The Constitution of the European Union
| Author | Dr. Klaus-Dieter Borchardt |
| Pages | 18-56 |
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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.
Unlike most of the constitutions of its Member States, the EU constitution is not laid down in a comprehensive constitutional document, but arises from the totality of rules and fundamental values by which those in authority perceive them selves to be bound. These rules are to be found partly in the founding Treaties or in the legal instruments produced by the Community institutions, but they also rest partly on custom.
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 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.
What answers, then, does the Community order afford to these questions concerning its structure, its fundamental values and its institutions?
The first pillar is made up of the three European Communities (E(E)C, Euratom, ECSC), which have been deepened and enlarged by economic and monetary union. When the EU was established, the "European Economic Community" was renamed the "European Community". The EEC Treaty became the EC Treaty. This change was intended to give expression to the transition from a purely economic community to a political union. However, this change of name did not affect the three existing Communities (ECSC, Euratom, EC) since it did not entail any formal unification of them. In the course of the establishment of the EU, some institutions of the EC changed their names. The "Council of the European Communities" has since 8 November 1993 been referred to as the "Council of the European Union". The "Commission of the European Communities" has become the "European Page 19 Page 20 Commission". On 17 January 1994, the "Court of Auditors" was renamed the "European Court of Auditors". However, the legal acts of the respective bodies still constitute legal acts of the Community at any given time.
The European Union
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The first pillar embodies Community jurisdiction in its most highly developed form. Within the framework of the EC, the Community institutions may draw up legislation in their respective areas of responsibility which applies directly in the Member States and may claim precedence over national law. At the heart of the EC is the single market with its four basic freedoms (free movement of goods, free movement of workers, freedom to provide services and free movement of capital and payments) and its rules on competition. Policy areas for which the Community is responsible include: economic and monetary affairs (centred around the single European currency, the euro); agriculture; visa requirements, asylum and immigration; transport; taxation; employment; trade; social welfare, education and youth welfare; culture; consumer protection and health; trans-European networks; industry; economic and social cohesion; research and technology; the environment; and development aid.
Before the Treaty on European Union came into being, political cooperation between the Member States was on the basis of the "European political cooperation" (EPC) arrangements set up in 1970, which were enhanced and expanded upon under the Single European Act in 1986/87. These arrangements involved regular consultations between foreign ministers and ongoing contacts between their government departments. The aim of EPC was to bring about better communication and greater convergence of the Member States` positions on all major foreign policy issues and, if possible, a joint course of action. All decisions had to be taken unanimously, however. When security-related issues were involved, cooperation was limited to the political and financial aspects. Recent political crises (the Gulf War, the civil war in former Yugoslavia, the break-up of the Soviet Union) made it very apparent that this foreign and security policy instrument was not sufficient to enable the EU, as the largest trading power in the world, to bring its weight properly to bear on world affairs. In the EU Treaty, the Heads of State or Government have now agreed to gradually develop a common foreign and security policy with the following declared aims:
* 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 in line with the principles set out in the Charter of the United Nations, and the principles and aims of the 1975 Helsinki Final Act and the 1990 Charter of Paris, which in Page 21 1994 were embodied in the Organisation for Security and Cooperation in Europe (OSCE);
* promoting international cooperation;
* promoting democracy and the rule of law, and safeguarding human rights and basic freedoms.
Since the EU is not an individual State, these aims can only be achieved 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 (Ireland, Austria, Finland, Sweden) or the WEU (Denmark, Greece, Ireland). 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; this was reflected in the Treaty of Amsterdam and has acquired a firm legal framework through cooperation between States. For example, decisions of principle are passed in the context of the second (and third) pillars, common positions are set out, joint actions and measures carried out and framework decisions passed. Framework decisions in particular are similar in essence to an EC directive although, like the other tools available to the EU, they are not valid or directly applicable in the Member States. Nor can these decisions and measures be challenged before the European Court of Justice.
The aim underlying cooperation between police and judicial authorities is to afford citizens freedom, security and justice by jointly preventing and combating crime (especially terrorism, trafficking in human beings, illicit drug and arms trafficking, corruption and fraud), racism and xenophobia (Articles 29 and 30 EU). The directive on money-laundering and the creation of a European police authority, Europol, which has been operative since 1998, are two very positive steps that have been taken.
Judicial 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 and illicit drug trafficking (Articles 31 and 32 EU).
As with foreign and security policy, cooperation in this area takes place outside the decision-making procedures of the EC and on the basis of collaboration between individual countries.
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Any consideration of the legal nature of the EC and the EU must start by looking at their respective characteristic features.
The legal nature of the EC was set out in two precedent-setting judgments by the European Court of Justice in 1963 and 1964.
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 (now Article 25 of the EC 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 European Court of Justice for clarification as regards the scope and legal implications of the abovementioned Article of the Treaty establishing the EC.
The European Court of Justice used this case as an opportunity to set out a number of findings of a fundamental nature concerning the legal nature of the EC. 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."
