The European Union: A Polity of States and Peoples

By Walter van Gerven

This book provides a general introduction to the European Union (EU) as an ever closer union of states and peoples. It describes how, from its origin in 1958 as an economic community of six states, the EU has grown into a political entity of 25 states with a population of more than 450 million. It also explains the constitution-making process that is currently taking place—with a draft constitution now being submitted for ratification by the 25 member states. The book shows how the distinctive features of a democratic polity that characterize the separate EU member states are gradually replicated in the European Union and how the Union is on its way to becoming a democratic polity of its own kind.

Van Gerven writes from a legal perspective, with an eye to political theory and recent American and European history, and with a diverse readership from both sides of the Atlantic in mind.

• Language: English
• Publisher: Stanford University Press
• Release date: Mar 21, 2005
• ISBN: 9780804767606

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Stanford University Press

Stanford, California

© 2005 by the Board of Trustees of the

Leland Stanford Junior University

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Library of Congress Cataloging-in-Publication Data

Gerven, W. van (Walter)

The European Union : A polity of states and peoples / Walter van Gerven. p. cm.

Includes bibliographical references and index.

9780804767606

1. Europe—Politics and government—21st century. 2. European Union. I. Title. D2009.G475 2005

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2004026677

This book is printed on acid-free, archival-quality paper.

Original printing 2005

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Acknowledgments

I owe my thanks to many. Thanks in the first place to Gerhard Casper, President emeritus of Stanford University, and David Holloway, former director of the Stanford Institute for International Studies, as well as to Chip Blacker and Stephen Krasner, the current Director and Deputy Director of the Institute, for their hospitality during my stay at the Institute from January to June 2003, and again from January to March 2004, and for having introduced me to Stanford’s intellectual community. Thanks also to Klas Bergman, Mary Ellen Horwath, Ingrid Deiwiks, Anne Marie Kodama, and Raphaël Fleishman for their help to make Frieda’s stay and mine agreeable. The chance to work in one of the world’s leading centers of excellence has given me the opportunity to discover some of the many parallels that exist between the United States and the European Union and that have not attracted enough attention of researchers on both sides of the Atlantic, or at least not the attention of legal experts.

My thanks go also to Piet Eeckhout, Director of the Centre of European Law at King’s College, London, who invited me to give four lectures on European constitutionalism in December 2003, and who chaired the first lecture. Thanks also to Lord Slynn of Hadley, Lord Hope of Craighead, and Lord Justice Sedley, who kindly agreed to chair the three following lecture meetings. Their comments, and those of the participants, many of them colleagues from King’s College, offered me a second look at my subject.

Much appreciation goes to those who helped me turn this manuscript into readable English: to Christopher Brown of King’s College, London, and to Carrie Simons of Stanford University, who not only improved the style of the text but also drew my attention to points of substance that required revision; and to Kathleen Gutman of Leuven University, who helped me with last-minute changes. Thanks as well to Eugene Mazo of Stanford University, who drew my attention to literature I needed to read, and to Alan Isenberg and André Vanier, both of Stanford University, who gave me their support. I thank all of them for their friendship. My appreciation also extends to the students in the class on European Union law that I taught at Stanford Law School in 2003 and in the Stanford International Relations Program in 2004.

My thanks for help and advice are due to many friends and colleagues, especially Deirdre Curtin of Utrecht University, Takis Tridimas of Queen Mary College, London, Antoon Herpels, René Foqué, and Jan Wouters of Leuven University, and Christophe Crombez of Leuven and Stanford University. I am also particularly grateful to the members of the work group of the Center on Democracy, Development, and the Rule of Law, Stanford Institute for International Studies, Gerhard Casper, Helen Stacy, Erik Jensen, and Allen Weiner, who allowed me to participate in their Tuesday morning breakfast meetings.

I owe a particular debt to Richard Hart of Hart Publishing Oxford and Amanda Moran of Stanford University Press, who made it possible for the book to be published in both the United Kingdom and the United States. I also thank the anonymous reviewers who pointed to several shortcomings of the first manuscript and encouraged me to improve (and, in the process, expand) the book.

I am especially indebted to Linda Mees who took care of this manuscript, as she did numerous earlier manuscripts.

The book could not have been written without the enduring patience of Frieda, who suffered the many inconveniences that partners suffer when their spouses embark on a time-consuming project.

Table of Contents

Copyright Page

Acknowledgments

Preface

Abbreviations

Introduction

CHAPTER ONE - The European Union’s Institutions, Identity, and Values

CHAPTER TWO - Accountable Government

CHAPTER THREE - The Rule of Law

CHAPTER FOUR - Good Governance

CHAPTER FIVE - Open Government

CHAPTER SIX - Making a Constitution for Europe

CHAPTER SEVEN - Which Form of Government for Europe?

Epilogue

Index

Preface

In May 1940, when I was five years old, I watched the first of the German soldiers arrive in my hometown of Sint-Niklaas, near Antwerp in Belgium. In September 1944, I saw the last German soldier, pistol in hand and hatred on his face, leave Sint-Niklaas the day before British, Canadian, and Polish troops liberated it. These events deeply affected the men and women of my generation, and motivated them to change history.

