(1) European Union Law

How the EU works

EP

The idea of European Union is as old as the European idea of the sovereign State.1 Yet the spectacular rise of the latter overshadowed the idea of European Union for centuries.

Within the twentieth century, two ruinous world wars and the social forces of globalization, however, discredited the idea of the sovereign State. The decline of the monadic State found expression in the spread of inter-state cooperation.2 The various efforts at European cooperation after the Second World War indeed formed part of a general transition from an international law of coexistence to an international law of cooperation.3

The European Union was born in 1952 with the coming into being of the European Coal and Steel Community (ECSC).4 Its original members were six European States: Belgium, France, Germany, Italy, Luxembourg, and the Netherlands. The Community had been created to integrate one industrial sector; and the very concept of integration indicated the wish of the contracting States “to break with the ordinary forms of international treaties and organizations”.5 The 1957 Treaty of Rome created two additional Communities: the European Atomic Energy Community and the European (Economic) Community. The “three Communities” were partly “merged” in 1967, 6 but continued to exist in relative independence. A major organizational leap was taken with the 1992 Maastricht Treaty. It integrated the three Communities into the European Union. But for a decade, this European Union was under constant constitutional construction. In an attempt to prepare the Union for the twenty-first century, a European Convention was charged to draft a Constitutional Treaty in 2001. But this Treaty failed; and it took almost another decade to rescue the reform into the 2007 Reform (Lisbon) Treaty that came into force on 1 December 2009. The Lisbon Treaty has replaced the “old” European Union with the “new” European Union. It is this European Union that will be analysed.

 

1 R. H. Foerster, Die Idee Europa 1300–1946, Quellen zur Geschichte der politischen Einigung (Deutscher Taschenbuchverlag, 1963).

2 G. Schwarzenberger, The Frontiers of International Law (Stevens, 1962).

3 W. G. Friedmann, The Changing Structure of International Law (Stevens, 1964).

4 For a detailed discussion of the negotiations leading up to the signature of the ECSC Treaty, see: H. Mosler, “Der Vertrag über die Europäische Gemeinschaft für Kohle und Stahl”, 14 (1951/2) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1.

5 Ibid., 24 (translation – RS).

6 This was achieved through the 1965 “Merger Treaty” (see Treaty establishing a Single Council and a Single Commission of the European Communities).

 

European law is traditionally divided into three major branches: European constitutional law (see T. Hartley, The Foundations of European Union Law (Oxford University Press, 2010); and: R. Schütze, European Constitutional Law (Cambridge University Press, 2012)), European internal market law (see C. Barnard, The Substantive Law of the EU (Oxford University Press, 2010); and: G. Davies, European Union Internal Market Law (Routledge, 2006)), and European competition law (see J. Goyder and A. Albors-Llorens, EC Competition Law (Oxford University Press, 2009), and: A. Jones & B. Sufrin, EU Competition Law (Oxford University Press, 2011)). In addition to these three principal branches, the last two decades have seen the emergence of many smaller branches, such as European external relations law (see P. Eeckhout, EU External Relations Law (Oxford University Press, 2011), and: P. Koutrakos, EU International Relations Law (Hart, 2006)), and European environmental law (see J. H. Jans and H. Vedder, European Environmental Law (Europa Law Publishing, 2008), and: L. Krämer, EC Environmental Law (Sweet & Maxwell, 2006

 

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.1
  •  

The provision lists seven governmental institutions of the European Union. They constitute the core “players” in the Union legal order.2 What strikes the attentive eye first is the number of institutions: unlike a tripartite institutional structure, the Union offers more than twice that number. The two institutions that do not – at first sight – seem to directly correspond to “national” institutions are the (European) Council and the Commission. The name “Council” represents a reminder of the “international” origins of the European Union, but the institution can equally be found in the governmental structure of Federal States. It will be harder to find the name “Commission” among the public institutions of States, where the executive is typically referred to as the “government.” By contrast, central banks and courts of auditors exist in many national legal orders.

Where do the Treaties define the Union institutions? The provisions on the Union institutions are split between the Treaty on European Union and the Treaty on the Functioning of the European Union in the following way:

The creation of governmental institutions is the central task of all constitutions. Each political community needs institutions to govern its society; as each society needs common rules and a method for their making, execution, and arbitration. The European Treaties establish a number of European institutions to make, execute, and arbitrate European law. The Union’s institutions and their core tasks are defined in Title III of the Treaty on European Union (TEU).

