Prodi, Barroso & JunckerProdi, Barroso & JunckerProdi, Barroso & Juncker

Prodi, Barroso & Juncker

 

Institutional stability

Introduction

As a consequence of last EU election, the procedure for the renovation of the European Commission and the European Parliament is taking place. The nomination of EC President-Designate by the European Council and the election of the President of the Parliament will be followed by the parliamentary election of the Commission's President, the arrival of new Commissioners and departure of Barroso's Commission with their staffs. An important human capital with wide knowledge and expertise on EU institutions is going to leave off its functions. With the Maastricht Treaty, the Commission Presidency standard term of office was extended from four to five years aligning it with the Parliament's one. To have a truly significant impact on the integration process, a Commission President needs more than a single term in Brussels. Barroso remarked after the last European Council meeting that himself and the existing Commission will do everything possible in the coming months to assure a smooth transition between his Commission and the next one.

For many European politicians the end of their terms in EU office means the end of their political careers adding an extra of instability to the functioning of EU institutions not only in the wake of the loss of expertise and knowledge that their departures entails but also because the uncertainty of their owns futures is transmitted to the EU.

The Treaties' articles on the Commission, namely article 17 TEU and article 245 TFEU, make special reference to the complete independence which must be enjoyed by the Members of the Commission, who are required to discharge their duties in the general interest of the Union. In the performance of their duties they must neither seek nor take instructions from any Government or from any other body. In addition, the general interest requires that Commissioners should behave in a manner that is in keeping with the dignity and the duties of their office, both during and after their term of office. Ruling out all risks of a conflict of interests helps to guarantee their independence.

When the relationship between the EU and Commissioners along with their staffs break off security concerns arise. After their terms of office, in the event of any breach of their previous obligations, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, rule that the Member of the Commission concerned be, according to the circumstances, deprived of his right to a pension or other benefits in its stead.

The EU institutions bear a heavy load of instability. Besides external factors, while in European Member States, regions and cities the institutional renovation by elections happens every four or five years depending on its national term of office, the EU co-decision procedure implies the renovation of Parliament and Commission every five years as well as the co-lateral effects on EU governance produced by changes in Member States Governments throughout Europe and its participation in the European Council and the Council, softened by the positive inertia of the EU administrative structure. The vision of the European project not only may differs between Member States but also inside Member States between the different political parties supporting Governments.

The Council, by common accord with the Commission President-elect, shall adopt the list of the candidates whom it proposes for appointment as Commissioners, one per each Member State. The appointment of all Commissioners will be subject to the approval of the European Parliament. The candidates, therefore, will reflect last changes produced in political parties supporting Governments at national level with different political doctrines and different conceptions of the European project although fortunately, most of them aiming at the same direction of European integration. Certainly, some of them wanting impart higher speed than others to the EU construction process.

 

Harmonious renovations. Institutional stability.

The Heads of State and Councils of State confer stability and representation to Member States as well as other capabilities. The EU is not a State, yet. However, the main elements of the European and International political landscape point out the direction of a greater EU political integration.

The EU balsamic effects on consolidation of the existing territorial division model in Europe and its key role to foster economic interdependency between European countries have contributed to keeping us in peace becoming the EU itself into a safe haven as well as a project of living together. The consolidation of the territorial model in Member States has been directly proportional to its commitment with the project of European construction. Keeping up with the procedure of European integration it might be possible in a medium-term the EU having one Head as Highest Authority in opposition to the existing tricephalous model.

After last European Council meeting, Barroso stated that the European Council gave a clear direction for the EU policy agenda for the years ahead so fulfilling the norm inscribed in the Treaties and that it is critically important that the three institutions, the European Parliament, the Commission and the Council have a common understanding of the challenges ahead.

Articles 15 and 26 of the consolidated version of the EU Treaties lay down that the European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. The European Council shall not exercise legislative functions and shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the Common Foreign and Security Policy, including for matters with Defence implications. The European Council shall adopt the necessary decisions.

With the entry into force of the Treaty of Lisbon on 1 December 2009, the European Council became an EU institution.

By the Treaty of the European Union, the Member States established among themselves the Union conferring it competences to attain objectives they had in common. Objectives defined for the short or medium-term. Often, Government bodies in Member States design master plans with objectives to be attained in a horizon of more than 20 years. A political project as important as the European integration requires greater scope, long-term guidelines. Certainly, sometimes in the past, the absence of explicit political goals helped national politicians providing flexibility enough to avoid insuperable disagreements on European negotiations, however, the existing political situation, at European and International levels, requires proportionate solid basis and more political power to the EU making efforts step by step (Schuman Declaration) but establishing long-term objectives.

In comparison with Councils of States as highest advisory bodies and source of institutional stability in Member States, the EU have at its disposal a wide range of advisory committees. Besides those foreseen straight by the Treaties as, for example, the European Economic and Social Committee and the Committee of the Regions acting both of them in an advisory capacity, there are many other advisory and examination committees designed by Member States to exercise functions of control on the European Commission rather than provide political stability to EU institutions.

Although the Committees’ advice is not binding on the Commission, these consultations are a very important element in the decision-making process, as they allow the Commission to cross-check its analysis with Member States. All aspects of the consultations are confidential.

Apart from the European Economic and Social Committee and the Committee of the Regions, the general structure of advisory committees consist of representatives of each Member State chaired by the Commission’s representative. The Committees can be convened immediately at the request of any Member Country or the Commission, but in practice they meet regularly and the Commission seeks advice from the national representatives on any proposals it intends to submit to the College of Commissioners. The College then decides on the proposal and submits it to the Council if warranted.

