Anthony Aust. Handbook of International Law
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competition, the common agricultural policy, free movement of persons, the right of establishment
and social policy. For that, one must consult books such as those mentioned above.
Institutions
Five institutions serve the EU: the Council of Ministers, the Commission, the European Parliament,
the Court of Justice and the Court of Auditors. The Council and the Commission are located in
Brussels; the Court of Justice and the Court of Auditors in Luxembourg. The Parliament commutes
expensively between Strasbourg and Brussels. The powers of each institution are limited to those
conferred on it expressly or impliedly by the governing treaties.
Council of Ministers
The Council is composed of ministers from each of the twenty-five member states, the Presidency
rotating every six months, beginning on 1 January. The General Affairs Council is composed of
foreign ministers, and the Economic and Financial Affairs (Ecofin) of finance ministers. The
Council also meets regularly to deal with agriculture, the environment, the internal market and
transport, the relevant national ministers attending. The Council (not the Commission or the
European Parliament) has the final power of decision on primary legislation, such as regulations and
directives. Unlike many international organisations, seeking consensus is not normal practice. A few
decisions requite unanimity, which means only the absence of negative votes, abstentions not being
counted.
12
Most decisions are taken by qualified majority vote (QMV).
13
These days, the so-called
Luxembourg compromise
14
is rarely invoked. In practice, its effectiveness depends on a member,
which claims that a proposed decision subject to QMV would adversely affect one of its vital
interests, persuading enough members constituting a blocking minority to abstain from voting.
15
The Committee of Permanent Representatives (COREPER) prepares the work of the Council, the
groundwork being done by specialist working groups. The Council, COREPER and the working
groups are assisted by
12. Cf. UNSC voting, p. 213 above.
13. See p. 482 below.
14. EEC Bulletin, March 1966, pp. 8–10.
15. Wyatt and Dashwood’s European Union Law, 4th edn, London, 2000, pp. 50–1.
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a General Secretariat, headed by the Deputy Secretary-General. The staff of the Secretariat are
employed by the Council and have their own legal service.
The Council of Ministers must not be confused with the European Council. The latter consists of
the heads of state or government of the twenty-five member states, and is chaired by the member
state holding the Presidency of the Council of Ministers (Article 4 of the TEU). The European
Council meets at least once during each half-year. Its role is essentially political, providing strategic
direction, and occasionally resolving major disagreements. It can also take important decisions
having legal effect. The EC Treaty, as amended, refers to the ‘ECU’(European Currency Unit).
When in 1995 the member states decided to replace the ECU with the euro, instead of amending the
EC Treaty, which would have involved a lengthy ratification procedure and national parliamentary
scrutiny, the European Council formally decided that instead of the generic term ECU, the specific
name euro would be used. This effective amendment of the Treaty was possible under the law of
treaties, since the members of the Council represented, and were acting on behalf of, all the parties
to the treaty.
16
Commission
The nominee for President of the Commission is agreed by the member states by ‘common accord’,
in effect by consensus. His appointment is subject to the approval of the Parliament. The other
twenty-four Commissioners are nominated by their member states, and are subject to the approval of
the governments of the other member states and the President-designate, who therefore has a veto
over any nominee. The agreed nominees are then subject to the approval of the Parliament (Article
216). The Commissioners serve a five-year term, but can be reappointed. Although the Commission
acts as one body, the President assigns each Commissioner a portfolio, such as transport,
competition or trade. The staff of the Commission is headed by the Secretary-General and are
organised into Directorates-General and other services, including the Commission Legal Service.
The Commission, like the secretariat of any international organisation, is independent of the
member states. But, in contrast to other international
16. Conclusions of the Madrid European Council 1995 (Bulletin of the EC, 12-1995, p. 10). On the law of
treaties point, see pp. 91-2 above.
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secretariats, most decisions taken by the Council under the EC Treaty are the result of an initiative
by the Commission. Almost all legislation enacted by the Council has been proposed and drafted by
the Commission (hence the accusation by Europhobes that Europeans are ruled by faceless,
unaccountable bureaucrats in Brussels). But, under the TEU, the Commission has no exclusive right
of initiative but shares it with the member states. The Commission also implements legislation when
given this power by the EC Treaty or by the Council (Articles 7(1) and 202). The Council may also
authorise the Commission to make subordinate legislation, such as for the common agricultural
policy, or exercise coercive powers in relation to competition policy.
