2 INSTITUTIONS

 This chapter will consider the powers and functions of 5 of the principle institutions of the
EU. It will consider the changes made to the institutions by the various treaties and till
discuss the legislative procedures of the EU.
 An institutional law question is almost certain to be in the FE1 paper. The following
topics are examined in further detail below:
- The institutions of the European Union;
- The legislative procedure of the European Union;
- The democratic legitimacy of the European Union; and
- The separation of powers within the European Union
 The focus will be on the state of law after the ratification of the Lisbon Treaty as it made
a significant number of changes.

THE INSTITUTIONS OF THE EUROPEAN UNION

There are 5 institution of the EU:

- The Council of the European Union;

- The European Parliament;
- The European Commission;
- The Courts of Justice of the European Union (CJEU); and
- The European Council.

The institutions were first created in 1956 under the Treaty of Rome to deal with a union of just
6 members. While there have been some name and function changes since then, broadly
speaking, the same structure applied.

Secondly, the Parliament had gone from an institution with no real power to one with significant
power under the Treaty of Lisbon. Finally, the institutions reflect the political reality of trying to
get an agreement from at first 6 and now 27 member states, with competing visions for
European between competing political ideologies.

THE COUNCIL OF THE EUROPEAN UNION

The Council of the European Union (the Council) is located in Brussels and is comprised of one
national minister from every MS. The Council is not to be confused with the European Council,
and the Council of Europe.

The Council is the main legislative body of the EU and is essentially the representative of the
national governments of MS. The Commission and any member of the Council can convene
meetings. The representative must be at ministerial level within the MS (Art 16 TEU) and the
Ministers who attend have the power to bind their national governments and adopt laws on
behalf of the EU.

After the Lisbon Treaty, the Council must meet in public when it is legislating but can meet in
private when it is carrying out a non-legislative function.

The primary source of information in the Treaties on the role and power of the Council are Art
16 TEU and Arts 290 – 291 TFEU and provides that the Council shall exercise legislative and
budgetary functions and carry out policy-making and coordinating functions.
In practice, the Council has a number of key powers, including:

- Must approve almost all of the Commission’s legislation

- Art 241 grants the Council the right to request the Commission to conduct research and
submit proposals to the Council.
- It plays a major role in the preparation of the EU’s budget.
- It is a privileged applicant for the purposes of Art 263 judicial review proceedings
- Can delegate legislation power to the Commission to allow important decisions to be
taken more quickly than the normal decision making process would allow (A290 TFEU).

As well as these specific powers, the Council acts as a forum where MS can consult with each
other and coordinate their behaviour in areas where responsibility lies with them and not the
EU.

Organisation of the Council

Art 240 TFEU provides that a committee shall be responsible for preparing the work of the
Council. This committee is known by its French acronym COREPER and has an essential role
in the decision-making process of the Council and is responsible for preparing the work for the
Council.

COREPER has a no of function including, exercising political control by supervising and

assisting the work of the groups of experts.

Voting in the Council

The council has 2 methods of voting, unanimity and qualified majority (QMV).

Unanimity procedure requires all MS meeting within the Council to agree in order for a proposal
to be adopted. This procedure gives each MS a veto. Since the Single European Act 1987, the
scope for unanimity has been increasingly limited and not generally only applied to politically
sensitive areas, or to decisions of important to the character of the Community.

QMV

QMV only requires a qualified majority of the Council to agree in order to pass a decision. A
simple majority is 50% plus one vote. In general a qualified majority requires a higher threshold
in favour of a decision plus some extra element.The aim of QMV is to strike a balance between
allowing decisions to be made quickly and protecting the power of MS.

The Lisbon Treaty fundamentally changed the method of calculating a QM. It created a
transitional procedure, to be used from 1 December 2009 until the 1 November 2014.
Thereafter the final procedure will be used. However, from 1 November 2014 until the 31 March
2017, a MS can demand the transitional procedure instead of the final procedure. Both
procedures are set out in Protocol 36 of the Treaty.

