EU Law: The Council of Ministers and the European

Council are the mostpowerful of the main institutions. Discuss.


The different functions and responsibilities of each of the
institutions makes it is almost impossible to single out the
most powerful. Power, meaning by definition authority and
control. The Commission “the guardian of treaties”, The
European Parliament “the voice of democracy”, The Court of
Justice, in theory, “the servant of community law”, and The
Council “the decision maker”, all play a vital role in the
performance of the European Community . None of the
institutions works in isolation, but combine together to
achieve the aims and objectives of the Community. Their level
of power is determined not only by the role of the institutions
themselves but also the decision making process. Therefore in
order to evaluate the levels of power it is necessary to
examine each of the five main institutions and then to briefly
establish their capacities within each decision making process.

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Described as being “a hydra-headed conglomerate of a dozen or more
functional councils” (Pinder p25), The Council Of Ministers comprises 40
different councils of national civil servants. Backed by a governmental
department, most ministers realise that they have a responsibility to try
to reach agreements that will be of some benefit to the Community as a
whole, although the national governments are able to exert an influence
over Community legislation. A Committee of Permanent Representatives
(COREPER) which is charged with the background work and The Council Of
Ministers is in permanent session. The Council meets in Brussels and
Luxembourg, however the presidency which is described as a country’s
opportunity to “show it’s commitment to Europe” (Noel p24) rotates every
six months and during this time meetings are held in whichever country
holds presidency.

Combining legislative, executive and diplomatic roles, it’s
function is fundamentally to examine Commission proposals, ensuring that
there is a common understanding and then establish whether the proposal can
be accepted. It is The Council Of Ministers’ job to try to co-ordinate the
policies of the Member States in areas where the Community’s method is
still co-operation and not integration, for example areas such as
macroeconomic policy and foreign policy. Despite being the main decision
making body it can only deal with proposals coming from the Commission, may
only amend them by unanimity and has no power of legislation without the
Commission’s approval. Decisions are taken by the ministers and, once a
decision is adopted, recommendations are usually put to the Member States
although they do not carry legal force. However, the less important
decisions may be adopted without debate, as long as the permanent
representatives and commission representatives are unanimous.

Also assisted by COREPER and a General Secretariat and consisting
of heads of state or government, the president of the EEC Commission,
foreign affairs ministers and members of the Commission. The European
Council is an extension of the Council Of Ministers to the levels of heads
of government or state. Although there was no provision for a European
Council in the Treaty Of Rome, it was agreed in 1974 to establish one, the
first meeting being in Dublin, 1st March 1975. Since then it is the only
institution to have gained full competence in the Single European Act,
giving legal recognition to it’s existence. In 1986 it was also agreed in
1986 to restrict meetings to twice a year (having previously been three
times a year), with a view to limiting the intervention of The European
Council in the general running of the Community.

Linked with the growing authority of the heads of state or
government in most member states, the importance of the European Council is
steadily increasing. Despite having no legislative powers the European
Council is vital in resolving log-jams, pushing the Community forwards and
it sets an agenda for Community objectives. The decisions made have
significant implications on the Community and although the methods for
laying the guidelines lead to difficulties regarding the implementation,
they are decidedly effective.

The Commission, incorporates one commissioner from each of the
smaller member states plus two from France, Germany, Italy and the U.K.

Seventeen commissioners and their “cabinet’s” of either four or five people
are responsible for their individual specialised areas. The Commission is
headed by a president (Jacques Delors) and six vice presidents, all
nominated by the member states and serving a period of office of 4 years (
5 years as from 1995, to bring it in line with The European Parliament).

Although commissioners are usually former ministers or high officials of
the member states they are bound by oath not to take instructions from
governments, but from the Treaty Of Rome, giving priority to Community
interests.

The so called “Guardian of Treaties”, it is the sole initiator of
legislation and ensures the implementation of it’s proposals. It plays an
essential role in the process of community legislation and has been
described as “the motor of the community, pulling the council along behind
it” (Pinder p22). With a function to execute policies decided under
community law, represent the Community in negotiations (for example
international trade), bring infringements to the attention of those
responsible, and if necessary take them to court, it works in tandem with
the Council to provide a motive power for the Community.

The five hundred and eighteen members of The European Parliament
(MEP’s), selected by the citizens of Europe, hold a 5 year period of
office. They are supported by about 2500 staff as well as organisations
including The Economic and Social Committee (ECOSOC) and various consumer
groups. The MEP’s meet eleven times a year in Strasbourg as a whole
parliament but meetings are held throughout the year in Brussels by the
eighteen committees within the Parliament.

