Organization and duties of the European Union institutions Organization and duties of the European Union institutions Author: Ioana Nely Militaru… [609389]
Ioana Nely Militaru
Organization and duties of the European
Union institutions
Organization and duties of the European
Union institutions
Author: Ioana Nely Militaru
Activity
Ioana Nely Militaru, PhD., is Associate Profess or at the Law Department of the
Bucharest University of Economic Studie s, where he specializes in European Un-
ion law and business law. She is a member of the Organizing Committee of the
International Conference „Perspectives of Business Law in the Third Millen-
nium”.
Publications
Ioana Nely Militaru is author of numerous book s and articles from which we
mention the article s Citizenship of the European Union under the Treaty of Lis-
bon, „Juridical T ribune”, vol. I, issue 1, 2011; Court of Justice of the European
Union – International Court , „Perspectives of Business Law” Journal , Volume 4,
Issue 1, November 2015; conference proceedings: Special Procedures for the
Adoption of EU Legal Acts in Cătălin -Silviu Săraru (ed.), Studies of Business Law
– Recent Developments and Perspectives , Peter Lang, Frankfurt am Main, 2013 ;
books: Dreptul afacerilor (Business Law) , Universul Juridic Publishing House,
Bucharest, 2013; Dreptul Uniunii Europene (E uropean Union Law), 3rd edition,
reviewed and added, Universul Juridic Publishing House, Bucharest, 2017; editor
of the book Diversity and Interdisciplinarity in Business Law. Contributions to
the 7th International Conference "Perspectives of Business Law in the Third Mil-
lennium ", ADJURIS – International Academic Publisher, Bucharest 2017.
Ioana Nely Militaru
Organization and duties of the European
Union institutions
Bucharest 201 9
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Table of Contents
Chapter 1. Institutions, offi ces and agencies of the European Union ……….. 9
1.1. The institutional framework of the European Union …………………….. 9
1.2. Bodies of the European Union ………………………….. …………………….. 10
1.3. Principles on which the institutional structure of the European
Union is based ………………………….. ………………………….. …………………….. 17
Chapter 2. The European Parliament ………………………….. ……………………… 21
2.1. Regulation of the institution of the European Parliament …………….. 21
2.2. Composition and o rganization of the European Parliament …………. 23
2.3. Functions of the European Parliament ………………………….. ………….. 33
2.3.1. Regulation of the functions of the Eur opean Parliament ………… 33
2.3.2. Defining the functions of the European Parliament ………………. 34
2.3.3. The European Parliament's tasks in the Union' s external
action ………………………….. ………………………….. ………………………….. …. 47
2.3.4. Relations of the European Parliament with national
parliaments ………………………….. ………………………….. ……………………… 48
Chapter 3. The European Council ………………………….. ………………………….. . 51
3.1. Regulation of the institution of the European Council prior to
the Lisbon Treaty ………………………….. ………………………….. ………………… 51
3.2. The European Council accordi ng to the Treaty of Lisbon ……………. 53
3.3. Composition and organization of the European Council ……………… 53
3.4. Operation of the European Council ………………………….. ……………… 54
3.5. Functions of the European Council ………………………….. ……………… 57
3.6. Relations of the European Council with other institutions of the
Union ………………………….. ………………………….. ………………………….. ……. 61
Chapter 4. The Council ………………………….. ………………………….. ………………. 62
4.1. Regulations of the Council institution ………………………….. ………….. 62
4.2. C omposition and organization of the Council ………………………….. .. 63
4.3. Operation of the Council. Council meetings ………………………….. ….. 70
4.4. How to make decisions within t he Council? ………………………….. ….. 72
6 Table of Contents
4.5. Functions of the Council ………………………….. ………………………….. … 78
4.5.1. Regulation and definition of Council functions …………………….. 78
Chapter 5. European Commission ………………………….. ………………………….. . 88
5.1. Regulation of the institution of the European Commission ………….. 88
5.2. Composition and organization of the European Commission ………. 89
5.3. Functions of the European Commission ………………………….. ……….. 99
5.3.1. Regulation of the functions of the European Commission ……… 99
5.3.2. Defining the functions of the European Commission …………… 100
Chapter 6. The Court of J ustice of the European Union ……………………… 116
6.1. Regulation of the institution of the Court of Justice ………………….. 116
6.2. Composition and organization of the Court of Justice ……………….. 117
6.2.1. Court of Justice – representative court ………………………….. …… 117
6.2.2. Statute of the members of the Court of Justice ……………………. 120
6.2.3. The registry office of the Court of Justice. Clerk -chief and
deputy clerks ………………………….. ………………………….. ………………….. 121
6.2.4. The services of the Court of Justic e ………………………….. ………. 122
6.2.5. Presidency of the Court and constitution of the chambers ……. 122
6.3. Functioning of the Court of Justice ………………………….. …………….. 125
6.4. Functions of the Court of Justice ………………………….. ……………….. 126
6.4.1. Regulation of the functions of the Court of Justice ……………… 126
6.4.2. Court of Justice – administrative court ………………………….. ….. 126
6.4.3. Court of Justice – constitutional court ………………………….. ……. 128
6.4.4. Court of Justice – international court ………………………….. …….. 129
6.4.5. The Court of Justice more than an international court …………. 130
6.4.6. Preliminary refer ence – special interpretation function ………… 132
6.5. Jurisdiction of the Court of Justice ………………………….. …………….. 133
6.5.1. Material competence ………………………….. ………………………….. 133
6.5.2. Functional competence ………………………….. ……………………….. 133
6.6. Actions before the Court of Justice of the European Union
according to its competence ………………………….. ………………………….. … 134
6.6.1. Action for annulment (art. 263, art. 264 TFUE) ………………….. 137
6.6.2. The exception of illegality (art. 277 TFEU, art. 156
TEuratom) ………………………….. ………………………….. …………………….. 142
6.6.3. The action determined by the refusal of the Union
institutions to act (deficiency action – art. 265 TFEU, art. 148
TEuratom) ………………………….. ………………………….. …………………….. 143
Table of Contents 7
6.6.4. Action in finding a Member State's breach of its obligations
under the Treaties (art. 258 -260 TFEU, art. 141 -143 TEuratom) …… 145
6.6.5. Action against pecuniary sanctions (art. 261 TFEU) ……………. 148
6.6.6. Actions brought by Union agents (art. 270 TFEU and
art. 152 TEuratom) ………………………….. ………………………….. …………. 150
6.6.7. The action in liability ………………………….. ………………………….. 150
6.6.8. Appeal of the Court of Justice against the decisions of the
General Court ………………………….. ………………………….. ………………… 154
6.6.9. Review by the Court of Justice of decisio ns taken by the
General Court on the basis of the TFEU and the Statute of the
Court of Justice of the EU ………………………….. ………………………….. .. 156
6.6.10. Preliminary reference to the Court of Justice ……………………. 156
6.7. General Court ………………………….. ………………………….. ……………… 161
6.7.1. Regulation. Necessity of establishing the General Court/
Court of First Instance ………………………….. ………………………….. …….. 161
6.7.2. Composition, organization and functioning of the General
Court ………………………….. ………………………….. ………………………….. … 162
6.7.3. Jurisdiction of the General Court ………………………….. ………….. 164
6.8. The specialized courts ………………………….. ………………………….. ….. 167
6.8.1. Civil Service Tribunal of the European Union (CSTEU) ……… 168
6.9. The contrib ution of the Court of Justice of the European Union
in the integration process ………………………….. ………………………….. ……. 171
Chapter 7. The Court of Auditors of the European Union …………………… 173
7.1. Regulation of the institution of the EU Court of Auditors ………….. 173
7.2. Composition and organization of the Court of Accounts …………… 173
7.3. Operation of the EU Court of Auditors ………………………….. ………. 176
7.4. Duties of the Court of Auditors of the European Union …………….. 177
7.4.1 . Regulation and definition of the tasks of the Court of
Auditors of the European Union ………………………….. ……………………. 177
7.4.2. Exercise of the powers of the EU Court of Auditors ……………. 180
Chapter 8. European Central Bank ………………………….. ……………………….. 181
8.1. Regulation of the European Central Bank ………………………….. …… 181
8.2. Objects and missions of the European System of Central
Banks – ESCB ………………………….. ………………………….. …………………… 182
8.3. Composition, organization and competences of the European
Central Bank ………………………….. ………………………….. …………………….. 183
8 Table of Contents
8.4. National central banks of the Member States ………………………….. . 188
Chapter 9. The advisory bodies of the European Union ………………………. 189
9.1. European Economic and Social Committee ………………………….. … 189
9.1.1. Regulation of the European Economic and Social
Committee ………………………….. ………………………….. …………………….. 189
9.1.2. Organization of the EESC ………………………….. …………………… 189
9.1.3. Composition of the Economic and Social Committee.
The status of members ………………………….. ………………………….. …….. 191
9.1.4. Competence of the European Economic and Social
Committee ………………………….. ………………………….. …………………….. 192
9.2. Euratom Scientific and Technical Committee
(art. 134 TEuratom) ………………………….. ………………………….. …………… 194
9.3. Committee of the Regions (CoR) ………………………….. ………………. 196
9.3.1. Organization of the Committee of the Regions (CoR) …………. 196
9.3.2. Composition of the Committee of the Regions.
The status of members ………………………….. ………………………….. …….. 198
9.3.3. Competence of the Committee of the Regions ……………………. 199
9.4. European Investment Bank ………………………….. ……………………….. 202
9.4.1. Regulation of the European Investment Bank …………………….. 202
9.4.2. Resources of the European Invest ment Bank ……………………… 203
9.4.3. The EIB Group. Structure ………………………….. ……………………. 204
9.4.4. Composition and competence of the European Investment
Bank ………………………….. ………………………….. ………………………….. …. 204
9.4.5. The European Investment Bank and the new investment
program for the European Union ………………………….. …………………… 206
Bibliography ………………………….. ………………………….. ………………………….. … 208
Chapter 1. Institutions, offices and agencies of the
European Union
1.1. The institutional framework of the European Union
✓ The Union has a unique institutional framework aimed at promoting
values, pursuing objectives and supporting its interests, of its citizens and Mem-
ber States, as well as ensuring the coherence, effectiveness and continuity of its
policies and actions [ar t. 13 paragraph (1) of the Treaty on European Union
(TEU), Title III, "Provisions regarding institutions"].
The institutions of the Union are:
– European Parliament;
– the European Council;
– the Council;
– European Commission (hereinafter referred to as " the Commission");
– The Court of Justice of the European Union;
– European Central Bank;
– Court of Auditors.
✓ The institutional framework of the European Union1 is wider than the
Community one2, by adding two institutions: the European Council and the Eu-
ropean Central Bank. Thus, through the institutional treaties of the Communities
– Treaty establishing the Eur opean Coal and Steel Community (TECSC), Treaty
establishing the European Economic Community (TEEC), Treaty establishing the
European Atomic Energy Community (EAEC – Teuratom) – parallel institutions3
with similar attributions were created: the Parliamentar y Assembly (the European
Parliament), the Special Council of Ministers (the Council), the Executive Com-
mission (the Commission) and the Court of Justice. The Parliament and the Court
of Justice are joint since 1957 by the Convention on certain common insti tutions,
signed at the same time with the EEC and EAEC Treaties (in Rome), and since
1967 (July 1)4 the Council and the Commission have been unified by the Merger
Treaty of executives, from Brussels.
✓ The three Communities initially had four institutions – the Parliament,
the Council, the Commission and the Court of Justice, and since 1993, through
1 See A. Fuerea, Manualul Uniunii Europene , 5th edition, revised and added after the Lisbon Treaty,
Ed. Universul Juridic, Bucharest, 2011, p. 84 et seq.
2 See R. Joliet, Le droit institutionnel des Communautés Éuropéennes , Faculté de Droit d'Economie
et de Sciences Sociales de Liège, 1981.
3 These are the first four: T he Parliamentary Assembly (the European Parliament), the Special
Council of Ministers (the Council), the Executive Committee (the Commission) and the Court of
Justice, because the Court of Acc ounts later acquired the status of institution through the Maastricht
Treaty.
4 The executive merger treaty was signed in Brussels in 1965 and entered into force in 1967.
10 Ioana Nely Militaru
the Maastricht Treaty (TMs), the Community institutional mechanism and the
Court of Accounts have been added. Through the Lisbon Treaty, in 2009, the
Union tak es over, in succession, the five Community institutions, to which the
European Council and the European Central Bank add.
✓ The community institutions were designed according to the model and
according to the principles of the internal public law, therefore we are not in the
presence of international institutions, but of internal institutions of a Community1.
However, the pri nciple of organizing the Communities from an institu-
tional point of view does not conform to the traditional separation of powers be-
tween the legislative, executive and judicial spheres, but rather the representation
of interests2, a feature maintained by the Lisbon Treaty.
Therefore, each community institution represents a specific interest in the
community decision -making process, as follows:
– The Court of Justice ensures the observance of the law;
– through the Council, the states intervene in the funct ioning of the Com-
munities, this institution being composed of "one representative from each Mem-
ber State (…)"3;
– The Commission represents the general interest of the Communities;
– The European Parliament represents the interests of the people/citizens ;
– The Court of Accounts verifies the legality, regularity and reliability of
the use of funds by the Community institutions4.
The same interests are also represented by the Treaty of Lisbon, with the
only difference being the replacement of the term "com munity" with "union".
We add the "interest" represented by the European Council and the Eu-
ropean Central Bank (ECB). Thus, the European Council represents the general
political interests of the Union, by defining its orientations and priorities, while
the ECB and the national central banks of the Member States lead the monetary
policy of the Union.
Each institution acts within the limits of the attributions conferred on it
by the treaties, in accordance with the procedures, conditions and purposes pro-
vided by them (13 par. 2 TEU).
1.2. Bodies of the European Union
The bodies of the Union – its offices and agencies – were created for the
exercise of the powers conferred by treaties.
✓ The institutional structure is supplemented by bodies of the Union that
1 See L. Cartou, L’Union européenne. Traités de Paris -Rome -Maastricht , Dalloz, Paris , 2006 , pp.
67-68.
2 See R. Munteanu, Drept European , Ed. Oscar Print, Bucharest, 1996, p. 191.
3 Art. 203 paragraph (1) TCE.
4 See C. Lefter, Fundamente ale dreptului comunitar instituțional , Ed. Economică, Bucharest, 2003,
p. 119.
Organizat ion and duties of the European Union institutions 11
perform advisory functions or with technical or financial character1.
Some of these are created by treaties, while others are created by institu-
tions, based on the treaties, in order to exercise the powers conferred by treaties2.
✓ The following bodies are provided by the treaties:
– The European Economic and Social Committee (EESC) is regulated by
art. 13 paragraph (4) YOU, art. 301 -304 TFEU and Council Decision (EU, Eur-
atom) 2015/1790 of 1 October 2015 appointing members to the European Eco-
nomic and Social Committee for the period 21 September 2015 -20 September
2020;
– The Committee of the Regions3 (CR) is regulated by art. 13 paragraph
(4) TEU, art. 300 and art 305 -307 TFEU and Council Decision (EU) 2015/116 of
26 January 2015 appointing members and altern ates to the Committee of the Re-
gions for the period from 26 January 2015 to 25 January 2020;
– The Euratom Technical Committee or the Euratom Supply Agency4 has
legal personality and financial autonomy and is provided by art. 54 TEuratom.
The Euratom Suppl y Agency was established by the Euratom Treaty. It became
operational on June 1, 1960.
These bodies exercise advisory functions.
The European Investment Bank (EIB) is regulated by art. 308 and art.
309 of the Treaty on the Functioning of the European Union (TFEU). Additional
provisions regarding the EIB are included in art. 15, art. 126, art. 175, art. 209,
art. 271, art. 287, art. 289 and art. 343 TFEU5. The EIB is a financial body with
legal personality, which finances investment projects in such a way as to contrib-
ute to a balanced development of the Union (art. 308 TFEU). The EIB finances
investment projects through the European Investment Fund (EIF) 6.
Among the bodies set up by the institutions under the treaties, in order to
1 The Council and the Commission are assisted by numerous groups and committees, which is why
a classification that includes the bodies created by the institutions is difficult to achieve. The Com-
mission has drawn up a list of subsidiary bodies. To be seen R. Munteanu, op. cit ., p. 259 (and the
works cited there).
2 See R. Munteanu, op. cit ., pp. 258 -259.
3 See T. Ștefan, B. Andreșan -Grigoriu, Drept comunitar , Ed. C.H. Beck, Bucharest, 2007, p. 45.
4 See Council Decision of 12 February 2008 establishing the Statute of the Euratom Supply Agency
(Official Journal L 41 of 15 February 2008); 2008/114/EC, Euratom.
5 See also Protocol (No. 5) on the Statute of the European In vestment Bank and Protocol (No. 28)
on economic, social and territorial cohesion, annexed to the TEU and the TFEU.
6 The EIF was created by a decision of the Board of Governors of May 25, 1993 and began its
activity in 1994. It was created to support small businesses. EIF shareholders are the EIB, the Com-
mission and various financial institutions in Europe, together forming the "EIB Group". The EIF
offers the following products: venture capital and microfinance for SMEs, especially for new and
innovative co mpanies, guarantees for financial institutions intended to cover loans granted to
SMEs, aid for EU countries and acceding countries, in order to strengthen venture capital markets.
It also provides guarantees to financial institutions, for example banks, t o cover loans granted to
SMEs. To be seen https://europa.eu/ europeanunion/about -eu/institutions -bodies/european -invest-
ment -bank_ro#fondul _european_de_ invesțiții_(fei)5 .
12 Ioana Nely Militaru
exercise the powers confer red we mention:
– The Permanent Representatives Committee (Coreper) is composed of
the permanent representatives of the governments of the Member States. The
committee is responsible for preparing the work of the Council and for executing
the mandates inhe rited by it. The Committee may adopt procedural decisions in
the cases provided for in the Council's Rules of Procedure (Article 240 par. 1
TFEU);
– The Political and Security Committee (art. 38 TEU)1 is created to follow
the international situation in the fields related to the common foreign and security
policy and to contribute to the definition of policies, issuing opinions addressed
to the Council, at its request, of the High Representative of the Union for foreign
affairs and security policy or on its own initiative. The Committee oversees the
implementation of the agreed policies, without prejudice to the duties of the High
Representative. Under the Common Foreign and Security Policy (CFSP), the
Committee exercises, under the authority of the Council a nd the High Representa-
tive, political control and strategic management of crisis management operations
(referred to in Article 43).
– Structural funds, although they do not have legal personality, have a
certain financial autonomy. The Union's objectives r egarding economic, social
and territorial cohesion are achieved by the Union through the Structural Funds:
• The European Agricultural Guidance and Guarantee Fund
(EAGGF) section "Guidance" [art. 175 paragraph (1) TFEU];
• European Social Fund [art. 175 paragr aph (1) TFEU];
• European Regional Development Fund (ERDF), EIB and other ex-
isting financial instruments (Article 175 TFEU). The ERDF is
meant to contribute to the correction of the main regional imbal-
ances in the Union, by participating in the development a nd struc-
tural adjustment of the regions lagging behind and in the conver-
sion of the industrial regions in decline (art. 176 TFEU);
• The cohesion fund. This fund contributes financially to the reali-
zation of projects in the field of the environment and in th at of the
trans -European networks of transport infrastructure [art. 177 para.
(2) TFEU].
– The inter -institutional bod ies of the European Union are: T he Office for
Official Publications of the European Union and the Personnel Selection Office
of the Europe an Communities; European School of Administration (ESA):
• The Office for Official Publications of the European Union
(EUR -OP). According to Euratom Decision 2009/496/EC2,
1 For example, Coreper set up the Political and Security Committee and the Monetary and Financial
Committee.
2 Decision 2009/496/EC, Euratom, the European Parliament, the Council, the Commission, the
Court of Justice, the Court of Auditors, the European Economic and Social Committee and the
Organizat ion and duties of the European Union institutions 13
EUR -OP is an interinstitutional office that ensures the publica-
tion of Union instituti ons' publications1.
• European Personnel Selection Office (EPSO). It was established
by Decision 2002/620/EC2, the organization and functioning of
the Office being regulated by Decision 2002/621/EC3. EPSO or-
ganizes open competitions in order to ensure the em ployment of
officials in the institutions of the European Union.
• The European School of Administration (ESA) was established.
by Decision 2005/118/EC4 and, for economic and efficiency rea-
sons, was affiliated with the European Union Personnel Selection
Office. The organization and functioning of the EAS are regu-
lated by Decision 2005/119/EC5. The EAS conceives, organizes
and evaluates, on behalf of the institutions of the Union: training
courses for officials and agents who must or should exercise
management positions; initiation courses to start the activity for
the new staff members; compulsory training of Union officials
within the transition from one group of functions to another6.
– The decentralized agencies of the European Union7. The decentralized
agencies cover as a concept several bodies with different official names: office,
center, foundation, authority, college, etc. These agencies have been created to
Committee of the Regions of 26 June 2009 on the organization and functioning of EUR -OP, pub-
lished in JOUE L 168/41 of 30 June 2009. This Decision represents the last revision of the organi-
zation and functioning of EUR -OP.
1 For details, see D. Vătăman, Dreptul Uniunii Europene , Ed. Universul Juridic, Bucharest, 2010,
pp. 148 -149.
2 Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of
Justice, the Court of Auditors, the European Economic and Social Committee and the Committee
of the Regions and the European Ombudsman of 25 July 2002 establishing EPSO, published in OJ
L 197, 26 July 2002, p. 53
3 Decision 2002/621/EC of 25 June 2002 of the Secretaries -General of the European Parliament,
the Council and the Commission, the Registrar of the Court of Justice, the Secretaries -General of
the Court of Auditors, the Economic and Social Committee and the Cornet of the Regions and the
Representative of the European Ombudsman on the organization and t he functioning of EPSO was
modified by Decision 2010/51/EU of 19 January 201, OJ L 26/24 of 30 January 2010.
4 Decision 2005/118/EC of the European Parliament, the Council, the Commission, the Court of
Justice, the Court of Auditors, the European Economic and Social Committee and the Committee
of the Regions and the European Ombudsman of 26 January 2005 establishing the European School
of Administration, published in OJ L 37/14 of 10 February 2005.
5 Decision 2005/119/EC of the Secretaries -General of the Eu ropean Parliament, the Council and
the Commission, the Registrar of the Court of Justice, the Secretaries -General of the Court of Au-
ditors, the Economic and Social Committee and the Committee of the Regions and the Representa-
tive of the European Ombudsman on the organization and functioning of the EAS, published in OJ
L, 37/17 of 10 February 2005.
6 For details , see D. Vătăman, op. cit ., p. 152; D. Vătăman, Drept instituțional al Uniunii Europene ,
Ed. Universul Juridic, Bucharest, 2010, pp. 191 -200.
7 See D. Vătăman, op. cit. (Dreptul Uniunii Europene) , p. 153 et seq. See also https://europa.eu/eu-
ropean -union/a bout-eu/agencies/decentralised -agencies_ro, including for types of agencies.
14 Ioana Nely Militaru
perform certain technical and scientific tasks. Their role is to help EU institutions
make decis ions and implement policies. Decentralized agencies are widespread
throughout the EU.
They are established by a legislative act.
In its working documents the Commission distinguishes between two
types of Union agencies: executive and "regulatory" agencies.
The executive agencies are set up by a Commission decision under a
Council regulation adopted in 2003 and their mission is to implement sectoral
financial assistance programs belonging to the Commission, financed by credits
which remain in the general bud get1.
The executive agencies are regulated by Regulation (EC) no. 58/2003 of
the Council2.
The regulatory agencies are set up by regulations adopted by the Council
with the participation of the European Parliament through the special legislative
procedure or jointly by the European Parliament and the Council through the or-
dinary legislative procedure and are independent and specialized bodies respon-
sible for implementing certain aspects of sectoral policies. of the Union. The tasks
of the executive agencie s are oriented only towards the management of the Union
programs, which is why they are set up for a limited period of time. The Com-
mission is responsible for: setting up, effectively controlling the activity of the
agencies and appointing their management staff. The Commission is the one that
adopts a standard financial regulation regulating the preparation and execution of
the agencies budget. Currently six executive agencies are operating3.
Regulatory agencies have their own sectoral regulation, often a dopted
1 Idem .
2 Regulation (EC) no. 58/2003 of the Council of 19 December 2002 establishing the status of the
executive agencies to be entrusted with tasks in the management of the Com munity/Union programs
(OJ L 11, 16 January 2003).
3 The executive agencies of the Union are: The Executive Agency of the European Research Coun-
cil for the management of the specific Community program – Ideas in the field of border research,
established on the basis of Commission Decision 2008/37/EC of 14 December 2008, pursuant to
Regulation (EC) no. Council 58/2003: the Executive Agency for Certification for the management
of certain fields in the specific Community programs, in the field of research "Peop le, Capacities
and Cooperation" established on the basis of Commission Decision 2008/46/EC in application of
Council Regulation (EC) 58/2003; the Executive Agency for Competitiveness and Innovation, es-
tablished on the basis of the Commission Decision of Ma y 31, 2007 amending Decision 2004/20/EC
with a view to transforming the "Executive Agency for Intelligent Energy" into the Agency men-
tioned above; The Executive Agency for Education, Audiovisual and Culture, established by Deci-
sion 2005/56/EC, amended by C ommission Decision 2009/336/EC; Executive Agency for the
Trans -European Transport Network (established by Commission Decision 2007/6010E, amended
by Commission Decision 2008/593/EC); the Executive Agency for Health and Consumers, which
is the continuation of the Executive Agency for the Public Health Program – PHEA, established by
Commission Decision 2004/858/EC. For details, see D. Vătăman, op. cit. (Drept instituțional…) ,
pp. 201 -211.
Organizat ion and duties of the European Union institutions 15
jointly by the European Parliament and the Council, through the ordinary legis-
lative procedure1, for the most part they are financed by the Union budget2, they
have their own legal personality. Regulatory agencies have various powers, some
may take individual decisions with direct effect, applying the standards agreed at
Union level, others provide additional technical expertise on the basis of which
the Commission can base a decision, others are oriented towards creating a net-
work between national a uthorities.
The usefulness of regulatory agencies has manifested itself especially in
the area of shared competences, as the implementation of the new Union policies
must be achieved through close cooperation between the Member States and the
Union.
The competences of the regulatory agencies are limited to the adoption
of individual decisions in specific fields for which a certain technical expertise is
required, under strict and precisely defined conditions and without discretionary
competence.
Regulatory agencies may be classified according to their main activities
or by reference to their main functions3, as follows4:
1. agents who make legally binding individual decisions against third
parties: Community Plant Variety Office (CPVO), Office for Smooth Harmoni-
zatio n of the Internal Market (OSHIM), European Aviation Safety Agency
(EASA), European Agency for Chemicals (ECHA);
2. agencies providing direct assistance to the Commission and, where ap-
propriate, to the Member States, in the form of technical and scientific advice
and/or inspection reports: European Maritime Safety Agency (EMSA), European
Food Safety Authority (EFSA), European Union Agency for Railways (ERA),
European Agency for the Evaluation of Medicines (EMEA), European Agency
for Network and Information S ecurity (ENISA);
3. agencies in charge of operational activities: European Supervisory Au-
thority of the Global Satellite Navigation System (GSA), Community Fisheries
Control Agency (CFCA), European Agency for the Management of Operational
Cooperation at th e External Borders (FRONTEX), Judicial Cooperation Unit of
the European Union (EUROJUST), the European Police Office (EUROPOL), the
1 Of the 23 agencies established on the basis of the ECT, 12 have as legal basis art. 308 TEC (article
352 TFEU), the others being created on the basis of sectoral provisions of the Treaty; the statutes
of 8 agencies are jointly adopted by the European Parliament and the Council through the special
legislative procedure (c o-decision procedure).
2 Except for the agencies set up under the CFSP, they are funded by the Member States; see Dan
Vătăman, op. cit. (Drept instituțional …) , p. 201 -21
3 Some of these were referred to in the legal doctrine as "institutions of lesser importance"; see in
this regard I. Jinga, A. Popescu, Integrarea Europeană. Dicționar de termeni comunitari , Ed. Lu-
mina Lex, Bucharest, 2000, p. 50; for details on other bodies and agencies of the Communities, see
P. Mathijsen, Compediu de drept european , 7th ed., Ed. Club Europa , Bucharest, 2002, pp. 184 –
192; J. Echkenazi, Ghidul Uniunii Europene , Ed. Niculescu, Bucharest, 2008, p. 31.
4 See D. Vătăman, op. cit. (Dreptul Uniunii Europene) , p. 155 et seq.
16 Ioana Nely Militaru
European Police College (CEPOL);
4. agencies responsible for collecting, analyzing, transmitting or intro-
ducing into the net work objective, reliable and easily accessible information: Eu-
ropean Center for the Development of Vocational Training (CEDEFOP), Euro-
pean Foundation for the Improvement of Living and Working Conditions (EU-
ROFOUND), European Environment Agency (EEA), Europ ean Foundation for
Vocational Training (ETF), European Monitoring Center for Drugs and Drug Ad-
diction (EMCDDA), European Agency for Safety and Health at Work (EU –
OSHA), European Center for Disease Prevention and Control (ECDC), European
Union Agency for Fu ndamental Rights (FRA), the European Institute for Equal
Opportunities between Women and Men (EIGE);
5. bodies of the Union providing services to o ther agencies or institutions:
The Translation Center of the Bodies of the European Union (CDT).
The agencies created to coordinate the activities in the field of CFSP are:
European Defense Agency (EEA), Satellite Center of the European Union
(CSUE), Institute for Security Studi es of the European Union (ISS).
What distinguishes the institutions of the Union from its bodies is that,
the institutions make binding decisions towards the Member States, towards the
natural or legal persons, and their members are elected at national level (Council
and Parliament) or appointed by the governments of the Member States or by the
Council1.
Instead, Union bodies operate in specific fields and either carry out
purely consultative tasks or make decisions that are not binding.
Also, personality and legal capacity have only the European Union2, the
European Investment Bank and the Euratom Supply Agency.
Thus, "in each of the Member States, the Union has the broadest legal
capacity recognized to legal entities by national laws; The Union may, in partic-
ular, acquire and train movable or immovable property and may stand trial. To
this end, the Union is represented by the Commission" (Article 335 TFEU) 3.
On the other hand, agreements with one or more third countries or inter-
national organizations are negotiated by the Commission and concluded by the
Council on behalf of the Union (Artic le 218 TFEU).
✓ In addition to the institutional system of the Union presented, through
1 See P. Mathijsen, op. cit ., p. 63; C. Lefter, op. cit ., p. 117.
2 See ar t. 47 TEU with reference to the European Union.
3 CJEC, 22/70, Commission v. Council , 1971, ECR 263 la 274 (4); CMLR 335, the Court ruled that
having legal personality means that "in its external relations the Community/Union enjoys the ca-
pacity to establi sh contractual relations with third countries in all areas of the objectives defined in
Part 1 of the Treaty". Other bodies with legal personality are: The European Center for the Devel-
opment of Vocational Training, the European Foundation for the Improvem ent of Living and Work-
ing Conditions and the European Environment Agency.
Organizat ion and duties of the European Union institutions 17
the Treaty of Maastricht, an organizational structure specific to the monetary un-
ion was outlined within the Treaty of the European Communities (TEC)1. This
includes th e European System of Central Banks (ESCB), composed of the Euro-
pean Central Bank (ECB) and national central banks.
The ESCB has been granted complete independence both by the TEC and
by the Treaty of Lisbon. In this sense, art. 130 TFEU provides that. "In exercising
their powers and in carrying out the tasks and duties conferred upon them by
treaties and in full the Statute of the ESCB and of the ECB, the European Central
Bank, the national central banks or the members of their decision -making bodies
may ne ither request nor accept instructions from the institutions, the bodies, of-
fices or agencies of the Union, the governments of the Member States or any other
body"2.
1.3. Principles on which the institutional structure of the European
Union is based
The l egal doctrine3 includes the following principles regarding the insti-
tutional structure: the principle of institutional balance, the autonomy of institu-
tions and loyal cooperation between institutions.
✓ The principle of institutional balance4 governs the relations between
the institutions of the Union. The Court of Justice has stated that the principle of
institutional equilibrium implies that each institution exercises its competences
while respecting the competences of the other institutions. The principle high-
lights in particular the "institutional triangle" formed by the Council, the Com-
mission and the European Parliament, which participates in the decision -making
mechanism5 – through "combined funct ions"6 – in achieving the objectives set by
the treaties; these institutions "cannot be clearly agreed with the traditional dis-
tinction between legislative, executive, judicial, and advisory powers (in this
sense, the Commission is distinguished, which is known as representing the ex-
ecutive between the Union institutions)"7.
According to this principle, the competences of the institutions are lim-
ited and exclusive.
They are limited, because "each institution acts within the limits of the
1 Named in the legal doctrine "specific institutional structure"; see, in this regard, R. Munteanu, op.
cit., p. 189.
2 The independence of these bodies also results from Protocol no . 4 on the Statute of the ESCB and
of the ECB, annexed to the TFEU.
3 See R. Munteanu, op. cit ., pp. 190 -196.
4 See G. Guillermin, Le principe de l'équilibre institutionnel dans la jurisprudence de la Cour de
justice des Comunnautés européennes , „Journal du Droit international” no. 2/1992, p. 319 et seq.
5 The institutional triangle is highlighted by art. 289 paragraph 1 and 2 TFEU, which regulates the
legislative procedures for the adoption of Union acts: ordinary (co -decision) and special.
6 See O. Mano lache, Tratat de drept comunitar , 5th ed., Ed. C.H. Beck, Bucharest, 2006, p. 97.
7 Idem .
18 Ioana Nely Militaru
powers conferred on it by treaties" (Article 13 TFEU)1. Referring to the attribu-
tions/competences of the institutions, the TEU uses the notion of "functions" (art.
14 for the for the European Parliament, art. 15 for the European Council, art. 16
for the Council, art. 17 for the Commission).
They are exclusive, because the institutions, in principle, can neither
desessify themselves nor share responsibility. Therefore, the balance established
by the treaties cannot be altered, the Court specifying in this regard that "the prin-
ciple prohibits any transfer of powers from one institution to another, any dele-
gation of competence from one institution to an external body or to another insti-
tution if delegation changes the institutional balance"2. The treaties thus estab-
lished a syste m of division of competences between institutions, assigning to each
its own mission in the institutional mechanism of the Union.
✓ The principle of the autonomy of the institutions implies that the insti-
tutions of the Union can adopt themselves according to the treaties the internal
regulation. The principle of autonomy protects the sphere of the internal organi-
zation of each institution3, so that they require the Member States to refrain from
any measure that could endanger the achievement of the Union's objectives (Ar-
ticle 4, paragraph 2 TFEU). The provision includes in fact the obligation of the
states not to prevent by various measures the internal functioning of the institu-
tions.
✓ The principle of loyal cooperation between institutions. Prior to the
Treaty of Lisbon, the Court of Justice interpreted art. 10 TEC (currently repealed
and replaced by Article 4 TEU4) in order to create an obligation of loyal cooper-
ation between Member States and institutions5. In certain cases, the Community
Treaties have organized the cooperation between the institutions, in particular in
the decision -making process6, for example, the co -decision procedure in which
the institutions of the Council and t he European Parliament are involved, or the
procedure for concluding the interinstitutional agreements, which will comple-
ment the treaties (e.g. Article 295 TFEU)7. Currently, art. 13 paragraph (2) TEU
1 The Treaty of Lisbon also expressly refers to the principle of attribution on many occasions, for
example: "The Union ensures coherence between its different polic ies and actions, taking into ac-
count all the Union's objectives and respecting the principle of attribution of competences" or "the
delimitation of the competences of the Union is governed" of the attribution principle"(art. 7 TFEU,
respectively art. 5 TEU ).
2 See R. Munteanu, op. cit. , p. 193.
3 Ibid., pp. 195 -196.
4 According to art. 4 par. 3 TEU "On the basis of the principle of loyal cooperation, the Union and
the Member States shall respect each other and assist each other in carrying out the tasks ar ising
from the Treaties".
5 See V. Constantinesco, L’article 5 CEE, de la bonne foi à la loyauté comununautaire , in Du droit
international au droit de l'intégration Liber Amicorum Pierre Pescatore , Nomos Verlag, Baden –
Baden, 1987, pp. 97 -114.
6 See R. Mun teanu, op. cit ., p. 193.
7 According to art. 295 TFEU, "The European Parliament, the Council and the Commission shall
consult each other and jointly organize the conditions for their cooperation. To this end, they may,
Organizat ion and duties of the European Union institutions 19
expressly provides that "the institutions shall cooper ate with each other in a loyal
manner".
✓ The principle of attribution of competences. The principle is expressly
provided for in the treaties, in the first case it refers to the competences attributed
to the institutions, and in the second case, it takes into account the competences
attributed to the Union.
In the first case, according to art. 13 par. 2 TEU, "each institution acts
within the limits of the powers conferred on it by treaties in accordance with the
procedures, conditions and purposes provide d by them".
In the second case, "the Union ensures coherence between its different
policies and actions, taking into account all the Union's objectives and respecting
the principle of attribution of competences" (art. 7 TFEU) or "the delimitation of
the co mpetences of the Union is governed by the attribution principle" (art. 5
TEU). Even if in the latter case the Union is considered, we must take into account
the fact that it is represented, depending on the situation, by one institution or
another, which m eans that the principle of attribution concerns the institutions.
✓ The principle of representing interests. The representation of interests
is a concept that is found both in the composition of each individual institution
and in the analysis of the attributions that each institution of the Union has.
The European Parlia ment is composed of representatives of the citizens
of the Union (art. 14, paragraph 2 TEU). Citizens are directly represented, at Un-
ion level, in the European Parliament (Article 10, paragraph 2 TEU). Therefore,
Parliament represents the interests of the citizens of the Union. The members of
Parliament are elected by direct, free and secret universal vote, among the citizens
of the 28 Member States. Starting from the provisions of the Maastricht Treaty,
according to which the aim was to create a closer uni on between the peoples of
Europe, in which "the decision should be taken as close as possible to the citizen",
currently the European Parliament (together with the Council), as co -legislator,
exercises legislative and budgetary functions while exercising p olitical control
and advisory functions over the institutions of the Union (Article 15 TEU).
The Council is composed of a representative at ministerial level of each
Member State, empowered to engage the government of the Member State it rep-
resents and to exercise the right to vote (Article 16, paragraph 2 TEU). The Coun-
cil therefore represents the interests of the Member States. Member States are
represented in the Council by their governments, which, in their turn, are account-
able either to national parli aments or to citizens (Article 10, paragraph 2 TEU).
Also, in its capacity as a legislator, the decision -making by this institution at Un-
ion level is the will of all Member States.
in compliance with the treaties, conc lude interinstitutional agreements which may be binding". For
example, the Interinstitutional Agreement of 3 October 1993, "Democracy, Transparency and Sub-
sidiarity", adopted by the European Parliament, the Council and the Commission.
20 Ioana Nely Militaru
According to its competence, the European Commission therefore pro-
motes the general interest of the Union through its legislative initiatives and pro-
posals, by overseeing the application of Union law and by its external represen-
tation, except for the Common Foreign and Security Policy – CFSP (Article 17
TFEU).
The European Counci l, in its composition of Heads of State and Gov-
ernment of the Member States, represents the interests of the states and their gov-
ernments, but also of the Union, by its powers to provide the Union with the nec-
essary impetus for its development and by defin ing the general political orienta-
tions and priorities. [Article 15 (1) and (2) TFEU]. Member States are represented
in the European Council by their Heads of State and Government, who in turn
democratically respond either to national parliaments or to thei r citizens (Article
10, paragraph 2 TEU). Also, the external representation of the Union in matters
concerning the common foreign and security policy is provided by the President
of the European Council (Article 15 par. 6 TFEU).
The EU Court of Justice , which consists of one judge from each Mem-
ber State, represents the interests of the law, ensures the observance of the law in
the interpretation and application of the treaties (Article 19, paragraph 1 TEU).
The Court of Justice shall cooperate with the nati onal courts, ensuring the authen-
tic interpretation of Union law.
The Court of Accounts , composed of a national of each Member State,
exercises its powers in full independence, in the general interest of the Union.
The Court of Accounts guarantees by its ac tivity that the system of the European
Union works economically, efficiently, effectively and transparently1.
The European Central Bank and the national central banks of the Mem-
ber States whose currency is the euro, which constitutes the Eurosystem, condu ct
the monetary policy of the Union (Article 282 paragraph 1 TFEU). Therefore, the
ECB acts in the interest of monetary policy.
1 See D. Vătăman, op. cit. (Dreptul Uniunii…) , p. 157.
Chapter 2. The European Parliament
2.1. Regulation of the institution of the European Parliament
The legal basis of the Eu ropean Parliament is included in the provisions:
– art. 14 and art. 16 TEU;
– art. 223 -234 TFEU.
"The European Parliament is the assembly chosen in accordance with
the Treaties [TEU and TFEU], with the Act of 20 September 1976 on the election
of the membe rs of the EP by direct universal vote and with the national laws
adopted in application of the Treaties"1.
The European Parliament2 (EP) is the institution of the European Union
composed of the representatives of the citizens of the Union (art. 14 paragrap h 2
TEU). As a result, citizens are represented directly at Union level in the European
Parliament.
The institution of the European Parliament – hereinafter referred to as the
EP – exercises its powers which are conferred on it by treaties, and therefore h as
the power to abstain.
From the date of entry into force – July 1, 19783 – of the "Act on the
election of the representatives of the Parliament by direct universal vote"4, of
September 20, 1976, "the representatives in the European Parliament of the peo-
ple gathered in the Community will be elected by direct universal vote" (art. 1)
1 See art. 1 of the EP Rules of Procedure.
2 The institution of the European Parliament was initially called the Parliamentary Assembly, by
the ECSC Treaty.
3 Until then, the members of the institution of the European Pa rliament were considered delegates,
to be appointed by the national parliaments, among their members, according to the procedure pro-
vided by each state in the number predetermined by the EC Treaty, according to art. 138 paragraph
(1) and (2) TEC. To be see n O. Manolache, op. cit. , p. 98.
4 Document annexed to Decision no. 76/787 – J. Of. L 278/1 of October 8, 1976. The act in question
was amended by Council Decision no. 2002/772 of June 25 and September 23, 2002 – J. Of. L 283/1
of October 21, 2002. The ac t on the election of the members of the European Parliament by direct
universal vote annexed to the Council Decision of September 20, 1976 (with the modification of
art. 14) is supplemented, as it denies, by: 1. the resolutions regarding the electoral proc edure of
Parliament, in particular its resolution of 15 July 1998; 2. Its resolution of 11 October 2007 on the
composition of the European Parliament; 3. the conclusions of the Presidency of the European
Council of December 14, 2007; 4. Its resolution of M ay 6, 2010 on the draft protocol amending
Protocol no. 36 regarding the transitional provisions regarding the composition of the European
Parliament for the rest of the 2009 -2014 legislature: the opinion of the European Parliament [art.
48 paragraph (3) EU Treaty]; 5. art. 39 of the Charter of Fundamental Rights of the European Union;
6 art. 9, art. 10, art. 14 paragraph (2) and art. 48 paragraph (2), (3) and (4) of the Treaty on European
Union (TEU) and art. 22, art. 223 and art. 225 of the Treaty on the F unctioning of the European
Union (TFEU); 7. Protocol (No. 7) on the privileges and immunities of the European Union; 8. art.
41, art. 48 paragraph (3) and art. 74a of its Rules of Procedure; 9. report of the Committee on
Constitutional Affairs (A7 -0000/201 0).
22 Ioana Nely Militaru
The first elections were held on July 7 -10, 1979.
The Treaty of Lisbon expressly adopted this provision, specifying that
"the members of the European Parliament shall be electe d by direct, free and se-
cret universal vote, for a term of five years" (Article 14, paragraph 3 TEU).
The number of EP members has been modified successively1. Following
the elections for the EP, which took place in 2009, this institution had 736 mem-
bers2. The Treaty of Lisbon expressly provides that the number of Members of
Parliament may not exceed seven hundred and fifty, plus the President of the
Commission (Article 14, paragraph 2 TEU).
Since Croatia's accession to the European Union, in July 2013, and until
the 2014 elections3, the European Parliament has counted 766 deputies. However,
their number was reduced to 751 by the 2014 elections and will remain constant
in the future.
The representation of citizens is provided in a proportionate way, with a
minimum threshold of six members for each Member State. No Member State
shall be assigned less than six seats and no more than ninety -six seats (Article 14,
paragraph 2 TEU). The number of seats allocated to each Member State in the EP
has been fixed so as to ensure a satisfactory representation based on both demo-
graphic and political membership criteria4.
The European Parliament has three official offices: Luxembourg, Brus-
sels (Belgium) and Strasbourg (France).
Luxembourg is the headquarters of the administ rative offices, respec-
tively the "General Secretariat". Meetings of the entire Parliament, called "ple-
nary sessions", are held in Strasbourg and Brussels. Commission meetings are
1 According to art. 182 paragraph (2) introduced by the Treaty of Amsterdam, the number of mem-
bers in the European Parliament may not exceed 700, regardless of the future enlargements of the
European Union (following the distribution of seats to be rev iewed). This paragraph (2) in art. 182,
by the Treaty of Nice, was replaced with the indication that "the number of members of the Euro-
pean Parliament cannot exceed 732".
2 See for details www.europarl.europa.eu; see J. Echkenazi, op. cit ., 2008, p. 24.
3 The elections were held on May 22 -25, 2014.
4 See C. Lefter, op. cit. , p. 123. Under the Treaty of Nice, the allocation of seats in the EP, according
to the Protocol on the enlargement of the European Union annexed to the EU Treaty and the EC
Treaty, is a s follows: Germany 99, France, Italy and the United Kingdom 72, Spain 50, Holland 25,
Belgium, Greece and Portugal 22, Sweden 18, Austria 17, Denmark and Finland 13, Ireland 12,
Luxernburg 6. In the said Protocol for the course of the 2004 -2009 legislature , it was also provided
that, in the case of the entry into force of the Treaties, the number of members of the EP may
temporarily exceed 732 (after the decision taken by the EU Council according to which a condition
proportional to the number of representa tives to be elected in the Member State file so that the total
number is as close as possible to 732). The declaration on the enlargement of the European Union,
included in the final act of the Conference, which adopted the Treaty of Nice, the position of the
Member States on the allocation of seats for the European Parliament was as follows: Germany 99,
United Kingdom, Italy and France 72, Spain and Poland 50, Romania 30, Netherlands 25, Greece,
Belgium, Portugal, Czech Republic and Hungary 20, Sweden 18, Bulgaria and Austria 17, Slovakia,
Denmark and Finland 13, Ireland and Lithuania 12, Latvia 8, Slovenia 7, Estonia, Cyprus and Lux-
embourg 6, Malta 5.