The Transitional Procedure – each country is given a number of votes, depending on its
population and wealth. Germany has the most votes and Malta has the least. A QM is defined
as 255 votes from at least 14 MS. For non-Commission proposals there is an additional
requirement that at least 18 MS must vote in favour. For both types, any MS can ask for
verification that at least 62% of the total EU populations voted in favour.
The Final Procedure – a QM is 55%, comprising at least 15 MS representing at least 65% of
the population of the EU. It is also possible to form a blocking minority of at least 4 MS. These
provisions are set out in Art 16 TEU and are fully in force from 2017.

THE EUROPEAN PARLIAMENT

Established under the ECSC, the European Parliament maintained a supervisory and
consultative role after the EEC and EURATOM Treaties. Therefore, they served a dual
mandate.

The officials originally were not elected but were appointed by their own MS. However, in 1978
the Act on European Elections introduced direct elections. Since then the Parliament has
gradually increased its power in the legislative process and is central to solving the democratic
deficit in the EU. The main gap is that it cannot initiate legislation. That power rests with the
Commission.

The Parliament is frequently used as an example of the waste involved in the European project.
It meets in Strasbourg 12 times a year. MEPs get very generous salaries and expenses and are
subject to much adverse coverage in their home MS. 732 MEPS.

The legal basis for the Parliament is found in Arts 223 – 234 TFEU and Art 14 TEU. The MEPs
are directly elected representatives of the MS and serve a term of office of 5 years. The number
of MEPS jumped from 626 MEPS to 736 after the recent accession of the ten new MS. Art 14
TEU puts an upper limit of 750 MEPs.

The TEU amended the concept of citizenship in the EU and thus, any EU citizen resident in
another EU MS has the right to vote in and stand for election for the European Parliament. The
no of MEPs elected in each MS is roughly based upon their population.

Organisation of the Parliament

The Parliament site in 12 week-long plenary sessions; these are held in public. The Parliament
also sits as committees. The Parliament works independently and has implemented its own
rules of Procedure. The Bureau is the adminstration side of the Pariliament.

Provision has been made for European political parties under Art 10(4) TEU and, with in the
Parliament the representatives of political parties of the MS have formed alliances with parties
from other MS with similar political views. For example, Fine Gael are members of the centre
right group the European People’s Part.

The majority of the Parliament’s legislative work is done by the various committees. When a
proposal from the Commission arrives, it is given to the relevant committee. An individual MEP
is appointed as “rapporteur” and is responsible for formulating the Parliament’s position on the
proposal.

The Powers of the Parliament

Successive treaties have increased the powers of the Parliament and after the Treaty of Lisbon
some of the following powers of Parliament now include:

- A strong legislative role

 - After Lisbon, the co-decision making process is to be used when agreeing the budget.
Thus, Parliament is now an equal player in the process with the Council.
- The Single European Act requires that the Parliament gives its consent to the accession
of new MS.
- The TEU introduced the requirement that all Commission Members must receive final
approval from the Parliament.
- The Parliament can compel the Commission to resign if it deems there has been
improper use of funds.
- Article 228 TFEU provides that the Parliament could appoint an Ombudsman to deal with
complaints
- The Parliament is a privileged applicant for the purposes of Art 263 and can bring judicial
review actions for an annulment to the ECJ.
- By virtue of Art 36 TEU the Parliament must be consulted on any major developments
regarding the Common Foreign and Security Policies.
- The Parliament under Art 225 TFEU can request the Commission to submit a proposal if
it thinks necessary for achieving the objectives of the treaties.

 THE EUROPEAN COMMISSION

The European Commission (the Commission) is located in Brussels and is the executive of the
EU. It is one of the most important of the EU institutions, employing over 24,000. The
Commission is comprised of one member from each MS.

The Commission acts as guardian of the Treaties and, in conjunction with proposing draft
legislation to the Council and the Parliament, the Commission is responsible for the daily
business of the Union. Commission has authority to negotiate international agreements on
behalf of the EU. Commission is comprised of one member from each MS.

