⇒ Democracy in the EU treaties:

• Art 10 TEU: Representative democracy
• Citizens directly represented
• Member States represented
• Art 11 TEU: Participatory democracy
• Open, transparent and regular dialogue
• Opportunity to make views known
• Art 12 TEU: Role of national parliaments

⇒ International organizations carry out their functions through organs specializing in certain specific tasks

⇒ Typically, international organisations consist of:

• A plenary body
 i.e. where representative of Member States meet
• An executive body

• An administrative body i.e. civil servants
• A judicial body (not all international organisation have this)

⇒ The institutions of the EU: The term ‘institutions’ is defined in Article 13(1) TEU, and it refers to the 7 main organs of the EU: European Parliament, European Central Bank, Court of Justice of the EU, Commission, European Council, the Council, and the Court of Auditors

⇒ The institutional framework and functions have changed a lot

⇒ The constitutive treaties (Euratom, ECSC + EEC) envisaged they would each be served by separate institutions

• But, then came the Merger Treaty (1967) → this established a single ‘Council of the European Communities’ and a single ‘Commission of the European Communities’

⇒ TEU (1992) → this launched the EU as an entity distinct from the existing Communities, but linked them together by one institutional framework

⇒ Lisbon Treaty (2009) → this rolled the different organisations and legal frameworks into one and creates institutional and legal unity

⇒ However, special procedures and competences still apply in the field of Common Foreign and Security Policy (CFSP) and to this extent the pillar structure has not been completely abandoned

⇒ The functions of the institutions cannot be divided neatly along the same lines as the traditional notions of governmental functions (executive, legislative, admin, and judicial) as many of these duties are shared between the institutions

⇒ There is no formal hierarchy between the different institutions - instead the principle of ‘institutional balance’ applies

• This basically means that the functions of the different institutions are for the most part complementary
• Parliament v. Council (Chernobyl) [1990] → The treaties set up a system for distributing powers among the different Community institutions so they would have their own role to play

⇒ Functions of the institutions has evolved

⇒ Some institutions represent various interests

⇒ Seat of the institutions (Article 341 TFEU)

• So where the institutions sit is often shared

⇒ Official languages (Regulation 1/1958 as amended)

⇒ Privileges and Immunities of officials and servants

• Gives them privileges and immunities to ensure that they are able to carry out their duties effectively

⇒ It represents the MS at the highest level: the top decision making body in EU

⇒ It is composed of "heads of state/government of the Member States" together with the President of the European Council and the President of the Commission

⇒ The European Council originated from an informal summit between the heads of state of the Member States in 1972

⇒ European Council exercises supreme political authority in the EU by:

• Providing overall political and strategic direction to the EU

• Taking politically sensitive decisions (revision of the Treaties; appointment of key officials; determination of a serious and persistent breach by a Member States of the EU’s founding values under Article 7(2) TEU)

⇒ Meets twice every six months and reports to the European Parliament on an annual basis (Art 15(3) TEU)

• All meetings are convened by its president (Donald Tusk), who is elected by the European Council by qualified majority for 2.5 years, working in parallel to the President of the European Commission) (Art 15(5) TEU)

⇒ Operates by consensus to adopt decisions, but not ‘legislative acts’

⇒ Tasks include: prepare work of European Council; Chair debates; facilitate consensus; Ensure continuity; represent the institution

⇒ The Council of the EU consists of representatives of the Member States

• One from each Member State and they must be at ministerial level
• The representative from each Member State is not fixed – the representative selected depends on the topic being discussed

⇒ Some argue this creates a conflict of loyalties (between the Member States' duties and the EU's duties) but this is misguided as it is the Council’s role to feed national positions into the decision-making process

⇒ Council meetings are arranged by subject matter into different Council ‘formations’, including:

• General Affairs Council – deals with matters that affect more than one EU policy and prepares agenda for the European Council
• Foreign Affairs Council – normally attended by foreign ministers
• Economics and Financial Council – deals with the budget, Economic and monetary union, and financial markets
• Justice and Home Affairs
• Other formations e.g. Employment, transport, etc.

⇒ Presidency (Art 236 TFEU)

⇒ Plays a key role in decision-making:

• Legislative initiatives - It votes on virtually all Commission legislative initiatives before they become law (Article 16(1) TFEU)
• May initiate legislative process - through Article 241 TFEU
• Can delegate power to the Commission
• Adopts budget (with European Parliament)
• Concludes international agreements on behalf of EU (with third states or international organisations)
• Plays primary role in developing Common Foreign and Security Policy and coordinates cooperation in the field of justice and criminal matters
• Assisted by the COREPER (art 16(7) TEU and 240 TFEU)

⇒ 3 voting procedures apply when decisions are taken by the Council of EU:

