Structure & Functioning of the European Union (8002IJ50)
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Summary European Union Law - Structure & Functioning
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Structure & Functioning of the European Union (8002IJ50)
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Leiden University College The Hague (LUC)
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European Union Law
Summary of book on European Union Law, with additional notes from classes on specific case law. Addresses the structure & functioning of the EU, with a focus on the political institutions, decision making processes, division of power, and rights.
Class notes European Union Law (620248-B-6) European Union Law, ISBN: 9780198855750
Exam Preparation on EU Law, Cluster 1
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Structure & Functioning of the European Union (8002IJ50)
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Chapter 3 – EU’s political institutions
TEU 10(1): functioning of the Union shall be founded on representative democracy. 10(2) TEU: European
Parliament is directly elected, and the Council consists of MS ministers, and the European council consists of heads
of state or government. Another key feature is attempt to ensure that EU law is effective. Input legitimacy = public
acceptance of the procedures which lead to the adoption of decisions. Output legitimacy = public approval of the
substantive outcome of the decision-making process. 13(1) TEU: there are three other EU institutions, the Court of
Justice, the European Central Bank and the Court of Auditors.
Concept of representative democracy
Public decides which politicians they wish to vote for in an election, judge the performance and then reelect.
Representative democracy in the EU
The Commission can broadly be compared to the executive and administration (civil service) of the EU. Council and
European Parliament can be compared to a two-chamber legislature. EP is directly elected, Council is not. However,
some executive powers have been conferred upon the council and the European council. Division of powers
between the EU and MS is referred to as the rules on EU competences. EU law is almost entirely administered by
MS. This delegation of power is recognized by the Treaty, ‘MS shall adopt all measures of national law necessary to
implement legally binding Union acts’. By the use of directives. By the role of national courts in the implementation.
On page 40 there is a drawing of relationship between EU institutions.
Commission
Most EU measures are either adopted or proposed by the Commission. Commission constitutes an important part
of the executive and day-to-day administration of the EU. Key provisions on composition, powers, and functioning
of the Commission are in article 17 TEU, and further rules in article 18 TEU.
Composition
College of Commissioners, including its President and EU’s high representative for its common foreign and security
policy. There would be one Commissioners per MS, provided that the weighting of the votes in the Council had
been adjusted in a manner acceptable to all MS, especially compensating those MS which lost a Commissioner
(2013).
The president
They lay down the guidelines for the Commissions work; decides on the internal organization of the Commission,
ensuring its efficiency, consistency, and collegiality; appoints Vice-Presidents (additionally to High Representative
who is also VP). President can reshuffle the Commission, and require a Commissioner to resign. Each Commission is
named in practice after its President.
High rep
Created by the Treaty of Amsterdam. Treaty of Lisbon recast the role of the High Rep, they are a commissioner but
also, as regards their foreign policy tasks, answerable to the Council.
Appointment
The appointment system means that the Commissioners come from diverse political backgrounds. Usually,
commissioners are senior cabinet ministers in their national governments. Over the years, in order to address
concerns about the Commission’s democratic accountability, the role of the EP in the Commission’s appointment
was enhanced. The EP was given the power to approve the appointment of the Commission as a whole (Maastricht
Treaty), and then the Commission President (Treaty of Amsterdam). New Commission takes office every 5 years.
EP, by a majority of its members, has the power to ‘elect’ the Commission President, but the EC must first by a
qualified majority vote nominate a single candidate for the EP’s approval. There is a stronger link between EP and
Commission election results than before. Because EP takes into account EP election results (predictable election?).
After election of the president, the other commissioners are appointed, on the basis of MS proposals, by
agreement with the president, by a qualified majority vote of the EC and approval of EP. Commission president,
High Rep, and EC president are decided as part of a ‘package deal’ because of the timing of elections.
Declaration 6 Treaty of Lisbon: need to consider geographical and demographic diversity when making
appointments, in 2009 also political background and gender.
While technically the EP cannot kick out individual commissioners, when it is unsatisfied, the EP simply threatens to
reject the whole lot to make targeted individuals withdraw.
,Control of the Commission
How can the Commission be removed? EU treaties have always provided for the possibility for the EP to remove
the entire Commission, by means of a censure vote. It requires 2/3 vote of MEP’s in favor, including majority of the
members of the Parliament. Treaties provide that in the event of censure or mass resignation, the Commissioners
continue to remain in office until they are replaced. Treaties do provide for the removal of individuals who are
guilty of serious misconduct, or cannot do their job, by the CoJ on application by the council or commission, but this
was not used in 1999 or since. It is now possible for the commission president to force a commissioner to resign or
reshuffle the commission.
Powers
Article 17(1) TEU:
- Promote the general interest of the EU and take appropriate initiatives to that end;
- Ensure the application of the Treaties and measures giving effect to them;
- Oversee the application of EU law, subject to the CoJ;
- Execute the budget and manage programmes;
- Exercise coordinating, executive and management functions;
- Ensure the Union’s external representation, except as regards EU foreign policy (high rep has this task);
- Initiate the Union’s annual and multi-annual programming.