 

The central provision here is Article 13 TEU:

 

Provisions on the Institutions

 

EU Treaty – Title III FEU Treaty

Article 13 Institutional Framework - European Parliament

Article 14 European Parliament - (Arts. 223–234)

Article 15 European Council -European Council (Arts. 235–236)

Article 16 Council – European Council (Arts. 237–243)

Article 17 Commission - Commission (Arts. 244–250)

Article 18 High Representative - Court of Justice (Arts. 251–281)

Article 19 Court of Justice - European Central Bank (Arts. 282–284)

Court of Auditors (Arts. 285–287)

Protocol (No.3): Statute of the Court of Justice

Protocol (No.4): Statute of the ESCB and the ECB

Protocol (No.6): Location of the Seats of the Institutions etc.

(Internal) Rules of Procedure of the Institution

 

 

  1. The European Parliament

 

Despite its formal place in the Treaties, the European Parliament has never been the Union’s “first” institution. For a long time it followed, in rank, behind the Council and the Commission. Its original powers were indeed minimal. It was an “auxiliary” organ that was to assist the institutional duopoly of Council and Commission. This minimal role gradually increased from the 1970s onwards. Today the Parliament constitutes – with the Council – a chamber of the Union legislature. Directly elected by the European citizens, 4 Parliament constitutes not only the most democratic institution; in light of its elective “appointment,” it is also the most supranational institution of the European Union.

 

(a) Formation: electing Parliament

 

When the European Union was born, the European Treaties envisaged that its Parliament was to be composed of “representatives of the peoples of the States”.5 This characterization corresponded to its formation. For the European Parliament was not directly elected. It was to “consist of delegates who shall be designated by the respective Parliaments from among their members in accordance with the procedure laid down by each Member State”.6 European parliamentarians were thus – delegated – national parliamentarians.

This formation method brought Parliament close to an (international) “assembly”. The founding Treaties did nonetheless breach the classic international law logic already in two ways. First, they had abandoned the idea of sovereign equality of the Member States by recognizing different sizes for national parliamentary delegations.7 Second, and more importantly, the Treaties already envisaged that Parliament would eventually be formed through “elections by direct universal suffrage in accordance with a uniform procedure in all Member States”.8

When did the transformation of the European Parliament from an “assembly” of national parliamentarians into a directly elected Parliament take place? It took two decades before the Union’s 1976 “Election Act” was adopted.9 And ever since the first parliamentary elections in 1979, the European Parliament ceased to be composed of “representatives of the peoples of the States”. It constituted henceforth the representative of a European people. The Lisbon Treaty has – belatedly – recognized this Parliament as being “composed of representatives of the Union’s citizens”.10

What is the size and composition of the European Parliament? How are elections conducted? The Treaties stipulate the following on the size and composition of the European Parliament:

The European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.11 The European Parliament has a maximum size of 751 members.12 While relatively big in comparison with the (American) House of Representatives, it is still smaller than the (British) House of Lords.13 The Treaties themselves no longer determine its composition.14 It is the European Council that must decide on the national “quotas” for the Union’s parliamentary representatives.

The distribution of seats must however be “degressively proportional” within a range spanning from six to ninety-six seats. While the European Council has not yet taken a formal decision, it has given its political endorsement to a proposal by the European Parliament.15 In its proposal, Parliament dramatic constitutional change. It now characterizes the European provided a definition of “degressively proportional”,16 and has suggested the concrete distribution of seats among Member States shown in Table bellow.

 

Distribution of seats in the European Parliament (Member States)

Member State (Seats)

 

Belgium (22) Ireland (12) Austria (19)

Bulgaria (18) Italy (72+1)17 Poland (51)

Czech Republic (22) Cyprus (6) Portugal (22)

Denmark (13) Latvia (9) Romania (33)

Germany (96) Lithuania (12) Slovenia (8)

Estonia (6) Luxembourg (6) Slovakia (13)

Greece (22) Hungary (22) Finland (13)

Spain (54) Malta (6) Sweden (20)

France (74) Netherlands (26) United Kingdom (73)

 

The national “quotas” for European parliamentary seats constitute a compromise between the democratic principle and the federal principle. For while the democratic principle would demand that each citizen in the Union has equal voting power (“one person, one vote”), the federal principle insists on the political existence of States. The result of this compromise was the rejection of a purely proportional distribution in favour of a degressively proportional system. The degressive element within that system unfortunately means that a Luxembourg citizen has ten times more voting power than a British, French, or German citizen. How are the individual members of Parliament elected? The Treaties solely provide us with the most general of rules: “The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.”18 More precise rules are set out in the (amended) 1976 Election Act. Article 1 of the Act commands that the elections must be conducted “on the basis of proportional representation”.19 This outlaws the traditionally British election method of first-past-the-post.20 The specifics of the election procedure are however principally left to the Member States.21 European parliamentary elections thus still do not follow “a uniform electoral procedure in all Member States”, but are rather conducted “in accordance with principles common to all Member States”.22 The Treaties

nonetheless insist on one common constitutional rule: “every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State”.23

 

1. Article 13(1) TEU. Paragraph 2 adds: “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 practice mutual sincere cooperation.”