Organizat ion and duties of the European Union institutions 23
held in Brussels.
2.2. Composition and organization of the European Parliame nt
✓ Members of the European Parliament. The European Parliament con-
sists of 750 members elected in the 28 enlarged EU member states.
Regarding the elections of the members of the European Parliament, as
there is no single procedure for electing the represent atives of the Parliament, by
the Council Decision no. 2002/772 of 25 June and 23 September 2002, amending
the Act on the election of the representatives of the European Parliament by direct
universal vote, it is stipulated that "the election will be made a fter a uniform pro-
cedure in all the Member States, according to the constitutional norms"1. Also,
by the same decision, it is recommended to the Member States "that the election
be made on the basis of proportional representation".
In the same sense, art. 223 par. 1 TFEU and art. 7 par. 1 and 2 of the said
Act provide that this institution "develops a draft to establish the necessary pro-
visions allowing the election of its members by direct universal suffrage in ac-
cordance with a uniform procedure in all th e Member States or in accordance
with the principles common to all the Member States". The necessary provisions
are established by the Council2. These provisions shall enter into force after they
have been approved by the Member States in accordance with t heir constitutional
rules.
The electoral procedure by which the members of the EP are elected is
governed by the legislation of each Member State according to its constitutional
norms. All Member States apply, with small differences, a system of proportio nal
representation through party lists.
However, the European elections already comply with a number of com-
mon rules: direct universal suffrage, proportional representation and a renewable
five-year term. As a general rule, seats in Parliament are distribu ted in proportion
to the population of each Member State3.
Also, the Act on the direct elections of the EP members also includes
1 Each Member State decides on the way of conducting the elections, but applying the same demo-
cratic rules : the right to vote starting from the age of 18, the equality between the sexes and the
secret vote.
2 The Council, acting unanimously, in accordance with a special legislative procedure and after the
approval of the EP and which decides with the majority of its members, establishes the necessary
provisions [art. 223 paragraph 1 (2) TFEU].
3 Thus, in 2009, each Member State had a fixed number of seats, a maximum of 99 minimum 5. In
terms of gender equality, the representation of women in the European Parlia ment is constantly
increasing. Currently, about one third of the deputies are women.
24 Ioana Nely Militaru
provisions regarding incompatibilities1.
Thus, the incompatibilities between the capacity of representative in the
EP and that of a member of the European Council and that of a member of the
Council, the Commission, the Court of Justice, the Court of Accounts, the Eco-
nomic and Social Committee or the agent or administrative officer of an institu-
tion are disposed of the Union or of a body or the Registry of the Court of Justice2.
At the national level, other incompatibilities can be instituted (in accordance with
national law).
The representatives in the EP are grouped by political parties, largely re-
flecting the "ideological prefer ences at national level"3.
The European Parliament and the Council, acting by regulations on their
own initiative, in accordance with an ordinary legislative procedure, establish the
status of political parties at European level, in particular, the rules r elated to their
financing (Article 224 TFEU, in conjunction with Article 10 TEU). In this sense,
art. 10 TEU states that "political parties at the European level are important as an
integration factor in the Union. This contributes to the formation of the European
political consciousness and to the expression of a political will of the citizens of
the Union ".
MEPs are exercising their mandate independently. They are not bound
by instructions and cannot receive an imperative mandate4.
As regards the working time of Members, it is divided between Brussels,
Strasbourg and their constituencies, as follows5:
– attend meetings of parliamentary committees and political groups in
Brussels, as well as additional sessions;
– Plenary sessions are held in Strasbourg. S essions last one week per
month (except August), but additional shorter sessions are held (they are held in
Brussels);
– In parallel with these activities, the deputies must also allocate time to
their constituencies in the countries of origin.
Statute for Members. Deputies in the European Parliament6 are not
grouped by nationality, but by their political affinities. They exercise their man-
date independently.
1 See art. 3 paragraph 2 of the Rules of Procedure of the EP, which provides, in this regard, that
"any member whose election is notified by the EP must declare in writing , before participating in
the parliamentary work, that it does not hold a function incompatible with that of the deputy in EP".
2 See O. Manolache, op. cit ., p. 100.
3 See T. Ștefan, B. Andreșan -Grigoriu, op. cit., 2007, p. 48.
4 See art. 2 of the EP Rules of Procedure.
5 See A. Popescu, I. Diaconu, Organizații europene și euroatlantice , Ed. Universul Juridic, Bucha-
rest, 2009, p. 219.
6 Members of the European Parliame nt whose powers are increasingly important influence all the
daily life of the citizens of the Union: environment, consumer protection, transport, as well as edu-
cation, culture, health, etc.
Organizat ion and duties of the European Union institutions 25
The statute and the general conditions regarding the exercise of the func-
tions of its members are e stablished by the EP, acting by regulations, on its own
initiative, in accordance with a special legislative procedure, after the Commis-
sion's opinion and with the approval of the Council (art. 223 par. 2 TFEU). Also,
regarding any rule and any conditions regarding the tax regime of the members
or former members, the Council decides unanimously (art. 223 par. 2 TFEU)1.
The deputies enjoy the privileges and immunities provided in Protocol
no. 7 regarding the privileges and immunities of the European Union2.
✓ The rules of procedure distinguish between:
– Members who perform the functions of: EP President, Vice -Presidents
and Quaestors3. They are elected by secret ballot. Their term of office is estab-
lished for two and a half years, ie half of the parliamentar y term, with the possi-
bility of being renewed;
– deputies who organize themselves in the office, the Conference of Pres-
idents, the Conference of Committee Chairs and al. Conference of Delegation
Chairs;
1. The President of the European Parliament4. Applica tions must be
submitted only by a political group or at least 40 members. The President repre-
sents the institution of Parliament in relations with third parties and other institu-
tions of the Union.
The President conducts all the activities of Parliament an d its organs and
has all the powers to chair the EP debates and ensure their smooth running.
In this regard, the President of the EP fulfills the following functions5:
– opens, suspends and closes Parliament's sittings;
– decides on the admissibility of t he amendments, on the questions ad-
dressed to the Council and the Commission and on the compliance of the reports
with the EP's rules of procedure;
– ensures compliance with the EP's rules of procedure;
– gives the floor to the speakers, declares the debate s open;
– vote the questions and announce the results of the vote;
– represents the Parliament in international relations, at ceremonies, in
administrative, judicial or financial matters (the President may delegate these
powers to the Vice -Presidents);
– at the opening of each European Council meeting, the President of Par-
liament presents the views and concerns of this institution regarding specific top-
ics and items on the agenda;
1 MEPs were currently receiving the same salary as MEPs in the co untry in which they were elected.
In September 2005, a Statute for Members of the European Parliament was adopted, which will
eliminate the pay gap and ensure greater transparency of Members' remuneration.
2 This protocol complements the provisions of art. 5-7 of the EP Rules of Procedure.
3 See art. 12 -19 of the EP Rules of Procedure.
4 See art. 13 of the EP Rules of Procedure.
5 See art. 20 of the EP's Rules of Procedure.
26 Ioana Nely Militaru
– signs the budget of the European Union, after it was adopted by Parlia-
ment in second reading. Once signed, the budget becomes operational;
– sign, together with the President of the Council, all the legislative acts
adopted by the co -decision procedure (acts adopted by the European Parliament
and the Council, together).
2. Vice -Presidents. After the election of the President, the vice -presi-
dents shall be elected on a common bulletin. The candidates who had won the
absolute majority of the votes cast in the order of the number of votes obtained
are declared elected in the first rou nd, within the 14 seats.
The president may be replaced by one of the vice -presidents, in case of
absence, the impossibility of exercising the function or if he wishes to participate
in the debate according to the EP's rules of procedure.
3. The Quaestors. After the election of the Vice -Presidents, the Parlia-
ment proceeds to the election of five Quaestors. The election of the Quaestors is
carried out in accordance with the same rules that apply in the case of the election
of the Vice -Presidents. The question naires are charged with carrying out the ad-
ministrative and financial tasks that directly concern the deputies, according to
the guidelines adopted by the bureau.
The MEPs are organized in the office, the Conference of Presidents, the
Conference of Committ ee Chairs and the Conference of Delegation Chairs.
1. The Bureau shall be composed of the President of the EP and the 14
Vice -Presidents1. The questionnaires are members of the consultative office.
The Bureau shall regulate the financial, organizational an d administrative
matters concerning the internal organization of Parliament, the Secretariat and the
bodies of Parliament, including the conduct of meetings.
The Bureau also establishes:
– the organizational chart of the General Secretariat and the rules r egard-
ing the administrative and financial situation of the officials and other agents;
– a preliminary project for estimating Parliament's budget;
– establishes the modalities of application of Regulation (EC) no.
2004/2003 of the EP and the Council on the status and financing of political par-
ties at European level.
The bureau appoints the Secretary -General and two vice -presidents re-
sponsible for developing relations with national parliaments. The latter periodi-
cally submit to the Conference of Presidents a report on the activities carried out
in this field.
At each new EP election, the office at the end of the mandate will remain
in office until the first sitting of the new Parliament.
2. The Conference of Presidents2 is composed of the President of the
EP and the presidents of the political groups. At the Conference of Presidents, the
EP President invites one of the non -attached Members to attend its meetings,
1 See art. 23 of the EP's Rules of Procedure.
2 See art. 24 of the EP's Rules of Pro cedure.
Organizat ion and duties of the European Union institutions 27
without having the right to vote.
It organizes Parliament's proceedings and decides on all matters relating
to legislative programming. Also, the Conference of Presidents is the competent
body for:
– questions concerning the relations of the European Parliament with the
other bodies and institutions of the Union, as well as with the national parliament s
of the Member States;
– issues related to relations with third countries and with institutions or
organizations outside the European Union;
– organizing structured consultations with the European civil society
– the composition and powers of committees a nd committees of inquiry,
as well as of the joint parliamentary committees, permanent delegations and ad –
hoc delegations.
3. The conference of committee chairmen1 shall consist of the chair-
persons of all permanent or special committees of the EP, being cha ired by a
chairperson chosen from among them. It may make recommendations to the Con-
ference of Presidents regarding the work of the committees and the establishment
of the agenda during the session. The Bureau and the Conference of Presidents
may delegate certain tasks to the Conference of Committee Chairs.
4. The conference of delegation chairmen2 shall consist of the chairmen
of all permanent interparliamentary delegations. It may make recommendations
to the Conference of Presidents regarding the work of the delegations. The Bu-
reau and the Conference of Presidents may delegate certain tasks to the Confer-
ence of Delegation Chairs.
Political groups . The European Parliament does not evaluate the
political affinities of the members of a group, but the deputies concerned recog-
nize, by definition, that they have the same political affinities3. A political group
is made up of Members elected in at least a quarter of the Member States. The
minimum number of Members required to form a political group is twenty -five.
The political groups of the EP in the 2014 -2019 legislature are as fol-
lows4:
1. The Group of the European People's Party (Christian Democrats);
2. The Group of the Progressive Alliance of Socialists and Democrats in
the European S&D Parliament;
3. Conserv atives and Reformists;
4. Alliance of Liberals and Democrats for Europe;
5. The European United Left/Nordic Green Left;
6. Greens/European Free Alliance;
1 See art. 27 of the EP's Rules of Procedure.
2 See art. 28 of the EP Rules of Procedure.
3 See art. 30 of the EP Rules of Procedure.
4 See J. Echkenazi, op. cit ., p. 24.
28 Ioana Nely Militaru
7. Europe Group for Direct Freedom and Democracy;
8. Europe of Nations and Freedom.
There will be 7 p olitical groups in the 2019 -2024 legislature1:
1. The Group of the European People's Party (Christian Democrats);
2. The Group of the Progressive Alliance of Socialists and Democrats in
the European Parliament;
3. The Renew Europe Group;
4. The Greens Grou p/European Free Alliance;
5. The Identity and Democracy Group;
6. The Group of European Conservatives and Reformists;
7. Confederal Group of the European United Left/Nordic Green Left.
The declaration of formation of a group is published in in the Official
Journal of the European Union. Within the organization chart of the General Sec-
retariat, the political groups have a secretariat, administrative facilities and credits
provided in the EP budget.
The political groups ensure the internal organization, by ap pointing a
president (or two presidents, in the case of certain groups), an office and a secre-
tariat.
The distribution of the seats of the deputies in the Chamber is made ac-
cording to the political affiliation, from left to right, with the agreement of the
group presidents.
A deputy may belong to a single political group.
Some deputies are not part of any political group, in this case they are
non-affiliated deputies.
Before each vote in plenary, the political groups examine the reports
drawn up by the parl iamentary committees and submit amendments.
The political group adopts a position following the consultations within
it. No member may be required to vote.
✓ The Coordination Group for Brexit2. The Brexit Coordination
Group operates under the aegis of the Conference of Presidents and aims to co-
ordinate and prepare Parliament's deliberations, reflections and resolutions on the
UK's withdrawal from the EU. The Deputy Secretary General supports the work
of the Brexit Coordination Group.
✓ Intergroups. Intergroups are made up of deputies from any political
group or commission. The purpose of their establishment is the subject of infor-
mal exchanges of opinions on c ertain topics and of promoting contact between
MPs and civil society.
The intergroups are not parliamentary bodies, they do not express the
opinions of the Parliament by denial.
1 https://www.caleaeuropeana.ro/parlamentul -european -isi-incepe -noua -legislat ura-cu-sapte –
grupuri -politice/
2 See http://www.europarleuropa.eu/brexit -steering -group/en/home/home.html.
Organizat ion and duties of the European Union institutions 29
Intergroups are regulated by the internal rules adopted by the Conference
of Presidents on December 16, 1999 (last updated: September 11, 2014), which
establish the conditions under which intergroups can be created at the beginning
of each parliamentary term.
The presidents of the intergroups must declare any support they receive,
in money or in kind, according to the same criteria that also apply to the deputies
individually. The declarations must be updated annually and are recorded in a
public register kept by the Quaestors.
At its meeting on December 11, 2014, the Conference of P residents ap-
proved the formation of intergroups during the 2014 -2019 parliamentary term1.
✓ Administrative services. General Secretariat of the European Parlia-
ment. The European Parliament is assisted by a Secretary -General appointed by
the Bureau. The Secretary -General makes a solemn commitment to the Bureau to
perform his duties in full impar tiality and fairness.
The Secretary General of the EP runs a secretariat whose composition
and organization are established by the Bureau.
The Secretary -General is the highest official in the EP and in this capac-
ity:
– provides assistance to the President of the EP, the Bureau, the political
bodies and the deputies;
– ensures good parliamentary work under the leadership of the President
and the Bureau;
– verifies and signs together with the President all the texts adopted
jointly by the Parliament and the C ouncil;
– prepares the basic elements of a report, which will allow the Bureau to
elaborate the draft EP budget estimate.
The General Secretariat is headquartered in Luxembourg and Brussels2,
with the task of coordinating legislative work, organizing plena ry sittings and
other meetings. It also provides technical assistance and advice to parliamentary
bodies and members of Parliament in support of the exercise of their mandates3.
In the subordination of the General Secretariat, it carries out its activity
ten general directions4 that have different powers. The General Secretariat coop-
erates with the Legal Department, which advises the EP on the legal issues, also
1 To see the intergroups in the parliamentary term 2014 -2019: http://www.europarl.eu-
ropa.eu/aboutparliament/ ro/20150201PVL00010/Organisation -and-rules#political -groups.
2 About 5,000 officials, selected by competition from all the countries of the Union and under the
authority of a Secretary -General, work for the European Parliament.
3 See D. Vătăman, op. cit. (Dreptui Uniunii…), p. 71.
4 The directions under the General Secretariat are: the Directorate -General for the Presidency; Di-
rectorate -General for Infrastructure and Logistics; Directorate -General for Internal Policies; Direc-
torate-General for Translation; Directorate -General for Foreign Policy; Directorate -General for In-
terpretation and Conferences; General Information Directorate; Directorate -General for Finance;
Directorate -General for Personnel; Directorate -General for Innovati on and Technical Assistance
(ITEC); to be seen D. Vătăman, op. cit. (Dreptul Uniunii…), p. 71.
30 Ioana Nely Militaru
ensuring the representation of this institution in justice (before the CJEU).
Political groups have their own collaborators and deputies of parliamen-
tary assistants.
✓ The European Parliament is distinguished from other international or-
ganizations by the obligation to ensure comprehensive multilingualism.
The Parliament works in all the official languages of the European Union,
in 24 languages, after Croatia's access ion on July 1, 2013. All documents in ple-
nary sessions must be translated into 24 languages, with a partial exception ap-
plying to the Irish and Maltese languages, because only certain documents are
translated into these two languages.
The European Parliame nt has an interpretation service so that each Mem-
ber can speak in his or her native language.
The European Parliament is therefore the world's largest employer of in-
terpreters and translators, accounting for one third of the institution's staff.
✓ Regarding the Parliament Sessions, the EP meets in an annual session.
The EP meets in law on the second Tuesday in March. It may also be convened
during the extraordinary session, at the request of the majority of its members,
the Council or the Commissi on (Article 229 TFEU).
The Parliament decides with the majority of the votes cast, except where
the treaties stipulate otherwise (art. 231 TFEU). The quorum is established by the
rules of procedure, generally being 2/3 of the actual number of members1.
✓ Parliamentary committees. In order to prepare the plenary sessions
of the Parliament, the deputies are constituted in permanent cornices specialized
in certain fields2. Currently, there are 23 parliamentary committees in the EP3.
Each committee has a chairm an, an office and a secretariat4. Parliamentary com-
mittees met once or twice a month in Brussels. Their debates are public. Within
the parliamentary committees, the deputies elaborate, modify and adopt legisla-
tive proposals and reports on their own initiat ive.
Deputies examine the proposals of the Commission and the Council and,
if appropriate, prepare reports that are presented during plenary sessions.
1 See D. Vătăman, op. cit. (Dreptui Uniunii…) , p. 71.
2 See art. 188 of the EP Rules of Procedure.
3 See Appendix no. VII to the EP Rules of Procedure. The standing committees are: the Committee
on Foreign Affairs; Committee on Development; Committee on International Trade; Committee on
Budgets; Committee on Budgetary Control; Committee on Economic and Monetary Affairs; Com-
mittee on Employment and Social Aff airs; Committee on the Environment, Public Health and Food
Safety; Committee on Industry, Research and Energy; Committee on the Internal Market and Con-
sumer Protection; The Committee on Transport and Tourism; Commission for Regional Develop-
ment; Commission for Agriculture and Rural Development; Committee on Fisheries; Commission
for Culture and Education; Commission for Legal Affairs; Committee on Civil Liberties, Justice
and Home Affairs; Committee on Constitutional Affairs; Committee on Women's Rights and Gen-
der Equality; Committee on Petitions. A commission is made up of 28 to 86 deputies. For the duties
of the standing parliamentary committees, see the mentioned annex.
4 The political composition of the committees reflects that of the plenary session.
Organizat ion and duties of the European Union institutions 31
At the proposal of the Conference of Presidents, the EP may, at any time,
set up special commissions, who se powers, composition and mandate are estab-
lished at the same time by the decision to set them up1. The term of office of these
committees is for a maximum of 12 months, unless, at the end of this period,
Parliament decides to extend the mandate.
Parliame nt may, within its powers of control, at the request of a quarter
of its members, a commission of inquiry2, to examine alleged violations of Union
law, or cases of maladministration in the application of Union law, which would
represent the deed or act. of an institution or body of the Union, either of the
public administration of a Member State or of persons mandated by Union law to
implement it (Article 226 TFEU)3. The decision to set up a commission of inquiry
shall be published in the Official Journal o f the EU within one month.
The committee chairmen coordinate their work within the Conference of
committee chairmen.
✓ Interparliamentary delegations. At the proposal of the Conference
of Presidents, the Parliament constitutes permanent interparliamentary delega-
tions and determines their nature and the number of members according to their
duties. The election of the members of the delegations takes place during the first
or the second session of the newly elected EP for the entire term of the legislature.
The general competences of the different delegations are defined by the
EP. It may, at any time, extend or restrict them.
The European Parliament currently has 44 delegations. Delegations
maintain relations and organize exchanges of information with third c ountry par-
liaments4.
The EP bodies , in particular the committees, cooperate with correspond-
ing organs of the Parliamentary Assembly of the Council of Europe in areas of
common interest, in particular with a view to improving the efficiency of the work
and to avoid overlapping5.
The Conference of Presidents, in agreement with the competent authori-
ties of the Parliamentary Assembly of the Council of Europe, defines the modal-
ities of implementation of these provisions.
The EP may set up joint parliamentary co mmittees together with the par-
liaments of the states associated with the Union or of the states with which nego-
tiations have been undertaken for accession6.
1 See art. 184 of the EP's Rules of Procedure.
2 A commission of inquiry is "Money laundering, avoiding tax burdens and tax evasion"; to be seen
http://www.europarl. europa.eu/committees/rolparliamentary -committees.html.
3 See also art. 185 of the Rules of Procedure.
4 For example, the list of delegations includes relations with North Africa, Iraq, Israel, the Arabian
Peninsula, Palestine, the Maghreb countries and the Arab Maghreb Union, etc.; for completing the
list, see http://www.europarl. europa.eu/dele gations/ro/home.html.
5 See art. 199 of the Rules of Procedure.
6 See art. 200 of the Rules of Procedure
32 Ioana Nely Militaru
These committees may make recommendations to the participating par-
liaments. The general competence s of the various joint parliamentary committees
are defined by the European Parliament and by agreements concluded with third
countries.
✓ The European Parliament works closely with other institutions of the
Union.
In essence, the collaboration between the European Commission – as
guardian of the treaties and of the executive body – and the European Parliament
materializes through the follo wing:
– The Commission presents, explains and supports legislative proposals
before the parliamentary committees and is obliged to take into account the
changes requested by the Parliament;
– The Commission may attend all sittings of the European Parliamen t
and, at its request, be heard. The Commission responds orally or in writing to
questions asked by the EP or its members (Article 230 TFEU);
– The Commission, in its capacity as a collegiate body, is responsible to
the European Parliament (art. 17 paragra ph 8 TEU);
– after consulting the Conference of Presidents, the President of the EP
may invite the President of the Commission, the Commissioner responsible for
relations with the EP or, following an agreement, another Member of the Com-
mission to present a statement to Parliament after each Commission meeting, to
present the main decisions taken1.
Regarding the collaboration of the European Parliament with the Council
of the European Union, we summarize the following:
– The Council of the European Union, t hrough its President, participates
in the work of the Parliament;
– can intervene in any of the debates in the plenary sessions of Parliament,
represented by its President;
– The President of the Council of the European Union (at the beginning
of each term ) presents his program in front of the European Parliament meeting
in plenary and initiates a debate with Members. At the end of the 6 months in
office, the President presents his political balance to the European Parliament.
The European Council is repres ented before the EP by the President of
the European Council. At the end of each high -level meeting, the President of the
European Council presents to Parliament a report on each European Council
meeting [art. 15 paragraph 6 letter d) TUE]2.
The President of the Court of Auditors may be invited by the EP, during
the discharge procedure or within Parliament's budgetary control activities, to
speak to present the observations contained in the annual report, special reports
or opinions of the Court, as well as to explain the Court's work program3.
1 See art. 111 of the EP's Rules of Procedure.
2 See art. 5 of the Rules of Procedure of the European Council.
3 See art. 112 of the EP's Rules of Pr ocedure.
Organizat ion and duties of the European Union institutions 33
The President of the European Central Bank presents to Parliament the
annual report of the Bank on the activities of the European System of Central
Banks and the monetary policy for the previous year and the current year1.
2.3. Functions of the European Parliament
2.3.1. Regulation of the functions of the European Parliament
With each treaty subsequent to the institutional treaties2, the European
Parliament has acquired new, strengthened powers, starting with the "consultative
and supervisory ones" (up to the Single European Act – SEA), continuing the
procedure of institutional cooperation3 (introduced by the SEA) and the codeci-
sion procedure – introduced by the TEU, extended and simplified by the Treaty
of Amster dam – generalized by the Treaty of Lisbon.
An increase in the role of the European Parliament in several areas has
begun and has continued steadily since the 1970s.
Thus, in the budgetary field, a system of own resources of the European
Communities4 is est ablished, in which Parliament acquires important preroga-
tives. In this regard, by the Treaty of Luxembourg of April 22, 1970, the European
Parliament has the possibility to propose amendments to the draft budget estab-
lished by the Commission, and regarding the non -binding requests (so called be-
cause they do not derive from the Treaty or from acts adopted by the institutions)
has the last word5.
By the Treaty of Brussels of 22 July 1975, the European Parliament has
the right to reject the budget as a whole and to give or not discharge the Commis-
sion on the implementation of the budget.
The Single European Act introduces a new procedure, called coopera-
tion, in the legislative process, and in the accession and association agreements a
right of opinion is recog nized in Parliament.
Through the TMs, the two procedures introduced by the SEA have been
extended to other areas, also establishing the co -decision procedure, which is
1 See art. 113 of the EP Rules of Procedure.
2 With reference to TEEC, TECSC and TEuratom.
3 The procedure of institutional cooperation – between the Council, the Commission and the Parlia-
ment was introduced by the Single European Act regarding th e decisions regarding the internal
market.
4 See Council Decision of 20 April 1970 on the replacement of financial contributions to the Mem-
ber States by the Communities' own resources (OJEC no. L, of 28 April 1970, p. 19); this decision
was replaced by the Decision of 24 June 1988 on the Communities' own resources (OJEC, no. L.
185 of 15 July 1988, p. 24).
5 See R. Munteanu, op. cit ., p. 227; the budgetary procedure, as established by the Luxembourg
Treaty, has not been modified by the TMs.
34 Ioana Nely Militaru
characterized by granting the EP veto right, and in case of disagreement, the pos-
sibilit y of a direct dialogue between EP and Council within a conciliation com-
mittee1.
Although the Amsterdam Treaty (TA) extends and simplifies the co -de-
cision procedure in the process of adopting Community legislative acts, thus wid-
ening the role of the EP in the Community legislative process, the legislative
function within the Union is – in this period – in principal of the Council.
The European Parliament has limited co -decision rights, even as a result
of the amendments made by the Treaties of Maastricht, A msterdam and Nice2.
✓ Currently, by the Treaty of Lisbon, the European Parliament is in the
same position as the Council with regard to the most important functions of a
Union institution, legislative and budgetary. Thus, Parliament exercises its pow-
ers a ccording to art. 14 par. I TEU and art. 225, art. 227, art. 228, art. 230, art.
233, art. 234, art. 294, art. 314 TFEU.
✓ Enumeration of the powers of the European Parliament
1. According to art. 14 par. 1 TEU, European Parliament:
a) exercises, together w ith the Council, the functions:
– legislative (according to article 294 TFEU, respectively the co -decision
procedure) and
– budgetary (according to art. 314 -315, art. 322, art. 318 -319 TFEU);
b) performs the functions of:
– political control over the other institutions of the Union (art. 226, art.
227, art. 228, art. 234, art. 230, art. 233, art. 234 TFEU) and
– consultative [art. 127 paragraph (6), art. 129 paragraph (4), art. 332, art.
333 TFEU and others] in accordance with the conditions laid down in th e Trea-
ties;
c) elect the President of the Commission (according to art. 17 par. 7
TEU).
2. The judicial status of the Parliament is determined by the possibility
of judicial intervention of this institution in cases pending before the EU Court of
Justice ( articles 263 and 265 TFEU).
2.3.2. Defining the functions of the European Parliament
A. The legislative function of the EP . Prior to the Lisbon Treaty, ac-
cording to art. 192 TEC, the European Parliament "participates" in the process
leading to the adopti on of Community acts, not in the sense of highlighting a
simple "contributory, participatory" role – non-decisional in this process – but to
bring to light the fact that the Community legislative process it was characterized
by the cooperation of several c ommunity institutions and bodies, even if their
1 Idem .
2 See G . Gornig, I. E. Rusu, Dreptul Uniunii Europene , Ed. C.H. Beck, Bucharest, 2006, p. 42.
Organizat ion and duties of the European Union institutions 35
participation, it is true, had different weights. Thus, the Council was the main
legislative body, followed by the European Parliament, while, in principle, the
Commission had (as at present) the competence o f legislative initiative and exe-
cution of Community acts. The Economic and Social Committee and the Com-
mittee of the Regions, as well as the Commission, had (as in, presently) the status
of participants in the Community legislative process.
✓ Currently, th rough the Treaty of Lisbon, the legislative function in the
European Union is, in principle, equally the EP and the Council, which is exer-
cised, according to art. 289 TFEU, by:
– the ordinary legislative procedure, which consists in the joint adoption
by the EP and the Council of a legislative act (a regulation, a directive or a deci-
sion) at the Commission's proposal, also called the co -decision procedure. This
procedure is defined in art. 294 TFEU;
– the special legislative procedure, which consists in the adoption of a
legislative act (of a regulation, directive or decision) by the EP with the partici-
pation of the Council or by the Council with the participation of the EP, at the
initiative of a group of Member States or the EP, at the ECB's recommendation
or at the request of the CJEU or the EIB.
Among the special procedures, we mention: conciliation, cooperation,
approval (the procedure of the assent).
B. The budgetary funct ion of the European Parliament. The Euro-
pean Parliament and the Council, acting in accordance with a special legislative
procedure, shall adopt the annual budget of the Union (in accordance with Article
314 and Article 315 TFEU). Each institution of the Union shall, by 1 July, draw
up an estimate of its expenditure for the annual budget ary year1.
The Commission groups these situations into a draft budget proposal, to
which is attached an opinion that may contain different estimates (an estimate of
revenue and an estimate of expenditure).
The Commission must submit this proposal to the E P and the Council by
1 September of the year preceding the budget execution. Until a conciliation com-
mittee is convened, the Commission may amend the draft budget during the pro-
cedure.
The Council adopts its position on the draft budget, which it submits,
together with the reasons that led to the adoption of the respective position, the
EP by October 1 of the year preceding the year of implementation of the budget.
If within forty -two days of transmission, the EP:
– approves the position of the Council, the budget is adopted;
– did not make a decision, the budget is considered approved;
– adopt amendments2, the draft thus amended shall be forwarded to the
Council and the Commission. In this case, the President of the EP, in agreement
1 See D.L. Roman, Finanțe publice internaționale , Ed. Economică, Bucharest, 2006, p. 290 et seq.
2 With the majority of its members.
36 Ioana Nely Militaru
with the President of th e Council, convenes the conciliation committee without
delay. If the Council informs the EP that it approves all its amendments, within
ten days, the conciliation committee no longer meets.
The Conciliation Committee1 has the mission to reach, on the basis of the
positions of the EP and the Council, an agreement on a joint project2 within
twenty -one days from the date of its convening.
The Commission participates in all the work of the Conciliation Commit-
tee and takes all necessary initiatives to promote th e approximation of the EP and
Council positions.
The Parliament and the Council approve the joint project, having four-
teen days calculated from the date on which the conciliation committee gave its
consent for the approval of the joint project (within twen ty-one days).
Within the term provided above, for fourteen days:
– the budget is considered to be definitively adopted according to the joint
project if the EP and the Council approve each joint project or do not make a
decision, or if one of these institu tions approves the joint project, and the other
does not make a decision;
– The Commission presents a new draft budget if the EP3 and the Council
reject the joint project, or if one of these institutions rejects the joint project and
the other does not tak e a decision;
– The Commission presents a new draft budget if the EP4 rejects the joint
project and the Council approves it;
– The EP approves the joint project, but the Council rejects it, the EP can
decide, within fourteen days from the date of rejection by the Council5, the con-
firmation of all or only certain amendments.
If one of the EP amendments is not confirmed, the position approved in
the Conciliation Committee regarding the budget line that is subject to this
amendment is retained. On this basis, the budget is considered to be definitively
adopted.
The Commission may also submit a new draft budget if, within the initial
twenty -one days granted to the Conciliation Committee, it does not reach an
agreement on a joint project.
The EP President notes t hat the budget is definitively adopted if the pro-
cedure for adopting the budget has been fulfilled, according to art. 314 pa ragraph
1 and 7 TFEU.
With regard to " Budget execution and budget discharge "6 (art. 317 –
1 It brings together the members of the Council or their representatives and all the members repre-
senting the EP.
2 With the qualified majority of the members of the Council or their representatives and with the
majority of the members representing the EP.
3 It decides with the majority of its members.
4 Idem .
5 It decides with the majority of its members and three -fifths of the total votes cast.
6 See for details D.L. Roman, op. cit ., p. 294 et seq.
Organizat ion and duties of the European Union institutions 37
319 TFEU), the Commission presents annually to the European Parliament and
the Council:
– the accounts of the financial year ended, related to the budgetary oper-
ations, also communicating a financial balance sheet describing the assets and
liabilities of the Union;
– a report evaluating the Union's finances based on the results obtained,
referring in particular to the indications of the EP.
Regarding the control over the budget execution, according to art. 78 of
the Rules of Procedure, the EP returns by entrusting this task to the competent
committee s for budget and budgetary control.
Parliament also has the power to grant, on a recommendation from the
Council, the Commission's discharge from the execution of the budget (Article
319 TFEU). To this end, the EP shall subsequently, after the Council, dra w up
the accounts, the financial balance sheet and the aforementioned evaluation re-
port.
In exercising the budgetary function, the EP and the Council1 adopt by
regulations:
a) the financial norms that define, in particular, the procedure to be
adopted for establishing and executing the budget and for handing over and
checking the accounts;
b) the rules for organizing the control of the participants' responsibility
for the execution of the budget, especially of the authorizing officers and account-
ants (art. 322 paragraph 1 TFEU).
C. The political control function of the EP is exercised in different
ways. The control function of the EP over the Commission begins in the first
place by choosing the candidate for the position of President of the Commission.
During the term of the Commission's mandate, the EP's control is exer-
cised as follows:
– may request the Commission to submit any appropriate proposal on
matters it considers necessary to draw up a Union act for the implementation of
the Treaties2. If it does not submit proposals, the Commission shall inform the EP
of its reasons (eg. 225 TFEU);
– The Parliament is fully informed by the Commission about the cooper-
ation of this institution with the Member States and the coordination of their ac-
tions to achieve t he objectives mentioned by the treaty in the industrial policy
(Article 173 paragraph 2 TFEU);
– in the context of the possibility of the members of the Commission to
attend all the sittings of the Parliament, they are audited, at their request, on behalf
of the Commission, according to an oral procedure [art. 230 paragraph (1)
1 Decides in accordance with the ordinary legislative procedure and after consulting the Co urt of
Accounts.
2 In this case, the EP decides with the majority of its members.
38 Ioana Nely Militaru
TFEU];
– the Commission is obliged to answer orally (through one or more mem-
bers) or in writing to questions asked to it by the European Parliament or its mem-
bers [art. 230 paragraph (2) TFEU];
– the Commission presents the general annual report to the European Par-
liament, which it debates in public session (Article 233 TFEU).
The general report is accompanied by an annual report on the agricultural
situation in the Union1, a report o n competition policy2, an annual report on the
achievement of social policy objectives (Article 159 TFEU), a report on the pro-
gress made in achieving economic, social cohesion. and territorial (every three
years, according to Article 176 TFEU), an annual r eport presented by the Euro-
pean Ombudsman on the outcome of his investigations [art. 228 par. I paragraph
(3) TFEU], an annual report on the execution of the budget (Article 318 TFEU)
and an annual report on achieving the objectives in the field of fraud p revention
(Article 325 par. 5 TFEU).
Also, in its annual report to the EP, the Commission devotes a special
chapter to social evolution in the Union. The EP can invite the Commission to
draw up reports on specific issues of the social situation (Article 16 1 TFEU).
These reports provide Parliament with a source of information on the work of the
institutions of the Union.
– Parliamentary committees are set up that will prepare the decisions to
be taken by the Parliament, which will establish contacts with the members of the
Commission, especially when the Parliament is not actually sitting. The members
of the Commission and other officials are heard within them;
– the Commission is accountable to the EP, as a collegiate body (Article
234 TFEU). Thus, the EP, n otified by a motion of censure regarding the activity
of the Commission, can pronounce on this motion3 only after at least three days
after its submission and only by open vote. If the censorship motion is adopted
by a two -thirds majority of the votes cast and by the majority of the members of
the EP, the members of the Commission must resign collectively from their po-
sitions, and the High Representative for Foreign Affairs and Security Policy must
resign. from the functions it exercises within the Commissi on. They remain in
office and continue to manage current affairs until their replacement (Article 17
1 This practice began in 1975, at the request of the European Parliament; to be seen P. Mathjisen,
op. cit ., p. 80.
2 Assignment given by the Commission to Parliament on 7 Ju ne 1971; see Resolution on competi-
tion rules (1971, O. J. C66/11).
3 Although several motions have been registered, none has been implemented so far (the first motion
was registered in 1972, regarding the budgetary powers, which was subsequently rejected i n 1976,
regarding the surplus of dairy products, another in connection with the export premiums for malt,
1977, regarding the export of butter to the Soviet Union, 1999, for allegations of fraud and mis-
management and nepotism to the Commission). In order t o avoid the motion, the Commission may
resign, which it did on March 16, 1999; to be seen P. Mathjisen, op. cit ., p. 81; O. Manolache, op.
cit., p. 108.
Organizat ion and duties of the European Union institutions 39
TEU). In this case, the term of office of the members of the Commission ap-
pointed to replace them shall expire on the date on which the mandate of the
memb ers of the Commission obliged to resign collectively from their duties
should expire.
However, this instrument is directed only against the entire Commission,
as a collegiate body, and not against the Commissioners individually.
This instrument has the lim it that it can be used only against the entire
Commission, as a collegial body, and not against the Commissioners individu-
ally. In 2000 the Commission and the European Parliament signed a Framework
Convention according to which, when Parliament expresses i ts distrust of a mem-
ber of the Commission, the President of the Commission will seriously consider
if it is not necessary to ask the Commissioner to resign1. The Treaty of Nice, more
than this political arrangement, modified the art. 217 TEC [paragraph (1) , (3) and
(4), currently repealed by the Treaty of Lisbon], stipulating that a Commissioner
is required to resign if the President of the Commission so requests. In 2005, the
Framework Convention was amended in the sense that when Parliament ex-
presses its distrust of a Commissioner the President of the Commission either
requests the Commissioner to resign or explains Parliament's decision2.
Parliament may set up temporary commissions of inquiry to examine al-
leged violations of law or cases of maladministrat ion by the institutions of the
Union or other bodies thereof.
In carrying out its tasks, the EP, at the request of a quarter of its members,
may establish a temporary commission of inquiry to examine, without prejudice
to the tasks conferred by the TFEU on other institutions or bodies, offices or
agencies, the alleged violation of the law or administration rules. defective in the
application of the law of the Union, unless the stated facts are examined by a
court, and as long as the judicial procedure is no t concluded [art. 226 paragraph
(1) TFEU].
The temporary commission of inquiry ceases its existence by submitting
its report [art. 226 paragraph (2) TFEU]. It follows from this provision that a
definite number of commissions can be constituted, how many al legations of
crime and maladministration were formulated and were approved by a quarter of
the members of Parliament by the request submitted3.
The modalities for exercising the right of inquiry shall be determined by
the EP, acting by regulations, on its own initiative, in accordance with a special
legislative procedure, after approval by the Council or the Commission4.
1 Framework Convention on relations between the European Parliament and the Commission (J.
Of. C 121, 2001, p. 122, par. 10).
2 Framework Convention on relations between the European Parliament and the Commission (J.
Of. L 44/2005, p. 1, par. 3).
3 See O. Manolache, op. cit ., p. 104.
4 See the Decision of the Parliament, the Council and the Commission of 6 March 1995, regarding
the detailed provisions governing the exercise of Parliament's investigative power (J. Of. L 78/1 of
40 Ioana Nely Militaru
Any citizen of the Union, such as any natural or legal person having
his/her residence or registered office in a Member State, has the ri ght to address
to Parliament, individually or in association with other citizens or with other per-
sons, a petition on a subject which concerns: the fields of activity of the Union
and which concern them directly (Article 227 TFEU)1.
Thus, any citizen of th e EU, as well as any natural or legal person resident
or having its registered office in a Member State, is entitled to petition. This right
was introduced by the TMs in the TCE through art. 21, currently reformulated by
art. 20 paragraph 2 letter d) TFEU, according to which "the citizens of the Union
enjoy, inter alia, the right to petition the European Parliament, to the European
Ombudsman, and to the right to the institutions and advisory bodies of the Union
in any of the languages of the Treaties2 and to receive an answer in the same
language" [under the conditions of art. 20 paragraph 2, letter d) and art. 227
TFEU].
The petitions must look directly at the petitioner3 and the petition should
look at a subject that is related to Union law.
In order for the petitions to be declared admissible, the Parliamentary
Committee on Petitions retains the following criteria4:
1. the petitions relate to t he content of the treaties and the derivative law
of the Union;
2. the petitions relate to subjects which, although not exactly related to
Union law, may nevertheless refer to a foreseeable evolution of the Union;
3. the petitions relate to the activities of an institution or body of the Un-
ion.
Parliament calls on the European Ombudsman5 to exploit the aforemen-
tioned petitioning right6.
The European Ombudsman is entitled to receive complaints from any
citizen of the Union or from any natural or legal perso n residing or having its
registered office in a Member State, concerning cases of maladministration in the
6 April 1995). A temporary commission was set up in connection with the Community transit pro-
cedure for examining allegations of c riminal offense or maladministration. J. Of. L. 49/1 of Febru-
ary 19, 1997 and J. Of. no. 12/1995 and no. 10/1996, p. 114.
1 See also art. 201 -203 of the EP's Rules of Procedure.
2 In one of the languages mentioned in art. 55 TEUs (23 languages are conside red).
3 In the event that a petition is signed by several natural or legal persons, the signatories designate
a representative and alternate representatives who, according to the EP's rules of procedure, are
considered as petitioners (art. 201 paragraph 3 of the rules of procedure).
4 These criteria are taken from an opinion issued by the legal commission in 1978; to be seen O.
Manolache, op. cit, p. 105.
5 See for details of art. 204 -206 of the EP Rules of Procedure.
6 As a name, the institution is equiv alent in Romanian law to that of the "People's Advocate" (it is
regulated by Law no. 35/1997), but not as a whole of functions. It does not represent the institu-
tionalization of distrust in the administration, but fulfills a mediation function – see G. Fab ian,
Drept instituțional comunitar , Ed. Sfera Juridică, Bucharest, 2004, p. 179; M. Vlad, Ombudsmanul
in dreptul comparat , Ed. Servo -Sat, Arad, 1999.
Organizat ion and duties of the European Union institutions 41
activity of the institutions, bodies, offices or agencies of the Union, with the ex-
ception of the EU Court of Justice in the exercise of its function s. It investigates
the complaints received and draws up a report to this effect [art. 228 par. 1 para-
graph (1) TFEU]1.
Only apparently there would be a conflict of competence between the
Parliamentary Commission and the Mediator, in reality, the first solv es the peti-
tions by which the irregularities detected in the Member States are complained,
while the Ombudsman only considers the petitions regarding the "abuses" com-
mitted by the institutions, bodies , the offices and agencies of the Union, for ex-
ample: t heir unjustified abstentions, the contradictory action with the legal obli-
gations, discrimination, abuse of power, lack or illegally refusing information,
inequity, negligence2.
The Ombudsman's mission is to carry out investigations that he considers
to be justified either on his own initiative3 or on the basis of complaints that have
been addressed to him directly or through a member of the EP4, unless the alleged
facts are or have been the subject of a judicial procedure [art. 228 paragraph 1
TFEU].
If the Ombudsman has found a case of maladministration, he or she shall
notify the institution, body, office or agency concerned, which has a three -month
deadline to communicate his point of view, and will then send a report to the
Parliament and the institutio n concerned. Regarding the outcome of these inves-
tigations, the person who lodged the complaint is also informed [art. 228 par. 1
paragraph 2 TFEU].
Moreover, every year the Ombudsman submits a report to Parliament on
the results of his investigations [art . 228 paragraph 1 TFEU]. Regarding the man-
dates of the Ombudsman, according to art. 228 paragraph 2 TFEU, the following
is stated:
– The Ombudsman is elected after each election of the EP, during the
legislature, for five years;
– its mandate may be renewe d;
– can be dismissed by the EU Court of Justice, when the EP complains,
if it no longer fulfills the conditions necessary for the exercise of its functions or
has committed a serious deviation.
The Ombudsman exercises his functions, according to his manda te, in
complete independence. In this regard, it does not request or accept instructions
1 The function of European mediator was performed on October 27, 1999 by the Finnish Jacob
Magnus Soderman .
2 See G. Fabian, op. cit., p. 180.
3 The mediator may also be notified ex officio, but it is assumed that the information he holds for
the opening of the procedure has an official community source; to be seen O. Manolache, op. cit .,
p. 106.
4 The genera l conditions for exercising the function were established by Decision no. 94/262 of
March 9, 1994 of the Parliament – J. Of. L 113/15 of 4 May 1994.
42 Ioana Nely Militaru
from any government, institution, body, office or agency. It will therefore be sub-
ject only to the statute and the general conditions for the exercise of its functions
established by the European Parliament, which decides by regulations on its own
initiative, in accordance with a special legislative procedure, after the Commis-
sion's opinion and with the approval of the Council1.
During the term of office, the Ombudsman has no right to engage in any
other professional activity, whether gainful or not (Art. 228 paragraph 4 TFEU).
The supervisory and control function of the EP is exercised also with
respect to the Council, but in very few cases, due to the equality position of these
institutions regarding the exercise of legislative and budgetary functions within
the Union.
We exemplify in this regard:
– art. 36 paragraph (2) TEU, according to which the EP may address ques-
tions2 to the Council or make recommendations (includ ing to the High Repre-
sentative for the CFSP) within the CFSP;
– within the framework of economic policy, the Council adopts a recom-
mendation setting out the general guidelines of this policy and on which it informs
the European Parliament (art. 121 par. 2 TFEU).
D. The consultative functions of the EP. Previously, the Council exclu-
sively fulfilled the status of legislative forum, being obliged by this statute to
consult the EP before adopting a Community act. Through the Single European
Act (SEA), as well a s through its subsequent treaties3, increasing the powers of
the EP in the decision -making process, the cases in which this institution was
consulted for the adoption of a legislative act were reduced proportionately.
The consultative functions of the Parl iament result from specific provi-
sions of the treaties, for example, when the Council has the legal obligation to
consult the Parliament4, whether this institution is to give a consensus or advisory
opinion. However, the Council has agreed numerous times t o consult Parliament
and in cases not expressly stipulated in the Treaty (prior to the Treaty of Lisbon,
1 The Council, by Decision no. 94/114 of February 7, 1994, approved the Parliament's Decision on
the statut e and general conditions for the exercise of these functions (J. Of. L 54/1 of February 25,
1994). The act was amended by the Decision of the Parliament no. 2002/262 of March 14, 2002 (J.
