The Institutional Framework of the European Communities

J. S. Davidson, D. A. C. Freeston

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134931101
• Topic: Política y relaciones internacionales
• Subtopic: Política

After more than a decade of British membership of the European Community, there is still a widespread lack of appreciation of what goes on within the Community institutions, and of its significance for UK political and legal processes. This book aims to provide a concise introduction to the institutions and law-making processes of the Community, and to set them im their proper perspective as part of UK public law. The prime focus is upon the Community institutions and their inter-relations, however, reference is also made as appropriate to the effects which Community decision-making has on Westminster and Whitehall and in the English courts. In particular, the book examines the sources of Community law, the organisation and composition of the main institutions after the accession of Portugal and Spain, and the decision-making processes involved in the enactment of the Community's legislation. There are also chapters on the budgetary process and on the role of the European Court of Justice. Despite the UK emphasis some comparative material is used to put the UK approach into perspective. To enhance its value to readers cominig to the subject for the first time, the book also contains the text of selected articles of the Treaty of Rome.

1
Introduction

In February 1986 the Heads of the governments of the twelve Member States of the European Communities signed the Single European Act¹ —a treaty which introduced important reforms into the European Community system. By this Act, they declared themselves to be ‘moved by the will to continue the work undertaken on the basis of the Treaties establishing the European Community and to transform their relations as a whole among their States into a European Union’.² The signing of the Single European Act provoked letters of protest to The Times and talk in Parliament of ‘a fundamental surrender of sovereignty’. In other quarters mostly outside Britain, however, the Single European Act was denounced for not doing enough to promote European union, and Jacques Delors, the President of the Commission of the European Communities described the Single European Act as a ‘compromise for progress’.³

What is clear from these diverse reactions is that after more than a decade of UK membership of the European Community there is still in the UK a considerable amount of misunderstanding, as well as misgiving, about the nature of the system established by the European Community Treaties. The fact that the UK is a member of the European Community means that for lawyers in Britain, as for lawyers in all Community Member States, European Community law is not an esoteric specialisation; it is a system which provides an important source of rights and obligations which affect all levels of society—from small businesses and individuals in a range of capacities including those of employer, employee, consumer, traveller or simply European citizen. It is, in short, an important part of United Kingdom public law.

The importance which Community law has to the contemporary study of public law is not restricted to a debate about parliamentary supremacy or to the occasional conflict with national law, or even to what goes on in the courts. The law and institutions of the Community provide a further dimension to the whole process of democratic decision-making and accountability, and to government under the law. Indeed, the premise upon which this book is based is that an understanding, albeit at a basic level, of the way that the European Community works, and the way that Community laws are made and promulgated, is indispensable to an understanding of contemporary UK public law.

Before looking at the institutions in detail, however, it is necessary to put the European Communities into perspective: first, by distinguishing them from the other international institutions which exist in Europe (and with which they are often confused), and second, by a brief account of the political circumstances of their establishment and evolution. Not only is this perspective of importance in its own right, but it is also necessary for an appreciation of the political premises upon which much of Community law is based and according to which it is interpreted. The EEC may be a European Economic Community, but its original signatories intended that through economic integration would come political integration. This objective may have become somewhat obscured in recent years— particularly since the first enlargement of the Communities in 1973 with the accession of Denmark, Eire and the UK—but it still informs much of the work of the Community institutions, notably the case law (or jurisprudence) of the European Court of Justice. English judges are nowadays prepared publicly to acknowledge that they make law, but ever since its inception the European Court has been an explicit advocate of the teleological or ‘policy-oriented’ approach to the judicial function—whereby, from a choice of interpretations or possible courses open to it, the Court will choose that which is most likely to achieve the goal, or policy, desired—and the goal of the European Court has always been European integration.

EUROPEAN INTEGRATION SINCE 1945⁴

At the end of World War Two the time was ripe for international cooperation within Europe. Within 30 years Europe had been the main battle-ground for the two most devastating wars the world had known. Its states could no longer rate themselves alongside the US and the USSR as world superpowers and there was a strong political conviction among the victorious allies that a new political system would have to be established to ensure that global war did not happen again. The first manifestation of this was the establishment of the United Nations in 1945, but within Europe a large number of institutions were established which were dedicated to forging closer links between the nation states of Europe.

From the plethora of institutions so created, three main groups have emerged as the most influential. The first group derived their impetus directly from transatlantic cooperation. The Organisation for European Economic Cooperation (OEEC) was inspired by the US plan to provide financial assistance for united European efforts to restructure Europe after World War Two (the Marshall Plan). In 1960, the OEEC was extended to include the US and Canada and renamed the Organisation for Economic Cooperation and Development (OECD). Similarly the North Atlantic Treaty Organisation (NATO) was set up in 1949 as a military alliance between the US, Canada and the majority of the major Western European states. NATO is primarily a defensive pact, providing a permanent secretariat, integrated military command structure and a collective decision-making system.

The Council of Europe, with 21 members, provides a major impetus for inter-governmental cooperation in a number of different fields and represents the second main institutional grouping. Its main decision-making body is the Committee of Ministers, where unanimity is required for substantive decisions, although a consultative Parliamentary Assembly meets regularly to discuss issues of common concern. The Council of Europe institutions have no direct legislative powers, and the Council relies principally on the traditional treaty-making system to attain its objectives. It has promoted treaties on a wide spectrum of issues from data protection to the suppression of terrorism. Its most significant achievement has been the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and its various protocols.⁵ This treaty provides for the establishment of a Commission on Human Rights and a Court of Human Rights, which are both based in Strasbourg, and their work has had a major impact on the development of human rights protection in all the Member States. It has also had an indirect effect on the development of European Community law, but the Commission and the Court of Human Rights should not be confused with the institutions of the European Communities which represent the third major group of European institutions.

