A mini-handout on the EU Institutions

1. Introduction

Please notice that this handout does not seek to provide an exhaustive coverage of the EU institutions. But it
offers a potted description of the current institutional framework sustaining the EU. So please do read it in
conjunction with Chapter 2 of the Chalmers book.

The institutions of the European Union do not follow the patterns of national constitutions. In the domestic
context, there are normally institutions associated with the three functions of government: legislative,
executive and judicial. Since the European Union was not originally set up to approximate a (federal) state,
its institutions are unique. You should therefore approach this subject matter with caution, allowing for what is
known as the ‘sui generis’ nature of the Union. The main institutions are the Council, Parliament,
Commission and the Court. None of them runs the Union on its own. There is a separation of powers
balancing not just the legislative, executive and judicial powers but also the interests of states and the
relations between large and small states.

Article 13(1) TEU provides that 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) lists the Union
institutions as follows:
– the European Parliament,
– the European Council,
– the Council,
– the European Commission
– the Court of Justice of the European Union,
– the European Central Bank,
– the Court of Auditors.
The Lisbon Treaty increased the number of EU institutions from five to seven by giving the European Council
and the European Central Bank the status of institution. Whilst Articles 13-19 TEU clarify the role of the
Union’s institutions, it is Part Six, Title I TFEU which contains detailed provisions governing the institutions.
Certain changes have been introduced recently to accommodate the accession of ten new members by the
Treaty of Accession 2003, and the accession of Bulgaria and Romania via the Treaty of Accession 2005.
With effect from 1 January 2007, the Union had 27 members. Many of the pre-2004 or pre-2007 materials will
give you slightly different information, so be careful to use only up-to-date materials.
The institutional rules are complex and this outline only gives you the basic framework. You should study the
Treaties carefully on your own. Very useful information on the institutions of the EU can be found on the
official web site: http://www.eu.int.
2. The Council
The Council is in many ways the most powerful institution of the EU. Most decisions are taken there, normally
with the assent of the Commission and the Parliament. Normally, nothing can be decided without the Council’s
final agreement. This reflects the fact that states remain very powerful players within the institutions of the EU.
It is important not to confuse the ‘Council’ with the ‘European Council’ (see below).
The Council consists of ‘a representative of each Member State at ministerial level, who may commit the
government of the Member State in question and cast its vote’. (Article 16(2) TEU). There are, accordingly,
various formations of the Council: when general matters are discussed, the representatives are foreign
ministers, when matters of agriculture, agriculture ministers etc. It is possible, therefore, that the Council may
meet in different configurations at the same time (Article 16(6) TEU).
Prior to the Lisbon Treaty, the Council was presided over by a President, a role which rotated among the
member states at six-monthly intervals. The Presidency enjoyed wide powers of discretion over the agenda,
and was responsible for the smooth running of the Council. Post-Lisbon, the rotating presidency has been
modified slightly: the newly-created High Representative of the Union for Foreign Affairs and Security Policy
presides over the Foreign Affairs Council (Art 18(3) TEU), whilst the other nine Council configurations
continue to be chaired by a system of six-monthly presidency. The Treaty of Lisbon has also created a new
full-time role of President of the European Council (see below).
One of the aims of the Lisbon Treaty was to improve the effectiveness of the functioning of the Council. One
means by which this is to be achieved is a change to the voting system in the Council – in particular, to
increase the number of situations where the Council makes decisions by what is known as ‘Qualified Majority
Voting’ (see below). When the Treaties do not say otherwise, the Council decides by simple majority of its
members (Article 238 TFEU, formerly Article 205(1) and (2) EC). In most cases, however, the Treaties will
specify both the area of competence and the precise legislative procedure under which the Council can act.
There are two ways in which the Council acts under the various procedures: either by unanimity or by
Qualified Majority Voting (QMV). The first is self-explanatory. Qualified Majority Voting is calculated on the
basis of a special allocation of votes, weighted roughly to reflect the differences in the member states’
populations. The allocation of votes has changed frequently, in particular, in response to each new
accession, but is currently set out in Article 16(4) TEU and Article 238 TFEU. At present, for example, the
UK, France, Italy and Germany all have 29 votes, whereas Poland has 27 and Malta 3. A qualified majority is
255, which is approximately 74 per cent of the total. Abstentions make it harder to achieve the qualified
majority, but do not count against a decision in the case of required unanimity.
Eventually, it is planned to move to a new rule on majority voting which will come into force from 1 November
2014. Under this new method, QMV will no longer be based on weighted votes attributed to each member
state as has been the case since 1957. Instead it will be based on a ‘double majority’ with two thresholds: at
least 55 per cent of the number of member states and at least 65 per cent of the Union’s population (Article
16(4) and (5) TEU; Protocol No 36 on Transitional Provisions (annexed to the Lisbon Treaty)).
You will notice that small states are ‘over-represented’ in the allocation of votes, in the sense that their votes
do not reflect the actual size of their populations. This is one of the many ways in which the EU is not a union
of peoples but a union of states, with their own standing and rights – you will also notice it in the composition
of the other bodies.
Often, controversial issues do not reach the voting stage. Actual voting is the exception rather than the rule.
Most issues are discussed and resolved at the stage of the Committee of Permanent Representatives
(COREPER), which prepares the meetings of Ministers.

