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Executive Power in the European Union: Law, Practices and the Living Constitution, Chapter 1 - Geology of the European Union


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This paper is the introduction to a book that aims to bring the EU's executive powers out of the shadows by mapping the evolution and current form of the EU's various executive actors, their powers, and the mechanisms for holding them accountable. The term executive power embraces the political executive, the administrative executive and what is termed the 'satellite' executive. The book's analysis covers both the formal legal structure of the Union (pre and post Lisbon) as well as the evolution of the EU's living institutions in practice. The picture presented is of a fragmented, cluttered and complex European executive space, resistant to radical Constitutional reform. On the other hand what also emerges are layers and pieces of a sedimentary process of EU and national checks and balances as part of an organically growing 'living constitution'.
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Geology of the European Union
1.1  e Unseen and Many Layers
e scope of the power that is exercised by actors and institutions under the
auspices of the European Union (EU) may be fuzzy for many citizens, consum-
ers, and third states. Decisions are taken in the EU by a wide variety of actors in
a wide variety of forums and institutions. Much of the reform debate in recent
years in the context of EU decision-making has been on the legislative process:
who adopts what, when, and according to what procedure? e focus in terms of
reform tended to be rather mono-institutional and to involve giving the European
Parliament more of a role in a wide spectrum of European legislative processes.
What has remained much more invisible in structural terms and also in terms of
public perception and public understanding is the fact that non-legislation has
moved much more to the centre stage in terms of the actual overall output of the
EU. Non-legislation basically refers to executive action in one form or another
from implementation and standard setting to operational decisions by both
majoritarian and non-majoritarian actors.
In the EU there are corepolitical and administrativeEU institutions
with far-reaching non-legislative powers. e European Commission (the
Commission) can for example impose nes of in excess of $900 million on
Microsoft, the US based multinational, on top of the original ne of $500 mil-
lion Compared to other international organizations the EU is unusually e ect-
ive both in its ability to adopt rules and in its ability to ensure that its Member
States comply with those rulesand even to ensure that a multinational as
powerful as Microsoft not only pays astronomical fi nes but actually changes its
anti-competitive behaviour.
e Commission will be empoweredafter entry into force of the Lisbon
Treaty—to adopt so-called delegated legislation across the full spectrum of
EU policy areas, without having to employ the current system of committees
of national civil servants (the so-calledcomitology system, its very name sug-
gesting hidden corridors of power) in order to fi ll in the details of legislation. In
¹ See further European Commission, Microsoft case: <
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Executive Power of the European Union4
this context too the mushrooming of EU-level agencies (often linked to networks
of national agencies) and the consolidation and reinforcement of their powers of
decision taking are noteworthy. Like some of the existing agencies, the new EU
Agency for Cooperation of Energy Regulators (ACER)it has been agreed
will be able to adopt individual decisions and will have an important regulatory
role to play, as will the European Commission.² Such agencies are populated by
EU-level as well as national-level civil servants but may enjoy executive and regu-
latory power at the EU level. Another example of mushrooming power is the
proposal to empower the existing Committee of European Securities Regulators
(CESR) with the task of licensing Credit Rating Agencies in the EU and moni-
toring their performance.³
Some actors are thus both European and national. ey consist both of poli-
ticians and of bureaucrats. Some may be wearing two hats, others not. A good
example is the Council of Ministers itself (often known simply as ‘the Council’)
composed of national ministers as well as a shadow bureaucracy with both
Eurocrats and national civil servants (also known as ‘new Eurocrats’). e Council
has sometimes surprisingly speci c and even operational type powers. It can for
example compile EU-level lists of suspected terrorists whose assets are then frozen
by national authorities as a direct consequence of EU-level lists. e European
Council, which prior to the entry into force of the Lisbon Treaty is not even a
formal institution of the EU as such, sometimes gives rather speci c instructions
to both the Commission and the Council as to (legislative) agenda-setting. e
European Council sets the agenda in a very streamlined and structural fashion as
well for whole policy areas and also for the inter-linkages between broad policy
areas (for example the Tampere programme 19992004, in the eld of justice and
home a airs and also with regard to climate change via thematic ‘strategies’⁵).
Secretive andhidden (comitology) committees can agree rules on the
use of body scanners, for example, as well as on what travellers may and
may not take on board aircraft in the interests of security; technical require-
ments may subsequently not be published so citizens are unaware of the rules
² See further the proposed Agency for the Cooperation of Energy Regulators, Proposal for
a Regulation of the European Parliament and of the Council establishing an Agency for the
Cooperation of Energy Regulators (SEC (2007) 1179) (SEC (2007) 1180), COM/2007/0530
nalCOD 2007/197. See too the new EU telecoms agency, BEREC (Body of European
Regulators for Electronic Communications), <>.
³ See J de Larosière et al, e High-Level Group on Financial Supervision in the EUReport,
Brussels, 25 February 2009, para 67, <
statement_20090225_en.pdf>. See further, European Commission (2009a), Communication,
European Financial Supervision, COM/2009/252 nal, 27 May 2009.
⁴ See for example the far-reaching European Council conclusions, 10–12 December 2008.
See further, I von Homeyer (2009), e Evolution of EU Environmental Governance in
J Scott (ed), Environmental Protection: European law and governance, Oxford: Oxford University
Press, pp 126, at p 26.
⁶ See, however, the resolution adopted by the European Parliament on 23 October 2008 that
led to the withdrawal by the Commission of the draft implementing measures on this issue.
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Geology of the European Union 5
on aviation safety that may apply to them when they board aircraft.EU-level
border guards cooperate with Member State border guards under the auspices
of an EU-level agency, Frontex, and carry out a rapidly increasing number of
joint operational activities. In the year 2007 for example the EU borders agency
initiated itself 21 joint operations (compared to only 7 in the year 2006).
