Week 1 - EU political institutions
Does the classical concept of separation of powers fit the European Union?
1. Separation of powers;
a. checks and balances → to prevent democratic backsliding;
i. Influence each other, checks and controls as well;
ii. All the powers watch each other so that one cannot exceed
their power;
iii. Political process and expertise → judiciary - executive -
legislative;
1. In some instances the political process is more
important than expertise;
2. Example → no politics in law and no law in
legislative process;
b. Judiciary → enforces the law;
c. Executive → governments;
d. Legislative → makes the laws;
e. Why do we need separation of powers?
i. To avoid authoritarianism (political balance);
ii. To safeguard liberty (Montesquieu);
iii. To promote best rational public decision making (Max Weber);
iv. To make sure that different voices are represented (Jürgen Habermas);
v. To construct a just society (Michaela Hailbronner);
2. Legislative powers in the EU;
3. Executive powers in the EU;
4. (Judicial powers in the EU);
5. (Structural principles of EU law);
Separation of powers in EU
1. Legislative → council + EP;
2. Executive → Commission and European Council;
3. Judicial → The Court of Justice of the EU.
Mindful of the distinction between the intergovernmental aspect and democratic aspect of the
EU.
Top jobs (president council/president commission/HR) are not democratically elected →
outcome of intergovernmental discussion.
European elections, but most powerful jobs happen at the intergovernmental level.
,Functioning of the Council → important articles;
★ Art. 16 TEU + 237-243 TFEU + Protocol n°36
★ Composition - 10 (2) + 16 (2) TEU
○ Representatives of the MS at ministerial level
○ Empowered to represent the government (ministers or secretaries of state)
★ Different configurations - 16 (6) TEU + 236 TFEU
○ 10 configurations
○ No hierarchy
○ General Affairs Council – coordination + institutional, administrative and
horizontal issues;
Council represents the MS at a ministerial level → intergovernmental.
Presidency of the Council
★ 16 (9) + 18 (3) TEU + 236 TFEU
★ Function:
○ Organising the sessions
○ Determining the topics
○ Coordinating with Commission and Parliament
★ Rotating presidency – 16(9) TEU
○ 6 months
○ current trio → (2025-26): DK, CYP, POL.
★ Exception for Foreign Affairs Council: EU High Representative for Foreign Affairs
Competences of the council
1. Council and the Commission → budget
discharge, salaries, trade agreements;
a. Framing international agreements
in the Common Commercial Policy
(Art. 207 TFEU): The Council
authorises the Commission to
negotiate trade agreements and
then concludes them;
b. Fixing salaries (Art. 243 TFEU): The
Council sets salaries, pensions, and
allowances for EU staff and officials;
c. Discharge on budget
implementation (Art. 319 TFEU):
The Council, together with Parliament, grants discharge to the Commission on
how it has executed the budget;
2. Council and the Parliament → elections, committees of inquiry, Ombudsman;
a. Elections (Art. 223 TFEU): The Council participates in adopting measures
necessary for the election of Members of the European Parliament (MEPs);
b. Committee of Inquiry (Art. 226 TFEU): Parliament can set up committees of
inquiry; the Council may be involved depending on the scope;
, c. European Ombudsman (Art. 228 TFEU): The Council is consulted or participates
in setting the rules and statutes for the Ombudsman;
3. Council and the Court of Justice (CJEU) → structure, statute;
a. Number of Advocates General (Art. 252 TFEU): The Council decides (by
unanimous vote) whether to increase the number of Advocates General at the
CJEU;
b. Statute of the Court (Art. 281 TFEU): The Council, together with the Parliament,
adopts and can amend the Statute of the CJEU;
i. The Council has a competence to adopt and amend the Statute of the
Court of Justice (together with Parliament), thereby shaping how the
CJEU is organised and operates.
EP elections
★ Right to vote and eligibility according to national law;
○ ECtHR, Matthews v UK, 1999 → The European Court of Human Rights held that
Gibraltar residents were unlawfully excluded from voting in EP elections. This
forced the UK to extend the franchise to Gibraltar;
○ CJEU, Spain v United Kingdom, C-145/04, 2006 → Spain challenged the UK’s
decision to allow Commonwealth citizens resident in Gibraltar to vote in EP
elections. The CJEU ruled this was lawful: member states may determine certain
details of the franchise, as long as they respect EU principles;
○ CJEU, Eman and Sevinger v Den Haag, 2006 → Concerned Dutch nationals
living in Aruba (part of the Kingdom of the Netherlands, but outside the EU). The
CJEU held that excluding them from EP elections was discriminatory and
contrary to EU law, since they were EU citizens;
★ Council sets the procedure by a unanimous decision (223 TFEU);
★ Every EU citizen can vote and stand for elections in another MS (22(2) TFEU);
★ Every 5 years (14(3) TEU) – absolutely fixed term Thursday-Sunday (May).
