European Court of Justice where judges rule on EU laws

EUI

INSTITUTIONS

European Court of Justice

The Court of Justice, based in Luxembourg, is not to be confused with the European  Court of Human Rights, which meets in Strasbourg and is part of the machinery of the Council of Europe. The latter has nothing to do with the EU, even though all twenty-seven member states of the EU have signed the European Convention on Human Rights. The Court of Justice is exclusively concerned with the administration of Community law.

The Court is made up of twenty-seven judges appointed for a renewable term of six years. Judges are nominated for appointment by the member states, those nominated being individuals whose independence is beyond doubt and who have usually either held high judicial office in their own countries or who are international jurists of known competence. The judges choose one of their members to act as president of the Court, with a three-year term of office. The presiding judge administers the work of the Court, in particular assigning cases to specific panels of judges and appointing the individual judge-rapporteurs who will be in charge of those panels.

Eight advocates general are nominated as of right by the five largest member states of the European Union: Germany, France, the United Kingdom, Italy and Spain. The other three positions rotate in alphabetical order between the twenty smaller member states. These are currently (2007) Slovenia, Slovakia and Portugal. Being only a little smaller than Spain, Poland has repeatedly requested a permanent representative. Advocates general are in charge of collecting documentary and other evidence for presentation to the judges, together with their own conclusions and legal judgments.

Because of the pressure of business as the Community grew, a second court, the Court of First Instance, was introduced in September 1989 in order to deal with the consequences of the Single European Act and specifically to protect individual interests. This innovation allowed the Court of Justice to concentrate on the interpretation of Community law. The Court of First Instance also has twenty-seven judges as members, but does not have advocates general, one of the judges acting in the capacity of advocate if required.

Cases can be brought before the Court by the institutions of the Community or by member states. Possibly the most frequent are cases brought by the Commission against member states for non-compliance with Community directives or regulations. Cases can, however, be brought by individuals or organizations who feel that their national governments are penalising them in breach of Community law, although these are usually held before the Court of First Instance. Many cases are referred to the European Court after they have failed on appeal in the national courts, but the Luxembourg judges emphasise that they are not a court of appeal. The only valid basis for appeal against a member state’s national courts is in situations where there has been a misinterpretation of Community law by those courts.

Actual court actions, however, only form part of the Court’s duties. More than half the work done by the Court arises from requests by member states for clarification or interpretation of some aspect of Community law Only the most important cases, involving the Community institutions or member states, are heard before a full plenary Court, for which the quorum is seven judges. Most cases are heard in chambers before a panel of three, five for more complex matters.

Since the Court began as an institution of the ECSC in 1954, it has heard well over 9,000 cases and delivered more than 4,000 judgments. However, for the average individual or small business the Court of Justice is far too expensive (legal aid is not available) and the process is far too slow, even urgent cases taking two years to reach judgment.

Council of Ministers (aka Council of the European Union, post-Maastricht)

The twenty-seven-strong Council of Ministers is the decision-making body of the European Community. It has a crucial role in the legislative process, although the Maastricht Treaty increased the role of Parliament through the co-decision procedure. However, to use the term ‘Council of Ministers’ as though there is only one institution of that name is misleading. The treaties refer to one Council, but there are more than twenty, because the type of minister present varies according to the subject matter of the meeting. Transport ministers will meet to discuss transport policy, energy ministers to discuss energy, and so on. If there is such a thing as the definitive Council of Ministers, it is the General Affairs Council which is made up of foreign ministers from the member countries. It has the widest brief, dealing with general policy issues rather than foreign affairs. Another important council is the Ecofin Council which is made up of the economic and finance ministers and deals with matters such as developments within the euro zone. The other councils – transport, energy, etc. – are known generically as technical councils. In each case, there is one representative from each member state.

There are Council meetings throughout the year. They are normally convened in Brussels, although meetings are held in Luxembourg during April, June and October. As an example of how busy the programme can be, there were eighty-four formal ministerial meetings in the year 2001, the General Affairs, Ecofin and Agricultural Ministers’ Councils collectively accounting for thirty-eight of them. Whereas they meet at least monthly, some of the minor technical councils may not meet more than once or twice a year. Of course, advisory groups and working parties continue to operate between meetings and some groups, especially the foreign and finance ministers, will meet informally outside Brussels, perhaps within the context of a social weekend.

