Part II
Governmental Powers

9. Executive Powers: Competence and Procedures  

Introduction

What are the ‘executive’ powers of the European Union? In many constitutions the executive branch has a residual character: anything that is neither legislative nor judicial is considered to fall within its scope. This negative definition of the executive function has historical reasons: the original purpose of the separation-of-powers principle was to remove powers from an almighty monarch to a parliament and the judiciary.

The problem with this negative definition however is its uncertain and relative nature; and serious attempts have therefore been made positively to identify ‘prerogatives’ of executive power. Outside the field of external relations, two such prerogatives have traditionally been recognised. First, the executive power is – naturally – identified with the task of executing laws, and thus with the aim of maintaining internal peace. The task of law enforcement is complemented by a second – seemingly contradictory – task. Executive power is identified with the power to ‘govern’, that is: to lead and direct the political community. The executive branch is here the ‘centre of impulse and decision’. Despite their contradictory outlook, both traditional prerogatives of the executive – the reactive task to enforce laws and the active task to propose laws – are still based on a common idea: the executive enjoys the power of decision.

The power of decision is typically contrasted with the power to adopt legislation. For in the ‘legislative State’ of the nineteenth century all general legal norms should be adopted by Parliament. This past ideal would however find limits in the normative needs of the ‘administrative State’ of the twentieth century. Modern parliaments would simply have no time – nor expertise – to ‘master all the details of tea chemistry and packaging in order to specify the precisely allowable limits of dust, artificial coloring, and the like that would affect suitability for consumption’. Industrial societies required a ‘motorised legislator’; and this secondary ‘legislator’ was found in the executive. The advent of the legislating executive ‘constitutes one of the most important transformations of constitutionalism’. In the administrative State the executive branch thus gains a third power: the power to adopt (delegated) legislation.

A modern treatment of executive power should therefore include three core prerogatives of the executive. These three prerogatives are – in descending order: the political power to govern, the legislative power to adopt executive norms and the administrative power to enforce legislation.

This chapter discusses all three executive powers in the context of the European Union. Section 1 begins with an examination of the political power to act as government. We shall see that the ‘steering’ power of high politics belongs to two institutions within the Union: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. Section 2 moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. We shall see that the European legal order has allowed for wide delegations of power to the executive; while nonetheless insisting on substantive and procedural safeguards that protect two fundamental Union principles – federalism and democracy. Sections 3 and 4 look at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can – exceptionally – execute its own law; yet the centralised administration is limited by the subsidiarity principle. And, as a rule, it is the Member States that execute Union law. This form of decentralised enforcement restricts the uniform effects of administrative decisions within the Union.

Footnotes

  1. On the ‘executive’ elements within the Union’s external powers, see Chapter 8, Introduction. 
  2. This is the reason why J. Locke, Two Treatises of Government (Cambridge University Press, 1988), §148, recognising the distinctive character of the executive and the external function, nonetheless places both powers into the hands of a single person – the monarch. 
  3. E. Zoller, Droit constitutionnel (Presses Universitaires de France, 1999), 425. 
  4. L. Favoreu et al., Droit constitutionnel (Dalloz, 2002), 537. 
  5. Field v. Clark, 143 US 649 (1892), 692. 
  6. See G. Lawson, ‘The Rise and Rise of the Administrative State’ (1993–4) 107 Harvard Law Review 1231. 
  7. W. Gellhorn and C. Byse, Administrative Law: Cases and Comments (Foundation Press, 1974), 62. 
  8. C. Schmitt, Die Lage der Europäischen Rechtswissenschaft (Universitätsverlag Tübingen, 1950), 18. 
  9. Zoller, Droit constitutional (n. 3 above), 436. 
  10. H. W. R. Wade and C. F. Forsyth, Administrative Law (Oxford University Press, 2000), 839: ‘there is no more characteristic administrative activity than legislation’; H. Pünder, ‘Democratic Legitimation of Delegated Legislation: A Comparative View on the American, British and German Law’ (2009) 58 ICLQ 353, esp. 355: ‘in all countries compared, administrative law-making powers became the rule rather than the exception’.