On matters for which the Community has exclusive competence, the Commission represents it
internationally (see Article 300).
Parliament
Although it does not have all the powers of a democratic national parliament, and is not close to
those who elect them, the Parliament has grown from a talking shop (until 1987 it was called the
Assembly) to something more like a real parliament with actual power over the Council and the
Commission. The parliamentary term is fixed at five years.
The Parliament currently has 732 members (MEPs), being since 1979 directly elected by universal
suffrage in accordance with national electoral laws. The member states currently have the following
number of seats: Germany (99), France, Italy and the United Kingdom (78), Poland and Spain (54),
Netherlands (27), Belgium, Greece, Portugal, Hungary and the Czech Republic (24), Sweden (19),
Austria (18), Denmark, Finland and Slovakia (14), Ireland and Lithuania (13), Latvia (9), Slovenia
(7), Luxembourg, Estonia and Cyprus (6) and Malta (5).
The increase in the powers of the Parliament relates to three main areas. It now participates
actively in the legislative process (see below); it exercises political supervision over the performance
of the Commission, whose members attend parliamentary sessions and committees and are required
to respond to written or oral questions (Article 197); and it constitutes the budgetary authority, in
which role it is an equal partner with the Council.
17
Although the Parliament has no right of
initiative, in practice it can bring varying degrees of pressure on the Council and the
17. See Wyatt and Dashwood’s European Union Law, 4th edn, London, 2000, pp. 34–6.
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Commission. Ultimately, the Parliament can by a censure motion (carried by a two-thirds majority of
votes cast and representing a majority of the MEPs) force the resignation of the Commissioners
(Article 201). Although not yet used, it probably would have been if the Santer Commission had not
resigned in March 1999 in response to pressure from the Parliament following a report by the Court
of Auditors on fraud, mismanagement and nepotism within the Commission.
Court of Auditors
The Court is governed by Articles 246–248. Its structure and status are in some ways similar to the
Court of Justice, and it also sits in Luxembourg. Its twenty-five members, one for each member
state, are chosen generally from persons who are or were members of national audit bodies. The
Court examines the accounts of EC revenue and expenditure, and takes its decisions by a simple
majority. The Court has no disciplinary powers, but can withhold approval of the accounts, as it has
done for the last several years.
(The Court of Justice is dealt with at p. 475 below.)
Legislative procedure
Given the areas covered by the EC Treaty, the Community has produced an enormous amount of
legislation. The legislative process is elaborate and involves the Council, Commission and
Parliament. The procedure is specified in the provisions in the EC Treaty that authorise action in
particular areas, and is known as the ‘legal basis’. Action usually requires an initial formal proposal
by the Commission, which will then draft a text. But the final decision lies with the Council.
Although the Parliament has no role to play in legislation relating to the common commercial policy
(Article 133), in other areas it either has a consultative role or exercises a power of ‘co-decision’
with the Council.
Consultative procedure
Although this procedure has been largely superseded by co-decision, it still applies to legislation on,
for example, the common agricultural policy, indirect tax harmonisation, aspects of environmental
protection and certain European Monetary Union matters. Although the Council can consider the
proposal by the Commission while the Parliament is also
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studying it, the Council cannot take a final decision until it has received the Opinion of the
Parliament (even if that is delayed), unless it first invokes the emergency procedure (Article 196) or
requests an extraordinary session of Parliament.
18
If the Commission later amends the substance of
its proposal, or the Council intends to amend the text, the Parliament must again be consulted, unless
the change is to accommodate a wish of Parliament. There is also a procedure whereby the
Parliament can request a meeting of a Conciliation Committee at which the Council and Parliament
can discuss proposed Council amendments.
19
Co-decision procedure
Under this procedure (which is not described as ‘co-decision’ in the EC Treaty), the Commission
submits its proposal to the Council and Parliament at the same time. There then follows an elaborate
procedure, which may involve compulsory conciliation. If the process is eventually successful, the
final text is signed by the Presidents of the Council and the Parliament (Articles 251–254).
20
But,
since 1999, most legislation has been adopted by qualified majority voting
21
in co-decision with the
Parliament.
Community law
Community law consists principally of the EC Treaty and related treaties between the member
states, including accession treaties; Community legislation (for example, regulations and directives);
judgments of the Court of Justice and the Court of First Instance; general principles of law,
including fundamental human rights; treaties between the Community and third states; and treaties
with third states binding on all the member states where the responsibilities of the latter have been
assumed by the Community.
