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This section will consider the major institutions of the EU and the law-making processes. It is important to understand these concepts as EU law has traditionally been an independent source of law within the legal system of England and Wales. Even following on from the UK’s departure, EU law passed prior to ‘exit day’ will remain a source of English and Welsh law, as discussed in a later section and so understanding the processes by which it is made is important to understanding law-making in England and Wales now and into the future. 

 

The institutions of the European Union

The EU comprises a number of institutions, each of which has a distinct role in the Union’s legal system. These roles are determined by and detailed in the Treaty. Some of the institutions also have powers and obligations in relation to the process of making and enforcing the law. The official institutions of the EU can be found in Article 13(1) TEU that states that the ‘Union’s institutions shall be:

•      the European Parliament,

•      the European Council,

•      the Council,

•      the European Commission (hereinafter referred to as ‘the Commission’),

•      the Court of Justice of the European Union,

•      the European Central Bank,

•      the Court of Auditors.’

 

What follows is a brief explanation of the composition of the major institutions[1] along with an explanation of their role in the EU’s legal structure and the process of law-making. As mentioned previously, the EU is an international organisation that is organised and limited by its Treaties. It is therefore sensible to begin with the Articles that govern the roles of the institutions. 

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The European Council

Article 15(1) TEU: ‘The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions’ (emphasis added).

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It should be clear from the preceding that the European Council (not to be confused with the Council of Europe or ‘the Council’)[2] is a political institution. It provides high-level direction to the EU and sets the agenda for law-making over a long period of time. The European Council used to meet informally and was outside the institutional structure of the EU as the Member States used to meet at impromptu summits to discuss matters and this became regularised over time. The European Council was, eventually, brought fully within the EU legal structure as an institution by the Treaty of Lisbon and it now meets ‘twice every six months.’[3] 

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Composition

The European Council consists of the Heads of State or Government of the Member States and its President and the President of the European Commission.[4]The preceding demonstrates that the European Council is extremely ‘high level’, in terms of policymaking. The UK was represented by the Prime Minister and the other Member States by the equivalent Head of State.

 

The President of the European Council was created by the Treaty of Lisbon. The thinking was to provide some consistency to the operation of the European Council and to give the EU real ‘weight’ on the world stage. The post of President of the European Council proved to be highly controversial, as the President is not elected by the European people.   

 

The Council of the European Union

Article 16(1) TEU: ‘The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policymaking and coordinating functions as laid down in the Treaties’ (emphasis added).

 

The Council of Ministers (hereinafter ‘the Council’) has many roles and responsibilities. It takes the ‘high level’ policy decisions of the European Council and turns them into the outline for a legislative programme (but does not propose the legislation itself, which is a job for the Commission). It represents the interests of the Member States.

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For the purposes of this textbook, the most important role of the Council is that it is the final decision-maker on the majority[5] of secondary legislation passed by the EU. In other words, nearly no piece of secondary law can come into force unless it has been approved by the Council, either acting unanimously or by a qualified majority. You should think to yourself why the Member States reserved ultimate decision-making competence to themselves and were not content for this decision to be taken by a body, such as the Commission, that does not represent Member State interest

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Composition(s)

The Council is comprised of a representative of each Member State who will be of ministerial level.[6] The precise composition of the Council will depend upon the subject matter being discussed. If, for example, Finance legislation is being discussed, the Finance Ministers from each Member State will be in attendance. There are many configurations of Council and, as such, it is not composed of a static membership but the membership will vary according to policy area. Figure 16.4 demonstrates the different configurations of the Council.

 

Figure 16.4                     Configuration of Council Meetings

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The Commission

Article 17(1) TEU: ‘The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union’ (emphasis added).

 

It can be seen that the Commission has a relatively wide-reaching mandate. In essence, it has three major roles[7] under the Treaty:

1     To represent the Union

2   To ensure the application of the Treaties (by monitoring Member States’ compliance with EU law)

3   Law-making

 

This final role is extremely important. The Commission has (with a few exceptions) the sole right to initiate legislation under Article 17(2) TEU. It is important to think about what the sole power to initiate legislation means for the direction of the European Union. It is in this regard that the Commission is most frequently criticised as the sole right to initial legislation is a significant power and is vested in, as we shall see, an unelected institution. 

 

Composition

The Commission is headed by a President, who is proposed by the European Council and then approved by the European Parliament. The current President of the Commission is Ursula von der Leyen, who is serving her second term in office (due to come to an end in 2029). The President is supported by Vice-Presidents (one of whom is the High Representative for Foreign Affairs and Security Policy). Each Member State then proposes a Commissioner.

