Part II
Governmental Powers
Introduction
What are the ‘executive’ powers of the European Union? In many constitutions the executive branch has a residual character: anything that is neither legislative nor judicial is considered to fall within its scope. This negative definition of the executive function has historical reasons: the original purpose of the separation-of-powers principle was to remove powers from an almighty monarch to a parliament and the judiciary.
The problem with this negative definition however is its uncertain and relative nature; and serious attempts have therefore been made positively to identify ‘prerogatives’ of executive power. Outside the field of external relations, two such prerogatives have traditionally been recognised. First, the executive power is – naturally – identified with the task of executing laws, and thus with the aim of maintaining internal peace. The task of law enforcement is complemented by a second – seemingly contradictory – task. Executive power is identified with the power to ‘govern’, that is: to lead and direct the political community. The executive branch is here the ‘centre of impulse and decision’. Despite their contradictory outlook, both traditional prerogatives of the executive – the reactive task to enforce laws and the active task to propose laws – are still based on a common idea: the executive enjoys the power of decision.
The power of decision is typically contrasted with the power to adopt legislation. For in the ‘legislative State’ of the nineteenth century all general legal norms should be adopted by Parliament. This past ideal would however find limits in the normative needs of the ‘administrative State’ of the twentieth century. Modern parliaments would simply have no time – nor expertise – to ‘master all the details of tea chemistry and packaging in order to specify the precisely allowable limits of dust, artificial coloring, and the like that would affect suitability for consumption’. Industrial societies required a ‘motorised legislator’; and this secondary ‘legislator’ was found in the executive. The advent of the legislating executive ‘constitutes one of the most important transformations of constitutionalism’. In the administrative State the executive branch thus gains a third power: the power to adopt (delegated) legislation.
A modern treatment of executive power should therefore include three core prerogatives of the executive. These three prerogatives are – in descending order: the political power to govern, the legislative power to adopt executive norms and the administrative power to enforce legislation.
This chapter discusses all three executive powers in the context of the European Union. Section 1 begins with an examination of the political power to act as government. We shall see that the ‘steering’ power of high politics belongs to two institutions within the Union: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. Section 2 moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. We shall see that the European legal order has allowed for wide delegations of power to the executive; while nonetheless insisting on substantive and procedural safeguards that protect two fundamental Union principles – federalism and democracy. Sections 3 and 4 look at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can – exceptionally – execute its own law; yet the centralised administration is limited by the subsidiarity principle. And, as a rule, it is the Member States that execute Union law. This form of decentralised enforcement restricts the uniform effects of administrative decisions within the Union.
Cases
Legislation
EU Regulations
Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark, [1994] OJ L 11/1
Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L 1/1
Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods, [2003] OJ L 309/1
Council Regulation (EC) No. 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuff, [2006] OJ L 93/12
Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders, [2006] OJ L 105/1 (Schengen Borders Code)
Council Regulation (EC) No. 116/2009 of 18 December 2008 on the export of cultural goods (Codified version), [2009] OJ L 39/1
Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechan- isms for control by Member States of the Commission’s exercise of implementing powers, [2011] OJ L 55/13 (Comitology Regulation)
Regulation (EU) No. 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps, [2012] OJ L 86/1
EU Directives
Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, [2001] OJ L 311/67
Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, [2002] OJ L 11/4 (General Product Safety Directive 2001)
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications net- works and services, [2002] OJ L 108/33 (Framework Directive)
EU Decisions
Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1987] OJ L 197/ 33 (1987 Comitology Decision)
Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1999] OJ L 184/ 23 ( (1999 Comitology Decision)
Decision 2004/763/CFSP of the European Council of 5 November 2004 amending Common Strategy 2000/458/CFSP on the Mediterranean region in order to extend the period of its application, [2004] OJ L 337/72
Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [2006] OJ L 200/11 (2006 Comitology Decision)
Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010) 593), [2010] OJ L 39/5
Figures
Extra Materials
Useful websites
Further Reading
Books
C. F. Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005)
C. F. Bergström and D. Ritleng, Rulemaking by the European Commission: The New System for Delegation of Powers (Oxford University Press, 2016)
M. Chamon, The European Parliament and Delegated Legislation: An Institutional Balance Perspective (Hart, 2022)
P. Craig, EU Administrative Law (Oxford University Press, 2012)
D. Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford University Press, 2009)
T. von Danwitz, Europäisches Verwaltungsrecht (Springer, 2008)
H. Hofmann, G. Rowe and A. Türk, Administrative Law and Policy of the European Union (Oxford University Press, 2011)
J. Schwarze, European Administrative Law (Sweet & Maxwell, 2006)
E. Tayschinsky and W. Weiss (eds), The Legislative Choice Between Delegated and Implementing Acts in EU Law (Elgar, 2018)
Articles
D. Adamski, ‘The ESMA Doctrine: A Constitutional Revolution and the Economics of Delegation’ (2014) 39 EL Rev. 812
J. Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarisation in EU Law’ (2012) 49 CML Rev 885
M. Chamon, ‘Institutional Balance and Community Method in the Implementation of EUE Legislation following the Lisbon Treaty’ (2016) 53 CML Rev. 1501
P. Craig, ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’ (2011) 36 EL Rev 671
J. Englisch, ‘ “Detailing” EU Legislation through Implementing Acts’ (2021) 40 Yearbook of European Law 111
V. Georgiev, ‘Too Much Executive Power? Delegated Law-making and Comitology in Perspective (2013) 20 Journal of European Public Policy 535
S. Griller and A. Orator, ‘Everything under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 EL Rev 3
D. Ritleng, ‘The Reserved Domain of the Legisalture: The Notion of “Essential Elements of an Area”‘ in C. F. Bergström and D. Ritleng, Rulemaking by the European Commission: The New System for Delegation of Powers (Oxford University Press, 2016), 133
R. Schütze, ‘From Rome to Lisbon: “Executive Federalism” in the (New) European Union’ (2010) 47 CML Rev 1385
R. Schütze, ‘“Delegated” Legislation in the (New) European Union: A Constitutional Analysis’ (2011) 74 MLR 661
How to Find (and Read) the EU Treaties
The EU Treaties constitute the primary law of the Union. The formula the ‘EU Treaties’ or simply ‘the Treaties’ commonly refers to two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The ‘Treaties’ are the result of a long ‘chain novel’ of consecutive treaties (see Table 20.1). They started out from three ‘Founding Treaties’ that created the European Coal and Steel Community (1951), the European Atomic Energy Community (1957) and the European (Economic) Community (1957). A myriad of subsequent ‘Amendment Treaties’ and ‘Accession Treaties’ gradually changed the textual basis of the three Communities significantly; and this first treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
To simplify the – very complex – textual foundations of the old European Union and European Communities Treaties, the Member States tried to create a single treaty in the early 2000s. The 2004 Constitutional Treaty was indeed intended to repeal all previous treaties; and it was to merge the European Union with the European Communities. Yet the attempt to ‘recreate’ one Union, with one legal personality, on the basis of one treaty failed; and the Member States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
Despite its modest name, the Lisbon Treaty constitutes a radical new ‘chapter’ in the Union’s constitutional chain novel. For while it formally builds on the original ‘Founding Treaties’, it has nonetheless ‘merged’ the old ‘Community’ legal order with the old ‘Union’ legal order into a new ‘Union’ legal order.
Nevertheless, unlike the 2004 Constitutional Treaty, the 2007 Lisbon Treaty has not created a single treaty base for the European Union. Instead, it recognises the existence of two (main) treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The division into two EU Treaties thereby follows a functional criterion: the Treaty on European Union (TEU) contains the general provisions defining the Union, while the Treaty on the Functioning of the European Union (TFEU) contains the specific provisions with regard to the Union institutions and policies. One of the new features of the post-Lisbon era is the possibility of minor treaty amendments instigated by European Council Decisions.
In addition to ‘Amendment Treaties’ there are now also ‘Amendment Decisions’ adopted by the European Council (see Table 21.4). The EU Treaties can today be found on the European Union’s
EUR-Lex website: http://eur-lex.europa.eu/collection/eu-law/treaties.html, but there are also a number of solid paper copies such as Blackstone’s EU Treaties & Legislation or my own EU Treaties and Legislation collection. What is the structure of today’s EU Treaties? The structure of the TEU and TFEU is shown in Table 20.4. The (longer) TFEU is divided into ‘Parts’ – ‘Titles’ – ‘Chapters’ – ‘Sections’ –‘Articles’, while the (shorter) TEU only starts with a division into ‘Titles’. The EU Treaties are joined by numerous Protocols and the ‘Charter of Fundamental Rights’. According to Article 51 TEU, Protocols to the Treaties ‘shall form an integral part thereof’; and the best way to make sense of them is to see them as legally binding ‘footnotes’ to a particular article or section of the Treaties.
By contrast, the Charter is ‘external’ to the Treaties; yet it also has ‘the same legal value as the Treaties’.
How to Find (and Read) EU Secondary Law
The Union publishes all of its acts in the Official Journal of the European Union. Paper versions can be found in every library that houses a ‘European Documentation Centre’, but electronic versions are also openly available on the Union’s EUR-Lex website: http://eur-lex.europa.eu/oj/direct-access.html. The Union distinguishes between two Official Journal series: the L-series and the C-series. The former contains all legally binding acts adopted by the Union (including its international agreements), while the latter publishes all other information and notices. Originally, only the paper version of the Official Journal was ‘authentic’; but since 1 July 2013, electronic versions of the Official Journal (e-OJ) are equally authentic and therefore endowed with formal legal force.