National actors step outside their national political systems when they par-
ticipate in joint decision-making at the European level to varying degrees.  at
may mean more political decision-making by national prime ministers in the
context of the European Council, national ministers in the Council of Ministers,
national civil servants in the comitologycommittees that implement the details
of legislation, and national agencies or others networking with their infra- national
counterparts. In this sense they jump the fence of national electoral politics. ey
were not elected to take these decisions; they have no mandate from the citizens
and no overt and visible political program in this regard.
At the same time, decisions are also taken by European-level actors. ese
European actors may be to some extent politicized but in a context where polit-
ical contestation and debate are missing. ere is no overt link with the national
level of politics; they have not jumped the national fence but have been con-
structed and put in place in order to function in what appears to be a relatively
autonomous fashion at the speci cally European level of governance. Formal
institutions may take esh and shape in ways that are not originally envisaged
in the formal legal rules. ey may spawn new actors who, through various
informal processes and legal and institutional practices, acquire and exercise
tasks. Institutions become living’ and acquire a life of their own by virtue of
their empirical practices. At the same time, part of the ‘living’ context is also the
concrete manner that the various actors interact across the di erent governance
1.2  e Evolving EU
As an object of research it is certainly true to say that the EU is unidentifi ed and
travels at great speed. e EU is largely unidentifi ed in that it escapes the con-
ventional labels such as nation, state, empire, region, federation. Yet it possesses
elements of several of these categorizations (international organizations, state,
political system etc). e speed of institutiona l change is undeniable; from a weak
advisory parliamentary assembly to a more powerful European Parliament with
co-legislative rights; from a weak court to a strong court, a court that can, for
example, rule on issues that would appear purely national. e EU has moved
⁷ See the facts underlying case C-345/06, Gottfried Heinrich, judgment of 10 March 2009, nyr.
⁸ J Pollak and Slominski, P (2009) ‘Experimentalist but not accountable governance?  e role
of Frontex in managing the EU’s external borders West European Politics, 32/5, pp 904–24.
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Executive Power of the European Union6
in less than 50 years from being a trade regime with a common market to a
political union by now covering, in varying degrees, the length and breadth of
state policies.
e contemporary EU is a political union that is constantly and incrementally
evolving. In a political union there is almost no area of national policymaking
that is not related in some fashion with policymaking at the European level.
e EU polity has expanded almost to the point that there is virtually no area
of political or social life that is potentially not within its remit. is includes
matters from the purely regulatory to the redistributive and almost everything
in between. e EU has built up a considerable body of independent policy and
regulation in elds like environmental protection, consumer protection, occu-
pational health, and safety. In addition, the EU has branched out to include
issues such as immigration policies, justice and home aff airs, and a common
foreign and defence policy. In terms of output the EU issues the equivalent of
national legislation as well as measures that can be considered to be more of a
secondary or tertiary nature (via implementation and comitology for example).
In terms of representing this visually the following table (Table 1.1,legislative
output of the EU) may help in the realization that the formal more legislative’
type measures (by the Council alone, including measures of justice and home
aff airs or the Council and European Parliament under the joint legislative pro-
cedure) is far inferior to the output of the Commission acting alone and in a
more executive capacity. It emerges from this table for example that whereas
the Council (with or without the European Parliament) adopted some 363
legal instruments in 2007 and 525 in 2008, the Commission adopted respect-
ively 1,329 and 1,203 instruments, as published in the O cial Journal.¹⁰
e EU may be considered in terms of its nature as a peculiar hybrid: in some
aspects it still, even today, resembles the rather classical intergovernmentalism
of other international organizations;¹¹ in other respects it displays features of a
polity or ‘would be’ (federal) state more comparable in essence to what happens
in national political systems.¹² is can be translated as a confl ict or struggle
between a more ‘diplomatic’ understanding of the EU and a more ‘democratic’
one. e EU has, moreover, evolved as a system in its own right and, by virtue
of autonomous institutions, into what has been termed an autonomous and new
L Hooghe and G Mark s (2008),European Union?, West European Politics 31/12 , pp 108 –29,
at p 108.
¹⁰ Despite the best assistance of the services of the Commission in compiling these tables it must
be noted that it is very diffi cult on the basis of the information available to be more precise than
¹¹ See further P Magnette (2005), What is the European Union? Nature and prospects (London:
Palgrave Macmillan).
¹² See, for example, T Koopmans (2008), ‘Confederalisme: Van de “Articles of Confederation”
naar het Verdrag van Maastricht in F Judo and G Geudens, Confederalisme? (Gent: Larcier),
pp 1–18.
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Geology of the European Union 7
executive order.¹³ As the realization grew, in the decades after the Maastricht
Treaty, that the remit of the EU had been expanded beyond economic issues to
core issues of national polities, to issues of both external and internal security,
anxiety grew among populations in di erent Member States as to how such deci-
sion-taking processes were being legitimated and within what context.
It is generally assumed that on the map of international organizations the EU
still today occupies a distinctive position due, in particular, to what has been
termed its supranational normative order and speci c—and far-reaching—
judicial power. One of the de ning features of the EU is precisely the manner
in which the Court of Justice crafted the bald legal provisions laid down in the
original treaties into a newand ‘constitutional’—legal system, the legal system
of the European Communities. is can be considered an example of a process of
judicial construction of an institutional normative orderbut then, at the supra-
national level, the EU indeed represents the most advanced example of ‘institu-
tionalized normative order beyond bounded territories (states).¹⁴
¹³ See further on the use of this term, D Curtin and M Egeberg (2008), ‘Tradition and innov-
ation: Europes accumulated executive order’ in D Curtin and M Egeberg (eds), Towards a new
executive order in Europe?’, West European Politics, 31/4, pp 63961.