The predominant role is one of consultation although significant
powers exist regarding assent to the entry of new member states into the
Community. However, influence regarding the adoption of a budgetary policy
is questionable. Admittedly there is a right to adopt or reject the budget
as a whole, but in the case of rejection the Community turns to a system of
twelfths. Given inflation this results in a cut in real expenditure, which
is not in line with the European Parliaments wishes. At the present time it
has no powers of legislation, although there is an opportunity to amend
legislation but The Council Of Ministers does have the final say. A
surprising power is the right (by a two thirds majority) to dismiss the
Commission. If this were to happen, the Commission would nevertheless
remain until a new one was appointed by unanimous vote among the Council.

However, as the Commission is regarded as an ally this power of dismissal
has never been exercised.

The Court Of Justice is based in Luxembourg and holds a 6 year
period of office. It consists of thirteen nominated judges “The judges have
to be chosen from persons whose independence is beyond doubt” (Article 167
EC). One judge is nominated from each member state as well as an additional
one to avoid tied judgements. The president who is selected by the judges
themselves is assisted by six Advocates General who analyse arguments and
give opinions despite the fact that their opinion is not binding.

Supported by The Court Of First Instance it’s role is to, “ensure
that in the interpretation and application of this Treaty the law is
observed” (Pinder p31). The Court Of Justice is to uphold justice and
community law. Considered, in theory, to be “the most powerful” as it has
the final say, there is actually very little input either in the process of
initiating or implementing proposals.

The decision making processes have great effect on each
institution’s varied levels of power. The Consultation Procedure involves a
proposal which once adopted is sent to The European Parliament who must
then issue an opinion. The Council has the responsibility of making a final
decision, but there is no obligation to consider the opinion of The
European Parliament. This was seen as undemocratic because of the
Parliament’s lack of influence and timely because of the fact that time
limits didn’t exist. The Co-operation Procedure was introduced in 1987
under the Single European Act but only applies to the internal market.

Therefore other areas of legislation still require proposals to go through
The Consultation Procedure.

The Co-operation Procedure involves The Commission taking a view on
The European Parliament’s opinion. After this The Council adopts a ‘common
position’ whereby every one agrees by qualified majority. It is then The
Parliament’s responsibility to either approve or take no action in which
case The Council either adopts the act, rejects it by an absolute majority,
although The Council may still adopt the proposal within three months, or
amend by absolute majority. If this takes place, within one month The
Commission must review the parliament’s amendments within one month and
then may revise them. Finally The Council is given the option of either
adopting or amending Commission proposals, adopting the amendments that the
Commission would not accept or fail to act.

Under The Maastricht Treaty there exists The Conciliation
Procedure, which although not in action yet would have a more extensive
range of areas to cover. Comparable to The Co-operation Procedure, except
The European Parliament has the option of approving, taking no action,
proposing amendments or rejecting the proposal. In the event of a rejection
The European Parliament is obliged to inform The Council of it’s
intentions. The Council then has three months to act on the amendments, in
which time it may adopt all aims, adopt the amendments proposed by The
European Parliament by unanimity or fail to act. This procedure gives The
European Parliament a significant role if The Council fails to act. If new
legislation is not created within six weeks The Council readopts a common
position. However, if it is rejected by absolute majority voting within The
European Parliament the proposal lapses.

By means of a process of elimination “the most powerful
institutions” may be narrowed down. The Court Of Justice despite having the
final say, therefore having authority over all of the other institutions
does not enter the process of establishing policies, consequently
demonstrating that it’s role is to survey the implementation and only
intervene to ensure that the community law is observed. The European
Parliament has a consultative role and despite increasing importance, it’s
decisions can be overruled too simply by The Council and The Commission.

Both vital to the Community and both having considerable amounts of power.

The competition is between The Council and The Commission. Despite The
Councils power to make decisions, all proposals originate from The
Commission and may only be altered by unanimity, whereas The Commission
creates proposals and ensures that they are implemented.

In conclusion, an understanding that the institutions work in
unison instead of isolation to gain full-effect is imperative. However, if
the definition of power is taken to be control and authority, then it is
neither The Council Of Ministers nor the European Council which is the most
powerful of the five main institutions, but by having the monopoly of the
power to propose as well as to implement it is undoubtedly The Commission.