Introduction

The constitutional distinction between internal and external affairs emerges with the rise of the territorial State. With political communities becoming defined by geographical borders, foreign affairs would refer to those matters that entailed an ‘external’ dimension. The recognition of foreign affairs as a distinct public function received its classic formulation in the political philosophy of John Locke. Locke classified all external competences under the name ‘federative’ power, that is: ‘the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth’.

This definition reveals the classic scope of the foreign affairs power. It was the power to decide over war and peace. The treaty power is here principally perceived as an appendage to the right of war. Foreign affairs were consequently considered part of the executive power. For relations between States were thought to have remained in a ‘natural state’. And their ‘law-less’ character provided an argument against the allocation of external powers to the legislative branch.

In the modern world, this reasoning is not as persuasive as 300 years ago. The military connotations behind foreign affairs have partly been replaced by the rise of the international treaty as a ‘legislative’ instrument. With the internationalisation of trade and commerce in the eighteenth century, a new foreign affairs occupation became consolidated: regulatory international agreements. The amount of tariffs for goods needed to be regulated; river navigation had to be coordinated; and intellectual property rights required to be protected. This development led one of the drafters of the 1787 US Constitution to suggest placing the treaty-making power ‘in between’ the rival constitutional claims of the executive and the legislative department.

Globalisation and the economic interdependence in the twenty-first century have much intensified the need for – peaceful – legal coordination between States. Yet, the Union is not a State – it is a Union of States. Is it nonetheless entitled to partake in the international affairs of the world? This depends – of course – on the structure of international law, as well as the European Treaties themselves. The 1957 Treaty of Rome had already acknowledged the international personality of the European Community, and the Treaty on European Union grants such legal personality to the Union.

As one country after another was admitted into the intensive-care ward of a bail-out, the regimen was the same: a combination of austerity and structural reforms. Countries like Italy and Spain seeking to avoid the humiliation of a full rescue (Spain's national pride was salved by confining its bail-out to its banks) self-administered some of the same medicine. The balance and timing of the treatment was ill-gauged: there was too much austerity at the start and insufficient reforms. But the need for the latter appeared indisputable. Indeed, one interpretation of the euro crisis was that the single currency had exposed underlying flaws, in particular defective labour and product markets, in the crisis countries that would eventually have had to be tackled in or out of the monetary union.

One purpose of the reforms was to make southern economies more flexible and thus better able to regain competitiveness through lowering domestic costs. Another was to foster stronger growth, which would allow economies to deal with excessive debt, both public and private. As one senior German official put it, the new fiscal rules were needed to deal with the numerator – the government debt itself – while the structural measures were required to boost the denominator – GDP. Pension reforms were part of the remedy. Though generally slow working, they had the advantage of operating on both the numerator by making budgetary savings and the denominator by keeping older people in work, thus increasing the labour supply and potential output.

An alternative interpretation of the euro crisis was that the faith placed in reforms was overstated and that the difficulties afflicting the periphery had arisen by joining a monetary union that put them into a straitjacket. The case for overhauling the supply-side of European economies was after all long-standing, informing the ‘Lisbon agenda’, set out at a summit in Portugal in March 2000, which aimed to turn the EU over the ensuing decade into ‘the most competitive and dynamic knowledge-based economy in the world’, a vision that was not realised.

The Commission

The technocratic character of the early European Union expressed itself in the name of a fourth institution: the Commission. The Commission constituted the centre of the European Coal and Steel Community, where it was ‘to ensure that the objectives set out in [that] Treaty [were] attained’. In the European Union, the role of the Commission is, however, ‘marginalised’ by the Parliament and the Council. With these two institutions constituting the Union legislature, the Commission is now firmly located in the executive branch. In guiding the Union, it – partly – acts like the Union's government (in the strict sense of the term). This section analyses the composition and structure of the Commission, before looking at its internal decision-making procedures. The functions and powers of the Commission will be discussed next, before an excursus briefly presents European Agencies as auxiliary organs of the Commission.

