Ultimate Power of the European Union Council - Report Example

Ultimate Power lies with the European Union Council and therefore with the Member s I. Introduction Tensions are said to come between the European Community (EC) and the Member States because of the increasing transfer of competencies from the latter to the former. The legal order created by the community’s unique character is supreme to the law of its Member States, and is provided a complex system of decision-making. As a consequence, the Community has become more than just mere representative of the countries composing it. Although the transfer of competencies has allowed it the possible realization of common objectives, the interests of Member States and the delineation of competences are turning out to be sensitive matters (Leczykiewicz, 2005) The legal scheme said to be designed by the Treaty at the outset has been assessed as having shortfalls in its objective of ensuring that the EC law be properly applied by the Member States. Article 169 procedures as a legal instrument in fighting against all the failures to fulfill obligations accordingly is not appropriate. This implies the need to create additional means to enforce and supervise the EC law (Gil Ibáñez, 1997). To date, the Community and its underlying legal order can only hold on if that legal order is safeguarded and complied with and the Community law directly applied, with its primacy over national law (ABC of community law, 2004). For all its imperfections, however, the European Community legal order is said to have greatly helped in solving the political, economic and social problems of the Member States (ABC of community law, 2004). But there is yet the tag and pull when it comes to location of power in most aspects. II European Community (EC) Law Different institutions cooperate and govern the European Union and the most important of these are the Council, the Commission, the European Parliament and the Court of Justice. (EU Law, n.d.). With its own set of legislation, the European Community also has the laws of its member states. EC Law is concerned with treaties, regulations, and decisions of the European Court of Justice (Ibid). Made within the part of the European Union called the European Communities (EC), the EC Law is only the legislation that is applicable, hence called EC law. Based on the Treaties, it is the fundamental rules of the EU serving as agreements between the Member States. EC law comprises four different fields, namely primary law (the Treaties and the accession treaties of the new Member States), secondary law (all existing legal acts accepted by institutions of the European Union), international agreements between the European Union and countries outside the Union and the case law of the Court of Justice (Ibid). The rule of law functions imperfectly in the EU, however, a union consisting of sovereign states because law and state are intimately linked (Henningson 2004). The authority of law first of all depends on the coercive means to enforce it; therefore authority depends on the body that controls the state. Since EU has no real sanction possibilities at its disposal, the authority of EC law is weak (Ibid). III. The Community institutions and the Council’s power Main institutions. The EU has four main institutions, namely: the Council of Ministers, the European Commission, the European Parliament and the European Court of Justice. These include other bodies such as the Economic and Social Committee and the Committee of the Regions having a part in the decision making process. (Institutions of the EU, 2005). Each of the member states’ ministers from the national governments make up the Council which brings together the heads of state or government of the European Union and the president of the European Commission. It is the Council that defines the general political guidelines of the EU. In rotation, for a period of six months, the Presidency of the Council is held by each member state with the meetings usually taking place in Brussels (Ibid). The European Commission and the Council of Ministers are said to be the most powerful of the main institutions. To date, however, the European Commission has no powers of legislation, although with an opportunity to amend legislation but it is the Council of Ministers that has the final say. It also has the right by two thirds majority vote to dismiss the Commission (ABC of community law, 2004). Delegated power from Council. The Commission and the Council are two distinguished and closed bodies (Demmke, 1997). The Treaty states that the European Commission propose legislation and the Council of Ministers decides upon it. Although the traditional view of the Commission is that it is the sole executor of Community policies, the treaties do not suggest that the Commission should have the exclusive right to manage Community policy and to make executive decisions. More often, Community policies are normally managed by the Commission under powers conferred by secondary legislation. Such legislation, accordingly, is adopted by the Council and delegated to the Commission under Art. 145 3 TEC which says the council “has the power to make decisions.” While the Council is widely seen as the legislative body of the EC, it is in reality, exercising executive powers (Demmke, 1997). Moreover, Art. 152 TEC gives the Council the right to initiate proposals so that approximately 30% of all proposals of the Commission are made by the Council. (Westlake. Cited in Demmke 1997). Unwillingness of member states. The lack of legislative power of the Community institutions as opposed to the member states is expressed in many documents in their hopes for more power accorded the European Commission. The letter of the Chair, Institutional Affairs Committee, AmCham EU, addressed to Ambassador Umberto Vattani, Permanent Representative of Italy to the European Union is one example. Conveying the importance of granting strong enforcement powers to the European Commission so as to ensure that “European law is not only enacted, but also seen to be enacted,” they hoped the draft Constitution prepared by the European Convention will “provide a framework characterized by a clear