Article 17(7) TEU, The Council nominates a President of the Commission acting by qualified
majority. This nomination must be approved by the European Parliament. According to Art
17(6) the President of the Commission has the following power:

- Lay down guidelines that the Commission must follow;

- Decide on individual portfolios for the Commissioners;
- Appoint vice-presidents;
- Request that a Commissioner resigns

In their role as guardians of the Treaties, the Commissioners are obliged to be completely
independent. Art 17(3) TEU states that “They shall refrain from an action incompatible with their
duties or the performance of their tasks.”

Role and Powers of the Commission

Art 17 TEU gives the Commission the following role:

 Guardian of the Treaties. This essentially means that they are responsible for ensuring
the observance of EU law and can initiate proceedings against any MS in addition, it
regulates compliance with EU competition law and can examine any merger.
 The Commission can use its “power of initiative” to initiate legislation.
 Enter into negotiations on internal agreement on behalf of the EU.
The Commission and Enlargement

The Treaty of Nice facilitated the enlargement of the EU. It was clear that the system of election
of Commissioners would not function under a greatly enlarged EU. The Treaty of Nice
amended the Treaties so that each MS would only have one Commissioner.

Due to the fact that there are now 27 MS, the Lisbon Treaty reduced the number of
Commissioners. From 2014, only 2/3rds of MS will have a Commissioner with the posts rotating
between all countries.

During the first Lisbon debate in Ireland, the NO campaign raised fears that Ireland would lose
its Commissioner under Lisbon. This was correct. Art 17(5) TEU states that after 2014, a MS
would lost an automatic right to a Commissioner unless the European Council unanimously
decided otherwise.

Now, each MS nominates someone to be a Commission. The Council then sends that list to the
Parliament and that person is duly appointed Commissioner once they receive the approval of
the Parliament.

The High Representative for Foreign Affairs and Security Policy

This is a new post created by Art 18 TEU. The High Rep must be a Commissioner but they also
must take part in the work of the European Council. The intention was to create a post that
straddled both the Commission and the Council to give a more integrated international voice for
the EU.

The first job of the newly appointed High Rep will be to clearly define her role. The High Rep is
appointed by QMV by the European Council

THE COURTS OF JUSTICE

Art 19 TEU and 251 TFEU are the new legal basis for the jurisdiction of the courts.

Art 19(1) TEU states – “The Court of Justice of the European Union shall include the Court of
Justice, the General Court and specialised Courts”.

The highest court, the old ECJ, is now called the Court of Justice of the European Union
(CJEU) and the CFI is the General Court.

The CJEU has greatly increased the speed of the creation of the common market and has
taken a broad view of any treaty article that advance the common market. It has given a narrow
interpretation of those articles that allow barriers to trade.

Appointment and Organisation

Judges are appointed by agreement of the MS and must be qualified to hold the highest judicial
office in their national state (Art 253 TFEU). Their independence must be beyond doubt.

There are 27 judges of the Court of Justice, one from each MS. Their term of office is 6 years
and is open for renewal.

Generally they sit as 13 judges in a “Grand Chamber” or as 5 or 3 judges in chambers.

Judges of the Court of Justice elect a President of the Court and the President sits for 3 years,
a term that is open for renewal. (Art 253 TFEU).

The Statute of the Court of Justice which is a protocol attached to the Treaties, contains the
Rules of Procedure of the Court of Justice. This case is initially assigned to a chamber of
judges. The size of the chamber will depend on the complexity of the case.

Thereafter the procedure is essentially 2-fold. There is a written stage, where the parties
present their arguments. Then there is an oral stage where there is a hearing. Once the hearing
is completed the Advocate General gives an opinion and the Judges enter deliberations and
deliver a judgment. A finding requires only a majority of the judges to agree.

The Advocate General

The AG is an officer of the Court of Justice and assists the judge. Owing to their independence,
they do not take part in the Judge’s deliberations but, prior to the delivering of the Judgment,
they provide the Courts with an opinion as to how the case could be decided.

The Court is not bound by the proposal as it is meant as a guide for the court. However, it is
often followed. The Treaty of Nice brought about changes so that the AG is only required to
provide an opinion if a new point of law has arisen.