Of. L 92/13 of April 9, 2002). By communicating the Commission (2002 /C 166/03) to the Parlia-
ment and the mediator some rules were established regarding the relations with the applicant in
relation to the violations of the Community Law J. Of. C 166/3 of 12 July 2002). For a cause in the
field of decision no. 94/114, see CP I-C209/00, Frank Lamberts v. the European Ombudsman , De-
cision of April 10, 2002, ECR, 2002, 4 -II, 2203 -2236; to be seen O. Manolache, op. cit ., p. 107.
2 Parliament's right to ask questions has been extended over the years to the Council "beyond what
is provided for in the Treaty". See, in this regard, P. Mathjisen, op. cit ., pp. 79 -80.
3 Treaty of Maastricht, Treaty of Amsterdam, Treaty of Nice, Treaty of Lisbon.
4 According to art. 140 paragraph (2) TFEU, "after consulting the EP and after discussing it within
the European Council, the Council, acting on a proposal from the Commission, shall decide which
Member States which are subject to a derogation meet the necessary conditions on the basis of the
criteria laid down in the Treaty (with regard to the TF EU)".
Organizat ion and duties of the European Union institutions 43
with reference to the EC Treaty)1.
Consultation is the simplest form of Parliament's participation in the leg-
islative process, with the institution hav ing a participatory rather than a decisive
role, which is why we consider that the Lisbon Treaty has regulated it as a sepa-
rate function.
The wording used by the treaties in this case is "the Council adopts the
provisions … after consulting the EP" or "t he Council adopts a decision after con-
sulting the EP"2 (for example, Article 332, Article 3333, Article 127 (6) 4, Article
129 (4) 5, Article 182 (4)6 and others7 TFEU).
When the Council issues legislative acts (regulations, directives or deci-
sions), Parli ament's consultation shall be initiated by the Council on the basis of
a proposal submitted by the Commission. As long as the Council has not taken a
decision (regarding the issuance of the normative act), the Commission may mod-
ify its proposal throughout the procedures leading to the adoption of a Union act
(Article 293 par. 2 TFEU). By doing so, the Commission is allowed to take ac-
count of any opinion of Parliament by submitting a modified proposal in accord-
ance with this opinion8.
In 1990 (February) the Commission proposed a "Code of Conduct" to
ensure more effective cooperation in the decision -making process, Parliament
having a more important role in the field of external relations9. Parliament's con-
sultation is mandatory10, although its opinions do not have this For example, in
1 See O. Manolache, op. cit ., p. 69.
2 For example, in matters related to Union Citizenship [art. 25 paragraph (2) TFEU], the Monetary
Policy (art. 129 TFEU), the International Agreements (art. 219 paragraph 1 TFEU) and the Judicial
and police cooper ation in criminal matters (art. 41 paragraph 3 TEU).
3 The article refers to the authorization of the Member States wishing to establish enhanced coop-
eration between them. Authorization is given by the Council, on a proposal from the Commission
and after c onsulting Parliament.
4 In the context of monetary policy, "the Council, acting unanimously through regulations, in ac-
cordance with the special legislative procedure, after consulting the EP and the ECB, may entrust
the ECB with specific missions (…)".
5 In the context of monetary policy, many provisions of the TFEU can be modified by the Council,
(…) after consulting Parliament.
6 In the framework of the "Research and technological development and space" policy, the Council
decides after consulting Par liament.
7 For example, it is requested to consult the Parliament in the case: art. 23 TFEU, with a view to the
adoption of directives establishing the coordination and cooperation measures necessary to facili-
tate the protection of any citizen of the Union ; art. 109 TFEU, with a view to applying the provisions
of the Treaty regarding state aid; art. 150 and art. 153 TFEU, with a view to setting up the Com-
mittee on Employment in the field of Employment and Labor Markets; art. 113 TFEU, regarding
the adoption of provisions regarding the harmonization of laws and others.
8 See P. Mathijsen, op. cit ., p. 70.
9 E.C. Bull. 4 -81, 1990; The Code of Conduct provides that, before Parliament can express its opin-
ion, the Council cannot reach a "political agreement".
10 Regardless of whether it is a consensus or advisory opinion.
44 Ioana Nely Militaru
the adopted legislative acts it should be mentioned that the Parliament was con-
sulted [Article 296 paragraph (2) TFEU1], and when expressly provided for by
the Treaty, Parliament's consultation constitutes an "essential procedural require-
ment", and the Council's non -compliance with this requirement is a reason for the
Court of Justice2 to annul the regulation in question. Therefore, if the institution
of the Council has taken a decision not to comply with the obligation to consult
the Parliament, it may be declared void3.
Also, the normative act adopted by the Council does not have to mention
whether the opinion of the Parliament was favorable or not, except in the situation
where for the accession of new states the Treaty asks for "the assent" and obtain-
ing a negative opinion in this case stops the accession process4.
A normative act constituting an amendment to the Commission proposal
can only be adopted by the Council by unanimous vote (Article 293 par. 1 TFEU).
The treaties mak e express reference to the notion of opinion5 in a few
lines, and when they do, they do not express themselves in relation to its nature,
according to or consultative.
As stated in the legal literature6, however, the opinion to be given is
mostly consultat ive, because when the Treaty considered that the opinion should
be in conformity, its legal text specified this, we consider, and by using the for-
mula "after Parliament's approval", for example, Article 329 paragraph 17 and
others8, all TFEU, cases that fa ll within the procedure regarding the "assent".
E. The European Parliament shall elect the President of the Com-
mission (Article 14, paragraph 1 TEU). In this regard, the European Council9
proposes to the EP a candidate for President of the Commission. Thi s candidate
is elected by the EP with the majority of its members. If this candidate does not
1 Article 296 paragraph (2) TFEU, in this regard, provides that "the legal acts shall be motivated
and refer to the proposals, requests or opinions provided by the Treaties".
2 By introducing the action in the annulment of the act, according to art. 263 TFEU; see P.
Mathijsen, op. cit ., p. 71; see CJCE, 138/79, Roquette Frères v. Council and 139/79, Maizena v.
Council , 1980, ECR, 3333 and 3393, in which the Court annulled the regulation, because th e Coun-
cil, although it transmitted the Commission's proposal to Parliament for expressing an opinion, it
adopted the Regulation without having received this opinion.
3 C. 303/94, Parliament v. Council, decision of June 18, 1996, rec. 18 -19, in ECR, 1996, 6 (I), 2968;
O. Manolache, op. cit ., p. 109.
4 See C. Lefter, op. cit ., p. 130.
5 For example, art. 218 par. 3 TFEU, concerning the conclusion of international agreements: "The
Council concludes the agreements after consulting the European Parliament (… .). The Parliament
issues the opinion within a period set by the Council (…). In the absence of an opinion issued within
this period, the Council may decide".
6 See O. Manolache, op. cit ., p. 109.
7 In the form of enhanced cooperation, authorization is granted by the Council, which decides on
the Commission's proposal and after Parliament's approval.
8 For example, art.19, art. 223 paragraph 4, art. 352 paragraph 1 and art. 311 TFEU; and in the case
of TEU, art. 49 paragraph (1) and others. See, for deta ils, J. -C. Gautron, Droit européen , Dalloz,
Paris, 1999, p. 129 and p. 176, 177.
9 It decides by qualified majority.
Organizat ion and duties of the European Union institutions 45
meet the majority, the European Council1 shall propose, within one month, a new
candidate, who shall be elected by the European Parliament in accordance with
the same procedure (Article 17, paragraph 7 TEU).
F. The judicial status of the European Parliament. If, initially, at the
beginning of the community building Parliament had only the capacity to inter-
vene in the cases in the role2, then its position was streng thened. According to the
judgments of the Court of Justice (those prior to the Lisbon Treaty), it is also
recognized as having the right to bring direct actions before it. The Court accepted
the actions brought by the Parliament against the regulations of the Council pro-
vided that the respective actions have as an object the assurance of the Parlia-
ment's prerogatives3 – supported by means based exclusively on the violation of
these prerogatives – in order to ensure the institutional balance in the Union/Com-
munity.
And legally, according to art. 263 TFEU (former Article 230 TEC, as
amended by the TMs), the Court controls the legality of legislative acts, Council,
Commission and ECB acts, other than recommendations and opinions, and acts
of the European Parlia ment and of the European Council, which are intended to
take effect. legal to third parties.
The Parliament can act as a defendant in the following actions:
– the action for annulment (art. 263 TFEU) 4. The acts of the Parliament
may be subject to the cont rol of legality as a result of the modification of art. 230
par. 1 TEC (currently, art. 263 TFEU), through TMs. In the previous regulation
there was no such possibility, but it was admitted in the case law of the Court;
– the action regarding the refusal o f the Union institutions to act (the de-
ficiency action, pursuant to Article 265 TFEU);
– preliminary reference in the interpretation and validity examination of
acts adopted by the institutions of the Union (Article 267 TFEU).
Through the Treaty of Nice, t he European Parliament was included
among the institutions that have full active legitimacy [art. 263 paragraph (2)
TFEU], without making any further reference to the protection of its prerogatives
(not provided for by the Court of Accounts and the Europea n Central Bank (ECB)
as having the power to bring actions for the purpose of protecting its preroga-
tives).
The Parliament may also be invited by the Court to provide it with infor-
mation in the context of direct actions or references in order to obtain a pr elimi-
nary ruling.
1 Idem .
2 See Resolution of December 14, 1979 (1980, O.J. C 4/52) for intervention in cases 138779, Ro-
quette Frères v. Council (1980, ECR 3 333 and 139/79, Maizena v. Council , 1980, ECR 3393.
3 Case 70/88, Parliament v. Council (1990, Ecr I – 2067; 1992 I CMLR 91); Case C -65/90, Parlia-
ment v. Council (1992, ECR 1 -4616).
4 The action is intended to annul the acts of Parliament intended to prod uce legal effects vis -à-vis
third parties.
46 Ioana Nely Militaru
The judicial status of the European Parliament is also highlighted by the
rules of procedure of this institution1. Thus, it is foreseen that "within the dead-
lines set by the Treaties and the Statute of the CJEU for actions brought by EU
institutions or by natural or legal persons, the EP examines Union law and imple-
menting measures to ensure that the Treaties, in particular as regards regarding
the rights of the Parliament, they have been fully respected". The action is brought
to the Cour t of Justice by the President, on behalf of Parliament, in accordance
with the recommendation of the committee responsible.
G. Other powers of the European Parliament
The EP elects its president and office from among its members (art. 14
par. 4 TEU).
Parli ament adopts its rules of procedure, acting by a majority of the votes
of its members. The acts of the Parliament are published under the conditions
provided in the treaties and by this regulation (art. 232 TFEU).
The EP, acting by regulations on its own i nitiative, in accordance with a
special legislative procedure, establishes the general status and conditions regard-
ing the exercise of the functions of its members (art. 223 par. 2 TFEU).
The EP and the Council, acting through regulations, in accordance wi th
an ordinary legislative procedure, establish the status of political parties at Euro-
pean level [mentioned in art. 10 paragraph (4) of the TEU], in particular their
financing rules (Article 224 TFEU).
The EP, acting by regulations on its own initiative, in accordance with a
special legislative procedure, establishes the general status and conditions for the
exercise of the Ombudsman's functions, following the Commission's opinion and
with the approval of the Council (art. 228 par. 4 TFEU).
The Parliament, at the proposal of the committee responsible, appoints a
person for the committee consisting of seven persons in charge of controlling the
ability of candidates to exercise the functions of judge and general counsel in the
Court of Justice and in the Gene ral Court (art. 107a of the EP Rules of Procedure).
The EP appoints the members of the Court of Accounts, under the con-
ditions of art. 108 of the EP Rules of Procedure.
The EP appoints the members of the Steering Committee of the European
Central Bank, in accordance with art. 109 of the Rules of Procedure of the EP.
The EP may conclude interinstitutional agreements2. The EP may con-
clude agreements with other institutions in the context of the application of the
treaties1 or for the purpose of improving or c larifying the procedures. These
agreements may be in the form of joint statements, exchanges of letters, codes of
conduct, or other appropriate instruments.
1 See art. 128 of the Rules of Procedure.
2 See art. 127 of the Rules of Procedure.
Organizat ion and duties of the European Union institutions 47
2.3.3. The European Parliament's tasks in the Union's external ac-
tion
✓ The European Parliament should be consulted:
– In the case of the conclusion of agreements between the Union and one
or more states or international organizations, under the conditions of art. 218
TFEU, when the Council adopts the decision on the conclus ion of the agreement,
"after the approval of the EP"1 (in the case of the assent) or "after the consultation
of the Parliament"2 (in the case of the advisory opinion, according to its advisory
competence).
✓ The European Parliament must be informed on the occasion of the
conclusion of formal agreements regarding a system of the exchange rate of the
euro in relation to the currencies of third countries. In this case, the President of
the Council shall inform the EP of the adoption, modification or withdrawal of
the central rates of the euro.
✓ Within the CFSP3, "the High Representative of the Union for Foreign
Affairs and Security Policy regularly consults Parliament on the main issues and
fundamental options in the field of common foreign and security policy and of
the common security and def ense policy and informs them of their evolution". It
shall ensure that the views of the EP are duly taken into account. Special repre-
sentatives may be involved in the information activity of the EP.
The European Parliament may ask questions or make recomme ndations
to the Council and the High Representative. "The European Parliament organizes
a debate twice a year on the progress made in the area of CFSP implementation,
including the common security and defense policy" (Article 36 TEU).
1 In the following cases: association agreements (art. 217 TFEU); agreement on the accession of
the Union to the European Convent ion for the Protection of Human Rights and Fundamental Free-
doms; agreements establishing a specific institutional framework by organizing cooperation proce-
dures; agreements that have important budgetary implications for the Union (the notion was ex-
plained by the Court of Justice in a judgment of 8 July 1999, Parliament v. Conseil , aff. C -164 and
165/97, Rec., I, p. 1139) ; agreements in areas where the ordinary legislative procedure or the spe-
cial legislative procedure is applied where the approval of the E P is required [art. 219 paragraph 6
letter a) to TFEU].
2 In all cases, except for those of art. 219 paragraph 6 letter a) TFEU, when the EP issues the opinion
within a deadline that the Council can establish according to the urgency of the problem. In the
absence of an opinion, within the term, the Council may decide [art. 219 paragraph 6 letter b)
TFEU].
3 Common foreign and security policy (CFSP).
48 Ioana Nely Militaru
2.3.4. Relations of the European Parliament with national parlia-
ments
✓ Formal cooperation links were established between the European Par-
liament and national parliaments1, initially, through systematic meetings between
the presidents of national parliaments and subsequently through systematic meet-
ings of factions and parliamentary committees.
By a Declaration (no. 14 attached t o the TEC, prior to the Lisbon Treaty),
the TMs provided that, when needed, the European Parliament and national par-
liaments should meet in the form of the "Conference of Parliaments", and that
this forum should be consulted on major EU guidelines, without prejudice to the
powers of the European Parliament and national parliaments2.
✓ The national parliaments of the Member States are regularly informed
by the Parliament about its activities.
In this regard, based on art. 9 of the Protocol on the role of nat ional par-
liaments in the EU, a concrete and constant interparliamentary cooperation is or-
ganized and promoted, which is negotiated on the basis of a mandate entrusted to
the Conference of Presidents, after consulting the Conference of Committee
Chairs3.
To this end, in 1989 a COSAC – Inter -parliamentary conference of spe-
cialized bodies in European affairs was set up in Madrid, at which the members
of the national parliaments of the EU Member States agreed to strengthen the role
of the national parliaments in the report. with community issues, by meeting them
in Committees for European Affairs4.
COSAC was formally recognized in a Protocol to the Treaty of Amster-
dam, which was concluded by the Heads of State or Government in June 1997.
The Protocol on the ro le of national parliaments in the EU entered into force on
1 May 1999.
According to this protocol, COSAC, among others, can address to the EU
institutions any contribution it deems appropriate in relation to EU legislative ac-
tivities.
The COSAC objectives are5:
1. to allow a permanent exchange of information, as well as best practices
and opinions on Union issues, in business, between national parliaments and the
European Parliament;
2. to ensure the effective exercise of the powers of national parliaments
1 See O.H. Maican, The role of national parliaments in the Treaty of Lishon , „Metalurgia Inter-
național” no. 3/2012, pp. 234 -239.
2 See G. Fabian, op. cit ., p. 180.
3 See art. 130 of the EP's Rules of Procedure.
4 The first COSAC meeting took place in Paris on November 16 -17, 1989. See www.COSAC.eu.
5 Guide for interparliamentary cooperation in the EU (J. Of. EU, January 31, 2008).
Organizat ion and duties of the European Union institutions 49
in the EU, especially in the area of monitoring the principles of subsidiarity and
proportionality;
3. to promote cooperation with parliaments from third countries.
COSAC meets in biannual meetings, each national parliament is repre-
sented by six members. The national parliaments of the candidate countries and
the accession countries send three observers as guests.
In the context of these concerns, the Treaty of Amsterdam provided in a
"Declaration on the role of national Parliaments in the EU" that it is impor tant to
encourage greater participation of national parliaments in EU activities, and that
the governments of the Member States should take this into account. that the
Commission's proposals be forwarded to the national parliaments in time for in-
formation or for consideration1.
✓ According to the Lisbon Treaty, formal links between national parlia-
ments and the EP are expressly enshrined in the TFEU. In this regard, the national
parliaments contribute actively to the good functioning of the Union (Article 12
TEU):
– by participating in interparliamentary cooperation between national par-
liaments and the EP, in accordance with the Protocol on the role of national par-
liaments within the EU, mentioned above;
– by participating, within the area of freedom, secur ity and justice, in the
mechanisms for evaluating the implementation of Union policies in this area, in
accordance with art. 70 TFEU, and by involving in the political control of Euro-
pol and in the evaluation of Eurojust activities, in accordance with art. 88 and art.
85 TEU.
First, in order to promote and strengthen operational cooperation in the
field of internal security, a permanent committee is set up within the Council, the
work of which may be represented by the representatives of the bodies, offices
and agencies concerned of the Union. The European Parliament and national par-
liaments are informed about the progress of these works (Article 70 TFEU).
Secondly, the European Parliament and the Council, acting by means of
regulations, in accordance with t he ordinary legislative procedure, determine the
structure, functioning, scope and tasks of Eurojust2. These regulations also estab-
lish the conditions for the involvement of the European Parliament and the na-
tional parliaments in the evaluation of Eurojust 's activities [art. 85 paragraph 1
TFEU].
Thirdly, the European Parliament and the Council, acting by means of
1 See G. Fabian, op. cit ., pp. 181 -182.
2 Eurojust's mission is to support and strengthen coordination and cooperation between national
criminal investigation and investigation authorities in relation to serious forms of crime affect ing
two or more Member States [Article 85 (1) TFEU].
50 Ioana Nely Militaru
regulations in accordance with the ordinary legislative procedure, establish Eu-
ropol's structure, operation, field of action and attribution1. These regulations also
establish the procedure for the control of Europol activities by the European Par-
liament, to which the national parliaments are associated [art. 88 paragraph 2
TFEU].
✓ At the proposal of the President, the Conference of Presidents shall
appoint the members of Parliament's delegation to COSAC and may confer a
mandate on them2. In addition, the Conference of Presidents shall appoint the
members of the EP delegation to an y conference or equivalent body attended by
representatives of parliaments and shall confer on it a mandate in accordance with
relevant Parliament resolutions.
1 Europol's mission is to support and strengthen the action of law enforcement authorities and other
law enforcement agencies in the Member States, as well as their cooperation in preventing and
combatin g serious crime affecting two or more Member States [Article 88 (1) TFEU].
2 See art. 131 of the EP Rules of Procedure.
Chapter 3. The European Council
3.1. Regulation of the institution of the Europ ean Council prior to
the Lisbon Treaty
✓ The legal basis of the European Council is included in the following
provisions:
– art. 13 TEU;
– art. 15, art. 26, art. 27 and art. 42 paragraph (2) TFEU.
✓ The European Council, composed of the Heads of State and Govern-
ment, should not be confused with the Council (European Union), consisting of
one representative from each Member State, at ministerial level, empowered (em-
powered) to engage the government of this Member State (art. 16 TEU), or with
the Council of Europe, established in 1949, which was c onfined to the social –
cultural domain.
By the Treaty of Maastricht, in art. D which has almost identical resump-
tion of the provisions of the Single Act – the European Council acquires an official
status. Its role is to give the necessary impetus to the dev elopment of the Union
and to define its general guidelines. The European Council does not participate
in the formal decision -making process established by the Community treaties. It
is a political decision only, and the task of implementing Community polic y lies
with the Community institutions, in particular the EU Council.
In this area, TMs, in art. 13 paragraph (1) and (2), specifies the role of
the European Council, because in paragraph (3) to specify how it works with the
EU Council in the implementatio n of the Community policy, as follows:
– defines the general principles and guidelines of the common foreign
and security policy, including for problems that have implications in the field of
defense;
– establishes common strategies that will be implemen ted at Union level,
in areas where Member States have important common interests. The joint strat-
egies shall specify their objectives and duration, as well as the means to be pro-
vided by the Union and the Member States;
The way the European Council works w ith the EU Council in/and for the
implementation of the Community policy is as follows:
– the decisions needed to define and implement the common foreign and
security policy are taken by the EU Council, based on the general guidelines es-
tablished by the Eu ropean Council;
– The EU Council recommends common strategies for the European
Council and implements them, in particular by adopting joint actions and com-
mon positions;
– The EU Council ensures the unity, coherence and effectiveness of the
Union.
52 Ioana Nely Militaru
✓ The Treaty of Amsterdam confirmed the status of the European
Council as the main source of momentum for the integration of Europe. The Eu-
ropean Council has the highest political status. Thus, according to art. 99 para-
graph (3), the European Council, acti ng on the basis of the report of the EU Coun-
cil, adopts conclusions of general orientation of the economic policies of the
Member States and of the Communities. Based on these conclusions, the EU
Council, acting by a qualified majority, adopts a recommenda tion setting out the
general guidelines.
Therefore, from this perspective, the European Council does not present
itself as an institution of the Communities or of the Union, being considered in
the doctrine that "it exists and acts rather as a super -Counci l, in the specified
composition"1.
✓ By the Treaties of Nice , according to art. 4 paragraph (3) TMs, the
European Council must submit to Parliament a report on each of the meetings and
an annual report on the progress made by the Union (provision taken by the Lis-
bon Treaty).
✓ Acts of the European Council. The European Council's principled
decisions were adopted by it even before a proposal was made by the Commission
or the European Parliament was consulted, which led to some of its decisions
being discret ionary2. Its decisions were not adopted in accordance with the pro-
cedure provided for in the Community Treaties (before the Lisbon Treaty), as
they did not represent acts of a (Community) institution. Not having, therefore,
the legal effects of a Community act, they did not fall within the scope of the
judicial control of the Court of Justice and were not the subject of a preliminary
reference in interpretation or validity examination, under the conditions of art.
234 TEC (art. 267 TFEU) and art. 156 Eurato m3. For this reason, the acts of the
European Council could not modify the obligations of the Member States estab-
lished by the provisions of the Community Treaties or by the acts of the Commu-
nity institutions4.
However, within the European Council, from it s first meetings until re-
cently5, important decisions were taken regarding: the introduction of direct elec-
tions, the extension of the Communities6, budgetary matters, agreements on new
budgets or their correction, granting additional aid for the four Comm unity coun-
1 See O. Manolache, op. cit., p. 192.
2 Ibid, p. 192.
3 See B. Ștefănescu, Trimiterea prejudiciară in fața Curții de Justiție a Comunităților Europene ,
„Revista de Drept Comunitar” no. 1/2003, pp. 88 -90; I. N. Militaru, Trimiterea prejudiciară în fața
Curții Europene de Justiție , Ed. Lumina Lex, Bucharest, 200 5, p. 101 et seq.
4 See O. Manolache, op. cit ., p. 192.
5 Prior to the Treaty of Lisbon.
6 In December 1992, the Edinburgh Council agreed to receive new members, for example: Austria,
Finland and Sweden.
Organizat ion and duties of the European Union institutions 53
tries considered less developed (Spain, Greece, Portugal and Ireland), the Eco-
nomic and Monetary Union, the reform of the common agricultural policy, etc.
3.2. The European Council according to the Treaty of Lisbon
✓ According to the Treaty of Lisbon, the European Council has the status
of institution of the European Union (art. 15 TEU, art. 235 -236 TFEU)1, offers
the Union the necessary impulses for its development, defines its general political
orientations and priorities.
3.3. Composition an d organization of the European Council
✓ The European Council is composed of the Heads of State and Govern-
ment of the Member States, as well as its President and the President of the Com-
mission.
Therefore, Member States are represented in the European Council by
Heads of State and Government, w ho, in their turn, democratically respond either
to national parliaments or to their citizens [art. 10 paragraph (2) TEU].
When required by the agenda, each member of the European Consib may
decide to be assisted by a minister and, as far as the President of the Commission
is concerned, by a member of the Commission [art. 15 paragraph (3) TEU]2. Del-
egates whose access is authorized shall participate in the building where the Eu-
ropean Council meeting is held. The delegations, whose access is authorized in
the building where the meeting of the European Council is held, may not exceed
20 persons for each Member State and for the Commission and five persons for
the High Representative3. This number does not include technical personnel per-
forming specific securit y or logistical support tasks. The names and functions of
the members of the delegations concerned shall be notified in advance to the Gen-
eral Secretariat of the Council.
✓ The President of the European Council4 is elected by a qualified
majority of the European Council for a period of two and a half years. His term
of office may be renewed only once.
The European Council has the right to terminate its president's term of
office in the event of serious obstruction or culpability in accordance with the
procedure by which he was elected.
1 For details, see the European Council's Rules of Procedure (OJ L 315, 2 December 2009, p. 52
and OJ L 325, 11 December 2009, p. 36). The European Council's Rules of Procedure were adopted
by Decision of the European Council 2009/882/EU of 1 December 2009.
2 See art. 4 paragraph (4) of the Rules of Proced ure of the European Council.
3 Idem .
4 From December 1, 2009, the position of President of the European Council is performed by the
Belgian Prime Minister, Herman van Rompuy.
54 Ioana Nely Militaru
The powers of the President of the European Council, according to art.
15 par. 6 TEUs are:
– chair and promote the work of the European Coun cil;
– ensures the preparation and continuity of the work of the European
Council, in cooperation with the President of the Commission and based on the
work of the General Affairs Council;
– acts to facilitate cohesion and consensus within the European Cou ncil;
– submit a report to the European Parliament after each meeting;
– ensures, at its level and in this capacity, the external representation of
the Union in matters relating to the Common Foreign and Security Policy (CFSP),
without prejudice to the dut ies of the High Representative of the Union for For-
eign Affairs and Security Policy.
The President of the European Council is forbidden to exercise a national
mandate.
Also, the President of the European Council may convene, if required by
international ev olution, an extraordinary meeting to define the strategic lines of
the Union's policy in relation to this evolution [art. 26 paragraph (1) TEU].
The Presidency is responsible for the application of the rules of procedure
and ensures the smooth running of t he proceedings1.
✓ The European Council and its president are assisted by a General Sec-
retariat, under the authority of a Secretary General, who has the following tasks2:
– Attends European Council meetings;
– take all necessary measures to organize the work of the Europea n Coun-
cil;
– has full responsibility for the management of the credits included in
section II – the European Council and the Council – of the budget and takes the
measures considered necessary to ensure the proper management of the credits;
– execute the a ppropriations in accordance with the provisions of the fi-
nancial regulation applicable to the Union budget.
✓ The headquarters. European Council meetings are usually held in
Brussels3.
3.4. Operation of the European Council
✓ Meetings of the European Council. The European Council meets
twice a semester at the convening of its President [art. 15 paragraph (3) T EU].
During the crisis, which has been prolonged to the present day, the Euro-
pean Council was forced to meet more often.
1 See art. 4 paragraph (4) of the Rules of Procedure of the European Council.
2 See art. 13 of the Rules of Procedure of the European Council.
3 For exceptional reasons, for example, a January 2012 air traffic controllers' strike almost forced
state leaders to meet in Luxembourg.
Organizat ion and duties of the European Union institutions 55
For example, in 2012, it met four times. In addition, the following meet-
ings were held: an extraordinary meeting of the European Counci l, two informal
meetings of the members of the European Council and four meetings of the heads
of state or government in the euro area (also called the euro area summits). In
2015, it met four times. In addition, the following meetings were held: three hig h-
level meetings of the euro area and three extraordinary high -level meetings on
migration1.
The meetings of the European Council are not public2.
At least one year before the beginning of the semester and in close coop-
eration with the Member State holdi ng the presidency during the respective se-
mester, it publishes the data expected for the meetings of the European Council
to be held during that semester3.
The European Council may also meet in an extraordinary meeting, when
the situation so requires, at t he convening of the president [art. 15 paragraph (3)
TEU].
The meetings of the European Council take place in Brussels, and in ex-
ceptional situations, the President of the European Council, with the agreement
of the General Affairs Council and the Committe e of Permanent Representatives,
acting unanimously, may decide that a meeting of the Council may take place
elsewhere4.
Each ordinary meeting of the European Council shall be held for a max-
imum period of two days, unless the European Council or the General Affairs
Council decides otherwise, at the initiative of the President of the European Coun-
cil5.
The High Representative of the Union for Foreign Affairs and Security
Policy participates in the work of the European Council [art. 15 paragraph (2)
TEU].
The member of the European Council representing the Member State that
holds the Presidency of the Council shall present the work of the Council in con-
sultation with its President. The President of the European Parliament may also
be invited to be heard at the work of the European Council; the exchange of views
between the representatives of the two institutions takes place at the beginning of
the European Council meeting, unless this institution decides otherwise, unani-
mously.
In this framework, meetings with representatives of third countries, in-
ternational organizations or other personalities may take place only exceptionally,
with the prior agreement of the European Council, acting unanimously, at the
1 See P. Novac, April 2017. Fișe tehnice privind Uniunea Europeană, Consiliul European,
http://www.europarl. europa.eu/ab outparliament/ro/displayFtu.htm l?ftuld=FTU_1.3.6.html.
2 See art. 4 paragraph (3) of the European Council's Rules of Procedure.
3 See art. 1 paragraph (1) of the E uropean Council's Rules of Procedure.
4 Idem , see art. 1 of the Rules of Procedure of the European Council.
5 Ibid, art. 4.
56 Ioana Nely Militaru
initiative of the president of this institution.
Members of the European Council also met in informal formats, which
are usually referred to as "informal" meetings of heads of state or government,
such as the one held in Bratislava between the 28 Member States, at September
16, 2016.
Its members also meet in the form of an intergovernmental conference if
it were to conclude treaties: for example, the Treaty on the European Stability
Mechanism of 2 February 2012, the Treaty on Stability, Coordination and Gov-
ernance of 2 March and the Transfer Agreement and the sha ring of contributions
to the Single Resolution Fund of May 21, 2014
Regarding the quorum necessary for the adoption of decisions by vote,
the presence of two thirds of the members of the European Council is required,
without the quorum of the President of the European Council and of the Commis-
sion.
According to art. 15 paragraph (4) TEU, the European Council shall act
by consensus, unless the Treaties provide otherwise. In the event of a vote, each
member of the European Council may receive a delegation fro m a single member
[art. 235 para. (1) TFEU]. Also, if the European Council decides by vote, its Pres-
ident and the Commission President do not participate in the vote.
✓ The European Council decides, for different situations, with a qualified
majority and w ith simple renewal.
Thus, it decides by qualified majority when:
– adopts a decision establishing the list of Council formations, other than
General Affairs and Foreign Affairs [according to art. 16 paragraph (6) TEU];
– adopts a decision regarding the pre sidency of the Council formations,
with the exception of the Foreign Affairs one [according to art. 16 paragraph (9)
TEU].
Starting with November 1, 2014, the qualified majority is defined differ-
ently, according to art. 16 paragraph (4) TEU and art. 238 pa ra. (2) TFEU, as
follows:
1. according to art. 16 paragraph (4) TEU, the qualified majority is at
least 55% of the members of the European Council, comprising at least fifteen of
them and representing Member States that make up at least 65% of the populati on
of the Union [art. 16 paragraph (4) TEU]. The blocking minority must include at
least four members of the European Council, otherwise the qualified majority is
considered to have met1;
2. according to art. 238 TFEU paragraph (2), by derogation from art . 16
1 The transitional provisions regarding the definition of the qualified majority that will apply until
October 31, 2014, as well as those that will apply between November 1, 2014 – March 31, 2017,
are provided in the Protocol on the transitional provisions [art. 16 paragraph (4) TEU].
Organizat ion and duties of the European Union institutions 57
TEU and subject to the provisions set out in the Protocol on transitional arrange-
ments1, the qualified majority is at least 72% of the members of the European
Council representing the participating Member States, which comprise at least
65% of the pop ulation of the Union.
The European Council decides by simple majority on procedural issues,
as well as on the adoption of the rules of procedure [art. 235 para. (3) TFEU], or
in the procedure of ordinary revision of the treaties [art. 48 paragraph (2) and (3)
TEU].
3.5. Functions of the European Council
The functions of the European Council are provided, in principle, in art.
15 TEU, which provides that it provides the Union with the necessary impetus
for its development and defines its general political orientations and priorities.
The European Council does not exercise legislative functions.
In addition to the functions mentioned by art. 15 TEU, the European
Council fulfills some tasks considered organic2, which relate exclusively to the
organization of the institutions of the Union, while others pertain to their func-
tioning.
1. The European Council unanimously adopts, at the initiative of the EP
and with its approval, a decision establishing the composition of the EP [art. 14
paragraph (2) last sentence TEU].
2. The European Council, acting by a qualified majority, shall propose
the EP to a candidate for President of the Commission. If the respective candidate
does not meet the majority provided by the treaty3, the European Council pro-
poses a new candidat e [art. 17 paragraph (7) TEU].
3. The European Council appoints the Commission on the basis of an EP
approval vote [art. 17 paragraph (8) TEU].
4. The European Council, acting by a qualified majority, with the agree-
ment of the President of the Commission, shall appoint the High Representative
of the Union for Foreign Affairs and Security Policy. The European Council may
terminate its mandate in accordance with the same procedure [art. 18 paragraph
(1) TEU].
The European Council also has a dedicated competen ce. Thus, within the
Union's external action and based on its principles and objectives (provided for
in Article 21 TEU):
5. The European Council identifies the strategic interests and objectives
of the Union and makes decisions regarding them [art. 22 par agraph (1) TUE].
1 If the Council does not decide on the proposal of the Commission or the High Representative for
Foreign Policy and Security Policy.
2 See A. Popescu, I. Diaconu, op. cit. (Organizații europene…), p. 228.
3 With reference to the TEU, art. 7 paragraph (7).
58 Ioana Nely Militaru
The decisions of the European Council, in the framework of the external action,
concern:
– the common foreign and security policy of the CFSP, as well as the
other areas of the Union's external action;
– the Union's relations with a countr y or a region or may address a specific
issue. The Council unanimously decides on the recommendation of the Council
(art. 22 TEU).
6. The European Council identifies the strategic interests of the Union,
sets the objectives and defines the general guidelin es of the CFSP, including on
matters having defense implications [art. 26 paragraph (1) TEU]. The European
Council takes the necessary decisions in this area.
7. Common foreign and security policy – The CFSP is defined and im-
plemented by the European Counc il and the Council, which unanimously decide,
unless the treaties provide otherwise. The CFSP is implemented by the High Rep-
resentative of the Union for Foreign Affairs and Security Policy and by the Mem-
ber States [art. 24 paragraph (1) TEU]. And within th e competence of defining
and implementing the CFSP, the European Council and the Council have the
power to take decisions, being excluded the adoption of legislative acts [art. 31
paragraph (1) TEU].
8. The European Council and the Council represent the le gal framework
for Member States to agree on any matter of general interest in the CFSP field,
with a view to defining a common approach (Article 32 TEU).
9. The European Council unanimously decides on the gradual definition
in the CFSP of a common defense policy of the Union [art. 42 paragraph (2)
TEU].
The European Council has competence in the treaty review procedure.
10. In the ordinary procedure of revision of the treaties, the European
Council may adopt (…) by a simple majority a decision favorable t o the exami-
nation of the proposed changes, in which case the president of this institution
convenes a Convention composed of representatives of national parliaments,
heads of state. or by the government of the Member States of the EP and the
Commission (ar t. 48 TEU).
Also, the European Council may decide by simple majority (…) not to
convene the Convention if the magnitude of the amendments does not justify it.
11. In the procedure of simplified revision of the treaties, according to
art. 48 paragraph (6) , the European Council:
– may adopt a decision to amend, in whole or in part, the provisions of
Part Three of the TFEU;
– decides unanimously (…) in case of institutional changes in the mone-
tary field;
– may adopt decisions authorizing the Council to eit her decide by a qual-
ified majority in a particular area where it usually decides unanimously, or to
adopt legislative acts in accordance with the ordinary legislative procedure, if the
Organizat ion and duties of the European Union institutions 59
provisions of the TFEU they provide that the respective legislative act s shall be
adopted in accordance with the special legislative procedure.
The European Council has competence in the withdrawal of a Member
State from the Union.
12. The European Council receives notifications of intent from the Mem-
ber States which decide t o withdraw from the Union and may unanimously, in
agreement with the Member State, extend the two -year period after the entry into
force of the withdrawal of the member status is in force ( Article 50 TEU).
13. The European Council receives notifications fr om the Council in
cases where a member of the Council declares that a draft legislative act, neces-
sary for the establishment of the free movement of workers, does not meet the
conditions imposed by the treaty (with reference to the TFEU, respectively Arti-
cle 48). The European Council has the right to:
a. resubmit the draft of the Council, in which case the ordinary procedure
is suspended;
b. does not act in any way or asks the Commission to submit a new pro-
posal [art. 48 letter a) and b)].
The European Coun cil has decision -making and examination powers un-
der Title V – Area of Freedom, Security and Justice (TFEU).
14. With regard to "Judicial cooperation in criminal matters", the Euro-
pean Council may, at the same time or later, adopt a decision extending th e pow-
ers of the European Public Prosecutor's Office to include combating serious crime
of a cross -border dimension and with a view to amending the provisions of the
TFEU accordingly. [art. 86 paragraph (2)] regarding the perpetrators and co -per-
petrators of serious crimes affecting several Member States [art. 86 paragraph (4)
TFEU].
15. With regard to "Police cooperation", the European Council examines
the draft measures, regarding the operational cooperation between the authorities
in the field, of a group of at least nine Member States on which the Council has
not been able to obtain unanimity [art. 87 paragraph (3) TFEU].
16. Within the "Economic Policy", the European Council debates the
conclusions regarding the general guidelines of the economic policies of the
Member States and of the Union, which emerge from the report of projects elab-
orated by the Council [art. 121 paragraph (2) TFEU].
17. With regard to "Monetary Policy", the Council (…) decides which
Member States are subject to a derogation only a fter discussing the criteria that
Member States must meet, within the European Council [Article 140 (2) TFEU].
18. As part of the "employment" policy, the European Council receives
a joint report on this policy annually, including on the implementation of the em-
ployment guidelines, drawn up by the Council and the Commission [art. 148 par-
agraph (5) TFEU].
19. If a Member State is the subject of a terrorist attack or is the victim
of a natural or man -made disaster, the other Member States shall assist it at t he
60 Ioana Nely Militaru
request of its political authorities on the basis of a solidarity clause. In this con-
text, in order to enable the Union and the Member States to act effectively, the
European Council periodically assesses the threats facing the Union (Article 222
TFEU).
20. European Council and economic governance1. Since 2009, due to the
global banking crisis, the European Council has decided on ad -hoc or temporary
agreements2 through which several Member States receive financial aid pack-
ages.
It was proposed that, in t he future, the financial aid be granted through
the European Mechanism of permanent stability, which has as legal basis the De-
cision 2011/199/EU of the European Council which modified the art. 136 TFEU3.
This decision entered into force on 1 May 2013, foll owing ratification by all
Member States.
The governments of the Member States, with the participation of the
Commission, the Parliament and the ECB, have drawn up an international treaty
– the Treaty on Stability, Coordination and Governance (also called t he "Fiscal
Pact") – which allows for a tighter control of the budgetary and socio -economic
policies of the Member States. Increasingly, this raises questions about the role
of the European Commission and the European Parliament in the economic gov-
ernance o f the euro area.
21. The European Council issues political guidelines on macroeconomic,
fiscal and structured reform and policies to increase economic growth (in the first
semester, at its spring meeting).
22. The European Council approves recommendations stemming from
the evaluation of the national reform programs elaborated by the European Com-
mission and discussed within the Council (at the June meeting).
23. It is involved in the negotiation of the multiannual financial frame-
work (MFF), in which it plays an essential role in reaching a political agreement
on the key policy issues in the MFF Regulation, such as spending limits, spending
programs and (funding) resources4.
1 See P. Novak, April 2017, op. cit .
2 The European Stability Mechanism has approved the release of an 8.5 -billion -euro tranche from
the assistance program agreed with Greece (July 2017). The agreement was approved in principle,
which means it will become effective only after the Fund receives specific and credible assurances
from Greece's European pa rtners to ensure debt sustainability and provided that Greece's economic
program continues: https://www.dcnews.ro/fmi -imprumut -pentru-grecia -acord -eu-atena_55123 4.
html.
3 It was adopted on March 25, 2011. Currently, Decision 2011/199/EU of the European C ouncil
amending Article 136 TFEU represents the legal basis for stability mechanisms, such as, for exam-
ple, the European Stability Mechanism.
4 See P. Novak, April 2017, op. cit .
Organizat ion and duties of the European Union institutions 61
3.6. Relations of the European Council with other institutions of the
Union
Euro pean Council and Commission. Although the European Council
takes decisions independently of other institutions of the Union, the Lisbon
Treaty nevertheless maintains an organizational link between the European
Council and the Commission, taking into accoun t the fact that the President of
the Commission is a (non -voting) member of the European Council, and the High
representative of the Union for Foreign Affairs and Security Policy participates
in the debates. The European Council also calls on the Commissio n to submit
preparatory reports for its meetings.
European Council and European Parliament. The President of the Eu-
ropean Council shall submit a report to the European Parliament after each meet-
ing of the European Council. The President of the European Cou ncil meets
monthly with the President of the Parliament, as well as with the leaders of the
political groups. For example, in February 2011, he agreed to answer written
questions from Members of the European Parliament about his political activities.
Also, Parliament can exercise a certain informal influence:
– by the presence of its president at European Council meetings;
– through the meetings of the party leaders within the appropriate Euro-
pean political families, before the meetings of the European Coun cil;
– through the resolutions they adopt on the items on the agenda of the
meetings, the outcome of the meetings and the formal reports presented by the
European Council1.
European Council and CFSP. The President of the European Council
ensures the exter nal representation of the Union in CFSP matters, without preju-
dice to the responsibilities of the High Representative of the Union for Foreign
Affairs and Security Policy. The latter, whose function was created by the Lisbon
Treaties, proposes and implemen ts foreign policy on behalf of the European
Council.
1 Ibid.
Chapter 4. The Council
4.1. Regulations of the Council institution
The legal basis of the Council institution consists of the following provi-
sions:
– art. 14 TEU (regarding the exercise of the le gislative and budgetary
functions) and in art. 16 TEU;
– art. 237 -243 TFEU.
The Brussels Merger Treaty1 established a Council of the European Com-
munities, called the Council, which replaced the Special Council of Ministers of
the ECSC, EEC and Euratom. Acc ording to art. 2 of the Treaty of Brussels, this
single Council "exercises the powers and powers conferred under the conditions
provided by each of the three Community Treaties", and as regards the composi-
tion, "each government delegates one of its members ".
By TMs, the name of the Council is changed in the Council of the Euro-
pean Union, and the composition is defined in new terms, in art. 203 TEC2: The
Council is composed of a representative at ministerial level of each Member
State, empowered to engage th e government of that Member State.
Under the Treaty of Lisbon, the Council of the Union is referred to as the
"Council" and is regulated by Article 16 TEU and Article 237 -243 TFEU.
In almost identical terms as in the TEU, the Council is composed of a
repre sentative at ministerial level of each Member State, empowered to engage
the government of the Member State it represents and to exercise the right to vote
[art. 16 paragraph (2) TEU].
By default, the Council of the Union is the representative body of the
Member States through their governments, which are democratically accountable
either in front of national parliaments or in front of their citizens [art. 10 para-
graph (2) TEU]. Each Member State must establish the mode of representation
within the Council, in accordance with art. 16 paragraph (2) TEU (Annex I to the
Council Rules of Procedure)3.
The Council's headquarters are in Brussels, and in April, June and Octo-
ber, the Council meetings are held in Luxembourg4. In exceptional circumstances
1 Done on 8 April 1965 in Brussels, it entered into force on 1 July 1967.
2 It is about art. 146 TEU [resulting from art. 2 paragraph (1) of the merger treaty of the executives],
becoming art. 203 by the Treaty of Amsterdam.
3 The current Council Rules of Procedure were approved by Council Decision 2009/937/EU of 1
Decembe r 2009. It was modulated by Council Decision no. 795 of December 14, 2010, with effect
from January 1, 2011 (2010/795/EU).
4 See art. 1 paragraph (3) of the Council's Rules of Procedure; see also the single article of the
Protocol on the establishment of t he headquarters of certain institutions and of certain bodies, of-
fices, agencies and services of the European Union.
Organizat ion and duties of the European Union institutions 63
and for well -founded reasons, the Council or the Committee of Permanent Rep-
resentatives of the governments of the Coreper Member States – acting unani-
mously, may decide that a meeting of the Council may take place elsewhere1.
4.2. Composition and organization of the Council
The representative in the Council should be empowered to engage the
government of the Member State, so not only the holders of the ministerial port-
folios, although they only carry out the national policy of a state in a certain area.
Therefore, go vernments can empower other senior officials than minis-
ters, and may attend council meetings, for example, deputies, state secretaries,
representatives of federal ( land) or regional entities2. The meeting of the Council
"at the level of Heads of State and Government" of the Member States is ex-
cluded, unless the TEC itself expressly provided for this (these are the former
articles 121 and 122 articles TEC); the first Council decision "Brought together
at the state and government levels" was taken on May 3, 1 998 to decide the list
of states that meet the conditions necessary for the adoption of the single currency
on January 1, 19993.
✓ The composition of the Council varies depending on the agenda of the
work, respectively on the subject in question, thus calling on different holders of
the ministerial departments to become successively part of the Council.
