Introduction to EU Institutions

1 April 2014

What is the point of institutions?◦Need ‘agents’ to carry out a mission And if MS are deprived of day-to-day control, this promotes stable policies, which in turn promotes investment and legal security

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What is the point of having multiple institutions? ◦1. Specialization / division of labor◦2. Altro?

Who cares

The EU: an institution of many institutions ________ ________ ________ ________ ________ ________ ________

Which institutions?

Economic and Social Committee Committee of the Regions European Environmental Agency European Agency for the Evaluation of

Medicinal Products European Chemicals Agency EU Agency for Fundamental Rights Many others …

Plus various advisory bodies and agencies

The prevailing cliché:

A sui generis organization

-- for many reasons, but we’ll focus on the institutional

framework

Five main institutions (four political, one judicial):

Commission Council

European Council European Parliament

Court of Justice

The EuropeanCommission

Promotes the general interest of the Union; takes appropriate initiatives (Art. 17 TEU)

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Many roles:◦- ‘Guardian of the Treaties’ ◦- Initiator of most EU legislation ◦- ‘The Executive Branch’ ◦- Conducts external relations (but not CFSP) Humanitarian aid Trade relations

European Commission

25,000 employees (for 500 million citizens)◦U.S. executive branch: about 2 million

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Divided into about 33 Directorates-General t

◦Agriculture / Climate Action◦Competition / Education and Culture◦Employment, Social Affairs, Inclusion / Enterprise◦Internal Market / Trade◦Many others

Organization of the Commission

Leader / manager / power to fire t

President is first approved by the European Council on a vote by QMV

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Then – Lisbon raised EP’s profile in two sensest

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◦1. Must take account of the EP elections t

◦2. President is formally elected by the EP itself

President of the Commission

28 people serving five-year, renewable terms t

The 26 are first proposed by their respective MS, then affirmed by the Council in common accord with the President

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Then the group of 28 must be approved en masse by the EP

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◦(Technically, after EP approval the group is finally confirmed by the Council voting by QMV)

College of Commissioners

A ‘collegiate’ body: Commissioners act as a group

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But of course, Commissioners can disagree ◦Can vote, but in practice the norm is to seek

compromise and, if possible, act by consensus t

On rare occasions, disagreements go public, but since the President can force a Commissioner to resign, this is risky for the dissenter

Commission competences

1. Guardian of the Treaties t

Commission “shall ensure the application of the Treaties [and secondary law]” (Art 17(1) TEU)

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Enforces the law against the MS (Action for failure to fulfil obligations, Art 258 TFEU)

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Enforces the law against sister institutions (Council), bodies, agencies (Arts 263, 265)

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Enforces the law against persons (Arts 101, 102)

2. The ‘Right of initiative’: a ‘monopoly’ on the right to propose legislation (Art 17 TEU)

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The ‘monopoly’ is more apparent than real t

◦TFEU enables the Council (241) and the EP (225) to recommend that the Commission make a proposal in a given policy area; if the Commission fails to do so it must justify its inaction

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◦And informally, the Commission is in constant contact with the other institutions, so they always have some input

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◦Citizens’ initiative (Art 24 / Reg 211/2011/EU)

3. Executive powers t

Coordinating, executive and management functions

Implements the EU budget Administers the EU’s special funds:◦European Social Fund◦European Development Fund◦European Agriculture Fund◦European Regional Development Fund

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And other delegated and implementing powers (Arts 290-291 TFEU)

The Council (of the European Union)

Council (of the EU) does not mean ‘European Council’

Council means ministers that act as legislators

European Council: Heads of State and Government (plus Commission President); it decides on the grand, political direction of the EU

First of all

Intergovernmental! National interests!t

One of the two main legislators (with EP)t

(Based on Eur Cncl Guidelines) Defines and implements the Common Foreign and Security Policy (CFSP)

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Forum for coordination of national economic policies, employment policies, asylum/visa/border policies and operational police cooperation

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Council never stays the same …

The Council

The actors participating are national ministers

Example, if a proposal for renewable energy is being discussed, it is the Council, meeting as the ‘Environment Council’, that discusses the text

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◦and the participants will be the national ministers responsible for the environment (assisted by a civil servant)

Ten ‘Council’ configurations …

The Council

General Affairs (consistency; prepares work of European Council)

Foreign Affairs Economic and Financial Affairs Justice and Home Affairs Employment, Social Policy, Health and Consumer

Affairs Competitiveness Transport, Telecommunications and Energy Agriculture and Fisheries Environment Education, Youth and Culture

