The European Union Law Overview - Essay Example

Introduction: National sovereignty is mitigated to a significant extent in the European Union, due to the fact that decision making in the EU transpires at the European Union level and not at the national level of a Member State. The different Member States of the EU have to comply with the decisions taken by the latter. Moreover, these decisions, apparently, enhance the power of the executive to the detriment of Parliament in the Member States. These decisions serve to fortify the position of the national executive, despite opposition from the national legislative bodies. The decision making process is rendered a combined effort, and this serves to dilute the authority and power of national decision makers. Nevertheless, such decision making, makes it easier to determine and design policy and legislation. Moreover, this distribution of decision – making power dilutes the capability of individual Member States to design their own policies by themselves. The European Parliament differs from traditional parliaments around the world, in as much as it does not have legislative criteria inherent in the other extant parliaments1. Paragraph 1: The Council of Ministers operates clandestinely and its functions, which are influenced by national and transnational parties, lack transparency and accountability. Decision – making is determined by qualified majority voting in the Council of Ministers. The Council of Ministers is the most powerful institution in the European Union, and comprises of envoys from the Member States of the EU. The European Parliament and the Council of Ministers enact the EU’s legislation. The Council decides issues either by qualified majority voting or by unanimity. Its presidency has a rotating tenure of six months. Although, it does not formally comprise a component of the EU system, it has emerged as the cardinal institution of the EU. It organizes meetings between the heads of state and the representatives of the European Commission. Unlike the Council, which is an intergovernmental body, the European Parliament is a supranational institution2. The Council of Ministers has been accorded the status of the principal legislative body by the Treaties of the EU. Its importance stems from the fact that it constitutes the final decision making authority. In the process of making policies, the Council relies on other institutions for assistance and direction3. The EU is a novel political institution, consisting of intergovernmental elements in some issues, supranational elements in administrative matters and transnational elements in most domains. It is difficult to define the character of the EU, because of its complex network of institutions. These institutions regulate and monitor the affairs of the EU. Therefore, the EU cannot be a unitary and self contained political organisation. The legal structure of the EU is supranational; and the European Court of Justice is the driving force in implementing the Treaties and the EC law throughout the EU4. In the matter of legislating in the EU, the Council of Ministers plays a very important role. It is the chief actor in the law – making process in the EU and oversees the implementation of the statutes and invents new ways for easier implementation of EU law5. Paragraph 2: EU governance is often criticised for being susceptible to the concept of comitology. At times, the situation demands a quick response accompanied with adequate competence; this necessitates executive action. The Commission has been found to be the ideal institution to undertake such executive action. Since, the EU is seized with the being transparent and accountable for its actions, comitology should be limited to only technical measures. Moreover, delegated legislation is the most appropriate form of governance under some circumstances. For instance, under the statutory instrument procedure, UK Ministers are empowered by delegated legislation. Hence, the adoption of this practice in the EU should not invite criticism, merely on this account6. The Commission is essential to European integration, and the European Parliament oversees the functions and activities of the Commission. However, despite this check and balance process, employed by the European Parliament; the transparency and accountability of the Commission is continuously under attack for its perceived undemocratic functionality. There are several instances in which the concept of comitology was challenged by individuals and institutions under the provisions of Article 230 EC. In the case of Koster, the European Court of Justice held that the Council of Ministers had delegated powers to the Commission. It also held that the delegation was lawful and legitimate under the provisions of Article 202 EC. The European Parliament does not participate in comitology, which has resulted in widespread criticism7. The process of comitology enables the Commission to implement several measures. This process entails the consultation of the Member States, and it also requires the Commission to consult the representatives of the Member States in the Council of Ministers. It is the fundamental duty of the Commission to ensure that the representatives are consulted before implementing any measure. Article 202 EC provides a structure to the process of comitology. These decisions permit Parliamentary control over the process of comitology. However, it does not entail active or substantive public participation or notice. The decisions allow active supervision by expert committees, constituted from the representatives of the Member States. The Commission is required to submit the outcome of its measures to the Council of Ministers and the European Parliament, if these measures are to become effective8. The expert committees are headed by non – voting bureaucrats of the Commission. They undertake a complicated and clandestine process in which they commit themselves at the first instance. Then they involve the Commission in the process. In the final phase, the Council and the Parliament are included in the process. The Commission exercises its delegated implementing powers, under the strict supervision of Member States’ representatives. As such, the Commission is