In July 1957, I took my law degree at the University of Leuven. This was five years after the creation of the European Coal and Steel Community. This Community united six countries: France, Germany, Italy, and the three Benelux countries, Belgium, the Netherlands, and Luxembourg, in an effort to overcome the past and to build a new future. On March 25, 1957, just before I completed my law studies, the same six countries signed the Treaty establishing the European Economic Community in Rome. The Community came into existence on January 1, 1958. Since then, I have witnessed one of the most remarkable historic events of the last few centuries: the emergence of a steadily enlarging European Union of states and peoples. This Union currently has twenty-five Member States and will soon expand to twenty-eight.

In the years since the Community was established I have had the privilege of working with American colleagues, starting as a young associate in the newly created Brussels office of Clearly Gottlieb and serving as a teaching assistant for Max Rheinstein at the University of Chicago from 1959 to 1960, and then as his successor for one year in 1968–69. Max Rheinstein was one of the great comparative lawyers who escaped the European continent to begin a new life in the United States. He devoted his career to familiarizing American students with European law, and European students with American law.

The development of a united Europe has shaped my professional life, both as an academic and as a practicing lawyer in different positions—as a barrister, as President of the Belgian Banking Commission, and as Advocate General at the European Court of Justice. Forty years of teaching have given me the opportunity to introduce many hundreds of students to European Community law. All these years Europe has been my motivation to carry on, and to share with as many people as possible the opportunity of gradually transforming the European subcontinent into a political unity, and giving it a new peaceful future and a new supranational identity.

When CBS reporter Dan Rather was interviewed by CNN’s anchorman Aaron Brown during the war in Iraq, I heard him say that of course he wanted the United States to win that war, but that this did not prevent him from being objective. That is exactly how I feel about explaining to Americans, and Europeans, what Europe is about. Even though I deeply believe in the necessity of building a united Europe, I owe the readers of this book an objective account of Europe’s successes and shortcomings. This is what I tried to do in the four public lectures that I delivered in the spring of 2003, as the Arthur and Mark Payne Distinguished Lecturer at the Institute of International Studies at Stanford University.

I am very grateful to the Payne family and to Stanford University for this great experience. More particularly, I am grateful to Gerhard Casper and to David Holloway for inviting me to give these lectures. The periods Frieda and I spent at Stanford in 2003 and 2004 were some of the most rewarding of our lives. Our stay in 2003 was also a most instructive period, as it took place during the war in Iraq when tensions developed between and within the Western countries even while a constitutional convention in Brussels was reflecting on the future of Europe. It was during this period that the United States of America and the European Union discovered how similar and how different they truly are. However real these differences may prove to be, we are nevertheless bound to work together for a better and safer world.

Walter van Gerven

Stanford, 2004

Abbreviations

Introduction

The aim of this book is twofold. First, it attempts to explain the European Union (EU) as it currently exists, how the Union will be if the Treaty establishing a Constitution for Europe (now submitted for the ratification procedure) is adopted by the twenty-five Member States, and how it may evolve thereafter. Second, it aims to show how the distinctive features of a democratic polity that characterize the Member States can be gradually transplanted to the European Union. The book is written from a legal perspective, though I will make many references to political science and recent history. It attempts to explain to a general audience how the Union’s complex structure operates. To make the book useful to a more specialized subset of the public as well, it contains a large number of notes with detailed information that point to additional reading on a variety of topics. Because I wrote the book with a diverse readership from both sides of the Atlantic in mind, and as it was actually written at both Stanford and Leuven, the book regularly compares the European and the American political scenes and draws on sources from both sides of the ocean.

The book is not about the EU’s obvious successes: its establishment of a common internal or single market with economic freedoms, its external trade and competition policies, and its monetary union. In addition, the book will no more than occasionally deal with the Union’s growth from the six original Member States to its most recent enlargement to twenty-five Member States, which took effect on May 1, 2004. It focuses instead on lesser-known aspects of the Union, including how Europe was gradually transformed from a technocratic organization into an ever-closer union of states and peoples with a growing democratic legitimacy. This process of democratic growth has been underway for more than half a century, from the European Community’s modest beginnings in 1952 as the European Coal and Steel Community to the creation in 1992 of the European Union, which now encompasses all economic and many non-economic sectors and is steadily developing into a democratic political entity.

