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Robert Grzeszczak, University of Warsaw
Executive Power in the Complex European Union System
This article discusses and considers the executive power in the European Union. In the EU executive power is divided vertically and horizontally multiple times. Thearticle is going to analyse the definition, delimitation, accountability and legitimization of actions taken by the executive power in the EU.
The first part concerns the manner in which executive power is defined in the public law of the European Union (EU). The analysis of the first part will enable the second level of problems related to the issue of the limitations of its actions to be tackled. Can we, by definition, deem that some competences lie within the domain of the exercise of executive powers, while others not? If so, who determines this classification (de facto and de ferenda)? Can a conflict occur between what the executive power deems part of its competences and other state bodies (another power) deem part of their competences? Consequently, what legitimizes the above actions and what is the scope and nature of accountability?
The paperbegins with a discussion about research methodologies, terminology and definitionsemployed in the course of the study. These considerations are followed by general doctrinal and theoretical (systemic) deliberations on the notion executive power. The reconstruction of the executive powers in theEU system in terms of its subjects and functions constitutes the pivot of the next part of the paper and, from now on, the analysis concentrates on the EU system. The examination of the subjects and functions of the EU government reflects what is called the ‘multiple/repeatedly divided executive power’. Subsequently, the paper focuses on the analysis of different forms of legitimization of the EU executive. The paper concludes with general remarks about the judicial and political responsibility and accountability of the EU executive.
- Terminology and research methodology
Definitional and methodological problems encountered in the course of research on the EU executive originate in the fact that the EU still remains in the phase of standard setting rather than standard implementation. The standard-setting phase is characterized by the creation of self-referential legal standards, including the complex construct of the de facto and de iure responsibility of the EU institutions, the protection of fundamental rights, or finally the multi-level legitimization of the decision-making processes. Standard implementation phase, on the other hand, means independent application and execution of these standards within the EU.
Executive activities themselves apply chiefly to the European Commission (EC) and other EU bodies which issue acts or executive measures, regardless of whether they contain general or individual standards. The phrase “Complex European Union System” used in the title is a wide-ranging expression. This covers law, as well as the operations of legislative, public administration bodies and courts. What is more, these are bodies of both the institutional system of the EU and member states, which (the institutions of the Member States) in certain situations (implementation of EU law) become, functionally, a single EU institutional system. This system also covers the teaching of law and, consequently, such phenomena as legal culture, awareness and attitudes towards the law.
The scope of the present research, out of necessity, concerns selected issues drawn from the extent of executive powers in the EU system.The research concerns to the sphere of entities associated with executive power. In first these will be thoseoperations that are based on treaties (the EC, as well as the European Council, Council and ECJ). Apart from individual institutional actors from the treaties, there are other subjects, e.g. European agencies or administrative networks(Hofmann (2009: 114)). The research is developed also on the implementation of functions which are traditionally (as defined by constitutional law) reserved for the executive power. These are constitutional and administrative legal methods, each of these perspectives present different reference to the legal analysis of EU integration (Hofmann (2009: 115)). The methodology of constitutional law is applied in the EU law doctrine because it allows for the classification of particular institutions, procedures, types of act and types of activity. This approach therefore analyses the nature of EU executive power, locus, legitimacy and accountability from the perspective of, for instance, means of resolving conflicts of competence.This allows for the specification of relations between the EU and member states and between the EU and other international organizations.
However, the EU system is not a state system and, accordingly, a sole constitutional and legal analysis is insufficient, in that it fails to reflect the organization’s complex, non-state nature (Dashwood (1995: 127). As such, it is necessary to go further and reach for the achievements of administrative science. This makes it possible to go beyond the traditional concepts related to the EU. Usually, these traditional concepts define the EU system as a quasi-federal or a developed international organization with a constitutional and administrative legal order. In analysing the EU system from the perspective of administrative law, we decided to employ the procedural approach to integration. The basic research problems in this approach are related to the imperative to attain transparency in procedures, the accountability of participating entities and the division of accountability in non-hierarchized networks, which often result in the establishment of new entities (Hoffmann (2007: 253)). The Treaty provides for the European Commission to be assisted by a committee, in line with the procedure known as "comitology”, which control the EC with respect to its executive missions.These are also informal networks of executive bodies which gained the authority to take decisions with varying legal effectiveness.In many areas these have evolved towards agencies, which will be further discussed later in this analysis.
The National Governments are the main engines of integration processes. Governments determine public spending priorities, the management of vast state budgets and the directions of internal and international policies and control military forces. Regardless of the validity of the claim that at a time of globalization states are no longer the only entities of political power, state governments retain a considerable portion of power. With membership of the EU, their position becomes even stronger. And the power of governments is executive power! This is exercised through prime ministers, cabinets and councils and sometimes heads of state. This power defines trends in state policy, takes ongoing actions and implements law established, at least in principle, by parliaments. In the theory of the separation of powers that has influenced western constitutional thought since the mid-18th century, the point of executive powers is execution.The role of legislation is expression, the role of the judiciary adjudication and the role of governments action (Craig, Tomkins (2006: 3).
