Week 1 Union Institutions

The European Parliament

-legislative branch (with the Council)

-supernational and democratic institution as it’s directly elected by the people

-720 MPs plus the president

-representative of the European people

-a minimum of 6 MPs and no more than 96 seats

-elected for a term of 5 years by direct universal suffrage in a free and secret ballot

-every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that state

Parliamentary Legislative Powers of the European Parliament

-parliament may informally propose new legislation and that task is a constitutional prerogatice of the Commission

-it is not entitled to formally propose bills

-their involvement starts after the Commission has submitted a proposal to the European legislature

-ordinary legislative procedure: the joint adoption by the european parliament and the council on a proposal from the commission

-under the “consent procedure” Parliament must give its consent before the council can adopt european legislation

Budgetary powers of the Parliament

-focused on the expenditure side

-the parliament is an equal partner with the Council in establishing the Union’s annual budget

Supervisory powers of the parliament

-power to hold the executive to account

-entitled to receive the general report on the activities on the Union from the Commission which shall be discussed in open session

-the treaties require its president to present a report to the European Parliament after each meeting of the European Council

-The commission shall reply orally or in writitng to questions put to it by the parliament or by its members

-it is entitled to set up temporary committees of inquiry to investigate alleged contraventions or insufficient administration in the implementation of European law

-European citizens have the right to petition the parliament

Elective powers of the parliament

-european constitutional order sits in between presidential and parliamentary consent

1.parliament must elect the president of the commission

2. it must confirm the commission as a collective body

3. once appointed, the commission continues to be responsible to the european parliament

-if trust is lost, parliament may vote on a notion of censure, if this vote is carried, the commission must resign as a body

-also involved in the appointment of the other european officers

The council of ministers

-the rise of the European council has restricted the council’s executive powers

-the organ in which national governments meet

-shall consist of a representative of each state at ministeral level to represent the interests of the state

-different council configurations, for each configuration, a different national minister

-10 councils “politically”: general affairs, 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, culture and sport

-committee of Permanent Representatives (Coreper)= responsible for preparing the work of the council

-the council physically meets in brussels to decide

-two parts of the meeting=one dealing with legislative activities and the other with non-legislative

unanimity voting

requires the consent of all national ministers

majority voting

represents the constitutional norm

the commission

-executive branch

-consists of one national of each member state

-the term of office is five years

-execute the budget and manage programmes

-exercise coordinating, executive and managment functions

-two stages of the election procedure:

1. the president is elected, nominated by the European council taking into account the elections of the European Parliament; the nominated candidate must then be elected by the European Parliament, if not confirmed, a new candidate needs to be found

2. after the election, in accord with the president, the council will adopt a list of candidate commissioners on the basis of suggestions made by the member states; the parliament votes and based on this election, the commission shall be appointed by the european council

-president is allowed to lay down the political direction of the commission in the form of strategic guidelines

The Court of Justice of EU

-The judicial branch

-Includes the Court of Justice, General Court and specialized courts

-Ensure that in the interpretation and application of the Treaties the law is observed

-The General Court shall have jurisdiction to hear and determinate actions or proceedings brought against decisions of the specialized courts 

-The specialized court: the civil service tribunal

-The jurisdiction of the Court of Justice of the EU is compulsory within the limits of the powers conferred on it in the Treaties, its powers classified in Art. 19(3) TEU

-Direct actions of judicial tasks: brought directly before the European Court

-Indirect actions: arrive at the Court indirectly through preliminary references from national courts

principle of conferral

-mentioned in Article 5 of the TEU

-Means that all EU law should have its roots in EU constitutional law TFEU and TEU (treaties)

-The EU can make laws if they have the competence to do it

EU primary law

-most important

-TEU and TFEU

Secondary law

-directive or regulation

Article 26 TFEU

The internal market you should be able to sell stuff across borders, work across borders

Article 168 TFEU

on public health it does not allow the EU to create laws on public health, it can create support policies

ordinary legislative procedure

-shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission

-the European Parliament and the Council act as co-legislators with symmetric procedural rights

-Art. 289 TFEU

special legislative procedure

situations where EU laws are adopted using a special legislative procedure, meaning one institution (Parliament or Council) plays the main role, and the other only participates, as specified by the EU treaties, this abandoning the institutional equality between the European Parliament and the Council

five plus two additional stages of ordinary legislative procedure

-Article 294 TFEU and 297

-proposal stage, first reading, second reading, conciliation stage, third reading, signing and publication

Proposal stage

the commission enjoys exclusive right to submit a legislative proposal

First reading

the proposal goes to the European Parliament which wlll act by a majority of the votes cast. It can reject, approve or amend the proposal. This bill moves to the council where they can either agree to the position of the Parliament and the bill will be adopted after the first reading or disagree and provide its own position with reasons

Second reading

the amended bill lies in Parliament’s court and it has 3 choices: may positively approve the Council’s position by majority of the votes, reject it by majority or propose by majority amendments to the Council position. The amended bill will be forwarded to the Council and the Commission. The council can approve ALL amendments and the legislative act gets adopted. If not all are approved the bill enters the conciliation stage.

