Part 1: The Reform of European Governance

I- History

II- Governance in the European Union

A) Why reform the European Governance?

B) Five principles of good governance and for a useful change(according to the

Commission)

C) The proposals for change

D) Follow-up of the white paper

E) Multilevel governance

III- European Governance and the European Law

IV- European Governance in constitutional context

Part 2: Main Actors of European Governance

I- The European Commission

A) Composition
B) Role

II- The Council of the European Union

A) Members
B) Presidency
C) Role
D) The taking of decisions

III- The European Parliament

A) Members
B) Political initiative
C) Budgetary powers

IV- The European Court of Justice (ECJ)

V- The Court of Auditors
VI- Advisory
A) The Social and Economic Committee
 B) The committee of the regions
C) The Ombudsman
D) The European Central Bank
VII- The Civil Society

Part 1: The Reform of European Governance

I- History
→The notion of governance comes from the french middle age= « administration of local
territories.

→ An English word = the method of organization of the “feudal powers”

→ before disappearing when Nation States took control of Europe, the sovereign State
emerged

→The word comes back in the discourses at the end of the 1980’s = reports from the IMF
(International Monetary Fund)

EG= a new policy approach by the IMF of its task. IMF wants the States to adopt specific
policies, but cannot violate their sovereignty.

→ « good governance ». The IMF wants the countries benefitting of its financial programs
not to waste the money furnished, and pretends that it can only be so if there is «good
governance». Good governance is then proclaimed as a precondition to economic and social
efficiency, and also as a precondition for the benefit of any IMF program.

In this conception, it is clear that « governance » is not equivalent to « government ». The

IMF just cannot claim it wants a « good governement », because it has to respect the
sovereignty of States. And the notion of governance has precisely been used to « de
politize » the intervention of the IMF.

In this conception, the government is probably a part of what is governance, but it is just a
part of the picture, not the whole. Governance is more generally expressing the way a
society function.

→Then, in the IMF’s talks, the governance of a society is the way this society functions,
whatever the method used.

II- Governance in the European Union

The notion of governance enters in the European language during the 90’s.

→The Single European Act has been signed in 1986 = creation of the open market
But the EC (European Commission) faces new challenges: the end of the cold war; the
enlargement; the globalization; the global challenges like terrorism and the environmental
problems.

→The treaty of Maastricht was signed in 1992 = creation of the EU and launched the
economic and monetary union. It is considered as a step toward a renewed Europe

But it is insufficient to organize the Union in a real efficient way.

→The Treaty of Nice was signed in 2001. It prepared the enlargement

But it was still insufficient in order for the treaty making process to be efficient. At the same
time the Treaty if Nice was rejected by Irish people in a first vote.

At this moment, the European Commission has to find a way of dealing with the crisis. It
adopts a white paper titled « European governance » in 2001

= to present the better way to improve European governance in a time of perplexity, caused
by the inefficiency of the treaties, and the lack of democracy of the decision making process.

= show the current movement of the new European way of behaving as a political body.

= the result of the debate on the extent to which the traditional – supranational and top-
down – Community command-and-control method is still the right way to proceed, and what
new forms of European governance – intergovernmental and non- governmental – should be
explored and promoted with a view to ensuring good governance in the EU.

Contain:

- Why the European governance should be reformed.

- It explains what should be the right principles for a new governance.

- A series of proposals for change.

= It is also defining governance in this way: Governance means rules, processes and behavior
that affect the way in which powers are exercised at European Level, particularly as regards
openness, participation, accountability, effectiveness and coherence.

A) Why reform the European Governance?

- Democratic and popular problem: 

There is a perception by the Europeans that the Union is not able to meet their expectations.
People no longer trust the system (some vote no to Europe when they are asked), but at the
same time they seem convinced that only Europe can seize the opportunities of
globalizations for economic and human development, respond to environmental challenges,
and deal with regional conflicts. They expect (this is what the Commission writes) the Union
to act as visibly as national governments.

- The Union is changing. Its agenda extends to foreign policy and defense, migration and the
fight against crime. It is expanding to include new members. It is no longer judge by its ability
to remove barriers to trade or to complete an internal market.

- In order to respond to this situation, « there is a need for urgent action to adapt
governance under the existing treaties, but also for a broader debate on the future of
Europe ». That means, for the Commission, reforming the community methods to establish a
better coherence in the Union’s politics.

B) Five principles of good governance and for a useful change

-  Openness: the institutions should work in a more open manner

- Participation: Improved participation is likely create more confidence in the end result and
in the Institutions which deliver policies

- Accountability: Each of the EU institutions must explain and take responsibility for what it
does in Europe.

- Effectiveness: Policies must be effective and timely.

- Coherence: Policies and actions must be coherent and easily understood.

Moreover, according to the Commission, the application of these principles should reinforce
other principles, like proportionality and subsidiary

= the linear model of dispensing policies from above (the pyramidal model) must be
replaced by a virtuous circle, based on feedback, networks and involvement from policy
creation to implementation at all levels.

C) The proposals for change

4 sections: better involvement; better policies, regulation and delivery; contribution to
global governance; refocused policies and institutions.

1- Better involvement

Its means:

- a better involvement of the citizens, through a better communication with the

general public on European issues.

- a better involvement of the public authorities which are not the State members, for
communication purposes.
It suggests using regional and local democracy, at the level of which there is some
responsibility in the implementation of the European policies. → a better interaction in a
multi level partnership, in which not only Member States, but also the regions and the cities
take their part.

- the local level should serve the mediatisation of the EU policies, in the reverse it
should also be taken into account by the EU when it elaborates its policies. The
Commission calls for a systematic dialogue with European and national associations
of regional and local governments in the context of the decision making process.

- A greater flexibility = difficulty to have EU rules covering efficiently the whole territory in the
exact same way, because the fact is that local conditions are different. Flexibility in this
context means taking due account of the territorial impact of any legislation at the moment
of its implementation. The method should be for the EU to act on a target based and
tripartite contract (EU, State, Local authority). This is in fact a way for Europe to pass through
the State in order to directly touch on the local field. The approach concerns regulations or
directives in fields where subnational public authorities are responsible for implementation
within the national, institutional or administrative system.

- overall policy coherence = relates to territorial development actions at different level,

that should be coherent.

- involving civil society = Civil society plays an important role in Europe. Trade Unions
and employers’ organizations for example have a particular role and influence. It is
then suggested in the white paper to utilize the potential of civil society to broaden
the debate on Europe and its legislation, and to give to citizens actively involved a
structured channel for feedback, criticism and protest. That means a particular
responsibility for civil society, which must itself follow the principles of good
governance, which include accountability and openness. Indeed, for the civil society
to have a legitimate voice, it should itself be representative. That means also to
strenghten the role of the Economic and Social Committee.

- more effective and transparent consultations at the heart of  European policy
shaping. Here the commission commits  to consult interested parties through
different instruments such as green and white papers, communications, advisory
committees, business test panels, etc, in order to arbitrate, at the moment of the
taking of decisions, between competing claims and priorities. But the Commission
precise that « better consultation complements, and does not replace, decision-
making by the institutions. Then it is suggested to create a code of conduct that sets
minimum standards focusing on what to consult on, when, whom, and how to
 consult (the Commission has done so in 2002; we will revert to that code of conduct
when we will talk about the civil society).

→ Involvement of the civil in policy shaping. EU tries to overpass the State level in order to directly
communicate with the individuals, by using regional and local democracies. It would. Civil societies
could thus be involved through the enforcement of consultation and dialogue.

Nowadays, civil societies are often organised in NGOs, which most of the time are listened to by EU
institutions, and play an important role.

Ex : In the field of Humanitarian actions, EU often finances NGOs to act during a humanitarian crisis
its own name. The organisation “Médecins du Monde” is thus largely financed by the EU.

2- Better policies, regulation and delivery

At the moment of the white paper, it was said that the European Union’s policies and
legislation were getting increasingly complex,

but that at the same time the Council and the European Parliament were reluctant to leave
more room for policy execution to the Commission. The result was that the legislation often
included unnecessary level of detail. It was denounced, because adapting the rules to
technical or market changes were, as a consequence, complex and time consuming. The
overall result was a lack of flexibility, damaging effectiveness.

The Commission also explained that for better policies, there should be confidence in expert
advices. It is true that the more technical the decision is supposed to be the more important
it is to benefit from expert advices. It is particularly true concerning animal health, social
legislation, bio-technologies, and also economic matters.  The Commission then suggests to
strengthen the scientific expertise at the EU level.

Better and faster regulation is the goal. For all these objectives to be achieved, the
Commission considers that it depends on 7 factors:

- Checking the appropriateness of any intervention of the Union

- pragmatism: legislation (as such) only when needed. Legislation is only a part of a
broader solution, which should include also soft law, soft regulation, and self-
regulation.

- the right instrument at the right moment: when legislation is needed, the right
instrument should be used: regulations when there is a need for uniform application
and legal certainty across the Union; framework directives more generally, because
they are more flexible.
 - Co-regulation when possible. Co regulation combines binding legislative and
regulatory action with the action taken by the actors most concerned, drawing on
their practical expertise.

The condition for the use of co-regulations implies that a framework of overall objectives,
basic rights, enforcement and appeal mechanisms, and conditions for monitoring
compliance is set in the legislation.

It is possible where fundamental rights or major political choices are not called into question.
It should not be used in situations where rules need to apply in a uniform way in every
member State.

- Community action may be complemented or reinforced by the use of the open

method of coordination.

According to the « Europa Glossary »:  Open method of coordination (OMC), initially created
as part of employment policy and the Luxembourg process, has been defined as an
instrument of the Lisbon strategy (2000).The OMC provides a framework for cooperation
between the Member States, whose national policies can thus be directed towards certain
common objectives. Under this intergovernmental method, the Member States are
evaluated by one another (peer pressure), with the Commission’s role being limited to
surveillance. The European Parliament and the Court of Justice play virtually no part in the
OMC process. The open method of coordination takes place in areas which fall within the
competence of the Member States, such as employment, social protection, social inclusion,
education, youth and training.

It is based principally on: jointly identifying and defining objectives to be achieved (adopted
by the Council); jointly established measuring instruments (statistics, indicators, guidelines);
benchmarking, i.e. comparison of the Member States’ performance and exchange of best
practices (monitored by the Commission). Depending on the areas concerned, the OMC
involves so-called « soft law » measures which are binding on the Member States in varying
degrees but which never take the form of directives, regulations or decisions. Thus, in the
context of the Lisbon strategy, the OMC requires the Member States to draw up national
reform plans and to forward them to the Commission.

To sum up, the functioning of this method is based on three elements: an agreement on
common targets; the freedom of States as for the means of achieving these targets;
transparency ad monitoring.

- Culture of evaluation

This point is quite self speaking, as evaluation is obviously needed in order to check the
adequation and effectiveness of the decisions that have been taken.

- The Commission considers that it should withdraw its proposals when the inter
institutional bargain renders them over complicated (??).
According to the white Paper, Community Law should also be simplified in order to be better
respected.