Just a year later, the "Costa/ENEL" case gave the Court an opportunity to set out its position in more detail. The facts of this case were the following: 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 Page 23 his conduct was that the nationalisation infringed a number of provisions of the EC Treaty. In order to be able to assess Mr Costa`s submissions in his defence, the court requested the European Court of Justice to interpret various aspects of the EC Treaty. In its judgment, the Court stated the following in relation to the legal nature of the EC:
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 Page 24 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 EC are:
* the institutional set-up, which ensures that action by the EC is also characterised by the overall European interest, i.e. is reflected in or influenced by the Community interest as laid down in the objectives;
* the transfer of powers to the Community institutions to a greater degree than with 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 Community law, which makes provisions of Community 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 Community law, which ensures that Community law may not be revoked or amended by national law, and that it takes precedence over national law if the two conflict.
The EC 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 EC`s areas of competence.
The EU is no longer merely a planned objective of the integration process, but rather an international organisation in its own right established by the Treaty of Maastricht.
What is unusual about this organisation is its function as an "umbrella" for the three European Communities, its complementary policies and the forms of cooperation between the Member States.
The EU`s legal order nevertheless falls a long way short of that of the EC. For example, the principles of autonomy, direct applicability and primacy of Community law, which are so essential to the legal order of the EC, do not apply to the other two pillars of the EU. Instead, these pillars basically consist of programmes and declarations of intent which are translated into practice through cooperation between governments and are deliberately not allowed to go beyond the preliminary stage of a subsequent, "institutionalised" Union. The fact that the Page 25 EU uses the institutions of the EC when carrying out its tasks does not alter this situation because, as "institutions of the Union", these may only act in accordance with the Treaty on European Union, i.e. only in the context of cooperation between the Member States in the second and third pillars. The Treaty on European Union does not constitute an "EU constitution" regulating all aspects of that Union.
The EC and the EU have, by their very nature, certain features in common with the usual kind of international organisation or federal-type structure, and 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 other international organisations is that it, too, came into being as a result of an international treaty. However, the anchoring of the EC within the EU`s organisational structure has in itself made the EU a considerable departure from the traditional kind of international ties. This is because, although the Treaties establishing the EC were based on international treaties, they led to the creation of independent Communities with their own sovereign rights and responsibilities. The Member States have ceded some of their sovereign powers to these Communities. In addition, the tasks which have been allotted to the EC are very different from those of other international organisations. While the latter mainly have clearly defined tasks of a technical nature, the EC has areas of responsibility which together constitute essential attributes of statehood.
Through these differences between the EC and the normal type of international organisation, the EC and thus also 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`s 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.
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The list of tasks entrusted to the Community 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 state- hood.
Under the EC Treaty, the task of the EU is, by 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 by the gradual approximation of national economic policies in all sectors, to weld the Member States into a community.
The concept of establishing a common market was revitalised by the programme aimed at completion of the internal market by 1992. This programme was born of the realisation that, on the one hand, there remained a series of national obstacles to the full establishment of the freedoms on which the common market is based and that, on the other, important sectors of the economy such as telecommunications and public procurement were not included in the common market. In its White Paper on the completion of the internal market, the European Commission presented the Heads of State or Government of the (then) 10 Member States in June 1985 with some 300 proposals for legal instruments, complete with a detailed timetable, designed to remove all intra-Community barriers by the end of 1992. At the Milan Summit in the same year, the Heads of State or Government entrusted the Commission with the political task of implementing the single market programme. However, to achieve in just seven years what the original Member States had failed to achieve in nearly three decades, a mere declaration of political intent and the adoption of a programme was not enough: the substance of Project 1992 had to be incorporated into the Treaties of Rome. This was done by the Single European Act, which added to the E(E)C Treaty various new provisions, including an Article stipulating that the Community should take all the necessary measures to establish the internal market progressively by 31 December 1992 (Article 14, ex Article 7a EU, and prior to that Article 8a EC). In all major respects, this was achieved within the required time frame, with the Community 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 were long since discontinued.
The Treaty on European Union represented a step into a new economic and social dimension for the EC. The introduction of the euro (Article 121(4) EU) as the single European currency in 11 of the 15 Member States (Denmark Sweden and the United Kingdom declined to participate, Page 27 whilst Greece is still trying to meet the criteria for eligibility) on 1 January 1999 was another clear sign of the interpenetration of the Member States` economies and further strengthened the EU. As the only legal currency within the EU, the euro will, on 1 January 2002, replace the national currencies in all general payment transactions, thereby becoming the currency of all EU citizens. The introduction of the concept of citizenship of the Union (Article 17 ff. EC) further enhanced the rights and interests of nationals of the Member States within the EU. Citizens enjoy the right to move freely within the Union (Article 18 EC), the right to vote and stand as a candidate in municipal elections (Article 19 EC), entitlement to protection by the diplomatic and consular authorities of any Member State (Article 20 EC), the right to petition the European Parliament (Article 21 EC) 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 17(2) in conjunction with Article 12 EC). The unemployment situation in the EU, which has been a source of concern for a number of years, has meant that the need to devise an employment strategy has become a priority task. With this in mind, a separate new Title relating to employment (Title VIII, Articles 125-130) was added to the EC Treaty. This calls on the Member States and the EC to develop a strategy for employment and particularly to promote a skilled, trained and adaptable workforce, in addition to which labour markets should 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 EC will contribute to a high level of employment by encouraging cooperation between Member States and, if necessary, complementing their action while respecting their competences.