The proposition underlying the book is that the most appropriate way to turn the Union into a full-fledged body politic—a polity of states and peoples ¹—is to replicate, at Union level, the parliamentary form of government, which is familiar to all of the Member States in one way or another, rather than to invent a new doctrine of democratic legitimacy. That does not imply, however, that the Union should become a large nation-state. Even if the European peoples and governments did wish to go in that direction, which I doubt, the Union would be better off evolving into a citizen-state rather than a nation-state, that is, into a political entity in which nationalistic feelings are left behind. These feelings, and the concept of the nation-state, have been associated with one of Europe’s darkest eras. Consequently, calling the Union a citizen state (or, rather, a polity of states and citizens) reflects the Union’s desire to adhere to a new political arrangement: a supranational community increasingly characterized by a sense of common belonging among those who share civic institutions, with no exclusiveness towards any person or group willing to participate in them.²

The book is divided into seven chapters. The first is an introductory chapter in which I describe the EU’s institutions and explore the Union’s identity and values. In the second and the third chapters, two distinctive features of democratic government are examined: accountability of government and adherence to the rule of law. In chapter 4, I deal with the concept of good governance, which is the exercise of public power to pursue citizens’ goals in accordance with proper procedures and with equal concern for citizens and residents. In chapter 5, I discuss civic responsibility, open government, and citizen participation. In chapter 6 the proposed Constitution for Europe is described and analyzed, and in chapter 7 the form of government Europe may wish to take in the future is examined. I conclude the book with a short epilogue indicating the most recent constitutional developments, that is, those that have occurred since the completion of this manuscript, and briefly describing the Union’s relationship with its neighbors—a subject that I intended to discuss in an additional chapter 8, if space had permitted me to do so.

As mentioned, the proposition underlying this book is that it is advisable for the Union to become a full-fledged democratic political entity by the replication of the Member States’ political systems at the EU level. Though this may seem a bold proposition, it is not really a controversial one. Indeed, it can hardly be disputed that a government that is accountable, open, and in compliance with the rule of law, as the Member States’ democracies are (themes that will be discussed in chapters 2, 3, and 5), is the sort of government that would enhance the Union’s democratic legitimacy. The same holds true for good governance and the goals that it implies: a commitment to ethics and the pursuit of efficiency, equal treatment, and affirmative action to reduce disparities, themes that will be examined in chapter 4. Obviously, the content of each of these instruments is uncertain, and I will attempt to define their content within the European Union. The most controversial point in that regard is whether, and to what extent, social policy is part of good governance. The point is not disputed among the EU Member States, all of which accept that a comprehensive social security system is closely associated with the concept of Rechtsstaat, or rule of law. It is, however, a controversial point in comparing the EU to the United States, where the pursuit of social welfare is not generally considered to be part of good governance.

The themes discussed in chapters 6 and 7, constitution making and form of government, relate, respectively, to the question of whether the legislative and institutional revisions embodied in the draft Constitution for Europe turn the Union into a more integrated and a more democratic political entity (chapter 6), and to the question—which was not discussed in the Convention preparing the draft—of which form of government the Union should take in the future (chapter 7). In both these respects, the underlying proposition is, again, that democratic legitimacy in the Union should be achieved in accordance with a system of checks and balances comparable to (albeit more complicated than) the one existing in the Member States, and that preference should be given to a parliamentary form of government (rather than a presidential one), which is the one adopted by most of the twenty-five Member States.

The book originated as a series of public lectures given at the Stanford Institute for International Studies in March and April of 2003 and at the Centre of European Law at King’s College, London, in December 2003. Both series of lectures gave me the opportunity to better understand the implications of the Union’s democratic legitimacy. However, the redrafting of the text of these lectures for publication expanded my subject matter. Whereas the focus was first on executive accountability, it gradually shifted toward democratic legitimacy as a whole. The drafting has not been an easy process, not the least because writing a book in a language other than the author’s mother tongue remains a delicate undertaking, and it confronts the author with the reality that form and substance are very much related. Moreover, the subject of the book is not one I was familiar with when I started to prepare the lectures. Writing the book has therefore been as much a learning process for me as it might be for the readers.

One last point concerning terminology: As chapter 1 will discuss, the European Union (EU) currently consists of three pillars, the first of which encompasses primarily the European Community (EC). Hereinafter I will use the term European Community (EC) when I am referring specifically to matters regulated under the provisions of the EC Treaty, that is, the first pillar of the European Union, and I will use the term European Union (EU) when I refer to provisions in the EU Treaty regulating the Union as a whole (that is, the three pillars taken together) or regulating specific matters falling under the second or third pillars. The situation is even more confusing than it appears because some EU institutions, such as the EU Commission and the EU Council of Ministers, refer to themselves as EU institutions, while the two EU courts, the European Court of Justice and the Court of First Instance, still refer to themselves as EC or Community courts (as I will mostly do hereinafter). ³ Moreover, it is necessary to distinguish the two Community courts, which are located in Luxembourg, from the European Court of Human Rights (ECtHR), which is located in Strasbourg. The ECtHR belongs to a different European organization, called the Council of Europe, and is founded on the European Convention on Human Rights (ECHR). The ECtHR is responsible for most of the human rights case law discussed in the following chapters.

The book is up to date as of April 15, 2004. However, in the epilogue (and occasionally in the text, or in the footnotes) I refer to events that have taken place after that date. Moreover, the draft Constitution for Europe (described in chapter 6 and mentioned in other chapters as well) was amended by the June 18, 2004 IGC meeting in Brussels and, before being solemnly signed at the October 29, 2004 IGC meeting in Rome, was revised by linguists and lawyers. Part of the revision process was the renumbering of the articles, which was carried out as follows: the articles in the four parts of the final constitutional text, as signed in Rome and submitted for ratification to the Member States, are now numbered continuously and not, as in the initial version, starting from 1 again for each of the four parts.⁴ However, the division into four parts is still reflected in the numbering by the use of roman numerals (I, II, III, and IV) alongside the arabic article numbers. To make it easy for the reader to find the renumbered (and sometimes reworded) articles in the final text, I give the new numbers in square brackets each time an article of the initial version is mentioned in the text or the footnotes.