Leadership of the Council is determined on a rotating basis among member states, each of which holds the responsibility for a period of six months. During their tenure, ministers of the country holding the presidency can call Council meetings, decide the agenda, introduce initiatives and take the chair for all Council meetings. The position of president is a key one in the affairs of the EU, for as Martin Westlake9 observes: ‘the modern presidency is at one and the same time, manager, promoter of political initiatives, package broker, representative to and from the other Community institutions, spokesperson for the Council and for the Union, and an international actor’.

The Secretariat and COREPER

There is a vast bureaucratic input into Council meetings from a number of sources, including the 2,000 members of the General Secretariat. Headed by the secretary general, they have an important role in brokering deals and crafting compromises. Their duties in servicing the Council involve, among other things:

  • • Preparing for meetings
  • • Keeping records and giving advice
  • • Providing all the services that might be looked for in civil servants
  • • Providing some services peculiar to the European situation, such as the need to translate working documents into all twenty-three official  languages.

COREPER (the Council of Permanent Representatives of Member States) is of considerable importance in the policy and decision-making processes of the Community. It was recognised as an official organ of the Community by the Merger Treaty of 1965: ‘A committee consisting of the Permanent Representatives of the Member States shall be responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the Council’. The committee is not only a vital part of the legislative process but is the principal channel of communication between the institutions of the Community and national governments.

The permanent representatives are the Brussels-based ambassadors of the member states. In the case of Britain, while civil servants seconded to the Commission must forget their national loyalties and civil servants accompanying ministers to Council meetings are transient, the senior British diplomat sent to Brussels as permanent representative (UKREP) ensures the continuous representation of British national interests at all times. The permanent representative has a large staff including a delegation of up to forty officials, most drawn from the Foreign Office but with other policy areas also represented.

COREPER has developed into one of the most powerful groups of officials in the world. Over the years the committee has begun to devolve some of its duties to specialists and, as a result, now comprises literally hundreds of officials, splitting for convenience in 1962 into two bodies: COREPER I and II. The two committees into which COREPER is divided are responsible for:

  • • Keeping the EU’s institutions and the governments and bureaucracies of the member states informed of each other’s work
  • • Ensuring that national and European policy are not at loggerheads
  • • Finding compromises so as not to undermine core national positions.

In practice these different functions are difficult to separate and merge into a more general aim of keeping the Union working smoothly.

Westlake’s analysis of the Council at work suggests that 80 per cent of its business is conducted in working parties, 10 per cent in COREPER, 5 per cent in the Council and 5 per cent in corridors. The corridors are a hive of activity and the location of much bargaining and compromise. They make it possible for the formal Council meetings to reach agreed decisions more easily. COREPER and the vast number of working groups therefore account for the bulk of the background, preparatory work.

Voting in the Council

There are three ways in which the Council of Ministers can vote to take a decision: by unanimous vote, by simple majority or by qualified majority. Originally, decisions of the Council needed to be unanimous, in effect giving a dissenting state the veto, a fact exploited by de Gaulle in the 1960s. The Luxembourg Compromise of 1966 reduced the need for unanimity, extending the number of issues that could be settled by qualified majority. Since then there has been a steady extension of qualified majority voting (QMV), most significantly as a result of the Single European Act.

In pillar one of the TEU, unanimity is still required for:

  • • All new policies
  • • Amendments to the policy issues of taxation and industry
  • • Matters relating to regional and social funds
  • • Where the Council wishes to agree or amend a policy against the wishes of the Commission.

Since Luxembourg in 1966 the member states have additionally insisted on retaining the right to veto any decision they can claim is against their national interests. However, the veto is usually regarded as being like a nuclear deterrent, held in reserve but never used. The Major government nonetheless decided that its use was justified as a result of the impasse reached over BSE.

For the other two pillars created by the Maastricht Treaty – foreign and security policy (pillar two) and justice and home affairs (pillar three) – the Council was given the sole right to act as decision-maker and unanimity was the rule. (Since then, policy on asylum, immigration and visas has been transferred to the First Pillar, signaling a shift towards more supranational decision-making in these areas.)

