1. General characteristics
Officially referred to by the treaties as ‘the Commission’, this institution has designated itself as the ‘European Commission’. This name has been made official by the Treaty of Lisbon, constituting it as one of the institutions of the (new) European Union (Art 13(1) TEU). The term ‘EU Commission’, in spite of being rather common, is imprecise, insofar as the legal basis of the Commission used to be the EC Treaty, establishing it as an EC and not an EU institution (Art 7 EC). Even so, the EU Treaty conferred a number of functions upon the Commission, which justified attributing the term ‘European’. Still, even the wording of the new treaties often refers to the briefer name ‘the Commission’ for the sake of simplification (Art 13(1) TEU). The term ‘Commission’ has a double meaning, relating to the authority, with its whole staff and infrastructure on the one hand and, in a more narrow sense, the board of Commissioners on the other hand. The term ‘Commissioners’, albeit frequently employed, is unofficial, the treaty calling these persons ‘members of the Commission’.
Between 1958 and 1967, three different supranational organizations—the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (EAEC)—coexisted. From a legal perspective, each of them had distinctive organs, so what appeared as a monolithic body actually consisted of three different Commissions (or Councils or Assemblies). The ECSC Treaty, however, did not refer to the body as the ‘Commission’ but as the ‘High Authority’. The so-called Merger Treaty of 1965 formed a common institutional framework for all three Communities, whose legal personalities remained unaffected. Since the ESCS ceased to exist in 2002, the Commission has no longer acted in a triple capacity but instead in a dual one, representing both the EAEC (EURATOM) and the EC (Art 106(a) EAEC Treaty), replaced by the ‘Lisbon’ EU in 2009.
No other institution pursues the Union interest as consistently and unwaveringly as the Commission does. This is now acknowledged by Art 17(1) TEU, according to which the Commission ‘shall promote the general interest of the Union’, insofar as it constitutes a counterweight to the Council, which is dominated by the various national interests. Its role as ‘custodian of the common interest’ is not only reflected by Art 25 TFEU/22 EC, requiring the Commission to submit annual reports on the activities of the Union, but also by its independence, secured by various treaty provisions. National governments are confined to the right to propose their respective candidates for membership in the board of Commissioners. The President of the Commission, however, is nominated by the (European) Council (Council and European Council), which implies that the candidate needs the backing of the vast majority of Member States. Not only the potential President, who is elected first, but also the potential body of Commissioners as a whole are subject to diligent questioning by the European Parliament prior to their election (Art 17 TEU/214(2) EC). Once appointed, however, the Commissioners are entirely independent and may neither seek nor take instructions from governments or other bodies, just as the latter must refrain from any such influence (Art 245 TFEU, Art 17(2), (3) TEU/ 213(2)1, (2) EC). Although the function of political guidance is split between the Commission and the Council and even though the European Council takes the basic strategic decisions, the Commission has taken on some features of a ‘European government’. Notwithstanding its independence, the Commission is politically accountable to the European Parliament, which elects its members and is also entitled to remove them from office. This is a further example of the similarity between the Commission and a national government (for details, see 3.b) below). Article 218(1) EC required the Commission and the Council to consult each other and to settle their methods of cooperation by common accord. In demanding ‘mutual sincere cooperation’ from any EU organ, Art 13(2)2 TEU goes beyond this.
