Law.261 Seminar 2 docx PDF

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Law.261x – EU Law – Seminar 02 Conferral & EU Institutions Compulsory Reading Craig & de Brca, Chaps 3 & 4 (2 & 3 in 6th ed). Fairhurst, Chaps 3 & 5. Jacqu, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383

Further Reading Dashwood, ‘The Relationship between the Member States and the European Union’ (2004) 41 CMLRev 355 Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 ELRev 323.

Questions 1. 1) Is it possible to say that any one of the four main EU institutions, involved with EU law, is more powerful than the others? No, due to … The EU system is based on the second understanding of a separation of powers – The principle of institutional balance. • Article 13 TEU: “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.”

• Each institution must act within its powers, without unilaterally extending its powers • Powers cannot be transferred to another institution (unless Treaties allows for delegation of powers) • Mutual and Sincere Cooperation: Each institution exercise its powers with due regard for the powers of other institutions

2. 2) Do you think that the EU Institutions are democratic, democratically accountable, or have democratic legitimacy?

EXECUTIVE SUMMARY The European Union was founded to promote democracy in Europe. Yet its institutions and procedures leave much to be desired by democratic standards. The Union’s powers should be exercised in accordance with modern principles of democratic and accountable government. The purpose of this report is to show how this can be achieved. Legitimacy, accountability and democracy in the European Union Although there are more opportunities to hold the institutions of the European Union to account than is generally recognised, it is, nevertheless, widely seen as remote and unpredictable. The prime reason for this is that the one democratic power which the citizens enjoy over its institutions, direct elections to the European Parliament, seem to have no demonstrable political consequences. The Union’s institutions European Elections do not at present bring the will of the people to bear on European matters and the European Parliament has only a circumscribed role within the European Union. The Council of national ministers is the most powerful institution of the European Union, but it does not act on any popular electoral mandate. The Commission also lacks any political or democratic mandate to mediate between the differing and legitimate conflicting interests in the European Union. Can the Union be legitimate, accountable and democratic? It is sometimes claimed that the European Union cannot be a democratic polity because it lacks a “demos.” We believe, however, that a European “demos” could emerge from reforming the institutions of the European Union. Towards a democratic Europe We believe that the Union would benefit from the application of British constitutional ideas, especially the idea of ministerial responsibility, both collective and individual responsibility. We believe that this can be achieved without treaty change. 1. We propose tying the nomination of the European Commission directly to the result of the European Elections. This link would apply not only to the nomination of the President of the Commission, but to the Commission as a whole. This would encourage the evolution of genuine European political parties, and would be a major contribution to the emergence of an EU “demos.” 2. We propose giving the European Parliament the power to hold individual European Commissioners to account for mismanagement, and to secure, if necessary, their dismissal.

3. The referendum is accepted in almost all democracies as a legitimate democratic weapon. Referendums on European matters are likely to increase in frequency over the coming years. We believe that future referendums on treat change should be held on a Europe-wide basis on a single Europe day. A Europe-wide referendum with a double and qualified majority of states and population required in order to ratify any proposed treaty amendment would be more consonant with the concept of European democracy than a series of unrelated national referendums dependent on the discretion of national leaders. Conclusion The institutional structures of the European Union reflect the era and political culture in which they were generated, an era of deference to political leaders. These structures need to be adapted to the modern world of participatory and assertive democracy. Britain can play a major part in the reform of the European Union through its long tradition of parliamentary government, provided that it is prepared to play a constructive role in building Europe.

3. 3) Is there a real ‘separation of powers’ at the EU level? Take UK as an example, where there is no clear separation of powers, but where we instead have a developed form of checks and balances to ensure that no arbitrary decisions are taken. Although it can be argued whether the checks and balances that exist in the EU is as effective as the ones in the US and the UK. In conclusion, the separation of powers is not respected in the attribution of competences within the EU. However, the lack of a clear, threefold allocation of functions is not necessary as long as there is an effective form of checks and balances.

4. 4) Explain the principle of institutional balance. – The principle of institutional balance. • Article 13 TEU: “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.”

5. 5) Explain the idea of conferred competence. The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas

of policy not explicitly agreed in treaties by all member states remain the domain of the member states. This indicates that the member states have the right to deal with all matters that fall outside the agreements of the EU treaties and the EU can only act within the conferred competences defined by the Member States in the treaties[1].