Concerning the implementation of EU law, the Commission explains also that there should
be a better application of EU rules through regulatory agencies.

To give you an explaination about that, let us precise that a Community agency is a body
governed by European public law; it is distinct from the Community Institutions (Council,
Parliament, Commission, etc.) and has its own legal personality. It is set up by an act of
secondary legislation in order to accomplish a very specific technical, scientific or managerial
task.

Some agencies – the 6 executive agencies, assist with the management of EU programmes in
a given field. Others, the 29 community agencies, were set up in response to an identifiable
need in a particular policy area (example in the chemical field, creation of the europeaen
chemicals agency in 2007 as part of the REACH package on hazardous chemicals.

For a better regulation and to achieve a better efficiency of it, the White paper finally puts
that there should be a better application at the national level, which is obviously true.

3- European Union and Global Governance

The ambit of the Commission is to reform European Governance, before trying to enhance
the case for change at an international level. Its goal is very ambitious, as it is to boost the
effectiveness and enforcement powers of multi lateral institutions. According to the White
Paper, many ideas that the WP contains could be tested at global level.

In this context, the Commission insists that it will promote the use of new tools at global
level as a complement to « hard law », but also propose a review of the Union’s
international representation under the existing Treaties in order to speak more often in a
single voice. (This was said before the Treaty of Lisbon)

→ The EU should have a global ambition which could be to promote a new governance approach at
the multilateral stage. The Com is thus praising for “good governance’ in every international
institutions, and succeed indeed in exporting its vision throughout the world. (Probably due to
influence of Lamy, member of the Com at the time).

4- Refocused policies and institutions

According to the Commission, the traditional EU approach; i.e. “step by step” approach or in French
“politique des petits pas” as stated by Jean Monet) is now over. The Com praises the need for a
“global approach” more coherent in the beginning of the 21 st century. We have to keep in ming that
the WP was published at the time discussions about the European Constitution were going on. This
new approach defended by the Com is very interesting and have been indeed, since 2001, adopted.

The Com thus drew 4 criteria for this approach to be efficient:

 - Long term objectives have to be defined
- The settlement of priorities must be achieved. The Com added in the Paper that it was one
of its role to do so. (NB : More a political function of the Com).
- European Council should shape the strategic direction of the Union. It should not deal with
day-to-day matters, but only with high level matters; in so doing the Council should also work
hand in hand with the Com.
- Revitalise the action of the EU by choosing better methods such as the “new method of
regulation”, along with guarantying the application of the regulations and promote a better
involvement of the citizens.

D) 3 packages of Commission
Following publication of the White Paper, the Commission has implemented its main ideas
through several packages or specific measures:

- the Better Law Making Action plan of June 2002;

- the Framework for Action « Updating and simplifying the Community acquit » of March
2003;

- the Communication of May 2002 on impact assessment and follow-up measures.

These packages have led to some significant achievements, notably in the form of
consultation, impact assessment, and simplification

1- Consultation

Before making proposals and taking policy initiatives, the Commission consults and is in
constant touch with external parties when elaborating its policies. These include all those
who wish to participate in consultations run by the Commission, be it market operators,
NGOs, private persons, representatives of regional and local authorities, civil society
organizations, academics and technical experts or interested parties in third countries.

The dialogue between the Commission and interested parties can take many forms, and
methods for consultation and dialogue are adapted to different policy fields. The
Commission consults through consultation papers (Green and White Papers),
communications, advisory committees, expert groups, workshops and forums. Online
consultation is commonly used. Moreover, the Commission may organize ad hoc meetings
and open hearings.

The decentralized organization of consultation needs a common framework in which to

operate to ensure that consultations are carried out in a transparent and coherent way
throughout the Commission.
In 2002 the Commission set out principles and minimum standards for consulting external
parties. The consultation standards are part of the « Better Lawmaking action plan », which
aims at clearer and better European legislation. According to these standards attention
needs to be paid to providing clear consultation documents, consulting all relevant target
groups, leaving sufficient time for participation, publishing results and providing feedback.
These consultation standards apply in particular at the policy-shaping phase to major
proposals before decisions are taken. The consultation standards have been applied from
2003 onwards.

Ex. The European Commission has launched a consultation on the EU rules for concession
contracts. Concessions are arrangements between public authorities and private operators,
with the purpose of providing and exploiting an infrastructure, such as an airport, or a
service, such as water distribution to the public. Concession contracts are significant as they
are increasingly being used by public authorities at all levels. The objective of the
consultation is to collect further views and expertise on how the current EU rules on
concessions work in practice and how they might need to be improved to further enhance
transparency, to ensure equal opportunities for potential bidders in the award procedures as
well as the necessary legal certainty, but without making the framework too complex or
burdensome. The consultation is aimed at gathering input from contracting authorities,
social partners and the business community. The results of the consultation will feed into an
impact assessment the Commission is currently preparing for the end of 2010, which will
accompany new initiatives in this field. The consultation is closed.

2- The Commission’s impact assessment system

It became the bedrock for the exercise of the Commission’s right of initiative. Impact
assessment is designed to help in structuring and developing policies. It identifies and
assesses the problem at stake and the objectives pursued. It helps to identify the main
options for achieving the objectives and analyses their likely impacts in the economic,
environmental and social fields. It outlines advantages and disadvantages of each option and
examines possible synergies and trade-offs. It consists of a set of logical steps to help
structure the preparation of Commission proposals. By testing the need for intervention at
the EU level and by examining the potential impacts of a range of policy options, it should
lead to improvements and simplification of the regulatory approach of the EU institutions.

It is a process that prepares evidence for political decision-makers on the advantages and
disadvantages of possible policy options by assessing their potential impacts. The results of
this process is to answer a number of questions:

•What is the nature and scale of the problem, how is it evolving, and who is most affected
by it?

•What are the views of the stakeholders concerned?

•Should the Union be involved?

•If so, what objectives should it set to address the problem?

•What are the main policy options for reaching these objectives?

•What are the likely economic, social and environmental impacts of those options?

•How do the main options compare in terms of effectiveness, efficiency and coherence in
solving the problems?

•How could future monitoring and evaluation be organised?

As a general rule, all major policy initiatives and legislative proposals are required to undergo
an impact assessment.

Summary of key analytical steps (See Impact Assessment Guidelines 15 january 2009)

a- Identifying the problem

•Describe the nature and extent of the problem.

•Identify the key players/affected populations.

•Establish the drivers and underlying causes.

•Is the problem in the Union’s remit to act? Does it pass the necessity and value added test?

•Develop a clear baseline scenario, including, where necessary, sensitivity analysis and risk
assessment.

According to the Guidelines, the very first question to put in the context of the Assessment is
« why is the public intervention necessary »?

And the paper answers: « Public intervention is normally justified on the grounds of
market/regulatory failures, or because of equity concerns or a discrepancy between the
fundamental goals of the EU and the existing situation. In practice, the need for intervention
often arises from a combination of these reasons ».

Notion of Market failures

Market prices do not reflect the real costs and benefits to society (‘externalities’)

Insufficient supply of public goods

Missing or weak competition (including abuse of market power)

Missing or incomplete markets

Information failures, such as imperfect information or lack of access toinformation for

decision takers (including consumers and public authorities),unless caused by a regulatory
failure
Notion of Regulatory failure

Inadequately defined property rights/legal framework

Poorly defined targets and objectives

Unintended consequences resulting from public intervention

Regulatory capture of public authorities

Implementation and enforcement failures

Discrepancy between the fundamental goals of the Union and the existing situation,for
example protection of fundamental rights, combating discrimination,safeguarding the
security of citizens, strengthening social cohesion or promotingdistributional justice

b- Define the objectives

•Set objectives that correspond to the problem and its root causes.

•Establish objectives at a number of levels, going from general to specific/operational.

•Ensure that the objectives are coherent with existing EU policies and strategies, such as the
Lisbon and Sustainable Development Strategies, respect for Fundamental Rights as well as
the Commission’s main priorities and proposals.

c- Develop main policy options

•Identify policy options, where appropriate distinguishing between options for content and
options for delivery mechanisms (regulatory/non-regulatory approaches).

•Check the proportionality principle.

•Begin to narrow the range through screening for technical and other constraints, and
measuring against criteria of effectiveness, efficiency and coherence.

•Draw-up a shortlist of potentially valid options for further analysis.

d- Analyze the impacts of the options

• Identify (direct and indirect) economic, social and environmental impacts and how they
occur (causality).•Identify who is affected (including those outside the EU) and in what way.

• Assess the impacts against the baseline in qualitative, quantitative and monetary terms. If
quantification is not possible explain why.

• Identify and assess administrative burden/simplification benefits (or provide a justification

if this is not done).
•Consider the risks and uncertainties in the policy choices, including obstacles to
transposition/compliance.

e- Compare the options

•Weigh-up the positive and negative impacts for each option on the basis of criteria clearly
linked to the objectives.

•Where feasible, display aggregated and disaggregated results.

•Present comparisons between options by categories of impacts or affected stakeholder.

•Identify, where possible and appropriate, a preferred option.

f- Outline policy monitoring and evaluation

•Identify core progress indicators for the key objectives of the possible intervention.

•Provide a broad outline of possible monitoring and evaluation arrangements.

At the end of 2006, the Commission reinforced its impact assessment system significantly by
creating the Impact Assessment Board (IAB). This is an independent body under the
authority of the President of the Commission, composed of high-level Commission officials
operating independently of the departments they come from. It provides advice and control
on methodology and quality, and draws on external expertise when necessary. The board’s
opinions are used when the Commission is making its final decision, and are made public
once the initiative has been adopted.

3- Simplification

A strategy for simplification of Community legislation was adopted by the Commission in

2005. The Commission has reduced the acquis by almost 10% since 2005 – about 1 300 legal
acts and 7 800 pages of the Official Journal have been removed from the Community statute
book. It aims to provide European companies and citizens with a regulatory environment
that meets the highest standards of law making.

→ An Action Program was launched by the Commission in January 2007 setting the
ambitious objective of cutting the administrative burdens stemming from EU legislation by
25% by 2012 (this aim has been endorsed by the European Council).

E) Multilevel governance
According to the OECD, …

The committee of the Regions = white paper on multilevel governance, june 2009

= the initiative to submit its vision of the Community method, based on a mode of
governance which involves local and regional authorities in the formulation and
implementation of Community policies. This vision is based on progress made following the
European Commission’s White Paper on European Governance adopted in 2001 and sets out
the stakes and challenges of shared governance in Europe.

This new WP initiate a consultation process with a view to drawing up a European Union
Charter on multilevel governance, which would establish the principles and methods for
developing a common and shared understanding of European governance.

The Committee of the Regions considers multilevel governance to mean coordinated action
by the European Union, the Member States and local and regional authorities, based on
partnership and aimed at drawing up and implementing EU policies. It leads to responsibility
being shared between the different tiers of government concerned and is underpinned by all
sources of democratic legitimacy and the representative nature of the different players
involved. By means of an integrated approach, it entails the joint participation of the
different tiers of government in the formulation of Community policies and legislation, with
the aid of various mechanisms (consultation, territorial impact analyses, etc.).