The EU Treaty also provides for new policies and forms of cooperation on foreign and security policy, and on police and judicial cooperation.
Neither the Treaties establishing the EC nor the Treaty on European Union confer on the Community and its 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 (principle of specific conferment of powers). 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 conferments of power varies according to the nature of the tasks allotted to the EC and EU.
In the EC, the scope of the powers is very far-reaching. For instance, in the common transport policy any appropriate provisions may be enacted (Article 75(1) EC) and in agricultural policy (Article 34(2) EC) and in the sphere of freedom of movement of workers (Article 40 EC) all necessary measures may be taken. On the other Page 28 hand in competition law (Article 81 ff. EC), culture and education (Articles 150 and 151 EC), public health and consumer protection (Articles 152 and 153 EC) and environment policy (Article 175 EC), the scope for discretion on the part of the Community and its institutions is limited by narrowly defined conditions.
In addition to these special powers to act, the Community Treaties also confer on the institutions a power to act when this proves necessary to attain one of the objectives of the Treaty (Article 308 EC, Article 203 Euratom, Article 95(1) ECSC - subsidiary power to act). 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 subsidiarity principle further debars the Community institutions from extending their powers to the detriment of those of the Member States. In practice, the possibilities afforded by this power have been used with increasing frequency since the EC has, over time, been 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, the numerous research programmes concluded since 1973 outside the European Atomic Energy Community, or the establishment of a European Regional Fund as a means of closing the gap between the developed and underdeveloped regions of the Community. Now, however, the Single European Act and the EU Treaty specifically give the Community jurisdiction in the abovementioned fields. These specific provisions on the powers of the EC have meant that the practical importance of the subsidiary power to act has very much declined.
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 Community to assume obligations towards non-member countries or other international organisations in fields covered by the list of tasks entrusted to the Community. An outstanding example is provided by the "Kramer" case decided by the Court of Justice. This case concerned the Community`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 EC Treaty, the Court inferred the necessary external competence of the Community from its internal competence for fisheries policy under the common agricultural policy.
But the exercise of these powers by the EC is governed by the subsidiarity principle, taken over from Roman Catholic social doctrine, which has acquired virtually constitutional status through being embodied in the EC Treaty (Article 5). There are two facets to it: the affirmative Page 29 statement that the EC must act where the objectives to be pursued can be better attained at Community 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 Community institutions, but especially the Commission, must always demonstrate that there is a real need for Community rules and common action. To paraphrase Montesquieu, when it is not necessary for the Community to take action, it is necessary that it should take none. If the need for Community 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 Community law through the decisions of the Court of Justice. 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 Community rules. The application of the subsidiarity principle was further clarified in a Protocol annexed to the Treaty of Amsterdam. The Protocol sets out all the procedural and material requirements deriving from the principle of subsidiarity which have to be met by the Community`s legal acts. Very specific criteria for the application of this principle now exist, and at the same time the Community institutions` task of monitoring compliance with it has been made easier.
Under the second and third pillars of the EU (common foreign and security policy, and cooperation between police and judicial authorities in criminal matters) the powers of the Community institutions are limited to encouraging and supporting collaboration agreed on between the Member States themselves in the Council. There has been no transfer - either in whole or in part - of powers from the Member States to the Community institutions; instead, the Member States remain directly responsible for their joint foreign and security policy and for cooperation between their police and judicial authorities in fighting crime. They have nevertheless also given undertakings to cooperate further and pursue joint courses of action at EU level while working within the Community`s institutional framework.
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* THE INSTITUTIONS OF THE EU
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The third question arising in connection with the constitution of the European Community is that of its organisation. What are the institutions of the Community? Since the Community 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 Community and the direction of the integration process was intentionally not left to Member States or to international cooperation. The EC has an institutional system that equips it to give new stimuli and objectives to the unification of Europe and to create a body of Community law that is uniformly devised and applied in all the Member States.
The main actors on the Community stage are the European Council and the EC institutions - the European Parliament, the Council of the EU, the European Commission, the European Court of Justice and the Court of Auditors. There are also a number of ancillary bodies: the European Central Bank and the European Investment Bank, and also the Economic and Social Committee and the Committee of the Regions. Of these institutions the Court of Justice and Parliament, or "Assembly" as it used to be called, were from the outset common to the three Communities. This was provided for in a Convention between the original six Member States that was signed in 1957 at the same time as the Rome Treaties. The process of creating common institutions was completed in July 1967 by the Treaty establishing a single Council and a single Commission of the European Communities (the "Merger Treaty"). Since then all three Communities have had one and the same institutional structure.
The European Council grew out of the Summit Conferences of 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. In 1987, the Single European Act (Article 23) formally incorporated the European Council in the Community`s institutional set-up. It is now a body of the European Union (Article 4 EU).
The Heads of State or Government and the President of the Commission meet at least twice a year in this context. They are accompanied by the Foreign Ministers and a Member of the Commission (Article 4(2) EU).
The function of the European Council is to establish policy guidelines for European integration in relation to both the EC and the EU. In the Community context, it does so by taking basic policy decisions and issuing instructions and guidelines to the Council or the Representatives of the Member States meeting in the Council. 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 applications.