Art 252 TFEU states that there are to be 8 AGs. The Council has the right upon request of the
Court of Justice, to increase the number. Art 253 TFEU sets out the criteria for appointment to
the position of AG which are the same as the criteria for judicial appointments to the Court of
Justice.

Jurisdiction of the Courts

The CJEU has a broad general jurisdiction over both the TEU and the TFEU. There are some
exceptions:

- The CJEU does not have jurisdiction over common foreign and security policy (Art 24(1)
TEU).
- Certain specific areas of judicial co-operation in criminal matters and police operations
(Art 276 TFEU).

After Lisbon, the CJEU will have power to adjudicate on the old Pillar 3 areas of police and
criminal affairs.

There are a no of types of proceedings that allow a case to be taken directly to the Court of
Justice, such as, proceedings under Arts 258 and 259 TFEU against a MS for failure to fulfil an
obligation. Proceedings under Arts 263 and 266 TFEU against a community institution for
annulment and for failure to act. By virtue of Art 266 the institution in question must comply with
the judgment of the Court of Justice and rectify the situation. Another significant change under
Lisbon is the inclusion of the power to review the European Council. Other direct proceedings.
These include proceedings relating to contracts concluded by the Community and
compensation for damages.

Individuals cannot bring proceedings directly to the Court of Justice, and must institute
proceedings at first instance, before the General Court.
Proceedings can also be brought directly under Art 267 TFEU by way of Preliminary Reference
Procedure. This procedure allows the national courts to seek a preliminary ruling from the Court
of Justice on the interpretation of EU law.

Division of Labour Between the CJEU and the General Court

The Single European Act established the CFI to assist the Court of Justice. Lisbon renamed the
CFI to the General Court. It has the following jurisdiction:

- Certain annulment actions to the areas of competition and trademark law.

- Actions seeking damages from the EU
- References sought under the preliminary reference procedure.

The General Court has 27 judges appointed in the same way. There is no position of Advocate
General in the CFI, although a member of the court may act as AG in a particular case. The
judges of the CFI elect a President whose term of office is 3 years and is renewable.

The Statute of the Court attached to the Treaties and the Court of First Instance’s rules of
Procedure governs the procedures of the CFI. Although the Court generally sits in Chambers,
an amendment made by the Council in 1999 allows a sole judge to preside over a case so long
as it does not contain any complex questions of law or fact, is not of key importance and there
are no special circumstances.

A sole judge can preside over actions brought by natural or legal persons against decision of
the Council, the Commission, the Parliament or the European Central Bank that affect them
directly.

Appeal to the CJEU

There is a right to appeal a decision of the GC to the CJEU within 2 months of being notified of
the decision. The appeal is on a point of law only and is also granted to MS and Institutions.
Over the past no of years about 1/5 CFI decisions were appeals and the success rate is
relatively low.

THE EUROPEAN COUNCIL

The European Council is the term used to describe the summit conferences consisting of the
Heads of State of the MS, the Minister for Foreign Affairs of MS, the President of the
Commission and one ordinary member of the Commission. Art 13 TEU means the Council has
been given a frim legislative footing for the first time.

Art 15(1) TEU now sets out the important role of the European Council: the 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.

The Council has been given a number of new characteristics, especially a new permanent
president. It shall meet twice every 6 months and decisions shall be taken by consensus unless
otherwise provided for in the Treaties.
Before the Lisbon Treaty, the President of the Council was held on rotation by each MS in 6-
monthly cycles. Now the President is appointed by the Council, acting in a QMV. The President
is appointed for a 2.5 year term, renewable once. The President of the European Council has
the following tasks:

- Chair and drive forward the European Council.

- Ensure co-operation with the President of the Commission.
- Report to the Parliament after each meeting.
- Represent the EU internationally.

THE LEGISLATIVE PROCEDURES OF THE EU

The EU used to have a no of principle legislative procedures; the consultation procedure, the
consent procedure, the co-operation procedure and the co-decision procedure.

This area has been fundamentally reformed under Lisbon. The co-decision procedure has been
renamed the “ordinary legislative procedure”.