- Reconstruction of executive powers in the EU system
It is difficult to reconstruct the executive power in the EU. In the case of states, we may find references in constitutions to a tripartite separation of powers and a more or less detailed executive power. Executive power is defined by the constitutions of all EU member states, as either “executive power” or “government” (see Constitution of the Czech Republic 1992 . Art. 54 – 80; Constitution of the Republic of Austria 1934, Art. 60 – 78; Constitution of the Kingdom of Belgium 1994 Art. 37 and 85 -104; German Grund Gesetz, Art. 62- 69).
Executive power in the EU is divided de iure and de facto and separation of powers is different with regard to different aspects of implementing functions. Executive power in the EU is primarily split between the Council and the EC. This structure corresponds to the need for an independent EU executive power implemented by governments of member states in the Council and the need for political, administrative and regulatory leadership that is independent from states. This is the EC (Jaskiernia (2005: 5).
The Construction of executive powers in the EU system may be conducted on the basis of subject and object analysis. In the first instance this will apply to deliberations on entities (institutions, agendas and private entities performing executive missions entrusted to them) forming this power, while in the second instance the main field of interest will typically be reserved for executive powers.However, the determination of the first of these spheres, the object sphere, immediately proves troublesome. In the 21st century executive power deals not only with traditionally functions. This relates to the mixing of competencies, i.e. the assumption of, for instance, court judiciary roles by what are seemingly executive actors and vice versa, courts assuming functions approximating the executive (a similar phenomenon occurs in relation to legislative and executive powers). In practice the law-making function of the executive power has not yet been questioned. This function in particular consists in issuing executive acts and concluding international agreements. However, the extent to which the executive power may establish law was and is a sensitive and disputed issue (Craig, Tomkins (2006: 316)).
There are few such references in the treaties establishing the EU. The institutional structure and decision-making mechanisms in the EU do not correspond to that known in the state model. Another issue is the question of whether they should in fact correspond to this model. There remains a strong tendency to rate the EU according to the standards of democracy in a state. This situation has become a direct justification for the thesis of a ‘deficit of democracy’ in the EU, a separate issue in research on the EU system (Bogdandy (2001); Schmidt (2008)).
II.1. Subject reconstruction of executive powers in the EU system
Bodies of member states have been entrusted with the obligation to enforce EU law, which is a natural consequence of the principle of conferral, according to which the EU is given solely those competences which have been expressly entrusted to it in Treaties or which can be implied from these instruments (the so-called implied powers doctrine). As is the case in federal states, the EU has adopted the presumption of competences on the part of member states. This principle, irrespective of treaty citation, is a commonly binding principle of international law relating to the separation of competences between states enjoying primary sovereignty and the international organizations established by them (Article 5(1 and 2) TEU)The principle of loyalty also plays a vital role (Article 4(3) of TEU). This principle holds that the EU and all member states respect each other and lend each other support in the performance of the obligations resulting from treaties. This means that the performance of EU laws is not only a right, but also an obligation of each EU member state and institution.
In the vast majority of cases the laws necessary for the effectiveness of EU standards are established by state bodies. The executive activity of the EU bodies has a subsidiary nature only and is undertaken exclusively in those fields where it is necessary to ensure the uniformity of binding EU laws (see: The European Convention, The legal instruments: present system, Brussels, 2002: 13). The necessity of such uniformity depends on each occasion upon the legislator (the EP and EC) and should be compliant with the principles of subsidiarity and proportionality (Article 5(3) TEU). This constitutes a legal and political (subsidiarity principle) restriction of the executive powers of the entities. In cases in which the European Parliament (EP) and Council decide to retain the executive powers at EU level and to entrust them to the competent institution (usually the EC, less often the Council or agencies) the performance of a statutory act is not only a right, but also an obligation.