Multilevel governance is not simply a question of translating European or national objectives

into local or regional action, but must also be understood as a process for integrating the
objectives of local and regional authorities within the strategies of the European Union.

The implementation of multilevel governance depends on respect for the principle of

subsidiary, which prevents decisions from being restricted to a single tier of government and
which guarantees that policies are conceived and applied at the most appropriate level.

To put multilevel governance into practice, the Committee of the Regions Undertakes to
(selection):

- reinforce, in accordance with its Mission Statement, its status as a political assembly,
its involvement upstream of the decision-making process in the design of European
strategies and Community legislation, monitoring of the principle of subsidiary in the
spirit and tenor of the Treaty of Lisbon, evaluation of the territorial impact of
Community policies, and its role as a facilitator of participatory democracy in Europe

- develop, to this end, its interinstitutional relations with the European Commission
with a view to revising its cooperation agreement, with the European Parliament in
the context of the policy program for the next legislative term and, finally, with the
Council of the European Union in order to harmonize the intergovernmental dynamic
of the political action of local and regional elected representatives in designing and
implementing European decision

- continue its work to get closer to the national parliamentary assemblies and regional
legislative assemblies, particularly within the process of monitoring subsidiarity.

- strengthen political and institutional cooperation with the European Parliament to

ensure that the concerns of citizens are taken into account in the design and
implementation of Community action;
 - strengthen its institutional position as a body of the European Union which is
responsible for the development of local and regional democracy in the framework
of the EU’’s external policy, through electoral observation missions in Europe and
third countries, and reinforce its cooperation to this end with the European
Commission and the Congress of Local and Regional Authorities of the Council of
Europe.

- propose methods and tools to be used at local and regional level in order to bridge
the communication gap and encourage increased coverage by local and regional
media of the impact of EU policies on the daily life of citizens and to boost their
potential for communication, information and mediation on Europe by using new
communication tools, particularly the Web 2.0 instrument.

- examine the opinions on an open method of regionalised coordination and

determine the areas of Community action in which the open method of coordination
would be most appropriate for the local and regional authorities, by considering, in
particular, immigration and integration policy, innovation and education;

- submit proposals to support the use of experimentation at local and regional level in
certain areas of intervention of the European Union, such as the strategy for growth
and jobs, the social agenda, integration policy, innovation policy, cohesion policy,
sustainable development and civil defense.

•        Useful?

Some policies are of a territorial nature that create the need of an involvement of the
territorial authorities (the governments have a tendency to transfer the responsibility for
more and more policies to regional authorities)

The Union is not really efficient in the social sector, and a better involvement of the local
parties to find solutions could help it to reach some success.

Example given by the WP:

The development of an integrated maritime policy for the EU represents one of the rare
examples at European level of an attempted common approach to several sectoral policies
based on a territorial typology. The process, which began with the Green Paper in 2006 and
continued with the Blue Paper, has heavily involved local and regional players interested in
developing an integrated approach to the management of maritime areas: transport,
environment, renewable energies and economic development are some of the sectors
covered by a policy born of the ambition to integrate, in a horizontal manner, the
requirements linked to sustainable development and to the safety of our seas, at last
recognized as natural and economic resources that are crucial to the European continent.

III- European Governance in constitutional context

The Constitutional « situation » of the European Union before the Lisbon Treaty revealed an
apparent lack of democracy.

The European Parliament was weak in the decision making process. This was a major
concern. For example, read the position of the German constitutional Court in 1993:

« Where (the European Union) assumes sovereign tasks and exercises sovereign powers to
carry them out, it is first and foremost for the national peoples of the Members States to
provide democratic control via their national parliaments Nevertheless, as the Community’s
tasks and powers are expanded, so the need grows to add to the democratic legitimacy and
influence imparted through the national parliaments by securing the representation of the
national populations of the Member States in a European Parliament, as a source of
additional democratic underpinning for the policies of the European Union » (case n° 2BvR
2134 and 2159/92, 12 October 1993).

Precisely, the « new european governance » was, at least partly, devoted to resolve this
problem by approaching the legitimacy question under a modern approach.

It was felt that the traditional « input oriented » form of democratic legitimating, in which
the Parliament, expressing the general will, decides, was criticized as analytically weak and
normatively ill adapted (Renaud Dehousse).

- the national decision making process is generally complex, legislation to be adopted

by parliaments are always drafted by the executive, not by the parliaments. And it is
often conditioned by expert advices or by complex negotiations involving
representatives of organized interests.
- it is a model that is not transposable to the Union: in a conglomerate where people’s
primary allegiances tend to remain with their State, the legitimacy of supranational
institutions is hard to gain. Moreover, the adoption of a majoritarian system is
difficult to conceive at the European level, in which the lack of strong collective
identity makes it difficult to beleive that minorities could accept decisions against
their will.

in this context, the improvement of european governance under an « output oriented »

approach seemed to be the way to follow.

But the democratic question, under an input oriented approach, has been central in the
Lisbon Treaty and is now more correctly addressed in the treaties.

Does it render the WP totally out of date?

I do not think so. A lot of actions have been taken by the Commission after the white paper.
And the debate is still going on, for example ate the level of the Comity of the Regions, which
has adopted its own white paper in june 2009 on the Multilevel governance in the EU.

•        Then, the question is to know if the european governance principles proclaimed by the
Commission has been necessary is effectively reinforcing the « constitutionalization » of the
European system?
• Defining Legitimacy

There is a distinction between internal (or social) legitimacy and external (or normative)
legitimacy. The first is the consequence of popular consent to the UE, or of a long history;
the second is concerned with the justifiability of the EU as regards external standards,
including attractiveness, efficacy, its sense of justice, the democratic functioning of its
institutions.

The two notions are inter-related. One cannot work correctly without the other. An old State
has, as a hypothesis, a social legitimacy that is rarely contested (take, for example, Iraq; take,
by contrast, the example of Belgium). But this State will not be considered as legitimate as
regards its governance if it is not recognized a normative legitimacy.

Another approach of legitimacy is consisting in distinguishing, concerning the political entity

which is the EU, the performance legitimacy, the regime legitimacy, and the polity
legitimacy.

→Performance legitimacy has been the major founding rationale for the European project in
1957. Utilitarian justification has been central in the approach of the « founding fathers », as
is seen with the creation of the Carbon and Steel Community, as well as in the fact that the
approach has long been an economic one, on the assumption that economic matters are
better dealt with in common that separately.

Performance legitimacy is nevertheless a weak argument in economic matters. What will be

seen as a good economic performance will be contested as a bad one in the context of social
or environmental preoccupations?

But it is clear that regime and polity considerations have become increasingly important.
→Regime legitimacy means the legitimacy of the overall institutional framework. It is
evaluated as regards the political organization, the role of institutions, their representative
quality, and their mutual relationships.

Indeed, performance legitimacy depends on a large part on the quality of the regime, its
capacity in developing useful policies. But on the reverse, it is also clear is that an entity
which is prerogative gains in terms of regime legitimacy

But there is another point to make here: the more an entity is ambitious as for the scope of
its responsibility, the more its regime legitimacy must be strongly accepted, and stand alone,
independently of its performances. Because in this situation, there is in fact development of
a competition between different entities claiming that they are more legitimate to deal with
such or such question. One could say that the claim of the Committee of the Regions is an
example of this phenomenon. Strikingly, the Committee develops its position on « multilevel
governance » on the two grounds of its « regime » legitimacy and its « performance »
legitimacy.

→Polity legitimacy must now be presented. It is in fact an « umbrella » notion, covering all
the others « branchs » of legitimacy. It depends largely on regime and performance
legitimacy, but not only. Typically, this legitimacy belongs to sovereign States, for which
there is a strong presumption that they have polity legitimacy. A State loses its polity
legitimacy in extraordinary or extreme circumstances (Federal States created by « force »,
like Yugoslavia, USSR; States having an discriminatory behavior as regards parts of their
territories, for example in the Kosovo).

• How an entity (namely, the EU) may gain polity legitimacy?

In fact, there is a polity legitimacy of the EU, but it is more precarious than that of a State.

→ the EU with 27 Member States cannot be seen as built on a very strong cultural identity
forged in common history. There is no common language (but clearly the English language
has been chosen as the working language).

→the legitimacy of the sovereign States renders difficult the emergence of a strong
legitimacy of the EU. The EU is a new and sui generis political entity, and it suffers from the
fact that it is not even possible to name it in terms of an already known figure.

Because the EU is not benefitting of a presumption of polity legitimacy, its legitimacy is far
more reliant on the processes and designs and accomplishments through which
performative legitimacy and regime legitimacy are sought. In a context of permanent
economic crisis, it is quite difficult. One could explain the tentative for the creation of a
« constitution » for the European Union as a tentative to improve polity legitimacy by way of
political symbolism (there is clearly a legitimating potential in constitutionalism), in a context
where effective successful realizations are rare.

• The european governance approach clearly aims at strengthening the regime and
performance legitimacy (RL, PL), in order to strengthen the legitimacy of the Union.

In effect, at the heart of the commitments of the Commission, are the famous five principles
of good governance: openness (RL+PL), participation (RL+PL), accountability (RL+PL),
effectiveness (PL+RL), coherence (PL+RL).

IV- European Governance and the European Law

There is obviously an intrinsic link between Governance and the European Law. It is indeed
the Law that creates the frameworks in which the governance takes place. But governance
can also lead to a change in law.

Having a legal analysis of European Governance means having a look at the different rules
governing the european governance.

We have seen already what could be presented as the soft law of european governance.

Governance is not all about Politics. When trying to understand European Governance; we
need first to understand EU Law, as the EU is first of all a creation of the Law. This appears
especially when studying the “constitutionalisation” of EU Law. The term
“constitutionalisation” indeed designates “a process by which a Treaty (the EC Treaty)
obtained a normative independence vis-a-vis the MS which have created it.” This process
only became possible as so was the will of the ECJ, the guardian of the independence of the
EC Treaty. It is striking to observe what the main developments are directly coming from this
practice:

- the autonomy of the EU. The Court has said repeatedly that the EU legal system
was, in the Court’s opinion, an autonomous legal system different from the domestic legal
systems of its MS and the international legal system. This autonomy was thus proclaimed in
the 1963 ECJ’s case Van Gen and Klaus.

- the proclamation of the primacy of EU Law by the ECJ over all the domestic legal
systems. Very important as every constitution in the world are meant to have primacy over
any other rules. The ECJ considered that EU Law had to be recognised as as important as the
Constitution of the MS.

- Proclamation of the direct effect of the EU Law. Direct effect means especially that
anywhere in the EU, people can benefit from their European rights and enforce them against
their own State.

- Extrapolation made by the ECJ, based on different sources of Law, are designed to
set up the GPL. These were created by the court to have a constitutional character. Some of
them are even called “fundamental principles”.