2. Composition and nomination
Commissioners are appointed for a period of five years (Art 17(3)1 TEU/214 EC). Unlike the Council, which is a permanent organ, the Commission is discontinuous. So far, every Member State has been entitled to send one national into the Commission (Art 17(4) TEU/213(1) EC). The former practice of admitting up to two Commissioners from the same state was abolished in 2004 for efficiency reasons (as had been provided for by Art 1 Protocol (No 7) on the institutions with the prospect of enlargement of the European Union, annexed to the TEC and the TEU by the Treaty of Amsterdam of 2 October 1997). For the same reason and independent of whether the Treaty of Lisbon had become effective or not, the total number of Commissioners will be reduced. This would also have occurred under the Treaty of Nice after a decision of the Council, acting unanimously, ‘as 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’ (Art 4(2) Protocol on the Enlargement of the European Union, attached to the Treaty of Nice) and will occur from 2014 under the Treaty of Lisbon. According to Art 17(4) TEU (newly introduced by the Treaty of Lisbon), the number of Commissioners will shrink to two-thirds of the overall number of Member States, unless the European Council unanimously decides otherwise. In any event, the members of the Commission must be chosen ‘on the basis of a system of strictly equal rotation between the Member States’, which must reflect their ‘demographic and geographical range’. Details are yet to be fixed by the European Council (Arts 17(5) TEU, 244 TFEU). This means that, in practice, only the most populous Member States will in all likelihood succeed in continuously being ‘represented’ by a Commissioner.
The nomination of the Commission members is a joint matter for the Member States, the European Council (replacing the Council under the Lisbon Treaty) and the European Parliament. The nomination of its President, which precedes the election of the other Commissioners, is governed by specific provisions. The European Council (formerly the Council) nominates a candidate, acting by a qualified majority (Art 17(7) TEU/214(2) EC). To be elected President of the Commission, he or she must obtain the approval, by majority, of the European Parliament. The latter may thus reject a candidate but, unlike national parliaments, is not entitled to submit an alternative candidate. The Treaty of Lisbon employs the word ‘election’ to what was before referred to as ‘approval’, without providing for a modification in substance.
Next, each Member State entitled to present candidates will suggest one of its own nationals for membership in the Commission (Art 17(7)2 TEU/214(2)2 EC). Finally, the Commission as a whole (including its President and also the High Representative for the Common Foreign and Security Policy) must obtain the approval of the European Parliament; only then will the Council appoint its members (Art 17(7)3 TEU/214(2)3 EC). Noteworthily, the European Parliament has on several occasions achieved a reshuffle of the board by threatening to otherwise reject the new Commission.
On the reverse side, the European Parliament has the right to demand the resignation of the entire board of Commissioners, provided that a motion of censure is carried by a two-thirds majority of the votes cast, encompassing a majority of the members at the same time (Art 234 TFEU, Art 17 TEU/201 EC). Motions against individual Commissioners may not be filed. Considering that the European Parliament lacks the right to present candidates for membership in the Commission and cannot therefore replace Commissioners on its own account, Commission members are required to remain in office until successors have been appointed.
The Commission takes its decision as a collective with the majority of its members (Art 250 TFEU/219 EC), therefore being collectively responsible to the European Parliament. Its president has no tie-breaking vote and may neither give instructions nor set up guidelines. Yet, he or she is more than just primus inter pares, since he distributes the portfolios (and may at any time reshuffle the responsibilities) and appoint one or several of the board members as Vice-President(s) (Art 17(6), 18(4) TEU, 248 TFEU/Art 217 (2), (3) EC). Only the High Representative of the Union for Foreign Affairs and Security Policy (de facto the ‘EU Foreign Minister’) is now exempted from the allocation authority of the President (Art 17(6)(c), 18(4) TEU). The Treaty of Lisbon further strengthens the President to the extent that he or she may lay down internal guidelines and request the resignation of individual members of the Commission other than the High Representative (Art 17(6)(a), (2), 218(1) TEU). Approval of request by the College of Commissioners (Art 217(4) EC) is no longer required.
The Commission comprises Directorates General (DGs), each of which is in charge of a particular policy area. The administrative heads of the Directorates General (Directors General) are supervised by the Commissioners that are in charge of the respective policy area. The Commission’s work is coordinated by a Secretariat General who is subordinate to the President.