This principle has always underpinned the European Union, but it was explicitly specified for the first time in the failed Treaty establishing a Constitution for Europe and carried over into its replacement, the Treaty on European Union. It is spelled out fully in Articles 4[2] and 5[3] of the TEU.

Both Articles make clear that the Union acts only within the limits of the competences conferred upon it by the Member States, but then state clearly that 'Competences not conferred upon the Union in the Treaties remain with the Member States'. Article 4(1) repeats this and goes on to stipulate that 'The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.'

In many areas the Union has shared competence with the Member States. Once the Union has passed legislation in these fields’ competence moves to the Union.

6. 6) What are the principles of subsidiarity and proportionality? How have they been applied by the CJEU? In very simple terms it’s an important legal principle of EU law. It provides an answer to which parties within the EU (the Member States and European institutions) should act in a shared competence. It applies where the EU does not have exclusive competence. It will act only where objectives of proposed action cannot be sufficiently achieved by Member States at central or regional level, but can be better achieved at EU level. Subsidiarity is a state of mind, rather than a legal concept. The launch of the principle makes the EU change its concentration on decision making processes, i.e. it makes legislators take some actions that they did not take previously, and it forces the institutions to justify what they do. Since Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality was introduced, the role of national parliaments from the Member States has been to basically check whether EU proposals are in breach of subsidiarity rather than let the EU

institution do it on their own. There is now an obligation on the EU to refer proposals to the national parliaments after the Lisbon Treaty. The new procedure involving national parliaments is one of the democratic elements that added to the EU law decision-making process. Therefore, the ex ante monitoring role of the national parliament has been strengthened in regards to the control over the notion of subsidiarity. This system is called the ‘early warning system’, and is used to ensure that a draft EU legislative act complies with the principle of subsidiarity. According to article 7 of the protocol, a draft EU legislative act must be reviewed within eight weeks and each national parliament has two votes (e.g. in the UK, one vote is for the House of Common, and one is for the House of Lords). There is, however, no blocking mechanism for national parliaments. The impact of national parliaments’ votes is that if one third of national parliaments’ votes are against the legislation (oppose its subsidiarity arguments), the draft legislative act must be at least reviewed by its initiator (Commission). The draft legislative act can be maintained, amended or withdrawn. This procedure is described as a ‘yellow card’ subsidiarity early warning mechanism by commentators. If simple majorities of the national parliament votes oppose the proposed legislation on subsidiarity arguments, the Commission will then be required to produce a reasoned opinion response. Commentators describe this procedure as ‘orange card’. However, what the existing procedure is lacking is a ‘red card’, which means that the EU does not allow national parliaments to block a measure, and there is no obligation for the Commission to take action. The political process therefore has its limits, so let’s take a look at the principle of subsidiarity being guaranteed by judicial means. After the draft legislative act in question has been made, the Member States can still claim that the legislation is in breach of the principle of subsidiarity. According to article 8 of the protocol, the European Court of Justice (CJEU) has jurisdiction to review EU legislative acts for breaches of subsidiarity. However, in practice, the CJEU is very reluctant to get involved in a subsidiarity argument. In reality, the court often applies other legal arguments (e.g. conferral and proportionality argument), instead of using the subsidiarity principle. The cases of UK v Council (Work-Time Directive) and R v Sec State Health ex parte BAT et al (tobacco labeling) show that — although Member State will argue that if the policy area that the legislative act involves is a national issue, they are best placed to make the decision — the CJEU will completely reject this argument and apply the proportionality test instead. To a large extent then, the principle of subsidiarity is guaranteed by both political means and judicial means. This is because the politicians act as an ex ante subsidiarity control (the early

warning system) and the judiciary acts as an ex post subsidiarity control (bringing a case to the CJEU). The political means and judicial means are closely related in terms of controlling the subsidiarity principle. For example, the Member States (national parliaments or one of the chambers if it is a bicameral parliamentary system, such as UK’s House of Commons and House of Lords) can bring a case to the CJEU if they find that the EU institutions did not comply with the subsidiarity principle. It sounds fair, but there are a lot of problems with the current system. There are mainly two problems associated with the early warning system. The first one is lack of co-ordination by the national parliaments, and the second is the preponderance of upper chamber response. In terms of the first problem, I suggest the time limit for the national parliaments to review the draft EU legislation should be extended, in order to give them more time to co-ordinate efficiently. In terms of the second problem — since the political priorities for both upper and lower chambers are currently the same — reform should be made in order to ensure the lower chamber has a higher political priority. This would mean stronger democratic credentials for the law drafting process....