Presentation by Seamus O'Cleireacain: The institutional framework of the EU

The European experiment is very much a work in progress. It wasn't fully formed at birth. It is not fully formed now -- even though fifty years have passed since the signing of the first treaty-the Treaty of Paris (1951) establishing the European Coal and Steel Community.

Membership

The experiment started with six members [France, Germany, Italy and Benelux] in 1951. Then 9 in 1973 [Denmark, Ireland and the UK]; 12 in the 1980s with the Southern enlargement [Greece, Spain and Portugal]; 15 in 1995 [Austria, Finland, Sweden], and is now contemplating a possible further 13 more members from the Baltic, Eastern and Central Europe, Turkey, Cyprus and Malta.

All members meet several democratic tests. Applications are only accepted from democratic governments. Spain and Portugal were unable to join until Franco and Salazar had passed from the scene. Greece had its application frozen until the Greek colonels had come and gone. With democratic systems in place in applicant countries, membership faces a second test --- ratification of its application by the European Parliament, by all the current member states and by its own parliament or citizens' referendum. The citizens of Norway have twice turned down the privileges of membership so painstakingly negotiated by Norwegian governments.

The members are a disparate group -big powers and small states. NATO members and neutral states. High-income countries and (by EU standards) low income ones. The disparity in per capita incomes will widen enormously with the currently contemplated enlargement.

The members have different cultures, different political systems, different legal codes. They share a common continent and a common unfortunate 20th century European history which saw them breed two world wars. The genesis of the EU lies in those wars and the determination that institutions be put in place, and national sovereignty shared, in ways which would prevent their re-occurrence.

The members are now fifty years down a road that sees no end. Some may want a United States of Europe. Some may want a loose confederation of European states. Member states differ in their willingness to share sovereignty in such areas as exchange rate policy or security policy, but part of the genius of the EU experiment is that working relationships are hammered out and the institutions and the forging of a European identity continue to move forward.

Institutions

The institutional arrangements of the EU are becoming increasingly complex. To my mind, and without recourse to the legal niceties of whether particular institutions are creations of particular EU treaties, a quick "ABC" of the major institutions would contain one A, 2 Bs, and 7Cs. There is also, of course, as with any international organization, a growing list of specialized agencies.

Let me quickly list my ABCs.

The A is the Assembly - now known as the European Parliament.
The two Bs are both banks - the European Central Bank and the European Investment Bank.

The Cs include:

Two Councils - The European Council [i.e. a summit meeting of heads of state] and its subsidiary, the EU Council [composed of member state foreign ministers, finance ministers, agriculture ministers, etc. depending on the topic of the meeting].
Two Courts - the European Court of Justice and the Court of Auditors.
Two Committees - both toothless and advisory in nature - the Economic and Social Committee and the Committee of the Regions.
And, of course, one Commission.

This institutional structure is one in which power is shared rather than being divided and compartmentalised. As it evolves, the EU has become quite adept at holding occasional Intergovernmental Conferences [IGCs] and drafting new treaties - or amending old ones - to expand the competences of its institutions and refine their power-sharing arrangements. I'd like to give you a brief sketch of some of these arrangements.

The European Court of Justice

With the Commission, the Court is the guardian of the treaties. It has a bench of fifteen, with one judge per member state appointed for six-year terms. It handles disputes between member states, between the EU and a member state, between EU institutions and between individuals and the EU. It has been a major integrative force and ally of the Commission in promoting integration. Landmark cases such as the 1979 Cassis de Dijon case, in which it ruled that a product legally manufactured and sold in one member state could not be barred from other member states helped create the Internal Market of one EU-wide market. In holding member states to their treaty obligations it has found against member states that have been slow to transpose Commission Directives into national law.

The European Parliament

Currently has 626 MEPs. Representation is roughly based on population. Germany gets 99 seats, the other big countries have 87 seats each. The smallest member, Luxemburg, gets 6 seats. The Nice Treaty envisages a European Parliament of 732 Members when the EU eventually enlarges to 27 countries. Members vote in political groupings that represent political philosophy rather than in national delegations. This helps to develop a European political consciousness without threatening national identity. The Parliament has not always been directly elected by European voters. Until 1979, MEPs were members of national parliaments who were appointed to do double duty. The present European Parliament may still include MEPs with dual mandates (i.e. also holding a seat in a national parliament), depending on national legislation.

The powers of the parliament are severely circumscribed in comparison with those of a national parliament. This is a parliament which cannot draft legislative proposals. That power resides in the Commission, which, when it drafts legislation, sends them simultaneously to both the EU Council and the Parliament. There are several different procedures for Council and Parliament approval of Commission proposals, depending on which provisions of the treaties apply, but in general the powers of the Parliament have been quite weak although, they are increasing. Its powers and relations with both the Council and Commission evolve with each new Inter-Governmental Conference and treaty. However, it has an increasingly effective committee system, with committee hearings, including testimony by EU Commissioners. It does have control over the budget, must approve any new accession, and now must approve the European Council's choice of President of the Commission as well as the individual Commissioners. While apparently with little (though increasing) treaty-based power, the Parliament was instrumental in the resignation, in 1999, of the entire Santer Commission following publication of a report by an independent committee established to investigate Parliamentary charges of fraud, mismanagement and nepotism.

Commission

Envisaged by the original architects of the institutions as the motor of integration, the Commission has a monopoly on the drafting of legislative proposals which are sent to both the Parliament and the Council for approval. As the Executive Body, the Commission implements policy and represents the EU in international negotiations. The Commission functions as a cabinet. Members are usually senior politicians, veterans of national politics. Many of them have had experience of other EU institutions. Some, have, as heads of state, previously participated in European Council meetings. Others will have had experience of attending EU Council of Ministers meetings as members of a national cabinet. The present Commission has twenty members including its President, President Prodi. Big member states are entitled to two Commissioners. Small member states get one. Currently, all member states get at least one. This also will change with enlargement to prevent the Commission becoming unwieldy. Commissioners are nominated by their member state government but, once appointed, become servants of the treaties rather than national interests.