QMV is the most contentious of the voting methods, since it is directly related to the question of states’ rights and the comparative strengths of small and large states within the Community. Under QMV the member states are given so many votes each, with a token acknowledgement of the comparative size of the member states. From the start it was agreed that for a decision to be passed it would require in the region of 70 per cent of the votes, representing something like 60 per cent of the population of the Community. The votes are distributed in such a way that the large countries acting together cannot outvote the smaller, needing the combination of two major countries and at least one more to block the decision-making process.

The weighting given to individual states is of critical importance, and has been a matter of fierce debate in every enlargement. It has proved a vexed topic in a series of IGCs and was a major issue to be resolved before the latest increases in membership in 2004 and 2007. Under the arrangements painfully negotiated at Nice and amended to take account of the latest enlargement.

A ‘triple lock’ operates under which any decision requires that three criteria be fulfilled:

  • • A QMV decision must have 73.9 per cent of the votes
  • • QMV must be supported by a majority of the member states
  • • Any individual member state may require confirmation of a ‘demographic test’, namely that the QMV represents at least 62 per cent of the total EU population.

In the 1990s, majority voting was very seldom used by the Council of Ministers, even in areas where it was permitted. It remains the case that any member state can call for its use, but the Council prefers to seek agreement on its policies.

Members are aware that a formal vote can be divisive and a cause of resentment.

This may make it more difficult to work together in the future. Yet every new treaty has expanded the policy areas in which QMV operates both Nice and the abortive new constitution each adding some thirty additional issues subject to its provisions. Today, it can be applied on around three-quarters of all legislation and is regarded as the norm in matters concerned with the single market and any issues related to the clarification and implementation of existing law and policies.

Simple majority voting, with each state allowed one vote, is not permitted on policy or legislative proposals. Its use is mainly confined to procedural matters.

QMV in the Union of twenty-seven states

Countries Number of votes

France, Germany, Italy, UK 29

Poland, Spain 27

Romania 14

Netherlands 13

Belgium, Czech Republic, Greece, Hungary, Portugal 12

Austria, Bulgaria, Sweden 10

Denmark, Finland, Ireland, Lithuania, Slovakia 7

Cyprus, Estonia, Latvia, Luxembourg, Slovenia 4

Malta 3

NB To be approved, a policy decided under QMV requires 255 votes. In effect, therefore, there is now a blocking minority of 90/345 votes. These Nice voting rules will remain in place until 2014 and after enter in force the new provisions of Lisbon Treaty.

European Council

Throughout the 1960s the heads of government of the member states of the Common Market met from time to time in what were largely unofficial and informal summits. In the early 1970s, however, after the First Enlargement, a feeling grew that there was a lack of leadership. The institutions of the Community coped well enough with detailed policy but there was no focus of authority to give direction and purpose to future developments. It was agreed at the Paris Summit in 1974 that the occasional summit meetings should be formally institutionalised.

The term ‘European Council’ first appeared in the Single European Act of 1986, but clarification of its functions only came with the implementation of the Maastricht and Amsterdam treaties in 1993 and 1999, respectively. However, since the European Union became established through these treaties, the European Council gained a particular importance as the sole body which links, coordinates and integrates the three separate pillars of the EU. Article D of the Treaty of Maastricht sets out its role as being to ‘provide the Union with the necessary impetus for its development and define the general political guidelines thereof ’.

The Council still does not form part of the legal framework of the EU. It cannot legislate unless it transforms itself for the purpose into an extraordinary meeting of the Council of Ministers. Moreover, decisions of the European Council are not subject to the jurisdiction of the Court of Justice. It is a political body, whose role has dramatically grown in importance. In many recent meetings, the assembled heads of state and government have resolved issues left undecided elsewhere and provided real leadership. It sets the agenda for future developments, the major initiatives on Treaty reform, direct elections, monetary union and the creation of a rapid reaction force having been set in motion at this level.

Much valuable work of the European Council takes place outside the meeting room. Some of the most important contacts take the form of informal head-to head meetings between individual leaders, popularly known as ‘fireside chats’.