Council meetings are chaired by the minister from the MS that occupies the Presidency◦ (Except Foreign Affairs Council – High Rep)

The Presidency rotates every 6 months 2013: Ireland, Lithuania 2014: (now) Greece, July-December, Italy 2015: Latvia, Luxembourg Since 2006, Presidencies work in ‘trios’ to carry

out an 18-month program. Example: the trio right now consists of Lithuania,

Greece and Italy

Presidency of the Council

Chair meetings Determine the agenda Facilitate compromise between the MS Represent the Council when it deals with the

institutions and bodies of the EU, e.g., during the legislative process

Overall, very heavy workload ◦Small MS can only handle it because they can

borrow resources in the trio context

Presidency tasks

Some measures can only be adopted by unanimous vote (ad es. tax, foreign pol., pensions)

But most are subject to QMV t

Authors of the Treaties of Nice and Lisbon have given us complex definitions of QMV◦One system until Halloween◦A second system applies from 01.11.14 to

31.03.17◦A third system applies starting 01.04.17

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But here is a simple version: from 01.11.14, Council votes by Double Majority. Three rules..

Voting in the Council

1. At least 55% of the MS (so, 16 of 28); and t

2. total population of the MS forming the majority must account for at least 65% percent of the population of the EU; poi…

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3. ‘Anti-Triumvirate’ Rule: To block legislation, there must be at least four MS opposing, and they must represent at least 35% of the population of the EU

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But in practice, most decision-making is done if possible by consensus…

The European Council

The HSG + Comm. Pres., typically acting by consensus t

58 sitting around a table (min. 4 times/yr)◦ (HSG, Foreign Ministers, plus Comm. Pres. & one other

Comm.) t

Gives the EU “the necessary impetus for its development and … define[s] the general political guidelines thereof” (Art 4 TEU)

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Finally became an ‘institution’ of the EU (Art 13 TEU) t

And for the first time, Treaty (Arts 262-263 TFEU) gives jurisdiction to ECJ to review acts of the European Council if they having binding legal effects on natural or legal persons

Tasks of the European Council

Gives the EU its political direction Resolves disputes that become seemingly impossible

to resolve at level of the Council Defines principles / guidelines of the CFSP Decides whether a revision of the Treaties is required Appoints the President of the European Council Proposes to EP candidate for Pres. of the Commission Selects the High Rep for Foreign Affairs Determines existence of a serious and persistent

breach of the EU’s founding values (including basic human rights) – ex Art 7 TEU (leading to suspension of privileges)

New position following Lisbon: full-time President of the European Council (no more 6-month rotations)

Term of 2.5 years, renewable once Currently: Herman von Rompuy Elected by European Council (QMV) Must not be, contemporaneously, a national official Tasks: prepares the work of the EC◦Chairs its meetings◦Seeks to facilitate consensus◦Handles foreign policy, without prejudice to the powers

of the High Rep◦Reports to the EP after each meeting of the EC

European Council

The European Parliament

Today (and especially since 1999), functions as co-legislator with the Council

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Adopts EU budget jointly with the Council (OLP) t

Grants consent to certain international agreements (if the subject would normally be legislated internally by OLP)

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May propose a Treaty revision to the European Council

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Exercises political control over the Commission t

◦Typically a Commissioner will submit a report to the EP and then appear before it to defend the relevant activities carried out over the last year

Max. 750 + EP President The greater the population, the more MEPs

allocated Example (today):◦Germany, 99◦France, Italy, UK 77◦Spain, Poland 50◦Poveri Estonia, Luxembourg 6

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Of course you have the center-right (EPP) and the center-left (Alliance of Socialists and Democrats)

… and many others

Composition of the EP

President of the EP, elected by the MEPs◦14 VPs

Current President: Martin Schulz (SPD), center-left

Numerous committees and subcommittees

◦20 permanent ones Reviewing, amending and adopting legislation

The EP: organization

Court of Justice (and the General Court)(and specialized courts)

Court of Justice & the General Court (il Tribunale) t

So far, only 1 specialized court (Civil Service Tribunal), judgments appealed to the GC

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Don’t forget the national courts, which can act, in a sense, as ‘EU courts’ when they enforce EU law

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◦And when they use the preliminary reference procedure (Art 267)

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Main task of the ECJ and the GC: t

◦to ensure that in the interpretation and application of the Treaties the law is observed (Art 19(1) TEU)

ECJ: composition, term and

appointment

ECJ: 28 (well paid) judges plus 11 (w. paid) AGs◦Each judge/AG has 4 (w. paid) referendaires

GC: 28 (w. paid) judges, w/ 3 wp refs, basta 6 years, renewable. How is a judge appointed?