Development of rules and principles in order to guarantee the protection of

Community rights in the domestic legal system.

Ex : Rules on responsibility were elaborated by the Court; which decided that a State is liable
as to one of its citizen, when this one as suffered a loss due to non-implementation of EU
Law. This rule does not exist in International Law.

Ccl : EU Law is the cornerstone for the “quest” for a greater legitimacy. Some say that
“Europe pretends to be a Community governed by the ROL. This is precisely what tries to
achieve a Constitution.
Part 2: Main Actors of European Governance

I- The European Commission

= The European Commission is a politically independent collegial institution which embodies
and defends the general interests of the European Union. Its virtually exclusive right of
initiative in the field of legislation makes it the driving force of European integration. It
prepares and then implements the legislative instruments adopted by the Council and the
European Parliament in connection with Community policies.

A) Composition
Until recently, the Commission was always made up of two nationals of each of the Member
States with the largest populations and one national of each of the others. In the enlarged
Union, the Commission’s make-up is the focus of considerable debate.

It is a key issue, since it involves deciding on the optimum number of Commissioners needed
to guarantee the legitimacy, collective responsibility and effectiveness of an institution
whose purpose is to represent the general interest in a fully independent way.

With the prospect of future enlargements, it was feared that a large increase in the number
of Commissioners would lead to nationalisation of their function to the detriment of
collective responsibility. Conversely, should the number be limited, the fear was that some
nationalities would not be represented among the Commissioners.

The Treaty of Nice (2000) offered a provisional solution by limiting the number of members
to one Commissioner per Member State as from the start of the term of the 2004-09
Commission. The present European executive, chaired by the former Portuguese prime
minister, José Manuel Barroso, thus consists of 27 Commissioners. They are assisted by
about 24 000 civil servants, most of whom work in Brussels.

The protocol on enlargement annexed to the Treaty of Nice also stipulates that, from the
date on which the first Commission following the date of accession of the 27th Member
State of the Union takes up its duties (i.e. in principle as of November 2009), the number of
Members of the Commission should be less than the number of Member States. The actual
number would then be set by the Council, acting unanimously.

But the Treaty of Lisbon provides that the Commission appointed until October 31st 2014
shall consist of one national of each Member State, including its President and the High
Representative of the Union for Foreign Affairs and Security Policy who shall be one of its
Vice-Presidents. As from November 1st 2014, the Commission shall consist of a number of
members, including its President and High Representative of the Union for Foreign Affairs
and Security Policy, corresponding to two thirds of the number of the member States, unless
the European Council, acting unanimously, decides to alter that number.

The members of the Commission shall be chosen from among the nationals of the Member
States on the basis of a system of strictly equal rotation between the Member States,
reflecting the demographic and geographical range of all the Member States. This system
shall be established unanimously by the European Council in accordance with Article 244 of
the Treaty on the Functioning of the European Union.

Note that Only nationals of Member States may be Members of the Commission (art. 244, a
TFUE and 17 EUT). But that the same article states that “In the performance of these duties,
they shall neither seek nor take instructions from any government or from any other body.
They shall refrain from any action incompatible with their duties. Each Member State
undertakes to respect this principle and not to seek to influence the Members of the
Commission in the performance of their tasks” (EUT, art. 17).The President of the
Commission is chosen by EU governments and endorsed by the European Parliament. The
other commissioners are nominated by their national governments in consultation with the
in-coming President, and must be approved by the Parliament. They do not represent the
governments of their home countries. Instead, each of them has responsibility for a
particular EU policy area.

The President and members of the Commission are appointed for a period of five years,
coinciding with the period for which the European Parliament is elected.

The president plays an important political role. He has to:

« lay down guidelines within which the Commission is to work; decide on the internal
organization of the Commission, ensuring that it acts consistently, efficiently and as a
collegiate body ».

Before Lisbon he could not revoke a member. A collective decision of the members was
necessary. Now the treaty states that  »A member of the Commission shall resign if the
President so requests. The High Representative of the Union for Foreign Affairs and Security
Policy shall resign, in accordance with the procedure set out in Article 18(1), if the President
so requests. »

B) Role
The European Commission represents and upholds the interests of Europe as a whole. It is
independent of national governments.

→Right of initiative
The Commission has a right of initiative enabling it to make proposals on matters covered by
the Treaty. It has exclusive power of initiative in many domains but shares this power with
the Member States in the areas of Common Foreign and Security Policy and as regards
certain Justice and Home Affairs issues. The Commission may be asked by the Council and
the European Parliament to draw up initiatives if they think this is necessary.

With the Lisbon Treaty, In the areas of judicial and police cooperation in criminal matters,
the right of initiative continues to be shared between Member States and the Commission,
but a threshold of at least a quarter of Member States is introduced (i.e. 7 in an EU of 27).

The Treaty also introduces the European Citizen’s Initiative. The relevant provision indicates
that one million citizens coming from a significant number of Member States may take the
initiative of inviting the Commission, within the framework of its powers, to submit any
appropriate proposal on matters where citizens consider that a legal act of the Union is
required for the purpose of implementing the Treaty.

→Implementing EU policies and managing the EU Budget

The European Commission is also the Union’s executive body since it is responsible for
implementing the decisions adopted by the Parliament and the Council.

Practically speaking, the scope of the implementing powers conferred on the Commission by
the Council is specified in each legislative instrument. In this context, the Treaty provides for
the Commission to be assisted by a committee, according to the procedure known as
« comitology ».

Comitology is an aspect of the functioning of the European institutions. It is a system of

implementation committees that control the Commission in the execution of delegated
powers. It has been organized by a series of decisions of the Council dates 1987, 1999, and
now 2006.

Within various committees, the Commission is assisted by representatives from Member

States to adopt the measures for the implementation (« implementing measures ») of EU
legislative instruments. These committees enable the Commission to establish dialogue with
the national administrations before adopting implementing measures. It must be reminded
that the European Parliament has actively claimed a right to participate to the process of
implementation. It is thus true that if the Council can as the legislator keep a eye on the
Commission when it implements the legislations, then it would be quite normal that the EP
could be associated also, as a colegislator. The Parliament has obtained a “droit de veto” in
2006: it has now the right to be associated to the implementation in the cases where the act
that should be implemented has been adopted on the basis of the codecision, and where the
implementing act is of a legislative nature.

On comitology, see Thomas Christiansen and Beatrice Vaccari,  The 2006 Reform of
Comitology:

• Problem Solved or Dispute Postponed?

http://www.eipa.nl/cms/repository/eipascope/Scop06_3_2.pdf
The Commission is also responsible for managing the day-to-day functions of the Union, i.e.
implementing common policies and Community programmes. Budget funds are allocated by
the Commission.

→Enforcing Community law

The European Commission acts as « guardian of the Treaties ». It is therefore required,

together with the Court of Justice of the European Communities, to ensure that EU law is
correctly applied in all the Member States.

f the Commission finds that an EU country is not applying an EU law, it launches a legal
process called the « infringement procedure ». This involves sending that country’s
government an official letter stating the reasons why the Commission considers that the
country in question is infringing EU law and setting its government a deadline for sending the
Commission a detailed reply. If this procedure fails to resolve the problem, the Commission
refers the matter to the Court of Justice which is empowered to impose penalties as its
judgments are binding on the Member States and EU institutions.

→Negotiating international agreements

Under article 218 ECT:

“1.Without prejudice to the specific provisions laid down in Article 207, agreements
between the Union and third countries or international organizations shall be negotiated
and concluded in accordance with the following procedure.

2. The Council shall authorize the opening of negotiations, adopt negotiating directives,
authorize the signing of agreements and conclude them.

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security
Policy where the agreement envisaged relates exclusively or principally to the common
foreign and security policy, shall submit recommendations to the Council, which shall adopt
a decision authorizing the opening of negotiations and, depending on the subject of the
agreement envisaged, nominating the Union negotiator or the head of the Union’s
negotiating team.

4. The Council may address directives to the negotiator and designate a special committee in
consultation with which the negotiations must be conducted.

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing
of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the
agreement
On this basis, the Commission has been mandated by EU Member States to conduct
international negotiations in the key areas of trade (negotiations in the World Trade
Organization) or development assistance (Cotonou Agreement which provides for co-
operation in development assistance and trade between the European Union and countries
in Africa, the Caribbean and the Pacific). But it is the Council which is vested with the treaty
making power.

II- The Council of the European Union

A) Members
Each Member State is represented at the Council, at the level of ministers.

The Council is a single body, but for reasons relating to the organisation of its work, it meets
– according to the subject being discussed – in different « configurations », which are
attended by the Ministers from the Member States and the European Commissioners
responsible for the areas concerned.

In the 1990s there were 22 configurations; this was reduced to 16 in June 2000 and then to
9 in June 2002, in the rules of the Council, confirmed by a Rule of 2006.

There are nine different Council configurations: General Affairs and External Relations,
Economic and Financial Affairs (ECOFIN), Justice and Home Affairs (JHA), Employment, Social
Policy, Health and Consumer Affairs, Competitiveness, Transport, Telecommunications and
Energy, Agriculture and Fisheries, Environment, Education, Youth and Culture.

B) Presidency
The Council is presided for a period of six months (from January to June, and from July to December)
by each Member State in turn, in accordance with a pre-established rote.

The Presidency of the Council plays an essential role in organizing the work of the institution,
particularly in promoting legislative and political decisions. It is responsible for organizing and
chairing all meetings, including the many working groups, and for brokering compromises.

C) Role

In the Treaties, it is called “The Council”; it was the “council of the ministers” before 1993; in
1993, it named itself Council of the European Union. It was established in 1950 and has
always been the main decision-making body of the European Union, but it is now legislating
with the European Parliament.

The Council can be seen as representing European Union Member States, especially when
acting for the European Union, but it is also representing the European Community in itself
because most of its decisions are adopted by a majority of votes, and not by unanimous
vote.
The Council is responsible for decision-making and co-ordination

There are two main avenues for the work of the Council:

→On the one hand, the Council addresses issues over which Member States have decided to
pool their sovereignty and delegate decision-making powers to the EU institutions. These
issues relate to the « Community » domain which covers:

- “Legislation” (directives, regulations): EU legislation is adopted by the Council. It

legislates jointly with the European Parliament in many areas on the basis of
legislative proposals from the Commission.
- Economic policies: the Council co-ordinates the economic policy orientations of the
Member States. This co-ordination is implemented by the economics and finance
ministers who gather within the Economic and Financial Affairs (ECOFIN) Council.
- International agreements: the Council concludes international agreements between
the EU and one or more non-EU (third) countries or international organisations.
These agreements cover trade, co-operation and development or specific subjects
such as textiles, fisheries, transport, and so on.
- The EU budget: the Community’s budget is approved by the Council together with
the European Parliament.