3 The European Parliament

The European Parliament currently consists of 736 members; following the coming into force of the Treaty of
Lisbon, the total number of Members of the European Parliament (MEPs) will rise to 754. Article 14(2) TEU
states that ‘the European Parliament shall be composed of representatives of the Union’s citizens… elected
for a term of five years by direct universal suffrage in a free and secret ballot’. This wording differs from that
used in Article 189 EC, prior to Lisbon – ‘representatives of the peoples of the states brought together in the
Community’ – in order to place greater emphasis on the conception that the EU is founded on ‘representative
democracy’ and the direct representation of citizens at Union level. Members are chosen by direct election
across Europe in the same week (voting normally takes place on Thursdays in the UK, Ireland, the
Netherlands and Denmark, and Sundays in all other member states). Their term of office is five years and it
has now been adjusted to coincide with the term of office of the Commission. The Parliament operates
according to the Treaties (see below) and its own rules of procedure (Article 232 TFEU).
The powers of the Parliament are not the same as the powers of national parliaments. These powers are
carefully outlined in the Treaties and are not extensive in comparison with those of national parliaments. In
particular, the European Parliament does not have the power to initiate legislation. Nevertheless, the powers
of the Parliament have increased with changes to decision-making processes made by each successive
Treaty amendment: the Single European Act, the TEU, the Treaty of Amsterdam, the Treaty of Nice and, in
particular, the Treaty of Lisbon. The extent to which the Parliament is able to influence the content of legal
acts of the EU varies according to which Treaty article has given the Union competence to act in a particular
area. There remain areas where the Treaties give the Parliament only a right to be consulted.
The Parliament does, though, have an important legislative role in areas where under the Treaties the
Council and the Parliament are required to act as co-legislators, mainly in the co-decision procedure (Article
294 TFEU). The process is complex and you should study it carefully. Effectively, its premise is that the
Parliament enjoys a power of veto over measures passed under the co-decision procedure. A key change
brought about by the Treaty of Lisbon is to increase the powers of the Parliament through an extension of the
co-decision procedure. The Treaty of Lisbon has extended co-decision to some significant policy areas, such
as the area of freedom, security and justice, co-ordination of social security for migrant workers, measures
necessary for the use of the Euro. Co-decision has become the ‘ordinary legislative procedure’, which
according to Article 289 TFEU consists in ‘the joint adoption by the European Parliament and the Council of a
regulation, directive or decision on a proposal from the Commission’.
The Parliament enjoys extensive power over the approval of the Union’s budget (see Article 313-314 TFEU,
previously Article 272 EC). The Parliament is also entitled to give advice on any question regarding the Union
and to adopt non-binding resolutions on such questions.
The Parliament also enjoys certain powers over the Commission. It approves the appointment of a new
Commission and has the right to force the resignation of the whole Commission through a motion of no
confidence, which it exercised in 1999 forcing the resignation of the Santer Commission (see below).
The Parliament is organised in European political parties. This means that MEPs are grouped together not
according to their nationality but by criterion of political affiliation. National parties choose which group to join.
For example, the Labour Party of the United Kingdom has joined the socialist group and the Conservative
Party has joined the Peoples’ Party.