When the book is published, in early 2005, the draft Constitutional treaty will not yet have entered into force. Indeed, in the most optimistic scenario that will not happen before 2007, that is, provided that all twenty-five Member States have ratified the text in accordance with their constitutional requirements, as foreseen in Article IV-8 of the initial version [now Article IV-447] of the draft.⁵ Even after the draft Constitution does enter into effect (if ever), this book will remain of interest to those who wish to know how the European institutional system has evolved over the last fifty years, and the directions it may take in the future, with or without constitutional text, in order to become a more perfect union in terms of democratic legitimacy.

CHAPTER ONE

The European Union’s Institutions, Identity, and Values

I. THE EUROPEAN UNION IN A NUTSHELL

Explaining fifty years of European Union history is a daunting task. In this introductory chapter I will focus first on Union pillars, institutions, and competences, and on differences in integration (Section I); second on the nature of a European body politic, and on the emergence of a European public space and public opinion (Section II); and third on European values (Section III). Toward the end of this chapter I will draw some conclusions (Section IV).

Three Pillars under One Roof

The European construction emerged in 1952 with six countries: France, Germany, Italy, and the three Benelux countries (Belgium, the Netherlands, and Luxembourg). Together, on April 18, 1951, in Paris, these nations concluded the treaty establishing the European Coal and Steel Community (ECSC) for a period of fifty years, which entered into force on July 23, 1952, and expired in July 2002. Six years later in Rome, on March 25, 1957, the treaty establishing the European Economic Community (EEC, now EC) and the treaty establishing the European Atomic Energy Community (EAEC) were both concluded for an unlimited period and entered into force on January 1, 1958. Together these treaties formed the three communities. By far the most important of these three was the European Economic Community, which created, progressively, a common market of goods, persons, services, and capital subject to free competition and with a common commercial policy, and which was applicable to all economic sectors (including agriculture and transport) not addressed by the other two treaties.

These communities were gradually enlarged, the two existing ones (EC and EAEC) currently comprising (as of May 1, 2004) twenty-five Member States. Moreover, the European Economic Community (EEC) was broadened in scope, first by the Single European Act of February 1986, which improved the functioning of the common market and laid down a timetable for the achievement of the so-called internal market—defined in Article 14 (2) EC as an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. Later, in the 1990s, further steps were taken to intensify European integration in the monetary and political fields. This evolution took forty years and led, on February 7, 1992, to the signing by the (then) twelve Member States of the Treaty on European Union (EU, or Maastricht, Treaty).⁶ As a result of both the Single Act and the EU Treaty, a variety of new competencies were conferred upon the Community related to such diverse matters as social policy and employment, research and technological development, the environment, culture and education, public health and consumer protection, economic and social cohesion, and development cooperation. However, the most dramatic addition to the EC portfolio was the insertion of a chapter on monetary policy, leading in the final stage to a single European currency. The amendments to the EC Treaty provided an institutional framework and a timetable for turning that policy into a monetary union.⁷

The EU Treaty entered into force on November 1, 1993, after ratification by all of the existing Member States.⁸ It renamed the European Economic Community the European Community (EC), thus dropping the word economic in order to indicate that many non-economic matters had become part of its architecture. As mentioned above, it added the concept of a monetary union with the creation of a European System of Central Banks (ESCB) and the European Central Bank (ECB), both in charge of conducting the Union’s monetary policy.⁹ It also added two annexes to the main Community building: the Common Foreign and Security Policy (CFSP) and the Justice and Home Affairs (JHA), the latter now, as a result of later changes, known as Police and Judicial Cooperation in Criminal Matters (PJCC). In notorious Community jargon, the main building housing the three initial communities—the EC (formerly the EEC), the EAEC, and (until 2002, when it expired) the ECSC—is now called the first pillar of the European Union. The two annexes, the CFSP and PJCC, are known as the second and third pillars, respectively.

This strange terminology was developed in the negotiations between the Member States for easy reference: the three components of the entire European construction were compared with the three pillars of a Greek temple supporting a common roof. That common roof, consisting of the common provisions in Title I of the EU Treaty, and the three pillars were, together, called the European Union (EU). Of these three pillars, the first—and particularly the European Community part thereof¹⁰—is the most supranational in nature, the other two pillars remaining more intergovernmental,¹¹ and is therefore also the pillar where the democratic legitimacy of the European construction is most developed. Hereinafter, reference will frequently be made to the Community institutions when discussing first-pillar matters, whereas I will refer to the Union institutions when second- or third-pillar matters are at issue, or when I refer to the European construction as a whole. The aforementioned common provisions in Title I of the EU Treaty contain the objectives of the Union (Article 2) and set out the structure of the Union’s single institutional framework with special reference to the European Council (Articles 3–5). They also enumerate the principles on which the Union is founded (Article 6) and the procedure to be followed if a Member State were found to act in serious breach of those principles (Article 7). All of these matters will be dealt with later.