Thus, even if the Ministers o f Foreign Affairs are considered, in princi-
ple, as the main representatives of the Member States in the Council, the practice
has enshrined, depending on the importance of certain areas or of the issues on
the agenda, the participation in these meetings an d of other ministers ( of agricul-
ture), of agriculture, of transport, of economy and of finances, of industry (called
specialized or sectoral councils), either with the ministers of Foreign Affairs, or,
most often, alone4. Because the meeting of "so many Se ctoral Councils" led to
the elaboration of their own policies lacking unity and coherence, the Ministers
of Foreign Affairs met in the General Affairs Council formation to receive the
coordinating role of these sectoral formations5.
The Treaty of Lisbon e nshrines the above practice and expressly pro-
vides: "The Council meets within the different formations", the list being adopted
by a qualified majority by the European Council in accordance with Article 236
TFEU [Article 16 (6) TEU]. Therefore, the Europea n Council adopts:
a. a decision establishing the list of Council formations, other than that
of General Affairs and Foreign Affairs, according to art. 16 paragraph (6) TEU;
1 See art. 1 paragraph (3) of the Rules of Procedure of the Council.
2 See O. Manolache, op. cit ., p. 111.
3 The Official Journal of the E uropean Communities no. L 139/30 of May 11, 1998; to be seen G.
Isaac, M. Blanquet, Droit communautaire general , 8 éd, Dalloz, Paris, 2001, p. 51.
4 See G. Isaac, M. Blanquet, op. cit. , p. 51; R. Munteanu, op. cit ., p. 201.
5 Idem .
64 Ioana Nely Militaru
b. a decision regarding the presidency of the Council formations, with the
exceptio n of the Foreign Affairs one, according to art. 16 paragraph (9) TEU.
The list of formations is fixed by the Council. According to the last list,
the Council can be convened1 in ten formations2:
– General Affairs and Foreign Affairs (these are established by Article 16
paragraph 6 TEU);
– Economic and Financial Affairs, also called ECOFIN (including the
Budget) 3;
– Justice and Home Affairs (including civil protection);
– Employment, Social policy, Health, Consumers;
– Competitiveness (internal market, indu stry and research, including
Tourism);
– Transport, Telecommunications and Energy;
– Agriculture and Fisheries;
– Medium;
– Education, Youth and Culture (including the audiovisual field).
The eight specialized formations are adopted, as we have shown, by t he
European Council with qualified majority (art. 236 TFEU). To these are added
the "General Affairs Council" and "the Foreign Affairs Council".
Council meetings are held in Brussels and Luxembourg (April, June and
October). Currently, three of the 10 form ations meet on a regular basis, namely
General Affairs, Foreign Affairs (also called the External Relations Formation)
and Economic and Monetary Affairs (ECOFIN).
The formation "General Affairs Council" deals with two main areas of
activity4 (for which it meets separately), namely:
– ensures, in collaboration with the Commission, the coherence and con-
tinuity of the works of the different formations of the Council within a multian-
nual program5;
– prepares the meetings of the European Council and pursues the imple-
1 At the Helsinki Europ ean Council on December 10 -11, 1999, the number of Council formations
was reduced in order to improve the coordination and coherence of the works. By the Council Con-
clusions (2000/C174/01) of April 10, 2000, some formations of this institution have been me rged.
The new formations were established by the rules of procedure from 2002 (in Annex I) and, subse-
quently, by the rules of procedure from 2004 (in Annex I) and then in 2006 (Annex I); the current
Rules of Procedure in force since 2009, amended by Counci l Decision 2010/795/EU, contains the
changes necessary for the implementation of the Lisbon Treaty.
2 According to Annex I to Council Decision 2009/937/EU of 1 December 2009, which adopted the
Council's Rules of Procedure, as amended by Council Decision 20 10/795/EU.
3 It is made up of the ministers of economy and finance; ECOFIN involves meetings of finance and
economic ministers from countries that have adopted the single "euro" currency.
4 According to art. 2 paragraph (2) of the Council's rules of proced ure and art. 16 paragraph (6)
TEU.
5 See art. 3 first sentence of the European Council decision of 1 December 2009 on the exercise of
the Presidency of the Council.
Organizat ion and duties of the European Union institutions 65
mentation of the measures adopted, in collaboration with the President of the Eu-
ropean Council and the Commission.
His responsibilities include general coordination of policies, institutional
and administrative issues, horizontal files affecting sever al Union policies, such
as the multiannual financial framework and enlargement, as well as any files in-
herited by the European Council, taking taking into account the rules of operation
of the Economic and Monetary Union1.
The formation of the "Foreign Aff airs Council" elaborates the Union's
external action, in line with the strategic lines established by the European Coun-
cil and ensures the coherence of the Union's action2.
It is responsible for the entire external action of the Union, namely the
Common Fo reign and Security Policy – CFSP, the the Common Security and De-
fence Policy – CSDP, the common commercial policy, development cooperation
and humanitarian aid.
The Presidency of the "Foreign Affairs Council" is provided by the High
Representative of the U nion for Foreign Affairs and Security Policy. It may be
replaced, in case of necessity, by the member of these formations, which repre-
sents the Member State exercising the semester presidency of the Council3.
The Presidency of the Council, with the excepti on of the Foreign Affairs
formation, is provided, for a period of 18 months, by groups predetermined by 3
Member States. These groups are formed on the basis of an equal rotation system
of the Member States, given their diversity and the geographical balan ce of the
Union4.
Each member of a group rotates, for a period of 6 months, the presidency
of all the formations of the Council, with the exception of Foreign Affairs5. There-
fore, the presidency of the formations of the Council, except the one of Foreign
Affairs, is provided by the representatives of the Member States within the Coun-
cil after an equal rotation system, under the conditions established in accordance
with art. 236 of the TFEU [art. 16 par. (9) TEU]6.
The other members of the group of states su pport the presidency in ful-
filling all its responsibilities, based on a common program7. As a rule, the presi-
dency of the Council changes on January 1 and July 1 of each year.
The presidency will be held until 2020 in the following order: Malta and
1 According to art. 2 paragraph (2) of the Council's Rules of Procedure.
2 According to art . 2 paragraph (5) of the Council's rules of procedure and art. 16 paragraph (6)
TEU.
3 See art. 2 paragraph (5) of the Council's Rules of Procedure.
4 See art. 1 paragraph (4) of the Council's Rules of Procedure.
5 Idem .
6 The current order to exercise th e presidency of the Council was established by the Council Deci-
sion 2007/5/EC, EURATOM, establishing the order to exercise the presidency of the Council, pub-
lished in OJ L, 4 January 2007, p. 11
7 See art. 1 paragraph (5) of the Council's Rules of Procedur e.
66 Ioana Nely Militaru
Estonia in 2017, Bulgaria and Austria in 2018, Romania and Finland in 2019 and
Croatia and Germany in 2020.
The European Council can modify the order of holding the presidency
[art. 236 letter b) TFEU].
The Foreign Affairs Council is chaired by the High Represent ative of the
Union for Foreign Affairs and Security Policy, who is at the same time one of the
Vice -Presidents of the Commission1 [art. 18 paragraph (3) and (4) and art. 27
TEU]. The president's responsibilities2 were strengthened as the number of spe-
cialized Councils increased, by adopting the work program for the Council, by
determining the number of meetings of the different Council formations, by es-
tablishing their calendar, by distributing the files between the different councils
(formations), by prepa ring meetings, by preparing the agenda and conducting the
meeting3.
The predetermined group of the 3 Member States that hold the Presidency
of the Council for the period of 18 months has the following tasks: elaborates a
program of the activities of the C ouncil for the period concerned4; draws up after
the appropriate consultations, for each formation of the Council, draft agenda for
the meetings of the Council scheduled for the following semester, presenting as
an indicative activity the legislative activ ity and the operational decisions envis-
aged5.
Also, the President of the Council, considering the program for 18
months:
– convenes the meetings of the Council (art. 237 TFEU);
– draws up the provisional agenda for each meeting, which it submits, at
least 14 days before the meeting, to the Council, the Commission, the national
parliaments and the Member States6;
– signs the acts adopted by the Council, with the participation of the Par-
liament and the acts adopted by the Council and the European Parliament t hrough
ordinary procedure [art. 297 paragraph (1) TFEU]7;
– has the initiative to vote in the Council, being obliged to initiate a voting
procedure at the initiative of a member of the Council or of the Commission8;
1 See art. 2 paragraph (5) of the Council's Rules of Procedure.
2 It is about the "internal role" of the President within the former EC pillar of the European Union;
see G. Isaac, M. Blanquet, op. cit ., p. 53; R. Munteanu, op. cit ., p. 203.
3 During th e third phase of EMU, the Council Presidency will be able to participate without delib-
erative vote in the meetings of the Governing Council of the ECB and submit a motion to the de-
liberation of the Governing Council, see R. Munteanu, op. cit ., p. 203.
4 For details, see the Council's Rules of Procedure, art. 2 paragraph (6).
5 See art. 2 paragraph (7) of the Council's Rules of Procedure.
6 See art. 3 paragraph (2) of the Council's Rules of Procedure.
7 In the same sense, art. 15 of the Council's Rules of P rocedure.
8 See art. 11 of the Council's Rules of Procedure.
Organizat ion and duties of the European Union institutions 67
– represents the Council before the EP and its committees1; also, in the
case of the Foreign Affairs Council, the president of this formation represents the
Council before the EP of its committees2.
✓ Within the CFSP, the High Representative of the Union for Foreign
Affairs and Security Policy , who chairs the Foreign Affairs Council, together
with the Council, guarantees respect for the principles of mutual loyalty and sol-
idarity, as long as the Member States work together to strengthen them in their
relations [ art. 24 paragraph (3) TEU].
In this sense, according to art. 26 and art. 27 TEU, High Representative
of the Union:
– contributes through its proposals to the development of the CFSP and
ensures the implementation of the decisions taken by the European Council and
the Council;
– represent s the Union in CFSP matters. It carries out, on behalf of the
Union, the political dialogue with third parties and expresses the position of the
Union within international organizations and international conferences;
– implements the CFSP with the Member S tates, using both national and
Union means.
In exercising his mandate as President of the Foreign Affairs Council, the
High Representative of the Union is supported by a European External Action
Service. This service works in collaboration with the diploma tic services of the
Member States and consists of the officials of the competent services of the Sec-
retary General of the Council and of the Commission, as well as of the seconded
personnel of the national diplomatic services [art. 27 paragraph (2) TEU].
Also, the High Representative of the Union, any Member State or the
High Representative for the support of the Commission have the right to notify
the Council on any matter related to the CFSP and may present initiatives or pro-
posals to the Council [art. 30 paragraph (1) T EU].
In cases where a speedy decision is required, the High Representative of
the Union shall convene either ex officio or at the request of a Member State,
within 48 hours or in case of absolute necessity, within a shorter time, an extraor-
dinary meeting of the Council [art. 30 paragraph (2) TEU].
With regard to special political issues, the High Representative has the
right to propose to the Council to appoint a special representative. The latter ex-
ercises his mandate under the authority of the High Representative of the Union
(art. 31 TEU).
Regarding the main aspects and the fundamental options in the field of
CFSP and CSDP, the High Representative of the Union consults the EP regularly
1The Council may be represented before the EP or its committees and by a Member State of the
group of states predetermined by three Member States (article 26 of the Council's Rules of Proce-
dure).
2 See art. 26 of the Council's Rules of Procedure.
68 Ioana Nely Militaru
and informs him regularly about the evolution of these policies. The special rep-
resentatives appointed under the conditions provided above may be involved in
the information activity of the EP (Article 36 TEU). Within and with regard to
these policies, the EP has the right to address and make recommendations to the
Council and the High Representative.
In the area of CSDP, the Council makes decisions only at the proposal
of the High Representative of the Union (or at the initiative of a Member State).
Also, in this area, the High Representative may propose t he use of national means,
as well as Union instruments, as the case may be, together with the Commission
[art. 42 paragraph (2) TEU]. To this end, the High Representative, under the au-
thority of the Council and in close contact with the Political and Secur ity Com-
mittee, oversees the coordination of the civil and military aspects of the mission
of a group of states, entrusted by the Council, in order to defend the Union's val-
ues and to serve its interests [art. 42 paragraph (5) and art. 43 paragraph (2) TE U].
Regarding the permanent structured cooperation, within the CSDP, the
High Representative is notified of the intention of any Member State wishing to
participate in this cooperation [art. 46 paragraph (1), (2) and (3) TEU].
Within the Council, a Committ ee consisting of permanent representatives
of the governments of the Member States, called abbreviated Coreper1, is respon-
sible, according to art. 240 paragraph (1) TFEU:
– preparing the Council's work;
– the execution of the mandates that are entrusted to him, especially.
Also, Coreper has the right "to censure, amend and unanimously approve
any proposal or initiative taken by a majority in the Commission which is to be-
come a Community act"2.
According to art. 19 of the Council's Rules of Procedure3, in al l situations,
Coreper ensures the consistency of the Union's policies and actions and ensures
that the following principles and rules are observed:
– the principles of legality, subsidiarity, proportionality and justification
of acts;
– the rules for estab lishing the competences of the institutions, bodies,
offices and agencies of the Union;
– budgetary provisions;
1 It was established by the Treaty of Brussels of April 8, 1965, establishing a single Council and a
single Commission of the European Communities, also called the Treaty of Merger of Executives;
entered into force in 1967.
2 The Coreper mechanism is meant to paralyze even those daring decision -makers whom the Trea-
ties of Rome (TEC and TEuratorn) maintained under the attribution of the "supranational" Com-
mission. See B. Ștefănescu, op. cit ., p. 26.
3 The provisions of art. 19 of the Rules of Procedure regar ding Coreper are without prejudice to the
role of the Economic and Financial Committee provided for in art. 134 TFEU and the existing
Council decisions on this committee (O .J. L. 358/13 December 1998, p. 109 and O .J. L. 5/9 January
1999, p. 71).
Organizat ion and duties of the European Union institutions 69
– the rules regarding the procedure, transparency and quality of the draft-
ing of documents. Coreper first examines all items on the agenda of a Council
meeting, unless Coreper decides otherwise.
Coreper also ensures that the files are properly presented to the Board
and, if it deems necessary, presents guidelines, options or suggestions for solu-
tions.
In case of emergencies, the Council may decide to deliberate without this
preliminary examination taking place. Coreper may set up or approve the setting
up of committees or working groups for the purpose of carrying out certain pre-
paratory work or pre -defined studies. The General Secretariat updates and pub-
lishes the list of training groups. Only the committees and working groups on this
list can meet as Council preparatory groups.
Among these committees, the treaties regulate the activity:
– The economic and financial committee, within the framework of the
monetary policy, to promote the coordination of the policies of the Member States
to the extent necessary for the functioning of the internal market [art. 134 par. (1)
TFEU]1;
– The political and security committee, in the field of CFSP, empowered
to follow the international situation in the fields related to CFSP (art. 38 TEU);
– the Standing Committee, in the field of "Area of freedom of security
and justice", to ensure within the Union the promotion and strengthening of op-
erational cooperation in the field of internal security (art. 71 TFEU);
– the Employment Committee, in th e field mentioned by the Committee
itself, in order to promote the coordination between the Member States of policies
regarding employment and labor market; the committee is consultative (art. 150
TFEU);
– the Social Protection Committee, with the aim of p romoting coopera-
tion on social protection between the Member States with the Commission; the
committee is consultative (art. 160 TFEU).
The Coreper Presidency is provided, according to the items on the
agenda, by the Deputy Permanent Representative of the Member State holding
the Presidency of the General Affairs Council.
The Presidency of the Political and Security Committee is provided by a
representative of the High Representative of the Union.
The presidency of the other preparatory groups and of the Co uncil for-
mations, with the exception of the Foreign Affairs formation, is provided by a
delegate of the Member State that ensures the presidency of the respective for-
mation.
1 The Stat ute of the Committee was adopted by the Council on March 18, 1958. Initially it was
called the Monetary Committee and it was established by art. 109, inserted by the TEU, and re-
placed at the beginning of the third phase of the Monetary Union by the Economi c and Financial
Committee.
70 Ioana Nely Militaru
Coreper may take procedural decisions in the cases provided by the
Council's Rules of Procedure [art. 240 paragraph (1) and art. 19 paragraph (7)].
✓ The Council is supported by a General Secretariat, headed by a Secre-
tary General appointed by the Council. The Council decides by a simple majority
on the organization of the General Secre tariat [art. 240 paragraph (2) TFEU].
The Secretary -General shall take all necessary measures to ensure the
proper functioning of the General Secretariat. The General Secretariat has the role
of:
– be closely and continuously involved in the organization, coordination
and control of the consistency of the Council's work and the implementation of
its 18 -month program;
– to assist the Council in identifying the solutions under the responsibility
and guidance of the Presidency1.
The Secretary -General shall per form the following tasks:
– submit to the Council a draft estimate of the Council's expenses in a
timely manner, to ensure that the deadlines provided in the financial provisions
are respected;
– has full responsibility for the management of the credits in cluded in
Section II – the European Council and the Council – of the budget and takes all
necessary measures to ensure their good management;
– executes the mentioned credits in accordance with the provisions of the
financial regulation applicable to the U nion budget.
Decisions taken by the Council or by Coreper, on the basis of the Rules
of Procedure, are adopted by a simple majority, unless it provides for another
method of voting.
4.3. Operation of the Council. Council meetings
The Council shall meet a t the convening of its chairman, on his own ini-
tiative, of one of its members or of the Commission (Article 237 TFEU).
As we have shown, the Council meets within the different formations,
their list being adopted in accordance with art. 236 TFEU.
The Counc il shall meet in public session when it deliberates and votes on
a draft legislative act. To this end, each session of the Council is divided into two
parts devoted to deliberations on the legislative acts of the Union, respectively to
the activities witho ut legislative character [art. 16 paragraph (8) TEU].
The Commission is invited to the meetings of the Council, including the
ECB, where it exercises its right of initiative. However, the Council may decide
to deliberate without the ECB or the Commission b eing present2. The members
of the Council and the Commission may be accompanied by officials assisting
1 See art. 23 paragraph (3) of the Council's Rules of Procedure.
2 See art. 5 paragraph (1) and (2) of the Council's Rules of Procedure.
Organizat ion and duties of the European Union institutions 71
them.
Until 1992, the Council meetings were not open to the public. Subse-
quently, the Council establishes in the Rules of Procedure the conditions under
which the public has access to the documents of the Council1.
Currently, according to the rules of procedure, in force, when the Council
deliberates and votes on a draft legislative act, the agenda includes a part entitled
"Legislative deliberations". The part "Legislative deliberations" is open to the
public, this is done through the audiovisual means, in an additional room, by
transmitting in all the official languages of the institutions of the European Union,
by broadcasting live video (video streamin g). And the result of the vote is indi-
cated by visual means2.
The Regulation also provides for other cases of Council deliberations
open to the public and public debates3.
Thus, if a non -legislative proposal is submitted to the Council regarding
the adop tion of rules that are legally binding in or for the Member States, by
means of regulations, directives or decisions based on the relevant provisions of
the Treaties, With the exception of internal measures, administrative or budgetary
acts, acts on interi nstitutional or international relations or non -binding acts (such
as conclusions, recommendations, resolutions), the first deliberation of the Coun-
cil on new important proposals is open to the public. The Presidency may decide,
on a case -by-case basis, and that subsequent Council deliberations on the above –
mentioned proposals shall be open to the public, unless the Council and Coreper
decide otherwise4.
The Council may vote only in the presence of the majority of the mem-
bers of the Council who have the rig ht to vote in accordance with the treaties5.
When the President votes, he is assisted by the General Secretariat, which checks
whether the quorum is met. A member of the Council who cannot attend a meet-
ing may take steps to be represented. Thus, in the eve nt of a vote, each member
of the Council may receive a mandate from one other member (Article 239
TFEU)6.
The deliberations of the Council fall within the scope of professional se-
crecy, except in the cases and unless the Council decides otherwise7.
1 Following the Edinburgh European Council, from December 11 and 12, 1992, the possibility f or
the future of the debates to be public, including by audiovisual means, was opened. The first of its
kind took place on February 1, 1993.
2 Idem .
3 See art. 8 of the Council's Rules of Procedure.
4 Idem .
5 Ibid, art. 11 paragraph (4).
6 The same cont ent also has art. 11 paragraph (3) of the Council's Rules of Procedure.
7 See art. 16 paragraph (1) of the Council's Rules of Procedure.
72 Ioana Nely Militaru
4.4. How to make decisions within the Council?
✓ One issue that has always given rise to divergences even in the formu-
lations of the Community Treaties is that of voting in the Council.
The "voting mode" was foreseen to evolve during the transitional peri-
ods for the achievement of an economic union, eventually reaching the majority
decisions, the unanimity being required only for making decisions on the issues
of the highest importance1. Under the EEC Treaty, the transition from unanimous
decision to majorit y decision had to be made at the end of 1965 (the year that
experienced one of the most powerful crises that even threatened the existence of
the Common Market)2. I agree with the renunciation of the unanimity rule by
practicing the so -called "empty chair" policy. This consisted in France's3 refusal
to participate in the work of all community institutions, thus blocking their activ-
ity. Eventually, on January 29, 1966, Luxembourg signed an "agreement on the
disagreement"4 whereby France succeeds in imposing that from that moment "on
the Ministerial Council (now the Council) any decision by unanimity or place",
the majority rule being postponed sine die as a threat to the sovereignty of the
Member States5. According to the Luxembourg Compromise, in the case of deci-
sions adopted by a majority of votes – at the proposal of the Commission – con-
cerning the vital interests of one or more members – the members of the Council
will endeavor, in the interim, to arrive at a solution that respects their interests
and to b e accepted by all members of the Council6. The Luxembourg agreement
is not binding, but on the basis of it has emerged a practice according to which
decisions concerning the vital interests of the Member States are subject to a dis-
cussion which will contin ue until a unanimous agreement is reached7.
The vote in the Council is expressed by the representative of each state,
in alphabetical order, by raising his hand – the voting procedure can be avoided
by the Presidency of the Council if it finds unanimity.
For the adoption of the decisions it is necess ary: the simple majority, the
qualified majority or the unanimity of the votes.
The simple majority is assembled when a decision is made if there are
1 See B. Ștefănescu, op. cit ., p. 26.
2 Idem .
3 France has refused to apply the rules of the majority vote in the Cou ncil, considering that its
interests in financing the general agricultural policy are threatened.
4 EEC Bulletin no. 3/1966, pp. 9 -11.
5 See B. Ștefănescu, op. cit ., p. 26.
6 See G. Gornig, I. E. Rusu, op. cit ., p. 37.
7 Another form of blocking the Cou ncil's work took place in 1996, the vote cast by the United
Kingdom of Great Britain on all Council work, which had to be adopted unanimously, regardless
of their purpose. By doing so, the United Kingdom has protested against the high trade restrictions
against this country due to cases of bovine spongiform encephalopathy (BSE). See G. Gornig, I.E.
Rusu, op. cit ., p. 37.
Organizat ion and duties of the European Union institutions 73
more votes "for" than "against". Each member of the Council has one vote.
The simple majority rule appli es when the Treaty does not provide oth-
erwise, according to art. 238 paragraph (1) TFEU.
The simple majority (50% + 1) was provided as a rule in the decision –
making process, but, given the numerous express derogations from it, it is pre-
sented as an excepti on.
In the case of deliberations for which a simple majority is required, the
Council decides with the majority of its members [art. 238 paragraph (1) TFEU].
The Council decides by simple majority:
– in procedural matters, as well as regarding the adoption of the proce-
dural regulation [art. 240 paragraph (3) TFEU];
– at the request of studies and proposals of the Commission, for achieving
the common objectives (art. 241 TFEU);
– when adopting the status of the committees provided by the treaties (art.
242 T FEU);
– by setting limits and conditions for the Commission regarding the re-
quest and receipt by it of all the necessary information (art. 337 TFEU).
In practice, the simple majority rule applies only to the adoption of a
small number of decisions, for exa mple: the Rules of Procedure of the Council,
the organization of the General Secretariat of the Council and the rules governing
the activity of the commissions provided for in the Treaty1.
The Treaty provides that decisions requiring more votes than the si mple
majority shall be adopted by a qualified majority. Therefore, the rule "one vote
from each Member State" no longer applies.
Thus, each country has a certain number of votes, depending on its pop-
ulation [art. 205 paragraph (2) TEC and, from November 20 14, art. 238 TFEU].
According to the Lisbon Treaty, the qualified majority has become a rule
in the adoption of decisions by the Council and the European Council, and the
provisions regarding this majority enter into force on 1 November 2014.
Until October 31, 2014, for the deliberations of the European Council
and of the Council, which require a qualified majority, the provisions mentioned
in the Protocol on transitional provisions regarding the qualified majority, at-
tached to the Treaty of Lisbon, remain in force. Taking into account Croatia's
accession to the European Union, from July 1, 2013, for the deliberations of the
European Council and the Council, which requires a qualified majority, the votes
of the members are weighted, as follows:
> the total n umber of votes is 352 (73.86%), these are distributed among
the Member States according to the table below:
– Germany, Great Britain, France and Italy ………………….. …….. …29 votes,
– Spain and Poland ………………………………….. ………………. ………. 27 votes,
– Romania ………………… …………………………… …….. …………… …… 14 votes,
1 See P. Novac, April 2017, op. cit.
74 Ioana Nely Militaru
– Netherlands…………………………………….. …………………………….. 13 votes,
– Greece, Czech Republic, Belg ium, Hungary and Portugal…… …12 votes,
– Sweden, Bulgaria an d Austria ……………….. ………………………… 10 votes,
– Slovakia, Denmark, Finland, Ireland, Lit huania and Croatia … … 7 votes.
– Latvia, Slovenia, Est onia, Cyprus and Luxembourg ………………. 4 votes,
– Malta ………………………………. …………. …………………………………..3 votes.
> the deliberations are concluded if they receive at least 260 favorable
votes expressed by the majority of the members, if, under the treaties, they must
be adopted at the proposal of the Cornice;
> in the other cases, the deliberations shall be concluded if at least 260
favorable votes cast by at least two thirds of the members.
A member of th e European Council or of the Council may, upon adoption
by a qualified majority of an act by the European Council or by the Council,
verify that the Member States constituting the qualified majority represent at least
62% of the total Union population1, calculated according to the population figures
established in art. 1 of Annex III2 of the Rules of Procedure of the Council. There-
fore, the fulfillment of the latter criterion must be requested by a Member State.
If it is found that this condition is not met , the act in question is not
adopted3.
Until October 31, 2014, in cases where, under the Treaties, not all Coun-
cil members participate in the vote, respectively in cases where reference is made
to the qualified majority defined in accordance with art. 238 paragraph (3) TFEU
[former art. 205 paragraph (3) TEC, the qualified majority is defined as the same
proportion of weighted votes and the same proportion of the number of members
of the Council, as well as, if necessary, the same percentage of the populat ion of
the Member States as those established by paragraph (3) of the mentioned article.
The Treaty of Lisbon gave up the system of weighted votes.
Thus, between November 1, 2014 and March 31, 2017, if a qualified ma-
jority decision is to be adopted, a memb er of the Council may request that this
decision be adopted by a qualified majority as defined in paragraph (3) in art. 238
TFEU.
In this case, two situations are regulated, "a simple rule of the double
majority"4, namely:
> first situation – derogation fr om art. 16 paragraph (4) TEU if the Coun-
cil does not decide on the proposal of the Commission or the High Representative
1 See Protocol on Transitional Provisions, with reference to the qualified majority.
2 See Council De cision 2010/795/EU of 14 December 2010, which entered into force on 1 January
2011, which amends Decision 2009/795/EU of 1 February 2009, approving the Council's Rules of
Procedure. Beginning with January 1 of each year, the Council, in accordance with the available
data of the EU Statistical Office, on September 30 of the previous year amends the figures set out
in art. 1 of the mentioned Annex [art. 2 paragraph (2) of Annex III], to the Council's rules of pro-
cedure.
3 See Protocol on Transitional Provisio ns, with reference to the qualified majority.
4 See P. Novac, April 2017, op. cit.
Organizat ion and duties of the European Union institutions 75
of the Union for Foreign Affairs and Security Policy1;
> the second situation, in which, according to the treaties, not all the
member s of the Council participate in the vote, the qualified majority is defined
as follows:
a. The qualified majority is defined as at least 55% of the members of the
Council representing the participating Member States, which comprise at least
65% of the popu lation of these states. The blocking minority must include at least
the minimum number of members of the Council, which represents more than
35% of the population of the participating Member States plus one member, oth-
erwise the qualified majority is consi dered to be assembled.
Article 16 paragraph (4) the TEU defines the qualified majority in similar
terms, being equal to at least 55% of the members of the Council, comprising at
least 15 of them and representing Member States that comprise at least 65% of
the population of the Union.
The blocking minority must comprise at least four members of the Coun-
cil, otherwise the qualified majority is considered to have met.
b. The qualified majority is defined as at least 72% of the members of the
Council represent ing the participating states, which bring together 65% of the
population of the respective states, if the Council does not decide on the proposal
of the Commission or the High Representative of the Union for Foreign Affairs;
security policy. It is worth me ntioning that, in order to avoid any confusion, re-
garding the voting method according to the qualified majority rule, the treaties
provide according to which article and paragraph the qualified majority is defined
whenever the Council decides in this way2.
The Community treaties have gradually expanded the scope of the areas
in which the decisions of the Council are adopted by a majority of votes. Along
the same lines is included the Treaty of Lisbon, which provides for the adoption
of decisions with a qual ified majority in the areas: asylum, immigration, Europol,
Eurojust, border control, the common transport policy, the objectives and the or-
ganization of the structural and cohesion funds, the initiatives of the High Repre-
sentative of the Union, for the app ointment of the President and the members of
the Commission, the members of the Court of Accounts, the European Economic
and Social Committee and the Committee of the Regions3.
It should be mentioned that in most cases the qualified majority was ex-
tended t ogether with the introduction of the ordinary legislative procedure. Also,
it is foreseen to introduce the action with qualified majority of the Council in new
1 These are the specific cases provided for in the Treaties, in which the legislative acts may be
adopted at the initiative of a group of Member States or the EP, at the re commendation of the ECB
or at the request of the Court of Justice or the European Investment Bank, according to art. 289
paragraph (4) TFEU.
2 For example, art. 136 paragraph (2), art. 138 paragraph (3) the last sentence, art. 140 paragraph
(2) the last TF EU sentence and others.
3 See A. Popescu, I. Diaconu, op, cit. (Organizații europene…) , p. 232.
76 Ioana Nely Militaru
areas of competence of the Union, such as: space policy, energy, civil protection,
structured co operation in the field of defense, services of general interest and oth-
ers1.
Some decisions of the Council are adopted on the basis of the principle
of unanimity of votes. Thus, the abstentions of the members present or repre-
sented do not prevent the adopt ion of the decisions of the Council for which una-
nimity is required [art. 238 paragraph (4) TFEU].
Unanimity means the approval of the decision by all members. In some
areas, considered sensitive to the Member States, the Council must act unani-
mously, alt hough the qualified majority has gradually become, through succes-
sive amendments of the TEEC/TEC, the SEA, TMs, Treaty of Amsterdam and
the Treaty of Nice, the quorum pr evailing in the European Union .
For example, by the Treaty of Nice new provisions were introduced ac-
cording to which the unanimity rule applies, for example, in the field of intellec-
tual property (art. 262 TFEU).
It should be mentioned that, according to the Treaty of Lisbon, the Coun-
cil unanimously votes only in accordance with the special legislative procedure.
The areas that the Member States consider sensitive are reserved to the
principle of unanimity of votes:
– measures to combat discrimination [art. 19 paragraph (1) TFEU];
– the field of capital and payments [art. 64 paragraph (3) and art. 65 par-
agraph (4) TEU];
– the fields of judicial cooperation in civil matters [art. 81 paragraph (3)
TFEU], of cooperation in criminal matters [art. 82, paragraph (2) letter d) and art.
83 paragraph (1) TFEU] and police cooperation [art. 87 paragraph (3) and art. 89
TFEU];
– transport policy (art. 92 TFEU);
– measures regarding the harmonization of the legislation on turnover
taxes, excise duties and other indirect taxes (art. 113 TFEU);
– the field of state aid (art. 108 paragraph (2) TFEU];
– the fie lds of harmonization of legislation on turnover tax, excise duties
and other indirect taxes (art. 113 TFEU) and approximation of laws (art. 115 and
118 TFEU);
– the fields of economic policy [art. 126 paragraph (14) TFEU] and social
[art. 153 paragraph (2) TFEU];
– environmental policy [art. 192 paragraph (2) TFEU];
– the field of the common commercial policy [art. 207 paragraph (4)
TFEU];
– the procedure for concluding the agreements between the Union and
third countries or international organizations [art . 218 paragraph (8) TFEU];
– the language regime of the Union institutions (art. 342 TFEU);
1 Idem , p. 233.
Organizat ion and duties of the European Union institutions 77
– within the Union's subsidiary competence (art. 352 TFEU);
– decisions regarding the CFSP (art. 42 TEU).
Introducing new areas, considered sensitive, the Treaty of Lisbon lays
down the unanimity rule for the establishment of a European Public Prosecutor's
Office starting with Eurojust [art. 86 paragraph (1) TFEU and for energy policy
[art. 194 paragraph (3) TFEU].
But in order to avoid the institutional blockade in a Union of 28 Member
States, the Treaty of Lisbon, as we have shown, as in the previous treaty, from
Nice1, has greatly expanded the scope of the qualified majority in new areas. .
However, the provisions of art. 48 paragraph (7) TEU a gateway clause
that allows the Council to decide by qualified majority instead of unanimously in
certain areas. Moreover, in the case of certain policies, the Council may decide
(unanimously) to extend the use of the qualified majority, for example, art. 81
paragraph (3) TFEU on measures concerning family law which have cross -border
implications2.
In general, the Council tends to seek unanimity even in areas where it is
not required3. The situation explains the preference of the Council expressed by
the "Luxembourg compromise " from 1965 -1966, when France refused to accept
the unanimous passage of the qualified majority vote in certain areas, by not par-
ticipating in the Council's work. In this sense, the text of the compromise states:
"When, in the case of decisions which can b e taken by a majority of votes at the
proposal of the Commission, very important interests of one or of the many part-
ners are at stake, the members of the Council will endeavor, within a reasonable
period of time, to find solutions that can be adopted by a ll members of the Coun-
cil, while respecting their mutual interests and those of the Community".
In 1994, through the "Ioannina compromise", the attitude of certain mem-
ber states that had almost met the minority blocking decisions is protected by the
"compr omise" text, which essentially states that "if these states have expressed
their intention in order to oppose a decision by the Council by a qualified major-
ity, the Council should do everything in its power, within a reasonable time, to
reach a satisfactor y solution for most states"4.
More recently, the possibility of delaying the introduction of the new sys-
tem based on the double majority from 2014 to March 31, 2017 was created,
which allowed, at the request of a Member State, the application of the old r ule
regarding obtaining the qualified majority provided for in the Treaty of Nice5.
1 For example, the free movement of persons, the fight against discrimination, increased coopera-
tion, judicial cooperation, industrial polic y, trade agreements on services and intellectual property.
2 See P. Novac, April 2017, op. cit.
3 Idem .
4 Ibid.
5 See M. Schonard, May 2017, Datasheets on the European Union, " Supranational Decision -Mak-
ing Procedures ", http://www.europarl.europa.eu/about parliament/ro/displayFtu.html?f tuld=FTU_
1.4.1.html .
78 Ioana Nely Militaru
4.5. Functions of the Council
4.5.1. Regulation and definition of Council functions
The powers of the Council are regulated in a general manner in art. 16
paragraph (1) TEU, but, according to the Treaties, the Council institution has
other powers.
The Council exercises the legislative and budgetary functions together
with the EP. It exercises the functions of defining the policies and coordinating
it, in accordance with t he conditions stipulated in the treaties [art. 16 paragraph
(1) TEU].
A. The legislative function of the Council is exercised in various ways:
a. The Council deliberates and votes on a draft legislative act. In this case,
the Council shall meet in public s ession. To this end, the agenda includes a por-
tion of "Legislative Deliberations"1. Coreper pre -examines these projects with
guidelines, options or suggestions for solutions. Proposals and draft acts are ver-
ified by the legal service under the Interinstitu tional Agreement of December 22,
1998 regarding the common guidelines2 for the quality of the drafting of the Com-
munity legislation;
b. The Council, acting by a simple majority, may request the Commission
to carry out all the studies it considers appropria te for the achievement of the
common objectives and to submit any appropriate proposals to it (art. 241 TFEU
and art. 12 TEuratom). The Council sometimes asks for specific proposals, some-
times gives opinions and adopts resolutions addressed to the Commissi on to make
legislative proposals3. If the Commission does not submit a proposal, it shall com-
municate the reasons to the Council (art. 241 TFEU);
c. The Council may delegate to the Commission the power to adopt new
regulations in a field. In its capacity a s legislative body, the Council is empow-
ered, according to art. 290 paragraph (1) TFEU, to delegate to the Commission
the power to adopt non -legislative acts of general application, supplementing or
amending certain non -essential elements of a legislative act.
We exemplify in this regard the Regulation of the EP and of the Council
amending Regulation (EC) no. 485/2008 on the controls carried out by the Mem-
ber States regarding the operations that are part of the financing system through
the European Agricult ural Guarantee Fund. Following the entry into force of the
Treaty of Lisbon, the powers conferred on the Commission under Regulation
(EC) no. 485/2008 must be aligned with art. 290 TFEU. So the proposal to amend
1 See art. 7 of the Council's Rules of Procedure.
2 OJ L. 73/17 March 1991, p. 1; see art. 22 paragraph (1) of the Council's Rules of Procedure.
3 See A. Popescu, I. Diaconu, op. cit. (Organizații Europene…), p. 230.
Organizat ion and duties of the European Union institutions 79
the regulation in question is in line with t he alignment with the Treaty of Lisbon1.
d. The legislative competence of the Council is highlighted in the most
obvious way through:
– the ordinary legislative procedure (co -decision), through the adoption
by the EP and the Council together of a regulati on, a directive or a decision on a
proposal from the Commission [art. 289 paragraph (1) and art. 294 TFEU];
– the special legislative procedure, through the adoption of a regulation,
a directive or a decision by the EP, with the participation of the Counci l or the
Council with the participation of the EP [art. 289 paragraph (2) TFEU]. In this
case, the legislative initiative comes from a group of Member States or Parlia-
ment, at the recommendation of the ECB or at the request of the Court of Justice
or the E uropean Investment Bank.
According to the rules of procedure of the Council, after being analyzed
by the committees and working groups, the draft normative act is sent for debate
and negotiation within Coreper, after which it is passed on one of the two ag endas
of the Council. The exercise of the legislative competence of the Council, in all
cases, is subject to the views of the European Parliament, the Commission or
other institutions of the Union in the form of opinions or proposals.
The Council adopts an act of a specific nature only when this is expressly
provided by the Treaty, for example: directives or decisions, according to art. 143
paragraph 2 TFEU, or only decisions, according to art. 153 paragraph 3 and 126
paragraph (6), (11) and (12) TFEU.
Howe ver, if the treaties do not provide for the type of act to be adopted,
the institutions choose it on a case -by-case basis, respecting the applicable pro-
cedures and the principle of proportionality (article 296 TFEU). In this sense we
exemplify art. 43 para graph (2) and (3) and art. 48 TFEU, which use the term
"measures".
B. The budgetary function of the Council, which is exercised together
with the European Parliament [art. 16 paragraph (1) TEU and art. 314 TFEU].
To this end, the European Parliament and th e Council, acting in accord-
ance with a special legislative procedure, shall adopt the annual budget of the
Union (article 314 TFEU).
Although this competence is divided between the EP (which has a deci-
sive role) and the Council, the institution of the Coun cil has important powers,
namely:
– adopts its position on the draft budget and submits it to the European
Parliament by October 1 of the year preceding the year of budget execution;
1 Even in the regulation in question it is stipulated: “The Commission has the power to adopt dele-
gated acts, in accordance with art. 290 TFEU, in order to supplement or amend certain non -essential
elements of Re gulation (EC) no. 485/2008. It is necessary to define the elements on which the said
competence can be exercised, as well as the conditions to which the respective delegation is sub-
ject”. See Brussels, December 17, 2010, COM (2010), 761 final; 2010/0366/CO D (through the co –
decision procedure).
80 Ioana Nely Militaru
– approves or, as the case may be, rejects the joint draft budget on whic h
a steering committee, convened by the President of the Council, and the EP Pres-
ident have reached an agreement.
If, at the beginning of a budget year, the budget has not yet been defini-
tively adopted, the expenses may be incurred monthly by chapter, acco rding to
the provisions of the regulation adopted for the implementation of art. 322 TFEU,
up to a twelfth of the appropriations opened in the corresponding chapter of the
budget of the previous financial year. The Council, on a proposal from the Com-
missio n, may authorize expenditure in excess of the twelfth provided in accord-
ance with the provisions of the regulation adopted for the implementation of art.
322 TFEU.
Also, the Council, acting on a proposal from the Commission and after
consulting the EP and the Court of Auditors, establishes the methods and proce-
dure by which the budgetary revenues provided for by the Union's own resources
regime are made available to the Commission and defines the measures to be
taken to respond, if it is the case, the treas ury needs [art. 322 paragraph (2)
TFEU].
C. The function of politician definition and coordination (art. 16
TEU) . The common foreign and security policy – the CFSP is defined by the Eu-
ropean Council and the Council, acting unanimously, unless the treaties provide
otherwise [art. 24 paragraph (1) TEU]. Also, the Council, when drafting the
CFSP, adopts the necessary decisions for its definition [art. 26 paragraph (2)
TEU].
The TFEU expressly provides that "the Member States shall coordinate
their economic pol icies within the Union". To this end, the Council shall adopt
measures and, in particular, the general guidelines of these policies [Article 5 (1)
TFEU]. shall be adopted, in accordance with Article 5 (2) and (3) TFEU, regard-
ing:
– coordinating the employm ent policies of the Member States and, in par-
ticular, by defining the orientations of these policies;
– initiatives to ensure the coordination of the social policies of the Mem-
ber States. Being a matter of common interest1, the action to support, coordinat e
or supplement the action of the Member States by the Union, according to art. 6
TFEU, covered the following areas: protection and improvement of human health
(art. 168 TFEU), industry (art. 173 TFEU), culture (art. 167 TFEU), tourism (art.
195 TFEU), edu cation, vocational training, youth and sport (art. 165 TFEU), civil
protection (art. 196 TFEU), administrative cooperation (art. 197 TFEU).
Within this task, the Council has the general mission of coordinating be-
tween the Member States and the Union. In th is regard, the Council publishes
annually a recommendation on the general guidelines of the economic policies of
1 Article 121 paragraph (1) TFEU.
Organizat ion and duties of the European Union institutions 81
the Member States and of the Union1, for example, "Member States consider their
economic policies as a matter of common interest and coordinate them within the
Council" [art. 121 paragraph (1) TFEU].
The coordination of economic policies is carried out, in principle, on the
basis of deliberations, studies, consultants, recommendations, in order to bring
the views of the Member States closer, not excluding in certain cases and the
intervention of mandatory acts. To this end, "the Council, on the recommendation
of the Commission, shall draw up a draft on the general guidelines of the eco-
nomic policies of the Member States and of the Union and shall submit a report
to the European Council. The European Council, on the basis of the Council re-
port, debates the conclusions on the general guidelines of the economic policies
of the Member States and of the Union. On the basis of these conclusions, the
Coun cil adopts a recommendation setting out the general guidelines" [art. 121
paragraph (2) TFEU].
In order to ensure closer coordination of economic policies and a sustain-
able convergence of the economic performance of the member states, the Council
monitors the economic evolution in each of the Member States and in the Union,
as well as the conformity of the economic policies with the general guidelines
(…) and carries out periodically. an overall evaluation [art. 121 paragraph (2) and
(3) TFEU].
This coord ination is carried out by the EU Council in Economic and Fi-
nancial Affairs.
In completing and developing the mentioned functions, the Council has
the following attributions necessary to achieve the objectives set by the treaties:
D. The Council has the dec ision -making competence also by adopt-
ing acts without legislative character (except the adoption of the implementing
acts). Therefore, the decision -making competence of the Council concerns, in ad-
dition to the analyzed legislative function, the competence to adopt acts without
legislative character, according to art. 3 paragraph (1) of the Council's Rules of
Procedure. Thus, the provisional agenda of the provisional Council has two parts
devoted to deliberations on legislative acts2 and, respectively, activ ities without
legislative character3. The latter, in accordance with the Council's rules of proce-
dure, concern the adoption of acts that are legally binding in or for the Member
States, through regulations, directives, framework decisions or decisions. Als o,
without legislative character are: internal measures, administrative or budgetary
acts, acts regarding inter -institutional or international relations or non -binding
1 See Recommendation of 19 June 2000 (J. Of. L 210/1, 2000) and Recommendation of 12 of Feb-
ruary 2001 on the elimination of deviations from the general guidelines of economic policies in
Ireland (J. Of. 69/22, 2001) and the decision to make it public (J. Of. L 69/24, 2001); P. Mathjisen,
op. cit ., p. 105.
2 In the case of legislative projects, the Council meets in public meeting [art. 5 paragraph (1), the
Council's Rules of Procedure].
3 See art. 3 paragraph (6), the Council's rules of procedure.
82 Ioana Nely Militaru
acts: conclusions, recommendations, resolutions1.
In making its decisions, whether or no t they are legislative in nature, the
Council, as a rule, acts on the basis of proposals or recommendations of the Com-
mission and, as the case may be, after consulting the European Parliament or other
institutions or bodies, for example the Court of Accoun ts (art. 322 TFEU), ECB
[art. 140 paragraph (3) TFEU], the Economic and Social Committee and the
Committee of the Regions [art. 164, art. 165 paragraph (4), art. 172 and art. 177
TFEU], or only to one of the Committees [art. 169 paragraph (4) and art. 167
paragraph (5) TFEU], of the Commission and the Court of Justice [art. 257 para-
graph (1) TFEU]; or even the ECB [art. 138 paragraph (1) and (2) and art. 140
paragraph (3) TFEU].
E. If the unitary conditions for the implementation of the legally
binding acts of the Union are required, these acts confer the executive pow-
ers on the Council, in special and duly justified cases, as well as in the cases
provided by art. 24 and art. 26 TEU.
The implementing acts are not legislative in nature.
Thus, according to art . 24 TEU, CFSP is defined and implemented by the
European Council and the Council. In this regard, the Council adopts the neces-
sary decisions for the definition and implementation of the CFSP [art. 26 para-
graph (2) TEU].