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Under the Treaties, the European Parliament (EP) represents the peoples of the Member States of the Community (Article 189(1) EC). 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.
The EP is currently made up of 626 "representatives of the peoples of the Member States of the Community". The number of seats may not exceed 700.
Before 1979 these representatives were selected from the membership of national parliaments and delegated by them. The direct general election of MEPs by the peoples of the Member States was provided for in the Treaties, 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", but there is still no uniform electoral procedure as required by the Treaties. As in 1979, national systems continued to be used in the most recent direct elections in June 1999. The United Kingdom, for example, retained its "first-past-the-post" system for European elections until 1994 and only joined the other Member States in 1999 elections in using proportional representation.
The composition of Parliament is shown in graphic form on page 34; this is the situation following the most recent elections in 1999.
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 chairmen of the political groups and is responsible for the organisation of Parliament`s work, relations with the other EU institutions and with non-Union institutions.
The allocation of a given number of seats to each country means that, in purely mathematical terms, Germany has one MEP for every 808 000 citizens whereas Luxembourg has one representative in Parliament for about every 60 000 citizens.
Now that it is directly elected, Parliament enjoys democratic legitimacy and can truly claim to represent the people of the Community. 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- Page 33 making process must be transparent and the decision-making institutions representative; parliamentary control is required, and Parliament must lend legitimacy to the Community institutions involved in the decision-making process. It is precisely in this respect that the current organisation of the Community leaves something to be desired, despite the progress made over recent years. It is therefore rightly described as a still underdeveloped democracy. The European Parliament possesses only a few of the functions of a true parliament in a parliamentary democracy. Firstly, it does not elect a government. This is simply because no government in the normal sense exists at Community level. Instead, the functions analogous to government provided for in the Treaties are performed by the Council and the Commission, according to a form of division of labour. Nevertheless, the EU Treaty gave Parliament the power to influence appointments to the Commission and the appointment of its President ("right of investiture"). However, Parliament has no influence over the membership of the Council. The Council is subject to parliamentary control only in so far as each of its members, as a national minister, is answerable to the national parliament.
Parliament`s functions can be divided up into three areas, as follows.
Decision-making functions. Parliament`s role in the decision-making process was considerably strengthened by the introduction of two new legislative procedures, namely the cooperation procedure (introduced by the Single European Act in 1987; Article 252 EC) and the co-decision procedure (introduced by the Treaty on European Union in 1993; Article 251 EC), both of which will be considered in greater detail in the section on the Community legislative process. These two procedures enable Parliament to not only put forward amendments to Community legislation at various readings and, within certain limits, get them accepted by the Council, but also to act as a co-legislator on an equal footing with the Council in the context of the co-decision procedure.
Traditionally, Parliament has also played a major role in the budgetary procedure. For example, it has the final say on "non- mandatory EC expenditure", i.e. expenditure not specifically provided for under Community rules: the institutions` administrative expenses (especially the "operational expenditure" on the structural funds), research policy, energy policy, transport policy or environmental protection. This expenditure accounts for almost half the EC budget (46.3 % in 1999). It also has a decisive influence on the way the Community develops in that it is a determining factor (among others) as regards progress and consolidation of fundamental Community policies (such as social, regional, research, environmental and transport policy) and is a basic prerequisite for new policy measures in the fields of education or consumer protection, for example. Parliament may make changes to the way in which this expenditure is allocated and, within limits, may increase its overall amount. This ensures Page 34 Page 36 that Parliament exerts a considerable influence on how funds are earmarked for Community policies financed by means of non-mandatory expenditure. The other half of the EC budget consists of "compulsory expenditure", i.e. expenditure which is mandatory under Community rules (which basically means expenditure on the common agricultural policy). Parliament may propose amendments relating to this expenditure. Provided that the overall ceiling is not exceeded, these amendments are deemed accepted unless the Council rejects them by a qualified majority. Finally, Parliament is also entitled to reject the entire budget, and is responsible for granting formal discharge for the Commission`s budget management for the previous year.
EUROPEAN PARLIAMENT
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Parliament has a right of assent to all major international Treaties (Article 300(3) EC) and to the accession Treaties concluded with new Member States laying down the conditions of admission (Article 49 EU). Parliament`s assent is also required for the appointment of the President and members of the Commission, any amendments to the Statute of the European Central Bank, and also for the decision on the standard procedure for Parliamentary elections.
Advisory functions. Parliament exercises advisory functions primarily through the Treaty provisions requiring it to be consulted by the Council and the Commission (mandatory consultation) or on the basis of optional consultation. Up until the introduction of the cooperation and co-decision procedures, this consultation ensured that Parliament was involved in the only Community legislative procedure existing at the time, namely the proposal procedure. Before a decision was passed by the Council, Parliament had to or could give its views. Now that the actual instances in which the proposal procedure is used have, as we will see, become less common, Parliament`s advisory functions have tended to give way to its decision-making functions, at least as far as the formal legislative procedure is concerned.
