THE EU INSTITUTIONAL
SYSTEM
Constantine A. Stephanou
Jean Monnet Professor
Section of International and European Institutions
Panteion University, Athens
1. The EU Polity
1. The EU Polity
Our assumption is that participation in the EU is
based on the principles of consent and
equality of M.S. embodied in the principle of
sovereignty. Is participation actually compatible
with these principles?
The answer varies according to our
understanding of:
– State sovereignty
– The nature of the EU
1.1 Contending visions
of state sovereignty
Under the static vision, participation in the EU entails
restrictions on external sovereignty / independence, as well
as restrictions on domestic / popular sovereignty which are
incompatible with the attributes of statehood in public
international law.
Under the dynamic vision, restrictions on sovereignty
underlined by the static vision are compensated by the
dynamic effects on economic welfare stemming from
participation in the single European market and the single
European currency, as well as the multiplier effects on
political influence in the world, resulting from common trade
policy (EU competence), common foreign and security
policy (coordination of M.S.)
1.2 Contending visions
of the EU
1.2.1 The EU as a confederation
The EU is viewed by some as a union of states, a
confederation, entailing a joint exercise of state
sovereignties beyond the model of international
organizations and regimes. The principles of
consent and equality are still reflected in the way
commitments are assumed by M.S.
a. Treaty amendments reflect the preferences of
M.S.
expressed
at
the
Intergovernmental
Conferences and require unanimous ratification by
national parliaments. Therefore the states are the
“masters of the treaties”. Nevertheless, the practice
of opt-outs from the founding treaties inaugurated at
Maastricht amounts to treaty revisions occurring
without unanimity.
1.2.1 The EU as a confederation (cont.)
b. The major EU institution is the Council composed
of representatives of M.S. who decide on important
subjects by unanimity. Other EU institutions are
agents of the M.S. Therefore popular sovereignty is
still exercised through the M.S. This vision of the EU
fails, however, to take notice of the growing role of
the European Parliament in the legislative process
and the role of independent authorities such as the
European Central Bank, which has exclusive
competence on a typical attribute of state
sovereignty, i.e. monetary policy.
1.2.2 The EU as a regulatory state
Under a second vision, the EU is perceived as a
regulatory state. The Commission, the European
Central Bank and other independent authorities do not
act as agents of M.S. The scope of action of such
authorities is limited, however, to non-political issueareas and, therefore, power transfers to the
aforementioned institutions do not entail challenges to
the sovereignty of M.S. This view does not take into
account the recent politicization of the EU scope of
action (ex. Area of Freedom, Security and Justice), as
well as the role of the European Parliament as colegislator.
1.2.3 The EU as a federal-type entity
Under a third vision, the EU is perceived as a federal-type
polity:
a. Participation in the EU entails indeed the joint exercise of
sovereignties in areas subject to intergovernmental
coordination, such as foreign and security policy.
Nevertheless, in areas submitted to the exclusive or shared
competence of the EU, transfers of sovereign powers have
actually occurred. Such transfers are, however, reversible
and compatible with the principle of consent, to the extent
that M.S. may decide to leave the EU (see article 50 of the
amended EU Treaty). Some transfers have occurred in
“core” areas of sovereignty. Thus, the 18 M.S. participating
in the Eurozone have surrendered monetary sovereignty to
the European Central Bank. Moreover, M.S. participating in
the Schengen area have eliminated internal border controls
not only on goods but also on persons. Moreover, they have
adopted a common system for the management of the
common external borders.
1.2.3 The EU as a federal-type entity
(cont.)
b. A federal-type dual legitimacy is reflected in
article 10 of the amended EU Treaty which
refers to the principle of representative
democracy and provides for the dual
representation of EU Member States and EU
citizens through the Council and the European
Parliament respectively.
1.2.3 The EU as a federal-type entity
(cont.)
c. A federal-type legal order reflected in the attributes of
EU law as compared to public international law. With
the exception of U.N. Security Council Resolutions,
acts of international organizations become binding
upon ratification by national parliaments, whereas
acts of EU decision-making bodies do not require
ratification to become binding. A category of such EU
acts, regulations, are directly applicable in the
domestic legal orders. Another category, directives,
are binding on M.S. but require transposition into a
national legal instrument to produce effects in the
domestic legal order.
1.2.3 The EU as a federal-type entity
(cont.)
d. Notwithstanding the above federal characteristics, the
EU is founded on an international treaty rather than
a constitution. Moreover, M.S. have not lost their
statehood and remain members of international
organizations. In the WTO, full-membership by the
EU has not entailed the loss of membership by the
M.S.
1.3. Concluding remarks
The EU is a union of states, as well as a union of
citizens.
It
combines
characteristics
of
confederations, as well as federal states. Numerous
neologisms have been used to describe the EU as a
political entity, or polity, or politeia, using the Latin
prefix post or the Greek prefix meta, i.e. postnational, post-statal, meta-national, meta-statal. The
appropriate Greek wording is μετα-κράτος (metakratos).
Critics such as Czech President Vaclav Klaus have
described the EU as a super-state, and the entry
into force of the Lisbon Treaty on December 1,
2009, as entailing the end of national sovereignty.
2. Governing Principles
2. Governing Principles
1. Consensus
Treaty revisions require unanimity. Opt-outs possible
2. Equality
No veto powers or special rights for larger members
Dual majority for Council decisions: 55% of M.S. and
65% of population (total 508 million).
3. Mutual Trust
Mutual recognition of diplomas, certificates issued
by M.S. Common external borders for members of
the Schengen Area. Visas issued by M.S. valid
throughout the Area.
2. Governing Principles (cont.)
4. Respect of Diversity
Respect of national identities
Exercise of competences shared with M.S. has to be
in conformity with principle of subsidiarity:
requirement of added-value for draft legislation
5. Respect of Fundamental Rights (F.R.)
EU Charter of Fundamental Rights: Same value as
Treaties
Respect of F.R.: Condition for admission into the EU
Violations of EU Charter may lead to suspension of
voting rights in the Council.
3. Composition and Tasks
of EU Institutions
Political
guidance
European Council
(Head of States or
Governments)
Legislative
power
Monetary
policy
√
√
European
Parliament
√
Political
control
Financial
control
Judicial Review
√
(proposes
new
legislation)
√
√
√
√
√
Court of Justice of
the European Union
√
(proceedings
against MS,
Prelim, Rulings,
Adv. Opinions)
General Court
√
(appeals against
EU acts)
European Court of
Auditors
Advisory
bodies
√
High
Representative
CFSP
European Central
Bank
External
relations
√
Council (Ministers)
European
Commission
(Independent
Officials)
Executive
function
√
European
Economic and
Social Committee
√
Committee of the
regions
√