Institutional Architecture

The Treaties

The EU is governed by Treaty. Specifically, since the

implementation of the Lisbon Treaty in December 2009, it

has been governed by two Treaties:

• Treaty on the European Union (TEU)

• Treaty on the Functioning of the European Union (TFEU)

Treaties and the nature of European integration

• Politics has usually followed economics: integration of economic activity has required political ‘catch-up’

• Flexibility: alternatives to unsuitable ways of proceeding have usually been found, opt-outs permitted, and flexibility ‘constitutionalized’ by enhanced cooperation provisions

• Incrementalism: path-dependence and the fact that no treaty provision has ever significantly reversed an aspect of European integration

• Elite-driven: even after treaties have been rejected in referenda, political elites have continued to drive through further integration

Evolution of the The Treaties of the European Union-1There were three 'founding Treaties’:

• the Treaty of Paris (1951)

• the two Treaties of Rome (1957)

Three further amending Treaties in the 1960s and early

1970s:

• Merger Treaty (1965); merged the Councils and the

Commissions of the three Communities

• First Budgetary Treaty of (1970)

• Second Budgetary Treaty of (1970)

The Treaty of Paris (1951)• Formed the European Coal and Steel Community (ECSC), providing

for a common market in coal and steel and laying down an institutional structure still clearly discernible in the EU of today• The High Authority: 9 members, including at least one from each member

state. No member was to regard him- or herself as a national delegate. Given strong independent powers, including on the prohibition of subsidies and aids, and action against restrictive practices

• The Council of Ministers: One minister per national government, charged with harmonizing the actions of the High Authority and that of the governments

• The Common Assembly, members of which were chosen by national governments, and whose role was advisory

• The Court of Justice: to settle conflicts between organs of the Community, and the Community and any of the states. Its decisions were to be enforceable

The Treaties of Rome (1957)• One formed the European Atomic Energy Community

(Euratom)• The other formed the European Economic Community

(EEC), which provided for a common market and a few other common economic policies (notably in respect of agriculture). The common market was to be based on• The removal of all tariffs on internal trade• The erection of a common external tariff• Measures to promote the free movement of goods, services,

persons and capital• The institutional and decision-making structures were

based on the ECSC structure, though were not quite so supranational.

Between 1957 and 1986• The Merger Treaty (1965) established a single Council of

Ministers for all three Communities, and merged the High Authority of the ECSC, the Commission of Euratom and the Commission of the EEC into one Commission

• Treaty Amending Certain Budgetary Provisions of the Treaties (1970) and the Treaty Amending Certain Financial Provisions of the Treaties (1975) together laid down a budgetary procedure and allocated budgetary powers between EC institutions

• Act Concerning the Election of the Representatives of the Assembly by Direct Universal Suffrage (1976) provided the legal basis for direct elections to the EP

Evolution of the The Treaties of the European UnionFour new Treaties in from 1980s to the beginning of 2000s:

• the Single European Act (SEA) - 1986;

• the Maastricht Treaty - 1992;

• the Amsterdam Treaty - 1997

• the Nice Treaty - 2001

Evolution of the The Treaties of the European UnionThe Maastricht Treaty had introduced a structure consisting of

three 'pillars’:

• the EC pillar, governed by the Treaty establishing the

European Community (TEC);

• two intergovernmental pillars, covering the Common Foreign

and Security Policy (CFSP) and Justice and Home Affairs

(JHA) governed by the Treaty on European Union (TEU)

Subsequent amendments, made by the Treaties of Amsterdam

and Nice, scaled back the policies covered by the JHA pillar by

moving some to the EC pillar. However, the CFSP remained

distinctively intergovernmental.

Evolution of the The Treaties of the European UnionThe EU’s Three-Pillar Structure 1999-2000

Source: Bache et.al., Politics in the European Union 3rd Ed.

The Single European Act (1986)• Completion of the internal market by 1992 was identified

as a specific goal• A number of new policy areas – environment, research

and technological development, and ‘economic and social cohesion’ – were put on a treaty basis

• The Council’s ability to take decisions by QMV was extended

• The European Council was given legal recognition• The EP’s powers were increased in certain ways, notably

by the creation of the cooperation and assent procedures

Background to Maastricht• Many member states came to the view that the full

benefits of SEM could only be realized if action was taken on Economic and Monetary Union (EMU)

• Growing perception of a need for a ‘social dimension’ to soften and offset some of the free market/deregulatory implications of SEM

• Need to address the democratic deficit• Reunification of Germany sparked fears that Germany

would dominate Europe again• Break-up of the USSR added to pressures to strengthen

the Community’s policy and institutional capacities

The Maastricht Treaty (1992)• Created the European Union, to be based on three pillars:

• The European Communities: Amendments to the EEC Treaty included a schedule for creating EMU, extensions of QMV in the Council, and increased powers for the EP – notably via the creation of the co-decision procedure

• Common Foreign and Security Policy: Systematic cooperation to be established in matters of foreign and security policy of general interest. This pillar was based on intergovernmental principles.

