11 EU legal and governmental order Introduction In this chapter we turn to the controversial area of EU law.

. o We will briefly review the background to the development of the European Union, from its origins as the European Coal and Steel Community and then the European Economic Community, before examining the main executive institutions: the European Council, the Council of the European Union and the Commission. We will return to the theme of accountability, focusing on the scrutiny of the executive bodies by the UK arliament. o European treaties are an important source of EU law and we will consider the two ey current treaties, as well as the treaty!making process and "opt!outs"#

 !he legislature of the European Union " the European #arliament " will be discussed and we will review how $E s are elected in the light of criticism of the arliament"s lack of democratic legitimacy# !he initiation of legislation by the Commission will be considered, together with the main method of creation via the "ordinary legislative procedure". $inally, we will loo at examples of the main types of primary EU legislation, %irectives and &egulations#

11#1 'ackground to the European Union (ist the countries which were first to )oin the original European Coal and *teel Community in 1+,-# o o o o o %elgium $rance &ermany Italy 'uxembourg (etherlands.

.hich countries )oined the European Economic Community at the same time as the United Kingdom/ o )enmar o Ireland.

Key EU )argon Sovereignty !his is the legal power of national governments free from pressure or influence from outsiders *eg, foreign governments or international bodies+. Intergovernmentalism 0rrangements under which national governments cooperate to achieve common goals# Supranationalism 1ation states work together and give up a measure of control over the direction and decisions of the group. !here is therefore some degree of integration and loss of sovereignty#

Subsidiarity !his principle is intended to ensure that decisions are taken as closely as possible to the citi2en and that constant checks are made to verify that action at EU level is )ustified in light of the possibilities available at national, regional or local level. Specifically, it is the principle whereby the European Union does not take action *except in the areas that fall within its exclusive competence+, unless it is more effective than action taken at national, regional or local level. *,rticle - of the !reaty on European .nion+.

11#- 3he European Council !he European Council is made up of4 o the -5 heads of state or government *note that in constitutional monarchies such as the .nited /ingdom, it is the head of government, the rime $inister, and not the 6ueen who attends+, o its president and o president of the European Commission# !he function of the European Council, under 0rticle 1, of the 3reaty on European .nion *!E.+, is as follows. !he European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative powers#

 We can see that its role is an executive function, although many of the functions of the UK government are not covered. .ho is the president of the European Council/ 7ermann 8an &ompuy. 7ow often does the European Council meet/ 3wice every six months. *pecial meetings may also be convened by the resident of the European Council

3he European budget negotiations on 5 9ebruary -:1; 'y how much did the European Council agree to reduce the EU budget/ <;=#= billion >?-+ billion@# .hich European!wide growth programme was cut during the negotiations/ !he Connecting Europe initiative.

7ow would you describe the role of the president of the European Council in these negotiations/ 7ermann 8an &ompuy started the negotiation with his own proposals, but had to reach agreement by a "ba2aar" of trading promises. 0 lot of his time seems to have been spent with small groups of leaders and at one stage he was repeatedly trying to phone the 9rench president#

11#; 3he Council of the European UnionACouncil of $inisters !he Council of the European Union, also nown as the Council of $inisters, is the European Union"s primary decision!making institution and it is referred to in the treaties as 0the Council0. 0rticle 1B of the !E. states: o 3he Council shall, 1ointly with the European #arliament, exercise legislative and budgetary functions# o It shall carry out policy! making and coordinating functions as laid down in the !reaties. Each member state has one representative.

 .nless the treaties provide otherwise, the voting system is by Cualified ma)ority voting >6$8@# %epending on the sub)ect matter to be discussed, the governments will send the appropriate minister for that area of responsibility.

11#;#1 *ystem of 6$8 .nder 234 a Cualified ma)ority is defined as at least ,, per cent of the members of the Council, consisting of at least 1, of them, and representing member states comprising at least B, per cent of the population of the European Union#

%o you think that 6$8 is an appropriate method of voting for a group of member states with hugely varying populations/ ,lthough the reasons for not adopting a simple ma1ority system of voting as the default system can be )ustified on democratic grounds, given that it would be unfair for a grouping of small countries to impose their will on the larger countries, but it is arguable that achieving the votes of countries with over ,: per cent of the population of the European Union should be enough to demonstrate legitimacy#

55.6.7 !ransparency and accountability of Council of 3inisters 0rticle 1B of the !E. includes a transparency clause: o !he Council shall meet in public when it deliberates and votes on a draft legislative act# Increasingly, the Council is using its website to give the European public, as well as legislators in the parliaments of member states, greater information on what the national ministers are saying and voting on#

11#= 3he European Commission 55.8.5 $unctions !he Commission has two broad functions# It includes %irectorates!Deneral which are a permanent bureaucracy that manages the administrative and policy affairs of the European .nion. !he commissioners, one from each member state, are an executive branch of the European .nion. !he commissioners are responsible for initiating and drafting legislation, acting in the interests of the European Union as a whole.