The EC Treaty and legislation
The member states have a legal obligation to comply with the obligations in the EC Treaty and with
legislation made under it. The distinctive feature
18. Ibid., pp. 41–2.
19. Ibid., pp. 42–3.
20. The complex procedure is described in detail in ibid., pp. 43–7, together with a helpful chart.
21. See p. 482 below.
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of Community law is that it is directly applicable in the member states, and in many cases it has
direct effect (Article 249(2)). Direct applicability means that, if a provision in the EC Treaty or in
legislation made under it is capable of being applied in member states without further action by
them, it becomes part of the law of the member states without the need for it to be incorporated.
22
Direct effect means that a provision that gives rise to rights for natural or legal persons can be
enforced against member states in their courts,
23
and sometimes against other natural or legal
persons.
24
Whether a provision has direct effect is a matter of interpretation. Although a regulation
is directly applicable and member states need do nothing to incorporate it, they have a duty to
implement directives by legislation, the form and method being a matter for each member state. But,
until this is done, the directive will still have direct effect.
25
Member states must also enact
supplementary domestic legislation if this is necessary to give full effect to Community legislation,
including the creation of criminal offences for breaches of it.
Supremacy of Community law
It has long been established that Community law prevails over any inconsistent national law, present
or future. A member state cannot plead its national law to excuse a failure to comply with an
obligation under Community law.
26
Court of Justice
The Court of Justice sits in Luxembourg. It has twenty-five judges (in practice one from each
member state) assisted by eight advocates-general. All serve six-year terms, renewable for up to two
terms of three years. They have not necessarily held judicial office before, some having been
practising lawyers or academics. The Court sits either as a Grand Chamber of eleven judges, if a
member state or a Community institution so requests,
22. Because of its dualist approach to treaties (see p. 81 above), section 2(1) of the UK’s European
Communities Act 1972 provides that Community law is enforceable in the United Kingdom without
further action by Parliament.
23. Van Gend & Loos, Case 26/62 [1963] ECR 1 at 12.
24. Walrave & Koch, Case 36/4 [1974] ECR 1405.
25. See S. Prechal, Directives in European Community Law, Oxford, 2005.
26. Commission v. Italy, Case 39/72 [1973] ECR 101; Costav. ENEL, Case 6/64 [1964] ECR 585. And cf.
Article 27 of the Vienna Convention on the Law of Treaties 1969, p. 79 above.
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or in chambers of three or five depending on the importance or difficulty of the case. The full Court
of twenty-five sits only for certain disciplinary matters or in cases of exceptional importance (Article
16 of the Statute of the Court).
The role of the advocate-general is taken from the civil law system. He is treated as a member of
the Court, but does not take part in the judgment stage. Once the parties to the case have concluded
their written and oral submissions, the advocate-general prepares and presents to the Court an
independent and impartial Opinion analysing the facts and the law, identifying the issues and
recommending a decision. Often the Court’s judgment will closely follow the advocate-general’s
Opinion, sometimes adopting its reasoning completely. The Court seeks a consensus, but if this is
not possible its judgment is decided by a simple majority. There are neither dissenting nor separate
judgments.
27
The jurisdiction of the Court is threefold: (a) to hear claims by the Commission or a member state
that a member state has failed to comply with a Community obligation, or for compensation for non-
contractual liability (Articles 226–228 and 235); (b) claims by Community institutions or natural or
legal persons that an act of an institution is invalid (Article 230); and (c) preliminary rulings on a
reference from a national court.
When interpreting Community law, the Court looks more to the object and purpose (teleological
approach) of a provision and its context.
28
This is partly because the text in each Community
language is equally authentic, and partly because of poor drafting and translation.
29
Travaux
préparatoires
30
are seldom considered. When a case raises a matter of Community-wide
importance, the Court may do a comparative analysis of the laws of the member states.
The Court will usually follow its previous judgments (precedents), but is not required to do so.
This means that even statements of law that are not necessary for the judgment can be equally
persuasive.
31
Court of First Instance
Since 1989, the Court of Justice has had attached to it a Court of First Instance (CFI), which also sits
in Luxembourg. It has twenty-five judges,
27. Cf. the ICJ, p. 462 above.
28. Cf. the approach of international tribunals, pp. 88 et seq above.