European Union literature makes frequent reference to the Treaties of Maastricht (1992), Amsterdam (1997), and Nice (2000), named after the town in which they were signed, in the Member State holding the presidency of the Council at the time of signature.¹² These treaties, and other acts agreed on between the Member States, such as the 1986 Single European Act, have amended the three initial (or founding) Community Treaties—the 1951 Treaty of Paris (ECSC) and the two 1957 Treaties of Rome (EEC and EAEC)—which together constitute the first pillar of the Union. The most drastic change was introduced by the Treaty of Maastricht, which, as mentioned, established the European Union (including the monetary union) and created the three-pillar system, while the most conspicuous change was introduced by the Treaty of Amsterdam, which renumbered the articles, titles, and sections of the Treaty on European Union (EU) and the European Community (EC) Treaty, and deleted lapsed provisions of those treaties and of the ECSC and EAEC Treaties. As for the Nice Treaty, it confirmed in a protocol the transfer of all assets and liabilities of the ECSC, expiring on July 23, 2002, to the European Community and stated that, except as otherwise provided, the provisions of the EC Treaty shall apply from then on to coal and steel.

The most important achievement of the Nice Treaty, however, was the political agreement reached, after a notoriously fractious summit meeting, on the institutional questions relevant to the upcoming (May 2004) enlargement: voting in the Council; composition of the Commission; and allocation of seats in the European Parliament. Some of the arrangements were introduced as legal amendments in a protocol on enlargement; others were simply set out in a declaration on enlargement and were to be made binding upon accession of the new Member States. Also important from a legal standpoint was the (modest) reform of the Union’s judicial system.¹³

How do the three pillars operate in relation with third countries (namely countries that are not members of the EU)? An illustration of the difference between the first pillar and the second and third pillars is the European Community’s common commercial policy, which belongs to the first pillar (Articles 131–34 EC), as compared with the European Union’s foreign and security policy, which belongs to the second pillar (Articles 11–28 EU), and the European Union’s cooperation in criminal matters, which belongs to the third pillar (Articles 29–42 EU). As for the first, the Community institutions have exclusive powers to shape the Community’s trade relations with third countries. This means that, in discussions with the United States about, for instance, the import into Europe of genetically modified food products, the European commissioner for trade (currently Pascal Lamy) will be directly in touch with the United States trade representative (currently Robert Zoellick). Representatives of the European Community therefore also sit at the World Trade Organization in Geneva—together with representatives of the Member States sitting in their national capacities for matters for which the Community has no exclusive competence.¹⁴ However, when foreign policy matters falling under the second pillar are to be discussed between the United States and the Union, the U.S. president and secretary of state will deal directly with the political leaders of the Member States, particularly with those sitting on the UN Security Council, as recent events have made abundantly clear. That is so, even though the Union has the competence to define and implement a common foreign and security policy (Article 11 EU) and may conclude international agreements with one or more third states or with international organizations (Article 24 EU). However, any such action requires unanimity on the part of all of the Member States, each one therefore possessing the power of veto. The same applies with respect to police and judicial cooperation in criminal matters, more particularly in view of combating organized crime and terrorism (Article 38 EU). I will return to the differences between pillars when discussing the institutions and their competences.

Completely separate from the European Union (including the European Community), there is another supranational European organization, called the Council of Europe, of which forty-five European states are now members, including all of the twenty-five EU Member States, as well as Russia and Turkey. The organization, based in Strasbourg,¹⁵ was founded in 1949.¹⁶ It concerns itself with all political, economic and social matters of European interest, and thus has a wider field of activity than the European Union. However, it does not have any power to make laws, and it can only propose non-binding resolutions and draft conventions for ratification by the participating states. The organization has a Committee of Ministers and a Parliamentary Assembly with advisory powers that is made up of delegates from the national parliaments. The most prominent institution of the organization is the European Court of Human Rights (ECtHR). That court applies the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of November 4, 1950.¹⁷ It supervises the contracting states’ compliance with the provisions of the Convention and annexed protocols, and can render judgments against a state holding that it has violated a Convention right. Cases can be brought before the court by a contracting state, but also by a private party or non-governmental organization. The EU itself is not a member of the Council of Europe, and is not submitted to the jurisdiction of the ECtHR.¹⁸ However, according to Article 6 (2) EU, the Union shall respect fundamental rights as guaranteed by the European Convention . . . and as they result from the constitutional traditions common to the Member States.¹⁹

