Institutions, Power and Institutional Balance

P Craig and G de Burca, The Evolution of EU Law (OUP, 3rd edn 2021)

86 Pages Posted: 16 Dec 2020

See all articles by Paul P. Craig

Paul P. Craig

University of Oxford - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: December 14, 2020

Abstract

The EU institutions have always been ‘singular’. From the very inception of the EEC it has been difficult to fit the principal institutions within any neat ordering that corresponds to that within the traditional nation state. The very location of legislative and executive power in the Rome Treaty was problematic, and these problems were exacerbated over time as new institutions developed, often initially outside the strict letter of the Treaty, in response to complex political pressures.

Institutional balance, as opposed to strict separation of powers, characterized the disposition of legislative and executive power in the EEC from the outset. The concept of institutional balance has a rich history. It was a central element in the republican conception of political ordering, embodying the ideal that that there should be a balance between different interests, which represented different sections within civil society. This was necessary to ensure that decision-making served the public good rather than narrow sectional self-interest. The concept of institutional balance was an important part of republican discourse in the fifteenth and sixteenth centuries, shaping the desired structure of government in the Italian republics, exerting later influence in England and the emergent United States.

Institutional balance is not however self-executing. It presumes by its very nature a normative and political judgment as to which institutions should be able to partake of legislative and executive power, and what constitutes the appropriate balance between them. These normative underpinnings have altered over time in the EU, and continue to do so. These changes will be charted throughout the subsequent analysis and form the underlying theme of the chapter, which is divided into four temporal periods.

The initial period runs between the Rome Treaty and the Single European Act 1986. The discussion begins with the initial disposition of institutional power in the Rome Treaty, in which it was primarily divided between the Council and Commission, with the latter holding many of the ‘legal’ trump cards. The underlying theme that the institutional balance shifted, such that Member State influence in the Council and European Council over primary legislation, secondary legislation and the direction of Community policy increased. The analysis includes the ECJ’s role, and how integration through law inter-related with integration through the political process.

The second section covers the period between the SEA and the Nice Treaty. Three themes were evident during this time, clarification, contestation and complexity. There was clarification of the principles governing Community administration and the appropriate disposition of legislative power, with recognition that the European Parliament should properly have a role. The emerging consensus about the legislative process was not matched by agreement concerning the disposition of executive power. The period between the SEA and the Nice Treaty saw skirmishes as to the locus of executive authority, which played out in different ways in relation to Comitology, agencies and the European Council. Institutional complexity was the third theme in this period, as exemplified by the variety of Community legislative procedures, the creation of new agencies, the Three Pillar structure and emergence of new governance strategies. Thus viewed from the perspective of institutional balance, there was growing consensus in normative terms as to the appropriate disposition of primary legislative power, but continuing contestation as to power over secondary rule-making and the locus of executive authority.

These tensions were readily apparent in the third period, which covers the Constitutional Treaty and the Lisbon Treaty. Treaty reform is a continuation of politics by other means. It is not therefore surprising that institutional issues from the previous decade dominated debates on more comprehensive Treaty reform, including the appropriate distribution of legislative power, coupled with contestation as to the locus of executive power. These were the prominent themes in the debates on Treaty reform. It is clear that while most believed in institutional balance, they differed markedly as to what this should entail.

The fourth period runs from the advent of the Lisbon Treaty to the present. It was hoped that after a decade of Treaty reform, in which institutional issues dominated the agenda, that the EU could give closer attention to substantive issues. This aspiration was qualified by reality. The EU was beset by a series of crises, which had implications for the powers of the respective EU institutions and the institutional balance between them. The financial crisis, Brexit, the rule of crisis, immigration, and the pandemic all tested the EU institutional machinery and wrought changes thereto.

This chapter is for the 3rd edition of the Evolution of EU law, and is an updated version of the chapter that appeared in the second edition a decade ago.

Keywords: Institutions, Institutional balance, Treaty reform, EU Crises, Rule of law

Suggested Citation

Craig, Paul P., Institutions, Power and Institutional Balance (December 14, 2020). P Craig and G de Burca, The Evolution of EU Law (OUP, 3rd edn 2021), Available at SSRN: https://ssrn.com/abstract=3748492 or http://dx.doi.org/10.2139/ssrn.3748492

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

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