• Simple majority
• Unanimity
• Qualified majority voting (QMV) → this is the most used procedure - A16(3) TFEU

⇒ QMV has been controversial (Luxembourg Accords)

⇒ QMV is Based on a combination of (a) population size (b) number of Member States (c) minimum population

⇒ Most of the day-to-day work of the Council of the EU is managed by Committee of Permanent Representatives (COREPER) – A240(1) TFEU

⇒ Role is to prepare meetings of the Council

⇒ Assisted by over 150 working groups and the general secretariat

⇒ See more under Article 16 TFEU

⇒ When using the term ‘Commission’ we are referring to 2 separate entities: the College of Commissioners and the entire institution

• The College of Commissioners refers to the members of the commission (we have 28 individuals at the moment as members)
• The wider way in which the Commission is referred to is by the entire structure = so not just the Commission, but their cabinets and staff and all the civil servants working within the Commission (25,000 of them!)
• In the past the rule was that smaller Member States have one Commissioner and larger Member States have 2 Commissioners, but that principal did not survive for very long because the community started to grow

⇒ Member States are reluctant to give up their right to delegate Commissioners

• The Nice Treaty agreed to limit the number of Commissioners to 27
• Once EU membership reached 27 they decided in the Lisbon Treaty to bring in an arrangement whereby if membership goes beyond 27 then the number of Commissioners would be reduced to 2/3 of the membership of the EU
• This seems unfair as not all Member States would have a commissioner – to make this fair they created a rotating system whereby each Member State will have a commissioner at some point
• However, this new principle was overturned by the Council (based on Article 17(5) TEU) meaning that each MS has a Commissioner (currently 28 commissioners!)

⇒ Complex appointment procedure (article 17(7) TEU)

• The European Council proposes a candidate (by QMV) to the European Parliament as to who should be the President of the Commission
• The European Parliament then agrees to the person proposed, so he/she then becomes the president elect
• Then the president elect, with the Council, selects the prospective members of the Commission from a list provided by the Member States
• This selection then goes before the European parliament for consent – they vote on the candidates in the entirety (they cannot strike off individuals)
• Then the entire Commission, along with the President and the High Representative of foreign affairs, are all appointed by the European Council
• The High Representative was created by the Treaty of Amsterdam and strengthened by the Lisbon Treaty → it represents the EU on the international stage (mainly on foreign policy, security policy and defence matters)

⇒ Members must act independently (Art 17(3) TEU and 245 TFEU)

⇒ Right of dismissal

• Members of the Commission cannot be dismissed individually
• However, they may be compelled by Court of Justice of the EU to retire on grounds of serious misconduct or resign if requested by the Commission President
• The whole commission must resign if a vote of no confidence is passed by the European Parliament (e.g. Jacques Santer Commission in 1999)

⇒ Commissioners must act in an independent capacity and not accept or seek any instructions from third parties

• So commissioners do NOT reflect the Member States' interests
• They are meant to represent the interests of the EU, so are above national politics – article 17(3) TEU

⇒ However, individual Commissioners cannot be dismissed by the Council, European Council or European Parliament

⇒ Since Jacques Santer Commission, accountability has been strengthened

⇒ Decides matters concerning the internal organisation of the Commission – so how the Commission should do its job

⇒ Divides the tasks/jobs of the Commission among members


⇒ Appoints Vice-Presidents

⇒ Can force a particular Commissioner to resign

⇒ The Commission (the big institution) is organized into Directorates General (these are like government departments) with around 25,000 civil servant staff in total

• Directorates General are headed by a Director General and are subdivided into further Directorates
• Various specialized services (e.g. Legal Service and translation services) support its work

⇒ The Commission is coordinated by Secretary-General

⇒ Decisions are subject to collective deliberation

• Decisions not taken individually, but as a group
• So individual Commissioners can decide how to run their own department, but they cannot adopt decisions in the name of the commission – only the entire College of Commissioners can adopt decisions in the name of the Commission
• Commission v. Germany: Principle of collegiality was recognised

⇒ Commission has three main functions:

• Guardian of the Treaties (it enjoys broad ranging supervisory and enforcement powers)
• So the commission is a watchdog (e.g. takes Member States to court)
• Can also bring annulment action against the European Parliament and the Council
• It acts as the initiator of legislative measures in most fields of the EU’s activities → but it cannot initiate legislation in the area of the CFSP
• It functions as the main executive arm of the EU, taking the lead in the implementation of EU policies

⇒ Originally, it was not directly elected (when it was the Assembly)

⇒ Direct elections introduced 1979: this createed a link to the European populations

• So, this introduces direct legitimacy and elections every 5 yrs

⇒ Maximum number of MEPs is set at 750 (+ 1 president) – Article 14(2)

⇒ The allocation of the number of MEPs among Member States has been controversial

