Institutional Structure of the European Union

Question 1

What are the five main institutions of the EU?

Answer 1

1. The Commission
2. The Council (of the European Union/ of Ministers)
3. The European Council - this was added in the Single European Act, whereas the other institutions listed were already part of the structure in the EEC Treaty.
4. The European Parliament
5. The Court of Justice of the European Union (CJEU)

Question 2

What other institutions are there?

Answer 2

Article 13 TFEU: formally recognises the European Central Bank and the Court of Auditors as EU institutions.

Although not formally recognised, the Economic and Social Committee and the Committee of Regions act as consultative bodies in the legislative process.

External agencies subject to Union law and their decisions subject to judicial review have also been created.

Question 3

1. Commission

Answer 3

Portrayed as the main locus of power in EU decision-making, but in reality, has very little decision-making power.

They take decisions on the basis of a simple majority.

The European Council’s development has also affected its political leadership role.

Question 4

(i) Appointment of Commissioners

Answer 4

1. President: head of the Commissioners (currently, Jean-Claude Juncker). Appointed for five years, like other Commissioners. Historically, President was not different from other members of Commission and was first among equals (primus inter pares). However, treaty amendments have strengthened President’s powers. He used to be chosen by common accord of Member States. but is now elected by European Parliament (Article 17 (7) TEU). However, Parliament can only elect a candidate proposed by European Council.
2. Other Commissioners: selection made by common accord of President and Council, based on proposals from individual Member States and subject to vote of consent by European Parliament. Under Article 248 TFEU: President decides which portfolio (but not foreign affairs and security policy) is attributed to each commissioner.

Question 5

(ii) Size of Commission

Answer 5

There used to be one national from each Member State in Commission. However, this was slimmed down after accessions, due to possibility of hampering their function.

Thus, Article 17(5) TEU: number of Commissioners should consist of two thirds Member State nationals, with rotation between Member States over time; demographic/ geological variety of Union should be reflected in Commission.

However, smaller Member States thought this would impact them more than larger Member States. Thus, Decision 2013/ 272/ EU: number of Commissioners should be kept equal to number of Member States for 2014 Commission.

Question 6

(iii) Independence of Commission

Answer 6

A key feature of the Commission is that Commissioners do not represent their own Member States, despite being nationals.

The independence of the Commission and the fact that cannot seek/ take instructions from any other government, body or institution are strongly affirmed in Article 17(3) TEU.

Article 245 TFEU: Commissioners should refrain from action incompatible with their duties. Member States should respect independence of Commissioners and not influence them.

Question 7

(iv) Removal of Commissioners

Answer 7

Article 247 TFEU: Commissioners can be compelled to retire by Court of Justice due to inability to fulfil functions or serious misconduct, upon application by Council (simple majority) or Commission.

Article 243 TFEU: Commission is collectively (but not individually) responsible to Parliament, so Parliament can force them to resign (through 2/3 majority when voting). However, this has not happened to date on political grounds; however, Santer Commission did resign in 1999.

Article 17 (6) TEU: President of Commission may request resignation of individual Commissioner (Commissioners’ individual responsibility to President).

Question 8

(v) Commission Bureaucracy

Answer 8

Commissioners are assisted by European civil servants, to fulfil a role similar to that played by the UK civil service assisting ministers.

There are approximately 32,000 people employed by the Commission.

Each Commissioner corresponds to a particular portfolio, e.g. Environment, Health and Food Safety, etc.

Question 9

(vi) Functions of Commission: Political & Legislative Initiative

Answer 9

Exclusive right of legislative initiative (power to propose new law) in most areas of EU law (minus Common and Foreign Security Policy - Member States) and thus, role of political leadership.

However, limited in practice: major policy initiatives require endorsement by European Council (although, Commission itself contributes to shaping European Council’s agenda); European Parliament and Council can take initiative by requesting Commission (who do not need to, but generally do so in practice) to submit legislative proposals concerning areas of EU competence (Article 241 TFEU - Council; Article 225 TFEU - Parliament); Article 11(4) TEU says at least 1 million citizens can request for Commission to put forward proposal for legislative action on particular issue.

Thus, Commission is major actor in initiating policy; however, only one of several actors capable of influencing policy agenda in EU.