• Justice and Home Affairs: In 9 areas of common interest (e.g. asylum, immigration policy, judicial cooperation in civil and criminal matters) the Council could adopt joint positions. Also based on intergovernmental principles..

The Amsterdam Treaty (1997)• The contents of the treaty were relatively modest:

modernizing and consolidating rather than transforming eg as with the SEA and the Maastricht treaties there were extensions to QMV and to EP powers. The EP’s de facto right to approve the European Council’s nominee for Commission President was given treaty status

• The Schengen acquis was given treaty status

• A new post of CFSP High Representative was created to assist the Council in all CFSP matters

The Nice Treaty (2001)• Designed to prepare the way for EU enlargement• From 2005 the College of Commissioners would consist

of one national per member state, so the 5 largest states lost their right to have two Commissioners each

• There were the ‘customary extensions to QMV and to EP powers.

• The size of the EP and allocation of seats was agreed• The Charter of Fundamental Rights of the European

Union was ‘proclaimed’

Background to Lisbon

• The Nice Treaty seen as too minimalist• The convening of the Constitutional Convention and then the IGC

• The French and Dutch ‘No’ votes on the Constitutional Treaty

• The convening of another IGC, with a clear remit from heads of governments

The Lisbon Treaty (2007): Key contents

• Most ‘symbolic’ references on flag and anthem removed• Constitutional Treaty provisions creating new legislative acts dropped• CT and ‘Lisbon Treaty 1’- provision to reduce number of

Commissioners to two-thirds of the number of member states dropped

• Some significant institutional changes:• The Union is given a legal personality in international law• A ‘semi-permanent’ European Council President• A strengthened position of CFSP/CSDP High Representative • Some extensions to QMV• Abolition of third pillar• The co-decision procedure becomes ‘the ordinary legislative procedure’• Differentiation is extended, with opt-ins and opt-outs

The Lisbon Treaty (2007): Its significance

• Whereas the CT replaced all existing treaties, the Lisbon Treaty is (another) amending treaty; the existing treaties remain in place

• The contents are very similar to the ‘non-symbolic’ contents of the CT

• It does little to make the EU more comprehensible

• It contains no major reform or projet

Evolution of the The Treaties of the European Union• The Constitutional Treaty, agreed at the Brussels

European Council on 18 June 2004, was designed to

consolidate the existing Treaties into one.

• However, following its abandonment in 2005, the

somewhat more modest Lisbon Treaty made revisions to

the existing Treaties.

• Lisbon Treaty changed the general organization (or

architecture) of the EU in a way comparable with the

earlier Maastricht Treaty. Second, it included many

amendments to the existing Treaties.

Evolution of the The Treaties of the European Union• Three pillar structure was abolished as of December 2009

by Lisbon Treaty. The CFSP remains distinctively

intergovernmental, but all other policies are consolidated

into a single order governed by the TFEU.

Evolution of the The Treaties of the European UnionThe EU’s Post-Lisbon Architecture

Source: Bache et.al., Politics in the European Union 3rd Ed.

Evolution of the The Treaties of the European UnionThe key distinction between these two Treaties is as follows.

The TEU sets out:

• the broad principles governing the EU, such as its commitment to democracy;

• the general role of the institutions; • the principles governing who may apply to join the EU; • how a member state may leave the EU (a provision that is

new in the Lisbon Treaty).• the details of the operation of the CFSP, making clear that

its location in this Treaty designates it as not subject to the full authority of the Court of Justice.

Evolution of the The Treaties of the European UnionThe key distinction between these two Treaties is as

follows.

The TFEU sets out:

• sets out the detailed operation of the institutions and of all

other policy areas

• the arrangements covered by the TFEU will be termed the

Union method.

The Decision-Making Institutions (the Union Method)With one exception *, the main decision-making institutions of the EU central to

the Union method are those that were set up in the Treaty of Rome (EEC):

• the Commission;

• the Council of Ministers;

• the European Parliament (EP).

*The exception is the European Council. This body was set up in 1974 and has

grown in importance, but the Treaties did not spell out its operation in detail

until the Lisbon.

In addition, to the main institutions there are also two consultative committees:

• the European Economic and Social Committee (EESC)• the Committee of the Regions and Local Authorities (CoR)

The Decision-Making Institutions (the Union Method)

Source: Bache et.al., Politics in the European Union 3rd Ed.

The Decision-Making Institutions (the Union Method)The European Council

• the main agenda-setter of the EU.

• Article 15 TEU states: The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.

