Institutions of the EU In the last chapter, we mentioned briefly the institutions of the European Community established by article 7 of the

Treaty establishing the European Community (TEC). Article 7 establishes five institutions:
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the European Parliament the Council the Commission the Court of Justice the Court of Auditors

We will look in detail at the first four of these institutions. In addition we will look at the European Council, which although not mentioned in the Treaty can be thought of as one of the institutions of the EU. We will not look at the Court of Auditors. To find out more about it, look at articles 246 to 248 of the TEC. Nor will we look at the European Central Bank or European Investment Bank, set up by articles 8 and 9. The European Parliament In many ways, this is the easiest of the institutions to understand. It is a directly elected parliament whose members are voted in every five years at elections throughout Europe. The last such election was in June 2009. There are now 736 members, of which 72 represent UK electors. Member states are allocated more or less MEPs roughly in proportion to their population. Germany has the most MEPs, with 99; France, Italy and the UK have 72 each. Smaller states have fewer MEPs: Poland has 50 MEPs, the Netherlands 25; Austria has 17, and Ireland has 12, while Malta has a mere 5 members. Elections must be carried out by a system of proportional representation; otherwise, each member state is free to choose its own electoral system. Members organise themselves into various pan-European political groupings: the largest group in the current Parliament is the European People's Party, which essentially consists of Europe's mainstream conservative parties including Nicolas Sarkozy's UMP and Angela Merkel's CDU. The Conservative Party was until recently linked with the EPP, but has recently founded the smallerConservative and Reformist group with parties from Poland and the Czech Republic. The Labour Party is a member of the "S&D" or socialist group, the second largest. The Liberal Democrats are members of the ALDE, and the Green Party is in the Green-EFA group together with SNP and Plaid Cymru MEPs. UKIP sit in the Eurosceptic EFD group. A political group must consist of 25 MEPs from 7 member states: there is currently no far-right grouping, so BNP MEPs currently belong to no group. For historical reasons - the EP was originally a "talking shop" with few real powers - many people still think of the EP as having little political clout. This is a serious misreading of the role of the EP today. The EP must approve the EU's budget, and when a new Commssion and Commission President are nominated, it can reject the proposed President or the entire proposed slate of Commissioners. Its threats to use this power in 2004 forced the withdrawal of the proposed Italian Commissioner Rocco Buttiglione. Most importantly, in most policy areas the EP legislates jointly with the Council under the codecision procedure laid down in article 251 TEC. In effect, this makes the EP one chamber of a bi-cameral legislature, alongside the Council. If and when the Lisbon Treaty is in force, the co-

decision procedure will be known as the "ordinary legislative procedure". Look at this "detailed walk-through" if you want further detail on how the procedure works. The Council The Council represents the member states: it consists of ministers from each of the 27 member states' governments, and is sometimes called the Council of Ministers. Although it also has the formal title "Council of the European Union", this is rarely used and potentially causes confusion with the European Council. My preference is to call it simply the Council, as it is called in the TEC. The Council's main role is in the adoption of legislation, which (in most policy areas) it does jointly with the EP, as discussed above. Much of the Council's legislative work is done in closed meetings of "working groups", usually consisting of officials acting on behalf of their ministers, in which detailed negotations take place before the Council reaches a "common position". Mainly, the Council acts by qualified majority voting, or QMV. This system gives more votes to the member states with the highest populations, and requires both a majority of member states and over 70% of the votes in order for a proposal to be adopted. In reality, votes are rarely held. It is usually clear in negotiations whether or not there is a "blocking minority" capable of resisting a measure, and discussions usually lead to compromises that can be broadly accepted. This does not mean, however, that voting weights and rules are not important: crucially they lay down the power relationships underlying negotations, and they very much inform those negotiations. In some areas the Council still acts by unanimity - in other words, where an individual member state has a "veto" over any proposed legislation. This can be combined with co-decision in some areas. In some areas (for instance, anti-discrimination measures under article 13) the EP merely has to be consulted. The Council is a single body in law, but for practical purposes sits in a number of formations or configurations, according to the policy area under discussion. Policy discussions among ministers in these Council formations ranges much wider than the specific legislation being negotiated at the time. The chair or Presidency of the Council is held by the member states in turn, for a period of six months each. If and when the Treaty of Lisbon is in force, a rotating Presidency will continue the Council Presidency should not be confused with the new post of President of a different institution, the European Council, that Lisbon will bring in. The Commission The Commission is the executive of the EU - it is sometimes compared to a civil service, although perhaps a better comparison is with a cabinet supported by a civil service. It has a number of important roles:
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it, rather than the Council or EP, has in most cases the sole right of initiating legislation it monitors member states' compliance with EU law and has an important role in enforcing it it carries out important executive and regulatory functions such as negotiating for the EU (for instance in world trade negotiations) and applying EU competition law it makes delegated legislation where given power to do so by the Council and EP.