Functioning of the EP
★ Seat in Strasbourg;
○ Strasbourg: 12 plenary sessions;
○ Brussels: sessions of parliamentary committees, offices of the deputies;
○ Luxembourg: General Secretariat (administration and
○ translation services);
★ President: 2.5 years, now: Roberta Metsola;
○ Presides the sessions (with the help of 14 vice-presidents);
○ Signs adopted acts;
○ Represents the EuParl externally.
, Competences of the EP
★ Legislative function;
○ Co-legislator in the ordinary legislative procedure;
■ This is the most common procedure (Article 294 TFEU);
■ The European Commission proposes laws, and both the EP and the
Council of the EU must agree for the law to pass;
■ This ensures democratic legitimacy because the EP represents EU citizens
directly;
○ Opinion in the consultation procedure;
■ The EP gives an advisory opinion on proposals, but the Council can adopt
legislation without following the EP’s position;
○ Veto in the consent procedure;
■ The EP must approve or reject certain important decisions, such as
international agreements, accession of new member states, or the
appointment of some officials;
■ If the EP rejects, the proposal cannot proceed;
★ Political legitimation function:
○ Elects the President and approves the college of the European Commission (17 (7)
TEU);
■ After European elections, the EP approves the Commission President
nominated by the European Council;
■ Each Commissioner is proposed by the member states, but the EP votes to
approve or reject the full team;
■ This ensures political accountability;
★ Democratic control function (of the Commission):
○ Questions (230 TFEU);
○ Inquiry committees (226 TFEU);
○ Budgetary discharge (319 TFEU);
○ Motion of censure (17 (8) TEU + 234 TFEU);
★ Citizens connection:
○ Petitions : 24(2) TEU + 227 TFEU;
○ Ombudsman : 24(3) TEU + 228 TFEU;
★ Budgetary authority :
○ 14 (1) TEU + 314 TFEU : votes the annual budget;
○ + 319 TFEU (discharge);
○ + 312 (2) TFEU approves the multiannual financial framework (MFF);
★ Appointments;
○ Elects Commission President;
○ Approves the Commissioners;
○ Nominates the Ombudsman (288 TFEU).
Does the classical concept of separation of powers fit the European Union?
1. Separation of powers;
a. checks and balances → to prevent democratic backsliding;
i. Influence each other, checks and controls as well;
ii. All the powers watch each other so that one cannot exceed
their power;
iii. Political process and expertise → judiciary - executive -
legislative;
1. In some instances the political process is more
important than expertise;
2. Example → no politics in law and no law in
legislative process;
b. Judiciary → enforces the law;
c. Executive → governments;
d. Legislative → makes the laws;
e. Why do we need separation of powers?
i. To avoid authoritarianism (political balance);
ii. To safeguard liberty (Montesquieu);
iii. To promote best rational public decision making (Max Weber);
iv. To make sure that different voices are represented (Jürgen Habermas);
v. To construct a just society (Michaela Hailbronner);
2. Legislative powers in the EU;
3. Executive powers in the EU;
4. (Judicial powers in the EU);
5. (Structural principles of EU law);
Separation of powers in EU
1. Legislative → council + EP;
2. Executive → Commission and European Council;
3. Judicial → The Court of Justice of the EU.
Mindful of the distinction between the intergovernmental aspect and democratic aspect of the
EU.
Top jobs (president council/president commission/HR) are not democratically elected →
outcome of intergovernmental discussion.
European elections, but most powerful jobs happen at the intergovernmental level.
,Functioning of the Council → important articles;
★ Art. 16 TEU + 237-243 TFEU + Protocol n°36
★ Composition - 10 (2) + 16 (2) TEU
○ Representatives of the MS at ministerial level
○ Empowered to represent the government (ministers or secretaries of state)
★ Different configurations - 16 (6) TEU + 236 TFEU
○ 10 configurations
○ No hierarchy
○ General Affairs Council – coordination + institutional, administrative and
horizontal issues;
Council represents the MS at a ministerial level → intergovernmental.
Presidency of the Council
★ 16 (9) + 18 (3) TEU + 236 TFEU
★ Function:
○ Organising the sessions
○ Determining the topics
○ Coordinating with Commission and Parliament
★ Rotating presidency – 16(9) TEU
○ 6 months
○ current trio → (2025-26): DK, CYP, POL.