→On the other hand, the Member States co-ordinate on the Council their action without
delegating their powers to it. This is « intergovernmental co-operation » and covers what
relates to the ancient Second and third pillars:

- Common Foreign and Security Policy: the Council defines the EU’s common foreign
and security policy (CFSP). The Member States retain their national sovereignty in
these areas but take full advantage of consultation in the Council.
- Police and judicial co-operation: the Council co-ordinates co-operation in criminal
matters between judicial bodies and national police forces.

D) The taking of the decisions

In a great majority of cases, under the ancient first pillar, the Council takes decisions on a
proposal from the European Commission and in association with the European Parliament,
either through the consultation procedure (e.g. in the areas of agriculture, judicial and police
cooperation, and taxation) or through co decision (e.g. the internal market).

The Commission is not the sole responsible for the proposals under the ancient second
pillar(Common foreign and security policy):

“The Council may request the Commission to submit to it any appropriate proposals relating
to the common foreign and security policy to ensure the implementation of a joint action”
(art. 14, 4. EUT).
It is the same with the ancient third pillar (Police and Judicial cooperation in criminal
matters) where the Council : “act[s] unanimously on the initiative of any Member State or of
the Commission” (art. 34, 2., EUT).

Council decisions are prepared by a structure of some 250 working parties and committees
comprising delegates from the Member States. They resolve technical issues and forward
the dossier to the Permanent Representatives Committee (Coreper), made up of the
Member States’ ambassadors to the European Union, which ensures consistency in the work
and resolves technical-political questions before submitting the dossier to the Council.

There are three types of vote depending on the Treaty provisions for the subject being dealt
with: simple majority (for procedural decisions), qualified majority (used for many decisions
concerning the internal market, economic affairs and trade) and unanimity (for foreign
policy, defence, judicial and police cooperation, and taxation).

A qualified majority will be reached if the following two conditions are met:

- if a majority of Member States approve (in some cases a two-thirds majority);

- a minimum of 255 votes is cast in favour of the proposal, out of a total of 345 votes.

In addition, a Member State may ask for confirmation that the votes in favor represent at
least 62% of the total population of the Union. If this is found not to be the case, the
decision will not be adopted.

Distribution of votes for each Member State

- Germany, France, Italy, United Kingdom 29

- Spain, Poland 27
- Romania 14
- Netherlands 13
- Belgium, Czech Republic, Greece, Hungary, Portugal 12
- Austria, Bulgaria, Sweden 10
- Denmark, Ireland, Lithuania, Slovakia, Finland 7
- Cyprus, Estonia, Latvia, Luxembourg, Slovenia 4
- Malta 3

= TOTAL 345

III- The European Parliament

The European Parliament is the only directly-elected body of the European Union.

A) Members
Since 1975, the representatives are elected for a term of five years. by direct universal
suffrage
Each Member State decides on the form its election will take, but follows identical
democratic rules: a voting age of 18, equality of the sexes and a secret ballot. Moreover,
european elections are already governed by a number of common principles : direct
universal suffrage, proportional representation and a five-year renewable term.

Initially composed of 142 members, the European Parliament is now made up of 736
Members elected in the 27 Member States of the enlarged European Union.

Article 14 TFEU

2.The European Parliament shall be composed of representatives of the Union’s citizens.

They shall not exceed seven hundred and fifty in number, plus the President. Representation
of citizens shall be degressively proportional, with a minimum threshold of six members per
Member State. No Member State shall be allocated more than ninety-six seats.

There is a large margin of appreciation left to the MS as to the nomination of the candidates,
but a series of minimum conditions have been set up :

- candidates must be over 21

- secret ballot must take place during the elections

- equality must be applied between all of the candidates.

The seats are shared out proportionally to the importance of the population of each MS.
Each of them has a number of seats specified by the LT. Until the LT indeed, the number of
seats had to be proportionate to the population, but under the Treaty, the “degressive
proportionality rule” will be applied. This principle establishes that passing a certain amount
of population, the proportionality rule will be degressive.

PB : Some argue that this rule is not democratic.

Most of the MEPs spend their time between Brussels, where the different Committees of
MEPs work, and Strasbourg, where the Parliament is based (12 plenary sessions take place
every year, 1/month).

The MEPs are gathered within the Plt by political opinion, not by nationality. At least 1/5 of
each MS must be represented within each group. One of the specific requirement is for the
members not to belong to more than 1 group.

The different political groups are :

- The European people party (=Republican Right)

- The Christian democrat (= UMP + Modem)

- The Socialists
 - The Liberal and Democrats for Europe ( = LibDem)

- The Union for Europe of the Nations (= Far right)

- The Greens

- The Confedral Group of European Left (= Far left).

The President, prior to the LT, was appointed by the Council, after the MEPs’ agreement.
Then, the MS appointed the Commissioners, and the College of Commissioners would finally
endorse the Parliament.

Some changes will be brought by the LT :

- the President will be elected by the Plt, even if the candidate will still be proposed by
the Council.

- the Plt will invest all the commissioners, including the High Responsible for Foreign
Affairs.

An annual report is published every year by, as well as a report on the implementation of the
budget. This allows for a control of the Commission over the Plt, questions can thus be
addressed to the Commission alog with the Council.

Thanks to the concept of “legitimate expectation”, the interpretation given by the

Commission can be relied upon. This means every time the Com gives an interpretation to a
measure, it would not be allowed to give subsequently an other interpretation to the same
measure in order to sanction an action.

The Plt can force the College of Commissioners, as a whole, to resign but it cannot force an
individual to do so.

B) Political initiatives
The Plt has a power of political initiative and can ask the Commission to submit its proposition to the
Council.

Under the current framework, the Commission is the main organ of proposal however. The Plt
regularly invites the Com and the Council to develop policies or initiates new ones. It constitutes, in
reality, not a real power of initiatives but a power to provoke an initiative.

At the beginning of the EU history, the Plt had no decision power at all. Since the introduction of the
co-decision mechanism, things have changed a lot. According to the current procedure, no decision
can be taken without the agreement of the Plt (Maastricht Treaty). This procedure was extended
since and became more effective since the Amsterdam Treaty. Now, the Plt will be allowed to adopt
new directives, regulations…
Under the LT, the co-decision between the Council and the Plt is substantially extended and will be
the “ordinary legislative procedure”, a more democratic procedure indeed.

Ex : Under the LT, the ordinary legi procedure will be the rule under the current 3 rd pillar (Justice and
Internal Affairs).

The Plt will otherwise be asked to give its assent or deliver advisory opinions.

C) Budgetary power
The EP and the Council constituted the Union budgetary power, prior to the LT. The compulsory
expenditures are drafted at least by the Council. Ex : agricultural expenditures and expenditures
linked to international agreements. Non-compulsory expenditures policies are dealt with by the Plt
and the Council. Both of them must then agree with the global limit of these expenditures.

Under the LT, the new budgetary procedure ensures equal power between the EP and the Council to
agree on the whole budget (no more distinction between compulsory and non-compulsory
expenditures). The “multi-annual financial framework” has to be agreed by the Plt.

NB : With a Plt deciding for the budget, the future of the Common Agricultural Policy (CAP) is at risk,
as there is more political lobbying within the Plt than within the Council.

Art 12 EC Treaty (no change under LT):”Save as otherwise provided by this treaty, the EP must decide
by absolute vote cast of its members.”

IV- The European Court of Justice (ECJ)

The Court of Justice is composed of 27 Judges and eight Advocates General. The Judges and
Advocates General are appointed by common accord of the governments of the Member
States after consultation of a panel responsible for giving an opinion on prospective
candidates' suitability to perform the duties concerned. They are appointed for a term of
office of six years, which is renewable. They are chosen from among individuals whose
independence is beyond doubt and who possess the qualifications required for
appointment, in their respective countries, to the highest judicial offices, or who are of
recognised competence. They embodied the voice of their own legal culture.

The German culture and the French Conseil d’Etat inspired a lot the ECJ.

The judges elect one of them as the President of the Court for 3 years. The President directs
the work of the Court and presides at hearings and deliberations of the full Court or the
Grand Chamber.

The AG vote heir conclusions and then propose them to the Court. These conclusions are not
binding. They all are independent as well.
The Court may sit as a full court, in a Grand Chamber of 13 Judges or in Chambers of three or
five Judges. The Court sits as a full court in the particular cases prescribed by the Statute of
the Court (including proceedings to dismiss the European Ombudsman or a Member of the
European Commission who has failed to fulfil his or her obligations) and where the Court
considers that a case is of exceptional importance.

It sits in a Grand Chamber when a Member State or an institution which is a party to the
proceedings so requests, and in particularly complex or important cases.

Other cases are heard by Chambers of three or five Judges. The Presidents of the Chambers
of five Judges are elected for three years, and those of the Chambers of three Judges for one
year.

The Statute of the Court was adopted in March 2008 and described the way the Court
works.

The Ombudsman: He is nominated by the European Parliament and can be dismissed

following a judgment from the Court, sitting in full court.

The ECJ will become the “Court of Justice of the European Union” after the entering into
force of the LT. It means that the scope of review will now goes through the all Union, not
only the economic affairs.

The Court has also be given a clearly defined jurisdiction under the LT. At the moment, the
jurisdiction of the Ct cannot review all aspects of EU law, this would be possible under the
LT.

The ECJ cooperate with all the MS domestic courts, which are the ordinary courts on EU law
matters. These courts can submit questions to the ECJ in order to interpret well EU principles
of law. This mechanism is meant to prevent divergence of interpretation. Most of the time,
the ECJ only needs to clarify the law.

Usually, any act adopted by the Commission can be challenged through a cancellation
action.

Reference for preliminary rulings to the court (English terminology for “preliminary rulings)
is a very common practice. One of the interesting question is who exactly has a right to
submit a question to the Ct?

Are the independent administrative authorities, specific bodies deriving from

administration able to do so? The ECJ held that in order for such a body to submit a
question, it has to be a jurisdiction.
“Jurisdiction”: defined as body completely independent from the parties to the dispute. It
must deal with the cases at law + Its decision must be compulsory + Its members must be
independent.

Most of the time, IAA have no compulsory power.

Ex : Greek competent body submit a question to the ct which never was answered as the
body was not independent.

“Médiateur du crédit français” should not submit any question aw well as cannot adopt
compulsory measures.

When the Court has given a ruling on a question of interpretation of the law, the same
question cannot be submitted once again. It is then considered indeed as part of the EU case
law. However, this can happen sometimes. (ex : online games – Portuguese League case).

* Action for failure to fulfil an obligation

Allowed the Court to determine whether or not a MS fulfilled its obligations. The action will
be brought in front of the Ct, if it does not lead to the MS stopping its infringement, shall
lead to the victim state bringing an action for breach of obligation.

If an individual is the victim, he could not be entitled to bring an action in front of the ECJ. He
would have to do so in front of the domestic courts.

Ex : France state aids as to electricity = failure to fulfil an obligation.

Prior to ECJ action for failure to fulfil an obligation, negotiations with the Commission would
take place. A State can bring an action against another State in front of the ECJ.

* Action for annulment

There, a State would seek the annulment of a directive adopted by an EU institution. The ECJ
has exclusive jurisdiction on action brought by a MS against the Council or the Commission.
It is the same for an action brought by an institution against another one.