¹⁴ See further on this terminstitutional normative order, N MacCormick (2007), Institutions
of Law: An essay in legal theory (Oxford: Oxford University Press), pp 5960.
Table 1.1 Legislative acts adopted 20058
2005 2006 2007 2008
E P + C o u n c i l R e g u l a t i o n s 19 4 4 21 4 8
E P + C ou n c i l D i re c t i v e s 2 6 39 18 53
E P + C ou nci l D e c i s ion s 14 19 18 30
Council Regulations 118 164 129 137
Council Directives 10 26 5 14
Council Decisions 252 245 272 244
Commission Regulations 675 610 628 574
Commission Directives 54 75 53 53
Commission Decisions 645 698 644 609
Total 1813 1920 1788 1762
Source: EUR-LEX, the inter-institutional computerized documentation system on
Community law, excluding acts not published in the Offi cial Journal and acts published in
light type (routine management acts valid for a limited period).
is table is based on the o cial fi gures provided by Eurolex and given by the Commission
services. But if a calculation is done including all acts that Eur-Lex seems not to display any-
more (for whatever reason), but which were still adopted, a considerably higher number of
regulations is shown to have been adopted by the Commission (between 1400 and 2000 over
the past few years instead of 600 plus). is discrepancy may be explained by the fact that
temporary measures etc not published in the Offi cial Journal are not included in the offi cial
gures. Data compiled from EUR-LEX by Dimiter Toshkov, Leiden University. See further,
GJ Brandsma (2010).
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Executive Power of the European Union8
is book focuses on the shadowy side of EU decision-making—the part
that is not so visible even in the unwritten constitution, and the role multiple
actors play at di erent levels and wearing diff erent hats. Who are they, what are
they doing, and how can one even begin to structure a debate on their demo-
cratic and political embedding within a political system, at which governance
level or at multiple governance levels? What is the EU precisely; how can we
understand it in holistic terms; and what are these actors, European and na-
tional, doing in this context? How can we frame it so as to relate it to the insti-
tutional normative order?
e subject of EU executive power is currently unmapped in two senses: fi rst
it is topographically undefi ned in all its plurality and fragmentation. Secondly,
the extent to which there exists a visibleand at the same time invisiblesmall
c’ constitution that frames some checks and balances is also not mapped or
understood in the light of incremental (legal and institutional) practices evolv-
ing over time.  is is what this book attempts to do with regard to a previously
unmapped subject, the executive power of the EU: to reveal the piecemeal nature
of the growth of a certain type of power, also at times in unexpected places, as
well as its broader constitutional framing and evolving checks and balances at
various levels.
1.3 e Metaphor ofSedimentation
A metaphor implies the use of language that directly compares seemingly
unrelated subjects.  ey are usually understood as fi gures of speech that present
one thing as another thing and may be used either at the abstract, conceptual
level or as a highly specifi c expression of a phenomenon.¹⁵ Many metaphors have
been used in the context of the EU in the highly abstract conceptual sense.  us
representations (often by national politicians) of the EU as motion or constant
forward movement is made concrete in the metaphor of a bicycle or a ship. One
very early metaphor involved the use of tidal ecosystems to suggest the intensity
of the relationship between national and Community (at that time) legal systems
as well as its irreversibility. Lord Denning referred to the EU as long ago as 1974,
asan incoming tide. It ows into the estuaries and up the rivers. It cannot be
held back.’¹More recently the metaphor of ecology has been (re)used to suggest
¹⁵ See, for a detailed study, P Drulák (2004), ‘Metaphors Europe lives by: Language and institu-
tional change of the European Union’, available at <
¹⁶ Bulmer v Bollinger [1974] 2 WLR 202.
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Geology of the European Union 9
a broadly uid and penetrating e ect of EU rule-making (‘governance).¹⁷ Other
metaphors are more static and solid, implying brick-by-brick construction.  ey
traditionally present the EU in the architectural—and seemingly unmoving
terms of a Greek temple or a Gothic cathedral suggesting complexity yet unity.¹⁸
A geological metaphor is not unrelated to a biological or ecological one and
suggests movement and evolution as well as layers of meaning and practice.
Darwins On the Origin of Species and his theories of evolution were very much
infl uenced by his experience as a fi eld geologist. Geology provided the vast time
frame needed for natural selection to produce the biodiversity we see today.
Geology also provided evidence that the planet’s topography is not best under-
stood by virtue of thebig bangs of history and catastrophic events but rather in a
more organic way as being the result of the daily operation of wind, rain, erosion,
and sedimentation, as well as the usually imperceptible movement of land masses
over millions of years.¹⁹ e metaphor of ‘sedimentation’ refers to the geological
process of an accumulation of layers of ‘deposits’ being piled upon one another
and involving the settling of solid particles from uids. In applying the notion of
sedimentation in the context of the evolving legal and political systems of the
EU, I have been inspired by a not dissimilar debate in the US context where more
than a decade ago two legal writers used the term e Sedimentary Constitution
for the US Constitution.²
e geological metaphor raises the question of the overall processes of trans-
formation of political order in Europe and the emergent topography of the EU
as it evolves over time. e time perspective of geological movements is of course
sobering and incomparable with theminutetime frame involved in the
process of constitutionalization in the EU to date. e issue of time is clearly
crucial.²¹ e time scale is hugely diff erent, particularly in the case of the EUa
very new and in many ways unprecedented type of political experiment. at
said, some analog y is in my view possible, tracing the evolution of the past and the
present, not only in its wrenching transformative events but also in the slow and
organic process of gradual and incremental change. e metaphor of the sedi-
mentary living’ constitution conjures up the image of organic and incremental
¹ A Sbragia (2008), Distributed governance:  e changing ecology of the European Union’
in B Kohler-Koch and F Larat (eds), Effi cient and Democratic Governance in the European Union,
Connex Report Series No 09 (Mannheim: Connex Report Series), pp 339–55.