★ Exception for Foreign Affairs Council: EU High Representative for Foreign Affairs
Competences of the council
1. Council and the Commission → budget
discharge, salaries, trade agreements;
a. Framing international agreements
in the Common Commercial Policy
(Art. 207 TFEU): The Council
authorises the Commission to
negotiate trade agreements and
then concludes them;
b. Fixing salaries (Art. 243 TFEU): The
Council sets salaries, pensions, and
allowances for EU staff and officials;
c. Discharge on budget
implementation (Art. 319 TFEU):
The Council, together with Parliament, grants discharge to the Commission on
how it has executed the budget;
2. Council and the Parliament → elections, committees of inquiry, Ombudsman;
a. Elections (Art. 223 TFEU): The Council participates in adopting measures
necessary for the election of Members of the European Parliament (MEPs);
b. Committee of Inquiry (Art. 226 TFEU): Parliament can set up committees of
inquiry; the Council may be involved depending on the scope;
, c. European Ombudsman (Art. 228 TFEU): The Council is consulted or participates
in setting the rules and statutes for the Ombudsman;
3. Council and the Court of Justice (CJEU) → structure, statute;
a. Number of Advocates General (Art. 252 TFEU): The Council decides (by
unanimous vote) whether to increase the number of Advocates General at the
CJEU;
b. Statute of the Court (Art. 281 TFEU): The Council, together with the Parliament,
adopts and can amend the Statute of the CJEU;
i. The Council has a competence to adopt and amend the Statute of the
Court of Justice (together with Parliament), thereby shaping how the
CJEU is organised and operates.
EP elections
★ Right to vote and eligibility according to national law;
○ ECtHR, Matthews v UK, 1999 → The European Court of Human Rights held that
Gibraltar residents were unlawfully excluded from voting in EP elections. This
forced the UK to extend the franchise to Gibraltar;
○ CJEU, Spain v United Kingdom, C-145/04, 2006 → Spain challenged the UK’s
decision to allow Commonwealth citizens resident in Gibraltar to vote in EP
elections. The CJEU ruled this was lawful: member states may determine certain
details of the franchise, as long as they respect EU principles;
○ CJEU, Eman and Sevinger v Den Haag, 2006 → Concerned Dutch nationals
living in Aruba (part of the Kingdom of the Netherlands, but outside the EU). The
CJEU held that excluding them from EP elections was discriminatory and
contrary to EU law, since they were EU citizens;
★ Council sets the procedure by a unanimous decision (223 TFEU);
★ Every EU citizen can vote and stand for elections in another MS (22(2) TFEU);
★ Every 5 years (14(3) TEU) – absolutely fixed term Thursday-Sunday (May).
Functioning of the EP
★ Seat in Strasbourg;
○ Strasbourg: 12 plenary sessions;
○ Brussels: sessions of parliamentary committees, offices of the deputies;
○ Luxembourg: General Secretariat (administration and
○ translation services);
★ President: 2.5 years, now: Roberta Metsola;
○ Presides the sessions (with the help of 14 vice-presidents);
○ Signs adopted acts;
○ Represents the EuParl externally.
, Competences of the EP
★ Legislative function;
○ Co-legislator in the ordinary legislative procedure;
■ This is the most common procedure (Article 294 TFEU);
■ The European Commission proposes laws, and both the EP and the
Council of the EU must agree for the law to pass;
■ This ensures democratic legitimacy because the EP represents EU citizens
directly;
○ Opinion in the consultation procedure;
■ The EP gives an advisory opinion on proposals, but the Council can adopt
legislation without following the EP’s position;
○ Veto in the consent procedure;
■ The EP must approve or reject certain important decisions, such as
international agreements, accession of new member states, or the
appointment of some officials;
■ If the EP rejects, the proposal cannot proceed;
★ Political legitimation function:
○ Elects the President and approves the college of the European Commission (17 (7)
TEU);
■ After European elections, the EP approves the Commission President
nominated by the European Council;
■ Each Commissioner is proposed by the member states, but the EP votes to
approve or reject the full team;
■ This ensures political accountability;
★ Democratic control function (of the Commission):
○ Questions (230 TFEU);
○ Inquiry committees (226 TFEU);
○ Budgetary discharge (319 TFEU);
○ Motion of censure (17 (8) TEU + 234 TFEU);
★ Citizens connection:
○ Petitions : 24(2) TEU + 227 TFEU;
○ Ombudsman : 24(3) TEU + 228 TFEU;
★ Budgetary authority :
○ 14 (1) TEU + 314 TFEU : votes the annual budget;
○ + 319 TFEU (discharge);
○ + 312 (2) TFEU approves the multiannual financial framework (MFF);
★ Appointments;
○ Elects Commission President;
○ Approves the Commissioners;
○ Nominates the Ombudsman (288 TFEU).
