocates General are chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries, or who are legal experts of recognised competence (Article 253 TFEU). This means that judges, public officials, politicians, lawyers or university lecturers from Member States may be appointed. The variety of professional backgrounds and experience are beneficial to the Court in that they help to provide as comprehensive an assessment as possible of both the theoretical and practical aspects of the facts and points of law that have to be considered. In all Member States, the choice of who should be proposed by the government for appointment as a judge or Advocate General, and the procedure by which this is done, is a matter for the executive. The procedures differ greatly and range from the not very transparent to the totally impenetrable.
Assistance is provided by the newly created consultative panel for the nomination of judges, which has the task of giving an opinion on candidates’ suitability to perform the duties of judge and Advocate General of the Court of Justice and the General Court before the governments of the Member States make the appointments (Article 255 TFEU). The panel comprises seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom is proposed by the European Parliament.
The Court sits in the following possible formations:
• the full Court with 27 judges; a full Court decision is still required only in impeachment proceedings and disciplinary proceedings against members of the Union bodies. Cases may also be referred to the full Court by the Court of Justice itself, but only where extremely important proceedings and matters of precedent are involved;
• the Grand Chamber with 13 judges;
• Chambers of five and three judges.
The Court of Justice is the highest and at the same time the sole judicial authority in matters of Union law. In general terms, its task is to ‘ensure that in the interpretation of [the] Treaty the law is observed’.
This general description of responsibilities encompasses three main areas:
• monitoring the application of Union law, both by the EU institutions when implementing the Treaties, and by the Member States and individuals in relation to their obligations under Union law;
• interpretation of Union law;
• further shaping of Union law.
In carrying out these tasks, the Court’s work involves both legal advice and adjudication. Legal advice is provided in the form of binding opinions on agreements which the EU wishes to conclude with non-member countries or international organisations. Its function as a body for the administration of justice is much more important, however. In exercising that function, it operates in matters that in the Member States would be assigned to different types of court, depending on their national systems. It acts as a constitutional court when disputes between Union institutions are before it or legislative instruments are up for review for legality; as an administrative court when reviewing the administrative acts of the Commission or of national authorities applying Union legislation; as a labour court or industrial tribunal when dealing with freedom of movement, social security and equal opportunities; as a fiscal court when dealing with matters concerning the validity and interpretation of directives in the fields of taxation and customs law; as a criminal court when reviewing Commission decisions imposing fines; and as a civil court when hearing claims for damages or interpreting the provisions on the enforcement of judgments in civil and commercial matters and in disputes over European intellectual property rights for which grounds for jurisdiction by the Court of Justice have been given (Article 262 TFEU).
The General Court
Like all courts, the Court of Justice is overburdened. The number of cases referred to it has increased steadily and will continue to grow, given the potential for disputes that has been created by the huge number of directives which have been adopted in the context of the single market and transposed into national law in the Member States. The signs are already there that the Treaty on European Union has raised further questions which will ultimately have to be settled by the Court. This is why, in 1988, a General Court was established to take the pressure off the Court of Justice.
COMPOSITION OF THE GENERAL COURT
The General Court is not a new Union institution but rather a constituent component of the Court of Justice. Nevertheless, it is an autonomous body separate from the Court of Justice in organisational terms. It has its own registry and rules of procedure. Cases handled by the General Court are identified by means of a ‘T’ (= Tribunal) (e.g. T-1/99), whilst those referred to the Court of Justice are coded with a ‘C’ (= Court) (e.g. C-1/99).
The General Court consists of 27 ‘members’ whose qualifications, appointment and legal status are subject to the same requirements and conditions as judges at the Court of Justice. Although their main function is to sit as ‘judges’, they may also be appointed as ‘Advocates General’ on an ad hoc basis in cases before the full Court, or in cases before one of the Chambers if the facts of the case or its legal complexity require this. This facility has been used very sparingly up to now.