Ex : When the Council, when adopting a measure, does not respect the rights of the Plt.

The CFI has jurisdiction for any other kind of actions. Usually deals with claim brought by
individuals while ECJ would deal with claims brought by States.

The formalism is very important in front of the ECJ, as in front of any other international
courts, as it is dealing with the sovereignty of States.

* Action for failure to act

In some cases, the EU institutions have an obligation to do something. If they don’t, this will
be considered as an unlawful action.
A non-judicial preliminary procedure has to be achieved prior for the plaintiff to be able to
bring the case in front of the Ct.

Jurisdiction to deal with these cases is shared between the ECJ and the CFI tsuch as for
annulment actions  States and individuals).

As for the EU institutions, it will be very difficult however to prove that an institution had a
duty to act.

* Appeals

The procedure is the same as appeals in France. The only difference is that there is only one
court of appeal in the EU.

It is allowed in front of the ECJ after a first instance judgment in front of the CFI.

* Reviews

Decisions on appeal against a decision of an EU institution may be reviewed by the CFI.

There is a 3rd court within the EU legal system : the European Union Civil Servants Ct. This ct
takes decisions that can only be reviewed in front of the CFI. It is the internal court designed
for EU institution workers.

Will the ECJ still be “dynamic” after the entering into force of the LT?

Yes, but in another way as it is now. The Ct would probably have to elaborate new principles;
as it did in the past, but it will still have an important interpretation role.

V- The Court of Auditors

It was set up in 1975 and recognized as an EU instit in 1991. It is based in Luxembourg
where economical activities are very developped. The Ct is not a development of the other
institutions however (especially the ECJ). It is an independent organ reviewing EU financial
management and guardian of financial interests of EU citizens (protect public finances).

Despite its name of ‘court”, it has no judicial function. It is not a real court rather a
professional investigatory audit agency.

In corporate law, the companies that are quoted to the Stock Exchenge must publish their
accounts in order for private acounters to supervise them. The Ct of auditors does the same
with public finances.

One of its first function is to review whether the EU budget has been correctly implemented.
In so doing, the Ct checks all documents relating to financila activities of the EU and
investigate “on the spot”.
The ct can also make investigation within the MS, at least those receiving subsidies from the
EU.

The ct tries to rely on all of domestic court of auditors ( in France : Cour des Comptes).

The cts takes decision as well. They can be the basis taken by other institutions.

The Ct can use a devoted agency to make investigation : the anti-fraud agency (OLAF),
composed of a member from each MS.

The Ct is supposed to be a technical body, not a political one.

The ct is assisted by a secretary general, who has an important function and publishes
reports.

In one occasion, a report had a very important impact. The Plt at that moment had refused
to adpot a budget proposed by the Commission as a year before a report of auditors showed
bad financial management. It lead to the resignation of the Santer Commission.

The auditors assit the Council in implementing the budget of the EU.

There is not much case law as to the court of auditors in front of the ECJ. Nearly all cases
concerning the ct of auditors are civil servants cases where a civil servant is unhappy with
the conditions of work within the Ct of auditors. There 800 CS working for the Ct of auditors
while there are only 700 working for the whole WTO.

An individual once complained against the Court of auditors after being presented in a
report as having acted illegaly.

VI- Advisory
A) The Social and Economic Committee

It was set up by the Treaty of Rome in 1957.

// With the International Labour Organisation (ILO) created in 1990s.

Fact that economic and social committees within UN and economic and social within EU
showed a kind of trend for taking into account these considerations.

Its task is to advise the main instructions of the EU.

Composition: Its 344 members are appointed by the Council for 4 years on the basis of
recommendation from MS based on domestic civil society concerns. NB : 24 members for
France.

It is composed of 3 groups : employers / employees / various interests (members of

economic and social life not represented in the first 2 groups = consumers and
environmentalists, family associations, disabled people association). The 2 first groups
represents economic pattern of EU while the 3rd represents social consideration.

Members only travel to Brussels when needed, they are not paid but they are granted travel
allowances.

Role : It is only a consultative body, consultation are compulsory as to some matters,

sometimes optional. Sometimes the Commission can deliver opinion on its own initiative and
promote it.

Two complementary tasks :

- body involving a portion of civil society within the DM process of the EU. Helps EU getting
more legitimate.

- creates a framework of organisation representing civil society in countries where it is not of

common practice.

+ Supposed to help civil societies of countries applying to be members of the EU and close
countries (ex : Africa – Caribbean countries – Pacific countries). Need to expand the
European model within these countries.

As to adoption of opinions, reports are prepared by a “Rapporteut” + a study group. The size
of these groups is not predetermined (from 3 to 18 members). The Rapporteur has an
important role, he is indeed the one who proposed opinions.

The reports are adopted by simple majority during plenary session. They are then proposed
to the Council and the Plt and published the EU official journal.

It is important for the Economic and Social Committee to be related to other european civil
society networks. The objective is to create a dialogue with these groups to reach a common
vision. Ex : Paneuropean association. (?)

B) The Committee of the Regions

Political assembly gives to local administration a voice at the level of the EU. It was supposed
to take the power within the EU = first threat to the EU.

It was established in 1994 and was supposed to address two issues :

- bring EU closer to citizens, and

- involve the elected local government in the reconstruction tendency of the same regions to
try to get individuals not uncommon (ex : Corsica – DOM TOM).

The threat of regional fight for independence is real within the EU. That’s why the
Committee was created.
Today, the Committee of Regions is very active as a go-between EU and regions.

Members: Representatives (334) are responsible in front of the Council. Each MS nominate
the representatives. Delegation must reflect political and regional balance.

Four political groups :

- Socialist

- Euro people party

- Labours and Democrats

- Union for a Europe of the Nations.

Role: It is an advisory body. The Treaty requires the Commission and the Council to consult
the Committee when a decision shall have regional consequences.

The Amsterdam Treaty had another five areas : employment / social policy / environment /
education / travelling.

 Role in the DM : more and more important.

The institutions can submit questions to the Committee as to other subject in order to
generate a debate within the EU not already held.

- Subsidiarity : the Committee is attached to that principle. The Committee will check that
during DM process, that rule is always respected.

- Proximity : composed by people who are closed to regions.

- Partnership : The Committee is not supposed to strengthen the autonomy of the regions
but to set up a DM process associating as good as can be global and regional interests.

C) The Ombudsman
The creation of this organ comes from the English and Spanish (“Defensor del pueblo”) legal
traditions mainly.

It is a recent EU institution created after the TEU (1992) and is closely linked to the concept
of “citizenship” which appeared at the time. The Ombudsman gives indeed the possibility to
the citizens to complain about EU institutions if they “mal-administered” the Union ( = bad
governance). An action can be brought against any EU institution indeed, except the ECJ in
its jurisdictional function due to the principle of separation of powers (not always respected
however), as the Ombudsman is nominated by the EU Plt.
Appointment : it is nominated by the EU Plt after being elected (Article 227 TEU). It is thus
an organ of the EU Plt.

He can be elected twice and is independent in the course of its activities from the EU and its
MS.

He shall be dismissed by the ECJ at the request of the EU Plt if he no longer fulfils the
conditions for the exercise of its duties or if he misconducts.

Function : The Ombudsman conducts inquiries when they are based on grounds of review
that fall under its powers and if he fells that the enquiry is necessary (= decides on his own
that enquiry has to be held), or if an individual or a moral entity asked him to do so.

He would reject complaints if a legal procedure relating to the same facts is going on at the
same moment.

He has to establish the extent of the “mal-administration”. Thus, he has to check whether
the EU institutions act accordingly to good governance.

Ex of violation amounting to mal-admin : discrimination ,abuse of power, violation of

fundamental rights, refusal to deliver information (violation if there is a “duty to inform” at
stake), breach of “reasonable delay” requirement

The Ombudsman (OM) can investigate within the EU institutions and bodies only, not within
the national administration of the MS. The activities of the national courts or the national
ombudsman do not fall under its jurisdiction. The OM is not an appellate body reviewing the
decisions taken by national institutions, bodies and organs.

When the OM establishes a maladministration, he will informs the concerned institutions so

that it can stop the violation. The individuals must be informed of the outcome of the
enquiries. Reports of these investigations are then published.

Usually, the institution stops the maladministration pointed out by the OM as it is politically
essential for it to show that it is acting consistently with the principle of good governance.

Qu : Can the OM be subjected to a legal procedure from an individual?

 ECJ, 3 march 2004 : The plaintiff (plt) argued that his summons by the Council to an oral
examination could not be postponed, even if he was sick at the time of the summons,
amounted to maladministration and infringed his rights. He then asked the OM to review the
decision of the Council. The OM stated that the postponement of this examination could not
be possible on the basis of fairness consideration (at to other candidates, would not be fair
to settle a new rule), even if the pltf was sick at the time. He thus rejected the claim.
The pltf then brought an action in front of the ECJ against the OM and the EU Plt for
compensation following the prejudice he suffered (about 2 million €). The ECJ ascertained
whether or not a claim could be brought against a decision taken by the OM.

Pbfor pltf : OM has no power to adopt binding measure.

NB : Delay for bringing a claim in front of the ECJ (2 months) had lapsed since decision of the
Council. Thus, the action against the OM was the only one left to the pltf.

The ECJ held that the action for damages following the OM failure to answer properly a
question submitted to him was admissible in principle on the basis of the EC “non
contractual liability”.

However, the Court stated that it would be exceptional to consider that the OM engaged the
EC’s liability, as the OM has a great margin of appreciation. The Court thus dismissed the
case.

NB : This means nevertheless that even if the OM has no compulsory power, it could engage
the responsibility of the EC.

D) The European Central Bank (ECB)

The ECB was established on 1st July 1998.

Since the LT, the ECB is a European institution while it was only an organ prior to the LT and
was independent from the EU institutions. However, national Central Banks are not
considered as institutions of the EU. The fact that the ECB is an institution will probably
make it more open to what will say the other institutions; it will probably give more weight
while setting up its policies to the general principles of the EU. However, it still has its own
objectives and is still independent, even as an EU institution. The second consequence: this
institution is that it can be now liable to the prejudice it causes in front of the ECJ. They will
now be cases in front of the ECJ involving the ECB.

It is the main actor of the economic and monetary union (article 8 TEU). Its primary objective
is to maintain price stability by defining the monetary policy of the "euro area" so as to
preserve the value of the euro.

Article 282 TEU : “The European system of central bank is composed of the ECB and the
national central banks.” = European system of central banks (ESCB).

 The ESCB includes EUCB ( directed by J.C. Trichet) + 27 national CB (even when their
currency is not the Euro : Specific status or derogation are given to them). These countries,
not member of the “Euro zone” (Today, 16 States are members of the Euro zone.), keep their
own currency and their national CB keep their sovereignty on these currencies. They di not
take part to the core activities of the Economic and Monetary Union. However, whether or
not a county is a member of the Euro zone, it is a member of the EU.
NB : The Economic and Monetary Union (EMU), as provided for in Title VII of the Treaty
establishing the European Community, involves close coordination of the economic policies
of the Member States at European level and requires Member States to avoid excessive
budget deficits (“Stability and Growth Pact”). EMU has led to the introduction of a single
currency: the euro.