EU Institutions and Their Competences under the Three Pillars

a) The first pillar

The European Community contains three institutions engaged in general policy making: the European Commission (the Commission), the Council of Ministers (the Council), and the European Parliament (Parliament). Members of the first are proposed by the Member States; members of the second are ministerial-level representatives of the Member States; and members of the third are, since 1979, elected by direct universal suffrage in all Member States.²⁰ Besides those three, there are three sets of specialized institutions. The first, representing the judicial branch, consists of the two Community courts, the European Court of Justice (ECJ) and the Court of First Instance (CFI), each of which ensures, within its jurisdiction, that Community law is properly interpreted and observed.²¹ A second specialized institution is the Court of Auditors, which examines the accounts of all revenue and expenditure of the Community.²² Third, the European Central Bank (ECB) directs the European System of Central Banks (ESCB), which has autonomous powers in the monetary sector.²³

All of the aforementioned institutions were designed to play a role under the first, or Community, pillar of the European Union. They play a more limited role (or no role, in the case of the ECB) under the second and third pillars of the Union, with the exception of the Council of Ministers. That Council, as we will see later, constitutes the prime law-making institution under the second and the third pillars, that is, in matters of foreign policy and security, and of police and judicial cooperation. In addition to the three aforementioned institutions, there is the European Council, sitting on top of the Union as a whole, which brings together, in regular summit meetings at least twice a year, the heads of state or government of the Member States and the president of the Commission. They are assisted by the ministers for foreign affairs of the Member States and one additional member of the Commission.²⁴ The task of the European Council is to provide the Union with the necessary impetus for its development and . . . [to] define the general political guidelines thereof.²⁵ It oversees the three pillars but focuses particularly on the second and third pillars as they relate to common foreign and security policy, and police and judicial cooperation, respectively.

Those readers used to the neat separation of power enshrined in the American Constitution (which vests the legislative power in Congress, the executive power in the president, and the judicial power in one Supreme Court and lower courts) might think that such powers are as neatly separated in the European Union.²⁶ But on the continent where John Locke and Baron de Montesquieu once resided, their teachings were never followed quite as well: that certainly holds true for the European Union in general, and the European Community in particular. Except for the judicial power, which is, indeed, in separate and independent hands, the legislative power in the Community is shared, and delicately balanced, between the Commission, the Council, and Parliament whereas the executive power is shared, and less delicately balanced, between the Commission and the Council. In other words, checks and balances—for which the European Court of Justice has coined the term institutional balance²⁷—do exist in the European Union, but the Union, or Community, hardly incorporates the doctrine of separation of power. I will return to that subject in chapter 2 when highlighting the role of the executive in democratic government, but I will mention a few points here (primarily in connection with the first pillar) for a better understanding of what follows.

The first point concerns the exercise of legislative power, legislative procedures, and legislative instruments. The way in which legislative power is shared in the Community can be summarized in three propositions. First, generally the Commission, and only the Commission, has the right of initiative.²⁸ In other words, no legislative act can be legally enacted if the Commission has not proposed it. Second, the Council adopts and enacts legislation proposed by the Commission. At the outset, the Council could only act by consensus, but now, in an ever-growing number of instances, it adopts legislation by so-called qualified majority. Qualified majority voting gives Member States a number of votes in (a certain) proportion to their population, and implies that a minority of Member States can be outvoted in the Council.²⁹ Third, Parliament, which at the outset had only consultative powers, now has decisional legislative powers that have increased with successive treaty amendments—and will be further increased if the draft Constitution (discussed in chapter 6)³⁰ is adopted.

The Community’s legislative power is exercised in accordance with complicated legislative procedures. The most important of these procedures is the co-decision procedure established in Article 251 EC, under which the Council exercises its legislative power in concert with Parliament. The procedure implies that legislation proposed by the Commission can only be adopted if approved by a majority in Parliament and by a qualified majority in the Council. ³¹ Notwithstanding its complexity, the procedure has functioned miraculously well, so well, in fact, that in the draft Constitution (discussed in chapter 6) it is proposed that the co-decision procedure be the standard legislative procedure. Besides the co-decision procedure, there are other legislative procedures in which Parliament is less involved, or not involved at all³²—a situa tion that is considered to be the essence of the Community’s so-called democratic deficit.³³ For now, it may suffice to point out that the EC Treaty stipulates, in different articles, which one of the existing legislative procedures is to be used in any given policy area.

In the past the co-decision procedure has allowed for the passage of many binding legislative acts, mainly regulations and directives. Regulations and directives are the usual legislative instruments to produce binding Community law. The former are binding in their entirety and directly applicable in all Member States; the latter are binding upon the Member States as to the result to be achieved, leaving it to the Member States’ authorities to choose the form and methods of implementation and which choice they must make within the period of time prescribed in the directive concerned.³⁴ Regulations and directives are not only enacted as a result of the co-decision procedure, but may also be the result of the other legislative procedures, and may even be passed by the Commission, acting alone in its executive capacity. In other words, currently, there is no hierarchy of norms in Community law (a matter that the draft Constitution would change).³⁵