Also, among the special cases in wh ich the Council has enforcement
powers, we exemplify:
– within the framework of the "Area of freedom of security and justice",
the Council, acting on a proposal from the Commission, shall adopt measures for
the implementation of the appropriate rules (ar ticle 75 TFEU);
– in the field of competition policy, the Council adopts regulations or di-
rectives useful for the application of the principles governing this field [art. 103
paragraph (1) TFEU];
– within the framework of "state aid", the Council, at the p roposal of the
Commission and after consulting the EP, may adopt all the regulations useful for
the application of the TFEU rules governing state aid, and may also establish the
conditions for applying some of these rules (art. 109 TFEU);
– within the "eco nomic policy", the Council, at the proposal of the Com-
mission and after consulting the EP, establishes the rules and provisions for the
application of the Protocol on the procedure applicable to excessive deficits, an-
nexed to the Treaties [article 126 para graph (14) last sentence of the TFEU];
– implements by a decision the solidarity clause in case a Member State
is the object of a terrorist attack, or a natural or man -made disaster [art. 222 par-
agraph (1) TFEU].
F. The Council has the power to decide the imposition of fines in a
certain amount, in the procedure provided in art. 126 paragraph (11) the last
1 See art. 8 paragraph (1), the Council's rules of procedure.
Organizat ion and duties of the European Union institutions 83
TFEU thesis on budget deficits; has the power to apply sanctions under the con-
ditions of art. 7 paragraph (2) and (3) TEU.
If the Council finds that in a Member State there is an excessive deficit
or such a deficit is about to occur and the State concerned refuses to follow the
recommendations and surnames received, the Council may decide to impose fines
on it. – an amount that he considers appropriate [ar t. 126 paragraph (7), (8), (9),
(10) and (11) last sentence of TFEU].
The European Council can find – at the motivated proposal of a third of
the Member States, of the Commission and with the approval of the European
Parliament – that there is a serious an d persistent violation of the principles set
out in art. 2 TEU by a Member State. If the above situation has been ascertained,
the Council, acting by a qualified majority, may decide to suspend certain rights
vested in the Member State concerned following the treaties, including the right
to vote in the Council for the representative of the government of that Member
State. In doing so, the Council shall take into account the possible consequences
of such suspension on the rights and obligations of natural a nd legal persons [art.
7 paragraph (2) and (3) TEU].
G. Has the right to make recommendations to the states [art. 121 par-
agraph (2) TFEU], at the recommendation of the Commission; art. 165 paragraph
(4) and art. 166 paragraph (4) TFU (on a proposal from th e Commission).
In the field of "economic and monetary policy", respectively "economic
policy", based on the conclusions of the European Council – on the draft on the
general guidelines of the economic policies of the Member States and the Union,
drawn up b y the Council – the Council institution adopts a recommendation which
sets out the guidelines general [art. 121 paragraph (2) TFEU].
In the field of "education, training, youth", the Council adopts:
– after consulting the Economic and Social Committee and the Commit-
tee of the Regions, encouraging actions, except for any harmonization of the leg-
islative acts and administrative rules of the Member States, in accordance with
the codecision procedure1 [art. 165 paragraph (4) TFEU];
– recommendations, on a prop osal from the Commission [art. 165 para-
graph (4) and art. 166 paragraph (4) TFEU].
H. In the context of the Union's external action, with the exception
of the CFSP, the Council concludes international agreements (Part V TFEU).
In the framework of the "comm on commercial policy", the Council unan-
imously decides on the negotiation and conclusion of agreements:
– in the field of trade in cultural and audiovisual services, if these agree-
ments risk undermining the cultural and linguistic diversity of the Union;
– in the field of trade in social, education and health services, in case these
agreements can seriously disrupt the organization of these services at national
level and undermine the responsibility of the Member States for the provision of
1 According to art. 294 TFEU.
84 Ioana Nely Militaru
these services1.
Draws up agreements between the Union and third countries or interna-
tional organizations that have been negotiated in advance by the Commission,
according to art. 218 TFEU. The Council authorizes the commencement of nego-
tiations, adopts the negotiating di rectives, authorizes the signature and concludes
the agreements.
Unless the agreement refers exclusively to the CFSP, according to art.
218 TFEU, the Council adopts the decision on the conclusion of the agreement:
a. after EP approval in the following case s: 1. association agreements; 2.
agreement on the accession of the Union to the European Convention for the Pro-
tection of Human Rights and Fundamental Freedoms; 3. agreements establishing
a specific institutional framework by organizing cooperation procedu res; 4.
agreements that have important budgetary implications for the Union; 5. agree-
ments in the fields in which the ordinary legislative procedure or the special leg-
islative procedure applies if EP approval is required;
b. after consulting the EP in the other cases.
The Council may also conclude formal agreements on a system of the
exchange rate of the euro in relation to the currencies of third countries [art. 219
paragraph (1) TFEU].
By concluding these agreements, the Council fulfills a representative
function within the Union. This function results from art. 217 TFEU, which pro-
vides: "The Union may conclude agreements with one or more third countries or
international organizations (…)", referring further to the association agreements
that are conclud ed by the Council by representation on behalf of the Union.
I. Has the capacity of depositary of the agreements concluded,
through its Secretary General2.
In close connection with the previous assignment, if the Secretary Gen-
eral is designated as the depo sitary of an agreement concluded between the Union
or TEuratom and one or more Member States or organizations, the acts of ratifi-
cation, acceptance or approval of the agreements shall be submitted to the Coun-
cil.
In such cases, the Secretary General perfor ms the duties of depositary
and ensures that the dates of entry into force of the agreements in question are
published in the Official Journal of the European Union.
J. It has a decisive role in the process of amending the treaties [art.
48 paragraph (1) a nd (2) TEU] in the decision to receive new members in the
Union [art. 49 paragraph (1) TEU], as well as in the withdrawal procedure
of a Member State of the Union (art. 50 TEU).
• The Council is presented to the Council by the government of any Mem-
ber Stat e, the EP or the Commission on draft amendments to the Treaties under-
1 The procedure for concluding these agreements is regulated by art. 218 TFEU.
2 See art. 25 of the C ouncil's Rules of Procedure.
Organizat ion and duties of the European Union institutions 85
lying the European Union – both in the ordinary review procedure and in the sim-
plified procedure [art. 48 paragraph (1) and (2) TEU].
• Any European state that respects the values stated in art. 2 TEU1 and
who are committed to promoting them may apply to become a member of the
Union. The requesting State shall address its request to the Council, which shall
act unanimously, after consulting the Commission and after approving the Euro-
pean Parliament, which shall act with the majority of its members (article 49
TEU).
• The Member State which decides to withdraw from the Union shall no-
tify its intention to the Council. The Union negotiates and concludes with this
State an agreement establish ing the conditions for withdrawal. This agreement is
negotiated under art. 218 paragraph (3) TFEU. The agreement is concluded by
the Council, on behalf of the Union, which decides by qualified majority, after
approval by the EP (article 50 TEU).
K. It has the power to adopt, to revoke, to modify, the safeguard
clauses.
If, in exceptional circumstances, the movement of capital from or des-
tined to third countries causes or threatens to cause serious difficulties in the func-
tioning of the economic and monetary union, the Council, on a proposal from the
Commission and after consulting the ECB, may adopt, in relation to third coun-
tries, safeguard measures for a period of six months if these measures are strictly
necessary (article 66 TFEU).
In the field of moneta ry policy, the Commission authorizes the Member
State which is the object of a derogation, in difficulty, to take safeguard measures
whose conditions and rules define them. The Council may revoke this authoriza-
tion and modify these conditions and norms [ar t. 143 paragraph (3) TFUE].
In the event of an unexpected crisis in the balance of payments (…), at
the recommendation of the Commission and after consulting the Economic and
Financial Committee, the Council may decide that the Member State concerned
is obliged to modify, suspend or eliminate the safeguard measures [art. 144 par-
agraph (3) TFEU].
L. Has competence in its internal organization and in the allowances
due to some of the presidents and members of other institutions of the Union.
• The Council a ppoints the Secretary General; under whose authority the
General Secretariat is located. The Council decides by a simple majority on the
organization of the General Secretariat [art. 240 paragraph (2) TFEU].
• The Council decides by simple majority:
– in procedural matters, as well as regarding the adoption of its rules of
1 Art. 2 TEU has the following content: "The Union is based on the values of respecting human
dignity, freedom, democracy, equality, the rule of law, as well as respecting human rights, including
the rights of persons belonging to minorities. These values are common to the member states in a
society characterized by pluralism, non -discrimination, tolerance, justice, solidarity and equality
between women and men".
86 Ioana Nely Militaru
procedure [art. 240 paragraph (3) TFEU];
– adopts, after consulting the Commission, the status of the committees
provided for in the Treaties (art. 242 TFEU).
– The Council sets the salar ies, allowances and pensions of the President
of the European Council, the President of the Commission, the High Representa-
tive of the Union for Foreign Affairs and Security Policy, the members of the
Commission, the presidents, members and clerks of the C ourt of Justice of the
European Union, and the Secretary general of the Council. The Council also es-
tablishes all allowances that take place in remuneration (art. 243 TFEU).
M. The Council shall adopt the decision authorizing a form of en-
hanced cooperation when that institution establishes that the objectives pursued
by such cooperation cannot be achieved within a reasonable time by the Union as
a whole, and under at least nine states. members participate in this cooperation
[art. 20 paragraph (2) TEU].
N. The Council has powers in the field of CFSP , in particular decisions,
without legislative character, as follows:
– CFSP is defined and implemented by the Council and the European
Council [art. 24 paragraph (1) TEU];
– elaborates the CFSP and takes the nece ssary decisions for the definition
and implementation of the CFSP, based on the general guidelines established by
the European Council (art. 26 paragraph 2 TEU);
– adopts the decision establishing the organization and functioning of the
European service fo r external action [art. 27 paragraph (3) TEU];
– adopts the necessary decisions in case an international situation requires
an operative action from the Union, including the decisions that defined the Un-
ion's position in a certain geographical or thematic matter (art. 29 TEU), being
notified of any CFSP issue1;
– it can be convened in an extraordinary meeting in cases where a fast
decision is required in the CFSP [art. 30 paragraph (2) TEU];
– appoint a special representative to whom a mandate is given conc erning
special political issues (art. 33 TEU);
– authorizes the Political and Security Committee, in order to manage a
crisis situation, and during its duration, to make the appropriate decisions in ac-
cordance with those established by the Council (art. 38 TEU)2;
– adopts the decisions to establish the norms regarding the protection of
1 It can be notified by any Member State, the High Representative of the Union for Foreign Affairs
and Security Policy or the High Representative with the support of the Commission [according to
art. 30 paragraph (1) TEU].
2 In order to ensure political control and strategic guidance in the event of a crisis, the Nice Eu ropean
Council of 2000 decided to establish permanent political -military structures under the aegis of the
Union Council, for example: Political and Security Committee (PSC), Military Committee EU
(MCEU) and EU Military Major Statute (MMSEU). The latter is composed of military experts
seconded by the Member States to the General Secretariat of the Council. To be seen S. Scăunaș,
Uniunea Europeană , Ed. All Beck, Bucharest, 2005, p. 96.
Organizat ion and duties of the European Union institutions 87
the natural persons regarding the processing of personal data by the Member
States (art. 39 TEU);
– adopts a decision establishing the special procedures for guaranteeing
rapid access to the allocations from the Union budget for emergency financing of
the initiatives under the CFSP [art. 41 paragraph (3) TEU].
Also, the decision -making powers of the Council are also exercised
within the framework of the Common Security and De fense Policy of the CSDP,
which is an integral part of the CFSP [art. 42 paragraph (4) and art. 43 paragraph
(2) TEU].
The implementation of the PSAC led to the establishment of the Agency
in the field of development of defense, research, procurement and a rmament ca-
pabilities, called the "European Defense Agency", which is under the authority
of the Council [art. 42 paragraph (3) and art. 45 paragraph (1) TEU] The institu-
tion of the Council is also the one that adopts a decision defining the statute, the
headquarters and the operating rules of the Agency.
In this area, the Council establishes, by decision, the permanent struc-
tured cooperation of the Member States, including the list of participating Mem-
ber States, and the whole Council adopts the decision co nfirming the participation
of a Member State wishing to participate in this cooperation, as well as suspend-
ing the participation of that State [art. 46 paragraph (1), (2) and (3) TEU].
O. The objective of the Union is to provide its citizens with an "area of
freedom, security and justice" , comprising mainly the chapters on "Judicial coop-
eration in civil matters" and "Judicial cooperation in criminal matters", within which
the Council, together with the EP, it adopts most of the legislative measures.
The c oordination and cooperation activity between the national authorities
of investigation and prosecution in connection with the serious forms of crime affect-
ing two or more Member States falls within the mission of Eurojust, whose structure,
functioning, fie lds of action and attributions are decided by the Council and the EP
[art. 81 paragraph (1) TFEU]. To this end, the Council, acting by regulations in ac-
cordance with a special legislative procedure, may establish a European Public Pros-
ecutor's Office start ing with Eurojust.
Also, "Police cooperation", which involves the action of police authorities
and other law enforcement services of the Member States, as well as their cooperation
in preventing and combating serious crime affecting two or more Member Stat es, is
conducted under the authority of "Europol" [art. 88 paragraph (1) TFEU] The Council
and the EP establish, by means of regulations, the structure, functioning, scope and
tasks of Europol [art. 88 paragraph (2) TFEU].
It is the Council that sets the c onditions and limits under which the compe-
tent authorities (Europol, Eurojust) can intervene in the territory of another Member
State, in cooperation and with the agreement of the authorities of the respective state
(art. 89 TFEU).
In these areas, Member S tates shall inform and consult each other within the
Council.
Chapter 5. European Commission
5.1. Regulation of the institution of the European Commission
The legal basis of the institution of the European Commission are the
provisions:
– art. 17 TUE;
– art. 234, art. 244 -250, art. 290 and art. 291, art. 244 -250, art. 290 and
art. 291 of the TFEU;
– Treaty establishing a single Council and a single Commission of the
European Communities (Merger Treaty)1.
The European Commission was established, throug h the Treaty estab-
lishing the European Coal and Steel Community (ECSC Treaty) – signed in Paris,
in 1951, entered into force the following year – under the name of High Authority,
a supranational institution with discretionary decision -making powers, in th e light
of this treaty2.
In 1967, by the Treaty of Brussels, also called the Merger Treaty of the
executives3, the two EEC Commissions, respectively Euratom and the High Au-
thority, merged to form a single institution exercising the powers in accordance
with the provisions of the three treaties (in fact, in the fundamental problems, the
treaties of Rome are identical even in the formulations)4.
The TMs5 have repealed the articles of the Brussels Merger Treaty on the
composition and organization of the Commi ssion6, instead inserting provisions
in the three Community treaties having identical content. The main news brought
by the TEU concerns the appointment and duration of the Commission's mandate
– from 4 to 5 years.
Also called the "guardian of the treaties "7, the Commission, through its
members, exercising their functions in complete independence, is the institution
that promotes the general interest of the Union (art. 17 paragraph TEU). In this
capacity and, especially, from the perspective of the exercise Within the compe-
tence of the legislative proposal, the Commission, by requesting the opinions of
experts and experts from the Member States, harmonizes the Union's interest with
the national one.
1 OJ P 152, July 13, 1967, p. 2. The Merger Treaty was signed on April 8, 1965 and entered into
force on July 1, 1967.
2 See B. Ștefănescu, op. cit ., p. 29.
3 The treaty was signed on April 8, 1965.
4 See B. Ștefănescu, op. cit ., p. 24.
5 It is about art. P. paragraph 1.
6 It is about art. 9 and art. 10 of the Treaty of merge r of executives, from Brussels, signed in 1965,
entered into force in 1967.
7 Due to art. 17 TFEU, which states: "The Commission oversees the application of Union law" P.
Mathjisen, op. cit ., p. 112; J. Echkenazi, op. cit ., p. 20; C. Lefter, op. cit ., p. 1 72.
Organizat ion and duties of the European Union institutions 89
Regarding the supranational character of the Commissioner, highlighted
on numerous occasions since its inception, it is explained that its members – com-
missioners, although jointly appointed by the governments of the Member States
among their citizens, act in complete independence, and are not subject to any
influ ence from the part of the states that proposed it.
5.2. Composition and organization of the European Commission
✓ Currently, the Commission is composed of 28 members1 – named com-
missioners elected based on their general competence and their commitment to
the European idea, among the personalities who present all the guarantees of in-
dependence [art. 17 paragraph (3) TEU].
✓ Between the date of the entry into force of the Treaty of Lisbon, De-
cember 13, 2009 and October 31, 2014, the Commission is composed o f one rep-
resentative from each Member State, including the President and the High Rep-
resentative of the Union for Foreign Affairs and Security Policy, who is one. of
its vice -presidents [art. 17 paragraph (4) TEU].
As of November 1, 2014, the Commission is composed of a number of
members, including the President and the High Representative of the Union for
Foreign Affairs and Security Policy, corresponding to two thirds of the number
of Member States, as long as the European Council does not decid e to chang e this
number , acting unanimously [art. 17 paragraph (5) TEU].
However, in 2009 the European Council decided that the Commission
institution should continue to be composed of a number of members equal to the
number of Member States2.
✓ The term of office for commissioners. The term of office of the Com-
mission is five years. The appointment takes place within six months of the elec-
tions to the European Parliament. This explains the change in the mandate of the
commissioners from 4 to 5 years, in order to en sure a match between the term of
office of the members of the European Parliament and of the members of the
Commission3.
The members of the Commission are elected on the basis of their general
competence and their commitment to the European idea among the personalities
who present all the guarantees of independence.
The Commission exercises its responsibilities in complete independence.
1 Following Croatia's accession to the European Union on July 1, 2013, a Croatian national is ap-
pointed to the Commission from the date of accession until October 31, 2014. His term of office
ceases at the same time as that of the members in office on the date of accession. See Treaty between
the EU Member States and the Republic of Croatia on the accession of the Republic of Croatia to
the European Union – art. 21.
2 See P. Novac, April 2017, Fișe tehnice privind Uniunea Europeană, Comisia Europeană ,
http://www.europarl. europa.eu/aboutparliament/roidisplayFtu.html?ftuId=FTU_1.3.8. html.
3 See, for details, R. Munteanu, op. cit ., p. 214, footnote no. 2.
90 Ioana Nely Militaru
The members of the Commission do not request or accept instructions from any
government, institution, body, office or age ncy. They refrain from any act incom-
patible with their functions or the performance of their duties [art. 17 paragraph
(3) TEU and art. 245 TFEU]. Member States respect their independence and do
not seek to influence them in the performance of their tasks (art. 245 TFEU). The
Statute of the Commissioners, customized by this maximum independence in the
fulfillment of their mandate, highlights the maintenance of the supranational
character and, at present, of the European Commission.
Election of Commissioners
Prior to the Lisbon Treaty, the procedure for appointing commissioners
was carried out according to art. 214 paragraph 2 TEC, subject to art. 201 TEC1,
if applicable, by curn follows:
1. The governments of the Member States jointly designated the person
they intended to appoint as President of the Commission;
2. The governments of the Member States, in agreement with the Presi-
dent-designate, appointed the other persons whom they intended to appoint as
members of the Commission;
3. The President and the oth er members of the Commission so appointed
were subject, as a collegial body, to a vote of approval of the European Parlia-
ment;
4. After approval by the European Parliament, the President and the other
members of the Commission were jointly appointed by the governments of the
Member States.
Of the members thus appointed, the Commission appointed one or two
vice-presidents (art. 217 TEC). Although the term of office for which they were
appointed was not stipulated, it should correspond to the five -year term f or which
they were appointed as members2. Two vice -presidents have been appointed for
the current mandate of the Commission. If the President is prevented from exer-
cising his functions, they shall be carried out by one of the Vice -Presidents or the
members elected in the order established by the Commission3. Over time, the
number of Commission members has changed. Thus, by the Treaty of Brussels,
from 1965, it was established that the big countries have two commissioners (Ger-
many, France, Italy, Spain, the United Kingdom), and the small ones, one each.
1 Art. 201 TEC stipulates: The European Parliament, notified with a motion of censure on the
acfivit y of the Commission, can only rule on it after at least three days after its submission and only
by public vote. If the motion of censure is adopted by a two -thirds majority of the votes cast, rep-
resenting the majority of the members of the European Parlia ment, the members of the Commission
must resign in bulk. They continue to manage current affairs until the time of their replacement,
according to art. 214 TEC. In this case, the term of office of the members of the Commission ap-
pointed to replace them exp ires on the date on which the mandate of the members obliged to resign
as a whole should expire.
2 See O. Manolache, op. cit ., p. 126.
3 See art. 20 of the Commission's Rules of Procedure.
Organizat ion and duties of the European Union institutions 91
Thus, when the European Union had 15 states, the Commission had 20 commis-
sioners, corresponding to those mentioned above1.
With the enlargement of the Union to central and eastern Europe, "it was
decided to c hange the number of Commissioners in order to respect the equality
of rights of all the states of the Union"2. established that, once the first enlarge-
ment of the Union has been completed, the Commission shall be composed of
one national of each Member Sta te, provided that the share of votes in the Council
is altered.
Subsequently, this Protocol was repealed by another Protocol on the en-
largement of the European Union annexed to the Treaty of Nice, respectively to
the Treaty on European Union and to the Tre aties establishing the European Com-
munities.
According to the latter act, which repeals the old Protocol, decided that3:
– on January 1, 2005, respectively from the moment the first Commission
established after this date assumes its duties, "the members of the Commission
are elected on the basis of their general competence and their independence which
is undeniable; The Commission consists of one person having the nationality of
each of the Member States; the number of members of the Commission can be
modif ied by the Council, which decides unanimously" (art. 4 paragraph 1 of the
Protocol). Thus, with the accession of the ten states, also called "the great en-
largement", when the Union had 25 member states, The Commission was com-
posed of as many commissioners as many Member States made up the European
Union4;
– "when the Union will be composed of 27 Member States, which was
achieved on January 1, 2007, by the accession of Romania and Bulgaria – the
number of Commission members will be smaller than the number of Member
States. The members of the Commission will be elected on the basis of a rotation
system based on the principle of equality, for which the Council will unanimously
adopt the implementing arrangements (starting with the mandate following the
accessio n of the two states, ie from 2009). The number of members of the Com-
mission will be determined by the Council, by unanimous vote. This amendment
shall apply from the date on which the first Commission will begin its mandate
1 The doctrine stated that the formula proved to be reasonable in a Union of 15 Member States,
although this number posed logistical problems; see T. Ștefan„ B. Andreșan -Grigoriu, op. cit ., p.
54.
2 See C. Lefter, op cit ., p. 164.
3 See I. Jinga, Uniunea Europeană in căutarea viitorului. Studii europene , Ed. C.H. Beck. Bucha-
rest, 2008, p. 93; O. Manolache, op. cit ., pp. 121 -122; C. Lefter, op cit. , pp. 164 -165; F. Cotea,
Drept comunitar european , Ed. Wolters Kluwer, Bucharest, 2009, pp. 339 -340.
4 The opinion that a Commissioner from each Member State should be appoint ed is criticized in the
doctrine, arguing that, in this way, the Commission departs from its presumed role, that of an insti-
tution that defends the Community interest beyond any national interests. See, for details, P. Moreau
Defarges, Les institutions eur opéennes , 6th edition, Armand Colin„ Paris, 2002, version translated
into Romanian, Ed. Amarcord, Timișoara, 2002, p. 16.
92 Ioana Nely Militaru
after the accession of the 27th Member State of the Union" (art. 4, paragraph 2 of
the Protocol);
– "after the signing of the Treaty of Accession of the Twenty -seventh
Member State of the Union, the Council, acting unanimously, shall adopt:
• number of Commission members;
• the rules gov erning the rotation system based on the principle of equal-
ity, which include the criteria and rules necessary for automatically establishing
the formation of successive colleges, according to the following principles:
a) Member States are in a position of legal equality with regard to estab-
lishing the succession and the period of time when their citizens are members of
the Commission; therefore, the difference between the total number of mandates
held by the citizens of any two Member States can never be gr eater than one;
b) subject to the letter a), each of the successive colleges is constituted in
such a way as to reflect satisfactorily the demographic and geographical diversity
of the whole of the Member States of the Union" (art. 4 paragraph 3 of the Pro-
tocol).
"Any State which accedes to the Union shall be entitled, at the time of its
accession, to have a citizen of its own as a member of the Commission until such
time as the provisions of par. 2, mentioned above" (art. 4 paragraph 4 of the Pro-
tocol).
By the Treaty of Lisbon, according to art. 17 paragraph (5) TEU, as from
1 November 2014, the members of the Commission shall be elected from the
nationals of the Member States in accordance with a strictly equal rotation system
between the Member States, re flecting the demographic and geographical diver-
sity of all Member States. This system is established by the European Council,
which unanimously decides (in accordance with art. 244 TFEU).
The rotation system established, according to art. 244 TEU, by which the
members of the Commission are elected, is based on the following principles:
a) Member States shall be treated in an absolutely equal manner with
regard to establishing the order of rotation and the duration of their representa-
tives' presence within t he Commission; Consequently, the difference between the
total number of mandates held by the nationals of two given Member States can
never be greater than one;
b) each of the successive Commissions, taking into account the above
provisions, is constituted so as to reflect satisfactorily the demographic and geo-
graphical diversity of the Member States.
✓ The procedure for electing the President of the Commission, according
to art. 17 paragraph (7) TEU, implies the following:
– The European Council, acting by a qualified majority, proposes to the
EP a candidate for the position of President of the Commiss ion, taking into ac-
count the elections for the EP and after having carried out the necessary consul-
tations;
– the candidate is elected by the EP with the majority of its members;
Organizat ion and duties of the European Union institutions 93
– if this candidate does not meet the majority, the European Council, act-
ing by a qualified majority, proposes, within one month, a new candidate, who is
elected by the EP in accordance with the same procedure.
✓ The procedure for electing the members of Cornice – the commission-
ers – according to art. 17 paragraph (7) TEU, involves the following steps:
1. Member States shall propose the members of the Commission on the
basis of the criteria established by the TEU , paragraph (3) (regarding their general
competence, their commitment to the European idea, the guarantees of independ-
ence, the rotation system between the Member States);
2. The Council, in agreement with the President -elect, shall adopt the list
of other personalities which it proposes, on the basis of suggestions made by the
Member States, to be appointed members of the Commission;
3. The President, the High Representative of the Union for Foreign Af-
fairs and Security Policy and the other members of the Commission are subject,
as collegiate bodies, to an EP approval vote;
4. The Commission, on the basis of this approval, is appointed by the
European Council, which shall act by a qualified majority.
During their term of office, members of the Commission ma y not engage
in any other professional activity, whether paid or unpaid (art. 245 TFEU).
The members of the Commission solemnly commit, when taking office,
that during the exercise of the mandate and after its termination, it respects the
obligations impos ed by the mandate and, in particular, the obligation of honesty
and prudence in accepting, after the term of the mandate, certain functions or
advantages.
If these obligations are violated, the Court of Justice, at the notification
of the Council, which de cides by simple majority, or the Commission may decide,
as the case may be, to dismiss the respective members, under the conditions of
art. 247 TFEU, or to declare him deprived of the right to a pension or other equiv-
alent benefits (art. 245 TFEU)1.
The President of the Commission exercises his authority over the mem-
bers of this institution, according to art. 248 TFEU, under the conditions in which
it is entitled:
1. to structure and distribute among its members the responsibilities of
the Commission;
2. to modify the distribution of the responsibilities of the members during
the mandate.
The members of the Commission shall also exercise the functions as-
signed by the President under his authority (article 248 TFEU).
1 See Council Decision of 9 July 1999 with reference to the Bangeman case brought before the
Court of Justice, on the fact that the me mber of the Commission accepted appointments after the
termination of the mandate of Telefonica Company. O.J. L 192/95 of July 24, 1999. See, for details,
O. Manolache, op. cit ., p. 120.
94 Ioana Nely Militaru
✓ The function of the members of the Commission ceases:
1. by ordinary replacement, at the end of the five -year term of office of
the entire Commission;
2. individually, by voluntary resignation (under the conditions of article
246 TFEU), by dismissal or b y death.
The person concerned, who has resigned or died, is replaced for the re-
mainder of his term by a new member, having the same citizenship, appointed by
the Council, in agreement with the President of the Commission, after consulting
the EP and in ac cordance with the criteria set out in the TEU [mentioned previous
art. 17 paragraph (3)], regarding the members of the Commission. The Council,
acting unanimously, on a proposal from the President of the Commission, may
decide that it is not necessary for the replacement to take place, in particular if
the time remaining until the term of office of the Member of the Commission is
short (article 246, paragraph 2, TFEU).
In cases of resignation, dismissal or death, the president is replaced for
the remaining time in office. For its replacement, the same procedure as for the
appointment is applicable [respectively art. 17 paragraph (7) TEU].
In cases of resignation, dismissal or death, the High Representative of the
Union for Foreign Affairs and Security Policy shall be replaced, until the end of
the term (article 246 TFEU). The European Council is competent, acting by a
qualified majority and with the agreement of the President of the Commission, to
put an end to it, to replace it and, therefore, to appoint the High Representative of
the Union [art. 18 paragraph (1) TEU].
In the case of the resignation of all the members of the Commission, they
remain in office and continue, for the remaining period, until the end of the man-
date, until their replacement, to mana ge the current affairs (in accordance with
article 17 TEU).
3. by dismissal by the Court of Justice, at the request of the Council or
the Commission. If it no longer fulfills the conditions necessary for the exercise
of its functions or has committed a ser ious misconduct, any member of the Com-
mission may be dismissed by the Court of Justice, at the request of the Council,
acting by a simple majority or by the Commission (article 247 TFEU);
4. by the motion of censure adopted by the EP against the Commission ,
because the Commission, as a collegiate body, responds to the EP [art. 17 para-
graph (8) TEU]. The EP can rule on this motion only after at least three days after
its submission and only by open vote. If the motion of censure is adopted by a
two-thirds ma jority of the votes cast and by the majority of the members of the
EP, the members of the Commission must resign collectively from their duties,
and the High Representative of the Union for Foreign Affairs and Security Policy
must resign from the functions of the Commission. They remain in office and
continue to manage current affairs until their replacement (in accordance with
article 17 TEU). In this case, the term of office of the members of the Commission
Organizat ion and duties of the European Union institutions 95
appointed to replace them expires on the date on which the mandate of the mem-
bers of the Commission obliged to resign collectively from their duties should
expire (article 234 TFEU).
✓ Commission functioning. In order to ensure its functioning and its
services, the Commission establishes its rules of procedure and ensures its publi-
cation1 [art. 249 para. (1) TFEU].
The Commission functions as a collegiate body, in accordance with the
provisions of the Rules of Procedure, fulfilling its mission in compliance with the
political guidelines established by its president [art. 17 paragraph (8) TFEU in
conjunction with art. 1 of its Regulation].
In the functioning of the Commission, the Presid ent plays a decisive role,
namely2:
– ensures the representation of the Commission;
– establishes the political orientations;
– designates those members of the Commission who assist him in this
task;
– has the right to assign to the members of the Commissi on special areas
of activity, areas in which they are expressly responsible for preparing the Com-
mission's work and executing its decisions. The President may also modify these
powers at any time;
– it may set up working groups of the members of the Commi ssion and
appoint their chairmen.
The Commission, as a collegiate body, sets its priorities and adopts its
work program annually. Also, in this capacity, all acts that treaties or implement-
ing regulations expressly entrust to them – regulations, decisions, proposals – must
be taken by the Commission, assuming its responsibility as an institution3.
According to art. 4 of the Rules of Procedure, the Commission decisions
are adopted:
– in the hearing, by oral procedure4;
– by written procedure5;
– through th e enabling procedure6;
– by delegation procedure7.
1 The Commission operates in accordance with its Rules of Procedure o f 29 November 2000 (O.J.
308/26 of 8 December 2000 and Bull. EU no. 11/2000, p. 128). Subsequently, the Regulation was
amended by Commission decisions in 2001, 2002, 2003, 2006, 2007. The current Rules of Proce-
dure were adopted by the Commission Decision o f 24 February 2010 amending the Rules of Pro-
cedure (2010/138/EU, Euratom) , published in JOEU L 308, March 5, 2010.
2 Under the conditions of art. 3 of the Commission's Rules of Procedure.
3 See R. Munteanu, op. cit ., p. 217.
4 See art. 5 -11 of the Commis sion's Rules of Procedure.
5 See art. 12 of the Commission's Rules of Procedure.
6 See art. 13 of the Commission's Rules of Procedure.
7 See art. 14 of the Commission's Rules of Procedure.
96 Ioana Nely Militaru
The meetings are convened by the president. The rule is for the Commis-
sion institution to meet once a week. In addition, it meets whenever necessary.
Commission members are required to attend meetings. Th e agenda of any meet-
ing shall be established by the President.
The decisions of the Commission shall be made on the proposal of one
or more of its members. The decisions of the Commission are validly adopted
with the majority of its members, the quorum bei ng established by the Rules of
Procedure (art. 250 TFEU).
The Commission shall vote at the request of one of its members, whether
it concerns either the initial proposal or a proposal modified by a member1.
The meetings of the Commission are not public and the debates are con-
fidential. The Secretary -General shall attend meetings unless there is a contrary
Commission decision to that effect. The absence of a member of the Board may
be filled by his chief of staff, who shall state his opinion. The Commission may
decide to hear any other person.
At each meeting of the Commission, a report is drawn up which, at the
draft stage, is submitted to the Commission for approval at a later meeting. The
approved minutes are authenticated by the signatures of the presiden t and the
secretary general.
Written procedure. The agreement of the members of the Commission
on a project submitted by one or more members may be expressed by written
procedure, provided that it has previously obtained the favorable opinion of the
Legal Service, as well as the agreement of the services consulted in accordance
with the Commission's rules of procedure2.
The text of the proposal is communicated in writing to all the members
of the Commission, under the conditions established by it, in accor dance with the
implementing rules (mentioning the deadline for communicating reservations or
amendments to the proposal).
During the written procedure, any member may request that the proposal
be subject to debate. In this regard, the member of the Commiss ion makes a rea-
soned request to the president.
If no member of the Commission has made or maintained a request to
suspend a project within the time limit granted for the written procedure, that
project shall be deemed to have been adopted by the Commission . The proposals
adopted by the Commission are recorded in a jumble note, which is mentioned in
the minutes of the next Commission meeting.
Enabling procedure. Provided that the principle of collective responsi-
bility is respected, the Commission may enable one or more of its members to
take management or administration measures on its behalf, within the limits and
conditions set by the Commission.
The Commission may also, with the agreement of the President, instruct
1 See art. 8 of the Commission's Rules of Procedure.
2 See art. 23 of the Commission's Rules of Procedure.
Organizat ion and duties of the European Union institutions 97
one or more members to adopt the final te xt of an act or proposal to be forwarded
to the other institutions, the content of which has already been established within
the framework. deliberations. The powers thus conferred may be the subject of a
sub-delegation to the Directors -General and Heads o f Services, provided that the
decision of empowerment does not expressly prohibit this.
Delegation procedure. Provided that the principle of collegial responsi-
bility is fully respected, the Commission may delegate the adoption of manage-
ment or administrati on measures on its behalf to the Directors -General and Heads
of Service, within the limits and conditions established by it.
The decisions taken through the empowerment and delegation procedure
are recorded in a journal note mentioned in the minutes of the next meeting.
✓ The Rules of Procedure include regulations regarding the preparation
and execution of Commission decisions. To this end, members of the Commis-
sion may form groups of members that contribute to the coordination and prepa-
ration of the Commission's activiti es1 and offices charged with assisting the Cor-
nish members in fulfilling their duties and in preparing the Commission's deci-
sions2.
✓ The general coordination of the internal structures of the Commission
is provided by the General Secretariat, which deals with the preparation and hold-
ing of the weekly meetings of the Commission. The General Secretariat is headed
by the Secretary General, who responds directly to the President. The Secretary
General has the following powers3:
– assists the President so that, within the political guidelines defined by
the President, the Commission fulfills the priorities it has set;
– assists the President in the preparation of the activities and the manage-
ment of the meetings of the Commission;
– assists the presidents of the established groups of members. The Secre-
tary General provides the secretariat of these groups;
– ensures the implementation of decision -making procedures. In this re-
gard, the Secretary -General:
• take the necessary measures to ensure the notification and publication
in the Official Journal of the EU of Commission acts, as well as the transmission
of Commission documents and its services to other EU institutions and national
parliaments;
• is responsible for disseminating written information that the member s
of the Commission wish to transmit to the Commission.
– ensures official relations with the other EU institutions, subject to the
1 In accordance with the political guidelines and mandate defined by the president; see art. 18 of
the Commission's Rules of Procedure.
2 Each member of the Commission has its own cabinet; art. 19 of the Commission's Rules of Pro-
cedure.
3 See art. 20 of the Commission's Rules of Procedure.
98 Ioana Nely Militaru
powers that the Commission decides to exercise itself or to assign to its members
or services. In this context, the Secreta ry-General contributes to ensuring general
coherence by coordinating services during the procedures in which the other in-
stitutions are involved;
– ensures the proper information of the Commission on the state of the
internal and interinstitutional procedu res.
✓ For the purpose of the Regulation, by acts are understood the acts that
dress one of the forms provided in art. 288 TFEU and at art. 161 TEuratom, and
annuals: regulations, directives, decisions, opinions, recommendations.
For documents with general applicability, the authentic languages are all
the official languages of the Union, and for the other acts, which do not have
general applicability, the language or languages of the recipients is authentic.
✓ Commission services1. In order to prepar e and implement its actions
and to achieve the political priorities and orientations defined by the President,
the Commission establishes a series of general directions and assimilated services
that form a single administrative service.
The general direct ions and assimilated services are divided into direc-
tions, and the directions, into units. The president, in particular, can create spe-
cific functions and structures, entrusted with precise missions, to which he sets
the tasks and the way of functioning.
In order to ensure the effectiveness of the Commission's action, the ser-
vices work in close cooperation and in a coordinated manner from the beginning
of the elaboration or implementation of the Commission's decisions.
Thus, the service responsible for the preparation of an initiative ensures,
from the beginning of the preparatory activity, the effective coordination between
all the services that have a legitimate interest for the respective initiative, under
the fields of competence and attributions or by t he nature of the subject.
Before a document is submitted to the Commission, the responsible ser-
vice consults in a timely manner the services that have a legitimate interest in the
project in accordance with the implementing rules.
The general services and directions of the Commission which must be
consulted are:
The legal service, in case1 of all the draft acts and proposals of legal
acts, as well as of all the documents that could have a legal impact. Consultation
of the legal service is mandatory before the initiation of the procedures: written,
empowered and delegated.
The General Secretariat, in case of any initiative that:
– is subject to approval by oral procedure;
– it is of political importance;
– it is part of the annual work program of the Commission or of the pro-
gramming instrument in force;
1 See art. 21 -23 of the Commission's Rules of Procedure.
Organizat ion and duties of the European Union institutions 99
– deals with institutional issues;
– is subject to impact assessment or public consultation; –
– in the case of any common position or initiative that could engage the
Commission in front of other institutions or entities.
The general directorate responsible fo r the budget, the general direc-
torate responsible for human resources and security, in case of all the documents
that have a possible impact on the budget, finances, personnel and administration,
respectively.
The service responsible for combating fraud, when appropriate. The
responsible service is working to develop a proposal that meets the agreement of
the consulted services. If no agreement is reached, the responsible service must
attach to its proposal the different opinions of the consulted services1.
5.3. Functions of the European Commission
5.3.1. Regulation of the functions of the European Commission
The functions of the European Commission are provided in art. 17 para-
graph (1) TEU, which provides:
1. takes appropriate initiatives to promote the general interest of the Un-
ion;
2. proposes for adoption the legislative acts of the Union, unless the trea-
ties provide otherwise. Proposes for adoption the other acts, if the treaties provide
for this;
3. has its own decision -making power.
1 The directions and assimilated services are organized by activity areas, as follows: Economic and
financial agencies; Exec utive agencies; Agriculture and rural development; Joint Research Center,
Competition; Education and culture, Energy and Transport; Taxation and customs union; Business
and industry; Justice, freedom and security; Environment; Employment, social affairs an d equal
opportunities; Maritime affairs and fisheries; The internal market and services; Regional Policy,
Health and Consumers; Information society and media; Humanitarian Aid, Trade, Development,
EuropeAid Cooperation Office; Enlargement, External Relatio ns, Communication; Eurostat; Euro-
pean Anti -Fraud Office (OLAF conducts investigations into the fight against fraud, corruption and
other illegal activities within the EU and cooperates with the competent authorities of the Member
States to facilitate the c oordination of their actions); Publications Office; Office of European Policy
Advisers; Budget, Informatics, Infrastructure and Logistics – Brussels, Infrastructure and Logistics
– Luxembourg; Interpretation, Office of Administration and Payment of Individ ual Rights; Person-
nel and administration; Responsible for data protection within the European Commission; Internal
audit service; Legal Service, Translations. The general directorates and the services assimilated to
them may change their name when a new Co mmission is appointed, but the structure and respon-
sibilities are maintained. To be seen F. Cotea, op. cit ., pp. 347 -348.
100 Ioana Nely Militaru
5.3.2. D efining the functions of the European Commission
1. The Commission shall promote the general interest of the Union and
take appropriate initiatives to this end, according to art. 17 paragraph (1) TEU.
As we have shown, each institution of the Union repres ents an interest within it,
therefore the Commission represents the interest of the Union, initially of the
Communities, thereby explaining the pronounced supranational character of this
institution, from its inception.
The representation of the general in terest of the Union is expressed by
the fact that it:
1.a. it ensures the application of the treaties and of the measures adopted
by the institutions under them (execution function);
1.b. supervises the application of Union law under the control of the
Court of Justice of the European Union (as guardian of the treaties);
1.c. executes the budget and manages the programs;
1.d. exerts coordination, execution and administration functions, in ac-
cordance with the conditions stipulated by the treaties;
1.e. ensur es the external representation of the Union, except the CFSP;
1.f. adopts the annual and multiannual programming initiatives of the Un-
ion, with a view to concluding interinstitutional agreements;
1.a. it ensures the application of the treaties and of the m easures
adopted by the institutions under them. As a matter of principle, Member
States shall take the necessary national law to implement legally binding Union
acts1, but where unitary conditions for their implementation are required, those
acts shall con fer implementing powers on the Commission. (art. 290 paragraphs
1 and 2 TFEU).
As regards the exercise of the implementing powers of the Commission,
it is controlled by the Member States by regulations of the EP and the Council, in
accordance with the ordi nary legislative procedure, which establish in advance
the general rules and principles of the control mechanisms (art. 291 paragraph 3
TFEU, as a general regulation)2. Examples in this regard:
– art. 105 TFEU – The Commission ensures the application of th e princi-
ples set out in art. 101 and art. 102 TFEU, on the principles governing competi-
tion policy;
1 See art. 97 TFEU, which provides for the following: "The Commission may issue recommenda-
tions to the Member States for the purpose o f applying this Article", referring to the fees and charges
levied by the carrier at the border crossing.
2 See European Commission, Brussels, 9 March 2010, COM (2010) 83 final, 2010/0051 (COD)
C7-0073/10, Proposal for a Regulation of the European Parliame nt and of the Council laying down
general rules and principles on mechanisms for control by the Member States of the Commission's
exercise of implementing powers.
Organizat ion and duties of the European Union institutions 101
– art. 106 TFEU – The Commission ensures the application of the provi-
sions of article 106 TFEU and addresses to the Member States, where necessary,
the appr opriate directives and decisions (provisions regarding undertakings re-
sponsible for managing services of general economic interest);
– art. 43 par. 1 TFEU – The Commission presents proposals on the elab-
oration and implementation of the common agricultural policy, including the re-
placement of national organizations with one of the forms of organization pro-
vided for by the Treaty (article 40 TFEU), as well as the implementation of Title
III on "Agriculture and fisheries".
1.b. Supervises the application of Un ion law under the control of the
Court of Justice of the European Union. This attribution defines the Commis-
sion's quality of being "guardian of the treaties".
Guaranteeing the Union's interest, the Commission monitors the treaties
and acts of the institut ions by individuals (natural or legal persons), Member
States and even institutions.
The duties of "guardian of the treaties" are translated by1:
– powers of information and prevention;
– powers of control and prosecution of non -compliance with Union law
and, ultimately, to impose it;
– the power to manage safeguard clauses.
The right of the Commission to inform itself corresponds to the obliga-
tion of the Member States to take any general or special measures to ensure the
fulfillment of the obligations ari sing from the treaties or resulting from the acts
of the institutions of the Union. In this regard, Member States:
– facilitates the Union's accomplishment of its mission;
– abstain from any measure that could endanger the achievement of the
Union's object ives (provided for in article 4 paragraph 3 TEU);
– fulfill the obligations stipulated in special provisions, for example: art.
108 paragraph (1) TFEU2, art. 114 paragraph (4) TFEU3, art. 121 paragraph (3)
TFEU4.
The Commission's right to be informed also stems from the acts of the
1 See G. Isaac, M. Blanquet, op. cit. , p. 61.
2 In the field of state aid, for example, "The Commission, together with the Member States, con-
stantly checks the aid schemes in these states. The Commission shall propose to them the useful
measures required for the gradual development or operation of the common market".
3 In the matter of approximati on of laws, for example, "if, after the adoption by the Council or
Cornice of a harmonization measure, a Member State considers it necessary to maintain national
provisions justified by important considerations, provided in art. 36 TFEU or, for the protect ion of
the working environment or the environment, shall notify the Commission, indicating the reasons
for maintaining these provisions".
4 In the field of economic policy, for example, "in order to carry out multilateral surveillance (by
the Council) Memb er States shall transmit to the Commission information on the important
measures they have taken in the field of their economic policy, as well as any other information
they consider necessary" .
102 Ioana Nely Militaru
institutions – in particular those directives containing a clause requiring the Mem-
ber State to notify the Commission of the measures to be taken to comply with
that directive. This competence of information and verification conc erns both nat-
ural and legal persons, for example art. 337 TFEU, according to which "in order
to carry out the tasks entrusted to it, the Commission may request and receive all
the information and may carry out all necessary checks, within the limits and
conditions laid down by the Council, acting by a simple majority, in accordance
with the provisions of the Treaties"1.
On the basis of its preventive power, the Commission is empowered to
draw the attention, in particular, to the Member States of the risks o f criminal
offenses, in view of which they have a general competence expressed through
recommendations (article 60 TFEU2; article 97 TFEU3) and opinions [article
2584, article 126 (2), (3) and (4)5, article 228 (4)6, article 144 (3) TFEU] addressed
to them .
If necessary, the Commission has the power to control, to follow the non –
compliance with the Union law (primary and secondary law) and to impose the
legislation in question, in order to be respected by individuals, Member States
and (Union) institutions.