2. While the Treaties set up seven “institutions,” they do acknowledge the existence of other “bodies.” First, according to Article 13 (4) TEU, the 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.” The composition and powers of the “Economic and Social Committee” are set out in Articles 301-4 TFEU. The composition and powers of the “Committee of the Regions” are defined by Articles 305–7 TFEU. In addition to the Union’s “Advisory Bodies”, the Treaties also acknowledge the existence of a “European Investment Bank” (Articles 308–9 TFEU; as well as Protocol No. 5 on the Statute of the European Investment Bank).

3. For an analysis of the three other Union institutions, see R. Schütze, European Constitutional Law (Cambridge University Press, 2012), Chapters 3 and 4.

4. Article 10(2) TEU: “Citizens are directly represented at Union level in the European

Parliament.”

5. Article 137 EEC. See also Article 20 ECSC.

6. Article 138 EEC. See also Article 21 ECSC.

7. Originally, the EEC Treaty granted thirty-six delegates to Germany, France, and Italy; fourteen delegates to Belgium and the Netherlands; and six delegates to Luxembourg.

8. Article 138 (3) EEC. See also Article 21 (3) ECSC.

9. “Act concerning the Election of the Members of the European Parliament by direct universal Suffrage.” The Act was adopted in 1976 ([1976] OJ L278/5).

10. Article 14 (2) TEU.

11. Ibid.

12. The 2009 Parliamentary Elections were still held under the pre-Lisbon arrangement. Under that arrangement, there existed only 736 seats with Germany having 99 seats. To bring the number up to 751 and to reduce the German MEPs by three, Spain proposed a Treaty amendment to Protocol (No. 36) on Transitional Provisions. However, the final proposal suggested adding 18MEPs for the 2009–14 parliamentary term without reducing the mandate of the three (already) elected German MEPs. Parliament would thus – temporarily – have 754 members! This proposal has received the consent of the Commission, the Parliament, and the European Council (see Decision of the European Council of 17 June 2010 on the examination by a conference of representatives of the governments of the Member States of the amendments to the Treaties proposed by the Spanish Government concerning the composition of the European Parliament and not to convene a Convention (2010/350/EU)).

13. To compare: the (American) House of Representatives has 435 members. The (British) House of Commons has 648 members, while the (British) House of Lords currently has 829 members.

14. This had been the case prior to the Lisbon Treaty.

15. See Declaration (No. 5) on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament. For the draft decision, see European Parliament Resolution (11 October 2007) on the composition of the European Parliament ([2008] OJ C227/132).

16. Ibid., para. 6: “[T]he principle of degressive proportionality means that the ratio between the population and the number of seats of each Member State must vary in relation to their respective populations in such a way that each Member from a more populous Member State represents more citizens than each Member from a less populous Member State and conversely, but also that no less populous Member State has more seats than a more populous Member State [.]”

17. This additional seat was added, on Italian intransigence, by the Lisbon Intergovernmental Council; see Declaration (No. 4) on the Composition of the European Parliament: “The additional seat in the European Parliament will be attributed to Italy.”

18. Article 14 (3) TEU.

19. Article 1 (1) and (3) of the 1976 Election Act (supra n. 9).

20. This condition had not been part of the original 1976 Election Act, but was added through a 2002 amendment. This amendment was considered necessary as, hitherto, the British majority voting system “could alone alter the entire political balance in the European Parliament” (F. Jacobs et al., The European Parliament (Harper Publishing, 2005), 17). The best example of this distorting effect was the 1979 election to the European Parliament in which the British Conservatives won 60 out of 78 seats with merely 50 per cent of the vote (ibid.).

21. Article 8 of the 1976 Election Act: “Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.” Under the Act, Member States are free to decide whether to establish national or local constituencies for elections to the European Parliament (ibid, Article 2), and whether to set a minimum threshold for the allocation of seats (ibid, Article 3).

22. Both alternatives are provided for in Article 223 (1) TFEU. 23 Article 22 (2) TFEU.

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