 

Each Commissioner is responsible for an area of European Union policy and is then supported by several departments that are referred to as Directorates General (Figure 16.5 explains the structure of the Commission). The College of 27 Commissioners must then, collectively, be approved by the European Parliament. The Commission is further supported in its work by a (relatively) large number of civil servants from the European Civil Service.

 

Figure 16.5                     The European Commission

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The European Parliament

Article 14(1) TEU: ‘The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions’.

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As is clear from the preceding description, the Parliament has an important role in law-making. Post-Lisbon, it co-decides (with the Council) the majority of law proposed by the Commission, under the ‘ordinary’ legislative procedure. It also has a role in holding the Commission to account and has the power to force the entire College of Commissioners to resign. The Parliament threatened to use this power in 1999 essentially forcing the Santer Commission to resign, amid reports of mass fraud and mismanagement.[8]In addition, the Parliament has control over the budget of the EU. Indeed, and in an unusual situation within the EU structure, the Parliament has the ultimate say on whether or not to approve the EU budget. It has exercised the power to reject the EU budget on two occasions (in 1984 and 1988).

 

The Parliament began as a simple ‘Assembly’ with little power and has gained significant new competences as the EU has evolved. For example, the Parliament only used to have the right to be ‘consulted’ over proposed legislation and now it normally shares final decision-making powers with the Council. 

 

Composition

The Parliament is made up of 705 Members of the European Parliament (MEP) and has been directly elected since 1979. The distribution of seats to Member States is the result of tense negotiations and there are deep disagreements whenever the issue is discussed. Although based largely on population size (with bigger states getting more seats) the system is one of ‘degressive proportionality’, which means that the smaller states get more seats than a strictly proportional system based on population would suggest.

 

During membership, the UK elected its MEPs using a system of proportional representation that was different to the ‘First Past the Post’ system used in the UK General Elections, as described in Chapter 3. This meant that smaller parties had greater representation within the European Parliament than they did in Westminster. For example, the Brexit Party secured 23 of the UK’s 74 seats in the European Parliament elections of 2019 despite at that time having no representation in the UK Parliament.   

 

The Court of Justice of the European Union

Article 19(1) TEU: ‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed’ (emphasis added).

 

It should be clear from the outset that the EU court actually consists of two courts: the Court of Justice (this chapter will refer to it as the ‘ECJ’ or ‘the Court’) and the General Court. The Court has 27 judges with one from each Member State and is assisted by Advocates General who give non-binding legal Opinions on how particular cases should be resolved. The Court sits in different configurations and can sit in ‘full court’ with all 27 judges, in a smaller ‘Grand Chamber’ of 15 judges or in even smaller panels of three or five judges.

 

 As well as the general duty of ensuring that the ‘law’ is observed, the Court has specific jurisdiction over the following issues:

1     It hears ‘preliminary references’ under Article 267 TFEU. The procedure allows for[9]  national courts and tribunals to ask questions to the ECJ about the interpretation of EU law that is relevant to cases that are being heard in a national court. It is an extremely important procedure as it allows for interaction and dialogue between the European and national legal orders.

2     Rules on the validity of EU law through a form of judicial review called ‘action for annulment’ under Article 263 TFEU.

3     It hears cases, brought by the Commission or other Member States, of alleged infringement of EU law by a Member State and has the power to impose lump sum and periodic payment fines on Member States under Article 258–260 TFEU.

4     It can award damages to individuals for violations of EU law committed by an EU institution under the principle of non-contractual liability found within Article 340 TFEU.

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In exercising the preceding jurisdiction, the Court has significantly extended the reach of EU law. It has influenced both the direction and depth of the penetration of the EU legal order into the legal system of England and Wales to the extent that the Court has been labelled by some as exercising ‘judicial activism’.[10]

 

[1] The European Central Bank and the Court of Auditors have only a marginal role in the law-making process and are not discussed further in this chapter.

[2] The Council of Europe is not an EU institution. It is responsible for the European Convention on Human Rights – an international law system of rules governing human rights and fundamental freedoms.

[3] Article 15(3) TEU.

[4] Article 15(2) TEU.

[5] There are a few exceptions that you need not concern yourself with, including an extremely complex and technical process of the Commission making law on its own, known as ‘Comitology’.

[6] Article 16(2) TEU.

[7] It also has many other important roles (such taking decisions against companies in breach of competition law).

[8] For further discussion, see Paul Craig, ‘The fall and renewal of the commission: accountability, contract and administrative organisation’ (2000) 6(2) ELJ 98.

[9] And in some cases requires.

[10] Gareth Davies, ‘Activism relocated. The self-restraint of the European Court of Justice in its national context’ in Susanne Schmidt and Daniel Keleman (eds), The Power of the European Court of Justice (Routledge 2013).