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Seminar No 2 - Level 3: The European Union Institutions and Court of Justice

Question 1

Look at the Treaty on the Functioning of the European Union (TFEU). Search in
the text the relevant articles and take note of the relevant legal provisions
that will allow you to discuss the following issues:

What are the powers and functions of the EU Parliament (Art 223), the
Council of the EU and the Commission (Art 244)?

EU Parliament

- Art 223 lay down the regulations and general conditions governing the
performance of the duties of its Members (in accordance)

- Art 224 - in most cases Parliament shares the legislative power with the
Council, in particular through the ordinary legislative procedure; lay down the
regulations governing political parties at European level and rules regarding
their funding

- Art 226 set up a temporary Committee of Inquiry to investigate alleged

contraventions or maladministration in the implementation of Union law.

- Art 228 elect a European Ombudsman to receive complaints from any

citizen of the EU or any natural or legal person residing concerning instances
of maladministration in the activities of the EU institutions, bodies, offices or
agencies, with the exception of the ECJ of the EU acting in its judicial role.

- Art 14 TEU - budgetary power: Parliament shares budgetary powers with

the Council in voting on the annual budget, rendering it enforceable through
the President of Parliament's signature, and overseeing its implementation
power of control over the Union's institutions, in particular the Commission.
Parliament can give or withhold approval for the designation of
Commissioners and has the power to dismiss the Commission as a body by
passing a motion of censure. It also exercises a power of control over the
Union's activities through the written and oral questions it can put to the
Commission and the Council.

The codecision procedure was introduced by the Maastricht Treaty on

European Union (1992), and extended and made more effective by the
Amsterdam Treaty (1999). With the Lisbon Treaty that took effect on 1
December 2009, the renamed ordinary legislative procedure became the
main legislative procedure of the EUs decision-making system

Council of the EU/Council of Ministers/EU Council/Council

- Art 242 determine the rules governing the committees provided for in the

- Art 243 determine the salaries, allowances and pensions of certain high-
ranking people

- powers are rather unsatisfactorily set out in the TEU

- Art 16 TEU jointly with the European Parliament to exercise legislative

and budgetary functions; carry out policy-making and coordinating functions

- generally defined in Art 16 (1) TEU

- more specific functions and powers are defined in other parts of the
Treaties: Art 237-243 TFEU

- coordination of general economic policies of the MS

- legislative powers jointly with the European Parliament

- confer on the Commission powers for the implementation of rules adopted

by the Council

- can take other Institutions in front of the Court of Justice

- defines and implements the EUs The Common Foreign and Security Policy
(CFSP) based on guidelines set by the EC

- prepares the meetings of the EC

- the Council and the European Parliament constitute the budgetary authority
that adopts the Communitys budget


- Art 249 publish a general report on the activities of the Union annually

- In TEU, Art 17 promote the general interest of the Union; ensure

application of Treaties; oversee the application of Union law under the control
of the COJ of the EU; execute budget and manage programmes
Main functions:

a) ensure the compliance/application of the Treaties

b) supervision of Community policies

c) proposals for new Community policies

d) mediation between MS

e) co-ordination of national policies

f) central institution for proposing legislation

Which kind of interests does each of the mentioned institutions represent?

- EU Parliament represent citizens (legislative and executive)

- Council of EU represents government (national interest)

- Commission bounds to act independently (no influence), interest of EU

What is the role of the European Council? Art 235 TFEU (nothing much in

- Art 15 TEU shall not exercise legislative functions; shall define the
general political directions and priorities; provide the Union with the
necessary impetus for its development

Does the TFEU provide enough information on the powers and functions of
each institution?

- Not for European Council and Commission

Is the language clear and comprehensible?

- Yes

Question 3
Explain the relationship between the main EU Institutions. In particular,
consider the powers provided to the Institutions by the relevant Treaties and
identify the possible lack of democratic accountability of those same
institutions in relation to the structure and powers foreseen under the Treaty
of Lisbon.

- For European Council, Art 18 TEU recognises the democratic accountability

of its members in Art 10.2. MS are represented in the European Council by
their heads of state or government and in the council by their governments,
themselves democratically accountable either to their national parliaments or
to their citizens.

Initially, the Community suffered from a fundamentally defective design.

- Parliamentary Assembly whose members were not democratically elected

and lacking legislative competences.

- Commission that commanded (not overly impressive) executive powers,

whose hands were also rather tied because it could only propose and not
promulgate legislation itself

- Council that could only adopt acts by unanimity

-ECJ is the least democratic institution nowadays.

Question 4

To what extent can the Court of Justice of the EU be fairly characterised as

more of a political rather than a judicial organisation?


- The set-up of the Treaties makes judicial activism unavoidable. Art 220
European Community (now Art 19 TEU) contains an exceptionally broad
mandate for the Court to lay down rules of law in accordance with its own
preferences. The Court was actually expected to come up with solutions to
legal controversies that the negotiating parties had failed to address.
- Treaties are available in a plethora of languages. Art 19 TEU provides a
broad mandate in instructing the ECJ to ensure that in the interpretation and
application of this Treaty, the law is observed. This does however not mean
that the Court is permitted to twist or distort the plain meaning of words and

- the Court is criticized for being judicially active by developing the principle
of direct effect and on, on the other hand, it is also criticized for limiting the
retrospective effect of its judgment in Defrenne.


- Art 7 EC has mandated the Court to carry out the tasks entrusted to the
Community. It contends that the Court is in fact legally obligated to steer a
pro-integration course, and required to always deliver judgments that
strengthen and expand the Community.

- The rationale for legislative inertia identified by Roberty Lecourt (ECJ

President 1962-76) and Hans Kutscher (resident 1976-80) is that the ECJ must
act to counter any (threatening) stagnation, because, if it itself would remain
idle, stagnation would follow.

- However, with all the developments and increased efficiency and the
improvements of other institutions, there is little need anymore for the Court
to play the part of the locomotive of European integration. Having said that,
if the judges of the ECJ are accused of having a particular agenda of
promoting integration, the rebuttal must be that this agenda is actually one
that was set by the authors of the Treaties.

- Certain of judgments (Keck and Mithouard [1993], Steenhorst-Neerings

[1993], Johnston v Chief Adjudication Office [1994]) may indicate that the
internal market has now reached a stage of maturity which makes judicial
intervention necessary only to prevent excessive or abusive restrictions on
inter-state trade by MS.

Recommended Readings

T. Tridimas, The Court of Justice and Judicial Activism (1996) European Law
Review 199

A. Arnull, Judicial Architecture of judicial folly? The challenge facing the

European Union (1999) European Law Review 516

H. Rasmussen, Between self-restraint and activism: a judicial policy for the

European Court (1998) European Law Review 28