Next stage is consideration of the institutions of the EU and the balance of powers between them:
The Council (or the Council of Ministers) is the main law-making body of the EU. According to article 146 of the EU Treaty the Council consists of the representatives of each Member State at ministerial level, authorized to commit the government of that Member State. Initially members of the Council were ministers of foreign affairs of the member states. However it was revealed that such approach is ineffective by the reason of that the Council fulfils the legislative power and the prerogative of legal texts enactment can be professionally realized by the sectoral minister(for example minister of agriculture, health etc). The President of the Council fulfils the management of the Council’s meetings and its subsidiary body. The President tries to execute his terminal program. During the Council’s meeting he acts as a lobbyist and actively tries to approve the bill and if some difficulties occur he can apply so-called “tour de table” (bypass of the table). When he individually discusses and tries to change an opinion of each member. I think that such practice of decision - making is quite perilous, since the President of the Council, as a representative of some member-state can lobby those bills and laws beneficial for his country, while President is supposed to act in the interest of the whole European Union and all member-states.
Moreover, the President of the Council has a right of putting decisions into practice and most of those decisions are the result of President’s initiative. Hence, the president acts as an executive body of the whole European Union. It can be supposed that one person, even if we will consider that person as a “member state” cannot possess too much power, especially in the European Union and in my opinion those powers have to be limited somehow.
According to article 202 of the Treaty on establishment of European community, the Council allots the commission competence of executive power, which were produced by the Council and it can set up a claim on its proper execution. Furthermore, as I have already mentioned it can directly exercise implementing powers itself. Accordingly, there is a possibility in the Treaty of executive authorities’ implementation by the legislative body. Such powers’ overlap can have positive effect, meaning that probably it was introduced for the protection of member-state’s interests of the Council over commission. Indeed, the Council has a potential power “as the preserve of the member states and remains the most obviously intergovernmental body of the Community”3.
Considering the powers of the Council, especially in the early years it seems that the Council has done almost everything, initiating, executing and vetoing legislation.
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3 Ward, I., 2003. A critical introduction to European law, p 22.
Weiler claims “during the foundation period the Council took control over every phase of decision-making very often in the expense of the commission”4.
I think that the Council and commission should always coincide together in many spheres. Article 162 of the EU Treaty prescribes that the two institutions must “consult each other” and “settle by common accord their methods of co-operation” and this cooperation is actually an example of balance of powers between the two institutions.
Council, besides of being main legislative branch also execute financial and control functions. It cannot fulfill much of the executive power, because it acts not on the regular basis and it contains COREPER that assists to coordinate its legislative role. Nevertheless the Council operates as an executive branch as well. For instance, control function (the council executes the control on the commission and the member states) which by its nature refers to the executive branch of powers.
In terms of external authorities, meaning the power of military force usage and sanction approval against foreign countries, etc the Council as non-permanent body cannot fully and properly tackle with those issues and probably those powers have ,at least partially, to be given to the Commission, as the main executive branch in my point of view.
One more element of power’s balance is cooperation of the Council with the Parliament. Currently the authorities on the budget approval are executed by the Council and The Parliament simultaneously. Each of them controls separate articles of expenditures and can deflect the project of budget. Probably in this case, the Parliament and the Council act as a Parliament of a particular state, which originally contains 2 chambers – upper and lower.
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4. Weiler, J., 1991. The transformation of Europe
The decision – making process in the Council is conducted in three ways: 1) unanimity; 2) simple majority; 3) qualified majority. The means of decision – making is determined by the articles of constitutive agreement.
The most widespread way is the qualified majority, assuming the absence of right of “veto” among the Member States. J. Monne claimed that “it is a deep reason and a symbol of incapacity to overcome national egoism”. I agree that it has a negative influence and it is especially visible as EU is widening (more and more countries join the European Union).
The European Parliament 5 is one of the legislative bodies of the Union as it is known that the Commission also posses some of legislative powers.
The role and responsibilities of Parliament are established in articles of the 137 -144 of the EEC Treaty. The name “parliament” has somehow created an illusion that democratic control, as it understood nationally exists within the community. The powers of the Parliament in the legislative sphere should not be interpreted as in the generally accepted meaning of the word.