The co-operation procedure has been abolished and the other 3 merged into a group called the
“special legislative procedures”.

The choice of procedure is determined by the treaty article used as the legal basis for the
legislation.

1. The Ordinary Legislative Procedure

This was introduced by Maastricht and was known as the ‘co-decision procedure’ and this
procedure gives the Parliament the power to adopt instruments jointly with the Council i.e. the
Parliament effectively has the power of veto. This was greatly expanded by the Treaty of Nice
to include 43 areas under the first pillar of the EU and now covers an additional 40 areas after
Lisbon including external relations, border checks etc. The procedure comprises one, two and
three readings.

Originally, the co-decision procedure covered specific areas, including health, education. This
was greatly expanded by the Treaty of Nice to include 43 areas under the first pillar of the EU
including border checks, immigration and agriculture.

The original procedure was criticised for being overly complex and long. These criticisms were
addressed in the Treaty of Amsterdam which calls upon the institutions to make the procedure
as quick as possible. It also provides that the period between the second reading of the
Parliament and the Conciliation Committee must be no longer than 9 months.

The Procedure – Art 294 TFEU

The commission submits a proposal to the Parliament and the Council.

First Reading – the Parliament adopts a position and sends it to the Council. The Council can
either adopt the Parliament’s position or adopt its own. The Council shall then communicate its
position to the Parliament.

Second Reading – within 3 months, the Parliament must do one of the following:
 - Approve the Council’s position
- Reject the Council’s position
- Amend the Council’s position

If Parliament fail to act within 3 months, the act is deemed to be adopted. If the Parliament
amends the Council’s position, then the Council, actin QMV can:

- Approve the amendment

- Reject the amendment. A conciliation committee is formed.

If the Commission rejects the Parliament’s amendments, then the Council must act
unanimously.

Conciliation – the Conciliation Committee is made up of equal members of the Council and the
Parliament and has 6 weeks to agree a joint text. The Commission is present and tries to
reconcile the differing views. If there is no agreement, then the proposal fails.

Third Reading – if a joint text is agreed, then the Parliament must vote in favour, as must a
QMV in the Council.

2. Special Legislative Procedure

Quite a no of these exist and the main ones are the consultation procedure and the consent
procedure. There is no definition of special legislative procedures in the Treaties. The Article
that requires a special legislative procedure to be used will also specify the type of procedure
i.e. Art 19 provides that “…the Council, acting unanimously in accordance with a special
legislative procedure and after obtaining the consent of the European Parliament, may take
appropriate action to combat discrimination based on sex…”thus, it is clear that the consent
procedure is to be used.

The Consultation Procedure

It was established by the Treaty of Rome in 1957. The powers were distributed amongst the 3
main institutions as follows:

- The Commission had the power to propose legislation

- The Parliament had the power to be consulted on that legislation; and
- The Council had the power to adopt the legislation.

Roquetter Freres v Council (1980) – this case shows the role that the Court of Justice can
play in maintaining the balance between the institutions. A French company brought an
annulment action claiming that the Regulation should be declared void. The Regulation has
been adopted pursuant to the Consultation procedure. Although the Council sought the opinion
of the Parliament, it did not receive an opinion prior to the adoption of the regulation. HELD: the
Court found that the Treaty establishing the consultation procedure made provision for the
Parliament to “play an actual role in the legislative process of the community”. “…such power
represent an essential factor in the institutional balance intended by the Treaty.” It reflects the
democratic principle that the peoples should take part in the exercise of power through the
intermediary of a representative assembly. The Court declared the regulation void as it had
disregarded an essential formality, namely, due consideration with the Parliament.
European Parliament v Council of the European Committees (1992) – otherwise known at
Cabotage II and concerns access of non-resident carriers to national road haulage. The
Parliament brought the action on the basis that, although consulted on the original proposal, it
was no re-consulted on the final text of the Regulation, even though the final text substantially
departed from the original proposal. HELD: due consideration with the Parliament is one of the
means enabling the Parliament to participate effectively in the Community’s legislative
procedure. The Court determined that Parliament must be re-consulted under such
circumstances, except in cases where the amended proposal essentially corresponds to the
proposals made by the Parliament itself.