The preceding brings us to a second subject, which is the role of Parliament. As mentioned previously, that role is currently limited because of the necessity for Parliament to exercise its legislative power in concert with the Council. The reason why the Council—composed, as we have seen, of Member State ministers and therefore in their own state members of the executive branch—plays such a prominent role in the Community’s legislative branch lies in the technocratic past of the Community. For much of the 1950s, ’60s, and ’70s, the Community as an institution had jurisdiction only over economic, and highly technical, matters, mainly in sectors such as coal and steel, agriculture, transport, and commercial policy. In these matters technical expertise was in greater demand than democratic accountability. This has changed over the years with the addition of spheres of competence that, like consumer and environmental protection and, even more so, culture and education, are of great concern to the average citizen. As a result, to enhance the legitimacy of the Community in those matters, but also in all others—that is, as the expression goes, to bring Europe as closely as possible to the citizen³⁶—Parliament became directly elected, and obtained co-decision power in many legislative matters as well as with regard to the approval and discharge of the Community’s annual budget. Along with Parliament’s power—subject to procedural and voting restrictions—to force the Commission to resign as a body, which existed from the outset,³⁷ this has considerably reduced the Community’s democratic deficit. ³⁸

To be sure, this evolution in Parliament’s powers has not come to an end. Parliament continues to insist on the need for the Union to increase its democratic legitimacy by relying more on Parliament’s capacity to represent the people. As we will see in chapter 6, the adoption of the draft Constitution would constitute a further step in that direction.

The third point concerns the exercise of executive power in the Community. In the absence of a uniform system for implementation of Community legislation, each legislative act must determine its specific implementation procedure. Where it does not do so explicitly, it is up to the Member States to ensure implementation.³⁹ When the EC Treaty does entrust implementation to the Community itself, it sometimes grants autonomous power of implementation to the Commission.⁴⁰ If not—and if it is nevertheless felt that the matter of implementation cannot, for the sake of uniformity, be left entirely to the Member States—it must be decided in the legislative act concerned how it will be implemented at the Community level. In that case, the Council will frequently delegate implementation to the Commission, often, however, subject to certain requirements.⁴¹ One typical requirement is that the Commission be assisted, in its preparatory work, by a committee composed of civil servants, or external experts, from the Member States. This technique—in Community jargon known as comitology—is used by the Council to restrict the discretionary power of the Commission and to boost its own influence and that of the Member States in the implementation of Community legislation.

The technique has, for a long time, been a bone of contention between the Council and the Parliament, which rightly claims that it diminishes Parliament’s role in exercising political control over the implementation process and enhances that of the Council. To address that criticism, and to enhance transparency of the procedure, but at the same time to preserve the Member States’ involvement, the functioning of committees is now regulated by the Council Decision of 1999,⁴² which provides for three forms of committees: advisory, management, and regulatory. In the latter two forms of committee the hands of the Commission are tied, especially in the case of a regulatory committee procedure. Under that procedure, if the Commission declines to follow the qualified majority opinion of the committee, it must submit a proposal to the Council as to the measures it intends to take and provide the Parliament with the same information, upon which the two institutions must follow a procedure that may eventually lead to the blocking of the Commission’s proposal in the Council (where the Member States are represented).⁴³

The fourth and last point relating to the institutions concerns the division of power at the vertical level, that is, between the Community and its Member States. The basic principle in this respect is that the Community and the Union possess only those sovereign powers that the Member States have agreed to attribute to them, expressly or implicitly (as recognized in case law of the Court of Justice), in the founding treaties. Increasingly so, such powers have accrued as a result of amending treaties approved by the Member States at successive intergovernmental conferences, such as those that resulted in the Maastricht and Amsterdam treaties.⁴⁴ However, few of these attributed powers are exclusive (as they are in the area of a common commercial policy toward third countries, as mentioned previously). By contrast, most attributed powers are shared with the Member States, which implies that the Member States may act as long as the Community has not exercised its own competence, thus preempting the Member States’ concurrent power, or has ceased to exercise its competence. Moreover, in the case of non-exclusive powers, the Community institutions may only exercise their competence in accordance with the principle of subsidiarity. According to that principle, the Community may take action only when the objectives of the proposed action can be better achieved by it than by the Member States, because of the scale or effects of the proposed action.⁴⁵

Delineation of powers between the Community and the Member States is in itself a most sensitive and disputed matter, and much of the litigation brought by the Member States, or Community institutions, before the Court of Justice indeed concerns delineation of powers. The question is even more sensitive whenever the Community has acted, and therefore pre-empted concurrent powers of Member States, because Community law then takes precedence over national laws. This principle of the supremacy, or primacy, of Community law was not incorporated in the founding treaties but was read into them by the Court of Justice as early as 1964.⁴⁶ It operates often to the dislike of Member States’ constitutional courts whenever matters that affect those courts’ constitutional prerogatives are concerned. Over the years, this has led to temporary conflicts between the European Court of Justice and national courts such as the French Conseil d’Etat and the German and Italian constitutional courts.⁴⁷