Supervisory functions. Parliament has supervisory powers only over the Commission. These are exercised mainly through the fact that the Commission must answer parliamentary questions, defend its proposals before Parliament and present it with an annual report on the activities of the Communities 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 201 EC). Five motions of censure have so far been tabled (most recently in January 1999), three of which were put to the vote and rejected. Since the Treaty on European Union came into being, this motion of censure has increased in importance in that, by virtue of the right of investiture granted by the EU Treaty, Parliament is involved in the appointment of the Commission which has been the object of its criticisms. Since in practice the Council also answers parliamentary questions, Parliament has the opportunity for direct political debate with the two law-making institutions. The Treaty Page 37 on European Union substantially boosted Parliament`s supervisory powers. It is now also empowered to set up special committees of inquiry to look specifi cally 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 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 maladministra tion in the activities of Community insti tutions 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 the 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 Community insti tution, these are Community-wide party- political groupings that cut across national lines.
Parliament also has 17 standing committees. The members of the Commission or their representatives must appear before the relevant committee for their area of responsibility in order to provide clarification about Commission decisions, documents for the Council and the position adopted by the Commission in the Council. This gives the committees a wide-ranging insight into the activities of the Commission and, given that the details of Commission meetings are not usually made public, Parliament thus acquires full access even to what is sometimes confidential information. The committees are thus able to monitor the Commission effectively. They are also responsible for preparing Parliament`s opinions on proposals from the Commission, Parliament`s proposed amendments to any "common position" drawn up by the Council, and Parliament`s resolutions drawn up on its own initiative. With this in mind, the Committees regularly consult independent experts or representatives of the organisations or economic sectors concerned.
Parliament holds its week-long plenary sessions in Strasbourg once every month, except in August. Additional sessions may also be held, particularly in connection with the budget. Shorter emergency sessions (lasting one or two days) may be held in Brussels to deal with current major issues, enabling Parliament to set out its position on matters of importance (such as Community affairs, international affairs, violations of human rights, etc.). All plenary sessions are open to the public.
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An absolute majority of the votes cast is usually sufficient for a decision to be taken. As Parliament increases in importance, however, the Treaty imposes ever stricter requirements as regards MEPs` attendance. The Treaty now provides for a whole range of decisions which may only be adopted if supported by an absolute majority of all Members of Parliament. Following the increase in the number of MEPs to 626, this majority will in future be 314 votes. Finally, any motion of censure against the Commission must not only be backed by a majority of MEPs but also requires two-thirds of the votes cast to be in favour.
The Edinburgh European Council agreed 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 decision on the location of the seats of the institutions taken at the Edinburgh European Council confirmed the validity of these arrangements subject to the proviso that the 12 periods of monthly plenary sessions should be held in Strasbourg. However, there is still a tendency within Parliament for an increasing number of plenary meetings to be held in Brussels, and it is therefore not absolutely certain that Strasbourg will necessarily be the venue for all 12 sessions each year. Indeed, the decision taken at the Edinburgh European Council in principle allows sessions to be held at locations other than Strasbourg, i.e. primarily in Brussels.
The Council is made up of representatives of the governments of the Member States. All 15 Member States send one or more representatives - 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 way obviously means that there are no permanent members of the Council; instead, the representatives sitting in the Council vary according to the subject under discussion. The Council of Foreign Ministers, which normally meets once a month, functions as a "General Affairs Council" to deal with general policy questions. In addition, the various Councils of Ministers meet around 80 times a year to deal with matters in their respective areas of competence, which are referred to in the names by which they are known: Ecofin Council (Council of Economics and Finance Ministers), Council of Agriculture Ministers, Council of Transport Ministers, Council of Ministers for Social Affairs, Council of Environment Ministers, etc.
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Composition of the Council
(See PDF File)
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The Presidency of the Council is held in turn by each Member State for six months. The order in which the office of President is held is decided unanimously by the Council on the basis of the principle that large and small Member States should alternate. The Presidency changes hands on 1 January and 1 July each year. In 1999, it was first of all held by Germany, which was succeeded by Finland. In 2000, it is the turn of Portugal and France. Given this fairly rapid "turnover ", a modicum of continuity is ensured by the "troika" consisting of the previous, current and next incumbents. 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.
The seat of the Council is in Brussels.
In the EC and Euratom, the Council`s main task is to lay down and implement legislation (Article 202 EC). With regard to the ECSC, on the other hand, it is an endorsing body that has to deal with a few, especially important, decisions. The Council is also responsible for ensuring coordination of the economic policies of the Member States (Article 202 EC). Action in this field may take the form of non- binding resolutions or legally binding decisions. The Council`s powers in this area were considerably strengthened and their scope broadened as a result of moves towards the creation of a European economic and monetary union as provided for in the EU Treaty. For example, the Council`s powers to enforce its "broad guidelines of economic policies" were enhanced in that a procedure was introduced under which it may make recommendations to any Member State whose economic policies are inconsistent with those guidelines (Article 99(4) EC). The Council may also issue "warnings" and even impose "sanctions" (Article 104(9) and (11) EC). It also establishes the draft budget on the basis of the preliminary draft from the Commission (Article 272(3) EC), issues a recommendation to Parlia ment on giving discharge to the Commis sion in respect of the implementation of the budget (Article 276(1) EC), and is responsible for appointing the members of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions. In addition, the Council is the supreme administrative authority for all officials and servants of the EC, and is responsible for concluding agreements between the Community and non-member countries or international organisations (Articles 300 and 310 EC).