The last sentence makes a clear delineation of

responsibilities between the European Council and the

Council of Ministers, i.e. the European Council plays a

political role while the Council of Ministers plays a

legislative role.

The Decision-Making Institutions (the Union Method)The European Council

is comprised of the EU's top political figures:

the heads of state and government of 28 Member States

the President of the European Council

the President of the European Commission

EU's High Representative for Foreign Affair and Security Policy

represents the EU's summit of member-government power

and has the political clout to drive forward the EU's agenda.

shapes the context of legislation and other decision making

typically takes place

The Decision-Making Institutions (the Union Method)The Commission

Two important roles:

submits legislative proposals to the Council of Ministers

draws up the draft annual EU budget for agreement by the Council

of Ministers and the EP.

The European Council-the EU summit meetings-sets out the EU's

strategy and may therefore set the agenda that the Commission then

follows in terms of specific legislation.

The Commission is the sole proposer of legislation should not be taken

to imply that it works on legislative proposals in isolation. In practice, it

has always consulted widely with interest groups, committees of

technical experts, and civil servants from the member states.

The Decision-Making Institutions (the Union Method)The Council of Ministers (Council of the European

Union / the Council)

consists of representatives of the member states.

Most meetings in the Council structure are not of

Ministers themselves, but of various committees of

member state officials.

makes decisions on proposals from the Commission

either unanimously or through qualified majority voting

(QMV) depending on the Treaty provision.

Source: Bache et.al., Politics in the European Union 3rd Ed.

The Decision-Making Institutions (the Union Method)The Council of Ministers (Council of the European Union / the

Council)

Qualified majority is based on a population-based system.

A qualified majority is reached when:

a majority (sometimes even two thirds) of the 28 EU countries vote in favour

at least 260 of the possible 352 votes are cast

Furthermore, a member country can ask for a check to see whether the

majority represents minimum 62% of the total population. If this is not

the case, the proposal cannot be adopted.

In votes concerning sensitive topics - like security and external affairs

and taxation - decisions by the Council have to be unanimous. This

means that one single country can veto a decision.

The Decision-Making Institutions (the Union Method)The Council of Ministers (Council of the European Union /

the Council)

Lisbon Treaty introduce a new system known as 'double

majority voting' which will come to operation from October

2014.

A qualified majority is reached when:

it covers at least 55% of Member States representing at least 65% of

the population of the EU. Where the Council does not act on a proposal

from the Commission, the qualified majority should cover at least 72%

of Member States representing at least 65% of the population.

a blocking minority composed of at least four Member States

representing over 35% of the EU population.

Source: Bache et.al., Politics in the European Union 3rd Ed.

The Decision-Making Institutions (the Union Method)The European Parliament (EP)

In order to make the new community more democratic, a

European Parliamentary Assembly was added to the Treaty

of Paris

Since 1979 when it became a directly elected body

is formally a co-decision maker with the Council on the

annual budget, and its approval is necessary for the

budget to be given effect

has gained influence are in holding the Commission and

the Council of Ministers to account

The Decision-Making Institutions (the Union Method)The European Economic and Social Committee (EESC)

consists of representatives of producers, farmers, workers, professionals,

and of the general public

Its 344 members are proposed by national governments and formally

appointed by the Council of Ministers

The main work of the EESC is carried out by its six sections, which are the

equivalent of the committees in the EP:

Agriculture, Rural Development, and the Environment;

Economic and Monetary Union and Economic and Social Cohesion;

Employment, Social Affairs, and Citizenship;

External Relations;

the Single Market, Production, and Consumption;

Transport, Energy, Infrastructure, and the Information Society.

The Decision-Making Institutions (the Union Method)The Committee of the Regions and Local Authorities (CoR)

created by the Maastricht Treaty, and was given the right to be

consulted on proposals that affected regional and local interests

Its members are chosen by the member states and officially

appointed by the Council of Ministers

The members, collectively known as the Assembly, participate in

the work of seven specialized commissions that are responsible for

drafting the CoR's opinions.

At first sight, the CoR appears to be another incarnation of the EESC,

with which it originally shared a meeting chamber and support staff.

However, there is an important difference: the CoR is strongly backed

by political actors of considerable influence.

The Decision-Making Procedures(the Union Method)There are two types of decision-making procedure within

the Union method. The precise workings of both

procedures are usually facilitated by inter-institutional

agreements.

the budgetary procedure; that for adopting the annual

budget of the EU

various legislative procedures

The Decision-Making Procedures(the Union Method)The Budgetary Process

The budget demonstrates the importance of the European Council as agenda-

setter. This is because the annual budget negotiations take place within a multi-

annual budgetary envelope that will have been agreed politically in the European

Council.