¹⁸ See, for example, B de Witte (1998), e pillar structure and the nature of the European
Union: Greek temple or French gothic cathedral? in T Heukels, N Blokker, and M Brus (eds),
e European Union after Amsterdam: A legal analysis ( e Hague: Kluwer Law International),
pp 51–68.
¹⁹ C Lyell (1990), Principles of Geology (Chicago: University of Chicago) (originally published
²⁰ B Friedman and S Smith (1998), e sedimentary constitution’, University of Pennsylvania
L Rev, 147/1, pp 1–90.
²¹ WT Eijsbouts (1996), ‘Constitutional sedimentation’, Legal Issues of European Integration,
23/1, pp 5160.
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Executive Power of the European Union10
growth: gradual rather than sudden (although there may well be distinct and spe-
cifi c impulses, also treaty-based), piecemeal rather than abig bang’.
1.4  e Living Constitution
Legal and structural change is important but so too are the arrangements and
procedures of what can be termed theliving constitution’ (or of aliving tree) as
opposed to the written and formal constitution.  e ‘living Constitution is an
extremely commonplace metaphor in the US context: as Chief Justice William
Rehnquist of the US Supreme Court remarked: ‘the phrase living Constitution
has about it a teasing imprecision that makes it a coat of many colours’.²² e
metaphor of the living tree’ does not necessarily imply that everything in consti-
tutional law is constantly open to change; rather, ‘the very possibility of growth
depends on the trunk and roots remaining rmly in place.²³ e use of the
organic growth implied in the use of the term a living constitutionis inevit-
ably diff erent in the context of the EU as opposed to its use in the context of, for
example, the United States.
In the US there is a written, formal, and political Constitution, adopted demo-
cratically. But there is also an unwritten constitution that ensures that the written
Constitution is not frozen in its contents but evolves over time to meet social,
political, and historical realities unimagined by the framers.²⁴ In the EU context
the roots and trunk are more di cult to locate and were not framedoriginally
at any ratein constitutional terms. In Europe there is not (nor is there likely to
be in the foreseeable future) a written, formal, political constitution—we have by
now a series of treaties that have been de facto supplemented by judicial interpret-
ation in line not necessarily with the original intentions of the framers, but also
with evolving understandings by the judges in particular. Already twenty years
ago the late Judge Federico Mancini eloquently described his view of the mak-
ing of a constitution for Europeby the judges in Luxembourg.²⁵ But this is a
largely judge-made, lower c’ constitution that may at times, particularly in recent
years, take some surprising turns indicating a diff erent status of European inte-
gration as opposed to the norms of public international law in generalagain in
the minds and deeds of the judiciary.
²² W Rehnquist (1976), e notion of a living Constitution’, Texas L Rev, 54, p 693.
²³ J Goldsworthy (1997),Originalism in constitutional interpretation’, Federal L Rev, 25/1, p 29.
²⁴ See, for example, TC Grey (1974–1975), ‘Do we have an unwritten constitution?Stanford L
Rev, 27, pp 70318.
²⁵ GF Mancini (1989), e making of a constitution for Europe’, Common Market L Rev,
26, pp 596614. See more generally GF Mancini (2000), Democracy and Constitutionalism in the
European Union (Oxford: Hart Publishers). See too JHH Weiler (1999), e Constitution for Europe
(Cambridge: Cambridge University Press).
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Geology of the European Union 11
e metaphor of a living entity is however used in this book not only to refer
to the manner in which judges may interpret—and develop—the provisions of a
constitution (or treaty) over time²but also, more generally, to refer to various
incremental practices’ of institutions that indicate an evolving understanding of
the nature of the polity.²⁷  ese lower-level, and at times hidden, practices may
too contribute to the organic growth of the EU and its smooth functioning. Or
they may not and may indeed re ect more a Darwinian evolution that is random,
undirected, non-progressive and indi erent.²⁸
e metaphor of sedimentation suggests that layered under the super cial
outer crust of core understandings (treaty texts as revised over the years) we may
nd more complex sediments of living’ institutions and empirical practices.
Examples include the manner in which, for example, non-formal instruments
such as inter-institutional agreements are used by the core institutions in a struc-
turally invisible fashion in order to agree salient institutional matters among
themselves and to apply them in practice, long before the formal political and
legal system catches up (if at all). is living political (and non-political) matrix is
an essential part of understanding what the EU is becoming and the nature and
scope of the changes that it has e ected on the national systems as a result.
1.5 Dark Matter
Treaty amendments can provide for a framework for institutional change and
development but it takes tradition, conventions, and implementing law to pro-
vide the glue to hold it together in overall constitutional terms. Inter-institutional
conventions or agreements have been referred to as thecartilage enabling the
legal bones to move. Without it a certain constitutional arthritis is bound to
e instrument of ‘inter-institutional agreements’ has been much used
as a relatively informal instrument to oil and even change the interrelationships
among the institutions and introduce more checks and balances into the political
system as a whole.³⁰
In recent years inter-institutional dialogue and in particular the instrument of
inter-institutional agreements has gained considerably in importance in the EU’s
²⁶ See further on this use of the metaphor of the ‘living constitution’, A Kavenagh (2003), ‘ e
idea of a living constitution’, Canadian J of L and Juris, 16/1, pp 5589.