• Composition is supposed to be proportionate to each Member State's population
• Each Member State can have at leaspant 6 MEPs and a maximum of 96 MEPs
• It is designed to be digressively proportional

⇒ 75 political parties divided into 11 multinational political groupings

⇒ Plenary session takes place every month


⇒ Served by a President, 14 Vice-Presidents and 6 Quaestors

• The President chairs plenary session and signs parliament documents
• The Vice Presidents work with the President and do tasks allocated by the president
• Quaestors are administrative people

⇒ Work of European Parliament is carried out through various committees

• 20 permanent committees - they prepare agenda of the Parliament and liaise with the other institutions on a permanent basis

⇒ The European Parliament exercises democratic supervision by:

• Electing the Commission President and approving the Commission body
• Discussing the annual work programme of other institutions
• Stating its positions to the European Council
• The European Parliament’s views are fed into the European Commission's decision making process
• Reviewing the annual report of the European Central Bank

⇒ ‘Ordinary legislative procedure’ (Article 289 + 294 TFEU) – see later notes

⇒ The European Parliament is an equal partner to the Council in the legislative process

⇒ Right to initiate legislation

⇒ Entitled to initiate a revision of the Treaties by submitting a proposal to the European Council

⇒ The European Parliament now has an equal right to the Council to adopt the entire annual budget of the EU pursuant to Article 310 TFEU (co-decision)

• Initially the European Parliament was only meant to be consulted about the budget; later the parliament had the power to approve one section of the budget (the non compulsory expenditure); and TODAY you need parliament’s consent for approving the budget

⇒ The European Parliament plays an important role as a defender and protector of Human Rights

⇒ May initiate a proposal that there is a clear risk of a serious breach by a Member State of the values on which the EU is founded (Article 7 TEU)

⇒ Citizens Right to Petition (Art 227 TFEU)

• Ombudsperson (Art 228 TFEU) appointed by the Parliament and investigates maladministration
• Petitioner receives report but no enforcement mechanism

⇒ The CJEU consists of:

• Court of Justice (the old European Court of Justice)
• This is the main/highest judicial institution
• General Court (the old Court of First Instance): this is below the Court of Justice
• Specialized courts (European Union Civil Service Tribunal)
• This is the third tier and there is only one specialised court at the moment called the European Union Civil Service Tribunal. However, the Member States could create more

⇒ Function: “[…] shall ensure that in the interpretation and application of the Treaties the law is observed” (Art 19(1) TEU)

⇒ Judges in the CJEU appointed from all the Member States (28 in total – Art 19 TEU) ‘whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices’ (Article 253 TFEU) and assisted by 9 advocate generals

⇒ Appointed for 6 years (can be reappointed)

⇒ CJEU has a corporate identity (no dissenting or separate opinions)

⇒ Court is assisted by 9 Advocates Generals (like mini-judges)

• Job to give a first opinion on the case pending before the CJEU
• Judges will then look at that opinion, but are not bound by it, but very often follow the opinion (BUT they do not have to do this!)

⇒ No parallel in the English legal system

⇒ Provides Court with a first, neutral legal opinion of the case before it

⇒ Enjoy same status as judges

⇒ Their opinions are very useful because they are often more detailed than judgments

⇒ Court is in permanent session throughout the year

⇒ Served by a President and Registrar

⇒ Judges and Advocates General are assisted by legal secretaries

⇒ Court may sit as:

• Grand Chamber (quorum of 13 judges)
• Full Court (quorum of 15 judges)
• Chambers of 3 to 5 judges

⇒ Ratione materiae: Court is the supreme authority on all matters of Union law (except where jurisdiction is excluded: Article 24(1) TEU)

• So pretty much anything mentioned by the treaties or secondary legislation is fair game
• So the court cannot act where it does not have jurisdiction e.g. CFSP
• Roujansky v. Council – this cases explains the above

⇒ Ratione personae: private parties, Member States, institutions

• Who the judgment applies to/who the parties are before the court

⇒ Three categories of proceedings:

• Contentious (e.g. actions under Articles 258 and 259 TFEU against a Member State for failure to fulfill its obligations)
• Non-contentious (preliminary reference under Article 237 TFEU)
• Consultative proceedings (e.g. in relation to international agreements under Article 218(11) TFEU)
• Member States can ask the court for advice on an international agreement

⇒ The General Court was originally created in 1988 (known as the Court of First Instance) to ease the workload of the European Court of Justice

• Made up of 28 judges. Same rules apply in that they have the same status as the Court of Justice judges
• Jurisdiction defined in A237 TFEU – so the jurisdiction of the GC is more limited, but nevertheless similar to that of the ECJ/CJEU
• Cases from this court can be appealed against in the Court of Justice on points of law

⇒ Specialised Courts

• Currently only EU Civil Service Tribunal exists: deals with staff disputes