EU 1

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Composition of the Commission

-          Colleges of Commissioners with a president and thousands of permanent administrative staff

-          One commissioner per member state since 2004

-          The president lays down the guidelines for the commission’s work, decides on internal organisation, and ensures efficiency. They can reshuffle the commission, require a commissioner to resign but does not have any kind of veto. We should note no president has ever used the power to reshuffle in a major way or fired an individual commissioner.

-          Each commissioner is elected by the commission president however they must first be nominated by the European council and then approved by the EP

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Commission Powers - Art 17(1) TEU

1.       “promote general interest” of the EU and take “appropriate initiatives” to that end

2.       “ensure application of treaties” and measures given effect to them

3.       “oversee the application” of EU law subject to the ECJ

4.       “Execute the budget and manage programmes”

5.       Exercise “coordinating, executive and management functions”

6.       “ensure the unions external representation”

7.       “Initiate the Unions annual and multi-annual programming”

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Commission Functioning

-          They also have a monopoly on negotiating international treaties on behalf of the EU, and adopt delegated acts or implementing measures. It also has the role of administrating the EU’s budget and to apply EU law in individual cases.

-          “Completely Independent” and cannot take instructions from Goveernments or any other body.

-          The college makes decisions by qualified majority an in accordance with its own rules of procedure

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European Parliament Powers

·         Article 14(1) TEU list two main categories of powers for the EP:

1.       Legislative and Budgetary Functions

2.       Political control and consultation

·         The vast majority of legislative acts use the co-decision principle with the Council and the EP.

·         Its political control extends to sanctions against member states for HR breaches, consenting the Euro Council decision on parliaments own composition and some aspects of treaty amendment. They also have consent powers on enlargement of the EU, treaties concerning the withdrawal of a MS, extensions of EU competence on criminal law, the conclusion of most international agreements and the approval of enhanced co-operations.

·         The parliament is able and willing to resort to court action in order to pursue its legal arguments about EU measures. 

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EP Functioning

·         Does not need to support the commission, and therefore there is no parliamentary majority party.

·         This means groups of similarly minded MEPs often group together in order to achieve their own personal agendas.

·         The day to day work is largely carried out in committees.

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Council Functioning

-          Voting in the council vote by qualified majority normally, but occasionally a simple majority. Unanimous voting still remains in the council for sensitive issues such has taxation, some employment and environmental law or the creation of a European public prosecutor.

-          QMV: 260 votes for out of 352 cast, and at least 62% of the EU population must be represented (MS get votes dependant on the population size of their country).

-          Council Presidencies last 6 months on the basis of equal rotation. 

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European Council

Composition

-          Decided by the MS

-          The presidency lasts 2.5 years, his job is to drive forward the work of the Euro Council, ensure its preparation and continuity, facilitate cohesion and consensus and regularly report to various bodies.

Powers

-          Can be sued or sue, has its own rules of procedure

-          Gives general guidance, but cannot exercise legislative functions

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Fundamental Rights Introduction

Fundamental Rights apply first and foremost as a limit to the acts of the Union institutions. Therefore they act as a precondition for the legality of any act of the union whether legislative or administrative (A key case here is Kadi and Al Barakaat which tells us what are the FR’s as well as the state of the constitutional union. In this case (post-9/11) the UN agreed a list of sanctions to be targeted against as known terrorist organizations (which could include individuals). The EU implemented it into their own laws through a council regulation, one of the consequences was Kadi and Al Barakaat had their assets frozen, and they had no right of judicial review (at least in front of the ECJ). Eventually they tried to bring an action before the court, as individuals challenging a regulation (which applies against everyone technically), to which the ECJ ruled there was a right to JR of a regulation if it had an impact on the FR of the applicants.)

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Fundamental Rights 2

If a constitution is a hierarchy of norms (the more important something is, the earlier it is on the constitution), then we can consider Article 2 as a clear and concise statement of how the EU must be run. There is a reason it’s the first thing in the treaty, not an “afterthought” such as a protocol coming at the end.