²⁷ For a di erent more generalpoliticaluse of the term ‘living constitution’ in the context
of the EU, see S Gustavsson (2008), e living constitution of the EU’ in B Kohler-Koch and
F Larat (eds), Effi cient and Democratic Governance in the European Union, Connex Report Series
No 09, (Mannheim: Connex Report Series), pp 32538.
² For a nuanced view of the relationship between a Darwinian view of evolution and the meta-
phor of a living Constitution see, S Dodson, (2008) ‘A Darwinist View of the Living Constitution’,
Vanderbilt Law Review, 61/5, pp 1319 47.
²⁹ B Driessen (2007), Inter-Institutional Conventions in EU Law (London: Cameron May).
³ Ibid, p 266.
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Executive Power of the European Union12
legal and political system. One role that such agreements may ful ll in the EUs
institutional architecture is that of engineering’ a particular result or practice
that is agreed and carried out at what has been termed thesub-constitutional
level.³¹ At the same time, endogenous institutional change involving informal
and interstitial dynamics can in certain circumstances feed back into subsequent
(treaty level) institutional change as the detailed work of political scientists Farrell
and Héritier has shown us.³² e argument has been made that the European
Parliament in particular has ‘usedthe instrument of inter-institutional agree-
ments in order to precook, in a sense, the content in certain respects of intergov-
ernmental (treaty reform) conferences.³³ A similar phenomenon can be discerned
with the Commission in the driving seat, attempting to put and keep on the
agenda the issue of the so-called ‘operational framework’ of regulatory agencies,
rst via a draft inter-institutional agreement and, when the Council objected that
there was no legal basis for the rather far-reaching measures proposed, an inter-
institutionaldeclaration (see Chapter 6 below for details).
e question may be put: is the very invisibility and shadowy nature of this
dark’ process not problematic? e Court of Justice, after all, is itself a non-
majoritarian institution that constitutes the oracle’ of EU law in a manner that
has no link with democratic process. At the same time, it might be argued the
ongoing and evolving practices ofliving institutions in the interstices of formal
rules may also be problematic for its very invisibility and perhaps unpredict-
ability. With regard to rule-making, in particular via the method of inter-
institutional agreements, it is sometimes argued that these are concocted and
applied with a non-democratic ‘cocoon of power’.³⁴ e very fact that institu-
tions meet largely behind closed doors to agree and apply rules with uncertain
binding legal e ect is regarded by some scholars as problematic from a demo-
cratic point of view.³ In the words of one scholar:
e findings about these ‘sub-constitutional changes as part of a self-referential interin-
stitutional game do not endorse the democratic quality of the EU per se. ey rather seem
to enhance integration by stealth, or to put it di erently, while the cocoon of power is ever
growing through the formalisation of informal practices by creating legal instruments as
³¹ I Eiselt and P Slominski (2006), ‘Sub-constitutional engineering: Negotiation, content and
legal value of interinstitutional agreements in the EUEuropean LJ, 12/2, pp 209–25. See too,
W Hummer, (2007), ‘From “Interinstitutional Agreements” to “Interinstitutional Agencies/
Offi ces” ’? European LJ 13/1, pp 47–74.
³² H Farrell and A Héritier (2003),Formal and informal institutions under co-decision:
Continuous constitution-building in Europe, Governance: An international journal of policy,
administration and institutions, 16/4, pp 577–600; H Farrell and A Héritier (2007), ‘Co-decision
and institutional change’, West European Politics, 30/2, pp 285–300.
³³ See further D Kietz and A Maurer (2007), e European Parliament in treaty reform:
Predefi ning IGCs through interinstitutional agreements’, European LJ, 13/1, pp 2046.
³ See, in particular, S Puntscher Riekmann (2007), e cocoon of power: Democratic impli-
cations of interinstitutional agreements’, European LJ, 13/1, pp 4–19.
³⁵ See further I Eiselt and P Slominski (2006).
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Geology of the European Union 13
sources of legitimacy, it does not resolve the problem of responsiveness and accountability
vis-à-vis European citizens.³⁶
Other eff orts were however made in parallel to these ongoing processes to bring
the entire process more out in the open, as to the evolving nature of the EU as
a polity, and to give it an overt ‘constitutionalframing in one way or another,
including the adoption of a big bang’ European constitution.
1.6 A ‘Big Bang’ Constitution?
e material constitution of the EU in a juridical or functional sense refers to
the idea that the existing treaties form a constitution for the institutional struc-
ture of Council, European Parliament, Commission, and Court. e role of the
Court in this regard has traditionally been viewed as truly revolutionary, already
declaring and interpreting years ago the constitutional e ects of these treaties,
as aConstitutional Charter in one of its more famed pronouncements.³ In par-
ticular the famous van Gend en Loos and Costa judgments a rmed Community
law as an autonomous legal order, implying that the Community legal order
had a material constitution of its own. When the Court in its path-breaking
decisions took EC law to be an autonomous legal order, it did so on the basis
of a presumed direct relation with the peoples of Europe. It was this premise
that accorded an independent normative authority to the EU and its legal order.
e assumption of independent normative authority has required the adoption
of constitutional doctrines to constrain and legitimate that authorityit was
thus a constitutionalism instrumental to and limited by the claim of normative
Part of the constitutional fabric that has been knitted together over the years
by the Court has related however not only to the legal order but also to the more
political order. e Court has discovered and applied a fundamental ordering
principle with political implications, namely the principle of institutional balance.
It has used that principle to mark out, in a rather preliminary and basic fashion, a
certain balance in the powers of political institutions, rationalized particularly in
terms of the interests or constituencies represented.