The members of the Parliament have representative character, meaning that its deputies are not bind by the mandates of the voters, they represent the whole nation of Euro Community, they vote on the basis of their conscience and persuasion. The last point is useful in terms of the interest of the whole EU members; however what I have noticed at this point is in certain sense a deprivation of EU citizens to take part in decision-making process. The whole procedure of voting is built on the deputies conscience, which is not right and constituency have a right of free mandate.
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5 The European Treaties originally referred to this institution as the “Assembly”. Resolution of March 30, 1962 (J. O 1962, 1045). On March 20, 1958 the Assembly had decided to call itself the “European Parliamentary assembly”. Since 1986 it is officially called “European parliament”.
Nevertheless it should be mentioned that all the members of the Parliament are elected by the universal direct suffrage which guarantees direct impact of the population on politics of this supranational institution. The notion of “democratic deficit”, the limitation of parliamentary prerogatives takes place though. The main problem with the Parliament is the lack of democratic process and accountability. It is fairly noticed that “the parliament without the power of initiative is an absurdity”6. Some scholars argue that the reason of this lies in the institutional structure, established in the Treaty of Rome.
The EP is also given choice under part (c) of article 252 and it amends the power it has in the creation of new laws, and it also allows putting forward its own plans and ideas that may be the will of the people, whom they represent, therefore bringing the development of EU law in line with democracy.
However besides of advantages of extended power of the Parliament, its use in wide range of areas has diminished and now mostly applies to economic and monetary union.
Concerning the balance of powers, the Parliament, especially in terms of the legislative fulfils its authorities along with the Council, but the participation of the Parliament in this process is not the same. During the procedure of law pass the Parliament has a right to veto the bill in a different way. The Council can take a decision on the basis of qualified majority, but if the Parliament is against – only unanimously. Hence, in this case veto of the Parliament assumes for the Council complexity of overcoming. Accordingly, so as to “block up” some document or bill the Parliament just has to find an ally of at least one member state.
This actually can lead to the lobbying of the laws and bills and this situation is quite common in the political sphere, unfortunately.
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6 Ward, I., 2003. A critical introduction to European law. p. 25
I admit the strength of the Parliament, as a legislator, but the system of veto has to be modified so as to avoid power abuse and illegal laws enactment.
The Parliament possesses wide control functions in terms of executive branch, the Commission. It has to present to the Parliament the annual report on the activity of European Union and special report, concerning separate problems.
As for executive power, the Parliament can influence only in terms of its control function and assertion of the Commission’s president and if it necessary it can express the distress to the Commission. The Parliament is the only body which can retire the Commission.
The Single European Act has brought many new developments, especially the increased powers of the EP. It was at this stage that the EP would have a significant say in the legislative process of the EU and playing its part in the inter-institutional balance. Before, there had been arguments that the ‘EP’s insignificant role was justified by the fact that it was only indirectly elected and therefore its claim to participate in the legislative process was weakened’.7
De Burca also puts forward that the argument was ‘palpably flawed’, as the Parliament had the strongest democratic claim to take part in the law making process. Nevertheless, the EP had not been placed on an equal footing with the other two institutions, but it had definitely been granted more power then it had before.
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7 Craig, P. and Burca G., 2008. EU LAW. Texts, cases and materials. p. 142
European Commission. The role and responsibilities of the Community are described in the articles 155-163 of EC Treaty. The main function of the Commission is to ensure the proper functioning and development of the common market.
The means of Communities’ formation have been modified repeatedly. Previously the appointment of the Commissions members was under responsibility of the member states. In 90th this right was transferred to the Parliament. In fact existing method of formation has some similarities with the appointment of the government of mixed republic where role of the collective president is conducted by the governments of member states.
Such composition of the Commission is often subjected to criticism as it make difficult to distribute the functions. The EU Treaty prescribes that only 1 or maximum 2 people, citizens of every country can be presented. In practice two citizens enter the commission from 5 biggest States: Great Britain, Germany, Spain, Italy and France (10 people). The remaining member – states are presented only by 1 citizen.
Commission has range of the administrative powers and this leads to the practice of informal methods of concealed influence, especially during the decision – making process. Commission is mostly affected by the member states and big corporations, concerning to which it has wide authoritative prerogatives. Obviously there is a place for the reform in this area and currently the Commission fulfils the reforms and modernization and for this purpose there was an introduction of new position of vice-president on administrative issues. This reform is supposed to hasten and simplify the procedure of decision – making, reduce bureaucratism.