THE ESTABLISHMENT OF THE EUROPEAN
COMMUNITIES

The origins of the three European Communities—the European Coal and Steel Community (ECSC), the European Atomic Energy Community (EURATOM) and the European Economic Community (EEC)—also lie in attempts to rebuild Europe after 1945. However, the path taken by the drafters of these Treaties differed markedly from that of the previous two groups. The European Communities are based upon the explicit aim of integration.⁶ The institutions have autonomous legislative powers (envisaging decision by majority vote in certain circumstances) and Community legislation can take effect directly in national legal systems without the need for prior approval by national parliaments.⁷

Such a system holds the seeds of a form of federal structure, where the participating states surrender certain of their powers to the central ‘federal’ authorities, and this is no accident. In 1946 in Zurich, Winston Churchill had called for a United States of Europe to unite France and Germany, and in 1950 the French Foreign Minister Robert Schuman proposed (the Schuman Plan) that further conflict between France and Germany could be prevented by the uniting of their coal and steel production under the auspices of a High Authority. The result of the Schuman initiative was the 1951 European Coal and Steel Community Treaty, which established a Council of Ministers, a High Authority, a consultative Assembly and a Court of Justice, and which was signed in Paris by Belgium, Germany, France, Italy, Luxembourg and the Netherlands.

The success of the ECSC, which had limited aims and objectives, led to the proposal that a similar ‘functionalist’⁸ approach should be adopted for a wider range of activities. The 1956 Spaak Report⁹ proposed that the aim of further European integration could most readily be realised by the integration of the economies of the six Member States of the ECSC.

Explicit in the Spaak strategy was the idea that through economic integration would come political integration. Indeed, this very approach had been vindicated by the failure of the more ambitious proposal for a European Defence Community which had foundered as a result of the refusal in 1954 of the French National Assembly to agree to the surrender of political sovereignty involved. Hence, at the beginning of the preamble to the EEC Treaty, signed by the six in March 1957, the parties declare themselves ‘determined to lay the foundations of an ever closer union among the peoples of Europe’.¹⁰ The EURATOM Treaty was signed on the same day and both Treaties came into effect on 1 January 1958.

ENLARGEMENT OF THE EUROPEAN
COMMUNITIES

Despite the fact that Churchill had proposed a United States of Europe, the United Kingdom had held back from membership of the ECSC in 1951 and was initially opposed to the ideas underpinning the EEC, preferring instead a European Free Trade Area. It pioneered the European Free Trade Association, which was formed in 1959. No surrender of sovereignty was involved in membership which comprised Norway, Sweden, Denmark, Austria, Portugal, Iceland, Switzerland and the UK (with Finland having associate status). The members agreed to free trade between themselves, but unlike the EEC there was no external barrier to goods entering the Free Trade Area from non-member states.

The early success of the EEC persuaded the UK to apply for membership, which it did first in 1961. However, its application was blocked by the French veto as a result of the opposition of President de Gaulle. His opposition also blocked a second application by the UK in 1967, but after he resigned from office in 1969 the negotiations were able to proceed, resulting in the Treaty of Accession being signed on 22 January 1972. On 1 January 1973 the UK, together with Denmark and Eire, became members of the European Communities; Norway having dropped out at the last minute as a result of a referendum which showed 53.49% of voters opposed to membership.

In 1975 the newly democratic Greece applied for membership and from 1 January 1981 became the tenth Member of the Communities. In the meantime Spain and Portugal, both newly returned to democracy, had also applied. These negotiations proved more difficult, largely as a result of the worry of the effect that the accession of two more largely agricultural states would have on the functioning of the already troubled Common Agricultural Policy, but in June 1985 the terms of accession were agreed and the European Community became a community of twelve on 1 January 1986.¹¹

REFORM AND DEVELOPMENT OF THE
EUROPEAN COMMUNITIES

When the EEC and EURATOM Treaties came into effect on 1 January 1958, a further convention also became effective. This was the Convention on Certain Institutions Common to the European Communities, which provided that a single Parliamentary Assembly and a single Court of Justice should serve all three Communities. However, this still left each Community (ECSC, EEC, EURATOM) with its own Council of Ministers and its own Commission (or in the case of the ECSC, High Authority). This diversity of institutions with the resultant lack of coordination was remedied by the 1965 Treaty Establishing a Single Council and a Single Commission of the European Communities. This Treaty, known as the ‘Merger Treaty’, unified the executive and legislative functions of the three Communities and since it came into force in 1967 there has been a growing tendency, even in official circles, to describe the three Communities, which are still technically separate bodies, as the European Community.

As we have seen, the drafters of the Treaty of Rome envisaged further integration between the Member States, indeed certain devices are written into the Treaty itself to expedite progress to this end. For example, Article 138(3) envisages a directly elected Assembly (Parliament) elected by ‘direct universal suffrage in accordance with a u...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• ABBREVIATIONS
• TABLE OF CASES
• TABLE OF ARTICLES: TREATY OF ROME
• PREFACE
• 1. INTRODUCTION
• 2. SOURCES OF EUROPEAN COMMUNITY LAW
• 3. THE COMMUNITY INSTITUTIONS
• 4. COMMUNITY DECISION-MAKING
• 5. THE BUDGET
• 6. THE COURT OF JUSTICE
• APPENDIX