Question 10

Ensuring Application and Enforcement of EU Law

Answer 10

Commission is referred to as the ‘guardian of the Treaties’: responsible for execution of the budget, e.g. allocating funds; manage and implement certain Union policies, although this role is shared with Member States; responsible for ensuring Member States comply with Union law obligations and can bring infringement proceeds before Court of Justice against non-compliant Members; power to adopt administrative sanctions in some fields.

Question 11

2. The Council (of Ministers/ of the European Union)

Answer 11

Council is endowed with the most decision power in the EU structure.

All legislation must be adopted by the Council, either on its own or in majority of case, alongside European Parliament. As seen, they can request legislative proposals to be put forward by Commission.

Very involved in the CFSP.

Question 12

(i) Composition of Council

Answer 12

Council is made up of one representative for and from each Member State; they are there to allow each Member State to take part in EU decision-making process. They must have been at ministerial level in their nation and have the authority to commit to their national government.

Thus, members of Council will be prominent politicians in their home States and be accountable to their national Parliament.

No single, unique membership. Rather, Ministers taking part in Council deliberations are dependent on subject-matter. E.g. when Council discusses environmental policy, ministers responsible for environment will attend. There are 10 different Council formations.

Question 13

(ii) Council Presidency

Answer 13

Presidency rotates every six months and between each Member State. With 28 Member States, this means each Member State will hold presidency every 14 years.

Presidency allows each Member State to shape the agenda and priorities of Council; however, limited because role of President is to act as effective broker between Member States, rather than push their own interests. Trio system also blocks this.

It was felt this was too short and impacted continuity of work, so system of coordination across 18 months was put in place. This is where there are 3 presidents, who work as a trio and coordinate their work to ensure better continuity.

Question 14

(iii) Committee of Permanent Representatives (Coreper)

Answer 14

National ministers are in Brussels and take part of EU work only for limited amount of time, due to other responsibilities.

Thus, day-to-day work, e.g. preparing decisions of Council and liaising with Commission in regards to legislative work, is prepared by permanent representatives that meet as committee, known as Coreper - made up of senior national officials. Most important role is sifting through legislative proposals to identify non-controversial points and more difficult points to be considered by Ministers.

Question 15

(iv) Council Secretariat

Answer 15

General Secretariat of Council: administrative supporter of Council’s work.

Question 16

(v) Decision-making

Answer 16

Majority of cases: Council acts on basis on QMV. Sometimes, it will act by simple majority or unanimity.

QMV: the old system took into consideration size of population of Members and larger Members gained more votes. However, Lisbon Treaty introduced new formula based on number of Member States and the population they represent. A QM requires 55% of the number of Member States that represent at least 65% of the EU population - this means QM requires at least 16 Member States representing minimum 65% of EU population. After Brexit, this will be 15.

On the basis of Commission proposals, the thresholds are 72% of Members representing at least 65% of EU population.

Question 17

3. The European Council

Answer 17

Allows Member States to influence EU agenda and shape Union policies. It does so through its political statute, rather than exercise of legal powers.

Primarily, the non-binding conclusions reached by the European Council impact EU policies the most.

Question 18

(i) Composition of European Council

Answer 18

Role and composition of Council defined in Article 15 TEU: Heads of State/ government of the Member States, alongside its President and President of the Commission. High Representative of the Union for Foreign Affairs and Security Policy is also involved.

European Council meets four times a year in Brussels.

Question 19

(ii) Presidency of European Council

Answer 19

Since Lisbon Treaty, there is now a permanent President of the European Council, elected for 2 and 1/2 years’ renewable, by European Council through QMV. Current President is Donald Tusk.

More permanent President means greater coordination among institutions. The aforementioned trio system includes this President, alongside Commission President and President of HRUFASP.

Change from having two meetings a year to four and a President for 2.5 years rather than 6 months showcases European Council’s increased role.

Question 20

4. High Representative of the Union for Foreign Affairs and Security Policy

Answer 20

Known previously as Union Minister for Foreign Affairs in Draft Constitutional Treaty.

Role is to present single, unified voice of EU and ensure coherence and consistency between actions of Commission, Council and European Council in external affairs.

Functions spread across Commission (in charge of External Relations Portfolio and takes part in its deliberations) Council (chairs Foreign Affairs Council and has general responsibility for conduct of CFSP and puts forwards proposals on its development) and European Council.

Question 21

5. European Parliament

Answer 21

Originally the Assembly in EEC Treaty, the Parliament now plays a powerful role in EU decision-making, is almost equal co-legislation with Council and has increased role over appointment of Commission.