4. The Commission
The Commission is a lot more than the civil service of the Union.1 It enjoys wide
1
powers of legislative initiative and legal enforcement. It is generally considered A civil servant is a member of the
civil service, which are the
to be the champion of the wider European interest and thus works for smaller
permanent professional branches
states against the desires of the larger states. of a state’s administration,
Its powers include the monitoring of compliance with Union law by the other excluding military and judicial
institutions and member states, and in some cases, a quasi-judicial role. The branches and elected politicians.
Treaty provisions which govern the Commission are Article 17 TEU and Articles
244-250 TFEU (previously Articles 211-219 EC). The Commission also participates in decision-making,
whenever the Treaties give it the power. It mostly drafts legislative and other proposals that it submits to the
Council and Parliament. It also represents the European Union in its negotiations with third states or with
international organisations in areas where it has exclusive competence, such as international trade.
In terms of composition, the common practice in the past was that the largest five states had two
Commissioners each, with one each from the remaining 10 member states. However, following the accession
of ten new states in 2004, this became unsustainable as it resulted in a 30-member Commission. At present,
since 1 January 2007, there is one Commissioner from each member state (Article 17(4) TEU). From 1
November 2014, the number of Commissioners will be reduced to two-thirds the number of states, i.e. 18
Commissioners in total (Article 17(5) TEU). However, following an agreement reached to facilitate Irish
ratification of the Treaty of Lisbon, the European Council will re-visit the issue of Commission composition,
and it is likely that the Commission will continue to consist of one national from each member state.
The Commission generally acts as a collective body, according to the Treaties and its own Rules of
Procedure (Articles 245, 249 and 250 TFEU).
The Commission is accountable to the European Parliament in the following ways. First, the European
Parliament approves the appointment of a President of the Commission, nominated by the heads of state or
government. Second, Parliament approves the appointment of the new Commission as a whole (it cannot
block the appointment of an individual Commissioner). Third, Parliament has the power to force the
resignation of the Commission in the case of a successful ‘motion of censure’ (Article 234 TFEU, previously
Article 201 EC). This last power, however, requires a two-thirds majority of the votes cast, representing a
majority of MEPs. This has never actually happened, although it became apparent in March 1999 that it was
going to happen over the scandalous conduct of a Commissioner and the weak response to it. Accordingly
the Santer Commission resigned en bloc after a damning report by a Committee of Independent Experts was
published, but before the parliamentary vote took place.

5. The Court of Justice and the General Court

The Court of Justice is the closest EU institution to its national counterparts. It is a proper court, deciding
cases in the manner of a supreme court of a member state. Nevertheless, it is not a supreme court of the
European Union. Its jurisdiction is limited by the Treaties in many ways. For example, it does not hear
appeals from national courts.
The Treaty of Lisbon introduced new terminology and a revised judicial architecture. The entire court system
of the European Union will be known as the Court of Justice of the European Union, comprising three courts:
the Court of Justice (generally known as the ‘European Court’); the General Court (previously known as the
‘Court of First Instance’); and the specialised courts – at present the only specialised court in existence is the
Civil Service Tribunal (Article 19 TEU).
The Court of Justice consists of twenty-seven judges (one from each member state) and eight Advocates
General (Articles 252 and 253 TFEU). The latter follow French judicial practice in that they are members of
the court but do not sit as judges. Instead they submit and publish their own view on the case after the case
has been heard but before it is decided. They act as ‘friends of court’ rather than as parties to the case. As of
2004 their opinion is not required anymore in some of the more straightforward cases. The judges and
Advocates General are appointed by the governments of the member states but are not accountable to them
during their office. They hold office for a renewable term of six years. Renewal, of course, is at the discretion
of the national governments but the clear consensus is that governments have never tried to influence their
judges by threatening to withhold renewal.
Judges and Advocates General are chosen from legal experts whose independence is beyond doubt and
who possess the qualifications required for appointment to the highest judicial offices in their respective
countries or who are of recognised competence. The judges select one of their number to be President of the
Court for a renewable term of three years. The President directs the work of the Court and its staff and
presides at hearings and deliberations of major formations of the Court.
Under the Treaty of Nice the Court was reorganised to achieve its objectives more effectively. It now meets
mainly in chambers of three or five judges (Article 251, formerly Article 221 EC).
The judgments of the Court are always without dissent. They are drafted by a reporting judge, but agreed
upon by the whole group. As a result, they tend to be shorter and more obscure than, say, English
judgments, where every judge delivers his or her own opinion. On many occasions the best introduction to
the issues of a particular case is the opinion of the Advocate General.
The General Court, known as the Court of First Instance (CFI) prior to the Treaty of Lisbon, was first
established in 1989 as a separate court to lessen the workload of the Court of Justice (now renamed the
General Court) by taking on some of the less significant cases. Its most important areas of jurisdiction now
concern competition law and staff cases (disputes between the EU institutions and its employees). There is a
right of appeal on point of law from the General Court to the Court of Justice.
In 2004 the Council made use for the first time of the possibility, introduced by the Treaty of Nice, of creating
judicial panels to hear and determine at first instance certain classes of action, subject to appeal to the Court
of First Instance. Decision 2004/752/EC, Euratom of 2 November 2004 (OJ 2004 L 333, p.7), established a
European Union Civil Service Tribunal. The Tribunal began its operation in 2005, and has jurisdiction to hear
disputes involving the European Union civil service – i.e. staff cases, in respect of which jurisdiction was
previously exercised by the Court of First Instance. Following the Treaty of Lisbon, the EU Civil Service
Tribunal will continue to exist, but it will be one court in a new category of ‘specialised courts’.