 

Some European models of Council of State

The Dutch Council of State

The Dutch Council of State is an advisory body on legislation and administrative Court regulated by the Dutch Constitution which carry out their tasks independently of the Government. The basis for its responsibilities can be found in articles 73 and 75 of the Dutch Constitution. His Majesty the King of the Netherlands is the President of the Council of State. The Council consists of the Vice-President and a maximum of 10 members. The Vice-President is in charge of the running and organisation of the Council as a whole. As well as members, the two Divisions have State Councillors and Extraordinary Councillors, and at present there are over 50 State Councillors working within the Council. The maximum number of members and State Councillors that may work in the two Divisions simultaneously is limited by law to ten. Members and State Councillors are appointed for life by Royal Decree, though members of the Advisory Division may be appointed for a fixed term. The Cabinet nominates candidates and the Council itself makes recommendations. The Council is also consulted regarding the choice of candidate for Vice-President.

 

The French Council of State and the Constitutional Council

The French Council of State is the Counsellor of the Government for the preparation of bills, ordinances and certain decrees. It also treats its demands of opinion and makes studies at the request of the Government or on its own initiative. Since the constitutional reform of July 23rd, 2008, the Presidents of the National Assembly and the Senate can refer to the Council a private bill elaborated by the members of Parliament.

In brief, the French Council of State exercises two historic missions: advisor of the Government for the preparation of bills, decrees, etc., and supreme administrative judge who decides on litigation relative to the acts of the administrations. The Council of State also has for mission to manage the whole administrative jurisdiction.

It is chaired, in theory, by the Prime Minister who can be represented by the Minister of Justice. However, in everyday life, it is the Vice-president of the Council of State who is its head being considered as the first civil servant of France and benefiting from the strongest payment in the whole public administration. The Vice-president of the Council of State also has powers of management on the administrative jurisdictions of common law, administrative Courts and administrative Courts of Appeal. He is appointed by decree of the President of the Republic passed in Council of Ministers among the counsellors of State or the presidents of branches.

The French Constitutional Council was established by the Constitution of the 5th Republic, on October 4th, 1958. It is a jurisdiction endowed with varied powers, in particular the competence to asses the conformity of the law with the Constitution. The Constitutional Council is not a supreme Court neither over the Council of State nor over the Court of Cassation.

The Constitutional Council consists of nine members appointed for nine years by the President of the Republic and the President of each Chamber of the Parliament (Senate and National Assembly). It is renewed by thirds every three years. The President of the Republic and the President of each of the Chambers appoint, each, a member of the Constitutional Council every three years. The mandate of Councillors is not renewable. However, in case of appointment as a replacement of a member outgoing or prevented from finishing its mandate, and at the expiration of this one, the replacing Councillor can be then appointed for nine years, if he occupied these functions of replacement during less than three years.

The named Councillors take the oath in front of the President of the Republic. The former Presidents of the Republic are by law members of the Constitutional Council. Appointed by the President of the Republic, the President of the Constitutional Council is chosen among his members. No qualification of age or profession is required to become a member of the Constitutional Council. The function is however incompatible with that of member of Government or the Economic, Social and Environmental Council, as well as with that of Ombudsman. The appointed members can choose to stop their functions.

 

The Spanish Council of State

The Spanish Council of State is the supreme advisory organ of the Government. It is ruled, mainly, by its own Act and regulations. Its Plenary sessions are integrated by the President, permanent Councillors, ex officio Councillors, the elective ones and the Secretary-General. Its Permanent Commission is integrated by the President, the permanent Councillors and the Secretary-General.

The Commission of Studies is presided by the President of the Council of State and integrated by two permanent, two ex officio and two elective Councillors, designated by the Plenary session at the suggestion of the President, as well as by the Secretary-General.

The Spanish Council of State is organized in Sections dealing each with different matters belonging to the Permanent Commission's field. The Sections are eight and they are chaired by a permanent Councillor and integrated, besides, by a Senior Counsel and the Counsels who are necessary according to the importance of the matters or the number of the consultations.

The President of the Council of State is named by royal decree passed in Cabinet and endorsed by the President thereof between jurists of recognized prestige and experience in national matters. The President's grade is the same that the grade which Ministries of the Government have, presides the organs of the Council and exercises the head of all the dependences of the Council of State and its representation.

The Plenary session is integrated by members who integrate the Permanent Commission and ex office Counsellors along with the elective ones. Ex Prime Ministers who have demonstrated to the President of the Council the will to join it become ex office Counsellors. Ex office Counsellors' mandate is for life.

The Permanent Commission is integrated by the President, the permanent Counsellors and the Secretary-General.

The permanent Counsellors are named, without limit of time, by royal decree between persons who are or have been Ministers, Presidents or members of the regional cabinets, Government officers with at least fifteen years in office in bodies or scales for whose appointment university degree is required, ex-Governors of the Bank of Spain, etc.

 

Conclusion

The existing structure of the EU leads to renovations of the European Parliament and the European Commission implying a leak of knowledge and expertise which could be reduced to a grand extent adopting an institutional model which takes the best of the actual one and some of the advantages that consolidated institutions at national level as Heads of State and Councils of State confer to Member States.

The risks associated to the excessive load of instability held up by EU institutions are relieved by Parliament and Commission officials equipped with expertise, located at the heart of the EU's policy networks and entrusted with authority over several policies performing as strategic actors in European decision-making.

Often, the link between the European Commission and Member States has been maintained by ad hoc advisory committees whose abundance states that they must play a key role in the architecture of the European Union.

The new term in office will be a good opportunity to reinforce the EC's political behaviour in order to tackle well equipped the new dares and continue the undertaking of bringing the EU closer to European citizens, its main asset.

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