The division of power between the federal and the state level is even more complicated in the Community than it is in federal systems like those of the United States or Germany. The two levels are so inextricably intertwined in the European Community, at both the legislative and the executive levels, that the situation is hardly compatible with constitutional theory. In the legislative field, the most prominent illustration thereof is the Council of Ministers, which, as seen previously, is (the dominant) part of the Community’s legislative branch (the other branch being the European Parliament). As mentioned, the Council is a body consisting of Member State ministers. Moreover, its composition is ever-changing, depending on the points on the agenda, the turnover of political personnel in the national governments, and on the division of power between national-level and regional-level governments in the Member States. These ministers sit in the Council in their capacity as members of a Member State executive, national or regional, and in that capacity they are politically accountable to their national or regional parliament, although not to any institution at the EU level (least of all Parliament, which is the other part of the legislative branch). The situation is not unknown in federal bicameral systems, like Germany, but in the latter case it exists only with regard to the less prominent parliamentary house, the Bundesrat. In the Union, however, the situation relates to the most important part of the legislature, thus creating an accountability gap that is further enhanced by the role played in the Community’s legislative process by COREPER and the various committees and working parties operating under its auspices. COREPER refers to the Committee of Permanent Representatives of the Member States. It is responsible for preparing the legislative and policy work of the Council of Ministers,⁴⁸ but in practice it often reaches decisions itself by consensus. In that capacity, it is not politically responsible to any parliament, whether European or national.⁴⁹ The issue will be addressed in chapter 7.

Another particularity of the division of competences between the Community and the Member States relates to the executive function of government. As already mentioned, it is in principle for the Member State authorities to implement Community policy and Community law in their state. The phenomenon is known as executive federalism, a concept also found in the German Constitution, in which implementation of federal legislation is done by the component states (the Länder).⁵⁰ In Community law, the principle flows from Article 10 EC, which obliges the Member States to take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. The ECJ has construed this obligation as part of the general requirement of good faith that binds Member States and Community institutions.⁵¹ A telling example of executive federalism is the implementation of Community law directives. As previously mentioned, in contrast to a regulation that is binding in its entirety, a directive shall only be binding upon each Member State to which it is addressed, as to the result to be achieved … but shall leave to the national authorities the choice of form and methods.⁵² It is therefore the obligation of all Member State authorities—legislative, executive, or judicial, as the case may be—to implement the directive, at their own expense, within the period of time prescribed in the directive. Any Member State failing to fulfill that obligation correctly and in time may not only be pursued by the Commission (and other Member States) before the ECJ for such failure, but may also be held liable in compensation in a suit initiated before a national court by a private plaintiff who has sustained damage as a result of the state’s failure to implement.⁵³

In the United States, the situation is totally different. The issue comes up there in the context of state autonomy. Under the current case law of the U.S. Supreme Court, the matter is governed by the so-called anticommandeering principle, articulated by Supreme Court Justice Marshall in Hodel.⁵⁴ In that case, Justice Marshall found that the challenged federal legislation did not commandeer . . . the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.⁵⁵ That dictum left open the possibility that such commandeering, if ever found, would be invalidated. In later judgments of the Supreme Court, such invalidation occurred, first of federal commands directed at state legislatures in New York v. United States,⁵⁶ and then of federal commands directed at state or local executive officials in Printz v. United States.⁵⁷ The reason for these diametrically opposed attitudes may lie in the way in which separation of powers between the federal and national/state levels is classically applied in the United States as compared with the European Union, where, as seen above, the Community and Member State levels are closely intertwined in the European Community at the legislative level (through the Council and COREPER) and at the executive level (as a result of comitology). The Member States’ heavy participation in the decision-making process means that they have ample opportunity to express their opinions and to influence the outcome of the legislative and administrative process at Community level, and also have the occasion to measure the financial implications of the proposed Community legislation.⁵⁸ Another, and even more compelling, explanation can be found in the fact that in the U.S. the federal government has numerous civil servants on the ground and can therefore rely on its own employees to implement federal laws in the states, while the Union must necessarily rely on Member State officials to implement most EU policies.⁵⁹

b) The second and third pillars

The complexity of the division of powers—horizontally among Community institutions and vertically between the Community and the Member States—results in a complex system of checks and balances that may lack transparency, and certainly lacks democratic legitimacy. Nevertheless, the system seems to work rather efficiently. That, however, is not the end of the story. Indeed, the complexity of the system, and its lack of transparency and democratic legitimacy, is immensely heightened by the presence, within the European construction, of the second and third pillars. As mentioned before, in these two pillars, relating respectively to a common foreign and security policy (CFSP) and the cooperation between Member State police and judicial authorities in criminal matters (PJCC), the European Council of Heads of State or Government and the Council of Ministers play by far the most prominent role, while the Commission, the European Parliament, and the Court of Justice are kept at a distance. The situation in the third pillar has, however, changed to the benefit of those institutions following the Treaty of Amsterdam which transferred the policies on visas, asylum, and immigration to the first pillar,⁶⁰ thereby making the Community decision-making process also applicable to these areas, albeit with certain restrictions.⁶¹

With regard to the second pillar concerning the Union’s CFSP, it is for the European Council to define, by consensus, the principles and general guidelines, including for matters with defense implications, and to decide on common strategies in areas where the Member States have important interests in common.⁶² In that context, it is also for the European Council to frame a common defense policy, which might lead to a common defense should the European Council so decide.⁶³ As for