European Parliament v Council of the European Union (1995) – this case is referred to as
the “General Tariffs case” and shows how the Parliament cannot use its consultative role to
slow proceedings by not issuing an opinion. The Parliament, although listing the proposal in a
list of urgent cases, adjourned the plenary session. Due to the urgent and sensitive nature of
the Regulation, the Council adopted it w/o the prior opinion of the Parliament. HELD: In the
circumstances, the Parliament could not complain that Council did not wait for its opinion. This
is an important decision as the Court of Justice is demonstrating that no institution will be
allowed to impede the efficient running of the EU.

After Lisbon, this procedure is rarely used. One example is Art 103(1) : “The appropriate
regulations or directives to give effect to the principles set out in Articles 101 and 102 shall be
laid down by the Council on a proposal from the Commision and after consulting with the
European Parliament.”

The Co-Operation Procedure

This procedure was defined in the old Article 252 EC. It was established by the SEA as a
means of granting an increased legislative function to Parliament. Art 252 was repealed by
Lisbon and has not been replaced.

The Assent Procedure

The assent procedure was established by the Single European Act and dictates that the
Parliament must give its assent to a proposal of the Council prior to the Council making
significant decisions in certain specified areas. These include the accession of a new MD and
some international agreements.

QUASI-LEGISLATIVE POWERS

Pursuant to Art 209, the Council can delegate quasi-legislative powers to the Commission. The
Council cannot delegate essential elements of policy to the Commission, for example, Council
Directive 90/425/EEC of 26 June 1996 relates to veterinary checks.

Pursuant to this directive, the Council granted to the Commission the power to make veterinary
and zootechnical checks on live animals and products with a view to completion of the internal
market. During the BSE crisis, the Commission then enacted a decision which banned the
exportation of beef and bovine products from the UK.

COMITOLOGY
Since the early 60s, the exercise of the above-mentioned powers has been monitored by
committees composed of representatives of the national governments. The Commission adopts
measures under a set of procedures, known as comitology, in which it works with the
committees. The committees enable the Commission to establish dialogue with national
administrators before adopting measures.

THE BUDGETARY PROCEDURE

The Budgetary Procedure is set out at paragraph 314 TFEU.

By the 1st of July each institution, with the exception of the ECB draws up estimates of its
expenditure for the following financial year. The Commission consolidates these estimates into
a draft budget.

The Commission consolidates 3 estimates which are then submitted to the Council and
Parliament by the 1st September.

The Council adopts it position on the draft budget including any amendments, and sends it on
to the Parliament before the 1st October. The Council must inform the Parliament of the reasons
which led to it adopting its position.

The Parliament then has 42 days to either adopt the budget or to hand its amendments back to
the Council. The Council may accept the amendment within _ days and then adopt the draft
budget

If the Council does not accept the Parliament’s amendments a Conciliation Committee is
convened. This is composed of the members of the Council and an equal no of members
representing the European Parliament. The Conciliation Committee attempts to come up with a
joint text within 21 days. If the conciliatory procedure fails, the Commission must come up with
a new draft budget.

THE DEMOCRATIC LEGITIMACY OF THE EU

There are 2 schools of thought with regard to the future of democratic legitimacy in the EU.

There are the proponents of realism – they essentially support the view that independent
political representatives from MS should monitor the EU institutions.

There are the advocates of federalism – they support the forming of a single democratically
elected institution charged with protecting the interests of citizens of the EU.

Critics of the current legislative process of the EU point out that the areas in which the
Commission legislate are continuing to greatly expand. However, of the institutions responsible
for legislating, only 1 is democratically elected, the Parliament. The Parliament is the institution
with the least amount of influence over the legislative process. This shortfall is referred to as the
“democratic deficit”.