The exclusive right of the Commission is power of legislative initiative, which consists of the following elements:
1. Exclusive right of the bill introduction to the Council.
- Right of the Commission to make alterations to the bills, projects anytime.
- The Council has a right to propose an amendment to the project and Commission can object unanimously.
- Recall power of the project, before its acceptance.
However, the Parliament and the Council have a peculiar right of initiative. Euro parliament, acting on the basis of majority can ask the Commission to give any appropriate proposal on the questions that, as it assumes require the acceptance of the Community’s act with a purpose of Treaty accomplishment (art. 192). The Council can ask the Commission to give any appropriate proposal on the questions that relates to the external policy and policy of security that must provide realization of joint action.
In the legislative sphere, the authorities are divided so, that in the process of the decision – making both the executive and legislative take part. I think that the existence of Commission’s initiative is positive point, as exactly the Commission, having the executive power in practice can see the lacuna in the legislation and can eliminate it. However such distribution of powers can lead to violation of the separation of powers principle. It is known that the essence of this mechanism is in the provision of independent functioning of the bodies of different branches of power, but the presence of legislative initiative of the Commission, which is executive branch, can lead to the paralysis of the legislative branch. Therefore it is necessary to widen the scope of initiative’s subjects.
The EC treaty under the article 86(3) covering relations between member states and public undertakings allows the Commission to make legislation without interference from the other institutions on a limited number of subject matters. Therefore it can be argued how does this can maintain the inter-institutional balance? Though the Council or European Parliament may not have any influence on the commission under this procedure, the commission still faces criticism from member states who argue that a different procedure should be used on such subject maters, so that the council representing the member states can play a legislative role.
In some cases the decisions of individual character in relation to several Member-States, prepared by the Commission, have to be approved by the Council. Thus, in the frames of creating economic and financial union, the Council, on the basis of Commission’s confinement determined the existence in the Member – State the “extraordinary budget deficit”, and in the case of non – fulfillment of the prescribed measures on the situation’s correction, on the basis of the Commission’s statement, decision on the sanctions application is adopted (art 104). Hence, the Soviet – legislative branch is allotted by the judicial powers, for example – forfeit.
Also it is necessary to mention the relation of the Commission and the Court of Auditors. It is known that there is vehement dispute between the two institutions whether the court of auditors should check the effectiveness of budget funds expenditure. The court of auditors considers impossible to exclude those questions from its check-up, while the commission regards that having this right, the court of auditors interfere to the scope of commission’s activity. I think that this right has to belong exactly to the court of auditors because of its competence in this sphere.
The European Union is new formation and we cannot blame it for imperfection or some mistakes that have occurred. I’m sure that there always will be a room for discussion since EU presents indeed unique union of States and contains multitude laws and regulations.
It is clear that the organizational structure of the European Union differs from the structure of a State and the system of power’s balance in the EU is various. There is no clear division of powers and each institution can embrace two or three powers.
It is known that there is no single document in the EU, as a constitution, which would not strictly separate the roles and powers of the institutions, as one cannot work without another. Vesting the power to one body is not a good practice either. Probably the only measure is creation of really balanced power distribution among the institutions of the EU. Currently in the EU some institutions embrace too much power, some experience lack powers. So there is obvious need of some reform which possibly will be expressed in some written document. However even having such document European Union can still experience problems with proper functioning of its’ institution. Many years have to pass before the EU become really powerful and well – organized.
In the relationship between the institutions it is essential not only to have the voice of the citizens of Europe to be heard but also implemented. Therefore, there should be a tendency of proper practical implementation as well.
Reference:
Craig, P. and Burca G., 2008. EU LAW. Texts, cases and materials. New York: Oxford university press.
Entin L., 2007. European Law. Moscow: Norma.
Kashkin, S., 2004. European Union Law. Moscow: Yurist.
Mathijsen , P., 1999. А guide to European Union Law. London: Sweet & Maxwell.
Ward, I., 2003. A critical introduction to European law. London: Lexus Nexus.
Gateway to the European Union
Retrieved November, 20, 2008 from
Quotations on Europe and the EU
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