Violations of Union law committed by individuals (natural persons, legal
persons) are pursued and sanctioned, in principle, by national authorities, but the
Commission itself may apply sanctions in particular in the areas of competition
and transport – areas where the Commission may impose fines and penalties7 or
in matters of security control, based on TEuratom8.
1 In this regard, the European Anti -Fraud Office plays an im portant role.
2 In the field of services, with reference to the liberalization of services.
3 In the field of transport, for the establishment of taxes and fees charged by the carrier at the border
crossing.
4 If the Commission considers that a Member St ate has breached any of its obligations under the
Treaties, it shall issue a reasoned opinion on this matter, after giving the State concerned the oppor-
tunity to submit its comments.
5 In order to avoid obvious errors (registered in the field of economic a nd monetary policy), the
Commission monitors the evolution of the budgetary situation and the level of public debt in the
Member States. The Commission examines in particular whether the budgetary discipline has been
respected. If the Commission considers that there is an excessive deficit in a Member State (…), it
shall address an opinion to the Member State concerned and inform the Council accordingly.
6 Following the Commission's opinion, the European Parliament establishes the general status and
condi tions for the exercise of the Ombudsman's functions.
7 We exemplify, in this regard, art. 105 paragraph 1 TFEU (in the field of competition), according
to which the Commission ensures the application of the competition principles established by art.
101 an d art. 102 TFEU. The Commission investigates the alleged cases of violation of the men-
tioned principles. And in the event of such an infringement being found, the Commission proposes
appropriate measures to stop it. Also, art. 95 paragraph 4 TFEU (in the f ield of transport) states:
"The Commission … examines cases of discrimination in the field and takes the necessary decisions
after consulting the Member States". Also in the field of transport, for example, see article 96 and
article 99 TFEU.
8 See G. Is aac, M. Blanquet, op. cit ., p. 62.
Organizat ion and duties of the European Union institutions 103
With respect to the Member States, the Commission has control powers,
over the special procedures imposed by art. 961, art. 106 paragraph 32 and art.
1083 TFEU, based on art. 258 TFEU and art. 141 TEuratom (under the same con-
ditions as article 258 TFEU), having the possibility to refer the Court of Justice,
following a pre -litigation procedure, by which it is able to ascertain the breaches
by the Member States of the obligations stipulated in the treaties4.
The Commission may initiate legal proceedings vis -à-vis the institutions
when it considers that their acts violate Union law both contentiously (article 265
TFEU5; article 263 TFEU6) and adviso ry by the Court of Justice (article 218 par.
11 TFEU7).
Commission's right to manage safeguard clauses. This right lies in the
Commission's ability to authorize, in particular cases, derogatory measures from
the provisions of the Treaties.
We exemplify in this regard:
– especially during transitional periods, if the level of customs duties ap-
plicable to goods imported from a third country can cause, upon entry into a coun-
try or territory, (…) the diversion of trade to the detriment of one between Member
States, it may request the Commission to propose to the other Member States the
non-appropriate measures to remedy this situation (art. 201 TFEU);
– in the field of capital and payments, only at the proposal of the Com-
mission and after consulting the ECB, t he Council may adopt, in relation to third
countries, safeguard measures for a period of up to six months, if these measures
are strictly necessary (art. 66 TFEU);
1 In the field of transport, "The Commission, after examining the tariffs and conditions referred to
in the provisions of art. 96 paragraph 1, at his own initiative or at the request of a Member State,
(…) shall take t he necessary decisions, after consulting any Member State".
2 In the field of competition, "the Commission shall ensure the application of the competition pro-
visions and shall address to the Member States, where necessary, the relevant directives or deci-
sions".
3 In the field of state aid, according to art. 108 paragraph 1 TFEU, "The Commission, together with
the Member States, constantly checks the aid schemes in these states. The Commission proposes to
them the useful measures required by the development of the common market (…), the non -ob-
servance of these decisions leads the Commission or any other interested Member State to refer the
Court of Justice, by derogation from art. 258 and art. 259 TFEU, which regulates the action in
ascertaining the failure of states to fulfill the obligations arising from the treaties".
4 See the action in ascertaining the failure of states to fulfill the obligations arising from the treaties,
according to art. 258 TFEU and art. 141 TEuratom.
5 If, in breach of the provisio ns of the Treaties, the European Parliament, the European Council, the
Commission or the ECB abstain from deciding, the Member States and the other institutions, and
therefore the Commission, may refer the matter to the Court of Justice for such infringeme nt.
6 The Court of Justice is competent to rule on actions brought by a Member State, the European
Parliament, the Council or the Commission, for reasons of incompetence, breach of fundamental
procedural wrongdoing, breach of treaties or any rule regarding their application or power base.
7 If the Court gives its opinion on the compatibility of an external agreement with the provisions of
the Treaties at the request of the Commission (a Member State or the Council).
104 Ioana Nely Militaru
– in the field of harmonization of laws, the Commission analyzes, if nec-
essary, a special pu blic health problem that has been the subject of harmonization
measures, proposing appropriate measures to the Council. These measures may
also include a safeguard clause (art. 114, paragraphs 8, 9 and 10 TFEU);
– in the context of economic and monetary po licy1, if the Council has not
provided the mutual assistance recommended by the Commission or if the mutual
assistance granted and the measures taken are insufficient, the Commission au-
thorizes the Member State which is the object of a derogation, which is in diffi-
culty, to take the measures safeguards whose conditions and norms define them
(art. 143 paragraph 3 TFEU). Also, in the event of an unexpected crisis in the
balance of payments, a Member State which is subject to a derogation may pro-
visionally ado pt the necessary safeguard measures. At the recommendation of the
Commission and after consulting the Economic and Financial Committee, the
Council may decide that the Member State concerned is obliged to amend, sus-
pend or eliminate the safeguard measures referred to (article 144, paragraphs 1
and 3 TFEU).
1.c. Run the budget and manage the programs. The Commission im-
plements the budget of the European Union. The draft budget is based on the
drawing up, before July 1 of each year, by each institution, with the exception of
the ECB, of an estimated statement of its expenditures for the following budget-
ary year. The Commission groups these situations into a draft budget which may
contain divergent forecasts. This project includes estimated revenue and expendi-
ture.
According to art. 314 paragraph 2 TFEU, the Commission proposes by 1
September each year the draft budget, which it submits to the European Parlia-
ment and the Council.
The Commission may modify the draft budget during the procedure, until
convening a conciliation committee, which has the mission to reach, on the basis
of the positions of the European Parliament and of the Council, an agreement on
a common project (article 314, paragraphs 3 and 5 TFEU).
The Commission participates in the work of the Con ciliation Committee
and adopts all the necessary initiatives to promote the approximation of the posi-
tions of the European Parliament and the Council.
The budget will be adopted by the Council together with the European
Parliament, according to a procedure established by art. 314 paragraph 4 -9 TFEU,
in which, in case the joint project is rejected, the Commission has the right to
present a new draft budget. At the end of the mentioned procedure, the President
of the European Parliament notes that the budget has been adopted definitively
(article 314 paragraph 9 TFEU). After adoption, the Commission, together with
the Member States, shall execute the budget2, in accordance with the regulations
1 Title VIII, Chapter 4 TFEU.
2 The budge t is executed according to the provisions of the regulations adopted in application of
art. 317 TFEU.
Organizat ion and duties of the European Union institutions 105
adopted1, within the limits of the allocated credits and within the limits of the
allocated funds, in accordance with the principle of sound financial management
[art. 317 paragraph (1) TCE]. In order to use the loans, in accordance with the
principle of sound financial management, Member States shall cooperate with the
Commission.
Within the budget, the Commission may proceed to transfer credits either
from one chapter to another or from one subdivision to another, based on the
regularity elaborated according to art. 322 TFEU.
The Commission shall present annually to the European Parliament and
to the Council the accounts of the year ended. It also communicates a financial
balance sheet describing the assets and liabilities of the Union [art. 318 paragraph
(1) TFEU].
The Commission shall also submit to the European Parlia ment and the
Council a report on the evaluation of the Union's finances.
The Commission manages the programs2. Although the structural
funds are related to the budget of the European Union, the way they are spent is
based on a division of responsibilities between the Commission and the govern-
ments of the Member States, as follows:
– the Commission negotiates and approves the development programs
proposed by the Member States and allocates the credits;
– their states and regions manage the programs, ensure t heir implementa-
tion and select the projects they control and evaluate;
– the Commission participates in the monitoring of the programs, hires
and pays the certified payments and verifies the control systems established.
For each operational program, the Me mber State designates:
– a management authority (public authority or body of public or private
national, regional or local law that manages the operational program);
– a certification authority (national, regional or local public authority or
body certifyi ng the status of expenses and payment requests before being sent to
the Commission);
– an audit authority (national, regional or local public authority or body
designated for each operational program and responsible for verifying the proper
functioning of the management and control system)3.
1 The regulations are adopted according to art. 322 TFEU.
2 See europa.eu/regional_policy/policy/manag. Among these programs, we exemplify: Regional
Opera tional Program (ROP), Europe for Citizens Program, National Rural Development Program
(PNDR), Sectoral Operational Program Increasing Economic Competitiveness (POSCCE), Sec-
toral Operational Program Human Resources Development (POSDRU/POCU), Program Opera-
tional for Human Capital.
3 Idem . A new rule is intended to simplify the financial management of funds, namely a program =
a fund. Due to this principle, the European Regional Development Fund (ERDF) and the European
Social Fund (ESF) can each finance, in a complementary and limited way, actions pertaining to the
area of intervention of the other fund (within 10% of the allocated credits). of each priority axis, of
an operational program). There is one exception to this rule: The European Regional Developme nt
106 Ioana Nely Militaru
In the case of financial rescue packages, which address the debt crisis in
some Member States, the Commission is responsible for managing the funds col-
lected and guaranteed by the EU budget.
It also has the power to ch ange the voting procedure of the Board of Gov-
ernors of the European Stability Mechanism (MES), from unanimity to the spe-
cial qualified majority (85%), if it decides, together with the ECB, that the deci-
sion to grant financial assistance is not adopted. thr eatens the economic and fi-
nancial sustainability of the euro area art. 4 paragraph (4) of the Treaty on the
European Stability Mechanism1.
1.d. It exercises coordination, execution and administration func-
tions, according to the conditions stipulated by the treaties. In order to ensure
closer coordination between economic policies, the Commission reports to the
Council, which monitors the economic evolution in each of the Member States
and in the Union, as well as the conformity of economic policies with th e general
guidelines (art. 121, paragraph 3 TFEU).
The Commission also encourages cooperation between Member States
and facilitates coordination of their action in all areas of social policy. To this
end, the Commission acts in close connection with the Me mber States through
studies, opinions and the organization of consultations (art. 156 TFEU).
In most areas covered by the Treaty, the Commission may take any initi-
ative to promote the coordination of Union actions with those of the Member
States. These are as are: public health (art. 168 paragraph 2 TFEU), industry (art.
173 paragraph 2 TFEU), research, technological development and space (art. 181
paragraph 2 TFEU), development cooperation (art. 210 paragraph 2 TFEU), hu-
manitarian aid (art. 214 paragraph 6 TFEU).
Regarding the execution function, the TFEU contains a general provision
in this regard, in art. 291 paragraph 2 TFEU, according to which "if the unitary
conditions for the implementation of the legally binding acts of the Union
Fund (ERDF) and the Cohesion Fund work together for infrastructure and environmental programs.
Budget commitments regarding the operational programs have been established, these are carried
out in annual installments, for each fund and for each objectiv e. The Commission commits the first
annual installment before adopting the operational program. The Commission then commits the
installments no later than 30 April each year. Part of a budget commitment is automatically un-
locked by the Commission if it has not been used or no payment request has been received at the
end of the second year after the budget commitment (n + 2). Based on the respective operational
programs, the deadline is set at the end of the third year (n + 3) for 2007 -2010 for the following
countries: Bulgaria, Estonia, Greece, Latvia, Lithuania, Malta, Poland, Portugal, Czech Republic,
Romania, Slovenia, Slovakia and Hungary. Regarding the financing conditions, the Lisbon Strategy
emphasized the following aspect: the objectives of the funds must focus on the priorities of the
European Union in terms of promoting competitiveness and job creation (Lisbon Strategy). The
Commission and the Member States ensure that 60% of the expenditure of all Member States allo-
cated to the "Convergence" object ive and 75% of the expenditure allocated to the "Competitiveness
and employment" objective are allocated / allocated to these priorities.
1 See P. Novac, April 2017, Fișe tehnice privind Uniunea Europeană, Comisia Europeană ,
http://www.europarl. europa.eu/aboutparliament/ro/displayFtu.html?ftuld=FTU_1.3.8.html.
Organizat ion and duties of the European Union institutions 107
[adopted by Parliamen t and the Council] are required, these acts confer the Com-
mission with implementing powers".
Also, the Treaty of Lisbon has introduced new rules and general princi-
ples regarding "control mechanisms by the Member States of the Commission's
exercise of imple menting powers" [article 291 (3) TFEU and Regulation (EU)
no. 182/2011]. They replace the previous mechanisms for committees with two
new instruments, the consultation procedure and the examination procedure. The
control right of the Parliament and the Cou ncil is officially included and an appeal
is provided for in case of conflict. Article 291, paragraph 2 TFEU shall be sup-
plemented by special provisions expressly providing for the concrete cases in
which the Commission institution has implementing powers, for example: article
105 TFEU1, article 154 TFEU2, etc.
In the process of executing EU legal acts, since the 1960s, comitology3
and the practice of using committees4 have been imposed. To oversee how the
Commission exercises its executive power, the Counc il has set up three types of
committees composed of national experts: advisory committee, management
committee and regulatory committee. They may, in certain cases, by their unfa-
vorable vote, withdraw the Commission's right of decision to return it to the
Council. This procedure was considered by the CJCE to be in line with the Insti-
tutional Treaties, as long as the institutional balance is not changed. Thus ap-
peared the term "comitology", which designates, in Community language, the
practice of using commi ttees in the execution process5. The procedural rules re-
garding the Commission's exercise of the powers conferred by the Council were
1 The Commission ensures the application of the principles enshrined in the Treaty in the field of
free compe tition.
2 The Commission promotes consultation of the social partners at Union level and takes any useful
measures to facilitate their dialogue, ensuring a balanced support of the parties.
3 The conditions for the execution by the Commission of the Council 's decisions were first intro-
duced by the SEA [art. 145 paragraph (4)], according to which the Council adopted Decision no.
87/373 of July 13, 1987. The second decision, 1999/468, regarding "comitology", was adopted in
1999 (O.J. L 184, 1999, p. 23).
4 The term "comitology" illustrates how the Commission exercises its implementing powers con-
ferred on it by the EU legislator, made up of representatives of EU Member States. The draft im-
plementing measures are submitted for debate to the comitology committees by the Commission
departments. "Comitology committees" assist the Commission in the exercise of implementing
powers, expressing their opinion on the implementing measures before they are adopted. Comitol-
ogy committees are created on the basis of regulation s, directives or decisions adopted by the EU
legislator (the "basic legal acts") to support the Commission in the exercise of its implementing
powers. The "basic legal act" establishes the rules of procedure and defines the content and scope
to apply the e nforcement powers for each individual case.
5 The Advisory Committee may make recommendations to the Commission only, without having
to take them into account. The Management Committee may suspend the implementing measures
taken by the Commission and submi t the file to the Council for decision. If the Council does not
act within a certain period, the Commission's decision shall apply. Regarding the regulatory com-
mittee, it was often criticized because it intervenes in the legislative vacuum, if the Council does
not meet either the qualified majority to accept the Commission proposal, but not the unanimity to
108 Ioana Nely Militaru
established by Council decisions, which set out the modalities of exercise. of the
implementing powers conferred on the Co mmission. Comitology has given rise
over the years to political disputes between the Council and Parliament, which
have expressed concern about the imbalance of the interinstitutional balance by
excluding Parliament from the procedures for implementing the rules adopted by
the Commission. Council.
The practice of "comitology" has been replaced, by the Treaty of Lisbon,
with the system of "delegated acts", according to which the Commission is dele-
gated the power to adopt non -legislative acts and of general s cope, which supple-
ment or modify certain non -essential elements of the act. legislative (art. 290 par-
agraph 1 TFEU).
With the help of the new procedure, a clear distinction is made between
legislative and non -legislative acts. "The consequences of these ch anges are ex-
tremely important for the EP, as it has reached its historical maturity, being on an
equal footing with the Council"1.
The Treaty of Lisbon opens a "new era" for delegated acts and imple-
menting acts. Accordingly, the powers delegated to the Co mmission will have to
be subject to special conditions and limits and control and surveillance mecha-
nisms2. The objectives, content and duration of each case delegation must be de-
fined "in an express and meticulous manner" in each act (regulation, directiv e and
decision).
In this regard, we exemplify the Commission's competence to present
proposals regarding the elaboration and implementation of the common agricul-
tural policy, including the replacement of national organizations with one of the
common organ izing funds provided by art. 40 TFEU3, as well as when imple-
menting the special measures provided for in the Treaty (article 43 paragraph 1
TFEU).
The Commission also has an enforcement function, according to art. 105
paragraph 1 TFEU, by ensuring that the principles governing competition policy
are applied, principles established by art. 101 and art. 102 TFEU.
Regarding the management function of the Commission, it is exercised
in relation to the European Social Fund established in order to improve the pos-
sibilities of employment of workers in the internal market and to contribute to
raising their standard of living (art. 162 and art. 163 TFEU). In carrying out this
task, the Commission is supported by a Committee chaired by a member of the
modify it, it can gather a simple majority of votes to oppose it. the measures taken by the Commis-
sion.
1 Said the rapporteur of the EP Committee on Leg al Affairs, József Szájer [Group of the European
People's Party (Christian Democrats), Hungary]; to be seen www.europarl.europa.eu -sides -get-
Doc.da?la.
2 Idem .
3 Depending on the products, this organization takes one of the following forms: competition rul es,
mandatory coordination of the different national market organizations, the European market organ-
ization (article 40 TFEU).
Organizat ion and duties of the European Union institutions 109
Commission and m ade up of representatives of governments and trade union or-
ganizations (art. 163 paragraph 2 TFEU).
1.e. It ensures the external representation of the Union, except the
CFSP. The Commission has the power of representation. In exercising this
competence, th e Commission represents the interest of the European Union not
only within its framework, respectively in its relations with the Member States,
with particular persons (natural or legal persons), with institutions or other Com-
munity bodies, but also extern ally, with third countries. or international organi-
zations1.
The competence of the Commission to represent the Union's interest
within it arises from the set of tasks, analyzed above; In this capacity, the Com-
mission presents itself "as a neutral intermedi ary between the Member States, on
the one hand, and between them and the Union, on the other"2.
The ability to represent the Commission results from art. 335 TFEU, ac-
cording to which "in each of the Member States, the Union possesses the most
extensive le gal capacity recognized by legal persons under national law; it may,
in particular, acquire and dispose of movable and immovable property and stand
trial. To this end, the Union shall be represented by the Commission".
The representation of the Union shall be carried out by the Commission
as follows:
– within the framework of the common commercial policy, the Commis-
sion opens the necessary negotiations following the authorization given by the
Council. The negotiations conducted by the Commission involve con sultation
with a special committee appointed by the Council. The Commission periodically
reports to the Special Committee and to the European Parliament the status of the
negotiations (art. 207 TFEU);
– negotiates the conclusion of international agreements , under the condi-
tions of art. 218 TFEU, thus "for the conclusion of agreements between the Union
and one or more states or international organizations, the Commission presents
recommendations to the Council, which takes a decision authorizing the start of
negotiations and designates, depending on the area of the agreement in question,
the negotiator or the head the Union negotiating team. These negotiations shall
be conducted by the Commission, which shall consult with a special committee
appointed by th e Council to assist it in this task and within the framework set out
in the directives that the Council may address". In the same sense, the provisions
of art. 37 TEU provide that, when an agreement with one or more states or inter-
national organizations is necessary, the Council (…) may authorize the Presi-
dency, assisted, if necessary, by the Commission, to enter into negotiations for
this purpose.
In order to fulfill this task, the Commission must be empowered by the
1 See C. Lefter, op. cit ., p. 177.
2 Idem .
110 Ioana Nely Militaru
Council through a "negotiation decisi on". The negotiation decision is subject to
the prior approval of the European Parliament, respectively the opinion of the
Court of Justice of the European Union. The Council, the Commission or a Mem-
ber State may request the opinion of the Court of Justice on the compatibility of
the respective agreement with the provisions of the Treaties. If the opinion of the
Court is negative, the agreement can enter into force only under the conditions of
art. 48 TEU1.
– The Commission is fully associated in negotiatio ns in the case of the
Council concluding formal agreements on a system of the exchange rate of the
euro in relation to the currencies of third countries (art. 219 paragraphs 1 and 3
last sentence of the TFEU);
– The Union establishes any form of useful coo peration with the organs
of the United Nations and its specialized institutions, the Council of Europe, the
Organization for Security and Cooperation in Europe and the Organization for
Economic Cooperation and Development (art. 220 TFEU).
The Union also en sures timely links with other international organiza-
tions.
The implementation of the provisions of this article is the responsibility
of the High Representative of the Union for Foreign Affairs and Security Policy
and the Commission.
1.f. It adopts the ann ual and multi -annual programming initiatives
of the Union, with a view to concluding interinstitutional agreements. To this
end, the Commission is preparing its work program, which represents its contri-
bution to the Union's annual and multiannual programmi ng. The European Par-
liament is already cooperating with the Commission in the process of developing
its work program, and the Commission takes into account the priorities expressed
by Parliament at this stage. Following its adoption by the Commission, a tr ialogue
is envisaged between Parliament, the Council and the Commission in order to
reach an agreement on Union programming.
Annex XIV to the Rules of Procedure (Framework Agreement on rela-
tions between the European Parliament and the European Commission) provides,
in this regard, detailed provisions, including a timetable. Parliament adopts a res-
olution on annual programming. The President asks the Council to give its opin-
ion on the Commission's work program and Parliament's resolution. If an institu-
tion i s not able to meet the established schedule, it is required to notify the other
institution of the reasons for the delay and to propose a new calendar.
We exemplify in this respect the policy on "Research and technological
development and space", on which the Commission, at the beginning of each
year, presents a report to the European Parliament and the Council, which also
concerns the work program for the current year (article 190 TFEU).
2. Proposes for adoption the legislative acts of the Union, unless th e
1 Article 48 TEU regulates the draft amendments to the Treaties underlying the Europe an Union,
which are presented by the government of any Member State or by the Commission.
Organizat ion and duties of the European Union institutions 111
treaties provide otherwise. It proposes for adoption the other acts, if the trea-
ties provide for this (art. 17 par. 2 TEU). Union legislative acts may be adopted
only on a proposal from the Commission, unless otherwise provided in the Trea-
ties. The other acts shall be adopted at the proposal of the Commission, if the
treaties so provide.
Guaranteeing the Union's interest, the Commission was conceived as a
"driving force for European integration"1. To this end, it was entrusted with the
"general mission (. ..) of initiative"2 and, in particular, with the task of proposing
legislative projects .
Through the legislative initiative, the Commission contributes to the de-
sign, preparation and shaping of the measures taken by the Council and Parlia-
ment, which formu late Union policies, presenting them as proposals3.
Whenever the Council acts on the basis of Commission proposals, it is
considered to have a legislative initiative4 (within the TFEU and TEuratom).
The Commission may propose draft normative acts only in cases where
the treaties confer such competence, being held, at the same time, to respect the
principle of subsidiarity provided in art. 5 paragraph (3) TEU, according to which
the Union, at the initiative of the Commission, "intervenes only if and to the ex-
tent that the objectives of the envisaged action cannot be satisfactorily achieved
by the Member States neither at central, nor at regional and local level but, be-
cause of their size and the effects of the envisaged action can be better achieved
at Union level ". The cases in which the "Commission proposal" is retained by the
TFEU are numerous, in this regard we mention by way of example the following
articles: art. 66, art. 70, art. 76, art. 109, art. 112, art. 121 par. (2), art. 125 para-
graph (2), art. 1 26 paragraph (14), art. 138 paragraph (1) and (2), art. 140 para-
graph (2), art. 153 paragraph ( 2) letter b), art. 165 paragraph (4), art. 167 para-
graph (5), art. 188, art. 293 paragraph (1), art. 294 paragraph (2), article 257,
article 322 (2) and article 215 (1) TFEU.
In most cases, the Commission acts on its own initiative, respectively in
cases of adoption of legal acts through ordinary legislative procedure. This pro-
cedure is initiated only at the proposal of the Commission [art. 289 para. (1)
TFEU].
In some situations, however:
– The Council is the one who asks the Commission to make a recommen-
dation or a proposal, as the case may be, under the conditions of art. 135 TFEU,
in others, the Council is obliged to consult the Commission (article 49 TEU) 5;
– The European Parliament, acting by a majority of its component mem-
bers, may request the Commission to submit any appropriate proposal on matters
1 See G. Isaac, M. Blanquet, op. cit ., p. 62.
2 CJEC, February 26, 1976, SADAM, 88 to 90/75, Rec. 323.
3 See O. Manolache, op. cit ., p. 127.
4 See C. Lefter, op. c it., p. 170.
5 Idem .
112 Ioana Nely Militaru
it considers necessary to draw up a Union act for the implementation of the Trea-
ties (article 225 TFEU).
Thus , based on a report prepared by the competent commission, in ac-
cordance with art. 225 TFEU, Parliament, acting by a majority of its component
members, may request the Commission to submit any appropriate legislative pro-
posal to it. Parliament may, at the s ame time, set a deadline for the submission of
such a proposal. The competent parliamentary committee must first seek the ap-
proval of the Conference of Presidents. The Commission may agree or refuse to
prepare a legislative proposal requested by the Europe an Parliament.
A proposal for a Union act, based on the right of initiative conferred on
Parliament, pursuant to art. 225 TFEU, may also be made by a member of the
European Parliament. This proposal is presented to the President of Parliament,
who sends it to the committee responsible for examination. It may decide to pre-
sent it in plenary.
There are also situations where "the Commission may modify its pro-
posal throughout the procedures leading to the adoption of a Union act", accord-
ing to article 293 parag raph (2) TFEU, with reference to a Council act which is
adopted at the proposal to the Commission, "as long as the Council has not taken
a decision" [regarding this].
There are situations in which the Commission is obliged to submit its
proposals within a specified period, the non -observance of this date giving the
right of the other institutions of the Union and of the Member States to be able to
notify the CJEU to find a violation of the treaties (art. 265 TFEU1). In other situ-
ations, for example in art. 109 TFEU, the Commission is not bound by any dead-
line.
In all cases, however, the Parliament or the Council, as the case may be,
may request the Commission to explain and justify the soundness of its proposals.
The Commission's proposals are published in t he Official Journal of the
European Union, the "C" series being referred to as "COM documents".
Although the right of legislative initiative, as a rule, belongs to the Com-
mission, the treaties also provide for this right to be exercised by:
– the European Parliament, under the conditions of art. 223 TFEU, draws
up a draft in this regard to establish the necessary provisions to allow the election
of its members by direct universal suffrage in accordance with a uniform proce-
dure in all Member States or in acc ordance with principles common to all Mem-
ber States;
– at least one million citizens of the Union, nationals of a significant num-
ber of Member States, who have the right to invite the Commission to submit,
within the limits of its powers, an appropriate pr oposal in matters in which these
citizens consider that a legal act of Union, with a view to applying the Treaties.
1 See the action in default, according to art. 265 TFEU where the term is two months.
Organizat ion and duties of the European Union institutions 113
3. The Commission has its own decision -making power. Thus, accord-
ing to art. 288 TFU, in order to exercise the powers of the Union, the inst itutions,
therefore the Commission, adopts regulations, directives, decisions, recommen-
dations and. opinions.
Therefore, the Commission:
– establishes its rules of procedure to ensure its functioning and its ser-
vices (article 249 TFEU);
– adopts regulation s in the fields of the free movement of workers (art. 45
paragraph 2 TFEU), competition (art. 105 par. 3 TFEU) and state aid (art. 108
paragraph 4 TFEU);
– address the necessary directives and decisions if it is found that the
Member States adopt or mainta in a measure that is contrary to the provisions of
the Treaties in respect of public undertakings or undertakings which grant them
special or exclusive rights (according to article 106 TFEU);
– adopts the necessary decisions in the field of transport, acco rding to art.
95 and art. 96 paragraph 2 TFEU
The Commission has the right to make recommendations or opinions1.
The general provision, according to which the Commission is given the power to
make recommendations and opinions, is art. 288 paragraph (1) and the last TFEU.
Without necessarily being preventive, the Commission's competence to
adopt recommendations is also maintained by the Treaty of Lisbon, but this is
also exercised in the specific cases provided by the Treaties (article 292 last sen-
tence of t he TFEU).
For example, the Commission issues opinions2 and recommendations3 in
the following situations:
– after the Commission opinion, the European Parliament establishes the
statute and the general conditions for the exercise of the Ombudsman's function s
[art. 228 paragraph (4) TFEU];
– at the recommendation of the Commission, the Council shall assist the
Member State in the event of difficulties or in the event of the risk of serious
difficulties for the balance of payments of a Member State, arising ei ther from a
global imbalance of the balance of payments or from the nature of the currencies
from which it disposes (and which may in particular compromise the functioning
1 This right was also provided in the ECT, the former art. 211, the second indent, replaced by art.
17 TEU.
2 See, for example, Commission Opinions no. 93/551 of October 5, 1993 regarding the application
of art. 4 paragraph 2 of the Directive no. 91/670 of the Council regarding the acceptance of the
equivalence of British and Belgian pilot licenses – O.J. L 267/29 of October 28, 1993, no. 93/340
of Ma rch 16, 1993, addressed to the Belgian Government regarding a draft royal decision for the
approval of the first management contract of the Belgian SNCF – O.J. L 136/45 of 5 June 1993.
3 See, by way of example, Recommendation no. 95/198 of May 12, 1995, ad dressed to the Member
States, on payment terms in commercial transactions – O.J. L 127/19 of May 10, 1995.
114 Ioana Nely Militaru
of the common market), by adopting directives or decisions establishing the con-
ditions and rules of assistance [art. 143 paragraph (1) and (2) and 144 paragraph
(2) TFEU];
– at the recommendation of the Commission, the Council may decide that
the Member State in the above -mentioned difficulties is obliged to modify, sus-
pend or eliminate t he safeguard measures provided under the conditions of art.
143 TFEU [art. 144 paragraph (3) TFEU];
– it can send recommendations to the Member States with a view to es-
tablishing a reasonable amount of taxes or fees levied by the carrier at the border
crossing, independent of the transport tariffs (article 97 TFEU);
Although the recommendations have no binding legal force, they are not
without legal effects, as they help other institutions in the decision -making pro-
cess or in the implementation of Union pol icies, given that the Commission insti-
tution represents the general interest of the Union.
– it makes recommendations to the Member States that endeavor to pro-
ceed with the liberalization of services, if their general situation so permits (arti-
cle 60 TFEU) .
It also makes recommendations to the Council for the opening of negoti-
ations with a view to reaching agreements with one or more third countries or
international organizations (article 207 paragraph 3 and article 218 paragraph 3
TFEU). It also presents recommendations to the Council for the conclusion of
formal agreements on a system of the exchange rate of the euro in relation to the
currencies of third countries (article 219 paragraph 1 TFEU);
– acts in close connection with the Member States through o pinions on
issues concerning international organizations [art. 156 paragraph (2) TFEU].
The Treaty of Lisbon extends the competence of the Commission for leg-
islative initiative and for judicial cooperation in criminal matters by adopting
measures, respecti vely rules, in accordance with the ordinary legislative proce-
dure according to art. 82 paragraph (1) and (2), art. 83 paragraph (1), art. 84 and
art. 85 paragraph (1) TFEU.
4. The Commission has the power "to draw the attention of the na-
tional parliaments to the proposals mentioned in art. 5 TEU” within the con-
trol procedure of the subsidiarity principle. The "mentioned proposals" con-
cern areas not within the exclusive competence of the Union, but that of the Mem-
ber States, areas in which the Union interven es only if the objectives of the en-
visaged action cannot be satisfactorily achieved by the Member States, nor at
central level, not at regional and local level, but can be better achieved at Union
level.
Before proposing a legislative act, the Commission s hall conduct exten-
sive consultations, as appropriate, and these consultations must take into account
the regional and local dimension of the actions envisaged (article 2 of Protocol
no. 2 on the application of the principles of subsidiarity and proportiona lity).
5. The powers of the Commission in the external action of the Union
Organizat ion and duties of the European Union institutions 115
(article 18 TEU). Thus, the High Representative is one of the Vice -Presidents of
the Commission. It ensures the coherence of the Union's external action. It is also
responsible, wit hin the Commission, for its responsibilities in the field of external
relations and for coordinating the other aspects of the Union's external action. In
exercising these responsibilities within the Commission, and only in respect of
these responsibilities , the High Representative shall be subject to the procedures
governing the functioning of the Commission.
Therefore, the High Representative has competences on two levels:
– leads the CFSP and, at the same time, as Vice -President of the Com-
mission,
– is in charge of the external relations and the coordination of other as-
pects of the Union's external action.
He is responsible for his work in the CFSP before the European Council,
and for the one in the Commission before the European Parliament1.
1 See A. Popescu, I. Diaconu, op. cit. (Organizații europene…) , pp. 238 -239.
Chap ter 6. The Court of Justice of the European Union
6.1. Regulation of the institution of the Court of Justice
The Court of Justice of the European Union (CJEU) has as its legal basis
the following provisions:
– art. 19 TUE;
– art. 251 -281 TFEU;
– art. 13 6 TEuratom;
– Protocol no. 3 annexed to the Treaties on the Statute of the Court of
Justice of the European Union.
The Court of Justice created by the Treaty establishing the European Coal
and Steel Community (TECSC) in 1951, was vested with the control of the legal-
ity of the acts issued by the High Authority and the Special Council of Ministers,
which would ensure a balance between them and the Member States and guaran-
tee the mixing of the TECSC authorities in the so -called "field reserved for
states"1. A few years later, TEEC and TEuratom, as well as the two protocols that
supplement them, also provide for the creation of a Court of Justice that corre-
sponds to the same requirement as the Court of Justice of the European Commu-
nities (CJEC) established by TE CSC.
✓ The Convention on certain institutions common to the European Com-
munities, signed on March 25, 1957, provides that the powers conferred on the
Court of Justice by each of the treaties shall be exercised by a single Court of
Justice.
✓ At the same ti me as the successive accessions of states to the European
Communities/ European Union, the number of actions before the Court of Justice
increased, which determined the necessity of establishing a second degree of ju-
risdiction through the Single European A ct (SEA), which asked the Council to
set up to a court of first instance2. The diversification of the community jurisdic-
tion has thus resulted in the redistribution of some competences previously held
by the Court of Justice to the Court of First Instance (CFI), provided that the
supreme control of the Court is protected in the new context of judicial structure.
✓ The establishment of the CFI did not, however, stop the large volume
of cases that the two community jurisdictions face. This reason determined t he
authors of the Treaty of Nice to provide in 2001 the possibility of creating judicial
chambers to analyze in the first instance the special disputes (art. 225bis TEC3).
In the context of the concern to distribute special cases to the judicial chambers,
1 See B. Ștefănescu., op. cit ., p. 34.
2 Council Decision of 24 Octob er 1988.
3 Statement no. 16 regarding art. 225 TEC, adopted at the signing of the Treaty of Nice on 26
February 2001.
Organizat ion and duties of the European Union institutions 117
the transfer of disputes between the Communities and its officials1 to a new spe-
cialized jurisdiction was registered, which led to the creation of a new court.
✓ Thus, in accordance with the provisions of the Treaty of Nice, the
Council adopted, in 2004, the decision2 establishing, together with the CFI, taking
the place of the judicial chambers, the Civil Service Tribunal. It thus removed
from the jurisdiction o f the Court of First Instance, both the disputes between the
Communities and its officials (according to art. 236 TEC and art. 152 TEuratom)
who returned to the Civil Service Tribunal, as well as the disputes between bodies
or agencies and their officials, for whose resolution the Court of Justice of the EU
is competent3.
✓ The Lisbon Treaty regulates the organization, competence and func-
tioning of the Court of Justice of the European Union in art. 19 TEU and art. 251 –
281 TFEU. The court in Luxembourg comprises, according to art. 19 par. 1, the
Court of Justice, the General Court (the former CFI) and the specialized courts,
among which we distinguish the Civil Service Tribunal.
✓ The Court of Justice "has the mission to ensure the observance of the
law in the interpretation and application of the treaties" (art. 19 paragraph 1 TEU)
having a prominent role in the system of judicial protection, established by the
TEC/TFEU4. Member States shall establish the remedies necessary to ensure ef-
fective judicial protection in the fields governed by Union law [article 19 (1)
TFEU].
The Court of Justice is a completely original jurisdictional court with re-
spect to any other court constituted within any other interstate organization, de-
fining itself concurrently as an interstate international jurisdiction, as a constitu-
tional jurisdiction, as an administrative court, as a supreme court of a federal fed-
eration. states, and as an arbitration court5.
6.2. Composition and organization of the Court of Justice
6.2.1. Court of Justice – representative court
The Court of Justice is comp osed of one judge for each Member State,
therefore 28 judges (article 10, paragraph 2 TEU), and is assisted by 8 Advocates
General. At the request of the Court of Justice, the Council, acting unanimously,
1 Disputes concerning the European civil service.
2 Council Decision 2004/752/EC, Euratom, of 2 November 2004, establishing the Civil Serv ice
Tribunal of the European Union, O.J. L 333/7 of 9 November 2004.
3 Idem .
4 See Ph. Lèger, Commentaire article par article des traités UE et CE , Dalloz, Paris, 2000.
5 See B. Ștefănescu, op. cit., (2003) , p. 82; see O. -H. Maican , Court of Justice – part of the commu-
nity legal system , „Revista de Management Comparat Intemațional” no. Special 2/2010, pp. 993 –
1000.
118 Ioana Nely Militaru
may increase the number of Advocates General (artic le 252 TFEU).
Judges and Advocates General are jointly appointed by the governments
of the Member States (article 253 TFEU). The appointment intervenes every three
years, being partially replaced by a group of 6 or 7 judges1, so as not to disrupt
the funct ioning of the institution.
Prior to the Treaty of Nice, the question arose whether a non -EU national
could be elected judge2. In practice, however, an unwritten rule has operated that
the Luxembourg Court always has at least one national from each Member S tate3.
The Treaty of Nice establishes this practice and explicitly provides that each
Member State shall appoint a national of its own as a judge, to enter the compo-
sition of the Court, which requires the conclusion that a non -EU national cannot
be elected judge.
Legally, this mechanism of joint appointment of the members of the
Court prevents us from considering the judges as mere representatives of their
states; they are also obliged to act in complete independence. However, joint des-
ignation is merely an appearance; each judge is, in fact, proposed by his home
state and his choice by each national government is generally not the subject of
any discussion4.
✓ Following the example set out for the International Court of Justice5 –
magistrates must be chose n from persons with high moral qualities, who fulfill
the conditions required in their countries to be appointed to the highest judicial
functions or are highly competent jurists recognized in law internationally6 – and
the judges and advocates -general of the CJEU are chosen from the personalities
that offer all the guarantees of independence and which meet the conditions re-
quired for the exercise, in their countries, of the highest judicial functions or
which are jurisconsuls whose competences are recogniz ed [art. 253 paragraph (1)
TFEU] or "jurisconsults with notorious powers"7 may be called upon to operate
in Luxembourg.
In practice, the composition of the Court has been quite diversified. The
1 Under the conditions provided by the Statute of the Cour t of Justice of the EU.
2 See M. -C. Bergerès, Contentieux communautaire , Presse Universitaires de France, 1989, p. 42.
3 In the beginning, the big states (Germany, Spain, France, Great Britain, Italy), in addition, in the
row, after the list, had an addit ional member (given the initial number even), so that the Court
always had an odd number of judges. See O. Manolache, op. cit ., p. 99.
4 See V. Grementieri, De Statut des juges de la Cour de justice des communautés européennes ,
RTDE, 1967, p. 822.
5 See art. 2 of the Statute of the International Court of Justice (I.C.J.).
6 See A. Bolintineanu, A. Năstase, B. Aurescu, Drept internațional contemporan , Ed. All Beck,
Bucharest, 2000, p. 201; R. Miga Beșteliu, Organizații internaționale interguvernamentale , Ed. All
Beck, Bucharest, 2000, p. 196.
7 This situation was highlighted by the French economist Jacques Rueff (the first French judge of
the CJCE). He served in the Court for 10 years; pointed out that "the application of the law cannot
be done without a c ertain economic intelligence". He was a finance inspector and a famous special-
ist on economic issues. This appointment could be explained by the fact that the first objective of
the treaty was economic integration. See M. -C. Bergères, op. cit. (1989) , p. 3 9.
Organizat ion and duties of the European Union institutions 119
number of former magistrates or high -ranking officials was con sidered; many
members of the Court had even experienced political experience prior to their
appointment to the Court1.
Also, the university chain occupied a leading position; currently, more
than half of the members of the Court are university professors w ho have had
(most) only limited experience in the judicial position before their appointment
to the Court.
✓ Also, the overall view of the organization of the Court, respectively of
the Court, would not be complete without mentioning an element that contri butes
to the definition of the institution's originality – the presence of the Advocate
General – a new and unknown function in the numerous national legal systems.
Having the role "to present, with full impartiality and independence, rea-
soned conclusions regarding the causes which, in accordance with the Statute of
the CJEU, require its intervention" (art. 252 TFEU), the Advocate General's in-
stitution constitutes an obvious transposition of the function of the government
commissioners of French State Counc il2.
They do not have the role of lawyers in the national court; their role is,
rather, similar to the "prosecutor"3.
Subject to the same conditions of recruitment and appointed by the same
procedure as the judges, initially their number was limited to 6, but, given the
expansion of the Communities/Union and the increase in the number of cases, it
was increased successively4.
Even if they do not participate in the deliberations of the Court, the Ad-
vocates General have a certain autonomy, because they are c alled to express their
opinions on: questions of fact and of law, the applicable texts, preceding, in short,
all the elements that can help the Court in pronouncing the judgment.
At the end of the oral procedure, the Advocate General expresses his
opinion publicly, where it follows that "his mission no longer consists in repre-
senting the general cornunitarian interest, but only in serving the right according
to objective criteria and without any connection with any category of interests"5.
1 See Brown, I. Neville, The Court of Justice of the Europeean Communitires , 4 ed., Swet and
Maxwell, London, 1994, pp. 47 -52; R. Hjalte, On Law and Policy in the European Court of Justice
– A Comparative Study in Judicial Policy -Making , Dordrecht -Bosto n-Lancaster, Nijhoff, 1986, pp.
50-65.
2 See A. Barav, Le commissaire de gouvernement devant le Conseil d’état français et l'avocat gé-
néral près de la Cour de justice des communautés européennes , RIDC, 1974, p. 809.
3 See C. Lefter, op. cit ., p. 124; O. Manolache, op. cit ., p. 127, footnote no. 2.
4 At the constitution, the Court was composed of 7 members assisted by 2 general counsel; at first
he had either a judge and a general counsel, or two judges from each big state and one judge from
each small st ate. This practice continued even after the first enlargement of the Communities: a
judge and a general counsel were nationals from every 4 major states and a national judge from
every other state.
5 See R. Munteanu, op. cit ., p. 245.
120 Ioana Nely Militaru
6.2.2. Statute of the members of the Court of Justice
The statute of judges and attorneys’ general allows them to carry out their
mission with continuous and complete independence. The term fixed for their
functions is 6 years, with the possibility of being renewed1. Practice shows that,
on average, they remain in court for two terms.
In order to ensure a certain permanence in the composition of the Court,
the renewal is made for half of them at 3 years.
Both judges and attorneys’ general are jointly appointed by the g overn-
ments of the Member States for a period of six years, after consulting a commit-
tee, according to art. 255 TFEU, established by the Treaty of Lisbon.
The committee is responsible for issuing an opinion on the ability of can-
didates to perform the duties of judge and advocate general in the Court of Justice
and the Court before the governments of the Member States make the nomina-
tions.
The committee is made up of seven personalities chosen from the former
members of the Court of Justice and of the Court, from the members of the su-
preme national courts and from the renowned lawyers, one of whom is proposed
by the European Parliament. The Council adopts a decision setting out the oper-
ating rules of this committee, as well as a decision appointing the members of the
committee. The Committee shall act on the initiative of the President of the Court
of Justice (article 255 TFEU).
✓ The judges shall appoint the President of the Court of Justice from
among them for a period of three years. Their terms of office may be renewed.
The judges and general lawyers who conclude their term of office may be re –
appointed2 (article 253 TFEU).
The president heads the proceedings of the Court, presides over the meet-
ings and deliberations in the council chamber. Their jurisdictional powers, which
they exercise by way of ordinances, are limited.
The president is the one who distributes the cause of a chamber and ap-
points the judge rapporteur within the chamber; he gives, in special circum-
stances, priorities for certain causes.
The Court appoints the presidents of the chambers for a period of one
year, and if the president of the Court is absent, the f unction is performed by one
of the presidents of the chambers, according to the order established by the pro-
cedural regulation of the Court of Justice provided by art. 6, the Rules of Proce-
dure.
The Court appoints one of the Advocates General to the first Advocate
General for a period of one year, so that during the six -year term of office almost
1 Judges and attorne ys’ general whose term of office ends are eligible for a new appointment.
2 As an example, French judge Robert Lecourt has thus exercised three successive terms, from 1967
to 1976.
Organizat ion and duties of the European Union institutions 121
all the Advocates General will be able to perform this function1. He will chair
their meetings and entrust each case to the Advocates -General as soon as the
Judge -Rapporteur has been appointed (by the President).
Before beginning their duties, judges and attorneys’ general shall take an
oath regarding the performance of their duties and the secrecy of the deliberations
of the Court. During the term of office, judges and advocates -general shall enjoy
privileges and immunities, in order to ensure their independence, especially with
respect to the Member States.
And after the termination of office, he enjoys immunity, both in respect
of the acts performed in their offic ial capacity, as well as in the opinions ex-
pressed in writing or verbally. Judges and Advocates -General may not be released
from office or declared to be deprived of their rights unless they have ceased to
meet the conditions required or fail to fulfill th e obligations arising from the status
of their office. With the exception of regular renewals and death, the judge also
ended his resignation2.
Judges and attorneys’ general are obliged to reside in the locality where
the Court has its seat, but only durin g the period they are in these positions. The
Court establishes its rules of procedure. This regulation is subject to the approval
of the Council (article 253 TFEU).