Conciliation stage

last chance to rescue the legislative bill. The union legal order delegates the power to draft a joint text to the conciliation committee. The committee is composed of members representing the council and the parliament. If the committee does not adopt a joint text, the bill has failed. If they approved the joint text, the bill returns to the formal union legislator for a third reading

Third reading

the union legislature must positively approve the joint text without the power of amending it. The parliament must endorse the joint text by a majority voting, whereas the council must confirm the text by a qualified majority.  If both chambers approve, the bill is adopted and only needs to be signed and published.

Signing and publication

legislative acts adopted under the ordinary legislative procedure shall be signed by the President of the European Parliament and by the President of the Council and they shall be published in the Official Journal of the EU.

Institutional trilogues

combine the representatives of the 3 institutions in an informal framework. The system is designed to create informal bridges during the formal co-decision procedure that open up “possibilities for agreements at first and second reading stages as well as contributing to the preparation of the work of the Conciliation Committee. May be held at all stages of the ordinary legislative procedure

Special Legislative Procedures

-3 procedures

-Will be adopted by one of the two institutions 

-The first two procedures are the consent procedures, the third is the consultation procedure 

Consent procedure

requires one institution to consent to the legislative bill of the other

Consultation procedure

an essential factor in the institutional balance intended by the treaty, a mere formality, however the formal obligation to consult will not mean that the adopting institution must take into account the substantive views of the other

The Principle of Subsidiarity

-It positively encourages large associations to assist smaller ones, where they need help and negatively discourages to assign a greater and higher association what lesser and subordinate organisations can do 

-TEU Article 5

-The definition clarifies that subsidiarity is only to apply within the sphere of the Union’s non-exclusive powers and thus confirms that the European principle of subsidiarity is a principle of a cooperative federalism

Union competences

-The treaties employ the notion of competence in various provisions 

-A legislative competence is the material field within which an authority is entitled to legislate 

-The treaties attribute legal competence for each and every union activity in the respective treaty title 

-The EU general competences: Article 114 harmonization competence and 352  residual competence TFEU

Article 114 TFEU

-The EU is entitled to adopt measures for the approximation of national laws which have as their object the establishment and functioning of the internal market 

-This article could theoretically not be used to create new European rights as it should only harmonize existing national rights 

-The european law should theoretically further the creation of a single european market, however the supplementary certificate divided the common market into distinct national markets

Article 3 Exclusive competences

-Exclusive powers mean only one level of government can legislate and adopt binding acts 

-Member states may only act in these areas if empowered by the union or to implement union acts 

-They are double-edged: they give the union power but exclude others from acting autonomously 

-Treaty based exclusive competences in (1): Customs unions, competition rules for the internal market, monetary policy, conservation of marine biological resources, common commercial policy 

-Common commercial policy: exclusive competence effective defense of union interests 

-Fisheries conservation: Member states lost autonomous power in this field 

-(2) allows exclusive treaty making powers to arise in addition to (1) in three cases: WTO Doctrine, Opinion 1/76 doctrine, ERTA doctrine

Article 4 Shared Competences

-Shared competences are the default type of EU competences, unless the treaties say otherwise

-(2) both the EU and Member States can legislate, but not simultaneously 

-Member states can only act when the EU has not exercised its competence

-Once the EU acts, Member states are preempted form legislating in that area

-This raises fears that EU action might autonomically block MS from acting 

-However, for minimum harmonization, the treaties explicitly protect national powers, reducing this concern 

-Exceptions in areas of research and space policy, development cooperation and humanitarian aid 

-In these areas EU action does not preclude MS from acting 

Article 5 Coordinating competences

-Includes areas like economic policy, employment policy and social policy 

-The EU does not legislate in these areas in the usual sense, instead it helps coordinate member states actions by issuing guidelines, launching initiatives, creating arrangements for cooperation 

-The legal nature of coordinating competences is still not clearly defined

-Treaties only indicate the EU can support coordination, not directly impose rules in these areas

Article 6 Complementary Competences

-7 policy areas where these competences apply: human health, industry, culture, tourism, education & vocational training & youth and sport, civil protection and administrative cooperation 

-The lisbon treaty clarified that complementary competences do not allow harmonization of national laws 

Tobacco Advertising case (Case C-376/98, Germany v. Parliament and Council)

-the EU adopted Directive 98/43/EC which aimed to ban all forms of advertising and sponsorship for tobacco products across the EU

-Germany brought an action for annulment of the directive arguing that the true purpose of the directive was public health, not the functioning of the internal market and the EU had overstepped its powers, as public health is primarily a national competence, and cannot be the main legal basis for legislation under art. 114

-the CJEU annulled the directive because it went too far and prohibited all forms of tobacco advertising, including purely national advertising

-the judgment drew a clear boundary between what is permissible under internal market legislation and what is predominantly public health policy, which remains a national responsibility under the EU treaties

-after the annulment the EU adopted a narrower directive which restricted tobacco advertising in cross-border media