 Commissioners are appointed by the national governments but ,rticle 59*6+ of the !E. states: o ...the members of the Commission shall neither seek nor take instructions from any Dovernment or other institution, body, office or entity. Each commissioner is given specific responsibilities by the president of the Commission who is reCuired to provide "political guidance"#

.hat is a Citi2en"s *ummary/ , summary for laypeople enabling them to understand the basis of new EU policy discussions# .hat is the title of the -:1Citi2en"s *ummary: &educing emissions of climate! warming fluorinated gases %o you think that this Citi2en"s *ummary explains the issues and proposals sufficiently clearly/ !he explanation is short and straightforward and avoids scientific 1argon. It does not attempt to go into great detail about how the proposals will be implemented but is clearly described as a summary of proposals which will be debated further by the Council

of the European .nion and the European #arliament. .ho is the president of the European Commission/ Eose $anuel 'arroso from ortugal .ho is the commissioner for maritime affairs and fisheries/ $aria %amanaki from Dreece

11#=#- &emoval of the Commission and individual commissioners ,lthough each European Commission is appointed for a period of five years, but 0rticle -;= of the 39EU gives the European arliament the power to dismiss the entire Commission part of the way through its term of office. !his drastic power has never been formally exercised, although in 1998 scandals over fraud in the European budget led to a highly critical report by a committee appointed by the European Parliament. When the report was published, the Commission led by EacCues *anter resigned en masse

 In response to this crisis, where the bulk of the criticism had been directed at only one commissioner ! $s Cresson " the 3reaty of 1ice provided that the president of the Commission now has the power to demand the resignation of an individual commissioner *,rticle 59*;+ of the !E.+.

.hich commissioner was forced to resign/ <ohn )alli, the health commissioner from 3alta. .hy was he forced to resign/ =e was alleged to have accepted bribes from a 3altese tobacco entrepreneur in return for changing E. legislation on 0snus0, a type of smo eless tobacco. .hich organisation investigated the allegations/ !he E. anti"fraud office *>',$+.

11#, 0ccountability of the EU institutions %emocratic accountability can be demonstrated in the European Union by the direct elections to the European arliament, as well as the indirect influence of national governments who have also been elected. !he ?uestion remains, however, is this enough to establish social acceptance of the European Union by the peoples of the nation states/ *ocial acceptance does not, of course, mean that everyone agrees with every EU policy and piece of legislation, but it should imply that most people accept that the European Union is acting broadly in the overall interests of themselves and their country# In some member states, including the .nited /ingdom, there are vociferous opponents of EU membership and the whole concept of European unity#

 , wider problem may be the lack of a sense of a single European identity among the populations of the individual states. It is noticeable that almost all ma)or sports teams compete only as nation states *with the exception of golf where a 0European0 team regularly plays the ,mericans+.

Citi@ensA initiative In order to try and engage European citi2ens more directly in EU policy, the European Citi2ens" Initiative has been introduced.

11#,#1 0ccountability to the UK arliament !he UK arliament has set up three committees to scrutinise EU policies and legislation#

1# !he =ouse of Commons European Scrutiny Committee !he ob)ective of this committee of 1B $ s is to ensure that the 7ouse of Commons is informed of EU proposals li ely to affect the United Kingdom and to influence and hold UK ministers to account for these proposals.

-# =ouse of Commons $oreign ,ffairs Committee !his select committee monitors the work of the 9oreign and Commonwealth Fffice and its remit therefore includes EU matters as well as foreign policy outside Europe.

;# =ouse of 'ords European .nion Select Committee !his committee conducts regular and detailed inCuiries into specific EU proposals wor ing through seven sub"committees which specialise in particular areas of policy.

11#,#- *ubsidiarity and the role of national parliaments Subsidiarity is defined in ,rticle -*6+ as follows o Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the ob)ectives of the proposed action cannot be sufficiently achieved by the $ember *tates, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved a .nion level. (ote the emphasis is on allocating responsibility to the appropriate level of government on efficiency grounds, which may be the national parliament or regionalA local government#

 $ollowing the 'isbon !reaty, a system of "yellow and orange cards" has been introduced that allows national parliaments to express concerns to the relevant EU institution in relation to the issue of subsidiarity.

11#B 3reaty on European Union >3EU@ and 3reaty on the 9unctioning of the European Union >39EU@ !hese are the currently applicable treaties and are designed to complement each other. !he 3EU sets out principles and ob)ectives, the institutional framework and the Common 9oreign and *ecurity olicy. !he 39EU focuses on how the European Union is to function# &iven their importance and complexity, you should familiarise yourself with their basic structure.

