EU Institutional Framework PDF

The institutional framework of the European Union – Part I EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The institutional framework (article 13(1) TUE) European...

The institutional framework of the European Union – Part I EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The institutional framework (article 13(1) TUE) European Court of Auditors European Council Court of Justice Commission European European Council Central Bank European Other bodies Parliament (e.g. Agencies) 1  The institutional framework has a “multilevel” discipline  As seen, the list of the 7 institutions is provided by Article 13 TEU  Each of the articles from 14 (EU Parliament) to 19 (ECJ) TEU deals with one of the institutions and they provide a basic description of the most important characteristic of the institutions as well as of their the powers and competences  More details on the functioning of each of the Institutions can then be found in the TFEU, from Articles 223-234 (EU Parliament) to Articles (ECJ) 251-287 TFEU  Further and much more detailed rules are provided by some of the Protocols attached to the Treaties (for example, Protocol 3 is the Statute of the ECJ, and it includes the description of the main procedural rules governing the judicial proceedings before the Court - but then we have also the specific regulation containing the Rules of Procedure of the Court of Justice and of the Tribunal)  Several institutions have also enacted legal acts dealing with their internal rules 2  The main principles guiding the activities of the EU institutions  «The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions» (Article 13(1) TUE)  Good administration, impartiality, coherence, efficiency, legal certainty, legitimate expectation (see also Article 41 CFREU)  “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation”  Institutional balance (as stemming from the principle of conferral)  Legality principle  Fundamental role of so-called legal basis 3  The European Council (article 15 TEU – Articles 235-236 TFUE)  The European Council shall be distinguished from the Council (another EU institution) and the Council of Europe (which is a different international organization, not included in the EU institutional framework, with 47 Member States – European Convention on Human Rights, Strasbourg)  Ancient origin = informal summits between the Heads of States or Governments of the Member States (the first occurred in Paris in 1971, then informal meeting were held on a regular basis ever since 1974)  Progressive formal recognition of its role = the European Council is mentioned for the first time by the European Single Act in 1986 (which however did not describe its tasks and/or its way of functioning) and it became a body of the EU with the Maastricht Treaty (1992)  “Younger” institution of the EU institutional framework = it became a formal institution only with the Treaty of Lisbon (2009) and has its seat in Bruxelles 4  The European Council – composition  Heads of State or Government (depending on the form of government of each Member State)  they are the “ordinary” members, those who have the right to vote  this is a clear example of intergovernmental cooperation  President of the European Council  Election = it is appointed by the European Council itself, voting according to the qualified majority principle. The office lasts 2,5 years and can be renewed only once  Role = the President joins the Heads of State or Government; has no voting rights; is incompatible with any other national office  Tasks = presides over and coordinates the European Council meetings; ensures the continuity and consistency of the work of the European Council; reports to the European Parliament after each meeting  President of the Commission = no voting rights  High Representative High Representative for the Common Foreign and Security Policy = he is not a member of the European Council but he/she can take part to the works 5  The European Council – tasks and powers  The main task of the European Council is to provide the Union with the necessary (political) impetus for its development  the European Council shall define the general political directions and priorities thereof (Article 15 TFEU)  NB: this somehow affect the role of the Commission, of the EU Parliament and of the Council, having an impact on the institutional framework (e.g. the “monopoly” enjoyed by the Commission with regard to legislative proposals)  The European Council shall not exercise legislative functions = it does not take part into the adoption of EU secondary legislation  However, it can adopt conclusions and decisions, at the end of each meeting  It can also adopt decisions on the functioning of other institutions of the EU  for example, it can decide the composition of the EU Parliament  It sets the list of the specialised configurations of the Council (see infra)  6 It decides the modalities of the rotation between member States of the Presidency of the Council  The European Council – tasks and powers (2)  It is the highest political forum of the EU = it is the place where the most important political decisions (to be implemented by other institutions) are taken (for example, international economic crisis, migrations, etc)  The European Council has a a role in the procedure ex art. 7 TEU (in addition to the role conferred in this matter to the Council) = acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, the European Council may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 TEU, after inviting the Member State in question to submit its observations.  