It is made up of 27 Commissioners, one from each member state, headed by the President of the Commission, currently Jose Manuel Barroso, who was in September 2009 re-appointed for a

second term. The President is nominated by heads of state and government sitting as the Council, and approved by the EP. Individual Commissioners are nominated by national governments, formally proposed by the Council and allocated portfolios by the President. The Commission as a whole must then be approved by the EP. Commissioners role is to act in the interests of the EU as a whole - the Commission, unlike the Council, does not in any sense represent the member states. Each Commissioner is supported by a cabinet of aides, who act as political advisers, and a directorate general (DG), which is like a ministry or government department, staffed with civil servants. Examples are "DG Markt" which supports the internal market Commissioner, "DG Sanco" which deals with health and consumer affairs, "DG Comp" which deals with competition issues and "DG Agri" which supports the agricuture Commissioner. A key role of the Commission, as "guardian of the Treaties" is to police the member states' implementation and compliance with EU law. If it feels a member state is breaching EU law, it may take action under article 226 TEC, and if necessary take proceedings against the member state in the European Court of Justice. These are called "infraction proceedings". If the Commission is successful, and the member state still refuses to comply with the ECJ's judgment, the Commission can bring the case before the ECJ again under article 228 TEC to ask the Court to fine the member state. This is called a "fines action". The European Court of Justice The ECJ is made up of judges from each of the member states. The key cases it hears are
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infraction proceedings against member states under article 226 TEC (and fines actions under article 228); annulment proceedings under article 230 TEC, and references under article 234 TEC for a preliminary ruling on the interpretation of EU law.

Infraction cases as discussed above are brought by the Commission; the ECJ will simply rule in favour of the Commission or the member state. Annulment proceedings, often called judicial review, can be brought by a member state, by an institution or by an individual who is directly concerned by an EU measure. The ECJ will annul the measure if it is not in accordance with EU law. Cases can be referred to the ECJ by national courts for a preliminary ruling where there is a question of the interpretation of EU law which must be resolved in order to decide the case. These can be very important cases, determining the meaning of Treaty articles, Regulations or Directives. Any national court may make a reference, at any stage in proceedings; and it has a discretion whether to do so. Courts against whose judgments there is no appeal are obliged to do so, however - the obvious UK example is the Supreme Court. National courts need not refer, however, where EU law is clear - this is known as the acte clair doctrine. The principles which national courts should apply in deciding whehter to refer were laid down in Case C283/81 CILFIT. In any case before the ECJ, the parties submit extensive written observations well in advance of the hearing: these are more important than skeleton arguments or written submissions in a typical English court case. At the hearing itself, the parties make prepared speeches - and the Commission, Council and member states all have a write to take part, too. The judges may ask questions.

Although hearings are nowadays a little livelier than they once were, and often involve questioning from the judges, they still considerably shorter than most hearings in the High Court in England, for example. ECJ hearings rarely last more than a day, and usually last half a day. After the hearing, an opinion will be written and circulated by the Advocate General - a type of judge unknown in our domestic legal system. The Advocate General is not one of the judges who will finally determine the case. His or her role is to write an individual opinion giving guidance to the ECJ and recommending a particualr outcome. The ECJ need not follow the AG's opinion but often does. Advocate Generals' opinions (AGOs) often suggest creative and novel solutions to persistent difficulties in EU law, or propose innovations that may be taken up by the Court. Finally, the ECJ gives its ruling. Unlike the higher courts of England and Wales, in which individual judgments are unsually given, the ECJ always gives a single, collegiate ruling, without dissenting judgments. In some people's view, this has the advantage of providing a single ruling, avoiding the need for lawyers and parties to compare individual judgments and distil for themselves the court's reasoning. However it has the disadvantage that the ECJ's judgments, since they do not reflect the thinking of oen kind but the agreement between several, are sometimes unclear and even opaque. The ECJ adopts a purposive or teleological approach to interpreting EU law - we will consider this in a later chapter. You should be aware of the existence of the Court of First Instance, which hears specific categories of cases, such as competition cases. If and when it is in force, the Lisbon treaty will rename the CFI as the "General Court". The European Council The European Council consists of the heads of state and government of the member states, meeting at a summit together with the President of the Commission. Arguably it isn't strictly an EU institution, since it is not provided for in the TEC. It has grown up as an informal arrangement, but has gradually become more important to the work of the EU, and the European Council sets the direction of the work of the institutions, and decides high-level political issues. European Councils are held at least once every six months, and usually represent the culmination of the work of each Council Presidency. They are the big European summits that attract media coverage. The Lisbon Treaty, if and when it is in force, will formalise the status of the European Council as an institution of the Union, and will provide it with a full-time President. This should not be confused with the Presidency of the Council. The "constitutional" structure of the EU It's worth stepping back from the detail of the institutions, to consider the EU's architecture in consitutional terms. From consitutional law, you will recall the idea of the separation of powers, in which government can be divided into three branches - the executive, the legislature and the judiciary - which, depending on the particular consitutional arrangements of a state, may be kept more or less strictly separated from each other. Looking at the EU through this lens, we can see that
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the EP and the Council together make up the EU's legislature; they are like the two chambers of houses of a bi-cameral parliament; the Commission is the EU's executive - making policy, policing compliance with law and carrying out executive and other regulatory functions, and the ECJ is the EU's judiciary.

The three branches are kept fairly strictly separate in the EU system. Although the Commission is accountable to the EP, Commissioners do not sit in the EP, and although the Commission initiates legislation and attends Council working group meetings, it does not formally adopt legislation (except when power to do so is delegated to it by the EP and Council). The ECJ is completely separate from the other institutions, although the Council, EP and Commission can all appear before the ECJ.