Euro exchange rate mechanism provides for an exchange rate policy of all the currencies
within the EU.

The General Council of the ECB is the place where the policies are adopted. The normative
text of the ESCB is not only the TEU but also includes the Statute of the ESCB (1992) and the
ECB, plus its protocol (2003). This Protocol sets out the responsibilities of the decision-
making bodies of the European Central Bank, which manages the European System of
Central Banks (ESCB). It also explains the aims and tasks of the ESCB. The Protocol forms part
of the Maastricht Treaty, which was annexed to the Treaty establishing the European
Community and which provides the legal basis for the European Central Bank (ECB) and the
European System of Central Banks (ESCB).

The TEU endorses the ESCB with the power to perform the main supervising actions.

Def : The European System of Central Banks (ESCB)

The ESCB is made up of the European Central Bank and the national central banks of the
Member States, irrespective of whether they have adopted the euro. The ESCB's principal
aim is to maintain price stability by way of:

defining and implementing the monetary policy of the euro area;

conducting foreign-exchange operations;

holding and managing official foreign-exchange reserves of the countries of the euro area;

promoting the smooth operation of payment systems.

The monetary functions and operations of the ESCB involve in particular:

the opening of accounts by the ECB and the national central banks for credit institutions,
public entities and other market participants;

open market and credit operations;

the requirement on credit institutions established in Member States to hold minimum

reserves;

operations with public entities;

making regulations to ensure efficient and sound clearing and payment systems;
cooperation with the central banks and credit institutions of third countries and with
international organisations.

The European Central Bank (ECB)

The European Central Bank manages the ESCB. The ECB's three decision-making bodies are
the Governing Council, the Executive Board and the General Council. It was established in
June 1998. Its civil servants come from the all Union. Its main objective is to conduct the
monetary policy and control the other CB of the EU. It is responsible for everything
concerning the Euro done by its own and by the national CB. The ECB is responsible for all
decisions concerning the decisions to create banks notes and coins. The treaty expressly
states that the ECB has a legal personality, and it is thus a special institution as the treaty
does not expressly states it for any other EU institutions. This LP is surely due to the need for
independence of this institution, either from MS and EU institutions.

This independence was hardly defended by Germany prior to the creation of the institution.
For Germany, the independence of the Euro was compulsory. France argued that currency
had to be a “tool” in international law by opposition, a tool for European policies indeed.
France defended the “currency dumping practice”, a practice the USA now relied upon. (Ex :
Boeing v. Airbus).

The ECB has in reality a “functional independence”, making it possible for the bank to do
what has to be done without needed the help of any other institutions.

According to article 140 TEU: “when exercising the powers and carrying out tasks and duty
conferred upon it by TEU, neither the ECB nor a national CB, nor any members of MS, shall
take instructions... The community institutions and bodies, plus MS, shall respect this
independence...” The principle of institutional independence is directed to not only the ECB
itself but also to the national CB.

There is a personal independence that must be guaranteed as well. The CS of the ECB must
be personally guaranteed independence in exercising their functions. Thus, their time at
offrice shall be sufficiently long and the possible of renewals of their seats shall be
considered for preventing any influence. They sit for 5 years within the ECB, and 8 years
renewable for members of the executive of the national CB. The members of the DM bodies
can not be dismissed for any other motives than those providing for within the treaty.

There is also financial independence, close to functional independence indeed. It is said

within treaty that ECB and national CB must be able to be provided with enough and
autonomously use their assets. The ECB has its own budget, independent from these of any
other institutions. The members of the national CB must be provided with enough money to
achieve well their missions.

The ECB is composed of 3 DM bodies :

-the Governing council : main DM body of the Eurosystem. Contains all the members of the
Executive board + the Governors or directors of the national CB of the Euro area. Meets
twice a month and decides what must be done with the interest rates.

The new Treaty states that the number of governors will be up to 21, they will be a turnover
of governors within the Council (as they already are 60). System, even if can seem unequal,
will provide for a more efficient mechanism of DM.

-the Executive Board (= bord of directors).Is composed of the Pst, the vice-Rst and 4 other
members all of them appointed through indifividuals recognised to have sufficient
experience in economic and financial matters. They are appointed by common agreement of
the Euro Council, upon recommendation of the Council, inconsultation with the Euro plt and
the governing council of the ECB. Article 283 Treaty on the functioning of the Union :
unanimity procedure in the Euro Council will be replaced by qualified majority. Term of
office is 8-years non renewable. Any members of the MS can be members of the Executive
Board. They are 60.

-the General Council (composed of the 27 Members of the EU) : composed of the Pst and
vice-Pst of the ECB and Governors of the natio CB of the 27 MS. Usually meets once every
three months. Would exist as long as Euro is not adopted as the only currency within the all
EU.

The Governing Council

This is the highest decision-making body and comprises the six members of the Executive
Board and the twelve central bank governors of the Member States that have adopted the
euro. Each member has one vote. Its main task consists, in particular, of formulating the
monetary policy for the euro area. To this end, the Governing Council may set interest rates
at which commercial banks can obtain money from their central bank. This has an indirect
effect on interest rates throughout the euro-area economy: the interest rates at which the
banks themselves can obtain money obviously have an influence on the loans they grant or
on the remuneration on deposits by investors. The Protocol also sets out provisions for
maintaining the Governing Council's capacity for efficient decision-making in an enlarged
euro area, irrespective of the number of Member States that adopt the euro. These
amendments were introduced by Council Decision (EC) No 223/2003, which relates to a
rotation system.

The Executive Board

The Executive Board comprises the President and Vice-President of the ECB and four other
members. They are appointed by common accord of the countries participating in the euro
area at the level of the Heads of State or of Government. The Executive Board implements
the monetary policy as defined by the Governing Council and gives the necessary
instructions to the national central banks. It also prepares meetings of the Governing Council
and is responsible for the day-to-day management of the ECB.

The General Council

The General Council is the third decision-making body of the ECB. It comprises the President
and Vice-President of the ECB and the central bank governors of all the EU Member States. It
thus brings together the central bank governors of Member States which have introduced
the euro and of those which have not. The President of the Council of the European Union
and one member of the Commission can attend ECB General Council meetings but do not
have the right to vote. The responsibilities of the General Council are listed in full in Article
47 of this Protocol. In particular, it:

- carries out the transitional tasks of the ECB;

- contributes to the advisory functions;

- collects statistical information, contributes to the reporting activities of the ECB, etc.

Responsibilities of the ECB

To ensure price stability and maintain a realistic economic policy, the ECB's tasks are:

- to issue bank notes and coins. Under the EC Treaty , the ECB is the only body entitled to
authorise the issue of bank notes in the euro area. Member States can issue coins, but the
amount must be authorised by the ECB beforehand;

- to cooperate at international and European level. In the field of international cooperation,

the ECB decides how the ESCB is represented. Within its range of responsibilities, it
establishes working relations with several institutions, entities and suitable third bodies
within the EU and worldwide; However, within the IMF for ex, ECB is not represented as
such within the system, but represents the national CB of the MS.

- to stabilize the financial system and monitor the banking sector. The Eurosystem
contributes to the smooth conduct of policies pursued by the competent authorities in
connection with the prudential supervision of credit institutions and the stability of the
financial system.

Financial and general provisions

The Protocol lays down several financial provisions for the ESCB relating to financial
accounts, audits, the capital of the ECB, the key for capital subscription, the transfers of
foreign-reserve assets to the ECB, etc.
The ECB is authorized to make regulations (directly applicable in all Member States) or to
take decisions (compulsory for the addressee) necessary for carrying out the tasks provided
for in the Protocol. It can also make recommendations and deliver opinions (which are not
legally binding).

The acts or omissions of the ECB are open to judicial review by the Court of Justice of the
European Communities (CJEC). At national level, disputes between the ECB and its creditors,
debtors or any other person are decided by the courts in the Member States, except where
jurisdiction has been conferred upon the CJEC. The ECB is subject to the liability regime
provided for in Article 288 of the Treaty establishing the European Community. Lastly, the
ECB enjoys in the territories of the Member States such privileges and immunities as are
necessary for the performance of its tasks, under the conditions laid down in the Protocol on
the Privileges and Immunities of the European Communities.

The seat of the ECB was established in Frankfurt (Germany) by common accord of the
Member States at the level of the Heads of State or of Government.

The National CB

They are independent as well.

The national CB and the ECB are closely link through the Eurosystem. The ES can thus be
seen as a “federal” body of CB, where any CB would constitute a “federate” bank.

The main objectives of the national CB are :

- to achieve tasks concerning the Euro policy. Responsible for implementing the monetary
policy of the Euro area.

Ex de moyens permettant d’influer sur la monnaire : Système de contrôle des changes /

limitation des dépenses (des fonctionnaires, des administrations, des salaires minimaux, par
ce biais on limite échanges, donc dévaluation de la monnaie interne à l’international) =
« politique de rigueur » (souvent imposée par le FMI). Politique peut être renforcée par des
taux d’intérêts élevés. Ces taux sont fixés à partir du taux directeur de la banque centrale

Technique d’intervention directe sur le Marché peut également être mise en œuvre  la BC
va racheter sa propre monnaie contre de la devise étrangère, en vendant en échange une
autre monnaie.

Plus il y a, par exemple, d’euros sur le marché, plus la pression financière sur l’euro sera
forte, et donc, plus la dévaluation sera proche (car on prend la quantité totale d’euro sur le
marché par rapport, par ex, à la quantité totale de dollar pour fixer les taux de change.

There are thus 2 main tools for the CB to achieve their missions : action on exchange rates
and on interest rates. At the moment, action on interest rates are used by the ECB.
 - The ESCB can take measures to facilitate payments within the Euro zone. Recently,
France transposed the Directive on the payments services in November. This directive opens
up the market of payment services at the level of the EU market, to any companies which
did obtain a license to offer that kind of services.

-The ESCB manages the foreign reserves, to ensure that the ECB has sufficient
liquidity to take action on the exchange market. This area is most usually managed by
national CB today. These national CB act on the exchange market upon instructions of the
ECB. There is thus a sharing of the DM process between the national CB and the ECB. Under
a certain limit, the intervention of the national CB on the exchange market is free. When this
limit is reached, the ECB shall be consulted prior to the taking of any decisions.

-Advisory functions of the ECB : it must be consulted as to some decisions according

to Treaty on the functioning of the EU. This function has been widened by the LT.

To sum up, the Eurosystem includes the ECB and the national central banks of the Member
States which have adopted the single currency. As long as there are Member States of the
European Union that have not adopted the euro, the Eurosystem will co-exist alongside
them. The EC Treaty does not use this expression, but talks about the European System of
Central Banks (ESCB) on the basis that all the Member States of the Union would adopt the
euro.