Under the Lisbon Treaty, the multi-annual financial perspective must also then be

formally signed off by the Council of Ministers, deciding-like the European Council-

by unanimity.

The EP's involvement is limited to giving its consent to the Council's agreement.

The Commission tends to play a key role in proposing the multi-annual financial

perspective.

The first of these covered the years 1988-92. At its meeting in December 2005,

the European Council agreed the fourth financial perspective, for the seven-year

period 2007-13.

Source: Bache et.al., Politics in the European Union 3rd Ed.

The Decision-Making Institutions (the Union Method)Legislative Procedures

The Lisbon Treaty provided some significant simplification of the

legislative procedures that were applicable prior to 2010.

It reduced the number of procedures from four to three.

It also created the OLP as a default pattern.

All other arrangements are termed 'special legislative

procedures' but there is quite some variation between them,

so the term is not of much use in this outline.

The process becomes 'special' if the Council decides by

unanimity and/or the EP uses the consultation or consent

procedures.

The Decision-Making Institutions (the Union Method)Legislative Procedures

The three main procedures are:

the ordinary legislative procedure (co-decision)

consultation

consent

The Decision-Making Institutions (the Union Method)The Ordinary Legislative Procedure (Co-decision)

The first step was the co-operation procedure which introduced in

the SEA

The second step, one of the key changes introduced by the Maastricht

Treaty into the EU's legislative process, was the co-decision

procedure.

The co-operation procedure had more or less disappeared as a result

of amendments in the Amsterdam Treaty, but was formally abandoned

by the Lisbon Treaty

Lisbon Treaty made a further change by using the terminology of the

OLP to designate what is now the norm in EU law making: namely, the

provision for QMV in the Council combined with co-decision between

the Council and the EP.

The Decision-Making Institutions (the Union Method)Consultation

Isoglucose case (1980), the European Court of Justice

(ECJ) ruled that the Council could not act legally in

deciding on a proposal from the Commission without

receiving the opinion of the EP.

However, having received that opinion, the Council could if

it so wished simply ignore it and agree to the proposal, or

reject it.

This procedure still exists, but the Lisbon Treaty has

further reduced the circumstances under which it can be

used to about twenty

The Decision-Making Institutions (the Union Method)Consent

requires the EP's agreement for a measure to be adopted.

Main area of application is agreements with non-member

states (including to accession of new members). New

areas added include some aspects of judicial co-

operation as well as the multi-annual financial framework

for the EU budget.

There is no provision for the EP to amend proposals.

ImplementationThe policy process does not end once agreement has been reached on a

legislative proposal. The agreement still has to be implemented before the

policy has any real existence.

The primary implementers are the governments and administrations of

the member states.

The Commission itself has a central role in the case of other types of

legislation, and is charged by Article 17 TEU to 'ensure the application

of the Treaties, and of measures adopted by the institutions pursuant to

them'.

In performing this latter task, the Commission has recourse to judicial

authority through the referral of cases to the ECJ.

Finally, the implementation of all financial instruments is subject to

scrutiny by the Court of Auditors

ImplementationThere are three main types of EU instrument that are legally binding:

Decisions

the most common form of general legislation agreed in the Council of Ministers

addressed to particular individual legal actors such as companies or individual states.

left to individual member states to decide how they are incorporated into national law

Directives

have to be transposed into national law through appropriate national legal

instruments.

have to be applied by national administrative authorities

Regulations

do not need the extra stage of being transposed into national law through national

legal instruments since they are directly applicable

national administrative authorities have responsibility to ensure that they are applied.

The Decision-Making Institutions (CFSP)CFSP, the second pillar of the EU, is governed by the TEU, whereas

the TFEU addresses those policy areas governed by the Union

method.

The CFSP is concerned with a range of activities, such as:

safeguarding the common values, fundamental interests,

independence, and integrity of the Union in conformity with the

principles of the United Nations Charter;

strengthening the security of the Union;

preserving peace and strengthening international security;

promoting international co-operation;

developing and consolidating democracy and the rule of law, and

respect for human rights and fundamental freedoms.

The Decision-Making Institutions (CFSP)CFSP is almost exclusively intergovernmental in character. In consequence, the

ECJ, the Commission, and the EP are either absent or have very limited powers.

The principal actors are the European Council, the Council of Ministers (meeting

as the Foreign Affairs Council), and the High Representative.

The key characteristics of decision making on the CFSP are as follows:

The European Council is responsible for the strategic interests and objectives

of the Union.

The European Council acts unanimously on the basis of recommendations

from the Council of Ministers.

The High Representative may submit proposals to the Foreign Affairs Council

on CFSP matters (and chairs this formation of the Council as well).

The decisions under CFSP are non-legislative in nature. This makes clear

that the legislative procedures considered above under the Union method are

not applicable.