division of powers between the EU and its Member States with appropriate attention for the subsidiarity and proportionality principles.” (Taquet-Graziani 2004). AmCham EU (Taquet-Graziani 2004) underscores that the reason why the internal market is not yet functioning as foreseen, is Member States’ unwillingness to properly implement the directives in national law. This lack of enforcement of the Community law therefore implies the contending strength of whatever quality and purpose residing still in the Member States. Further, Article III-168 of the draft Constitution seems to suggest that the Union’s role in relation to third country nationals wanting to reside legally in the European Union will be limited only to “providing incentives and support for the action of Member States”. Power over budget. The Council of Ministers, in a classic case regarding national budget some 2 years ago bared its power over budget. The Stability and Growth Pact is supposedly a legal instrument, aimed to assure sound public finances in the Member States with provisions for sanctions against countries with excessive budget deficits (Henningson, 2004). In November 2003, the Council of ministers of economy and finance or the Ecofin Council, decided not to impose sanctions against France and Germany who had excessive budget deficits, contrary to EC law. Seven months afterwards, in a ruling by the European Court of Justice in July 2004, the Ecofin Council decisions were annulled (Ibid). In other words, the Ecofin Council failed to apply the EC law purposely for the benefit of the Member States. From Henningson (2004)– “From a public international law perspective, no criticism can be pointed towards the Member States for not implementing the Pact. Instead, criticism should be pointed towards the European Court of Justice that through its case law and different conception of the rule of law it has extended its powers beyond what the Member States intended.” Commission Vs Member states. The Commission may be viewed as performing the classic role of administrator zealously ensuring law enforcement, whereas Member States appear as potential non-compliants with EC law. But, the position of the latter is not exactly the same as the normal administré of the former, because Member States are, at the same time, members of the Council, of hundreds of Committees. They are responsible for the EC law to be observed in their territory, by other public institutions and legal person (Gil Ibáñez, 1997). If followed closely, the role of both Commission and Member States veritably changes from one procedure to another, producing a complex picture in the process. Firstly, new infringement procedures, mainly by secondary legislation, were created not following a general strategy, proving once again the Member States reluctance to assign more powers to the Commission except when necessary (Ibid). III. Conclusion The statement that the ultimate power lies with the EU Council of Ministers and therefore with the Member States as opposed to the institutions is a picture of the present-day situation of the EU with the Council having the upper hand. To assure coherence in the EC law, there has been pointed out a need to reformulate infringement procedures. For purposes of realignment and rationalization, it is said there is enough case-law on procedural requirements and stipulations, and legal provisions. Constitutionalists suggest that the Commission should first be able to select those sectors of legislation having a general application and certain stability, and then, incorporate them into the general legal framework. There is also the need to improve cooperation between the Commission and Member States and between the Member States themselves. However, it is noted that the Commission expressly wants to control these new developments with its participation. Nevertheless, lack of trust, complexity, and conflicting objectives at times between the parties make cooperation difficult. It appears then that both the Commission and member state administrations must continue to resolve complexities in order for the Community system to survive. References The ABC of Community Law (2004, April 27). Europa Eur-Lex database. Retrieved November 17, 2005, from http://europa.eu.int/eur-lex/en/about/abc/abc_28.html. Demmke, C. (Ed). 1997. Managing European Environmental Policy: The Role of the Member States in the Policy Process. ISBN 90-6779-111-3. European Institute of Public Administration. Retrieved November 17, 2005, from http://www.eipa.nl/Publications/Summaries/1997_2000/97-05-covers.pdf EC law. Introduction. Jönköping University Library. Retrieved November 17, 2005, from http://www.bibl.hj.se/eng/start/kurser/ihh/kurser/rattssokning_eg/ EU Law: The Council of Ministers and the European Council are the most powerful of the main institutions. Acumen Legal Intelligence database. Retrieved November 16, 2005, from, http://www.acumenlegal.com/EC_Law/EU_Law_The_Council_of_Ministers_and_the_European_Council_L44338/ Gil Ibáñez, A. J. Commission. (1997, May). Tools for the Supervision and Enforcement of EC Law Other Than Article 169 EC Treaty. An Attempt at Systematization. Retrieved November 17, 2005, from http://www.jeanmonnetprogram.org/papers/98/98-12.html Henningson, M. (2004). Conformity to the Rule of Law in the EU - the case of the Stability and Growth Pact. Retrieved November 17, 2005, from http://www.jur.lu.se/Internet/Biblioteket/Examensarbeten.nsf/0/7145494DC7E479E9C1256EEB006D68C9/?OpenDocument The Institutions of the EU (2005, September 22). UK Office of the European Parliament. Retrieved November 17, 2005, from http://www.europarl.org.uk/EU/textonly/txinstitutions.htm Leczykiewicz, D. (2005, November 1). Common Commercial Policy: the Expanding Competence of the European Union in the Area of International Trade. 6 German Law Journal No. 11. Retrieved November 17, 2005 from http://www.germanlawjournal.com/article.php?id=664 Taquet-Graziani, M. (Chair, Institutional Affairs Committee, AmCham EU) (2004, December 5). Re: The Intergovernmental Conference. Letter to Ambassador Umberto Vattani. Retrieved November 17, 2005, from http://www.eucommittee.be/Pops/2003archive/igcletr12052003.pdf Read More