6.2.3. The registry office of the Court of Justice. Clerk -chief and dep-
uty clerks
In add ition to the Court, the registry office served by a clerk and one or
more deputy clerks are assigned to assist the clerk and to replace him, within the
limits set by the clerk's instructions.
The instructions for the Registrar are set by the Court at the p roposal of
the President.
Both the Court of Justice and the Court appoint their clerk and establish
their status (article 253 TFEU).
The clerk is appointed by the Court for 6 years. It can be called again.
Its functions are of two categories.
The first is of a legal nature and takes into account the fact that the Reg-
istrar, under the authority of the President, assists the Court and its members in
the acts corresponding to their functions regarding the receipt, transmission, re-
tention of all documents, as w ell as the communications required by the applica-
tion of the Rules of Procedure. to the CJEU.
The Registrar shall also assist the Court, the President and the presidents
1 See O. Manolache, op. cit ., p. 128.
2 In the case of the resignation of a judge, the letter of resignation is addressed to the President of
the Court for transmission to the President of the Council. The latter notification means that the
respective function has become vacant.
122 Ioana Nely Militaru
of the chambers, as well as the judges in the exercise of their functions.
The clerk k eeps the seals, is responsible for the archives and the publica-
tions of the Court, respectively the publication in the "Jurisprudence Collection",
which reproduces the full text of the judgments and ordinances.
The second is administrative and ensures the administration of the Court,
its financial management under the authority of the President.
6.2.4. The services of the Court of Justice
The services of the Court are represented by the officials and the auxiliary
staff of the Court, appointed un der the conditions of the Staff Regulations1.
The court also establishes a language service. It is composed of experts
with an appropriate legal culture, and a thorough knowledge of several official
languages of the Court.
The Court's administration, finan cial management and accounting are
provided, under the authority of the president, by the clerk, assisted by an admin-
istrator.
Each judge (including the President) and the Advocate General is assisted
by three references, qualified lawyers, usually doctors in law, elected intuitu per-
sonae .
The referent depends only on the court or the general counsel to which
he is attached2; it constitutes the cabinet of the judge (or the general counsel)
playing a key role in the functioning of the Court (especially those who work
alongside the Advocate General).
6.2.5. Presidency of the Court and constitution of the chambers
✓ Originally, the Court functioned in principle in plenary. Due to the
large number of cases and for speed, the treaties, however, authorized the e stab-
lishment within the Court of Chambers3.
1 See art. 20 of the CJEU's Rules of Procedure.
2 Each judge (including the president) and attorney general has the service of three referents who
are highly qualified lawyers, elected intuitu personae . Initially, they were assimilated to the staff
members of the Communities, having, in this capacity, the right to job stability. They have never
been subject to the authority of the clerk of the Court like the other officials and agents of this
institution. They were the offices of judges and general counsel. Subsequently, the referent -judge
relationship, th e referent -attorney general, was individualized, which had the effect of placing the
referents under the regime not of a statute, but of a contract related to the mandates of the judges or
attorneys’ general to whom they are collaborators. See for details, M.-C. Bergerè, op. cit ., p. 38.
3 The last consolidated version of the Rules of Procedure of the Court of Justice of 19 June 1991
was published in O.J. EU, 2010/C177/01. The last consolidated version of the Rules of Procedure
of the Court of May 2, 1991 was published in O.J. EU, 2010/C177/02. The last consolidated version
of the Rules of Procedure of the Civil Service Tribunal of the European Union of July 25, 2007 was
published in O.J. EU, 2010/C177/03.
Organizat ion and duties of the European Union institutions 123
The Court of Justice shall meet in chambers or in the Grand Chamber, in
accordance with the Statute of the Court of Justice of the EU (article 251 TFEU).
The Court of Justice may also meet in plenary session, co nsisting of 28
judges, when the Statute provides for it (article 251 TFEU).
The Court establishes within it chambers consisting of 3 and 5 judges and
decides on the distribution of judges in chambers.
✓ The Court designates the chamber or chambers of 5 judges who, for a
period of one year, have the task of judging the cases concerning the preliminary
references by the courts of the Member States (art. 267 TFEU)1.
The distribution of judges by chambers a nd the designation of the cham-
ber or chambers that have the task of judging the preliminary references is pub-
lished in JOUE.
Immediately after the application is filed in a case, the President of the
Court shall appoint the Judge -Rapporteur.
After the elec tion of the president of the court, the judges proceed to elect,
for a period of three years, the presidents of the chambers of five judges, and for
a period of one year, the presidents of the chambers of three judges.
The Court shall continue to appoint t he Advocate General for a period of
one year. It distributes the causes of the attorneys’ general.
The elections and designation presented above are published in the Offi-
cial Journal of the European Union.
The distribution of cases between the different st ructures follows the cri-
teria set by the Court2.
✓ The chambers are normally entrusted only with investigating the
causes, but the treaties have entrusted them with the judgment of cases other than
those with which they were notified by a Member State or an institution, under
the conditions provided by i ts internal regulation. The court has decided that,
from the beginning, the action of the officials or agents is, to the fullest extent,
the competence of a chamber.
Then, in order to cope with the increase in the number of cases, the Court
finally opted f or the maximum use of the broadened powers by modifying the
treaties3. Thus, as a result of the amendment of its regulation4, the Court may in
the future send to the chambers all the preliminary cases, as well as all the cases
with which it is referred by a private individual, insofar as it is considered that
the difficulty or importance of the case does not require to decide in plenary,
especially since a Member State or an institution did not oppose it. In any case,
1 See art. 104b of the CJEU's Rules of Procedure.
2 In 2000, 37 decisions were given in plenary, 91 in the small plenary, 90 in chambers of 3 judges,
165 in chambers of 5 judges, and 4 ordinances of the President.
3 Council Decision of 26.11.1974, OJEC no. L318/22 of November 28, 1974.
4 OJEC no. L328 of S eptember 21, 1979.
124 Ioana Nely Militaru
the court seised may always, in order t o ensure the unity of the case law or be-
cause of the importance of the case, to refer the case to the Court – in plenary1.
The plenary session is made up of all CJUE judges. The Court of Justice
has used this possibility in order to simplify the decision -making process, so that,
in the case of simpler actions, but within the competence of the plenary, it judges
in a plenary session consisting of the minimum number of judges required by law
for the quorum meeting.
In addition, the court created, in addition to the formation in plenary or
large plenary, the small plenary usually consisting of 7 or 9 judges, depending on
the importance and the difficulty of the case. From the meeting of two chambers
of 3 and 5 judges, plus the President of the Court, the small plenary is formed.
The Treaty of Lisbon proposes a new organization adapted to the Union's
enlargement prospects. The principle is obviously that of the judgment in "room
or in the Grand Chamber" (art. 251 TFEU).
With regard to the courts, the Court of Ju stice may meet as follows:
– Plenary sitting composed of all judges. The plenary will judge limited
cases provided by art. 16 of the Statute2, respectively when the judges reach the
conclusion that a particular case is of particular importance.
– The Grand Chamber composed of 15 judges, being presided over by the
President of the Court; The Grand Chamber will judge all cases in which Member
States or Union institutions are involved, at their request.
– chambers composed of three or five judges.
The chambers deal with the preliminary investigation of all the cases be-
fore the Court and decide on the requests for support for legal assistance in case
a party does not have the necessary means to deal with the costs of the procedure,
as well as when there are diff erences regarding the recovery of the expenses of
the court judgment set3.
For each case, the Grand Chamber is composed of the President of the
Court, the presidents of the chambers of five judges, the rapporteur judge and the
number of judges required to be 134.
The chambers of 3 and 5 judges are, for each case, composed of the pres-
ident of the chamber, the rapporteur judge and the number of judges necessary to
be a number of five and three judges respectively.
The Court shall meet in the Grand Chamber whe n a Member State or an
institution of the Union which is a party to the dispute so requests. In all other
cases, cases are settled in chambers, consisting of 3 or 5 judges.
1 In 1988, for example, 115 of the Court's 208 judgments were delivered by the chambers.
2 Such cases are provided by art. 195 paragraph (2), art. 213 paragraph (2), art. 216 and art. 247
paragraph (7) TEC or in art. 107d paragraph (2), art. 126 paragraph (2), art. 129 and art. 160b
paragraph (7) TEAEC.
3 See O. Manolache, op. cit. , pp. 129 -130.
4 See art. 11b of the CJEU Rules of Procedure.
Organizat ion and duties of the European Union institutions 125
6.3. Functioning of the Court of Justice
✓ The dates and times of the meetings of the Grand Chamber and of the
plenary sessions are established by the president.
The dates and times of the sessions of the chambers of 5 and 3 judges are
established by the president of each room.
According to the Treaty of Nice, the quorum is 3 judges in chambers, 9
judges in the Grand Chamber and 11 judges for the plenary sitting.
✓ The court can only deliberate in an odd number (art. 15 of the Statute),
and the president does not have a preferential vote.
The deliberation of the Court or the chambers takes place in the council
chamber. Only the judges who participated in the oral p hase of the procedure and,
possibly, the deputy rapporteur in charge of studying the case, participate in the
deliberations; the attorney general is not present.
Each judge present at the deliberations expresses his opinion and moti-
vates it.
If the deliber ations of the Court concern administrative matters, the Ad-
vocates -General shall attend them and have the right to vote. The Registrar shall
attend such deliberations, unless the Court decides otherwise.
✓ In the absence of consensus, the decisions are taken by a majority vote.
The decisions of the Court of Justice are valid only if the number of
judges participating in the deliberations is odd.
The decision is pronounced in public hearing; the parties bei ng cited; it
has binding force from the date of its pronouncement.
The ruling does not imply any indication on the voting method used (una-
nimity or majority of votes). The decisions of the Court are therefore collective
and they employ them entirely.
On th e contrary, compared to what is happening in international courts
or even in certain national courts, separate or competing opinions of minority
judges are not made public or included in the Court's ruling. This rule, which has
not been adopted without hea ted discussions, is hardly challenged today. It is,
however, regarded as better presenting the independence of judges to govern-
ments and especially to public opinion, favoring the authority of the Court's de-
cisions1.
1 See, G. Isaac, L’entrée en vigueur et l’application dans le temps du droit communautaire , Mé-
langes Marty, Toulouse, 1978, p. 234.
126 Ioana Nely Militaru
6.4. Functions of the Court of Ju stice
6.4.1. Regulation of the functions of the Court of Justice
The European Union has an institutional structure in which each institu-
tion has its role and functions specified by treaties. This original institutional ar-
chitecture corresponds to a speci fic legal order of the Union, that is to say a sys-
tem of autonomous rules that themselves represent the provisions of the treaties
or the acts adopted by the institutions, which form a whole, and directly incorpo-
rate the national legal order1. The legal sy stem of the Union guarantees not only
its respect, but also the unity of application of Union law, which results in four
functions of the Court of Justice2 corresponding to its competence.
The jurisdiction of the Luxembourg court provided by art. 19 paragr aph
(3) TEU is carried out through a number of actions that are confined to its four
functions: administrative, constitutional, international, preliminary.
Therefore, the Court of Justice of the European Union rules according to
the Treaties:
a) regarding the actions brought by a Member State, an institution or by
natural or legal persons;
b) as a preliminary, at the request of the national courts, regarding the
interpretation of Union law or the validity of the acts adopted by the institutions;
c) in the o ther cases provided by the Treaties (art. 19 paragraph 3 TEU).
6.4.2. Court of Justice – administrative court
The first mission of the Community justice, now of the Union, was to
protect the most diverse subjects of law – Member States, private persons – against
the illegal or harmful actions of the Community institutions3. Prior to the adoption
1 See, in the same sense, R. Munteanu, op. cit ., p. 71.
2 See G. Isaac, op. cit ., p. 230.
3 The Court of Justice, in this regard, presents itself as a transposition of the French Council of
State, the Community legal sys tem consecrating the approximately complete arsenal of legal ac-
tions known to the administrative litigation in France. The powers of each institution are determined
by the treaty and by the derived law (art. 13 TEU). This principle consists in the possibil ity to cancel
the normative acts of the institutions (art. 263 TFEU and art. 146 TEuratom), to detect their illegal
shortcomings (art. 265 TFEU and art. 148 TEuratom), to examine their validity on the way of ex-
ception (art. 277 TFEU, art. 156 TEuratom) or, where appropriate, to decide on the preliminary
references by the national courts (art. 267 TFEU and art. 150 TEuratom). See G. Isaac, op. cit ., p.
231. Concerning the protection of the interested parties – an action in full jurisdiction, this time, is
made available to them, in order to obtain the damages caused (art. 268 and art. 340 TFEU, art. 151
and art. 188 TEuratom), or for the change of the sanctions imposed (art. 261 TFEU and art. 144
CEEA). Also, Union agents and officials may request the Court t o resolve disputes that are opposed
by their institutions (Article 270 TFEU and Article 152 TEuratom).
Organizat ion and duties of the European Union institutions 127
of the Treaty of Nice, it was considered1 that the actions or procedures concerning
the following actions or procedures could be included in the category of actio ns:
– the legality of the acts adopted by the European Parliament and the
Council, together with the acts of the Council, the Commission and the ECB (Eu-
ropean Central Bank), as well as the acts of the Parliament intended to have ef-
fects on third parties, t he Court being competent to rule in the domain cases art.
263 paragraph (2) and (3) TFEU and art. 146 paragraph (2) and (3) TEuratom
(the action for annulment);
– the procedure for the preliminary reference for the examination of va-
lidity and interpretatio n of the acts of the institutions of the Union in order to
obtain a preliminary ruling, according to art. 267 TFEU2 and art. 150 TEuratom,
or the procedure in relation to the requests of the Council, the Commission or a
Member State to issue decisions on a problem of interpretation of Title IV TEC –
visas, asylum, immigration and other policies regarding the free movement of
persons (this provision is repealed by TFEU);
– the inaction of the Parliament, the Council, the Commission or the ECB
in violation of the treaties in the cases and according to the procedures established
in art. 265 TFEU paragraphs (1), (2) and (4) and art. 148 paragraphs (1) and (2)
TEuratom (the deficient action).
✓ According to the Treaty of Nice, and currently to the Treaty of Lisbo n
(art. 225 paragraph 1 TCE, currently 256 TFEU and art. 140 A paragraph 1 TEur-
atom), they were entrusted for settlement, in the first instance, to the General
Court (former Court of First Instance) the actions mentioned in art. 263 (the ac-
tion for annulme nt), art. 265 (the action in default), art. 268 (the action for com-
pensation), art. 270 (the action brought by the community officials) and art. 272
(arbitration clause) TFEU and actions in the field of corresponding articles in art.
146, art. 148, art. 15 1, art. 152 and art. 153 TEuratom, except those assigned to a
specialized court (established according to article 257 TFEU) and those reserved
by statute of the Court of Justice.
Thus, by way of derogation from art. 256 paragraph 1 TFEU (formerly
225 parag raph 1 TEC) and from art. 140 A paragraph 1 TEuratom, the statute of
the Court provides in art. 51 that the Community Court has jurisdiction over the
actions brought by the Member States, by the Community institutions and by the
ECB, by the domain of the m entioned articles, while retaining the competence
regarding these actions in the cases of art. 263 paragraph (2) and (3), art. 265
paragraph (1), (2) and (4) TFEU, art. 146 paragraph (2) and (3) and art. 148 par-
agraph (1) and (2) TEuratom.
1 See O. Manolache, op. cit ., p. 106.
2 They corresponded to the administrative function of art. 68 paragraph 1 TEC and art. 35 paragraph
3 TMs, current ly repealed by TFEU, respectively TEU.
128 Ioana Nely Militaru
6.4.3. Court of Justice – constitutional court
If the Luxembourg court is an administrative court with regard to the
control of individual acts, especially of the Commission, it also presents itself as
a constitutional court, and will ensure the conformity of the Uni on's legal acts
with the treaties. The Court of Justice has the task of controlling the conformity
of the acts of the institutions of the Treaty (now the treaties), which it defines as
a "Constitutional Charter"1 of the Community2. It presents itself as an arbitrator
in the conflicts that dispute the acts of the institutions, as in the litigation. on the
distribution of competences between the Community/Union and the Member
States3. Art. 263 TFEU provides, in this context, that an action for annulment may
be brought against acts, "other than recommendations and opinions", that is
against all provisions which have an effect legal to third parties, adopted by the
European institutions4. The initial version of art. 263 TFEU (former article 230
TEC) did not expl icitly stipulate which acts adopted by the Council or the Com-
mission were envisaged5.
The Court may thus annul (by virtue of the action for annulment) the acts
of an institution or sanction the refusal or abstention of the Commission or the
Council to deci de in matters in which these institutions have by treaty the obliga-
tion to take a certain measure, not only at the request of a state member, but also
at the request of an institution6. This refusal (or abstention) can be appealed to the
Court, by bringing an action called in Community/Union law an action in default.
The Luxembourg Court may also act as a constitutional court when it
issues an opinion at the request of the Council, the EP, the Commission or a
Member State, on the compatibility of an expecte d agreement between the Union
and third countries or international organizations with the provisions of the Trea-
ties (article 218 paragraph 11 TFEU)7. These institutions or states are not required
to request an opinion, because the TFEU text uses the wordi ng, "it may obtain a
1 CJEC, 294/83, Parti ecologiste Les Verts v. Parlement européen , Rec. 1339; see O. -H. Maican,
The future of European Constitutional Evolution , „Jurnalul Economic” no. 2/2009, pp. 69 -105.
2 We use in the text the not ions of "Treaty" (with reference to the EC Treaty) and of Community/
Communities because it refers to judgments of the Court that were given before the Lisbon Treaty.
The solution is valid and present, after the entry into force of the mentioned treaty.
3 See R. Dehousse, The European Court of Justice: The Politics of Judicial Integration , Palgrave
Macmillan, Basingstoke, 1995, p. 27.
4 CJEC, 22/70, Commission v. Conseil , AETR, 1971, Rec. 263.
5 The Court thus considered that in a system based on the res pect of the law it was not possible that
a coercive act adopted by another institution could not be subject to judicial control. It admitted,
for example, the annulment action brought by the Ecological Party against a decision of the Euro-
pean Parliament re garding the financing of the election campaign of political parties (CJEC, 294/83,
Parti Ecologiste , Rec. 1339).
6 See R. Dehousse, op. cit ., p. 27.
7 See O. Manolache, op. cit ., p. 135.
Organizat ion and duties of the European Union institutions 129
prior notice"1.
The constitutional function is also present when the Court resolves con-
flicts between the Commission (guardian of the treaties) and the Member State
acted in breach of any of its obligations under the treaties (art. 262 TFEU, art.
141 TEuratom).
6.4.4. Court of Justice – international court2
By imposing obligations on the Member States, the treaties have a duty
to provide them with the means to enforce them. Each state has a full right of
action before the Court for r esolving the differences that oppose the partners and
regarding the application or interpretation of Union law (art. 259 TFEU, art. 142
TEuratom).
Moreover, the Court is also competent to rule on any dispute between the
Member States in relation to the sub ject matter of the Treaties if it is notified of
this dispute under a compromise (article 273 TFEU and a rticle 154 TEuratom ).
Thus, the TFEU and TEuratom provide that whenever the application and
interpretation of the provisions of the treaties in a disput e between states is ques-
tioned, the competence of the Court of Justice is mandatory.
It is empowered both to settle disputes between Member States and to
consider that it is necessary to impose sanctions against them.
According to the TFEU and TEuratom, th e International Jurisdiction of
the Court of Justice manifests itself in two situations:
– in the first case, the Court has compulsory jurisdiction and considers
the possibility of each Member State to notify the court if it considers that another
Member S tate has breached one of its obligations under the Treaties [art. 258 -259
TFEU and art. 142 paragraph (1) TEuratom].
It is noteworthy that the Treaties of Rome have retained before the Court
a compulsory and primary international jurisdiction whenever liti gation arises be-
tween the Member States in relation to the application of the Treaties. In this
situation, the Court does not have to investigate whether another way of settling
the treaties could have led to the resolution of the dispute.
– regarding the second situation, the TFEU and TEuratom provide for an
optional international jurisdiction for the Court of Justice in disputes between the
Member States in relation to the subject matter of the Treaties.
This optional competence is conditioned by the exis tence of a compro-
mise concluded by the states in the dispute (art. 273 TFEU and art. 154 TEur-
atom).
1 If the opinion is not positive, the agreement can enter into forc e only under the conditions provided
for in a procedure for amending the Treaty (article 48 TEU). The request for an opinion was, how-
ever, mandatory in the case provided by art. 95 paragraph CSEC Treaty final (so -called small revi-
sion).
2 See B. Ștefănescu, op. cit ., pp. 98 -105.
130 Ioana Nely Militaru
6.4.5. The Court of Justice more than an international court1
The principles2 underlying the community court are fundamentally dif-
ferent from those that inspire international classical law jurisdictions.
✓ Any international jurisdiction is, essentially, voluntary consent. Thus,
the International Court of Justice in The Hague (ICJ) is the main judicial body of
the United Nations, whose jurisdiction is in principle voluntary, and its compul-
sory jurisdiction is exceptional (because only a small number of states have used
the optional clause of art. 36 of its Statute) 3.
However, a unique situation in international relations is determined by
the Court of Justice of the European Union (CJEU), which has compulsor y juris-
diction – which means not only that it can be brought unilaterally even against the
Member States, according to art. 258 and art. 259 TFEU, for example, but also in
the area that has been assigned its competence is exclusive; art. 344 TFEU states
in this regard that: "The Member States undertake not to submit a dispute regard-
ing the interpretation or application of the Treaties in a manner other than those
provided for in them".
✓ The international judge bears the effects of the imperfections4 and
shortcomings of the applied law, which leads to the distinction between the liti-
gations of the litigants5 (legal disputes, according to article 36 of the Statute of
the International Court of Justice) and of the non -litigants6.
The community judge, on the co ntrary, as a national judge, is most often
called upon to intervene on the reference made by a national judge, to which the
parties oppose and cannot, under the sanction of denigration of justice, refuse the
decision7. The purpose of its mission is defined as ensuring "respect for the law
in the interpretation and application of the treaties" (art. 19 TEU) without refer-
ring to the nature of the applicable rules, which leaves the Community judge with
1 See R. Mehdi, L 'avenir de la justice communautaire. Enjeux et perspectives , La documentation
Française, 1999, p. 142.
2 See J. Boulouis, A propos de la fonction normative de la jurisprudence. Remarques sur l’oeu vre
jurisprudentielle de la Cour de justice des Communautés , Mélanges Waline, LGDJ, 1974, tome 1,
p. 148; Cour de justice des Communautés européennes, L'avenir de système juridictionnel de l’Un-
ion européenne . Document de réflexion présenté au Conseil de l' Union européenne le 27 mai 1999.
3 The jurisdiction of the International Court of Justice (ICJ) will operate only if t he states are bound
by a declaration of acceptance [art. 36 paragraph (2) UN Charter]; see A. Bolintineanu, A. Năstase,
B. Aurescu , op. cit., 2000, p. 227.
4 See G. Isaac, M. Blanquet, op. cit ., p. 251.
5 The optional clause, from art. 36 of the Statute o f the ICJ, regarding the method of recognition as
compulsory by the states of the jurisdiction of the ICJ, not only was used by a small number of
states, but each time the declarations of acceptance were accompanied by reservations.
6 ICJ, Rec. 1966, p. 36 ; ibidem , p. 47.
7 CJEC, July 12, 1957, Algera , aff. 7/56 și 3 -7/57, Rec.118; see M. Lagrange, La Cour de Justice
des Communautés européennes du plan Schuman a l’Union européenne in Melanges Dehousse ,
Labor, Bruxelles et Nathan, Paris, 1979, tome 11, p. 127.
Organizat ion and duties of the European Union institutions 131
total independence in choosing the legal sources on which the interpretation is
based. texts.
While the EC Court of Justice judges the differences that arise between
individuals (individuals and legal entities) and institutions, the international ju-
risdiction is in principle competent to settle only disputes betw een states.
While the access of individuals to the Court of Justice is direct, even if it
is limited1, in the case of international jurisdiction the individual is kept away and
does not participate in the procedure before it, because it is not a subject of public
international law.
Moreover, individuals can act before the Luxembourg Court even the
state of which they are nationals, ultimately losing its sovereignty2.
✓ If international courts render, in principle, judgments that are binding
only for the states concerned3, the judgments of the Luxembourg Court of Justice
on the contrary have not only binding force but also enforceable force in the ter-
ritory of the Membe r States4 (art. 280 TFEU and art. 159 TEuratom) – within the
territory of the Union
✓ The Court of Justice is empowered to issue (pecuniary) sanctions
against any justice, so against the Member States.
All these make the Court of Justice an internal jurisd iction of a commu-
nity of states5, engaged in an integration process, being invested not only with the
guarantee of the observance of the Community law, but also with the guarantee
of its unity of application6.
The Court of Justice is an internal jurisdicti on of a Union of states, ac-
cording to the model of state jurisdictions – through the person of the litigants, by
the nature of the litigations that are submitted to them and by the procedure after
which they rule7 – which behaves at the same time as a fede ral supranational
1 Within the ECSC, it was allowed only to legal entities – enterprises.
2 See B. Ștefănescu, op.cit., p. 138.
3 As an example, the decisions of the International Court of Justice always have binding force for
the parties (art. 94 paragraph 1 UN Charter). The binding force of the judgments has a r elative
character, they are not binding only for the parties to the dispute and only regarding the case that
has been settled. For details, see A. Bolintineanu, A. Năstase, B. Aurescu, op. cit ., p. 206.
4 Thus, the decisions by which it was decided to sanc tion individuals to pay fines are fully enforce-
able on the territory of the Member States, without the need for the executor. See R. Munteanu, op.
cit., p. 241.
5 See R. Munteanu, op. cit ., p. 241.
6 See G. Isaac, op cit ., pp. 207 -212; J.V. Louis, L'ordr e juridique communautaire , 6 ed., Bruxelles,
1993, pp. 52 -56; see also the Decision of the European Commission of Human Rights of 19 January
1989 on the quality of internal jurisdiction of the Luxembourg Court of Justice referred to in art. 26
of the Europ ean Convention on Human Rights, in Annuaire français du droit international , 1988,
p. 383; see R. Munteanu, op. cit ., p. 241.
7 See L. Cartou, L' Union européenne, Traités de Paris -Rome -Maastricht , Paris, Dalloz, 1996, pp.
164-165.
132 Ioana Nely Militaru
court1, through its competence is extremely varied and comprehensive2.
6.4.6. Preliminary reference – special interpretation function3
The Treaties complement the three functions originating from the Court
of Justice with a special func tion of interpretation, the object of which is to ensure
the unity of interpretation and application of Union law across the Member States.
From a technical point of view, this function is achieved through the pre-
liminary reference in interpretation and va lidity examination (art. 267 TFEU and
art. 150 TEuratom), which centralizes for the benefit of a single jurisdiction – the
Court of Justice – the mission to offer the only authentic interpretation of the Un-
ion law4.
✓ The Court, through the preliminary re ferences, ensures the unity of
interpretation of the Union law5 – and at the same time – and a cooperation with
the national domestic courts6, the Court having the competence to judge the pre-
1 See Gyula Fabian, Curtea de Justiție Europeană, instanță de judecată supranațională , Ed. Rosetti,
Bucharest, 2002.
2 "It highlights the powers of constitutional control (art. 228 TEC; art. 173 TEC), administrative
control (art. 174 TEC) or in full jurisdiction in disputes, o pposing Member States, states and com-
munity bodies, community bodies and individuals, individuals and Member States or even individ-
uals between them".
3 See B. Ștefănescu, op. cit. (2003), pp. 82 -96; J. Pertek, La pratique du renvoi prejudiciel en droit
communautaire , Ed. Litec, Paris, 2001.
4 During the paper I used the term "prejudicial" because the Court of Justice interprets or examines,
as the case may be, Community law before the national court judges the merits of the case, respec-
tively pre -judgment.
5 However, this unit, prior to the Lisbon Treaty, was affected by the limits imposed by the TA (in
terms of "Visas, asylum, immigration and other policies regarding the free movement of persons"
– the new Title IV of Part III of the TEC ) on the basis of the former Article 68 TEC (currently
repealed) and by extending its (preliminary) prejudicial jurisdiction in the field of police and crim-
inal judicial cooperation See JC Gautron, Droit Europeaen, Dalloz, 1999, p. 174 The amendments
of the TMs by the Treat y of Nice concern, inter alia, judicial cooperation in criminal matters,
namely, together with Europol (J. Of. C 80/53, 2001), for closer cooperation between judicial au-
thorities and others. competent authorities of the Member States, EUROJUST (European Ju dicial
Cooperation Unit) was set up. One of the objectives of this cooperation is the development of the
Union in an "area of freedom, security and justice"; see P. Mathijsen, op. cit ., pp. 25 -27.
6 The preliminary question was different in the framewor k of the new Title IV TEC, "Visas, asylum,
immigration and other policies related to the free movement of persons", because: the national court
of last degree was the only one able to consider a decision of the Court according to art. 68 ECT
(that is, the referral for interpretation is open only to national courts whose decisions were not sub-
ject to a domestic legal appeal, the mechanism not being used by the lower courts), so the Court
can rule on a question of interpretation at the request of the Council, the Commission or to a Mem-
ber State without the decision being applicable to judgments already delivered by national courts,
thus establishing a "specific action for the interpretation of the ECT", unrelated to any current liti-
gation, open only to the Cou ncil, the Commission and the Member States. The Court's decision on
the preliminary reference "is not applicable to the judgments of the courts of the Member States,
which enjoy the authority of the court case", which means that it is required in the cases pending.
Organizat ion and duties of the European Union institutions 133
liminary references only in specific fields established by the st atute (art. 256 par-
agraph 3 and art. 267 TFEU).
6.5. Jurisdiction of the Court of Justice
On a material level, the application of Union law is shared between the
national courts and the Court of Justice; functionally, the interpretation of Union
law is, at least in the last resort, monopolized by the Court.
6.5.1. Material competence
The Court of Justice has a power of attribution, expressly provided for in
the Treaty. Thus, the disputes between the Union and states or natural or legal
persons are not automatically conferred on the Court, thus not excluding the ju-
risdiction of the national courts, the latter being consequently elevated to the rank
of common law court for the application of the Union law.
✓ Through the effect of the entry into force of the treaties, the compe-
tence of the national courts of the Member States has been extended to all disputes
that question the application of Union law. This results:
– first, from art. 274 TFEU – "The quality of the Union Party does not
remove the competence of the national courts in the respective disputes, except
in cases where the Treaties have the competence assigned to the EU Court of
Justice"1;
– secondly, from art. 267 TFEU and art. 150 TEuratom which, r egulating
the preliminary reference – by notifying the Court of Justice by the national courts
necessarily results the jurisdiction of the latter in the Community field, thus "any
national judge is also a community judge"2.
6.5.2. Functional competence
The competence of principle recognized in the national courts implies an
obvious risk for the uniform and coherent application of the law of the Union3.
Within the framework of police and criminal justice cooperation (Pillar II of the EU), the Court's
prejudicial jurisdiction over certain acts implies a declaration of acceptance by the respective state,
either for all the courts or for the last -degree courts [title VI art. 35 paragraph (2) TMs, the consol-
idated version of TA].
1 CJEC, March 22, 1990, J. M. Le Pen , aff. 201/89 Rec.1 -1183; I. Seidl Hohenveldern, L'immunité
de juridiction des Communautés européennes , RMC, 1990, p. 475.
2 Also, the n ational judge is a community in a certain sense more natural even than the Court whose
competence is solely attributable. See R. Lecourt, L 'Europe des juges , Bruylant, Bruxelles, 1976,
p. 24; R. Lecourt was president of the Court of Justice.
3 By leaving the control of the application and interpretation of community texts to the national
supreme courts, it is obvious that as many interpretations as many Member States would have
reached.
134 Ioana Nely Militaru
These shortcomings were overcome by the preliminary referral proce-
dure organized by art. 267 TFEU and ar t. 150 TEuratom.
Thus, the realization of the jurisdictional function is currently shared, ac-
cording to a well -defined conception, between the Union level and the national
level. Functional competence concerns two aspects1:
– the first aspect refers to the objective interpretation which is reserved
for the court in Luxembourg – the CJEC, which is able to interpret the law of the
Union and to examine the validity of the judicial acts of the Union (according to
article 267 TFEU and article 150 TEuratom);
– the second aspect involves the concrete application, an application that
falls within the task of the internal judge. The Court of Justice stated that "in the
very special framework of judicial cooperation established by art. 267 TFEU, the
national court and the Court of Justice, in the order of their own competences, are
called upon to contribute directly and reciprocally to the elaboration of a decision
in order to ensure uniform application of Community law across the Member
States"2.
6.6. Actions3 before the Court of Justice of the European Union ac-
cording to its competence4
✓ Competence ratione materiae . The Court of Justice was from the be-
ginning5 a unique institution for the three Communities, exercising the powers
provided by the institutional treaties.
Thus, the application of the Community law rests with the national
courts, while the CJUE is assigned only certain competences, which are defined
in art. 19 paragraph 3 TEU – new.
The provisions of art. 274 TFEU, which stipulates the following: "the
quality of the Union's part does not preclude the competence of the national courts
in the respective disputes, except in cases where the competence is conferred on
the CJEU by the Treaties".
The main competence assigned to the Court is the control of the legality
1 See G. Isaac, M. Blanquet, op. cit ., pp. 255 -256; G. Vandersanden, La reforme du système juridic-
tionnel communautaire , Universit é de Bruxelles, Bruxelles 1994, p. 230.
2 CJEC, December 1, 1965, Schwarze , aff. 16/65, Rec. 1094.
3 I used the term of action although in the specialized literature we use the term of appeal, f or two
reasons: on the one hand, because it is an action before the CJEU, as a substantive court (so there
is no way to appeal against a and, on the other hand, because, since the establishment of the Court
of First Instance, the Court of Justice is compet ent to examine the appeal on the decisions of this
Court – so as not to create confusion between the action before the Court of Justice as the substantive
court and the appeal against the decisions of the CFI (currently the General Court, by the Treaty of
Lisbon).
4 See M. Voicu, Jurisdicții și proceduri judiciare in Uniunea Europeană , Ed. Universul Juridic,
Bucharest, 2010, pp. 103 -169.
5 Convention on certain institutions common to the European Communities, signed at the same time
with TEC and TEuratom in 1957, "has agreed" prov isions Court of Justice in the three treaties.
Organizat ion and duties of the European Union institutions 135
of the Union's legal acts, attribution carried out mainly by the ac tion for annul-
ment (art. 263 TFEU and art. 14 TEuratom), the exception of illegality (art. 277
TFEU and art. 156 TEuratom) and the way the action for failure (art. 265 TFEU).
The Court is empowered, at the request of the national courts, to interpret
Union law (Union legal acts and treaty provisions) or to examine the validity of
Union legal acts (art. 267 TFEU, art. 150 TEuratom) by way of preliminary ref-
erence.
The Court is also competent to resolve the actions regarding the compen-
sation of the damages ca used by the institutions of the Union or its agents in the
exercise of their functions (art. 268 and art. 340 TFEU, art. 151 TEuratom).
The Court is competent to rule on any dispute between the Union and its
agents (art. 270 TFEU).
It can become an arbitra tion court (according to art. 272 TFEU, art. 153
TEuratom), being competent to rule under a compromise clause contained in a
contract of public or private law, concluded by the Union or on its behalf.
As a court of last resort, the Court has the power to review, exceptionally,
the decisions of the Court, under the conditions and limits provided by the statute,
if there is a serious risk to the unity or coherence of Union law (art. 225 TFEU
paragraph 2 and article 56 of the Statute of the Court).
Also, the Court has the power to review, exceptionally, the decisions pro-
nounced by the General Court in the preliminary references addressed to it, on
the basis of art. 267 TFEU, in specific areas established by the statute, if there is
a serious risk to the unity or coherence of Union law (art. 256 paragraph 3 TFEU).
It also regulates between the Commission and the Member States (art.
258 TFEU, art. 141 TEuratom), between the Member States (art. 259 TFEU and
art. 143 TEuratom). In these hypotheses, the Court prese nts itself as an interna-
tional court.
The Court of Justice also has advisory power that allows it to issue an
opinion on the compatibility of an expected agreement between the Union and
third countries or international organizations with the provisions of the treaties,
according to art. 218 paragraph 11 TFEU1.
The Court of Justice acts, in principle, as a court of first and last degree,
its judgments in litigation matters not being appealable2. Exceptionally3, the Eur-
atom Institutional Treaty grants the Co urt the power to appeal the decisions given
by the Arbitration Committee4, pursuant to art. 18 TEuratom, in the matter of
licenses. According to art. 18 paragraph 2 TEuratom: "Within one month from
their notification, the decisions of the Arbitration Commi ttee may be subject to a
suspensive appeal by the parties before the Court of Justice".
1 The Court of Justice also had advisory power by issuing opinions in the so -called small review
according to CSEC Treaty (art. 95).
2 See O. Manolache, op. cit ., p. 789.
3 See B. Ștefănescu, op. cit. (Curtea de justiție…), p. 108.
4 Statute of the Court, art. 22, and its rules of procedure, art. 101.
136 Ioana Nely Militaru
Regarding the competence ratione personae1, the Court of Justice is em-
powered to settle disputes between the Member States, between them and the
institutions of the Uni on – Commission, Council, as well as between the men-
tioned institutions. It also has the power to settle disputes between individuals,
natural or legal persons, nationals of the Member States and those Member States
or between individuals and the instituti ons of the Union2.
✓ According to the Treaty of Lisbon, pursuant to art. 263 paragraph 2
TFEU, the Committee of the Regions has the right to bring an action for annul-
ment at the CJEU (as well as the Court of Auditors and the ECB), thereby safe-
guarding its prerogatives. According to the same Treaty, the CJEU controls the
legality of the acts of the European Council (to the same extent as those of the
acts of the Council, the Commission, the ECB and the European Parliament),
according to art. 263 paragraph 1 TFEU.
In accordance with the principle of attribution powers3 that govern the
institutions of the Union, the treaties regulate a number of actions4, on which the
legal doctrine has made the most diverse classifications representing a useful at-
tempt, in ord er to be better understood.
Please note that:
– The General Court is competent to judge in the first instance all the
actions mentioned in art. 263 (the action for annulment), art. 265 (the action in
default), art. 268 (the action in the repair of prejudic es), art. 270 (disputes between
the Union and its agents) and art. 272 (the action under contractual liability, under
a compromise clause) all TFEU;
– The Court of Justice is referred exclusively to actions brought against
1 See B. Ștefănescu, op. cit. (Curtea de justiție…), p. 48.
2 Idem . For example, on the occasion of the annulment of the TCECO, the individuals were coal,
steel or business associations, and the TFEU and TEuratom are any natural or legal persons [art.
263 paragraph (4) TFEU].
3 CJEC, April 28, 1971 , Lutticke , Case 4/69, R. 325.
4 The systematization of the jurisdictional powers of the Court of Justice diffe rs in the legal doctrine
from one author to another. They use different criteria in their classification. Some divide the ac-
tions into three broad categories: in full litigation (in full jurisdiction, namely the community's non –
contractual liability, pecun iary sanctions); the litigation, namely the annulment action, the excep-
tion of illegality, the sending in examining the validity that it carries on the decision documents;
contentious in interpretation (preliminary reference in interpretation; see, to that effect, J. Boulouis,
RM Chevallier, Grands arrȇts de la Cour de Justice des C.E., TI, 2nd ed, Paris, 1978, p. 299. From
the same perspective group, the actions and L. Plouvier, Les decisions de la CJCE et leurs effets
juridiques , Brussels, 1975, p. 197. Other authors distinguish between: a) the direct actions: the ac-
tion for annulment, deficiency and the exception of illegality, the action in contractual responsibil-
ity, the action to ascertain the failure of the states to fulfill the obligations arising from the treaties;
b) the cooperation b etween the Court of Justice and the national courts – corresponding to the pre-
liminary reference in interpretation. There are authors who used criteria according to the types of
referral of the Court: contentious attributions, preliminary attributions, con sultative attributions and
according to the powers of the Court: the ways in full jurisdiction (here in the sense of action), the
ways in the annulment, the ways in the declaration; see for details, G. Isaac, M. Blanquet, op. cit. ,
p. 269.
Organizat ion and duties of the European Union institutions 137
decisions of the Commission impos ing penalties (art. 261), as well as with the
actions provided in the Statute of the Court of Justice [Statute of the Court of
Justice of the European Union, amended by the Regulation (EU, Euratom ) no.
741/2012 of August 11, 2012, Regulation (EU, Euratom) no. 2015/2422 of 16
December 2015 and by the Regulation (EU, Euratom) of 6 July 2016 of the Eu-
ropean Parliament and of the Council].
– art. 51 of the Statute of the Court of Justice provides that, by way of
derogation from the rule provided for in art. 256 paragraph (1) TFEU is within
the competence of the Court of Justice the actions mentioned in art. 263 (the ac-
tion for annulment) and art. 265 (failing action) TFEU when introduced by a
Member State.
6.6.1. Action for annulment (art. 263, art. 264 TFUE)
The action for annulment is a direct action against a legislative act
adopted by a Union institution. In this way, the validity of the act is challenged
and its cancellation is sought.
✓ Affordable acts:
Article 263 paragraph (1) The TFEU specifies, the Court of Justice of the
EU, "controls the legality of the legislative acts, the acts of the Council, the Com-
mission and the European Central Bank, other than the recommendations and
opini ons, of the acts of the European Parliament and of the European Council1,
intended to produce legal effects. vis -à-vis third parties".
The CJEU also controls the legality of acts of the bodies, offices or agen-
cies of the Union intended to produce legal eff ects vis -à-vis third parties.
Therefore, we consider that art. 263 paragraph (1) TFEU shall take into
account all legislative acts and certain non -legislative acts having legal effects.
The legislative acts are the acts listed in art. 288 TFEU, respectivel y reg-
ulations, directives, decisions, adopted both by the ordinary legislative procedure
(adopted by the EP and the Council together) and by the special legislative pro-
cedure (adopted by the EP with the participation of the Council or by the Council
with t he participation of the EP). Regulations, directives, decisions are consid-
ered, because through the legislative procedure (ordinary, special) these acts can
be adopted.
The non -legislative acts provided by art. 263 TFEU are:
– acts of the Council, the Comm ission and the ECB, other than recom-
mendations and opinions, which have legal effects on third parties;
– acts of the European Parliament and of the European Council aimed at
producing legal effects;
1 The acts of th e Parliament may be subject to the control of legality as a result of the modification
of art. 230 paragraph 1 TMs. In the previous regulation no such possibility was foreseen, but it was
admitted in the case law of the Court of Justice.
138 Ioana Nely Militaru
– acts of the bodies, offices or agencies of the Union, intended to produce
legal effects vis -à-vis third parties.
Also, the TFEU, in terms of novelty, expressly provides in two articles
the acts that can be controlled under art. 263 TFEU (the action for annulment):
– art. 271 CJEU is competent to judge the di sputes by which it controls
the legality of the following acts:
a) the decisions of the Board of Governors of the European Investment
Bank;
b) the decisions of the Board of Directors of the European Investment
Bank.
– according to art. 275 TFEU, the CJEU c ontrols the legality of decisions
providing for restrictive measures against natural or legal persons adopted by the
Council under Title V, Chapter 2 TEU.
The Treaty of Lisbon adds to the list of non -legislative acts that are sub-
ject to the legality contro l by the CJEU by the action for a nnulment, as well as
the acts: T he European Council, the bodies, offices or agencies of the Union,
which are intended to have effects on third parties.
As a matter of principle, from the TFEU economy there are two criteria
that must be met by legal acts in order to be able to control their legality through
the action for annulment: to come from an EU institution or body (either as leg-
islative or non -legislative acts)1 and to produce legal effects vis -à-vis third par-
ties2.
In the same spirit, the CJEU's doctrine and jurisprudence prior to the
1 This criterion a lso results from the case law preceding the Lisbon Treaty: CJCE, March 31, 1971,
Comm. v. Council , aff 22/70, AETR, Rec. 263. Of the acts considered to be unnamed, according to
the CJEU, by reference to the criterion "an act coming from an EU institution o r body", we exem-
plify: the acts of the Court of Accounts, when they meet the general conditions of admissibility
(CJCE, May 11 1989, Maurissen and Union synd. C. Cour de Comptes , aff. Tes 193 and 194/87,
Rec. 1045); the decisions of the European Council th at have a binding character (for details, see M.
Voicu, op. cit., 2010, p. 120); the acts of the European Investment Bank, according to art. 271 point
a) of the TFEU, ex art. 237 point a) TEC (CJEC, 3 March 1988, Comm. V. EIB , aff. 85/86, Rec.
1281); acts of the Trademark Office; international agreements concluded by the Council, on behalf
of the Union, because an agreement concluded by the Council, as regards the Community/Union,
is an act issued by one of the institutions of the Community/Union, with its entry into force, its
provisions being part of Community legal order (CJEC, April 30, 1974, Haegeman v. Belgian State ,
aff. 181/73, Rec. 449).
2 According to this criterion, the following acts are specified in the ECJ's case -law: a code of con-
duct issued b y Commission, its text imposing binding obligations on the Member States (CJEC,
November 13, 1991, France v. Comm ., Aff. 303/90, Rec. 1 -5340); a letter from the Commission
rejecting an offer to the applicant company and constituting a separate act of a co ntractual procedure
(CJEC, April 22, 1997, Geotronics SA v. Comm , aff. C-395/95 P., Rec. I – 2271) a verbal decision
of the President of the Court of Auditors (CJEC, February 9, 1984, Kohler v. Cour de Comptes , aff.
Jtes 316/82 and 40/89, Rec. 641); a comm unication from the Commission specifying how to apply
a directive but creating new obligations for the Member States (CJEC, June 16, 1993, France v.
Comm ., aff. 325/91, Rec. 1 -3283); a decision regarding the conclusion of an international agreement
(CJEC, August 9, 1994, France v. Comm , aff. 327/91, Rec. I -3641).
Organizat ion and duties of the European Union institutions 139
Treaty of Lisbon, with reference to the TEC/TFEU and TEuratom, saw both the
mandatory acts named – those listed in art. 249 TEC, at present art. 288 TFEU:
regulations, decisions and direc tives – as well as the mandatory acts unnamed1.
Thus, in an action against a deliberation of the Council, the Court formulated a
true principle for the action for annulment: "it must be open to all the provisions
adopted by the institutions, which seek to produce legal effects2, whatever their
nature and form", therefore, not only the regulations, directives, decisions, but
also the acts that have these characteristics can be subject to control3.
If the act is devoid of legal effects, the action for annulm ent is declared
inadmissible.
It should also be mentioned that, from the analysis of art. 263 TFEU, with
reference to the acts whose legality can be controlled, it turns out that the acts of
the Court of Accounts do not fall into this category.