In conclusion, the material constitution of the EU, as shaped by the Court in
particular, was there in outline form before the turn of the century. e problem
however with this approach to constitution-making is twofold. First, it repre-
sents a rather haphazard and ad hoc approach to constitution-making. e strong
³⁶ S Puntscher Riekmann (2007), p 19.
³ See further D Curtin (2006b), Making a political constitution for the European Union,
European J of L Ref, 8/1, pp 6576.
³ See further N Walker (2006),EU constitutionalism in the state constitutional tradition,
Current Legal Problems, 59, pp 51–60.
Book 6.indb 13Book 6.indb 13 8/7/2009 12:12:57 AM8/7/2009 12:12:57 AM
Executive Power of the European Union14
aspect has been the conceptualization and implementation of an autonomous
legal order.  e weak point has been the conceptualization and implementation
of a balanced and accountable political system.  e latter can also be considered
a step too farsimply too much to expect of judges as the oracle of the law in a
context where the political authority has been left at the level of the national pol-
itical systems. At the same time, that reality was being outmatched by an evolving
empirical reality of increasingly centralized sources of executive and regulatory
power at the EU level itself.
e second problem with the largely judicial approach to constitution-making
is the elitist and closed process itself. In other words, this legal habit of viewing
the treaties as a juridical or functional constitution never received the kind of
popular endorsement that would have legitimized it as a political constitution.
According to this view, constitutionalized Europe to the extent that it exists,
exists as an aff ront to democracy rather than as a product of it.³⁹ It is, indeed,
rather diffi cult to determine what are the norms which citizens could see them-
selves as the authors of in the absence of a formal constitution. Moreover it is
hard to argue that European citizens have endorsed the material constitution of
the Union in any meaningful sense. European citizens do not see themselves as
authors of the existing material constitution of the EU. e type of constitution-
alism involved was low-intensity rather defensive, in the words of one author.⁴⁰
e constitutional concepts did not a ect the way in which the political pro-
cess operatedthe domain of politics was dominated by their intergovernmental
nature and constitutionalism, as a form of deliberation, was left to the domain of
national political communities.
What the EU does not have, therefore, is a formal documentary constitution
and one, moreover, the product of a subjective act of approval by the people
or their representatives. is idea of a (big ‘C’) Constitution can be referred
to as a democratic or normative or political constitution and the EU does not
have a normative constitution in this democratic sense. Almost a decade ago, the
German Foreign Minister Joschka Fischer delivered a speech in which he inter-
preted the underlying social discontent with the EU as an unarticulated will to
enact a constitution for the EU. It was necessary, according to Joschka Fischer,
to engage in a thorough discussion of the future of the EU, in which the n a l i t é ,
or purpose, of Europe could be discussed and decided upon. e crowning out-
come of such a process would be the drafting of a constitution for the Union
‘which will deserve its name’: in other words it would not be unlike national
constitutions. e idea was that the constitution would be a nal political form
³⁹ N MacCormick (2004–2005), e health of nations and the health of Europe, e
Cambridge Yearbook of European Law Studies 7, pp 1–16.
⁴⁰ MP Maduro (2004), ‘How constitutional can the European Union be?  e tension between
intergovernmentalism and constitutionalism in the European Union’ in J Weiler and C Eisgruber
(eds), Altneuland: e EU Constitution in a contextual perspective, Jean Monnet Working Paper
5/04, <>.
Book 6.indb 14Book 6.indb 14 8/7/2009 12:12:57 AM8/7/2009 12:12:57 AM
Geology of the European Union 15
appropriate to its maturitya sort of coming of age of the EU. e latter is often
referred to as a political or democratic ‘Constitution, a big CConstitution and is
very contestedand contestable.⁴¹
In the political system of the Union, the powers of the core institutions are
amended in intergovernmental conferences agreeing changes to the exist-
ing treaties. Intergovernmental conferences are, as the name already suggests,
diplomatic arenas with conclusions being reached on the basis of diplomatic
inter-state bargaining processes. Exceptionally in terms of treaty revision proc-
esses, the precursor of the Lisbon Treaty, the treaty establishing a Constitution
for Europe, was prepared by a ‘Convention’ composed of members of national
parliaments as well as members of Union institutions andrepresentatives of
the Member States.² e Treaty establishing a Constitution for Europe was
adopted largely after a much more open and deliberative process than the nor-
mal treaty- amendment process. In substantive terms it attempted in Part 1 to lay
down in relatively understandable terms the basic elements of its political and
institutional system in a manner that, at least potentially, was accessible to the
e point is however that even the Treaty establishing a Constitution for
Europe’ was not a big ‘CConstitution that could be compared to the deep struc-
tures of national ‘Constitutions’. It included language and a few distinct provi-
sions that were state-like in their symbolism.⁴³ Especially in Part 1 it structured
and ordered the basic principles of ‘government’ in a visible and largely accessible
fashion. But for the rest it consisted in the main of institutional and substantive
provisions that could have been adopted by the normal treaty-amendment pro-
cess (both Parts 1 and 3).
As is well known—with two negative referendum results in France and the
Netherlandsthe EU did not get its bigC’ formal political Constitution but
instead with the adoption of the replacement ‘Basic Treaty’ got another amend-
ing treaty, the Treaty of Lisbon, with many of the same substantive provisions.
e latter clearly does not aim to be a political or democratic constitution in the
sense of some of the provisions and rhetoric surrounding the failed Constitution
for the EU. Much of the focus since the Lisbon Treaty has been adopted (and
signed) has been on whether it is not the Constitution for the EU in disguise.