It takes part into the election/appointment of high-profile members of the institutions = it appoints the High Representative and has a significant role in the appointment of the President of the Commission as well as of the whole Commission  Although only in limited case, it can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU 7  The European Council– decision making  In line with its historical origin, the European Council still decides by consensus: the decision is taken without a formal vote and in the absence of express objections (Article 15 = “except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus”)  Which is the ratio of voting by consensus?  Following its formal inclusion in the institutional framework, and also in the light of the enlargement of its competences, the Treaty sometimes requires the European Council to decide by qualified majority:  For example, the qualified majority is used to elect the President of the European Council or one of the members of the other institutions (e.g. the President of the Commission)  The rules on the qualified majority in the Council are applied (two thresholds v. infra)  Only the “ordinary” members can vote, i.e. Heads of State and Heads of Government (not the President, not the President of the Commission, not the High Representative)  The proceedings are not published, but conclusions 8 can be issues  The Council (Articles 16 TUE and 237-243 TFEU)  Legislative functions = it is the main decisional body of the Union: its most important task is to adopt EU secondary legislation, through different procedures (legislatives, not legislatives); today, it shares this task with the EU Parliament  Budgetary function = it approves the Budget of the EU together with the EU Parliament (see Articles 311 ff. TFEU)  Coordination function = it coordinates the policies of Member States, especially the economic policies under Article 125 TFEU (see the ECOFIN specialised configuration)  External action = it adopts decision in order to open the negotiation of international agreements, it appoints the negotiator and execute the international agreement (today, in some cases, with the prior approval of the EU Parliament) see article 218 TFEU  Executive function (but see the role of the Commission, which is the real guardian of the Treaties) = it can exceptionally approve State aids, it oversees the budget and financial policies of the Member States, it can adopt sanctions over third countries, etc.  CFSP = the Council is the main player in this filed (essentially no role for the EU Parliament and actually also for the ECJ) 9  The Council – Composition (1)  The Council is composed by one member for each Member State at least the ministerial level, who may commit the government  The composition has been modified with respect to the Treaty of Rome so as to allow the participation also of those subjects that, although not part of the central government, have ministerial status in the internal system, such as representatives of the Länder in Germany or of the Regions in Italy  Institution with variable composition = the institution 'Council' is always the same but its specific configuration changes depending on the agenda 10  The Council – Composition  10 specialised configurations depending on the agenda  General affairs and Foreign Affairs provided directly by the Treaties,  the others are established by the European Council – eg.: ECOFIN, JHA)  Peculiarities =  Eurogroup = is not really a Council configuration because only the ministers of the Member States whose currency is the EURO participate in it  It is not unusual for representatives of the Member States to meet a latere of Council meetings in order to discuss matters that do not fall within the competence of the Union (we are outside the Union and this meeting is not an institution or body of the Union - see case C- 11 424/20 Sharpston) but see als0 Articles 253 and 254 TFEU) The Council – Composition (3) 12 The Council– Organization Presidency (rotation – 18 months – 3*6) Specialised configurations (General Affairs prepare the meetings and ensure coherence of the works) COREPER 1 (technical questions – internal market) and COREPER 2 (political and economic questions) Working groups 13  The Council – decision making  With the gradual replacement of unanimity with the majority principle as the general way of voting of the Council (see Community method), the Council's voting procedures have become more and more complex  This is a sensitive issue where the need to balance the representation of Member States and citizens of the Union is particularly evident  For a long time, the solution was the so-called weighted vote  The Lisbon Treaty 'simplified' the regime by providing for qualified majority voting (the reform has been applicable in its entirety since 2014)  Organization of the works and Council’s agenda 14 = Point A and Point B  The Council – qualified majority voting (2)  A double threshold is foreseen:  at least 55% of the Member States (72% if the Council is not acting on a proposal of the Commission and/or the High Representative)  at least 65% population (resident citizens, nationality is not relevant)  Blocking minority = at least 4 Member States  Reverse qualified majority = the act is adopted unless the Council decides by qualified majority to reject the e.g. with regard to economic governance  Ioannina Compromise of 1994, "updated" to the new procedure (55% and 65%) = the subject is asked to be revised (not vetoed, but involves new timetabling)  Unanimity = even today there are cases where unanimity is voted (CFSP, and 'sensitive' topics e.g. taxation) and limited cases where a simple majority is voted (e.g. procedural issues) 15  EU Parliament (Article 14 TEU – Articles 223-236 TFEU)  The EU Parliament has replaced the Assembly which, under the Treaty of Rome, was the institution that ensured (although indirectly) the democratic representation  Also considered that the Assembly had very limited powers under the Treaty of Rome, the participation to the works of the Assembly was quite often considered a secondary and