The Council`s working procedures are set out in detail in its rules of procedure. In Page 41 practice, the Council`s activities are basically made up of three stages, as follows.
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 Comit des reprsentants 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 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 for Agriculture (also known by its French abbreviation CSA - Comit spcial de l`agriculture) was set up in 1960 and assumed Coreper`s tasks on agricultural matters.
Preparations for Council meetings by Coreper and the CSA 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 groups 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" (see below).
The General Secretariat provides administrative assistance to the Council (and also Coreper and the CSA). 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 languages), ensures that any required translations are provided, provides legal advice to the Council and the committees, and administers the Councils`s budget.
Meetings of the Council are convened by its President (the representative of the Member State holding the Presidency of the Council) on his own initiative, at the request of one of its members, or at the request of the Commission. The President draws up a provisional agenda for each meeting, consisting of a Part A and a Part B. Part A contains all items on which agreement has been reached in Coreper or Page 42 the CSA and which can be adopted without further debate. Part B contains those items with outstanding issues and differences of opinion which need further debate by the Council members themselves. It is possible that, in the course of a meeting, an A item turns into a B item if a Council member or the Commission presses for a discussion when the A item is in the process of being adopted. The item concerned is then removed from the agenda and appears as a B item at a subsequent meeting.
The Council only discusses and reaches decisions on documents and drafts which are available in all 11 official languages. 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.
Apart from the meetings at which the Presidency presents its six-monthly work programme and the Commission its annual work programme, Council meetings are not open to the public.
It is in the Council that the individual interests of the Member States and the overall Community interest are balanced. Even though the Member States defend their interests in the Council, its members are at the same time obliged to take into account the objectives and needs of the Community as a whole. The Council is a Community institution and not an inter- governmental conference. Consequently it is not the lowest common denominator between the Member States that is sought in the Council`s deliberations, but rather an optimum balance between the Community`s and the Member States" interests.
Under the Community Treaties, majority voting in the Council is the rule. Unless otherwise specified, a simple majority is sufficient, and each member of the Council has one vote. Normally, however, the Treaties provide for "other arrangements", namely qualified majority voting, whereby votes are weighted so that larger Member States have a greater influence.
The importance of majority voting lies not so much in the fact that it prevents small States from blocking important decisions, as such States could normally be brought into line by political pressure. What the majority principle actually does is to make it possible to outvote large Member States that would withstand political pressure. In what has become known as the "Ioannina Compromise", however, a safety-net was introduced for the benefit of the "large" Member States in the event of small majorities in a Council in which the number of "small" Member States will probably increase in the future. If Council members accounting for 23 to 25 votes state that they will oppose a decision adopted by a qualified majority, the Council must, within an appropriate period, do everything in its power to find a satisfactory solution which can be approved with at least 65 votes in favour. In addition, the Luxembourg Agreement remains a major political factor, at least as Page 43 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. This 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, which means that all members of the Council must be present or represented by other members. The adoption of a decision cannot be blocked by means of abstentions. Unanimity is required for decisions on taxes, the free movement of workers, or the rights and obligations of employees.
The Council: Weighting of votes
10 Germany
10 France
10 Italy
10 United Kingdom
8 Spain
5 Belgium
5 Greece
5 Netherlands
5 Portugal
4 Austria
4 Sweden
3 Denmark
3 Ireland
3 Finland
2 Luxembourg
Qualified majority: 62/87
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Since the accession of Austria, Finland and Sweden on 1 January 1995, the Commission has consisted of 20 members (two members each from Germany, France, the United Kingdom, Italy and Spain, and one from each of the other Member States). The number of members may be changed by a unanimous decision of the Council.
The Commission is headed by a President who is assisted by two Vice-Presidents. The Treaty of Amsterdam considerably strengthened the President`s position within the Commission. He is no longer "first among equals" and enjoys a prominent position in that the Commission must work "under the political guidance" of its President (Article 219(1) EC). The President thus has a "power to provide guidance", which is reflected in his organisational responsibilities, his right to take part in the selection of the other members of the Commission, and his membership of the European Council.
The members of the Commission are appointed "by common accord" of the governments of the Member States for a renewable term of five years. Here the investiture procedure provided for in the EU Treaty comes into play, whereby the governments of the Member States must seek Parliament`s approval of any person they are envisaging appointing as
Composition of the European Commission
20 Members
including
1 President
2 Vice-Presidents
1 Belgium
1 Denmark
2 Germany
1 Greece
2 Spain
2 France
1 Ireland
2 Italy
1 Luxembourg
1 Netherlands
1 Austria
1 Portugal
1 Finland
1 Sweden
2 United Kingdom
Responsibilities
Initiatives for the further development of Community policy
Monitoring observance and proper application of Community law
Administering and implementing Community legislation
Representing the Community in international organisations
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Commission President (Article 214(2) EC). In agreement with the President-designate they then designate the other members of the Commission. The President and members of the Commission are then subject as a body to a vote of approval by Parliament. Once Parliament has given its approval, they are then appointed by the governments of the Member States. Members of the Commission can serve more than one term of office.