In my view this is the wrong question and departure point, despite the fact that
it can—initiallyseem a big issue especially in those countries where it has to
⁴¹ See, in general, A Wiener (2007), ‘Contested meaning of norms: A research framework,
Comparative European Politics, 5/1, pp 1–17.
⁴² e precedent for this convention method was the Convention that deliberated on the con-
tent of the EU Charter of Fundamental Rights concluded in December 2000. See further: <http://>.
⁴³ T Christiansen (2005), ‘Towards statehood? e EUs move towards constitutionalisation
and territorialisation’, ARENA Working Paper, No 21, available at <
Book 6.indb 15Book 6.indb 15 8/7/2009 12:12:57 AM8/7/2009 12:12:57 AM
Executive Power of the European Union16
be decided whether or not to hold a referendum another time round. But it
is regarded as following the same trajectory as the previously existing one: that
of a material, juridical (small ‘c’) constitution—EU constitutionalism without a
Constitutional Treaty.⁴⁵
1.7  e Phoenix Arises
At the time this book went to press the Treaty of Lisbon had not entered into
force. Yet quite irrespective of this fact its provisions cannot be ignored in a book
on executive power of the EU.  e Treaty of Lisbon is but the latest layer poten-
tially to be added to the most visible part of the EU constitution. It is an overlay
that will strengthen, consolidate, and rationalize the existing political system in
particular to varying degrees. If it never happens then it can simply be excised
and the underlying narrative both of visible and invisible constitution making as
well as the incremental growth of executive power in the EU political system as
such remains equally valid and indeed equally strong. In other words the under-
lying narrative of this book is not dependent on the Treaty of Lisbon entering into
force; yet, given the fact that it most probably will enter into force in one form or
another,⁴ it is imperative, given the scope and subject matter of this book, that it
be considered in an upstream fashion and in some of its detail.
e details of the Treaty of Lisbon were hammered out in diplomatic nego-
tiations behind closed doors, with little possibility for input by national parlia-
ments or civil society at that point. In procedural terms it constitutes a legally
convoluted amendment to the two (pre-)existing treaties but substantively it
took over at least 90 per cent of the Treaty for a Constitution for Europe that had
been rejected in two referendum processes (in France and in the Netherlands),
albeit ordered in a less coherent and transparent fashion in structural terms
in the case of the Lisbon Treaty, as well as a number of extra (rather discrete)
is means that even for the specialist it is a considerable challenge to piece the
various changes together as well as their relationship with the previously exist-
ing institutional and constitutional order. On top of that is the fact that the new
institutional set-up under the Treaty of Lisbon has raised a whole series of imple-
mentation questions about support structures and others that will require to be
⁴ See, for example, the opinion of the Dutch Council of State on this question, answering it,
conveniently for the Dutch government, in the negative: Advisory Opinion of 15 February 2008
(W01.08.0004/I/K), available at <>.
⁴⁵ See too S Griller and J Ziller (eds) (2008), e Lisbon Treaty: EU constitutionalism without a
constitutional treaty? (Vienna: Springer).
See in the same sense, A Dashwood (2009), What can be salvaged if the Treaty of Lisbon is
lost?’ in MK Bulterman et al (eds), Views of European Law from the Mountain ( e Hague: Kluwer),
pp 335–44.
Book 6.indb 16Book 6.indb 16 8/7/2009 12:12:58 AM8/7/2009 12:12:58 AM
Geology of the European Union 17
worked out—behind the scenesin principle in advance of the treaty actually
entering into force.
It is beyond the scope of this book to analyse these provisions in any detail with
the exception of those relating to executive power.⁴⁷  e approach that has been
taken is to describe in any event the status quo, the situation after the Treaty of
Nice. In addition, the substantive discussion of the manner in which an evolution
was conceived to take place, more in the nature and numbers of formal political
actors, their roles, and tasks, both in the run-up to the Treaty of Lisbon and in
the actual provisions of the Treaty of Lisbon itself, are incorporated into the sub-
stantive and thematic discussion throughout the book.⁴⁸  e reality however at
the time this book went to press was that it was not known conclusively whether
indeed the Treaty of Lisbon will enter as such into force, although the indicators
are auspicious. e outcome of the Brussels Summit in December 2008in
particular the Irishdecision contained in the European Council conclusions
and the special protocol(s) planned to be included in a future accession treaty
with Croatiahave increased the likelihood that when the Irish vote in a second
referendum in Autumn 2009 the outcome will be positive.⁵⁰
In the event however that Ireland does not ratify, the expectation is that the
substance of what was agreed in the Lisbon Treaty will enter into force in some
manner—possibly without the participation of Ireland (or in a lesser institutional
context, for example in the outer chamber of the European Economic Area).
Moreover the specifi c provisions of the Lisbon Treaty, certainly with regard to
executive power, form part of a wider and deeper narrative that is ongoing and
will continue quite irrespective of the formal entry into force of the formal provi-
sions of the treaty as such. Very often such formal treaties represent an oppor-
tunity forcatch-up in formal treaty provisions for what has to a large extent
being going on in practice anyway. e story is, of course, ongoing and to be
continued. e fact that this is so in my view removes none of the salience of an
underlying examination of the nature and scope of executive power in the EU
and the manner of its evolution both in primary law (treaty-level amendment)
⁴⁷ See, for chapter and verse, R Barents (2008), Het Verdrag van Lissabon: Achtergronden
en Commentaar (Deventer: Kluwer); KH Fischer (2008), Der Vertrag von Lissabon: Text und
Kommentar zum Europäischen Reformvertrag (Baden-Baden: Nomos). See too S Griller and J
Ziller (eds), e Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna:
⁴⁸ is book refers to the new numbering of the (consolidated) Treaty of European Union as
TEU, Lisbon and the Treaty on the Functioning of the European Union as (TFEU). e Nice
Treaty is referred to simply as TEU and TEC.