less relevant commitment for the members of the national parliaments compared to the national scene (mainly second-ranking subjects were “sent” to the Assembly)  The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979  With the Maastricht Treaty, the EU Parliament became the institution composed by the “representatives of the peoples of the States brought together in the Community” and, with the Treaty of Lisbon, the representative of the “citizens of the European Union” (article 14(2) TUE)  The EU Parliament is therefore the explicit expression of a direct relation between the Union and its citizens 16  So-called “EU legislative term”  The mandate of the EU Parliament last 5 years, just as the one of the Commission  The appointment of the Commission takes place after, and in consideration of, the, Parliamentary elections  Indeed, according to the Treaty of Lisbon, there is a relation of confidence between the Commission and the Parliament:  the Parliament shall approve the Commission and  the Parliament has the power to bring a motion of censure  Eligibility to be elected = the right to be elected to the EU Parliament is a right conferred by the EU citizenship to all EU citizens 17  EU Parliament – election  In theory, the Council on the initiative of the Parliament itself may decide (unanimously, even after Lisbon) to adopt a uniform electoral procedure (see Art. 223 TFEU)  In practice, however, this has not happened yet, as the Member States have not yet agreed on a uniform electoral procedure.  However, in May 2022 the EU Parliament drafted a Proposal for a Council Regulation on the election of the members of the European Parliament by direct universal suffrage, repealing Council Decision (76/787/ECSC, EEC, Euratom) and the Act concerning the election of the members of the European Parliament by direct universal suffrage annexed to that decision (see here for a comment)  The legislative procedure is ongoing and the Proposal has yet to be voted by the Council 18  EU Parliament – election (2)  As a consequence, electoral procedures (conditions of eligibility, candidature, disqualification, etc.) are still different and may vary from Member State to Member State  However, there are some principles established at the EU level (by the 1976 so called European Electoral Act) such as:  Single vote  Elections shall be carried out on the same date on all Member States  proportional electoral system (with or without preferences) 19  EU Parliament – incompatibilities and privileges  Being a member of the EU Parliament is incompatible with:  Being a member of a national Parliament  Being a member of a national government  Being a member of another EU Institutions (e.g. Commission, ECJ)  Privileges and immunities (Protocol 7 to the Treaty of Lisbon)  No restriction to free circulation to go the Parliament  Immunity for the votes and opinion expressed  In the State where they have been elected, they shall enjoy the same prerogatives conferred in that Member State to the members of the national parliament (promemoria for next classes: it is an application of the general principles of equivalence and procedural autonomy) 20  EU Parliament – composition  According to the Lisbon Treaty, the EU Parliament is composed by 750 members + the President  Pursuant to Article 14 TEU, however, the composition can be modified, voting at the unanimity, by the European Council and with the approval of the Parliament itself  The number of the MEP is divided on a national basis and he representation of citizens within the European Parliament is degressively proportional (Article 14 TE) (as the US Congress)  minimum threshold of 6 members per Member State (Luxembourg, Malta)  maximum threshold of 96 members per Member State (Germany)  Italy = 73 before Brexit, now 76  In march 2020, following the realization of so-called Brexit, the European Council decided to reduce the number of the MEP from 751 to 705. UK had 73 members.  27 members have been reassigned to under represented Member States  46 members will be used in case of new accessions to 21 the EU by new States  EU Parliament – composition (2)  France and Spain (+5)  Italy and the Netherlands (+3)  Ireland (+2)  Sweden, Austria, Denmark, Finland Slovakia, Croatia, Estonia, Poland and Romania (+1)  No member state has ”lost” any seat 22  EU Parliament – organization  The legal regime is provided partly by the Treaties and partly by the internal regulation (NB: as mentioned, we will see the peculiarities of internal regulations when we will discuss the sources of the EU legal order)  MEPs shall constitute political groups  Groups are based on common political views – European People's Party Group (EPP), the Progressive Alliance of Socialists and Democrats (S&D), Renew Europe (previously ALDE), the Greens/European Free Alliance (Greens/EFA) and Identity and Democracy (ID) – not on the nationality of the MEPs  A group shall be composed by at least 23 MEPs elected in at least ¼ of the Member States (Article 30 of the internal regulation)  MEPs cannot be part of more than one group  there is a “catch-all” group for those who are not23enrolled in any political group  EU Parliament – organization (2)  Groups shall organize their functioning and shall appoint a president (sometimes two co-presidents) and one presidency office as well as a secretariat  Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments  The position of the group is decided within the group itself  however the MEPs are free to vote differently 24 EU Parliament – organization(2) 25  EU Parliament – the President  The President is elected by the Parliament by absolute majority vote (for three attempts) and then by a simple majority  2,5 years mandate  The President has administrative, disciplinary and representative functions  It organizes and leads the works of the Parliament and presides