The Eurosystem (ES) is a subdivision of the ESCB. The national CB of countries members of
the “euro zone” are members of the ES.With the entry into force of the Lisbon Treaty, it
became a legal entity according to Article 1 of the Treaty on the functioning og the EU : “the
ECB and the national CB of those members states whose currency is the Euro, are composing
the Eurosystem.”

Since the LT entered into force, 2 treaties now apply within the EU : the TEU (dealing with
institutional matters) and the Trety on the functioning of the EU (dealing with substantial
matters).

VII- The Civil Society

During the History, Civil Society began to get a voice through the 1960s social movements
(Fight for rights of black people, women...). An important range of activists groups grew up
since (environemental groups, HR campaigning), became, instead of being mere
campaigners, more and more involved in the DM process.
The Civil Society of the developing countries is kind of constructing by some international
organizations.

Ex : IMF conditioning granting of debt relief to the improvement of quality of education,

health... The IMF then imposed that the reports adopted by the governments of developing
countries showing these improvements have to be agreed upon by representatives of civil
societies.

(Move from “Washington consensus” to taking into account of civil societies asprirations.)

Ex with the Word Bank: co-financing of oil exploitation infrastructure within the Chad.
Conditions were to receive agreement, or at least sign of agreement, from the Chad civil
society. There were oppositions indeed from environmental defenders and farmers. There is
a mechanism within the WB of consultations with civil societies.

It is not so unusual to talk about civil societies within the EU, as it is represented within the
EU institutions. Ex : Economic and Social Committee.

At the level of the EU, CS seems to be already in the system. However, due to legitimacy
crisis of the EU institutions in the beg of the 21st century, the debate on governance was set
up, and meant to deal with the place of civil societies within the EU.

Today, within the EU 4 ways for the CS to have a word through :

EU institutions, NGOs, Lobbying groups, Individuals (Ex: when the Commission is willing to
draft a new directive, publishes a white or green paper on the internet. Individuals can now
directly give their opinions).

Role and general definition of “Civil Society”

The interaction between the EU and the CS takes various forms, through the EU institutions,
other EU advisory organs and less formalised direct contacts. The role of these “less
formalised direct contact” are quite clearly described by European texts.

According to the White paper of 2001, the Commission is praising for more openness of the
EU, through the involvement of the civil society. “CS plays an important role in giving voice
to the concerns of the citizens and delivering services that the people need. It is a chance to
have a civil society expressing itself and to offer them a channel to express itself.”

But no precisions on how to implement these propositions in fact.

Other documents : “Towards a reform culture of consultation and dialogue : General

principles and minimum standards for consultation of interested parties by the
Commission ”, 2002.

Paper states that the main problem is that there is no definition at the time of what is the
‘civil society”. According to the Commission, “refers to a range of actors which include : the
labour market players (trade union), organization representing social and economic players
(ex : consumers organizations), NGOs (ex : HR org...), CBOs (Community Based
Organizations). These are the principal actors of the CS.

The two main channels of expression of the civil society.

These are NGOs and lobbies. NGOs usually act at the level of the European Commission
while the lobbies act at all levels.

CS through NGOs

NGOs are described by a paper of the Commission, “The Commission and NGOs: building a
stronger partnership”. States how the Commission can work with NGOs.

Paper explains that dialogue within Commission and NGOs is important for the Commission.
Timely consultations with stakeholders at a nearly stage of policy shaping is now a part of
the process of policy shaping. Partnership not limited to that kind of dialogue. This practice is
expanding through all stage of the DM. It is now a partnership pre and post DM. Since the
90s, a series of programs on humanitarian aid, education... where the Commission closely
cooperate with NGOs.

Ex : Bureau d’aides humanitaires créé dans les 90s, travaillait en partenariat étroit avec des
ONG, par exemple étroite collaboration avec MSF.

In the context of the consultation, prior to the adoption of a legal text, the Commission is
very open to reflections coming from NGOs.

Distinction between NGOs and lobbies: NGOs are not created to generate financial profits
(neither for them nor from their members) although they may have paid employees and
engage in revenue generating businesses; but they do not distribute any profits to directors
or employees.

NGOs are created voluntarily and are composed of voluntary members mainly. They can be
distinguished from ad hoc groups or informal groups as they are legally structured. They
usually are charities. They are independent from governments and any other public
authorities, as well as political parties or trade organizations. NGOs act, even under
contracts, in the context of the promotion of specific values, related to the well being of
people.

Action of NGOs : political and expertise. Meant to protect certain values, or general interests
(protection of environment, HR, non-discrimination…).

Budget granted to NGOs by the Commission is around 1,000 million euros.

- Lobbies
They do exist for a long time. Spread within the EU since the 80s.

A series of Commission’ communications take account of the lobbies in order to offer better
transparency. Pb: They are called differently, mainly “interest representatives”.

There is a wide number of lobbies. They can be legally structured as if they were NGOs, but
the difference is that they represent economic interest. They are an important numbers of
interest representatives at the level of the EU.

Ex: European federation of journalists / EUROCADRE / European consumers organizations /

UNICE.

Interest representation activities are defined bu the Commission as “activities carried out
with the objective of influencing the policy formulation and DM process of the European
institutions.”

According to the Commission, interest representation activities do not include activities

concerning legal and other professional advice, activities in response to the Commission’s
direct request, activities of the social partners as actors in the social dialogue.

NB : NGOs and lobbies are not the only ways for CS to express within the EU. Ex : students,
individuals…

Legal framework

General legal features

CS was not even mentioned within the Treaty until the Treaty establishing a Constitution. In
this treaty: article 3.390 : “ The Council shall act after consulting the CS. It may obtain the
opinion of groups representing CS to which the Union activities are of concern.”

Article 8.b) Lisbon treaty: “the institutions shall, by appropriate means, give citizens and
representatives associations, the opportunity to make known and publicly exchange their
views in all areas of Union actions. The institutions shall maintain an open, transparent and
regular dialogue with representatives associations and civil society.” Strong formulation as it
is now clear that all institutions, even the ECB, shall give opportunity to citizens to express
themselves. NGOs and lobbies are not mentioned however. The first paragraph set forth a
unilateral right to express of the CS, while the second paragraph provides for a bilateral
relation through “dialogue”.

Why not mentioning “associations” expressly? Maybe as other king of organizations, such as
the Church for ex, shall be considered as way for citizens to express.

The article set forth an obligation of result, not means.

What shall we understand as being “regular dialogue”? Margin of appreciation left to the EU
institutions there.
CS began to be considered, within the EU, from the 90s.

During the years 2000s, the NGOs began to become involved in the DS process.

Since the LT, the CS is now considered as an actor that the institutions shall be listened to
during the DM process.

However, no express requirement as to the way the CS shall be listened to by any

institutions. Each of them has to set up its own framework of cooperation. Only express will
thus to take into account of the CS at the moment.

The CS is used by Commission to give it a real vision of the world, as Commission’s civil
servants often stand apart from the “real world”.

Clearly, within the current EU the CS is useful, and is used indeed by the EU as a way to
achieve good governance.

If there is a legal framework, it is a framework relating to the process of consultation.

Consultation is indeed a requirement, as set up by Protocol on the principles of subsidiary
and proportionality (adopted with Amsterdam Treaty). The Commission should consult
widely before imposing legislation, and wherever appropriate, publish consultation
documents.

Traditionally, the obligation of the Commission has been considered as only concerning
Economic and Social Committee and the Committee of the Regions.

In the context of environmental matters, on the 6th September 2006, the EU Plt and the
Council adopted the Regulation on the application of the Aarhus Convention on access to
information, public participation in DM and access to justice in environmental matters.
The Aarhus convention is considered as the most important international instrument
promoting transparency and public participation within the DM process. Pb : this convention
only concerns environmental matters. But it as a standard as good legal framework in
organizing public consultation.

The Commission in 2002 adopted a communication where was established a … (no

compulsory effect however). But shows will of the Commission to provide the EU with a
binding mechanism of public consultation.

This communication sets out principles that the Commission shall respect. The principles are
very general: participation, openness, accountability, effectiveness and coherence (// White
Paper – 2001). The Commission does not draw any distinction between CS and interests
groups.

Specific features as to NGOs

NGOs do not have a specific legal regime devoted to them within the Treaty. The treaties
contains provisions as to the “social dialogue”. NGOs as such, do not benefit from any
specific rights under the Treaties.

Pb : the EU Commission suggests NGOs to create EU NGOs, in order for them to express in
front of EU institution through one single voice. The NGOs thus ask the EU to be provided
with a legal status under EU law. Is it still a pending question as the Commission is reluctant
to create such a status, as it fears EU NGOs would get primacy other national ones, and thus
prevent those national NGOs to give their opinions.

Specific legal features as to lobbies

The EU Commission and Parliament are not reluctant to work with lobbies, as they are
considered to present good arguments.

A distinction must be drawn between lobbying and corruption.

The Commission considers that lobbies shall be transparent however.

A communication was adopted in March 2007 in order to give transparency to the

framework within which lobbies acted. Also adopted a Code of conduct for the lobbies in
2008.

The Commission created a registry in which the interest representatives shall be listed. The
entry into the registry is voluntary however.

The Commission set up the Code of conduct, which states for 7 principles that shall be
respected by lobbies. The respect of all the principles is needed prior to the entry of any
lobby within the registry.

The Commission decided that only the lobbies listed within the registry would be authorized
to provide opinions to the Commission.

This framework only applies however as to the Commission.

7 principles :

The lobby must be identified (name, who is it working for?)

The presentation of the interest represented shall not mislead 3 rd parties

The interest representatives must set forth the interest and the client they defend in each
situation

The interest reps shall agree to present their opinions in an unbiased, up-to-date and
complete

The reps shall not obtain any evidence dishonestly

The interest reps shall not induce EU staff to contravene their own obligations

If employing former EU staff, the interest reps must respect the obligation of its ex-member
to respect confidentiality requirements.

These principles cover every sensitive issue as to lobbies.

NB : // UNCTAD

UNCTAD and Civil Society

At UNCTAD´s recent Conference (2004) in São Paulo, Brazil, member States agreed that
better integration of NGOs, the private sector and academia into the work of UNCTAD would
benefit both UNCTAD and its member States.

Cooperation with civil society is mutually beneficial: it can help civil society organizations
enhance their advocacy role in support of development and it can add value to UNCTAD´s
work through providing partnerships as well as through participation in joint meetings and
discussion forums leading to concrete development outcomes.

UNCTAD´s Civil Society Outreach Unit

The Civil Society Outreach (CSO) Unit is responsible for liaison between UNCTAD and civil
society.

The CSO team:

Helps facilitate the participation of civil society actors - including non-governmental and
intergovernmental organizations - in the work of UNCTAD and its Conferences, organizing
hearings, consultations, briefings and meetings with civil society.

Reviews and processes requests for accreditation and observer status with UNCTAD from
civil society.

Provides civil society with information and documentation.

Makes a link and interacts with other UN system focal points for civil society.