The General Court sits in Chambers of five or three judges or, in certain cases, a single judge. It can also sit as a Grand Chamber (13 judges) or as a full Court (27 judges) if required by the legal complexity or significance of a case. Over 80 % of the cases before the Court are heard by a Chamber of three judges.
Although the General Court was originally responsible for only a limited range of cases, it now has the following tasks.
• At first instance, i.e. subject to the legal supervision of the Court of Justice, the General Court has competence to rule on actions for annulment and actions for failure to act brought by natural and legal persons against a Union body, on an arbitration clause contained in a contract concluded by the EU or on its behalf, and on actions for damages brought against the EU.
• The General Court acts as an appeal court for cases of appeal against decisions given by the judicial panels.
• It is also planned to confer jurisdiction on the General Court for preliminary ruling proceedings concerning certain areas; however, this option has not yet been used.
In 2004, to relieve the burden on the Court of Justice and improve legal protection in the EU, the Council of the EU attached a specialised court for civil service cases to the General Court.
This specialised court has taken over jurisdiction from the General Court for ruling at first instance in European civil service disputes.
It consists of seven judges, who enjoy a similar status to members of the General Court and are appointed for a term of six years. They must have the ability required for appointment to judicial office. The specialised court usually sits as a panel of three judges, but can give a decision as a full panel or a panel of five judges, or as a single judge. Decisions of the specialised court are subject to a right of appeal to the General Court on points of law only. In turn, the First Advocate General (not the parties involved!) can propose a review of the decision of the General Court if the legal entity or the uniformity of jurisprudence are jeopardised.
The European Central Bank (Articles 129 and 130 TFEU)
The European Central Bank (ECB), based in Frankfurt-am-Main, is at the heart of economic and monetary union. Its task is to maintain the stability of the European currency, the euro, and control the amount of currency in circulation (Article 128 TFEU).
In order to carry out this task, the ECB’s independence is guaranteed by numerous legal provisions. When exercising their powers or carrying out their tasks and duties, neither the ECB nor a national central bank may take instructions from Union institutions, governments of Member States or any other body. The EU institutions and the Member States’ governments will not seek to influence the ECB (Article 130 TFEU).
The ECB has a Governing Council and an Executive Board. The Governing Council comprises the governors of the central banks of the 16 Member States in the euro area and the members of the Executive Board of the ECB. The Executive Board, which is made up of the President, the Vice-President and four other members, is effectively in charge of running the ECB. Its President and members are appointed from among persons of recognised standing and experience in monetary or banking matters by common accord of the governments of the Member States, on a recommendation from the Council after it has consulted the European Parliament. Their term of office is eight years, which, in the interests of ensuring the independence of the Executive Board members, is not renewable (Article 283 TFEU).
The European System of Central Banks (ESCB) is composed of the ECB and the central banks of the Member States (Article 129 TFEU). It has the task of defining and implementing the monetary policy of the Union, and has the exclusive right to authorise the issue of banknotes and coins within the Union. It also manages the official currency reserves of the Member States and ensures the smooth operation of payments systems (Article 127(2) TFEU).
The Court of Auditors (Articles 285 and 286 TFEU)
The Court of Auditors was set up on 22 July 1975 and began work in Luxembourg in October 1977. It has since risen to the rank of Union institution (Article 13 TEU). It consists of 27 members, corresponding to the present number of Member States. They are appointed for six years by the Council, which approves, by qualified majority and following consultation with the European Parliament, a list of members drawn up in accordance with proposals from the Member States (Article 286(2) TFEU). The members elect the President of the Court of Auditors from among their number for a term of three years; the President may be re-elected.
The Court of Auditors’ task is to examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether financial management has been sound. Unlike the courts of auditors or similar bodies in some Member States, it has no jurisdiction to enforce its control measures or to investigate suspicions of irregularity arising from its investigations. However, it is wholly autonomous in its decisions regarding what it examines and how. It can, for instance, examine whether the use made of Union financial support by private individuals is in compliance with Community law.