See further Presidency Conclusions, Brussels European Council 11 and 12 December 2008,
available at <
pdf>. See too, J Crosbie (2009), ‘Support for Lisbon rises in Ireland, (1 June
2009) showing that 54% of Irish voters) are now in favour of the Lisbon Treaty.
See for a more detailed analysis, D Curtin (2009), e Irishno to the Lisbon Treaty:
Irelands voice and Europe’s exit’, Zeitschrift für Staats- und Europawissenschaften/Journal for
Comparative Government and European Policy, pp 31–50.
Book 6.indb 17Book 6.indb 17 8/7/2009 12:12:58 AM8/7/2009 12:12:58 AM
Executive Power of the European Union18
and in (legal and institutional) secondary practices’. e underlying narrative in
the various and multiple tides of treaty and other reforms is quite simply that of
the expansive nature of executive power, moving in and out of the shadow, and
encased in various layers and sediments.
Moreover, there is nothing speci c to the EU about this situation. One of the
overall trends of our times is the expansiveness of executive power, at the national
level, at the European level, and even at the international level. e Treaty of
Lisbon makes this element of executive power more visible but it does not create
it; failure to ratify it will also not eliminate it. On the contrary, failure to ratify
may well aggravate it and force it more underground and less subject to checks
and balances in a constitutional sense. Taken as a whole, the Lisbon Treaty does
not aggravate the democratic de cit but improves it in a few distinct ways without
by any means eliminating it. e rule of law is strengthened as a result of the more
streamlined role given to the courts in Luxembourg in partnership with national
courts. It makes more visible than was previously the case what the political sys-
tem of the EU is, who the actors are, what their powers are, and the nature of their
decisions in language that can be compared to what happens in national political
and constitutional systems. is does not mean that a super-state is being cre-
ated, rather that we nd at the European level the same phenomena that we fi nd
at the national leveland indeed increasingly at the international level too.
e di erence with the EU level of governance as opposed to either the formal
or the informal international levels of governance is that in the former we have
a political, constitutional, and legal system at that level of governance capable of
providing countervailing power to the ‘impetuous vortex’ at times of expanding
executive power. Only in the European system can, as a result of sustained case
law by the European Courts, the Council be forced as an ultimate sanction to
remove a suspected terrorist organization from the Europeanblack list.¹ In
the United Nations system a similar remedy is not available to individuals (and
groups of individuals) who feel that their human rights and rights of criminal
procedure have been hollowed out from above.
1.8 Mapping the Existing Literature
In the existing literature on the EU, the contours and map of EU executive
power in both its political and administrative components is a surprisingly
under- researched subject.⁵² e formal structure and contours of the executive,
⁵¹ is was as a result of the OMPI line of case law. See Cases T-228/02 Organisation des
Modjahedines du peuple dIran v Council and UK [2006] ECR II-4665 and T-256/07 People’s
Mojahedin Organization of Iran v Council, judgment of 23 October 2008, not yet reported. See too
T-284/08 Peoples Mojahedin Organization of Iran v Council, judgment of 4 December 2008, nyr.
⁵² Executive bodies’ policy formulation and implementation activities are thought to be at least
partly accounted for by considering the way that they are organized and sta ed, and by viewing
Book 6.indb 18Book 6.indb 18 8/7/2009 12:12:58 AM8/7/2009 12:12:58 AM
Geology of the European Union 19
understood as embracing both the political and administrative levels, are rarely
the subject of explicit focus in legal or constitutional law textbooks—this has per-
haps to do with the fact that constitutional law in particular tends to focus often
on certain core constitutional doctrines (such as that of ministerial responsibility
to Parliament) or to look at (aspects of) executive behaviour through the prism
of judicial review. Lawyers tend to focus, when using the term ‘executive’, on the
core political level as opposed to the underlying bureaucracy. For example, Craig
and Tomkins in their edited volume on e Executive and Public Law⁵³ focus
above all on the power and accountability of the political level of the executive.
ere are many legal textbooks, however, that look only at the ‘administrationin
terms of administrative law proper⁵⁴ rather than, more broadly, law and adminis-
tration in a general constitutional perspective.⁵ To my knowledge, e Executive
in the Constitution is one of the few (legal) books to take a holistic approach to
both political and administrative levels and the interconnections between both
in the speci c (unwritten) constitutional context of the United Kingdom.⁵⁶  e
work of political scientist Egeberg is however exemplary of a more holistic ap-
proach in the EU context.⁵⁷
ere is no existing book that focuses in a broad-brush manner on the
executive power at the exclusively EU level of governance and across its entire
spectrum, although this may well be changing.⁵⁸ ere is a certain tendency
among political scientists when describing aspects of the political system of
the EU to focus on one or more aspects of what can be described as executive
power of the EU and to map it empirically in a detailed fashion, using either
(or both in some cases) quantitative research methods (surveys, etc) or qualita-
tive methods (interviews, etc). is has been done, for example, with regard to
(aspects of ) the Commission, comitology committees, agencies, networks, etc.
In addition, political scientists will tend to focus onpower and ‘behaviour
their relationship with other institutions of government (for example parliament or the courts).
Understanding how executive institutions and their inter-institutional arrangements them-
selves change constitutes a rather common focus point for subgroups within political science and
public administration. See, for example, M Egeberg (ed) (2007), Institutional Dynamics and the
Transformation of Executive Politics in Europe (Mannheim: Connex Report Series, 3).
³ P Craig and A Tomkins (2006), e Executive and Public Law: Power and accountabi