Most of the preparation, however, is accomplished by the officials of the presiding country working alongside officials from the various national delegations.

There is always far too much on the agenda for the participants to debate at length. In the months preceding the Council, teams of officials will have drawn up papers which they feel will be agreed by the members of the Council. If they are successful, it is only the finer points of detail that need to be discussed in the meeting. In the past, the European Council has met at least twice a year, a meeting usually being held in the final month of each six-month presidency and hosted by the country holding the rotating presidency at that time. The meetings of the European Council have therefore come to represent a public statement on the performance of the presiding country during its half-year tenure. Under the Lisbon Treaty, the intention is to separate the position of president of the European Council from that of president of the Council of Ministers. The presidency of the European Council will become an elected position, held for thirty months. Election will be conducted between the elected heads of government of member states.

Other EU machinery

Court of Auditors

The European Court of Auditors is an important institution set up to scrutinize the Union’s budget and financial accounts. It has been in existence since 1977 and has increased its visibility and enhanced its reputation over the last decade. Its powers were strengthened at Maastricht, in answer to calls for greater ‘transparency’ in the EU.

The Court has twenty-seven members – one for each member state – all of them suitably qualified and often being members of an official audit body in their own country. Nominees have to be approved by the Council of Ministers and the European Parliament. Appointment is initially for six years, after which time the appointment can be renewed. From among their number the Court elects one member to act as president for three years.

The duties of the Court of Auditors are quite obviously related to auditing the Community’s annual budget and validating the Commission’s efficiency in administering

that budget. There are groups within the Court of Auditors that deal with specific budgetary questions such as the CAP or the Regional Fund. Since being revised at Maastricht, the Court has extended its activities away from mere concern over financial rectitude and is more involved in questions of policy effectiveness.

To that extent the Court both checks that the legal regulations laid down by the Community are observed and ensures that the Union is getting value for money.

European Investment Bank

Set up under the terms of the Treaty of Rome, the European Investment Bank (EIB) provides long-term loans for capital investment and is controlled by a board representing all twenty-seven member states. Administering a vast loan budget, the EIB is devoted to strengthening the economies of EU member states. To this end it has two principal areas of operation:

  • • underpinning regional development in the Union
  • • financing trans-European networks (TENs), large-scale and long-term projects in the fields of transport, telecommunications and energy.

Although the EIB is principally concerned with lending within the Union, it also assists with the EU’s financial involvement with non-member states. The Bank operates in more than a hundred countries, supporting development projects.

Economic and Social Committee

The Economic and Social Committee (ESC) was written into the Treaty of Rome because it was felt that the then Assembly would not represent fairly the various sectional interests of the Community. The resulting committee has two main functions within the EU. It acts as:

  • • A forum for special interest groups in the exchange of views and ideas
  • • A body with a minor but integral place in the policy/decision-making process.

Originally the ESC was seen purely as a consultative body for the Council and Commission but successive treaties have extended the range of mandatory issues that must be referred to it. Also, the Amsterdam Treaty allows for the ESC to be consulted by the European Parliament as part of the decision-making process.

The 344 members of the ESC are appointed by their national governments for a renewable four-year term of office, membership being roughly proportional to the size of the member state. Membership of the national delegations can be divided into three broad socio-economic groups:

  • • Employers – of which about half represent industry, the other half being from commercial bodies or services in the public sector • workers – which basically means representatives of trade unions
  • • Other interests – about half represent protectionist groups in areas of importance to the Community such as agriculture and transport, the other half representing special interest groups such as the environment or consumer affairs.

Members serve as part-time representatives. The ESC meets in plenary session about ten times each year. Most of its work is in subcommittee, drawing up opinions and producing advisory documents which are often well researched but liable to be ignored.

Membership of the ESC

  • • Germany, France, Italy and the United Kingdom (24 members each)
  • • Spain and Poland (21)
  • • Romania (15)
  • • Belgium, Greece, the Netherlands, Portugal, Austria, Sweden, Czech Republic and Hungary and Bulgaria (12)
  • • Denmark, Ireland, Finland Lithuania and Slovakia (9)
  • • Estonia, Latvia and Slovenia (7)
  • • Luxembourg and Cyprus (6)
  • • Malta (5)