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First, a MS proposes judge of recognized competence◦Or a non-judge – e.g., a professor (example: Kokott,

Mengozzi, Lenaerts, Van der Woude, etc.) t

Then an ‘Article 255’ panel assesses the candidate’s qualifications◦7 ex-members of the ECJ and GC, members of national

supreme courts, and one panelist appointed by the EP

Role of the Advocate General t

◦To make, in open court, a reasoned submission and recommend to the ECJ how it should dispose of a case (Art 252 TFEU)

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The AG does not participate in every case t

◦Since 2003, he gives an opinion only if the ECJ thinks that a case raises a new point of law

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Is the Opinion of the AG binding on the ECJ? t

Are AG Opinions important?

ECJ

The President:◦Three years, renewable

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Duties / powers: t

◦Directs the judicial business and administration of the Court

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◦Can grant interim measures (misure cautelari) t

◦Can suspend application of a contested act t

E.g., can suspend enforcement of monetary sanctions imposed buy the Commission or the Council pending resolution of an appeal

ECJ: organization

ECJ can sit as a ‘Full Court’, 28 (min. 15) judges◦Only in (very) exceptional cases

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As a ‘Grand Chamber’ – 13 judges (min. 9) ◦Cases of complexity or importance

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Otherwise, chambers of three or five judges t

Are Grand Chamber judgments more authoritative as precedents?

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Dissenting opinions by the judges?

ECJ: decision-making

Three types: contentious, non-contentious and ‘consultative’

1. Contentious proceedings (non-exhaustive)◦Appeals against GC judgments on points of law Typically in actions for annulment

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◦Actions against a MS for failure to fulfill obligations under EU law (Arts 258-259)

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◦Actions for annulment brought by a MS against the Council and/or the EP (Art 263)

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◦Actions for failure to act (Art 265)

ECJ: jurisdiction

2. Non-contentious proceedings = Preliminary references (Art 267 TFEU), Italian idea◦60% of the 700 avg. annual cases

= Questions of EU law arising in a national court◦Either the interpretation of EU law◦Or the validity of EU acts (not national acts)

La ratio: uniform interpretation of EU law Is it obligatory for a national court ◦(i) to ask the ECJ for a ruling? Most courts versus ‘final’ courts Final courts: Acte éclairé, i.e., already decided, or –

Acte clair, i.e. obvious solution◦(ii) to follow the ECJ’s interpretation?

3. (Binding!) ‘Consultative’ proceedings t

Council, Commission, EP or a MS can ask the ECJ whether an int’l agreement w/ third countries or w/ IOs is compatible w/ the Treaties (Art 218(11) TFEU)

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If incompatible: must renegotiate or amend Treaties Relevant today: EU is acceding to the ECHR

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If not invoked ex ante, no ex post mechanism to attack the validity of an agreement

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◦But (hypothetically…) an EU or national act that implements the agreement can be set aside

Organization and decision-making same as the ECJ: (e.g., 6-yr terms, Grand Chamber, small chambers)

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As for jurisdiction, some differences:◦Actions for annulment, actions for failure to act

(Arts 263, 265)◦EU contractual liability (Art 272)◦Appeals from the EU’s specialized courts◦Competition law cases (appeals against Commission)◦Antidumping cases (e.g., where duties are imposed on

Korean manufacturers)◦Cases concerning EU trademarks

The General Court

Established on a proposal from the Commission after consultation with the ECJ, or at the request of the ECJ after consultation with the Commission

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Civil Service Tribunal◦Since Dec. 2005◦Seven judges◦Handles staff cases, e.g., denial of pensions,

dismissals, etc. t

For the future: maybe an IP tribunal to handle the trademark cases …

Specialized Courts

National courts: ‘juges communautaire de droit commun’ (AG Bot in Case C-555/07, Swedex)

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◦Ingenious, in that it is national courts, not a supranational court, that rule on national acts

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ECtHR: For the ECJ, the ECHR is already a source of inspiration

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◦The ECJ has occasionally deviated from the interpretations of the ECtHR

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◦But if Draft Agreement is endorsed by ECJ, then ratified by all sides (EU, MS and MS of CoE), acts of the ECJ will be contestable before the ECtHR

ECJ: relationship w/ other courts

Basta