The criticisms are not only around the position of the Parliament but also around the continuing
“executive dominance” of the Council and the Commission in the legislative process. The
legislative process is perceived as being too complex and is criticised for its lack of
transparency. Much of the process is taking place behind closed doors. The comitology
procedure has been accused of adding to the democratic effect.
The transfer of the jurisdiction to review the constitutionality of EU legislation to the Court of
Justice and the fact that the institutions are geographically removed from the citizen adds to the
criticism.

There have been moves on the part of the EU to rectify this situation. The Commission
produced the White Paper Governance that advocated the introduction of the “Community
Method” – this proposes a joint legislature comprised of the Council, the Parliament with the
Commission in the role of guardian of the Treaty.

The draft Constitution of the EU supported the Community Method and proposed the extension
of the role of the co-decision procedure as the main legislative procedure in the EU. This was
given effect in Lisbon with the renaming of the co-decision procedure as the ordinary legislative
procedure.

Laeken Declaration 2001 addressed the issue of the transparency in the legislative process the
Inter-institutional Agreement on “Better Lawmaking” was signed by the Commission, the
Council and the Parliament in December 2003 and states as its objectives: the enhancement of
transparency and harmonization between institutions, placing emphasis on the use of impact
analysis in the decision making process, introducing a fixed time limit for transposing Directives
into national law and laying the foundations for “alternative instruments”.

The Democratic Legitimacy of the Institutions of the European Union

The Council of Ministers is comprised of democratically elected members of the governments of

Member States. Although not directly elected to the EU, there is certain democratic legitimacy
in that they were elected in the originating MS.

The most prevailing criticism of the Council is the fact that must of the legislative process takes
place behind closed doors.

It is suggested that certain representatives could group together in a bid to increase their
influence w/o the knowledge of the MS government. The process of QMV has been condemned
as potentially excluding the vote of some MS, though in practice this seldom arises.

These concerns have been addressed to a certain extent by the Lisbon Treaty. Now the
Council must meet in public when legislating. The rules of QMV have been changed to put in
place important checks on the power of larger MS.

However, the Parliament still holds a somewhat limited role in the overall legislative process, for
the following reasons:

- Parliament does not have the power to initiate legislation. It merely responds to a
proposal by the Commission.
- Where Parliament does have legislative power, some of those are under weaker “special
legislative procedures”.

In general, EU citizens do not exhibit must interest in the work of the Parliament. It has been
suggested that it is due to the fact that the areas considered most important by the electorate
(education, taxation, health) are mostly outside the remit of the EU. However, moves towards
conferring increased power on the Parliament in the legislative process have gone some way to
curing the perceived democratic deficit.
The members of the Commission are politically appointed and are not answerable to the
governments of MS. Also, there is no transparency in the decision-making process. Therefore,
the Commission has been referred to as the least democratically legitimate of the 3 institutions.

The Commission is supervised to some degree by the Parliament. This is an important function
for the Parliament. They provide internal institutional oversight to the Commission’s activities.

The most significant of Parliament’s power is probably the right to censure the Commission and
compel the Commission to resign. Although, the power of censure does not extend to censuring
individual Commissioners.

However, the Parliament can threaten this power and thereby force the President of the
Commission to compel and individual to resign. Nevertheless, the absence of a specific
Parliamentary power to compel individual Commissioners to resign is a weakness that curtails
their supervisory function.

THE SEPARATION OF POWERS

The question of the separation of powers is linked to the democratic legitimacy of the EU.
Within the traditional definition of the separation of powers there are 3 branches of government;
the executive, the judicial and the legislative branch.

This structure ensures that no one governing institution can acquire too much control; it is the
people who fundamentally hold the power. The separation of power is, therefore, considered
the foundation of democratic legitimacy.

It is obvious that the institutions of the EU do not conform to the separation of powers in its
classical construct e.g. the role sharing between the Council and the Parliament in the
legislative process. However, this is not to imply that a separation of powers does not exist.

Other theories suggest that the State has only 2 main objectives; the creation of and the
application of law, and the 3 branches of governance share in these objectives. The legitimacy
of the administration is not found in the separation of the institutions but in ensuring that the
power of each institution is kept in check and under control – this is the inter-institutional
principle. A good example is the approach taken by the Court of Justice with regard to the
consultation procedure.