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 213(2) EC). 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 Community policy. It is the starting point for every Community action, as it is the Commission that has to present proposals and drafts for Community 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 Community interest so requires. The Council (Article 208 EC) and Parliament (Article 197(2) EC) may also ask the Commission to draw up a proposal. Under the ECSC Treaty, however, the Commission also has law-making powers. In certain circumstances these are subject to the assent of the Council, which enables it to overrule Commission measures. Under the EC Treaty and the Euratom Treaty, the Commission has primary powers to initiate legislation in certain areas (such as the EC 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 Community rules conferred on the Commission by the Council (Article 202, third indent, EC).
The Commission is also the "guardian of the Community Treaties". It monitors the Member States" application and implementation of primary and secondary Community legislation, institutes infringement proceedings in the event of any violation of Community law (Article 226 EC) and, if necessary, refers the matter to the Court of Justice. The Commission also intervenes if Community law is infringed by any natural or legal person and imposes heavy penalties. Over the last few years, efforts to prevent abuse of Community rules have become a major part of the Commission`s work.
Closely connected with the role of guardian is the task of representing the Community`s interests. As a matter of principle, the Commission may serve no interests other than those of the Community. It must constantly endeavour, in what often prove to be difficult negotiations within the Council, to make the Community interest prevail and seek compromise solutions that take account of that interest. In so doing, it also plays the role of mediator Page 46 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 EC budget are similarly wide-ranging. As a rule, however, it is the Member States themselves that have to ensure that Community rules are applied in individual cases. This solution, chosen by the Treaties, has the advantage that citizens are brought closer to what is still to many of 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 Commu nity in international organisations and is in charge of the day-to-day running of Community 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 organisa tions and non-member countries, including accession treaties with applicant States. The Commission represents the Community in the courts of the Member States and - possibly together with the Council - before the European Court of Justice.
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Administrative structure of the European Commission
Commission (20 members) Cabinets
Secretariat General
Legal Service
Press and Communication Service
Economic and Financial Affairs DG
Enterprise
Competition DG
Employment and Social Affairs DG
Agriculture DG
Transport DG
Environment DG
Research DG
Joint Research Centre
Information Society DG
Fisheries DG
Internal Market DG
Regional Policy DG
Energy DG
Taxation and Customs Union DG
Education and Culture DG
Health and Consumer Protection DG
Justice and Home Affairs DG
External Relations DG
Trade DG
Development DG
Enlargement DG
Common Service for External Relations
Humanitarian Aid Office
Eurostat
Personnel and Administration DG
Inspectorate General
Budget DG
Financial Control DG
European Anti-Fraud Office
Joint Interpreting and Conference Service
Translation Service
Publications Office
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A system will endure only if its rules are supervised by an independent authority. What is more, in a community of States the common rules - if they were subject to control by the national courts - would be interpreted and applied differently from one State to another. The uniform application of Community law in all Member States would thus be jeopardised. These considerations led to the establishment of a Community Court of Justice as soon as the ECSC was created.
Composition of the european court of justice
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The Court of Justice currently consists of 15 Judges and 8 (9) Advocates General who are appointed "by common accord of the governments of the Member States" for a renewable 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 take place every three years at the beginning of the judicial year on 6 October.
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 remaining four come from the remaining Member States on an alternating basis. The office of the ninth Advocate General was only created for the period from 1 January 1995 to 6 October 2000. This was because the accession of Austria, Sweden and Finland led to there being an odd number of Judges (15), which in turn meant that the additional Judge required when there were 12 Member States could no longer be retained. For this reason, the second Italian Judge, who had only been appointed as the 13th Judge in October 1994 for a term of six years, was made an Advocate General. The office of Advocate General is clearly based on that of the Commissaire du Gouvernement in the Council of State (Conseil d`tat) and administrative courts in France. It was introduced in the Court to counterbalance the "single-tier" nature of court proceedings, i.e. the absence of any appeal procedures. the task of the Advocates General 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 (Article 59(1) and (2) of the rules of procedure of the Court of Justice) and are published together with the judgment in the Court reports. Advocates General can only influence judgment through the strength of the arguments in their opinions; they are not involved in any deliberations or voting on the judgment.
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 223(2) EC). This means that Judges, public officials, politicians, lawyers or university lecturers from Member States may be appointed. The variety of professional backgrounds and experience is beneficial to the Court in that it helps 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.
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(Picture in PDF File)
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When a case has been referred to the Court, the President appoints a Judge Rapporteur who, until a final judgment is issued, is responsible for taking the necessary decisions and proposing solutions in the course of the proceedings. This includes the proposal as to the formation in which the Court should hear the case and give judgment. The Court sits in the following possible formations: the full Court (15 Judges), the "small plenum" (11 Judges), two chambers of 7 Judges (of which only 5 pass judgment)s and 4 chambers of 3 or 4 Judges (of which only 3 pass judgment).