The Commission is an extremely powerful institution. It is capable of preventing two major European - or US - multinational corporations from merging if it feels that the outcome will violate its competition policy; capable of forcing governments to seek return of millions of euros in national subsidies granted by governments to, for example, national steel, airlines and car industries. It has designed the Customs Union and common commercial policy, created the Internal Market, managed the process of enlargement, implements the Common Agricultural Policy and fashions economic relations with the rest of the world, including the EU's trade and assistance agreements. The budget administered by the Commission has been a powerful integrative force, contributing to the raising of per capita income of the poorer member states.

The scope of the Commission's work becomes evident by the size and scope of Acquis Communitaire which applicant countries must adopt prior to membership. These policies are not designed in a vacuum but in close cooperation with the EU Council. In trade negotiations, for example, the Commission's negotiating mandate is developed in consultation with the so-called "133" Committee (named after a renamed article of the treaty of Rome) - a technical committee of member state trade officials. Here, decisions are taken by consensus and forwarded to COREPER, the Committee of Permanent Representatives of member states to the EU in preparation for approval by an EU General Affairs Council meeting of foreign ministers. It is the meeting of ministers which provides the negotiating mandate to the Commission. During negotiations, the Commission works closely with the 133 Committees and the outcome must be approved by the Council.

As a treaty-based institution, the competences of the Commission do not extend beyond the areas that member states see fit to incorporate in periodic new treaties or treaty amendments.

The European Council, or summit process, is where national interests are defended by sovereign nation states deciding how much further sovereignty to pool, what further power to cede to other institutions and how best to forge common approaches to common problems. European Council meetings, as an intergovernmental process, are not answerable to either the Parliament or the Commission - other than a treaty requirement to submit reports to the European Parliament. While there are occasional hard-fought battles within the European Council as each Head of State fights his or her corner, no votes are recorded and decisions are taken by consensus.

You are all familiar with the rotating 6-month Presidency of the Council during which a member state gets to shape the wider EU agenda, chair all EU council meetings and host at least one summit meeting. The Presidency can be a particular taxing time for smaller member states, placing enormous demands on the staff of a Prime Minister's office, foreign ministry and other ministries. All foreign ministries try to ensure that "their" Presidency is widely viewed as a "success". Not all are.

The EU Council

The ongoing non-summit, meetings at the ministerial level, are where proposals from the Commission are discussed, negotiated, amended and, in most cases, ultimately approved. Decision-making in the Council is a multi-level game for member states. Member states with a strong dependence on a particular agricultural commodity may be expected to take common positions in EU Council meetings of agricultural ministers when they set guaranteed prices for the Common Agricultural Policy.

However, while formal voting arrangements are in place, frequently subject to a weighted voting system called "Qualified Majority Voting" in which large member states get more votes than small ones --- (allowing outside academic analysts of the EU to conjure up a multitude of possible combinations of coalitions of member states which would form a blocking majority to any proposal), the prosaic reality is that votes are not always taken and, instead, matters frequently proceed by consensus. While the reality of voting strength lies in the background, the culture of consensus, which has been nurtured throughout the institutions, allows an issue to be 'worked' until a satisfactory outcome is achieved. In drafting its proposals, the Commission must, of course, take into account the likely stance of each member state to any proposal - as well as the attitude of the European Parliament. This process is made easier by the fact that, as I have already mentioned, many of the Commissioners had previous careers at the ministerial level or head of government level in their national governments and will be familiar with domestic political interest groups at the national level.

On economic issues, the arrival of the Euro has been easily incorporated into EU Council meetings even though the EU Council of Economics and Finance Ministers (ECOFIN) presently includes three ministers representing member states which are not part of the Euro area. While the twelve Euro area ministers form the informal Euro Council to discuss monetary and exchange rate issues, the three non-Euro ministers participate in discussions on "matters of common concern". In addition, all fifteen member states are subject to an annual review, by Commission and Council, of macroeconomic policy which occurs under the Broad Economic Policy Guidelines. This process sets fiscal policy targets for all member states, whether members of the Euro area or not.

The EU Council is not staffed by the Commission but by a separate Council Secretariat, which has grown considerably in recent years as the EU, has taken on new competences. The Secretary-General of the Council Secretariat is also the EU's first High Representative for the Common Foreign and Security Policy - Mr. Javier Solana, previously Secretary-General of NATO. The Common Foreign and Security Policy (CFSP), together with policies in the fields of Justice and Home Affairs represented profound additions to the traditional EU concern, since 1951, with economic integration. These so-called "Second and Third Pillars" to the EU edifice, touching on some of the most delicate issues of national sovereignty, have been brought into the treaties but kept very much on an intergovernmental track. Nevertheless, the integration occurring in these areas as common positions are adopted in the Council, has been mutually reinforced by measures initiated in the Commission. A current example, not yet resolved, is the effort by EU Justice ministers, in the aftermath to the September 11th attacks, to establish an EU-wide arrest warrant for an established list of crimes.

Conclusion

I have painted a picture of a set of institutions that is sui generis. There is power sharing between member states in the Council. There is power sharing between Council, Commission and Parliament. The sharing is occurring within the rule of law, and in the process, a growing body of EU law is being transposed into national legislation. Presiding over it is the Court of Justice. Side by side with the law is the fostering of a common working culture within and between the institutions - and the gradual development of a European identity and consciousness in the citizens of member states.

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• Address of EU HR Javier Solana to the External Action Working Group of the Convention (15/10/2002)