Executive tasks:
Article 17(2) TEU provides near-monopoly on introducing proposals for EU legislation. Many non-legislative acts can
only be adopted on the basis of a Commission proposal as well. Commission has a monopoly on negotiating
international treaties on behalf of the EU, representing the EU on the international level (except foreign policy and
monetary issues). Before Commission can start to negotiate, it must be granted authority by the Council. Another
key task is the power to adopt delegated acts or implementing measures, sub-legislative acts which set out further
EU policies. Delegated acts supplement or amend non-essential elements of EU policies, these can only be adopted
by the Commission. Commission has legal right to take infringement actions against MS which have not met their
obligations under EU law.
Administrative tasks:
Administering the EU budget, supervised by the EP. Apply EU law in individual cases.
High representative:
Conduct EU foreign policy, make proposals regarding that policy. Chair’s the EU’s foreign affairs council. Sits the
Commission and coordinates Commissions’s overall external activity.
Functioning
It is completely independent and cannot take instructions from governments or any other body. An exception, is
the high representatve being accountable to the Council for foreign policy, but rest is independent.
College of commissioners makes decision by majority, and in accordance with commission’s rules of procedure. For
administrative tasks, commission is organized into Directorates-General.
European Parliament
It is elected by popular vote at regular intervals. Main tasks are to participate in the legislative and budgetary
process and to hold the executive to account. In addition to Treaty provision, there are some important secondary
measures:
- Article 223 TFEU: provides for the adoption of a Council decision on the procedure for elections to the EP
and for EP regulations on the stature of its members;
- Article 14(2) TEU: the EC to adopt a decision on the composition of the EP;
- Article 22(2) TFEU: every EU citizen living in another MS can vote or stand for election to the EP, subject to
the adoption of detailed measures to that end by the Council.
Article 224 TFEU provides for the adoption of regulations on European political parties, which can broadly
correspond to the political groups which sit in the EP.
Composition
Treaty of Lisbon raised the number to 751 MEP’s. Treaties require seats to be allocated on the basis of degressive
proportionality giving small MS more weight relative to their population. This does not adhere to the principle of
representation by population. Exact allocation of seats between MS is decided by the EC.
, Elections
- Article 14(3) TEU: EP is elected for five-year terms.
This term is absolutely fixed. Treaty of Amsterdam changed the rules (from uniform procedure) so that the
electoral law could instead be based in principle common to all MS amendment of Council act in 2002. Voting
must take place on the basis of proportional representation; thus the seats must be allocated in principle according
to the percentage of the vote obtained by each political party. There is still flexibility for MS as to whether to have
several large constituencies in that MS, as long as the system is still proportional. Being an MEP is incompatible
with holding other posts in EU or national. Voting in EP take place on basis of national political party affiliation. In
each successive election the voter turnout has dropped even though powers have increased. National responsibility
to allow people to vote (also third parties).
Powers
- Article 14(1) TEU: legislative and budgetary functions it exercises jointly with the Council, and powers of
political control and consultation.
Subsequent Treaty amendments have expanded the EP’s decision-making powers so that it now has equal
legislative and budgetary power with Council in majority of areas:
- Single European Act created procedure called the cooperation procedure, which gave EP additional
influence over legislative process;
- Maastricht Treaty created co-decision procedure, which put EP and Council on same footing regarding
legislation;
- Treaty of Amsterdam extended co-decision procedure to new areas and streamlined it. Also curtailed the
use of cooperation procedure;
- Treaty of Lisbon expanded the use of the co-decision procedure, renaming it the ordinary legislative
procedure. And specifying that cases with different rules of adopting legislation are regarded special
legislative procedures.
Most important power of political control = appointment and dismissal of the Commission President and rest of
Commission. Also has political control in the form of the power of consent as regards the following decisions:
sanctions against the MS for breach of HR; the EC’s decision on EP own composition; some aspects of Treaty
amendment; enlargement of EU; treaties concerning the withdrawal of MS from EU; extensions of EU competence
over criminal law; conclusion of most international agreements; approval of enhanced cooperation.
EP also attempt to exert its power of control via means of parliamentary questions, committees of enquiry,
petitions, and the European Ombudsman.
Power of consultation: applies to various other innominate non-legislative procedures. EP role in relation to EU
foreign policy is weak.
EP has found ways of enhancing its power beyond letter of the law. Power to veto the final conclusion of the treaty
concerned by the EU. ‘freezing’ of EU funds. Court action.
Functioning
No parliamentary majority party and no ‘opposition parties’. There are ‘political groups’ which bring together MEP’s
who are members of similar national parties in different MS. Each political group decides whether it will vote in
favor of ‘government bills’ or not, on case-by-case basis. Day-to-day work is largely carried out in committees.
Rapporteur is responsible for drafting the EP’s position on the measure and will be in charge of negotiations with
the Council.
Council
Main decision-making organ, although to a large extent it now shares its role with EP. Made up of ministers from
MS governments. (distinct from EC, presidents and prime ministers). Basic rules are set out in art 16 TEU, and 237-
243 TFEU.
- Article 10(2) TEU: Council’s democratic legitimacy is based on each individual minister’s democratic
accountability to the electorate or parliament of each MS.
Composition
National ministers who represent their MS’s government. Government of each MS decides who appears in the
Council. Council does not have fixed membership, rather the ministers depends on the subject matter being
discussed.
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