over the plenary sessions  The President is also allowed to express his opinion at the beginning of the works of the European Council’s meetings 26  EU Parliament – way of functioning  Ordinary annual session, divided in periods  Monthly plenary session (around one week per month)  Voting modalities:  Approval quorum = The rule is that the Parliament votes at the absolutely majority of the expressed votes  Validity quorum: 1/3 of the MEPs, otherwise the vote is not valid (however, the control that the threshold has been met shall be expressly requested, is not carried out ex officio)  In some cases, higher majorities are requested:  Motion of censure of the EU Commission (see infra): 27 2/3 of the expressed votes and ½ + 1 of the MEPs  EU Parliament – powers and funcitions Legislative Budgetary Political / democratic control Enlargement of the EU membership Judicial procedures before the ECJ 28  EU Parliament – legislative power  Today the EU Parliament is the co-legislator of the EU legal order together with the Council  Indeed, at least as matter of principle, the EU Parliament and the Council jointly adopt EU legislation  This is only a “recent” development of the EU legal order, and the situation was vey different for example under the Treaty of Rome: the role of the Parliament was very limited and its only power/right was that of being heard by the Council  In some cases the opinion of the Parliament was binding for the Council (veto power), in the vast majority not  That is why there was a common feeling that the EU (then EEC, actually) suffered form a 29 so-called “democratic deficit)  EU Parliament – legislative power (2)  Each revision of the Treaty (see the first class) has progressively reinforced the role of the EU parliament within the context of the decision-making system of the EU  Single European Act (1986) = co-operation procedure ex art. 252 TEC (which allowed the European Parliament to influence a minor part of lawmaking for the EU procedure) and the approval procedure  Maastricht Treaty (1992) = Co-decision procedure (the ordinary legislative procedure under the Lisbon Treaty)  Today the Parliament has also the power to request the Commission to legislate in a given field, thus enjoying the right to “trigger” the Commission, which enjoys a sort of monopoly with regard to the initiative  There are, however, sectors where the role of the Parliament is still limited / absent (CFSP) 30  EU Parliament – budgetary power  Under the Treaty of Rome the Parliament has only the power to be heard and provide its opinion (Article 203 EEC)  With the 1975 Bruxelles Treaty on the so-called “own resources” of the EEC (so-called EU budget reform), the Parliament had the right to take part to the adoption of the final budget  Under Article 314 TFEU the EU Parliament has nowadays the same role of the Council with regard to the budget (i.e., how the EU spends its resources), as the annual budget is adopted pursuant to a procedure which is similar to the ordinary legislative one, where the Council and the Parliament are at the same level  However, the EU Parliament has only the right to be consulted with regard to both:  the adoption of the decision on the own resources of the EU, which is adopted by the Council (Article 311 TFEU)  the adoption of the so-called multiannual financial 31 frameworks, which then poses significant constrains to the annual budget  EU Parliament – political and democratic control  Originally, this power of the Parliament regarded only the Commission, but then it has been progressively extended to the other institutions. For example:  Every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester  Every year the Commission shall present to the Parliament an annual relation on the activity of the European Union  The Commission shall also submit to the Parliament is programme for the following year  Questions to the Commission or the Council:  with oral answer - may be requested by a committee/political group/at least 40 Members  with written answer - may be requested by any Member 32  EU Parliament – motion of censure (article 234 TFUE)  It is a very strong instrument vis-à-vis the Commission  Procedure  Initiative = the motion must be proposed by at least 1/10 of the members of Parliament  "Reflection period" = the motion can only be voted on after at least 3 days have elapsed since it was proposed  Approval = the motion must be approved by a 2/3 majority of the members of Parliament  Outcome  The whole Commission is obliged to resign (expression of the principle of collegiality of this institution, which also characterises the appointment phase of the Commission - see below)  Exceptional instrument = it has never been used 33 (partial exception: Santer Commission 1999)  EU Parliament – petition (article 227 TFEU)  Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions to the EU Parliament, which is therefore obliged to receive them  Petitions may concern any matter falling within the sphere of activity of the Union as long as the object of the petition 'directly concerns' the individual who submits it  The main field of application of this instrument is represented by those situations where citizens (natural/legal persons residing in a Member State) use the petition instrument to denounce breaches of EU law by Member States or instances of maladministration by Member States  Standing Committee on Petitions = draws up a report and may propose to Parliament the adoption of a resolution  It is not a particularly effective instrument from the perspective of the interested individuals 34  EU Parliament – European Ombudsman (articles 20, 24 and 228 TFEU)  The organ of the European Ombudsman has been introduced by the Maastricht Treaty (1192)  It is modelled on a similar role which already existed in the German legal order  Appointed by the Parliament but completely independent from it  The Ombudsman deals with cases of bad administration in the activities of EU institutions, bodies, offices and agencies  Tasks and aims  to improve the protection of citizens (or any natural or legal person residing in the Union)  to enhance transparency and democratic accountability in the decision-making and administration of the EU institutions.  (Ineffective) powers  Receives complaints and attempts conciliation  Transmits its report on its assessment of the case to the EU Parliament and the person concerned  Reports, however, are non-binding 35  The Commission (Article 17 TEU and Articles 244-250 TFEE)  The Commission shall promote the general interest of the Union  The Commission (and the individual Commissioners) does not (do not) act in the interests of the Member States (not even the one that appointed them), nor does it represent them  It is the so-called 'guardian of the Treaties' (... but also of secondary legislation) = the Commission checks the actions of the Member States and verifies that they respect and comply with EU law (see infringement procedure)  Holds a kind of 'monopoly' with regard to the power of legislative initiative  Holds executive powers (which, therefore, is not a prerogative (only nor mainly) of the institution representing national governments)  It employees thousands of officials  External representation of the EU (managing negotiations under a mandate from the Council) 36  The Commission – composition  It is composed of one Commissioner per Member State, thus today 27 members  Article 17 TEU envisaged the reduction of the number of members of the Commission to 2/3 of the number of Member States with rotating appointment  However, soon after the Lisbon Treaty came into force, the European Council decided in 2009 that the Commission would continue to be composed by one member from each Member State  The Commission is a collegiate institution  ”European union legislature" =  the Commission's term of office lasts 5 years, like the term of office of the European Parliament 37  The Commission – appointment procedure GENERAL PROFILES  Under the Treaty of Rome, the Commission was appointed by the national governments of the Member States alone.  During the various revisions of the Treaty, the discipline was changed and today the Commission is appointed through an inter-institutional procedure that, in addition to the Member States, involves all the main institutions of the Union (European Council, Council, Parliament)  The procedure for appointing the (future) President of the Commission is separate and precedes that for the other Commissioners  As the institutional procedure has developed, the Parliament has been given (and indeed has sought) an increasing role and powers.  The current procedure well reflects the importance of the Commission in the Union's order: the Commission is the engine of European integration. 38  The Commission – appointment procedure (2) THE FIRST PHASE: THE APPOINTMENT OF THE PRESIDENT  Institutions involved = European Council and Parliament  Where to find the legal regime? Article 17(7) TEU  The European Council, after appropriate consultations, acting by qualified majority (exception to the consensus rule), proposes a candidate for the role of President of the Commission.  “European Union legislature” = in addition to the outcome of the consultations, the proposal must be made taking into account the elections to the European Parliament  Purpose = to establish a fiduciary/confidence relation between the two institutions (sometimes the European political groups and thus the Parliament even manage to impose their own candidate - Junker 2014)  The candidate proposed by the European Council is elected by the Parliament by a majority of the votes of the Members of the Parliament (previously, of the 39 votes cast)  The Commission – appointment procedure (2) THE SECOND PHASE: THE APPOINTMENT OF THE OTHER COMMISSIONERS  Institutions involved = European Council, Council and Parliament + the Member States  Where to find the legal regime? Article 17(7) TEU  The Council, by common accord with the 'President-elect' adopts the list of the other Commissioners, drawn up according to the indications of the Member States.  The Parliament’s internal regulation provides for public hearings (before the vote of approval) of each future Commissioner before the relevant parliamentary committee  The President, the Commissioners and the High Representative are submitted collectively for the approval of Parliament, which votes by qualified majority  After obtaining the approval of the European Parliament, the Commission is appointed by the European Council, which votes by qualified majority (this is one of the exceptions to the rule that the European 40 Council votes by consensus)  The Commission – who can be appointed as Commissioner?  Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals  The Commission is an institution of individuals and not of States (e.g. the European Council or the Council)  Commissioners may neither seek nor take instructions from national governments (independence from states)  Commissioners may not engage in any other remunerated activity during their term of office and, even after it has ended, they must refrain from mixing private and public interests (independence from private individuals) - Art. 17.3 41 TEU  High Representative for foreign affairs and security policy  appointment procedure = is appointed by the European Council with the agreement of the President of the Commission and the approval of the European Parliament  Role = he/she is Vice-President of the Commission, chairs the Council's Foreign Affairs configuration and he/she has the right to participate to the European Council meetings 42  Thank you! Questions? PROF. AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 43