§  There is however no reference to fundamental rights in the original EEC treaty. §  The constitutional status of fundamental rights however was in the written constitutions of some member states (for example Germany and Italy)

§  The Court of Justice however does not decide in a vacuum, it recognizes the need to protect fundamental rights as a re-assurance to member states. Therefore the economic goals of Europe cannot be achieved at the expense of fundamental rights, as seen in Stauder (a decision was made against an individual which he argued was against the German constitution, the court said it is a small conflict, but they would reconcile the commission decision with German law to make the two compatible. The court said the protection of fundamental rights is a general principle of EU law, irrespective of what type of court it is, they must protect them) and Internationale Handelsgesselschaft (“the validity of a community  measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of the state or the principles of a national constitutional structure” – therefore the court is saying EU law cannot be set aside in order to protect constitutional provision of member states.)

§  Common values of member states includes the ECHR and the Charter of Fundamental Rights as they have all signed it

§  That is not to say the protection of FR is not a complex matter, as balancing rights with security is never an easy job. It has brought into focus the question of what is the standard of protection of fundamental rights in the EU?

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Proportionality - Vodafone Case

According to settled case-law, the principle of proportionality is one of the general principles of Community law and requires that measures implemented through Community law provisions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 68)

The criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue

However, even though it has a broad discretion, the Community legislature must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators… The Court must therefore examine, on the basis of the abovementioned criteria, whether, as the claimants in the main proceedings argue inter alia, Regulation No 717/2007 infringes the principle of proportionality by reason of the fact that it does not confine itself to imposing ceilings for the wholesale charge, but also lays down ceilings for retail charges as well as an obligation to provide information about those charges to roaming customers.

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Subsidiarity - Vodafone Case

It is appropriate to recall that the principle of subsidiarity is referred to in the second paragraph of Article 5 EC – and given actual definition by the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Treaty –, which provides that the Community, in areas which do not fall within its exclusive competence, is to take action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

As regards legislative acts, the protocol states, in paragraphs 6 and 7, that the Community is to legislate only to the extent necessary and that Community measures should leave as much scope for national decision as possible, consistent however with securing the aim of the measure and observing the requirements of the Treaty.

In addition, it states in its paragraph 3 that the principle of subsidiarity does not call into question the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice.

 

As regards Article 95 EC, the Court has held that the principle of subsidiarity applies where the Community legislature uses it as a legal basis, inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market

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Cygan - Parliamentarisation of EU Decision Making

Protocol 2 is the single most important development for national parliaments since their contribution was first recognised by Declaration 13 of the Treaty of Maastricht. There are three reasons for this. First, subsidiarity monitoring confirms the presumption that, within a multi-level governance framework, legislation is made at the appropriate level. Secondly, under Protocol 2, parliaments are expected to engage in a political dialogue, principally through the Conference of European Affairs Committees of National Parliaments (COSAC)… Finally, recognition of national parliaments as guardians of competence acknowledges the presence and importance of the nation state within EU integration.

Under art.5(3) TEU, in policy areas which do not come within the scope of exclusive EU competence the Union shall act only if, and, “insofar as the objectives of the proposed action cannot be achieved by the Member States … but can rather by reason of scale or effects of the proposed action be better achieved at the EU level.” This, prima facie, suggests a presumption against EU action, but, since the Treaty of Maastricht, the precise meaning of subsidiarity has been the subject of much debate.27 The Court has favoured a restrictive interpretation, shared by the Commission, in whose view art.5 TEU raises a presumption that the measure satisfies the dual requirements of necessity and effectiveness for EU action to be justified

The Treaty of Lisbon provides institutional recognition for national parliaments, but they are not “EU Institutions”. Their status, as directly elected institutions at the margins of a decision-making process which seeks to improve participatory democracy, is an irony not lost on the FCC. The FCC considers that this limited form of Treaty recognition does not compensate for the continuing legitimation deficit arising from the representation provided by the European Parliament.

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