Union secondary law will first mention the instrument in which it is adopted. It will typically have the form of a ‘Regulation’, a ‘Directive’ or a ‘Decision’. This will be followed by two figures. In the past, where the Union act was a regulation, the figure was: number/year; while for directives and decisions this was inversed: year/number. However, since 2015, this has changed and all main Union instruments are now arranged by year/number.treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
Where the year and number are known for a given EU act, the easiest way to find it is to use the Union’s EU-lex search engine: http://eur-lex.europa.eu/homepage.html. Importantly, there may be two or more acts for a given number combination, especially where a ‘legislative’ act has been followed by a non-legislative act. For two types of non-legislative acts – namely: ‘delegated’ and ‘implementing’ acts – the EU Treaties require that they contain the word ‘delegated’ or ‘implementing’ in their title. This is to indicate – at first glance – that these executive acts have been adopted according to a particular decision-making procedure. States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
What is the structure of a piece of Union legislation? After its ‘Title’ there follows a brief summary of the decision-making procedure that led to the adoption of the act – including a reference to the legal competence on which it was based. Thereafter comes the ‘Preamble’, which sets out the reasons for which the Union act has been adopted. The content of the act is subsequently set out in various ‘articles’, which may be grouped into ‘Sections’ and ‘Chapters’. For very technical Union legislation, there may also be an Annex – which, like a ‘Schedule’ in a UK statute, adds detailed provisions ‘outside’ the core content of the act. To illustrate this legislative structure, let us take a closer look at the Services Directive as it would be published in the Official Journal.
How to Find (and Read) EU Court Judgments
All EU cases are identified by a number/year figure. Cases before the Court of Justice are preceded by a C-, while cases decided before the General Court are preceded by a T-( for the French ‘Tribunal’).7 The Civil Service Tribunal prefixed its cases with an F-( for the French ‘Fonction publique’). Following this unique figure come the names of the parties to the case. A full case name would for example be: Case C-144/ 04, Werner Mangold v. Rüdiger Helm. However, since no one can remember all the numbers or all the parties, EU cases often get simply abbreviated by the main party; in our case Mangold.
In the past, judgments of all EU Courts were published in paper form in the purple-bound European Court Reports (ECR). Cases decided by the Court of Justice were published in the ECR-I series; cases decided by the General Court were published in the ECR-II series, while cases decided by the Civil Service Tribunal were published in the ECR-SC series. However, as of 2012, the entire Court of Justice of the European Union decided to go ‘paperless’ and it now publishes its judgments only electronically.8 The two principal websites here are the Court’s own curia website (http://curia.europa.eu/jcms/jcms/j_6), and the Union’s general EUR-Lex website (http://eur-lex.europa.eu/homepage.html). For the purposes of this book, the easiest way is however to go to www.schutze.eu, which contains all the judgments mentioned in the main text – including the ‘Lisbon’ version of all classic EU Court judgments.
Once upon a time, judgments issued by the European Court were – to paraphrase Hobbes –‘nasty, brutish and short’. Their shortness was partly due to a structural division the Court made between the ‘Issues of Fact and of Law’ (or later: ‘Report for the Hearing’), which set out the facts, procedure and the arguments of the parties, on the one hand, and the ‘Grounds of Judgment’ on the other. Only the latter constituted the judgment sensu stricto and was often very short indeed. For the Court originally followed the ‘French’ ideal of trying to put the entire judgment into a single ‘sentence’! A judgment like Van Gend en Loos contains about 2,000 words – not more than an undergraduate essay.
This world of short judgments is – sadly or not – gone. A typical judgment issued today will, on average, be four to five times as long as Van Gend. (And in the worst-case scenario, a judgment, especially in the area of EU competition law, may be as long as 100,000 words – a book of about 300 pages!) This new comprehensiveness is perhaps the product of a more refined textualist methodology, but it also results from a change in the organisation and style of judgments. Modern judgments have come to integrate much of the facts and the parties’ arguments into the main body of a ‘single’ judgment, and this has especially made many direct actions much longer and much more repetitive! The structure of a modern ECJ judgment given under the preliminary reference procedure may be studied by looking at Figure 20.2.
How to Find EU Academic Resources
The literature with regard to European Union law has exploded in the last 30 years. Today, there exists a forest of European law journals and generalist textbooks. Moreover, since the mid 1990s ‘European’ law has increasingly developed specialised branches that are sometimes even taught separately at university (as is the case at my own university). The three main branches here are: European constitutional law, European internal market law and European competition law. The first was explored in Parts I and II, while the second branch (and elements of the third branch) were covered in Part III. In addition to these three ‘bigger’ branches, the last two decades have also seen the emergence of many ‘smaller’ branches, such as European external relations law, European labour law and European environmental law. And there now also exist specialised LLM courses on EU consumer law and EU tax law.
The list of journals (Table 21.5) is by no means comprehensive. It is meant to point the interested reader to a first gateway for an in-depth study of a particular part of European Union law. My selection focuses primarily on English-language academic sources. But it goes without saying that European Union law is a ‘European’ subject with journals and textbooks in every language of the Union.