Question 22

(i) Composition

Answer 22

Article 14 TEU: European Parliament shall consist of representatives of Union citizens, totalling no more than 750 MEPs; system will be roughly proportional, where maximum number of seats for a Member State will be 96 and minimum, 6.

Elections to the European Parliament take place every five years (e.g. in 2019). Modes of election vary amongst Member States but common principles, e.g. proportional representation; using either the list system or the single transferable vote system.

Variations also present in terms of who can vote in each Member State, e.g. nationals residing abroad and third country national. Court of Justice accepted that Member States can decide, as long as they do not breach principle of equality and give good reason for their choices.

Since Maastricht Treaty, Union citizens residing in other Member States can take part in European elections in their resident country.

Question 23

(ii) Mode of Functioning

Answer 23

MEPs sit in European Parliament according to their political affiliation, rather than nationality. E.g. the largest groupings: European People’s Party (Christian Democrats) and Progressive Alliance of Socialists and Democrats.

Elections to European Parliaments are different from national ones: national elections bring a party to power to carry out a programme within their electoral manifesto; voters in European Parliament elections do not see how their votes enable them to meaningfully influence the governance of the EU.

Question 24

(iii) Powers

Answer 24

Adoption of Union legislation: they have no power to unilaterally adopt legislation, but are almost equal co-legislators with the Council. They are a key player in legislative process, almost more so than national parliaments who are constrained by party discipline to adopt legislation put forward by government. European Parliament is not constrained and can be more active.

Ordinary legislative procedure: previously known as co-decision procedure. Gives Parliament power to block adoption of legislation it disagrees with. Solutions that Council and Parliament will agree on are sought, under mediation of Commission, placing the two on equal footing.

In CFSP area, among others, Parliament has a background role and main focus of power is in Council and European Council.

Question 25

(iv) Supervision/ Control of Commission

Answer 25

Article 243 TFEU: European Parliament has power to force Commission to resign by means of vote of no confidence.

Parliament elects President of Commission and the appointment of the whole Commission is subject to European Parliament’s consent.

However, European Parliament does not truly function as parliamentary democracy. Doing so would liken the Commission to a government, who they are not; they are only one of other actors that contribute to shaping EU policy (supranational institutions: Commission and Parliament; more intergovernmental institutions: European Council and Council).

Question 26

6. The Court of Justice (CJEU)

Answer 26

Article 19(1) TEU: the Court of Justice of the European Union shall include the court of Justice, as well as the General Court and specialised courts. They ensure that EU law is observed, through the interpretation and application of the Treaties.

Question 27

(i) Appointment of Judges and Advocate-Generals

Answer 27

Court of Justice is composed of one judge from each Member State and the General Court, at least one judge per Member State.

Both Courts are assisted by Advocate-Generals, who are tasked with submitting a non-binding, but generally followed, written Opinion recommending how a case should be decided.

Judges and Advocate-Generals in both courts are appointed by common accord of the Member States. Essentially, the government of each Member State designates its judges and the Lisbon Treaty added an extra step to this, whereby a panel of legal experts (e.g. members of national Supreme Courts) give their opinion on whether each nominee is suitable (Article 255 TFEU). This panel is mostly limited to finding unsuitable candidates, rather than selecting the best candidates.

Both roles are appointed for six years and can be renewed.

Question 28

(ii) Jurisdiction of CJEU and General Court

Answer 28

Three main categories of cases can be brought before them:

1. CJEU: Infringement proceedings brought by Commission, against Member State that has failed to fulfil its obligations under the Treaty.
2. CJEU - Preliminary rulings, references from national courts that seek clarification from the Court of Justice on a specific point of EU law.
3. General Court, but their decisions can be subject to appeal before CJEU - Actions in annulment of EU Acts, whereby the Union institutions themselves commit illegalities and the annulment of this illegal act or compensation for damages is sought.

Question 29

(iii) Style of reasoning of CJEU

Answer 29

Different courts developed different interpretive styles, depending in the instruments they are to interpret.

CJEU’s interpretive style of EU law is ‘teleological’, meaning aim/ purpose. Essentially, they ask what the objective of the rule(s) was and what needs to be done to achieve that objective, regardless of author’s intention. This contrasts with purposive interpretation, which asks what the author meant.