Composition and Structure

The Commission consists of one national of each Member State. Its members are chosen ‘on the ground of their general competence and European commitment from persons whose independence is beyond doubt’. The Commission's term of office is five years. During this term, it must be ‘completely independent’. Its members ‘shall neither seek nor take instructions from any Government or other institution, body, office or entity’. The Member States are under a duty to respect this independence. Breach of the duty of independence may lead to a Commissioner being ‘compulsorily retired’.

How is the Commission selected? Originally, the Commission was ‘appointed’. The appointment procedure has subsequently given way to an election procedure. This election procedure has two stages. In a first stage, the President of the Commission will be elected. The President will have been nominated by the European Council ‘[t]aking into account the elections to the European Parliament’, that is: in accordance with the latter's political majority. The nominated candidate must then be ‘elected’ by the European Parliament. If not confirmed by Parliament, a new candidate needs to be found by the European Council.

After the election of the Commission President begins the second stage of the selection process. By common accord with the President, the Council will adopt a list of candidate Commissioners on the basis of suggestions made by the Member States.

Introduction

The creation of governmental institutions is the central task of all constitutions. Each political community needs institutions to govern its society; as each society needs common rules and a method for their making, execution and arbitration. It is no coincidence that the first three articles of the 1787 American Constitution establish and define – respectively – the ‘Legislative Department’, the ‘Executive Department’ and the ‘Judicial Department’.

The European Treaties establish a number of European institutions to make, execute and arbitrate European law. The Union's institutions and their core tasks are defined in Title III of the Treaty on European Union. The central provision here is Article 13 TEU:

The provision lists seven governmental institutions of the European Union. They constitute the core ‘players’ in the Union legal order. What strikes the attentive eye first is the number of institutions: unlike a tripartite institutional structure, the Union offers more than twice that number. The two institutions that do not – at first sight – seem to directly correspond to ‘national’ institutions are the (European) Council and the Commission. The name ‘Council’ represents a reminder of the ‘international’ origins of the European Union, but the institution can equally be found in the governmental structure of Federal States. It will be harder to find the name ‘Commission’ among the public institutions of States, where the executive is typically referred to as the ‘government’. By contrast, central banks and courts of auditors exist in many national legal orders.

Introduction

What are the ‘executive’ powers of the European Union? In many constitutions the executive branch has a residual character: anything that is neither legislative nor judicial is considered to fall within its scope. The negative definition of the executive function has historical reasons. For the original purpose of the separation-of-powers principle was to remove powers from an almighty monarch to a Parliament and the judiciary.

The problem with this negative definition however is its uncertain and relative nature; and serious attempts have been made positively to identify ‘prerogatives’ of executive power. Outside the field of external relations, two such prerogatives have traditionally been recognised. First, the executive power is – naturally – identified with the task of executing laws, and thus with the aim of maintaining internal peace. The task of law enforcement is complemented by a second – seemingly contradictory – demand. Executive power is identified with the power to ‘govern’, that is: to lead and direct the political community. The executive branch is here the ‘centre of impulse and decision’. Despite their contradictory outlook, both traditional prerogatives of the executive – the reactive task to enforce laws and the active task to propose laws – are still based on a common idea: the executive enjoys the power of decision.

The power of decision is typically contrasted with the power to adopt legislation. For in the ‘legislative State’ of the nineteenth century all legal norms must be adopted by Parliament. And that Parliament cannot delegate power to the executive was seen as ‘a principle universally recognized as vital to the integrity and maintenance of the [democratic] system of government ordained by the Constitution’. This constitutional ideal would however find limits in the normative needs of the ‘administrative State’ of the twentieth century. Modern parliaments would simply have no time – nor expertise – to ‘master all the details of tea chemistry and packaging in order to specify the precisely allowable limits of dust, artificial coloring, and the like that would affect suitability for consumption’. Industrial societies required a ‘motorised legislator’; and this secondary ‘legislator’ was to be the executive. The advent of the legislating executive indeed ‘constitutes one of the most important transformations of constitutionalism’. In the administrative State the executive branch thus gains a third power: the power to adopt (delegated) legislation.