.hich are the areas of exclusive competence for the European Union listed in 0rticle ;/ Customs union o $onetary policy for EU states which have adopted the Euro# o Common fisheries policy# o Common commercial policy# .hat principle is set out in 0rticle 1;/ 7ow is it Cualified/ !he welfare of animals, as sentient beings, is to be protected sub)ect to the religious rites , cultural traditions and regional heritage of member states# .hat are the ob)ectives of the Common 0gricultural olicy as set out in 0rticle ;+/ !o increase agricultural productivity. !o ensure a fair standard of living for farmers and their wor ers. !o stabilise mar ets. !o ensure availability of supply.

 !o ensure reasonable prices for consumers. 11#G UK "opt!outs" from the 3reaties )uring the various treaty negotiations which led up to the !E. and !$E., the UK government chose to opt out of some aspects of EU law and policy# !he opt"outs of the .nited /ingdom *and other countries+ are set out in protocols at the end of the treaties. (ote the following important opt"outs set out in the following protocols to the !$E.: o rotocol 15 " the .nited /ingdom is not obliged to adopt the Euro# o rotocol -: " the .nited /ingdom and Ireland are not obliged to )oin the *chengen agreement removing border controls between the participating member states#

rotocol -- " the .nited /ingdom and Ireland do not always take part in or are bound by decisions relating policies on border checks, asylum and immigration. ,c!ivi!y 9ind 0rticle 1: of protocol ;B of the 39EU o .hich area of policy and law did this opt!out deal with/ olice cooperation and )udicial cooperation in )udicial matters# 'y which date must the United Kingdom notify the Council of the European Union that it does not wish to accept the European Union"s powers under the treaty in this area of policy and law/ *ix months before the expiry of five years since the !reaty of 'isbon was made *i.e. 65 3ay 7B58+.

,c!ivi!y Cead the <anuary 7B56 report from the Centre for European Ceform %ritain0s 7B58 1ustice opt"out: why it bodes ill for Cameron0s E. strategy at: www.parliament.u DbusinessDcommitt eesDcommittees"a"@Dlords"selectD eu" home"affairs"sub"committee" f"Din?uiriesDparliament"7B5BDprotocol" 6;D )o you agree with the author0s criticism: &ive reasons for your view.

11#5 3he treaty!making process !here are three main elements to the process. o ,n inter!governmental conference will be called at which senior politicians, diplomats and civil servants will negotiate and draft the terms of the new treaty. o *ignatures and a process of ratification by parliaments of the individual states will follow. o $inally, in a number of countries, constitutional changes must also be approved by a referendum#

,c!ivi!y Cead the following %%C story about the former UK rime $inister Dordon 'rown at the signing of the 3reaty of (isbon .hy was Dordon 'rown criticised in relation to the signing ceremony/ 7e did not attend the ceremony itself but signed it later on .hat was the main political criticism by 1igel 9arage of UKI / =e argued that there was no substantial difference from the previous draft treaty and the rime $inister should therefore call a referendum#

55.E.5 European .nion ,ct 7B55 !he European .nion ,ct 7B55 *E., 7B55+ introduces a reCuirement to hold a referendum on any significant future transfer of power to the European Union *ss.7, 6 and ;+. !he reCuirements of EU0 -:11 include an 0ct of arliament and a referendum after the 0ct.

,c!ivi!y $ind s#= of the EU0 -:11 on www.legislation.gov.u Du pgaD7B55D5 7Dcontents and identify the three types of change that will not reCuire a referendum. o Codification of an existing competence. o ,ny provision which applies to other member states but not the United Kingdom# o 0ccession of a new member state by treaty#

11#+

European

arliament

!he European #arliament consists of $embers of the European arliament >$E s@ directly elected, under a variety of voting systems by the electorates of the member states. Elections take place every five years# !he number of $E s allocated to each member state is only roughly proportionate to the si2e of each state"s population. In general, smaller nations have more $E s per head of population than larger ones. ,t its star est, the average $altese has significantly more influence through his $E s than the average Derman.

 !he European arliament has had its legitimacy challenged on the grounds of lack of support# In some member states, in particular the .nited /ingdom, the rate of voter participation has been much lower than for elections for national parliaments. !here has been a perception that the European arliament is a home for second rate or semi! retired national politicians.