The separation of competences between the member states and EC has become more precise since the introduction of the Lisbon Treaty (LT). However, it continues to create tensions, especially in sensitive areas such as redistribution policy. The issue has become even more serious since the establishment of the internal market. Political elites faced a number of probing questions, such as the question of who will manage the extensive economic system and by what means. Will this be the task of an intergovernmental authority or should the efficiency of the market be considered our common priority and management be entrusted to the EC? It seems that the dilemma has not yet been resolved. As integration policy has proven, by selecting the community method, states delegated part of their regulatory competencies also to the EC. The EC, apart from formulating a medium-term development strategy for the EU, furthers the general interest of the European Union by launching initiatives and ensuring that all member states adhere to treaties and apply all associated measures. It supervises the observance of EU law under the control of the ECJ. It is also responsible for the execution of the budget and management of programmes. It performs coordinating, implementing and management functions, in line with the terms stipulated in the EU treaties (Article 17(1) TEU). In order to ensure that the EC performs the latter task, its organization is similar to that of state governments. Here the main executive powers lie within the body formed of state ministers, and in the case of the EC, the college of commissioners (Dumała (2002: 6). When executing competences, the EU institutions often delegate or share execution. The process is widely commented on in the case of both the Council, which delegates the establishment of executive acts to the EC (comitology), and the Commission, which shares its powers with other bodies, e.g. agencies.
II.2. The executive power in treaties establishing the EU
An analysis solely of the treaties establishing the EU will provide us with little information on the topic. Still, it is a good point of departure for a more extensive analysis. There is no separate section in the treaties which comment on executive power, no section entitled “executive power” or “EU government”. All we are able to find are provisions pertaining to institutions (Article 13-19 TEU and Article 223-287 EFEU). The main institutions significant for EU executive purposes since the introduction of the Lisbon Treaty have included the Council of Europe, the Council and the EC.Additionally, the treaties do not provide for the separation of powers in the EU political system. The treaties do not provide a clear picture of the separation of powers, legitimization and respective scopes of accountability.
It is therefore necessary to approach the subject in a slightly different manner, i.e. by considering the positioning of executive power both de iure and de facto, with regard to different aspects of the implementing function. Other provisions of the EU treaties (inter alia relating to division of competences) must be taken into account in order to gain a general view of the allocation of authority in the EU (Craig, Tomkins (2006: 315)).
II.3. Dispersed executive powers in the EU
The theory of the separation of powers was formulated in the second half of the 18th century. Montesquieu would have been quite surprised to learn how popular it was to become. The theory of the state as such is not prescriptive. Specifically, it may not be used as a metaconstitutional norm in the systems of the particular member states, the more so in the EU system. As there is no specific legislation in the legal systems of the particular states, it is introduced by general clauses, such as “rule of law”. The pouvoir constituant determines the separation of powers by establishing institutions and defining their competencies, mutual relations and principles of accountability. It rarely separates the powers in advance, according to the principle of separation introduced by Montesquieu.
Moreover, the concept according to Montesquieu assumes the bipartite separation of powers. He himself emphasized that courts do not represent a separate power. The belief that this concept became obsolete at the latest with the implementation of constitutional judicature, i.e. ‘the negative legislator’, is thus defensible. The tripartite separation of powers was an idea in the fashion of the time, or rather the kind of political change intended by the author. It should not be surprising therefore that EU treaties do not implement the principle of the separation of powers into the legislative, executive and judicial. Despite numerous similarities in the EU system and the constitutional law of some of the states, it is not possible to acknowledge that the separation of powers is a constitutional element of EU system, for one of the characteristics of the EU system is the dispersion of both legislative and executive powers. Legislative competences are exercised jointly by the Council and Parliament and by other EU institutions, bodies and organizational units, whereas executive powers are in each case ascribed, in a secondary act of law, to the Council and Commission or, on the basis of the presumption of competences, come under the jurisdiction of member states (Dashwood (1995: 127)).
Treaty competences of EU institutions provide a basis for the assumption that the thesis of the dispersion of powers as a characteristic element of the system is valid. In the case of the EP, which is composed of representatives of EU citizens (Article 14(2) TEU), the LT has systemized functions. In line with Article 14(2) TEU the EP performs, together with the Council, a legislative and budgetary function. It performs political control and consultative functions in line with the conditions stipulated in Treaties and appoints the chairperson of the Commission.
However, in light of treaty provisions it is still difficult to specify the status of the Council clearly. Due to the extensive decision-making power it ought rather to be an executive body, not a legislative one, all the more so given that its composition is changing each time based on the subject matter currently on the agenda of the Council. Additionally, it is not directly subject to democratic control at the EU level, solely in the member states (Article 10(2) TEU).
The European Council also fails to match the characteristics of one of the Montesquieu powers. Article 15 TEU stipulates that it provides the impulse necessary to develop the European Union and specifies political directions and priorities. However, it accepts certain decisions which are binding though they do not belong to legislative acts (e.g. Article 236 TFEU). The European Council has a chairperson who ensures preparation and continuity and submits reports to the EP. However, the chairperson, going beyond the Montesquieu system, provides representation of the Union externally on issues relating to joint foreign policy and security, without impairment of the powers of the High Representative of the Union for Foreign Affairs and Security Policy. It thus exercises implementing functions!And finally it may be seen that EC competences, with implementing functions being predominant, also cover legislative missions, e.g. in EU competition law.