The chief weapon in its armoury is the fact that it can publicise its findings. The results of its investigations are summarised in an annual report at the end of each financial year, which is published in the Official Journal of the European Union and thus brought to public attention. It may also make special reports at any time on specific areas of financial management, and these are also published in the Official Journal.
European Economic and Social Committee (Article 301 TFEU)
The purpose of the European Economic and Social Committee (EESC) is to give the various economic and social groups (especially employers and employees, farmers, carriers, business people, craft workers, the professions and managers of small and medium-sized businesses) representation in an EU institution. It also provides a forum for consumers, environmental groups and associations.
The EESC is made up of a maximum of 350 members (advisers), drawn from the most representative organisations in the individual Member States. They are appointed for five years by the Council, which, acting in unanimity, adopts a list of members drawn up in accordance with the proposals made by each Member State.
The allocation of seats is as follows 5.
The members are divided up into three groups (employers, workers and other parties representative of civil society). Opinions to be adopted at plenary sessions are drawn up by ‘study groups’ consisting of EESC members (in which their alternates may also participate as experts). The EESC also works closely with the committees of the European Parliament.
The EESC, which was established under the Treaties of Rome, must in certain circumstances be consulted by the Council acting on a proposal from the Commission. It also issues opinions on its own initiative. These opinions represent a synthesis of sometimes very divergent viewpoints and are extremely useful for the Commission and the Council because they show what changes the groups directly affected by a proposal would like to see. The EESC’s own-initiative opinions have on a number of occasions had considerable political implications, one example being that of 22 February 1989 on basic social rights in the EU, which provided the basis for the ‘Social Charter’ proposed by the Commission (and adopted by 11 Member States).
Committee of the Regions (Article 305 TFEU)
A new advisory body was set up alongside the EESC by the Treaty on European Union (Treaty of Maastricht): the Committee of the Regions (CoR). Like the EESC, it is not strictly an EU institution, as its function is purely advisory and it has no power to produce legally binding decisions in the same way as the fully fledged institutions (European Parliament, Council, European Commission, Court of Justice, Court of Auditors, European Central Bank).
Like the EESC, the Committee of the Regions consists of a maximum of 350 members 6. The members are representatives of regional and local authorities in the Member States who must have a mandate based on elections from the authorities they represent, or must be politically accountable to them. The 350 seats are allocated to the Member States using the same weighting as for the EESC. The members are appointed for five years by the Council, which, acting in unanimity, adopts a list of members drawn up in accordance with the proposals made by each Member State. The members of the Committee elect a chairman from among their number for a term of two years.
There are a number of areas in which consultation by the Council of the EU or the European Commission is required (‘mandatory consultation’): education; culture; public health; trans-European networks; transport, telecommunications and energy infrastructure; economic and social cohesion; employment policy and social legislation. The Council also consults the Committee regularly, and without any legal obligation, in connection with a wide range of draft legislation (‘non-mandatory consultation’).
THE EUROPEAN INVESTMENT BANK (ARTICLE 308 TFEU)
As financing agency for a ‘balanced and steady development’ of the EU, the Union has at its disposal the European Investment Bank (EIB), located in Luxembourg. The EIB provides loans and guarantees in all economic sectors, especially to promote the development of less-developed regions, to modernise or convert undertakings or create new jobs and to assist projects of common interest to several Member States.
The EIB has a tripartite structure: it is headed by the Board of Governors, made up of the Finance Ministers of the Member States, which sets the guidelines for credit policy and authorises EIB activities outside the EU. The Board of Governors is followed by the Board of Directors, which has 28 full members (one representative from each of the Member States and one from the European Commission) and 18 alternate members. Members are usually senior officials from the national finance or economic affairs ministries. The Board of Directors takes decisions in respect of granting loans and guarantees and raising loans. It makes sure that the bank is run in accordance with the guidelines of the Board of Governors. The day-to-day activities of the EIB are run by the Management Committee, an executive of nine persons appointed for a period of six years.