,ctivity Identify one of the political groups in the European #arliament at: www.europarl. europa.euDportalDen and answer the following ?uestions. Summarise in your own words the group0s political philosophy. $ind out which countries the group0s 3E#s come from. )oes the group have representation from most ma1or member states:

11#1: 3he "ordinary legislative process" ! how the Commission and arliament create law )ointly !he ordinary legislative process is a method of legislating which relies on compromise. !he ey stages are set out below. o !he Commission sends its proposal to arliament and the Council. o !hey consider it and discuss it on two successive occasions# o ,fter two readings, if they cannot agree, the proposal is brought before a Conciliation Committee made up of an eCual number of representatives of the Council and arliament. o &epresentatives of the Commission also attend the meetings of the Conciliation Committee and contribute to the discussions#

o .hen the Committee has reached agreement, the text agreed upon is sent to arliament and the Council for a third reading, so that they can finally adopt it as a legislative text# o !he final agreement of the two institutions is essential if the text is to be adopted as a law.

o Even if a )oint text is agreed by the Conciliation Committee, arliament can still re)ect the proposed law by a ma1ority of the votes cast.

 ,c!ivi!y 55.77 Cead the press release of the Council of the European .nion following the Economic and $inancial ,ffairs *%udget+ and Conciliation Committee meeting on 56 (ovember 7B57 at: www.consilium.europa.euDuedocsDcm sF)ataDdocsDpressdataDenD ecofinD566897.pdf ,nswer the following ?uestions. Who was the president of the meeting: Why was the conciliation committee unable to reach an agreement with the European #arliament:

11#113ypes of EU legislation !here are two main types of secondary E. legislation which have different effects on national law. 55.55.5 Cegulations It is important not to confuse an EU &egulation with UK regulations, as discussed in Chapter G. 0n EU &egulation is a form of law which is "directly applicable". !he ./ arliament does not have to take any action before an EU &egulation becomes law#

55.55.7 )irectives )irectives are a form of legislation directed at member states ordering them to reform their laws in order to match a set result. )iffering member states may already have laws covering the area of law and may need to ma e more or less drastic changes to reach the common standard. $ember states have a measure of discretion as to how they implement the %irective. In the .nited /ingdom, %irectives may be implemented by 0cts of arliament or, more commonly, by statutory instruments#

 ,c!ivi!y 55.76 $ind the text of Cegulation *EC+ (o. 5776D7BBG at: http:DDeur" lex.europa.euD 'ex.riServD'ex.riServ.do: uriHCE'EI:67BBGC5776:E(:(>! and answer the following ?uestions. Why was Council )irective 9;D9;EDEEC being replaced: What is the ob1ective of the Cegulation: $ind the Conservation of =abitats and Species Cegulations 7B5B *SI 7B5BD8GB+ at: www.legislation.gov.u Du siD7B5BD8GB DcontentsDmade and answer the following ?uestions. Compare the language of this statutory instrument to that of Cegulation *EC+ (o 5776D7BBG. =ow do they differ: Which E. )irective is referred to in the introductory text of the Conservation of =abitats and Species Cegulations 7B5B:

11#1- *ummary !he European Council is made up of the heads of state or heads of government of each member state. o Its function is to define the general political direction and priorities of the European Union# !he Council of the European Union >Council of $inisters+ has one ministerial representative from each member state"s government. o !he ministerial representatives vary according to the sub)ect matter of the Council0s meetings. o Its function is to exercise legislative and budgetary functions and make policy. o It shares this function with the European arliament#

 !he system of Cualified ma)ority voting >6$8@, as used by the Council of the European .nion, is designed to reflect a number of factors, including the number of member states in favour as well as the proportions of the total EU population represented by the member states# !he European Commission is made up of commissioners who are appointed by, but not accountable to, the governments of the member states# o !he bureaucracy of the European Union is managed through the %irectorates! Deneral# o !heir primary function is to initiate and draft legislation on behalf of the whole European Union#

 %emocratic legitimacy and social acceptance of the European Union is challenged in some, though not all, member states, including in the .nited /ingdom. o !he European Union has used the European Citi2ens" Initiative to try to engage EU citi2ens more effectively# 0ccountability to the UK arliament is achieved through the following committees: o 7ouse of Commons European *crutiny Committee o 7ouse of Commons 9oreign 0ffairs Committee o 7ouse of (ords European Union *elect Committee.

 !he ey current treaties are the 3reaty on European Union >3EU@ and the 3reaty on the 9unctioning of the European Union >39EU@# !he .nited /ingdom and other member states have obtained "opt! outs" from various aspects of EU law and policy, including the re?uirement to 1oin the Euro. o !he 0opt"outs0 are set out in protocols to the !$E.. 3reaties are created and amended in complex negotiations at inter!governmental conferences# !he European Union 0ct -:11 attempts to "entrench" a reCuirement to hold a referendum after any future significant treaty change affecting the .nited /ingdom.

 !he European arliament is elected directly by the electorates of the member states every five years# o It creates law, working with >or sometimes against@ the Council of the European Union using the ordinary legislative process# &egulations are a form of EU secondary legislation which is directly enforceable immediately# o %irectives must be implemented by member states through their legislatures.