EU arrangements for forming and making rules

In a typical republic, the state’s functions are divided in at least three: (i) executive, (ii) legislative, (iii) judiciary. This is also known as the principle of the separation of powers, commonly referred to as “checks and balances”. The EU partakes of this principle in that its institutions enjoy operational independence from each other and/or from national governments. No authority can interfere with their internal affairs so long as they work within their remit.

The European Commission is the executive, the European Parliament jointly with the Council of the EU are the legislative, the Court of Justice of the EU is the judiciary. Additional functions are performed by the European Central Bank, which is the monetary authority, and the Court of Auditors, which is the auditory authority.

Where complexity is introduced is in the case of the European Council. This institution is where the heads of state or government of the EU Member States meet to decide on the future of European integration. The European Council adopts conclusions on all policies concerning the EU. These typically are in the form of “guidelines” towards the European Commission, asking it to implement a given plan, initiate the legislative process, or conduct some relevant background research.

Two recent pieces of diplomacy that are crucial to the European Union are (a) the agreement between the EU and the UK concerning the latter’s renegotiated position in the former,1 and (b) the EU-Turkey deal regarding migration and asylum.2 Both were agreed upon at the European Council.

Given the importance of the decisions it adopts, one would be justified to think that it acts as an effective “EU government”. Indeed the European Council is the single most important institution in terms of determining the actuality and future prospects of the EU. It sets the policy agenda. It however falls short of qualifying as a “government” since it does not get to implement its will. That is the role of the European Commission. The heads of state of government of the Member States will agree on a common position. The Commission will elaborate on the details and the specific requirements for its realisation.

The bifurcation of the EU executive

To this end, perhaps it is best we qualify our understanding of the European polity’s executive. Rather than it being uniform, it consists of two parts each with a distinct role:

  1. Deciding executive. The European Council gets to decide on the direction of European integration and to shape the EU in accordance with the collective will of its constitutive nation states.
  2. Implementing executive. The European Commission deals, among others, with the day-to-day workload of actualising the conclusions of the European Council. It also makes sure that the Member States comply with European law. It is the “guardian of the Treaties”.

The EU’s bifurcation of its executive branch consists in the institutionalised distinction between its deciding and implementing roles. We could argue that the Commission acts more like a public service than a ministerial cabinet, even though it is headed by a group of Commissioners that tend to be prolific politicians in their own right. It still is an “executive” though, especially as concerns its capacity to initiate—and then enforce—legislation.

The most common procedure for making European laws is the ordinary legislative procedure.3

The Commission presents a draft to both the European Parliament and the Council of the EU. The legislative institutions, here standing on an equal footing, follow their internal procedures for formulating their position towards the Commission’s proposal.

Once both complete their work on the draft legislation, typically in the form of introducing amendments to the text, they come together to compare their results and agree on a final document.

The finished article is promulgated as a new law. It is imperative that Parliament and Council reach an agreement. Without it the draft will not become law of the Union.

Outlining and substantiating rules

Couched in those terms, we can begin to better understand how the EU Member States shape the European integration process and set out to pursue objectives they have in common. Their collective will at the European Council provides the impetus for new legislation or a series of actions on a given front, while their involvement in the legislative procedure ensures their input is incorporated, at least in part, in secondary law.

Given this two-fold influence we may introduce another distinction emanating from the bifurcation of the executive. Rules in the EU are not produced outright. They are first agreed upon in outline—they are “formed”—at the European Council. Then they are rendered concrete—they are “made”—through a series of negotiations that unfold within the context of the legislative procedure.

The Union’s deciding executive is, in other words, the entity responsible for rule-formation, for identifying the abstract features of future steps in the integration process. Whereas the EU’s implementing executive is involved in rule-making, to ensure that flesh is added to the bones of the European Council’s “guidelines”.

The EU’s factors of differentiation

In this chapter we introduced a couple of qualifications to our understanding of (i) the separation of powers, in particular as concerns the executive function, and (ii) the method of formulating rules for the system at-large. The terms we employed describe phenomena that differentiate the European Union from a ‘typical’ republic.

While the words themselves can be changed, the constant is the overall indirectness germane to the institutional arrangements of the EU and to how their interplay contributes to the integration process.

Complexity, the multitude of interlocking variables, is not unique to the European Union. Many types of polity have their peculiarities. This is not a matter of finding the “right” or “wrong” approach. Our task here is to point out those characteristics in an effort to comprehend how the EU works and who gets to do what.

Ultimately though, it contributes to our understanding of “Brussels” as something other than a monolithic, homogeneous whole.

  1. Timeline of the EU-UK deal by the official website of the European Council. ^

  2. EU-Turkey deal, March 18, 2016. ^

  3. The ordinary legislative procedure used to be known as the “co-decision procedure”. The Treaty of Lisbon renamed it and made it the main process of law-making in the EU. On its website, the European Parliament offers an overview of the legislative powers it enjoys. ^