Apart from the cases which, if a Member State or Community institution so requests, must be heard by the full Court, the decision on which chamber will hear a case is taken when the written procedure is completed and the report of the Judge-Rapporteur and the views of the Advocate General have been considered. This decision is taken in accordance with internal rules laying down certain criteria, among which the legal complexity, the existence of firmly established precedents, and the financial implications of proceedings are of crucial importance. A case may be referred back to the plenary Court at any time - even during or following deliberations on judgment. If this happens, however, the oral procedure is reopened before the full Court.
The European Court of Justice is the highest and at the same time the sole judicial authority in matters of Community law. In general terms, its task is to "ensure that in the interpretation of (the) Treaty the law is observed" (Article 220 EC).
This general description of responsibilities encompasses three main areas:
-
monitoring the application of Community law, both by the Community institutions when implementing the Treaties, and by the Member States and individuals in relation to their obligations under Community law;
-
interpretation of Community law;
-
further shaping of Community 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 the national system. The Court of Justice acts as a constitutional court when disputes between Community institutions are before it or legislative instruments are up for review for legality; as an administrative court when reviewing the administrative Page 52 acts of the Commission or of national authorities applying Community legisla tion; 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 Commis sion decisions imposing fines; and as a civil court when hearing claims for damages or interpreting the Brussels convention on the enforcement of judg ments in civil and commercial matters.
Like all courts, the European 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 Court of First Instance (CFI) was established under the Single European Act to take the pressure off the Court of Justice.
Composition of the Ccourt of first instance
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The CFI is not a new Community 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 CFI are identified by means of a "T" ( for tribunal), whilst those referred to the Court of Justice are coded with a "C"( for court) (e.g. C-1/99).
The CFI consists of 15 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 CFI may sit as a full Court (15 Judges) or in five chambers of 5 Judges or five chambers of 3 Judges. Cases are heard by the full Court only in exceptional circumstances; it is usually the chambers which hear cases and give judgment.
Although the CFI was originally responsible for only a limited range of cases, a review of its responsibilities carried out in 1993 means that it is now the court of first instance for all direct actions against Community legal acts brought by natural and legal persons, albeit subject to the legal supervision of the Court of Justice.
The European Court of Auditors was set up by the Treaty of 22 July 1975 and began work in Luxembourg in 1977. It consists of 15 Members, corresponding to the present number of Member States; they are appointed for six years by the Council following consultation with the European Parliament.
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 the 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 Community financial support by private individuals is in compliance with Community law.
The chief weapon in armoury of the Court of Auditors 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 Communities and thus brought to public attention. It may also make special reports on specific areas of financial management, and these are also published.
The purpose of the Economic and Social Committee (ESC) is to give the various economic and social groups (especially employers and employees, farmers, Page 54 carriers, businessmen, craftsmen, the professions and managers of small and medium-sized businesses) representation in a Community institution. It also provides a forum for consumers, environmental groups and associations.
The ESC is made up of 222 members (advisors), drawn from representative organisations in the individual Member States, who are appointed by the Council (following an opinion from the Commission) for four years.
The allocation of seats is:
Belgium 12
Denmark 9
Germany 24
Greece 12
Spain 21
France 24 I
reland 9
Italy 24
Luxembourg 6
Netherlands 12
Austria 12
Portugal 12
Finland 9
Sweden 12
United Kingdom 24
The members are divided up into three groups (employers, workers and "various interests"). Opinions to be adopted at plenary sessions are drawn up by "study groups" consisting of ESC members (in which their alternates may also participate as experts). The ESC also works closely with the committees of the European Parliament.
The ESC, which was established under the Treaty, 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 very useful for the Commission and the Council because they show what changes the groups directly affected by a proposal would like to see. The ESC`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 Community, which provided the basis for the "Social Charter" proposed by the Commission (and adopted by 11 of the Member States).
A new advisory body was set up alongside the ESC by the EU Treaty: the Committee of the Regions (COR). Like the ESC, it is not strictly a Community 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 (Council, Parliament, Commission, Court of Justice, Court of Auditors).
Like the ESC, the Committee of the Regions consists of 222 representatives of regional and local authorities in the Member States. Seats are allocated to the Member States using the same weighting as for the ESC. The members are appointed by the Council for four years acting unanimously on proposals from the respective Member States (and following an opinion from the Commission).
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There are a number of areas in which consultation by the Council or the 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, but without any legal obligation, in connection with various draft legislation ("non-mandatory consultation").
As financing agency for a "balanced and steady development" of the common market, the Community has at its disposal the European Investment Bank, which 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 European Central Bank (ECB) is at the heart of economic and monetary union (EMU). Its task is to maintain the stability of the European currency, the euro, and control the amount of currency in circulation (Article 106 EC).
In order to carry out its 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 Community institutions, governments of Member States or any other body. The Community institutions and the Member States" governments will not seek to influence the ECB (Article 108 EC).
The ECB consists of a Governing Council and an Executive Board. The Governing Council comprises the governors of the national central banks 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 112 EC).
The European System of Central Banks (ESCB) is composed of the ECB and of the central banks of the Member States (Article 107 EC). It has the task of defining and implementing the monetary policy of the Community, and has the exclusive right to authorise the issue of banknotes and coins within the Community. It also Page 56 holds and manages the official foreign reserves of the Member States and promotes the smooth operation of payments systems (Article 105(2) EC).
