Part I
Constitutional Foundations

5. Govermental Structure: Union Institutions I  

Introduction

The creation of governmental institutions is the central task of all constitutions. Each political community needs institutions to govern its society; as each society needs common rules and a method for their making, execution and adjudication. It is no coincidence that the first three articles of the 1787 US Constitution establish and define – respectively – the ‘Legislative Department’, the ‘Executive Department’ and the ‘Judicial Department’.

The European Treaties establish a number of European institutions to make, execute and adjudicate European law. The Union’s institutions and their core tasks are defined in Title III of the Treaty on European Union. The central provision here is Article 13 TEU, which states:
1. The Union shall have an institutional framework which shall aim to promote its
values, advance its objectives, serve its interests, those of its citizens and those of
the Member States, and ensure the consistency, effectiveness and continuity of
its policies and actions.
The Union’s institutions shall be:
– the European Parliament,
– the European Council,
– the Council,
– the European Commission (hereinafter referred to as ‘the Commission’),
– the Court of Justice of the European Union,
– the European Central Bank,
– the Court of Auditors.
2. Each institution shall act within the limits of the powers conferred on it in the
Treaties, and in conformity with the procedures, conditions and objectives set out
in them. The institutions shall practise mutual sincere cooperation …
The provision lists seven governmental institutions of the European Union. They constitute the core ‘players’ in the Union legal order. What strikes the attentive eye first is the number of institutions: unlike a classic tripartite structure, the Union offers more than twice that number. Parliaments and courts are typically found in national legal orders, but the two institutions that do not – at first sight – seem to directly correspond to ‘national’ institutions are the (European) Council and the Commission. The name ‘Council’ represents a reminder of the ‘international’ origins of the European Union, but the institution can equally be found in the governmental structure of Federal States. It will be harder to find the name ‘Commission’ among the public institutions of States, where the executive is typically referred to as the ‘government’. By contrast, central banks and courts of auditors again exist in many national legal orders.

Where do the Treaties define the Union institutions? The provisions on the Union institutions are split between the Treaty on European Union and the Treaty on the Functioning of the European Union as shown in Table 5.1. What is the composition and task of each Union institution? Chapters 5 and 6 will provide an analysis of each institution alongside three dimensions: its internal structure, its internal decision-making procedures and finally its internal powers. The external interactions between the various institutions will be discussed in Part II of this textbook– dealing with the powers and procedures of the Union. Can we nonetheless connect the institutions as ‘organs’ of the Union with their external interaction in a governmental function? And what does Article 13(2) TEU mean when insisting that each institution must act within the limits of its powers and according to the Treaties’ procedures? Is this the separation-of-powers principle within the Union legal order? Let us look at this ‘horizontal’ question in section 1 of this chapter, before analysing the ‘internal’ structure of each institution in turn.

Footnotes

  1. While the Treaties set up seven ‘institutions’, they also acknowledge the existence of other ‘bodies’. First, according to Art. 13(4) TEU, the Parliament, the Council and the Commission ‘shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity’. The composition and powers of the ‘Economic and Social Committee’ are set out in Arts. 301–4 TFEU. The composition and powers of the ‘Committee of the Regions’ are defined by Arts. 305–7 TFEU. In addition to the Union’s ‘Advisory Bodies’, the Treaties equally acknowledge the existence of a ‘European Investment Bank’ (Arts. 308–9 TFEU; Protocol No. 5 on the Statute of the European Investment Bank).  
  2. Many of these ‘internal’ issues will be found in an institution’s ‘Rules of Procedure’. On the status of these procedural rules, see S. Lefevre, ‘Rules of Procedure Do Matter: The Legal Status of the Institutions’ Power of Self-organisation’ (2005) 30 EL Rev. 802.