required to consult the representatives of the Member States before implementing any measures. Moreover, the approval of the comitology committees is essential for any draft legislation, prepared by the Commission, to become EU law. Thus, the endorsement of the comitology committees is indispensable for the Commission, while implementing legislation9. Paragraph 3: Citizens of the EU find access to the institutions of the EU to be difficult. European measures and legislations are only felt at national level and not at the individual level. Subsidiarity, transparency and democratic legitimacy are the fundamental principles of the Treaty of European Union. These principles must be present, while addressing the problems relating to the Union and its legislative policies. In spite of these fundamental principles, many pieces of legislation are enacted on the basis of the domestic political agenda of the Member States and not in true spirit of European integration. In other words, the parochial interests of national governments have been accorded greater priority10. In order to eliminate the distance between the individuals and the EU institutions, the latter adopted the principle of accountability. This was the prime concern of the EU from the 1990’s. The European Parliament is a democratically elected organ of the EU. Despite this fact, people in many Member States think that the European Parliament is democratically deficit and the authorities who take decisions are not accountable to the citizens11. Despite the EU’s efforts to promote greater transparency in its functioning and openness in its approach, the citizens of its various Member States have not been benefitted to any appreciable extent. A lot more is required of the EU in this regard. Paragraph 4: The EU has the most complicated and complex policy – making process, in comparison to any individual country. Sometimes it seems to be confusing to interpret several intermingling provisions of the Articles. It is a very difficult process in the EU to make policies, than in any country. Primarily, the interests of all the Member States have to be examined and reconciled with interests that go beyond national boundaries. Furthermore, there are several EU institutions which act independently, and this fragmented characteristic of such EU institutions increases the complexity of the decision making process. In addition to this, the EU is still expanding, which influences the process of decision making. The EU has not yet established itself as a self – contained body, and its institutions are still developing. In trade related matters there is no standard mechanism for review and regulation. Similarly, development in areas like defence and social policy is inadequate. As such, the EU is in a stage of transformation stage, and these factors contribute to the complexity of the decision – making process12. Moreover, this complexity in law – making, is on account of the different parts of the Treaties, requiring different decision making procedures. These procedures include the unanimous consent of the Council of Ministers or the qualified majority voting in the Council. Other important procedures like consultation and co-decision making process are also applied to the law – making process. The process gets even more complicated by the revision of treaty provisions. Furthermore, additional complexity is engendered by Member States that lose, under the qualified majority voting rules and who find a number of incentives in taking up litigation. Such outvoted Member States may approach the ECJ for redressal, if they had not been given priority by the legislation or if their interests had been ignored by that piece of legislation. Such Member States could demand of the Court to rescind such legislation, because it is based on wrong Articles of the Treaty. As such, the ECJ, through its case law, has restricted the discretion of the EU’s institutions to amend legislation, for political expediency13. Paragraph 5: It is a fact that the national law conflicts, quite frequently, with the Community law, in respect of several issues relating to implementation of the latter, which may be unintentional on many an occasion. Nevertheless, a Member State could intentionally disobey the Community law, and there should be sufficient laws to address such recalcitrance. This requirement was effectively addressed by the ECJ through its case law. The ECJ held that the EC law prevails over the national law in the event of any conflict between them. It also ruled that the EC law has precedence over national law. Thus, national courts must incorporate the provisions of EC law into their domestic law. The ECJ made this ruling, for the first time in the case of Costa v ENEL, while responding to the claims that the preliminary ruling would not be relevant to the facts of the case14. In the Simmenthal case, the ECJ held that Community law takes precedence over national legislation. This ruling further established the supreme position of Community law over national law, whenever a conflict arose between them. It also stated that the provisions of the Community law invalidate conflicting provisions in the national law. The ECJ held that the conflicting national law would be automatically overridden by the Community law. It further ruled that the national courts must interpret the provisions of the Community law in their entirety. In addition, the national courts are required to protect individual rights provided by Community law. Therefore, the national courts should act in accordance with the Community law and rescind any provision or rule in national law, which does not comply with the Community law15. In another case, the ECJ held that Community rules have direct application. The supremacy of the Community rules cannot be challenged with regard to their direct applicability by any provision of the national law. Thus, no party can invoke the provisions of domestic law to challenge the status of a directly applicable provision of Community law16. In VanGendEnLoos, the ECJ established the concept of supremacy of EC law. The case dealt with a conflict between Dutch law and the doctrine of Free Movement of Goods. This was the first case in which the supremacy of EC law