An outline of the Commission’s functions is given by Art 211 EC and, in a more detailed manner, by Art 17(1) TEU. Acting as a guardian of the common interest, the European Commission not only is the main executive organ of the EU, but also participates in the making of its law to a greater extent than many national governments do in accordance with their respective constitutions. Conclusion of an international agreement is initiated by a recommendation of the Commission to the Council, which in return subsequently authorizes the Commission to open the necessary negotiations (Arts 207(3)-(5), 218 TFEU/133 (3)-(7), 300 EC). Article 17(1) TEU officially charges the Commission with the Union’s external representation, with the exception of the Common Foreign and Security Policy, which falls within the responsibility of the Council.
b) Law-making and comitology
As a rule, regulations and directives—ie legislative acts—may only be adopted on the basis of a proposal submitted by the Commission, although the Council can pressure it into becoming active (see Art 241 TFEU/208 EC). This quasi-monopoly, underlined by Art 17(2) TEU, is subject only to a small number of exceptions (eg Arts 76 and 294(15) TFEU). However, the law-making capacity of the Commission goes well beyond its—all but exclusive—right to submit proposals for legal acts (see below for details). Article 106(2), (3) TFEU/86(2), (3) EC confers upon it a right to address decisions and even directives to Member States concerning the so-called ‘services of general economic interest’. Apart from this singular, original and exclusive law-making capacity of the Commission, the Council had in many cases delegated upon it the right to adopt legal acts in accordance with Art 202(3), Art 211(4) EC. The Treaty of Lisbon has split this category in two: so-called ‘non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act’ (Article 290 TFEU) and ‘implementing acts’ providing for uniform conditions for implementing legally binding Union acts (Article 291 TFEU). Article 290(1)(3) TFEU clarifies that ‘the essential elements of an area … shall be reserved for the legislative act’, that is, a legal act adopted by legislative procedure (for details, see Article 289 TFEU). The adjectives ‘delegated’ and ‘implemented’, likewise, must henceforth be inserted in the title of these acts, Articles 290(5) and 291(4) TFEU. There have been numerous examples of a delegation, most prominently in EU Competition Law, where the Commission has enacted a large number of so-called group exemptions (block exemption regulations), but also in other areas. Even the transformation of International Financial Reporting Standards into European law is an example of delegated law-making (Reg 1606/2002).
The involvement of the Council and Member States, but also the European Parliament, in delegated law-making has so far been granted by what is known as comitology decisions (see below). Until 2009, delegated law-making could be seen as the common concern of the Commission, which plays the leading role, and representatives of Member States as well as the European Parliament. The legal foundations of the mechanisms embodying this concerted delegated law-making were laid by acts of the Council that have become popular as comitology decisions. The latest of these decisions dates from 1999 and was substantially amended in 2006. Comitology does not infringe upon the position of the Commission since it awards rather than deprives it of law-making power. Moreover, delegated law-making does not automatically entail comitology, but only where this is explicitly provided for; competition law being an important exception.
The three comitology manifestations are diverse and complex and can therefore only be presented in outline. They each provide for a committee to assist the Commission in implementing EU legislation. Three categories can be distinguished, each reflecting a different kind of procedure: Advisory Committees, Management Committees and Regulatory Committees (with or without scrutiny). The guiding principles for the choice of which comitology procedure to be followed in a specific case are neither entirely optional nor strictly binding (see Art 2 Comitology Decision 1999/468). As a rule, the Regulatory or the Management Procedure applies, while the Advisory Procedure is only subsidiary.
As a rule, the Management Procedure applies to ‘management measures, such as those relating to the application of the common agricultural and common fisheries policies, or to the implementation of programmes with substantial budgetary implications’ (Arts 2(a), 4 Comitology Decision). Management Committees (Art 4 Comitology Decision) are composed of representatives of the Member States and decide upon the draft measure submitted by the Commission with a qualified majority, whereby votes are weighted just as in the Council. The Commission may disregard the vote but must then communicate this to the Council, which has the right, by qualified majority, to take a different decision from that of the Commission.