6. The European Council

The European Council did not exist at the time of the founding Treaties. It came into being following a series
of ad hoc meetings between the heads of state or government, which were only officially recognised by the
Single European Act in 1986, although it was still seen as merely a special meeting of the Council. The rise
to prominence of the European Council was confirmed in Article 4 of the original TEU. The Treaty of Lisbon
for the first time treats the European Council as an institution of the EU in its own right, and the revised
Article 15 TEU declares that the European Council ‘shall provide the Union with the necessary impetus for its
development and shall define the general political directions and priorities thereof’. The justification for the
development of the European Council is the need for a focus of authority and direction at the highest level,
but its importance can be seen as a weakening of supranationalism.
Under Article 4 of the former TEU, the European Council operated in parallel with the Council: it was chaired
by the head of state or government of the member state holding the six-monthly rotating Presidency of the
Council. This meant a change in leadership and priorities of the European Council every six months. Some
member states, in particular the larger ones, were in favour of establishing a full-time and more stable
Presidency of the European Council, and giving this President important powers; others, in particular the
smaller states and the Commission, favoured a rotating Presidency, whose role would be more limited,
principally in charge of chairing meetings, without any real power. The resolution in the Treaty of Lisbon has
been the creating of a full-time President of the European Council, with specific powers, elected by a
qualified majority of its members for a term of two and half years, renewable once (Articles 15(5)-(6) TEU).
The President may not hold a national office at the same time. The President’s roe is to chair the European
Council and to ‘drive forward’ its work. What remains unclear is how the new role of the President of the
European Council will work in relation to the new role of the High Representative of the Union for Foreign
Affairs and Security Policy, especially in representing the Union at the highest level in relations with third
countries.

7. The Intergovernmental Conference (IGC)

The Council, Commission, Parliament and Court are the institutions of the European Union. Nevertheless,
they are not the only law-making bodies in the Union. The highest laws of the EU are the Treaties, made by
the governments at an intergovernmental conference convened for that purpose. Therefore, attention must
also be paid to the powers of the intergovernmental conference, even if we did not discuss this particular
body in our lecture.
Initially, the IGC consisted of a diplomatic conference in the manner of ordinary multilateral conferences
negotiating treaties. The EU Treaties are traditional public international law treaties in the conventional
sense. With the drafting of the EU Charter of Fundamental Rights and the draft Constitutional Treaty,
however, the IGC was preceded by a ‘convention’ meeting for a long period before the IGC and comprising
representatives from various institutions as well as member states and meeting in public. Such a more
inclusive body was responsible for drafting legal texts of potentially profound importance for the future of the
EU – the Charter of Rights and the Constitutional Treaty – and although the Constitutional Treaty failed to
become law, it seems that the ‘convention’ method is taking hold.