over the national law was discussed. Until this case, there was confusion, as to whether the national courts could determine the justification of the provisions and principles of EC law. There were no guidelines for national courts to address such situations and the ECJ developed the new concept of Direct Effect, which enabled national courts to deal with these conflicts and to determine the justiciability of EC laws. In that case, the ECJ held that the Netherlands could not enforce its national legislation and any attempt by it to do so would constitute a serious breach of EC Treaty Articles17. The above cited case law reveals that there has been a weakening of the national law and constitutional powers exercised by the domestic courts, in the Member States. Paragraph 6: The European Union suffers from democratic deficit. This was caused by the process of establishing political, legal and social order in the European Union. The legal order is not of standard international or autonomous nature. It is an intergovernmental order and sometimes it appears to be a supranational legal order. The Member States had to forego their privileges due to the process of constitutionalization. If the legal order of the EU had been bestowed with an international legal nature, then the Member States would have had several prerogatives. The core EU institutions were established within the formal democratic system. Moreover, the Commission no longer remained as a mere secretariat, and the Parliament was elected directly by the Member States. All the same, democratic deficit in the EU has persisted18. The Member States lost some of the powers, which they enjoyed earlier. This developed a sense of being ruled by the EU’s institutions among them. These institutions are operated by majority voting, which fails to ensure the interests of all the Member States. Thus, the Member States lost their prerogative, and they harboured fears that their interests would be ignored by the supranational institutions of the EU. This makes it very clear that the notion of democratic deficit was an assumption, which had been made by the Member States. Furthermore, the objective of the founders of the Community was to establish an economic organisation, which was to carry out trade in a concerted manner, according to the principles of international law. Initially, there had been no provision for any type of checks and balances in the Community. The founders had not provided any protection for human rights as they considered it unnecessary for economic treaties. Therefore, as long as the Member States acted as true members to the Union, there would be no question of democratic deficit in the EU. In fact they were the de facto masters of the Union and its treaties19. Conclusion: According to the Maastricht Treaty, all decisions are to be taken overtly and reach each and every citizen in Europe. Thus, the Maastricht Treaty recognised the importance of transparency in the decision – making process. It was its belief that such openness would further fortify democracy within the EU institutions and acquire public confidence, which would promote better governance in the EU. Therefore, democratic deficiency is purely structural and institutional. Moreover, the sui generis characteristic of the European Union had also contributed to the democratic deficit in the EU. In order to rectify these deficits, it is insufficient to rectify each institution of the EU in isolation, a concerted effort is essential to bring about the democratization of the EU20. The Commission, the European Central Bank, the ECJ and other organs, overwhelmingly dominate administration and governance in the European Union. These institutions are not accountable to the electorate, and their officials and other staff are non – elected officials. They carry out governance and related matters, which are remote from citizens and their review. The European Parliament has a minor role in making good democratic deficits in the Union. In addition, the larger Member States that have lower level social policies, dominate governance. The EU exhibits democratic deficit, because negative integration resulted in the regulation of competition matters. At the national level, there is no common social policy for all the Member States, and the EU failed to develop such a policy21. The complicated procedure of decision – making, lack of transparency and accountability, and non – participation by its citizens, has caused misgivings among the latter towards the system. This isolation has generated considerable public apathy. Most of the authorities contend that European integration should be transparent if the EU is to survive and expand. As such, factors like the lack of transparency, lack of proximity between the Member States and the centre of the EU and domination by the larger Member States of the EU adversely affect its democratic functioning. Bibliography Case 6/64 Costa v ENEL (1964) ECR 585, 593 Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (1978) ECR 629 Case 11/70, Internationale Handelsgeselleschaft mbH v. Einfuhr-und Vorratsstelle fur Getreide und Futtermittel (1970) ECR 1125 Case 26/ 62, Van Gend En Loos (1963) CMLR 105 Charles Hauss. 2005. Comparative Politics. Thomson Wadsworth. ISBN: 0534590535. P 191-192 David Ward. 2002. The European Union Democratic Deficit and the Public Sphere. IOS Press. ISBN: 158603281X. P 7 Erik Oddavar Eriksen. 2003. The EU and the Right to Self-Government. Retrieved 12 August 2008 from http://www.arena.uio.no/publications/wp_03_17.pdf Erika M. Szyszczak. 2005. Understanding EU Law. Sweet & Maxwell. ISBN: 0421878606. P 30 Hüsamettin Inanc and Hayrettin Ozler. 2007. Democratic Deficit in EU: Is there an institutional solution to over-institutionalization? Retrieved 13 August 2008 from http://www.alternativesjournal.net/volume6/number1&2/inanc&ozler.pdf Jack Hayward. 1995. The Crisis of Representation in Europe. Taylor & Francis. ISBN: 0714641847. P 96. Jeremy John Richardson. 2006. European Union. Routledge. ISBN: 0415358140. P 176. Marko Trnski. Multi-Level Governance in the EU. Retrieved 12 August 2008 from http://www.publikon.com/application/essay/38_2.pdf Matej Avbelj. 2005. 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