‘Measures of general scope designed to apply essential provisions of basic instruments, including measures concerning the protection of the health or safety of humans, animals or plants’ are subject to the Regulatory Procedure (Arts 2(b), 5 Comitology Decision). Proceedings are very similar to the Management Procedure, except that the Commission has to submit a formal proposal, which is also subject to the control of the European Parliament. Where the basic instrument allowing for delegated law making was enacted by ordinary legislative procedure (Arts 289, 294 TFEU), the former ‘co-decision’ procedure (Art 251 EC), and the European Parliament considers a proposal submitted by the Commission as exceeding the implementing power, the Parliament shall inform the Council. If the Council, which for its part is not obliged to consider the position of the European Parliament, rejects, with a qualified majority, the proposal previously submitted by the Commission, the latter may revise its proposal and, if so, submit it to the Council one more time.
Finally, the Advisory Procedure (Arts 2(c), 3 Comitology Decision) is applied ‘in any case in which it is considered to be the most appropriate’, independently of whether the prerequisites for other kinds of procedure have been met. Proceedings are rather simple; a formal vote is not even mandatory for opinions to be delivered by an Advisory Committee, and even though the Commission shall take ‘the utmost account’ of them, deviation remains without consequence, the Council not being involved in the procedure. The comitology procedures have been criticized for depriving the European Parliament of its rights, since even where the basic act was adopted in co-decision with the Council, the Parliament is confined to addressing the Commission with a motion for re-examination.
The future of comitology under the Treaty of Lisbon is uncertain. It has been proposed by the Commission to maintain comitology features where Article 291 TFEU applies in order to ensure its effective control by the Member States (COM(2010)83 final) but to replace it with other mechanisms (including the right of the European Parliament and the Council to veto or to revoke the exercise of delegated powers by the commission) within the scope of Article 290 (COM(2009) 673 final).
c) Executive powers
In a narrow sense, as the College of Commissioners, the Commission assumes government-like functions, while from a broader perspective, the name also represents a huge executive body, subdivided into Directorates General. The Commission prepares the preliminary draft budget and is responsible for implementation of the budget once it has been adopted (Arts 314(2), 317 TFEU/272(2), 274 EC). It watches over compliance by states with primary (eg basic freedoms) and secondary EU law (most particularly correct and timely implementation of directives). It can, to this end, initiate proceedings against Member States before the European Court of Justice (Art 258 TFEU/226 EC). In some cases, the Commission can take decisions addressed to Member States, obliging them to comply with the treaties; thus, it can compel a Member state to recover unlawful state aids (recovery decision/ injunction, Arts 11(2) and 14(1) Reg 659/1999; Art 108 TFEU/88 EC).
The Commission also exerts supervisory authority vis-à-vis private persons, especially undertakings that must comply with the (directly applicable) EU rules on competition (competition (internal market)). The Commission shares this task with the competent national competition authorities, who join the Commission in a European Competition Network under Reg 1/2003 as far as it supervises compliance with the ban on cartels (Art 101 TFEU/81 EC) and the interdiction of abuse of dominant market positions (Art 102 TFEU/82 EC). Concentrations between undertakings (including mergers) with a Union dimension require an approval (declaration of compatibility with the Common Market) by the Commission (for details, see Arts 1, 2 and 8 Reg 139/2004). Apart from addressing decisions (Art 288(4) TFEU/249(4) EC) to undertakings, the Commission frequently resorts to regulations (Art 288(2) TFEU/249(2) EC) where any such power has been delegated to it. By virtue of secondary law the Commission may not only prohibit behaviour that does not conform to competition rules, but may also sanction non-compliance by imposing fines and periodic penalty payments (cf Arts 7–11, 23, 24 Reg 1/2003 and Arts 14-15 Reg 139/2004). Fines can amount to up to 10 per cent of the aggregate annual turnover of the undertakings involved, depending on the nature and gravity of the breach (the record fine, imposed in 2008 for an unlawful agreement, totalled more than €1.4 billion, about two-thirds of this amount to be paid by a single undertaking).
The Commission is also charged with the administration of the numerous funds of the EU (agriculture and fisheries, structural and regional development, etc). It verifies progress of new Member States in implementing the acquis communautaire and has sanctioned defaults by withholding financial support approved by the Union.
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