Global Independent Analytics
Normunds Grostins
Normunds Grostins

Location: Latvia

Specialization: Development of European Union, Non-governmental organizations, Politics and economics in Baltic States

EU: No Separation of Powers

There has been much written on democracy in Europe. But in light of challenges to the European Union, the issue of the EU’s democratic essence could hardly be more relevant than now

For the past three centuries, the separation of powers and functions between the Executive (Government), Legislature (Parliament) and Judiciary (Court) has been acknowledged as the necessary basis for democratic states to function and as fundamental for maintaining the liberty of citizens. History has time and again shown that unlimited power in the hands of one person or a group in most cases means that others are suppressed or their powers curtailed. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. Checks and balances (rights of mutual control and influence) make sure that the three powers interact in an equitable and balanced way.

This principle goes out the window in the EU. In the EU, the exclusive power of proposing new supranational laws rests with the EU's Executive (Government) -the European Commission in Brussels.

The Commission is more of a government than a commission. Its members are nominated by national governments, not elected. Thus, a condition for proposing supranational laws in the EU is that one should NOT be elected. Commissioner’s allegiance is to the EU, not to their own countries. French President Charles De Gaulle described this body aptly as "a conclave of technocrats without a country, responsible to no one"[i].

As well as administering the existing EU rules and having the monopoly to propose new ones, the Commission has quasi - judicial powers as well. It can adjudicate on competition cases and impose fines on EU members. Even though there may be an appeal to the Court of Justice, the Commission acts as if the latter were a lower court. It draws up and administers its own budget, with minimal democratic control. Its president can hire, move and stack individual Commissioners. It is supported by some 3000 "secret" working groups, whose membership is not publicly known, where most Commission decisions are actually made and where corporate lobbyists wield their influence. Only 2% of Commission decisions come up at formal meetings.

The Council of Ministers is called a Council, but it makes laws just like a Parliament, on the basis of the Commission's proposals. It makes these laws in secret, often in a form of package deals between members, and it takes some executive decisions. Approximately 85% of EU directives and regulations are agreed privately in some 300 committees of civil servants from the EU Member States which service the Council; they are approved without debate at the Council level. The formal adoption of these laws now takes place in public, although the negotiations leading up to them are private[ii]. The Council of Ministers is responsible as a collectivity to nobody and is irremovable as a body.

The European Parliament is more a Council than a Parliament. It cannot initiate any new EU law although it can amend draft laws which come from the Commission and Council as long as the Commission agrees. The ordinary legislative procedure gives an equal weight to the European Parliament and the Council of the European Union on a wide range of areas (for example, economic governance, immigration, energy, transport, the environment and consumer protection). The vast majority of European laws are adopted jointly by the European Parliament and the Council.

If the Commission disagrees, all 28 Member States must agree to allow an amendment by the Parliament to be adopted. If the Parliament by an absolute majority of its members opposes a draft legislation from the Commission then it cannot become law, but this rarely happens. The parliament has the final say over EU budget except for agriculture. If it vetoes new budget proposals, the previous year's EU budget is repeated[iii].

The EU Court of Justice (ECJ) is not just a Court but is also a Constitution - maker, with constitutional powers similar to what some Parliaments have. It is a highly political Court. It continually interprets the EU Treaties in such a way as to extend the legal powers of the EU to the maximum. Here are some important verdicts of ECJ:

  • Van Gend en Loos, C-26/62: EU Treaty rules have direct effect inside the Member States;
  • Costa v. Enel, C-6/64: EU laws has primacy over national law;
  • Internationale Handelsgesselschaft, C-11/70, and Simmenthal, C-106/77: EU law has primacy over national Constitutions;
  • Frankovich, C-6/90: Member States are financially liable for violations of EU law within their borders;[iv]

It is easy to see that the executive, legislative and judicial functions of government are not separated in the EU institutions, but are inextricably intertwined. Moreover, the Commission, the Parliament and the Court of Justice share common interest in having ever more powers shifted from the national to the supranational level where the three institutions are involved together in exercising them.

 

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