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2. Power and Importance of the Institutions

The term “institution” refers to all facilities of the Community. The system of the arrangement of the institutions is not created following the principle of the balance of powers known from states’ constitutions. Especially there is no strict division between legislative and executive power. Only the judicial power has some kind of its own but factually not pure section. The four main institutions of the European Community are as set out in the Treaty the Parliament, the Council, the Commission and the Court of Justice. The rights of the Parliament are only a few. Generally the Council can be considered as the most powerful and therefore most important institution of the Community (art. 202 et seq. ECT) because it is the main legislator and executes all the important legislation (regulations, directives), only sometimes in co-operation with the Parliament (art. 251 ECT). In the order of importance it is followed by the Commission and the ECJ. Different opinions can be argued though. The question of importance may be up to the eye of the beholder. A general view shall be provided hereafter.

2.1 The European Commission, the most powerful institution?

The role of the institutions is described and stated in the ECT. The European Commission has got the legislative initiative, it monitors compliance with legislation and with the Treaties, and administers common policies.

Firstly the Commission has the right of initiative. Its proposal is needed for all new legislation. In addition to its power of proposal, the Commission acts as the EU executive body, as a manager and a negotiator. The executive responsibilities are wide; e.g. it manages the EU’s budget and negotiates trade and competition with other states. Furthermore the Commission has administrative responsibilities as the „guardian of the Treaties“. As a judicial role the Commission has to guarantee that the legislation is applied correctly by the Member States. It is the Commission that will bring actions against the Member States under art. 226 ECT. It investigates treaty violations. It can, for instance, institute legal proceedings against Member States or businesses that fail to comply with European law and bring them before the European Court of Justice. The Commission shall generally sustain, manage and develop policies and shall represent the common interest. It often contributes with impulses towards the further development of the EU. It

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shall ensure that the EU can attain its goal of an ever-closer union of its members. Due to its right of initiative, the Commission has acted as the driving force in European integration. The Commission is often called the “motor“ or the “beating heart of the community”. It has always been the most important political force for integration and federalism. ¹ An example can be seen in the completion of the European single market at the beginning of 1993. The Commission also played a central role for creation of the economic and monetary union and the initiatives to reinforce the economic and social cohesion between the regions of Europe.

The Commission embodies, to a large degree, the personality of the Union. The Commission is “a curious hybrid of legislature, an executive and law enforcer”. 2

But the limits of the Commission's authority are clearly defined. The extent of its powers to enact laws is almost entirely dependent on the Council’s willingness to delegate its legislative power to the Commission. ³ The Council and the Parliament take legislative decisions. Although the Commission has the right of initiative, it does not take the main decisions on EU policies and priorities which is the responsibility of the Council of the EU. Its members are ministers from the Member States’ governments, and mostly of the European Parliament as well. Reality is therefore different from the popular misconceptions, which greatly exaggerate the power of the Commission. The most powerful institution is the Council. The Commission has few powers of coercion, although its neutral role and the depth of specialised knowledge it has acquired over the years give it plenty of scope for persuasion. The Commission is much less powerful than the Council. ⁴ The dangers of increasing competence in wider fields are a lack of accountability and a Commission unable to cope with its responsibilities. The factual evidence is seen in the Commission resignation in March 1999. The Maastricht and Amsterdam Treaties have given the Commission more democratic legitimacy. But still some criticism remains that the Commission is an unelected body without democratic legitimacy.

The Commission's functions regularly involve the European Court of Justice. On the one hand, the Commission refers cases to the Court where directives or regulations are not being respected by

¹ Craig/de Burca, EC Law, p. 48.

² Weatherill/Beaumont, EU Law, p. 72.

³ Weatherill/Beaumont, EU Law, p. 71.

⁴ Weatherill/Beaumont, EU Law, p. 71.

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governments or companies. But it also works the other way round, when they want to appeal against fines imposed by the Commission.

After all we can conclude that the Commission is not the most powerful institution of the EC and it generally cannot be considered as. Regarding the resignation of the Commission in 1999 one might think the Commission is not “mature” enough anyway and it now needs to gain the trust of the citizens of the Union again. But that is part of another discussion. The Commission has got its important role as a legal institution and a powerful job to do within the EC. Nevertheless it is more or less the Council who finally makes the decisions and rules the EC.

2.2 The European Court of Justice, the most important institution? The European Court of Justice ensures that the law is observed in the process of Community integration, the interpretation and application of the Treaty, art. 220 et seq. ECT. To enable it to carry out that task, the Court has wide jurisdiction to hear various types of action and to give preliminary rulings. The Court of Justice, as the judicial institution of the Community, is the “backbone of a system of judicial safeguards” ⁵ .

The competences of the Court are specified by the main provisions stated in art. 220 - 233 ECT.. They are: action for failure to fulfil Treaty obligations (Commission against a Member State or MS against another MS), actions for annulment (judicial review of the legality of Community acts), actions for failure to act (against Parliament, Council or Commission), actions for damages (against Community institutions or servants), preliminary rulings on the interpretation or validity of Community law (references from national courts), appeals against judgements of the Court of First Instance.

The Court of Justice actually plays an essential role in the institutional system set up by the Treaties. Although it is different from the (other) political institutions the ECJ has played a significant role in the shaping of the legal and political landscape of the Community. The Court has on occasion been willing to fill in the gaps in the Treaty. It acted as an judicial legislator, which was especially important for the Community in times of stagnation. Therefore the ECJ might sometimes be

⁵ http://curia.eu.int/en/jeu.htm.