✓ The applicants (holders of active procedural legitimation). There are
two types of claimants: institutional (privileged) and individual (non -privileged).
Institutional claimants are considered privileged insofar as they do not
have to justify any interes t in taking action. For them the interest is presumed.
According to art. 263 paragraph (3) The TFEU, the privileged applicants
are:
– Member States, the European Parliament4, the Council and the Com-
mission, which may take action for reasons of incompetence , breach of funda-
mental procedural rules, breach of the treaties or any rule of law regarding its
application or abuse of power;
– The Court of Accounts, the European Central Bank and the Committee
of the Regions, which seek to safeguard their prerogatives . Under TEuratom, the
ECB is not entitled to bring an action for annulment;
– each Member State, the Commission and the EIB Management Board.
They may bring an action against the decisions of the Board of Governors of the
EIB [art. 271 lit. b) TFEU];
– Mem ber States or Cornice, only for non -observance of the procedures
provided by art. 19 paragraph (2) and (5) – (7) of the Statute of the Bank (ECB).
Individual claimants, considered as non -privileged, are represented by
any natural or legal person. It may ta ke action against:
1 See G. Isaac, M. Blanquet, op. cit ., p. 281; CJEC, March 31, 1971, Comm. c. Conseil , aff 22/70,
AETR, Rec. 263.
2 They may be subject to the control of the CJEU, the measures which produce oblig atory legal
effects, which may affect the interests of the applicant, characteristically modifying the interests of
the applicant, see M. Voicu, op. cit ., p. 121.
3 Idem .
4 The Treaty of Maastricht granted the EP the status of institutional complainant, but not privileged
(therefore, it was obliged to justify, the interest to act). The statute was also conferred on it by the
Treaty of Nice.
140 Ioana Nely Militaru
– acts the addressee of which is or who has looked directly and individu-
ally at it. For example, although the act takes the form of a regulation (without
having the characteristics of a regulation)1 or of a decision addressed to another
person, it concerns the applicant directly and individually;
– normative acts that directly concern it and do not imply enforcement
measures.
The admissibility conditions formulated by art. 263 TFEU are strict and
have been interpreted for two reasons: fir stly, individuals are not guardians of
legality (in principle, they cannot attack a regulation or a directive2) and secondly,
they have other means to enforce discussing the validity of a Community act (the
exception of illegality, the preliminary referenc e in examining the validity).
Therefore, they have the capacity to act: persons who are the recipients
of an individual act or non -recipients, who must prove that the act directly and
individually targets them.
If the action is filed, the Court of Justice shall declare the contested act
null and void. The annulment pronounced by the judge is retroactive, the act is
considered to have never existed, and its legal effects must be canceled.
However, the Court indicates if it considers it necessary, what are th e
effects of the annulled act, which should be considered irrevocable (art. 264
TFEU). The institution, body, office or agency issuing the annulled act is obliged
to take the measures required by the execution of the judgment of the Court (art.
266 TFEU). The institution in question has its own data for each cancellation of
a freedom of variable appreciation, but which is carried out under the control of
the Court3. The decision of annulment has the authority of working judgment and
is opposed to all. The a ctions for annulment must be filed within two months, as
the case may be, from the publication of the document, from the notification
thereof to the applicant or, failing that, from the date on which the applicant be-
came aware of the respective act [art. 2 63 paragraph (5) TFEU].
The TFEU presents a list of the means4 that can be invoked to support
the action for annulment: incompetence5, violation of fundamental procedural
1 The characteristics provided by art. 288 TFEU are: general applicability, mandatory in all its ele-
ments and direct ly applicable in each Member State.
2 CJEC, December 14, 1962, Confédération nationale des producteurs de fruits et légumes , aff. 16
et 17/62, Rec. 135.
3 CJEC, July 12, 1962, Hoogovens , aff. 14/61, Rec. 458.
4 See B. Ștefănescu, op. cit. (Curtea de Justiție…) , p. 61; O. Manolache, op. cit ., pp. 613 -627.
5 This means plays a fundamental role in sanctioning the acts intervened in areas not covered by
the treaties or reserved to an institution other than the on es that are joint. The Court, in a judgment,
emphasized that we are in the presence of a "public order means that is examined ex officio" (CJEC,
May 10, 1960, Germany , aff. 19/58, Rec 469). Cases of incompetence are found in practice rarely
(CJEC, May 10, 1960, Erzeherban , aff 3 a 18, 25 et 26/58, Rec. 367). Their scope is confused with
that of infringement of substantial forms, and the plaintiffs most often initiate their action for the
second reason (CJEC, December 13, 1967, Neumann , aff. 17/67, Rec. 571) .
Organizat ion and duties of the European Union institutions 141
rules1, violation of the treaty or any rule of law regarding its application2 and
abuse of power3.
It is also worth mentioning that, from the analysis of art. 263 TFEU, with
reference to the institutions which can bring actions for annulment, it follows that
the European Council does not fall into this category.
Also, the acts establishing the bodies, offices and agencies of the Union
may provide for special conditions and procedures regarding the actions taken by
the natural or legal persons against the acts of these bodies, offices or agencies
which are intended to produce legal effects a gainst them [art. 263 paragraph (6)
TFEU].
✓ A special case of action for cancellation is regulated by Protocol no. 2
regarding the application of the principles of subsidiarity and proportionality, in
art. 8.
Thus, the CJEU is competent to rule on the actions regarding the viola-
tion of the princip le of subsidiarity by a legislative act, in accordance with the
norms provided in art. 263 TFEU, by a Member State or transmitted by it in ac-
cordance with its national law on behalf of its national parliament or a chamber
thereof.
In accordance with the ru les provided for in the aforementioned article,
such actions may also be taken by the Committee of the Regions against the leg-
islative acts for adoption to which the TFEU provides for consultati on of the re-
spective committee.
Since 1990, by a judgment give n in a case, made by the Parliament in a
legislative procedure regarding the adoption of necessary sanitary measures fol-
lowing the Chernobyl nuclear accident, the Court recognized the Parliament the
1 This is a "means of public order" (CJEC, December 21, 1954, France , aff. 1/54, Rec.9), which,
contrary to lack of competence, is experiencing a much greater development than in French law.
The fundamental rules of procedure which are usually not respec ted, they refer to: motivation (ini-
tially provided in the three Community treaties: TECSC, TEC, TEuratom), and currently in Article
296 paragraph (2) TFEU and Article 162 Euratom; see G. Isaac, M. Blanquet, op. cit ., p. 283; voting
procedures (in the proce dures defined in the internal regulations of the Council – CJCE, February
23, 1988, United Kingdom v. Conseil , aff. 68/86, 855).
2 The violation of the treaties themselves is expressly targeted; the violation concerns annexes,
protocols, conventions, as we ll as the other acts adopted by the institutions of the Union for the
execution of the treaties, because their violation constitutes at the same time the violation of the
provisions of the treaties that define their legal force (art. 288 TFEU). The concept of "treaties"
refers to primary law and derivative law, and the formulation of "any rule of law" takes into account
general principles of law (recognized by the Member States) or any other special provisions in-
cluded in the treaties.
3 We are in the prese nce of an abuse of power when the administrative authority has used its powers
for a purpose other than that for which these power s were given to it by treaty (B. Ștefănescu, op.
cit., p. 61). This means is mainly retained in the disputes of community civil servants (CJEC, May
5, 1966, Gutmann , aff. 18 et 35/65, Rec.149; 29 September 1976, Giuffrida , aff. 105/75, Rec. 1395).
The purp ose of the act was different from that for which it was issued, in a plastic formulation –
"foreign to the service", see G. Isaac, M. Blanquet, op. cit ., p. 284.
142 Ioana Nely Militaru
right to notify it with actions for annulment for maintai ning its prerogatives in the
legislative procedure1.
6.6.2. The exception of illegality (art. 277 TFEU, art. 156
TEuratom)
Individuals (natural persons and legal persons) cannot attack the legal
acts of the Union with normative character – decisions or regulations – through
the annulment action. But, when the individual decision is not complied with,
they can invoke the illegality of the above -mentioned acts, indirectly, through the
exception of illegality of the general act on the basis o f which the individual de-
cision was issued.
Thus, individuals may request not to annul the basic general act, but only
to pronounce by the Court its non -application with respect to the applicant. As a
result, the Court cannot annul the act whose legality i s contested, but only declare
it inapplicable in respect of the applicant.
The exception of illegality is provided by art. 277 TFEU and art. 156
TEuratom in very general terms: subject to the expiration of the term foreseen for
the action for annulment, in the event of a dispute regarding a general act adopted
by an institution, body, office or agency of the Union, any party may prevail for
the reasons of law provided by art. 263 paragraph (2) TFEU (incompetence, vio-
lation of fundamental procedural rules, v iolation of the treaty or any rule of law
regarding its application and abuse of power) to invoke the inapplicability of this
act before the EU Court of Justice.
The text of the article makes no distinction as to the parties that can in-
voke the exception. It may be lifted by any party in the event of a dispute in which
a regulation is violated2. It can therefore also be invoked by the Member States,
although they have at their disposal the action to cancel the legal acts of the Un-
ion3.
Also, only the regula tion that has a natural connection with the cause in
which the inapplicability is claimed can be challenged4.
The Court considered that the main function of the exception of illegality
is to correct the restrictions that the treaties in the annulment acti on impose on
individuals (to take attitude against the general decisions and regulations). The
Court also decided that it should be taken into account "the need to ensure a le-
gality check in favor of the excluded persons in bringing actions for annulment,
1 See U. Bux, April 2017, Fișe tehnice privind Uniunea Europeană , Court of Justice of the Euro-
pean Union, http://www.europarl.europa.eu/aboutparliament/ro/displayFtu.html?ftuld=FTU_1.3.
0.html.
2 See O. Manolache, op. cit ., p. 663.
3 According to art. 241 TEC any party may invoke the causes provided for in art. 230 TEC in order
to apply the inappl icability of the regulation.
4 CJEC, July 13, 1966, Government of the Italian Republic v. Council and Commission , aff. 32/65,
hot. in ECR, 1966, p. 389.
Organizat ion and duties of the European Union institutions 143
against individual acts, when they are reached by an application decision which
concern them directly and individually"1 and added that "the provisions of art.
277 TFEU are the expression of a true general principle, the scope of which must
be understood m ore broadly".
In connection with the article in question, the Court also stated that its
provisions should be applied to the regulations themselves – acts of the institu-
tions, which, although not in the form of a regulation, nevertheless produce sim-
ilar ef fects and for these reasons cannot be challenged by other subjects. law ra-
ther than institutions and Member States2.
The plea of illegality is nothing more than an incidental procedure, which
is subject to another action – for annulment3, which can only be invoked before
the Court of Justice, given that the plea does not operate independently of the
cause4.
6.6.3. The action determined by the refusal of the Union institutions
to act (deficiency action – art. 265 TFEU, art. 148 TEuratom)
The deficient action allows the sanction of an illegal abstention of the
European Parliament, the European Council, the Council, the Commission, the
European Central Bank.
According to art. 265 TFEU, if, in breach of the provisions of the Trea-
ties, the European Parliame nt, the European Council, the Council, the Commis-
sion or the European Central Bank refrain from deciding, the Member States and
the other institutions of the Union may refer the EU Court of Just ice to ascertain
this violation . The provisions of the said ar ticle shall apply, under the same con-
ditions, to the organs, offices and agencies of the Union which refrain from de-
ciding.
✓ The privileged institutional claimants (holders of active procedural le-
gitimacy) are: The Member States, the other institutions, without any distinction
(European Parliament, European Council, Council, Commission, Court of Ac-
counts, ECB and ECJ).
The act ion is, in principle, possible not only against the failure to formu-
late decision and binding documents, but also against the failure to formulate rec-
ommendations, opinions (even presenting an opinion).
The privileged claimants, to whom no interest require ment is required in
order to notify the CJEU, may question the failure to adopt any type of act – reg-
ulation, directive, decision, recommendation, opinion, proposal, draft budget5 –
1 CJEC, March 6, 1979, Simmenthal , aff. 92/78, Rec. 777.
2 Idem .
3 See G. Isaac, op. cit ., p. 276.
4 See O. Manolache, op. cit ., p. 663.
5 CJEC, September 27, 1988, Parlement v. Conseil , aff. 302/87, Rec. 5637.
144 Ioana Nely Militaru
since Union law imposes its adoption.
✓ Individual non -privileged claimants can be any natural or legal person.
They may notify the Court, under the conditions laid down for privileged persons,
in relation to the omission of an institution, body, office or agency of the Union
to send them an a ct, other than a recommendation or an opinion (art. 265 last
paragraph of the TFEU).
This means that the action is excluded against the failure to adopt a reg-
ulation or opinion and, in general, an act which does not produce legal effects on
the applicant. This right is more restricted than in the case of the annulment action
[art. 263 para. (4) TEC, because it makes it possible to challenge a decision that
has not been addressed to the applicant, but which concerns him directly and in-
dividually. In its case -law, the Court has brought to light a broader interpretation
of the phrase "re fraining from addressing an act …" 1, the objective being to pro-
vide legal protection to one who, without being a formal addressee, is in fact view
by this act in a manner anal ogous to that of an addressee and aligned the admis-
sibility of the action in default with that of the action for annulment; it is sufficient
that the act whose omission is reproached directly and individually concerned the
applicant, even if he is not the addressee2.
The passive procedural legitimacy has the European Parliament, the Eu-
ropean Council, the Council, the Commission, the European Central Bank, the
organs, offices and agencies of the Union, which refrain from deciding on the
address of an act, u nder the conditions under which they were obliged to do so. I
cannot be a defendant, the EU Court of Justice and the Court of Auditors.
This action is admissible only if the institution, body, office or agency
has been previously requested to act [art. 265 paragraph (2) TFEU]. If, on the
expiry of a period of two months from the date of this request, the institution,
body, office or agency has not specified its position, the action may be filed.
Therefore, the action can be brought only if there is a legal obligation of
the respective institution to act3.
If the legality of the obligation to act is established, the Court will declare
the institutions' inaction to be illegal and require them to act, ie to adopt the Com-
munity act expressly required by the leg al texts or in their spirit. The judgment in
default is compulsory, so the institution must take the measures provided for in
the decision of the Court.
1 CJCE, February 14, 1989, Star fruit , aff. 247/87, Rec. 297; February 16, 1993, ENU v. Commis-
sion, aff. C 107/91, Rec. I – 599.
2 Idem .
3 CFI-C, 74/92, Ladbroke Racing (Deutschland) v. Commission , 24 January 1995, in ECR, 1995 –
11, p. 116.
Organizat ion and duties of the European Union institutions 145
6.6.4. Action in finding a Member State's breach of its obligations
under the Treaties1 (art. 258 -260 TFEU, art. 141 -143 TEuratom)
The Court of Justice has the exclusive competence to judge the Member
States for failure to comply with the obligations imposed by the Treaties and Un-
ion law in general.
✓ The claimants (holders of active procedural legitimacy) who can notify
the CJEU with an action in finding a state's violation of their obligations under
the treaties are:
– The Commission, according to art. 258 TFEU, or
– Member States, based on art. 259 TFEU.
The commission has the task of monitoring the behavior of the states, so
that, according to art. 17 TFEU, it guarantees the application of Union law under
the control of the CJEU.
The supervision exercised by the Commission materializes by gathering
information and checks in order to carry out the tasks entrusted to it.
If the Commission considers, following the checks and information col-
lected, that a Member State has breached any of its obligations under the Treaties,
it shall issue a reasoned opin ion on this matter, having given it to the State con-
cerned. the possibility to present their observations [art. 258 paragraph (1)
TFEU].
If the Member State concerned does not comply with this opinion within
the time limit set by the Commission, it may not ify the CJEU.
Either Member State may refer the matter to the EU Court of Justice if it
considers that another Member State has breached any of its obligations under
the Treaties [Art. 259 paragraph (1) TFEU].
However, before a Member State can bring an ac tion against another
Member State based on an alleged breach of its obligations under the Treaties, it
must notify the Commission [Art. 259 paragraph (2) TFEU].
In this case, the Commission also gives a reasoned opinion, after giving
the possibility for th e states concerned to submit their written and oral observa-
tions to the contrary.
1 Actions for failure by Member States to fulfill their obligations under the Treaties (Articles 258
and 259 TFEU), actions against pecuniary sanctions, disput es between the Union and its agents
(Article 270 TFEU), actions in non -contractual liability of the Union The Union (Articles 268 and
340 TFEU) can be found in the specialized literature as "actions in full jurisdiction". These give the
CJEC/CJEU the oppor tunity to appreciate all the factual and legal elements of the case brought
before it, modifying that decision of the community institution that was called into question, in
order to establish another mandatory solution for the parties. For details, see B. Ștefănescu, op. cit.
(Curtea de Justiție…) , pp. 82 -98; R. Joliet, op. cit ., vol. II, pp. 19 -48; ibidem , pp. 243 -293; J. Bou-
louis, R. -M. Chevallier, Grands arrȇts de la Cour de Justice des CE , T I, 2é, éd., Paris, 1978, p.
299.
146 Ioana Nely Militaru
In the event that the Commission has not issued the opinion within three
months of the application being submitted, the absence of the opinion does not
prevent the Court from being notified. It should also be noted that the possibility
of bringing the Court to the notice of any Member State that considers that an-
other Member State has breached the obligations resulting from the treaties fur-
ther sheds light on the international jurisdiction of the EU Court of Justice1.
✓ The passive procedural legitimacy (the defendant) has the Member
State which has breached an obligation resulting from treaties or from an act of
the Union [art. 259 paragraph (1) TFEU].
✓ As the texts of the Treaties, the Statute of the Court and the Ru les of
Procedure do not set a time limit for bringing an action for failure to fulfill the
obligations of a Member State to the Court of Justice, it is left to the applicant's
judgment – Commission or Member State2.
In practice, it has been found that the potential applicants file the action
in question within a period of two months, which begins to run from the expira-
tion of the period in which Coinisia was to issue the confirmatory opinion3.
✓ After the Court has been referred to either the Commission (art. 258
TFEU) or the Member State (art. 259 TFEU) – and finds that a Member State has
breached any of the obligations under the Treaties, this State is obliged to take
the measures required by the execution of the judgment of the Court (art. 260
paragraph 1 TFEU).
If the Member State concerned has not taken the measures required to
enforce the decision of the Court, the Commission may notify the Court, after
giving the State concerned the opport unity to submit its observations.
In the procedure for finding a State's failure to fulfill its obligations under
the Treaties, the Commission and the Court of Justice have a decisive role in
applying the financial sanction against the Member State concern ed:
– The Commission shall indicate the amount of the lump sum or the pe-
riodic penalty payment which the Member State concerned must pay and which
it considers appropriate to the situation (art. 260 parahraph 2 TFEU);
– The Court, following the finding tha t the Member State concerned has
not complied with its decision, may require the payment of a lump sum or penalty
payments (art. 260, paragraph 2 TFEU), without the Treaty stipulating the Court's
obligation to takes into account the indications of the Comm ission.
Also, the TFEU4 expressly provides for a case of non -fulfillment of the
1 See B. Ștefănescu, op. cit. (Curtea de justiție…), p. 93.
2 The legal text does not provide for a deadline for the Court's judgment to be enforced, but the
practice has established that it is within the domain of evidence that the process of enforcing the
uncles ruling must be initiated as soon as possible and completed as soon as possible. See ECJ,
February 6, 1992, 75 -91, Commission v. Holland , in ECR. 1992, pp. 549 -556; CJCE, January 30,
1992, 328 -90, Commission v. Greece , in ECR, 425.
3 See B. Ștefănescu, op. cit. (Curtea d e justiție…), p. 95.
4 Art. 260 paragraph 3 TFUE.
Organizat ion and duties of the European Union institutions 147
obligations of a Member State, for example, that State has not fulfilled its obliga-
tion to communicate the transposition measures of a directive adopted in accord-
ance with the legislative procedure. If, in such a case, the Commission notifies
the CJEU (pursuant to art. 258 TFEU):
– The Commission may indicate, if it deems it necessary, the amount of
the lump sums or the periodic penalty payment to be paid by the respective state
and which it considers appropriate to the situation;
– The court, following the finding of the breach of the obligation, may
impose to the respective Member State the payment of a lump sum or a penalty
with a periodic penalty, within the limit indicated b y the Commission.
The payment obligation shall enter into force on the date established by
the Court by its judgment.
✓ Failures by states are actions or abstentions contrary to Union law1
(primary/originating, derivative, general principles), namely:
– legal acts or behaviors contrary to Union law are represented by laws,
decrees, administrative decisions; the classic ex ample is: inaccurate transposition
of a directive, or
– abstentions or inactions are caused by delays or negligence in taking the
necessary measures for the application of Community law or the refusal to repeal
an internal measure to the contrary; the clas sic example is: non -transposition or
late transposition of a directive.
The decision to find the breach is declarative; it is up to the state to bear
the consequences; in case of non -execution, a new procedure may lead to a sec-
ond judgment on the same non -compliance.
The decision is imposed on the courts of the Member States2 that have
not fulfilled the duties provided by the treaties and implies for them:
– the obligation not to apply a rule recognized as incompatible;
– the obligation to recognize the lia bility (of the state) as a result of the
violation of the Union law.
✓ A special case of action for failure of a Member State to fulfill its ob-
ligations under the treaties is provided by art. 114 paragraph 9 TFEU, in the sense
of abusive exercise by the State concerned of the powers provided by the TFEU
in the field of appr oximation of laws.
It is a derogatory situation from the procedure provided in art. 258 and
art. 259 TFEU, because the Commission and any Member State can directly refer
1 CJEC, May 21, 1977, Commission v. United Kingdom . Failure to do so may be subject to an
indication by the Commission of the provisional measures under the emergency procedure. There
are simplified anal ogous procedures: in the case of State aid, if the Commission gives a decision on
aid or the Court can be referred by the Commission or a Member State according to art. 88 para-
graph (2) TEC; in the field of harmonization (approximation) of national laws if a state uses derog-
atory, abusive measures, after harmonization (art. 95, art. 4 and art. 5 TEC), the Commission or any
Member State can directly refer the Court of Justice.
2 CJEC, 14 December 1982, Waterkeyn , Rec. 4337.
148 Ioana Nely Militaru
the EU Court of Justice if they consider that another Member State is guilty of
the ab uses mentioned above.
It is derogatory because:
– The Commission notifies the Court directly by skipping the procedure
by which it issues a reasoned opinion on the alleged violation, after having of-
fered the State concerned the opportunity to submit its ob servations, according to
art. 258 TFEU;
– the Member State which considers that another Member State has
breached its obligations under the Treaties shall notify the Court directly, skip-
ping the procedure which first provides for the Commission to be notif ied of the
alleged infringement, followed by the reasoned opinion of the Commissioners,
after it has given the State concerned the possibility to present in contradictory
written and oral observations, according to art. 259 TFEU.
✓ Other special cases of actions taken as a result of the failure of the
Member States to fulfill their obligations, for which the EU Court of Justice is
competent are, according to art. 271 points a) and e):
– disputes regarding the fulfillment of the ob ligations of the Member
States resulting from the Statute of the European Investment Bank. The Board of
Directors of the Bank has in this respect the attributions recognized to the Com-
mission by art. 258;
– disputes regarding the fulfillment by the nationa l central banks of the
obligations resulting from the treaties and the Statute of the ESCB (European
System of Central Banks) and of the ECB. In this regard, the Board of Governors
of the European Central Bank has, in relation to the national central banks , the
powers recognized by the Commission through art. 258 in relation to the Member
States. If the Court finds that a national central bank has not fulfilled its obliga-
tions under the Treaties, that bank is obliged to take the measures required by the
execution of the Court's decision.
In both cases, the Commission, when it considers that a Member State
has breached any of its obligations under the Statutes of the EIB, the ESCB and
the ECB, issues a reasoned opinion on this matter. If the State does not co mply
with this opinion within the deadline set by the Commission, after it has had the
opportunity to submit its observations, the Commission may refer the matter to
the Court of Justice.
6.6.5. Action against pecuniary sanctions (art. 261 TFEU)
The Com mission, as "guardian of the treaties", has the authority to ensure
the application of treaties, as well as of measures taken by the institutions under
them. The Commission oversees the application of Union law, by the Member
States, under the control of t he EU Court of Justice (art. 17 TFEU).
Thus, a consequence of the non -fulfillment of the obligations by the
Member States is the fact that the institution of the Commission in the procedure
Organizat ion and duties of the European Union institutions 149
of finding (..), established by art. 260 TFEU, indicates financial penalties for the
Member State concerned1.
The right to impose pecuniary sanctions is granted to the Commission by
the Council on the basis of the EC Treaty, prior to the Lisbon Treaty, through the
regulations adopted in various matters (especially in th e field of knowledge)2.
The Commission is entitled to impose financial penalties for infringe-
ment of Union law, taking decisions to that effect, which can be appealed to the
CJEU.
The decisions taken by the Commission in matters of financial sanctions
can be challenged, according to art. 261 TFEU and the provisions of the subsidi-
ary legislation3. Financial penalties may be subject to regulations adopted by the
Council or the European Parliament, together with the Council, on a proposal
from the Commission. Regulations adopted in accordance with the provisions of
the Treaties may confer on the Court of Justice the substantive jurisdiction over
the sanctions provided for in these regulations (art. 261 TFEU). In practice, it is
treated as an action to annul a d ecision, although it is an independent action. Its
starting point is the Commission's decision, not the alleged violation4.
The Court of Justice may annul, increase or decrease the sanctions ap-
plied; one can speak of its unlimited competence with regard t o the actions re-
garding the sanctions applied.
This highlights the essential difference between the action against sanc-
tions and the action for annulment. The court does not merely investigate whether
the facts are correct or how they were appreciated; it may express a different point
of view than that of the Commission, which may replace that of the Commission.
The decisions of the Commission shall be enforceable immediately. The intro-
duction of a new legal action does not suspend the execution, so that th e non –
payment of the amounts imposed in such a situation will attract interest. However,
insofar as it considers that the circumstances require it, the Court may order the
suspension of the execution of the contested act (art. 278 TFEU).
1 See the action in the Member Sta tes' failure to fulfill the obligations arising from the treaties.
2 Regulation no. 1983 -83 of June 22, 1983 regarding the categories of exclusive distribution agree-
ments; Regulation no. 4087 -88 of November 30, 1988 regarding the categories of franchising agree-
ments; Regulation no. 417 -85 of December 19, 1984 regarding the categories of specialization
agreements; Regulation no. 418 -85 of December 19, 1984 on the categories of research and devel-
opment agreements.
3 Regulation no. 17/62, art. 17, and Regulati on no. 4056/86, art. 21.
4 According to art. 256 TFEU, the Court will have the power to resolve at first instance the actions
against the financial sanctions.
150 Ioana Nely Militaru
6.6.6. Actio ns brought by Union agents (art. 270 TFEU and art. 152
TEuratom)
The action is provided in art. 270 TFEU and art. 152 TEuratom1.
The EU Court of Justice is competent to rule on any dispute between the
Union and its agents, within the limits and conditions established by the Staff
Regulations of Officials of the Union and the regime applicable to the other
agents of the Union (art. 270 TFEU).
The category of agents of the Union comprises the officials of the Union
and the other agents.
The first are persons appointed in positions established by the written
decision of the competent authority to appoint (according to the Staff Regulations
in force).
The other agents are classified as temporary, auxiliary, local, etc. The
officials or agents of the Union may b ring certain actions within the limits of the
Statute of the officials of the Union, before the General Court. They may notify
the competent jurisdictional bodies, with the approval of the appointing authority,
through the superiors, for the purpose of ami cable settlement of disputes.
The action brought by the official concerned has the character of an al-
ternative litigation, which involves:
– an action for annulment when an official or agent of the Union chal-
lenges the legality of an individual act, making a complaint in this regard. The
official concerned may also take action against any other act which, even if it has
been addressed to another person, affects him (for example, the persons who have
been appointed or promoted);
The official concerned must a ct for his own concrete interest2.
– an action against financial penalties, when the official or agent in ques-
tion asks for financial compensation.
6.6.7. The action in liability
The European Union, having under the treaties a juridical personality,
can produce through its activity, in this capacity, damages, which must be re-
paired, thus entailing its civil liability3.
1 Art. 270 TFEU confers jurisdiction of the EU Court of Justice in this matter and should be inte r-
preted as meaning that it applies not only to persons who have the status of civil servants or other
civil servants, but also to the persons who claim this status; see CFI 30/96, Jose Gomez de Sa Pe-
reira v. Council , Order of 11 July 1996, rec. 24 in ECR, 1996/7/8/9 (II) 793; art. 90 and art. 91 of
the personnel regulation no. 258/68, O.J. L. 56 of March 4, 1968 (amended several times); O. Ma-
nolache, op. cit ., pp. 740 -741.
2 See P.J. Kapteyn, P. ver Loren van Themaat, The impact of case -law of the Court of Justice of the
European Communities on the economic world order , in MLR no. 5 -6/1984, vol. 82, pp. 245 -246.
3 See B. Ștefănescu, op. cit. (Curtea de justiție…), p. 83.
Organizat ion and duties of the European Union institutions 151
The provisions of the TFEU govern both the direct and indirect the extra –
contractual (non -contractual) liability of the Union and the cont ractual liability
incurred as a result of non -fulfillment of the obligations resulting from a contract.
Under the conditions provided by the TFEU, the persons concerned can
obtain the compensation of the damages thus caused by the action in liability,
contractual or extra -contractual, as the case may be, before the EU Court of Jus-
tice.
A. Action in non -contractual liability of the European Union (art.
340 TFUE)1. According to art. 340 TFEU, as a rule "in matters of non -contractual
liability, the Union is ob liged to repair, in accordance with the general principles
common to the legal orders of the Member States, the damage caused by its in-
stitutions or its agents in the exercise of their functions".
In this matter, the Union does not represent the institutio n of the Euro-
pean Central Bank, as, by way of derogation from the above rule, the ECB must
repair, in accordance with the general principles common to the Member States,
the damage caused by it or its agents in the exercise of their functions.
Resolution o f disputes aimed at repairing these damages falls within the
competence of the EU Court of Justice (art. 268 TFEU).
However, if the Union is a party to a dispute and is not expressly provided
for in the Treaty by the Court of Justice, the power to settle t he dispute in question
lies with the court of t he Member State (art. 274 TFEU) .
Which means that, in the matter of action for damages, the EU Court of
Justice has exceptional jurisdiction, an aspect explicitly stated by the TFEU – "the
quality of the Union party does not remove the competence of the national courts
in the respective disputes, except in which by the treaties the competence is as-
signed to the Court" (art. 274 TFEU).
✓ The claimants, holders of the active procedural legitimacy are, "ac-
cording to the general general principles of the legal orders of the Member
States"2 in the matter of non -contractual liability, "any natural or legal person,
even a non -EU citizen, and t heoretically, any state, even a third state, which
proves that it has suffered damage caused by the deed of the institution or of the
Union agent in the exercise of its functions"3.
Therefore, it can be specified that the natural or legal persons who have
suffered damage caused by the act of the institutions or agents of the Union, ex-
ceptionally, are obliged to address the Court, being obliged to bypass, in order to
1 On the non -contractual liability of the European Union administration see Cătălin -Silviu Săraru,
Drept administrativ. Probleme fundamentale ale dreptului public , Ed. C.H. Beck, Bucharest, 2016 ,
p. 821 -823; Cătălin -Silviu Săraru, European Administrative Space – recent challenges and evolu-
tion prospects , ADJURIS – International Academic Publisher, Bucharest, 2017, p. 124 -127.
2 According to art. 340 TFEU.
3 CJEC., 44/1959, Fiddelaer v. Comisie CE E., Rev. VI, p. 1093; see B. Ștefănescu, op. cit ., p. 86;
M. Voicu, op. cit ., p. 142.
152 Ioana Nely Militaru
use the claims, the national courts from place of the occurrence of the event caus-
ing damage s – competent courts according to the principles admitted by the pri-
vate international law1.
The action for liability must be filed within 5 years, starting from the
production of the harmful act or from the date of the occurrence of the damages,
if these have subsequently occurred to the harmful fact.
✓ The distinction must be made between direct and indirect criminal li-
ability of the Union.
In the first case, having legal personality, the Union manifests itself in its
relations with third parties through its institutions, namely "The Union is repre-
sented by each institution, on the basis of their administrative autonomy, for mat-
ters relating to their functioning" (art. 335 TFEU). Which means that the damages
caused by these institutions, in the exercise of their functions (competences), are
caused by th e Union and therefore entail direct non -contractual liability.
In the second case, if the harmful act is produced by an agent/official of
the Union in the performance of his/her duties, the indirect criminal liability of
the Union will be involved in the p osition of commander for his supervisor – the
agent/official.
The Union and its officials are personally responsible (direct liability) to
the Union. This liability is governed by the provisions that establish the statute or
the regime that applies to them . In this matter, the TEuratom provisions are sim-
ilar, which expressly stipulate the competence of the CJEU in disputes "between
the Community2 and its agents within the limits and conditions determined by the
statute" (art. 152 TEuratom). On the other han d, the statute of EC and Euratom
officials also provides , the compulsory competence of the CJEU, as follows "any
dispute between one of the Communities against a person covered by this statute
(…) is submitted to the CJEC/CJEU, which has full jurisdicti on" in the disputes
of a pecuniary nature between the parties concerned3.
✓ On this matter – the direct and indirect criminal liability of the Union
art. 188 TEuratom has similar provisions to art. 340 TFEU, namely "The Com-
munity [Euratom] must repair, in accordance with the general principles common
to the law of the Member Sta tes, the damages caused by its institution or its agents
in the exercise of their functions (duties)".
The Court, in one of its judgments, gave a restrictive definition4 to the
fault committed by a Community agent in the exercise of his functions5, thus re-
ducing the scope of the Community's liability6.
The ECJ case -law does not rule out any liability without a fault, a priori ,
1 Idem .
2 This is the Euratom Community.
3 See B. Ștefănescu, op. cit. (Curtea dejustiție…), p. 89.
4 CJEC, September 18, 1995, Holle ; see J.C. Gautron, op. cit ., p. 1 72.
5 CJEC, July 10, 1969, Sayog , quoted by J.C. Gautron, op.cit ., p. 172.
6 The ECSC Treaty excluded any liability without guilt.
Organizat ion and duties of the European Union institutions 153
but it has not formally established it until today, although it is present in the legal
order of several Member States.
The Court (o f First Instance) also considers liability to be guilty1.
As regards the conditions regarding the assessment of the injury (which
must be real and certain), the causal link between the deed (the guilty act of the
Community2) and the injury (which must be d irect), they are identical in the two
treaties (TEC/TFEU and TEuratom).
The main contribution of the jurisprudence is the extension of the respon-
sibility on the legislative activity of the Community/Union. Therefore, damages
can be caused by various acts, including normative ones. Th e Community treaties
and their equivalent acts, currently the treaties (TFEU and TEU), which is main-
tained by the entry into force of the Treaty of Lisbon, were excluded from this
sphere.
The legislative act may cause damages by adopting, in this case, it is in-
troduced, together with the action in the granting of damages, and an action for
the annulment of the act in question (art. 263 TFEU)3.
Also, damage can be caused in case of guilty abstention of an institution,
in this case a lawsuit is filed against the institution obliged to decide (art. 265
TFEU).
Therefore, actions regarding the validity of these acts can be brought (art.
263 TFEU) and damages can be requested at the same time. However, the Court
is going to rule separately on the validity of the a ct and the damages4. Thus, the
action in non -contractual liability has autonomy in relation to the action in can-
cellation or the action in default, because they have a different object. The action
in non -contractual liability has autonomy, in fact, compare d to all other actions
before the Court.
B. The action in contractual responsibility of the European Union
under a compromise clause (art. 272 TFEU ). The Court of Justice is competent
to settle a dispute arising in connection with a contract, if it appears in this con-
tract, a compromise clause.
The compromise clause is the one that states that, in the event of a dis-
pute, the Court of Justice is competent to resolve it. The compromise clause is
concluded between the contracting parties.
In this sense, art. 2 72 paragraph (1) TFEU provides: "The EU Court of
Justice shall have jurisdiction to give judgment pursuant to a compromise clause
1 It is a wording closer to German law than to French law.
2 The guilty act may concern: non -performance of obligations by the Community; misinformation;
the abuse of power manifestly and gravely going to arbitrary, the illegal termination of the contracts
of employment of the staff of the Communities and the insufficient protection of its members; vio-
lation of a higher norm o f law; see J.C. Gautron, op. cit ., p. 172.
3 Where the damage results from a regulation adopted by the Council on a proposal from the Com-
mission, the action may be brought against the two institutions; see M. Voicu, op. cit ., p. 143.
4 See O. Manolache, op.cit ., p. 732.
154 Ioana Nely Militaru
contained in a contract of public or private law concluded by or on behalf of the
Union".
The Court of Justice is competent to rule on any dispute between the
Member States in relation to the subject matter of the Treaties, if it is notified of
that dispute on the basis of a compromise [art. 273 paragraph (2) TFEU].
The conditions under which the Court is competent under a compro mise
are:
– the compromise always intervenes between the parties to the dispute,
respectively the parties in dispute;
– the parties to the dispute are the Member States;
– the dispute is related to the object of the Union treaties.
6.6.8. Appeal of the Co urt of Justice against the decisions of the Gen-
eral Court
✓The Court of Justice is the court of appeal, according to art. 256
par. 1 TFEU . The decisions given by the General Court in the first instance, in
the cases considered by art. 263 (action for annulment), art. 265 (action in de-
fault), art. 268 and art. 340 (action in non -contractual liability), art. 270 (disputes
between the Union and its agents) and art. 272 (action based on a compromise
clause) TFEU, as well as in other categories of actions that are provided for in the
Statute of the Court of Justice, ma y be appealed to the Court of Justice limited to
questions of law, under the conditions and limits provided by the the statute of
the CJEU. The reason for the appeal is limited to the questions of law1, so the
Court cannot rule on the factual issues. In so me cases, however, it is difficult to
do so. distinction between legal and factual issues, so that certain events produced
(and considered as factual issues) can no longer be discussed or questioned again
before the Court of Justice2.
✓ The Court of Justi ce is the court of appeal according to art. 58 -61
Statute of the CJEU . According to art. 56 Statute of the CJEU, the decisions of
the General Court may be appealed against:
– through which the trial is finalized;
– by which the substance of a dispute is pa rtially resolved,
– ending a procedural incident regarding an exception of incompetence
or inadmissibility (art. 56 Statute of the CJEU). The decision may be appealed
within two months of its notification.
✓ Parti es that can appeal to the CJEU. Usually, the appeal can be filed
by any party whose conclusions have been rejected, in whole or in part.
1 C.174/97 P, Féderation Française des Sociétés d’Assurances (FFSA) and others v. Commission ,
decision of March 25, 1988, recital 21 in ECR, 1988 3 (2), 1324.
2 C 53/92 P, Hilte AG v. Commission , decision of March 2, 1994, recital 10 in E CR, 1994 -3, pp.
667-710.
Organizat ion and duties of the European Union institutions 155
From this rule the statute provides for two exceptions, namely:
– natural or legal persons can appeal only if th e decision of the General
Court directly concerns them (Member States and Union institutions do not fall
under this provision);
– with the exception of disputes between the Union and its agents, the
appeal may also be brought by the Member States and the i nstitutions of the Un-
ion which have not intervened in the dispute before the General Court. In this
situation, the Member States and the institutions are in a position identical to that
of the Member States or the institutions that intervene in the first i nstance [art. 56
paragraph (2) and (3) Statute of the CJEU].
Also, any person whose request for intervention has been rejected by the
General Court may appeal to the CJEU within two weeks of the notification of
the rejection request.
The parties to the pro ceedings may bring before the Court an appeal
against the decisions of the General Court – within two months of notification of
these decisions – rendered on the basis of the following provisions1:
– art. 278 TFEU, according to which the Court, in so far a s it considers
that the circumstances impose it, may order the execution of the act to be sus-
pended;
– art. 279 TFEU, pursuant to which, in the cases before it, the Court may
order the necessary interim measures;
– art. 299 TFEU, pursuant to which the Cour t may decide to suspend
forced execution.
✓ Grounds for appeal . The appeal to the Court of Justice is limited to
questions of law. Statute of the Court of Justice – in art. 58 – provides the follow-
ing reasons on which the appeal may be based:
– lack of competence of the General Court;
– failure to comply with the procedure before the court, which harms the
applicant's interests;
– violation of Union law by the General Court.
The appeal cannot exclusively concern the taxes and the costs.
If the appeal is well founded, the CJEU shall annul the decisi on of the
General Court. In this case, the Court may either definitively resolve the dispute
itself, when it is in a court of law, or refer the case to the General Court to rule on
it.
In case of referral, the General Court is bound by the legal issues res olved
by the Court's decision. Also, if an appeal brought by a Member State or an insti-
tution which has not intervened in the dispute before the court is well founded,
the Court may indicate, if deemed necessary, those effects of the annulled deci-
1 Even based on the provisions of art. 157 and art. 164 TEuratom.
156 Ioana Nely Militaru
sion of t he General Court to be considered as definitive for the parties to the dis-
pute (art. 61 Statute of the CJEU)1.
6.6.9. Review by the Court of Justice of decisions taken by the Gen-
eral Court on the basis of the TFEU and the Statute of the Court of Justice
of the EU
The EU Court of Justice has jurisdiction to review the following deci-
sions:
– the decisions given by the General Court following the judgment of the
actions taken against the decisions of the specialized courts, may, exceptionally,
be the subjec t of a review by the Court of Justice of the EU, under the conditions
and limits provided by the statute, in case there is a serious risk for the unity or
coherence of Union law (art. 256 paragraph 2 TFEU);
– the decisions given by the General Court in the preliminary references
may, exceptionally, be the subject of a review by the EU Court of Justice, under
the conditions and limits provided for by the statute, if there is a serious risk to
the unity or coherence of Union law (art. 256 paragraph 3 TFEU).
In the two situations provided by art. 256 paragraph 2 and 3 TFEU, the
first Advocate General may, if he considers that there is a serious risk to the unity
or coherence of Union law, to propose to the Court of Justice a review of the
decision of the Genera l Court (art. 62 Statute of the CJEU).
The proposal must be made within one month of the decision of the Gen-
eral Court. Within one month of the submission of the proposal by the first Ad-
vocate General, the Court shall decide whether or not to review the de cision.
The Court of Justice shall decide on the matters which are subject to re-
view by an urgent procedure on the basis of the file transmitted to it by the Gen-
eral Court.
6.6.10. Preliminary reference to the Court of Justice2
The originality of the leg al system of the European Union is given by the
mechanism of the preliminary reference, an expression of the cooperation be-
tween the national judge and the EU Court of Justice.
1 For the hypothesis in which "the Court itself proceeds to trial", see CJEC 298/93 P. Ulrich Klinche ,
of June 29, 1994, in ECR, 1994 6, 3009 -3036; for the second hy pothesis in which "it sends the case
to the Court …", see CJEC 2599/96 P, Lieve de Nil Council and Christiane Impens , rec. 35 -36, pp.
2456; C. 359/95 (related), Commission and France C Ladbroke Racering Ltd , in ECR, 1994, 6,
3009 -30036.
2 See B. Ștefănescu, op. cit. (Trimiterea prejudiciară. ..), pp. 82 -96; I. N. Militaru, op. cit., (2005) ,
p. 5 et seq.; C. Toader, Despre aplicarea dreptului comunitar de către instanțele naționale , „Revista
de drept comercial” no. 1/2002, p. 21 -30; J. Perte k, op. cit ., p. 4 et seq.; G. Vandersanden, La
procédure préejudicielle: à la recherche d'une identité perdue , in Mélanges en hommage a Michel
Waelbroek, Bruylant, vol. 1, 1999.
Organizat ion and duties of the European Union institutions 157
✓ In this respect, according to art. 19 TEU, "The EU Court of Justice
decides i n accordance with the treaties, as a preliminary matter", at the request of
the national courts, on the interpretation of Union law or on the validity of acts
adopted by the institutions.
The competence of the CJEU in this matter is underlined by art. 267
TFEU, thus, "The EU Court of Justice has jurisdiction to give a preliminary ruling
on:
a. interpretation of the treaties;
b. validity and interpretation of acts adopted by the institutions, bodies,
offices and agencies of the Union;
If such a matter is inv oked before a court of a Member State, that court
may, if it considers that a decision in this regard is necessary for it to issue a
judgment, request the Court to rule with it on this matter.
If such a matter is invoked in a case pending before a national court
whose decisions are not subject to any appeal in national law, this court is bound
to refer the matter to the Court of Justice"1.
The Treaty of Lisbon introduces a new provision concerning the power
to give preliminary ruling, namely, "if such a ma tter is invoked in a case pending
before a national court regarding a person subject to a patent measure freedom,
the Court decides as soon as possible".
✓ It has competence to judge preliminary references, based on art. 267
TFEU, and the General Court, in specific fields established by the Statute2.
If it considers that the case in question requires a decision of principle
likely to undermine the unity or coherence of Union law, the General Court may
refer the case for settlement to the Court of Justice. A s I have shown the decisions
of the General Court in preliminary rulings may, exceptionally, be the subject of
a review by the Court of Justice, under the conditions and within the limits pro-
vided by the statute, if there is a serious risk to the unity or coherence of Union
law.
✓ The purpose of the preliminary reference is to interpret the Union law
(in principle the primary law and the derived law) or to examine the validity of
the acts adopted by the institutions.
The Court of Justice has the power to i nterpret the Treaties, respectively
the primary law (prior to the Lisbon Treaty, the Institutional Treaties of the Com-
munities, the treaties for their revision, as well as the annexes and protocols
adopted on this occasion3).
The Court has the power to int erpret and examine the validity of "acts
adopted by the institutions of the Union", respectively the derivative law. In this
1 Art. 150 TEuratom has a wording similar to art. 267 TFEU.
2 The power to ju dge preliminary references was assigned to the Court of First Instance by the
Treaty of Nice in art. 225 paragraph 1 TEC.
3 CJEC, April 17, 1997, Euronopoulos , aff. 147/95, Rec. p.1 -2057.
158 Ioana Nely Militaru
respect, the Court considers the interpretation and examination of validity for all
categories of acts provided for in article 288 TFEU, including those for which
they do not have the name provided for in the said article, namely "a resolution"
of the Council1.
The Court is competent to interpret "the statutes of the bodies created by
an act of the Council", because they are also acts of an institution, of the Council
(art. 267 TFEU), and "unless there are contrary provisions in that statute" (art.
150 TEuratom).
From the jurisprudence prior to the Lisbon Treaty, the Court has the
power to interpret:
– the international agreements conc luded by the Council, in application
of art. 218 TFEU (formerly article 300 TEC) as well as the association agree-
ments concluded under art. 217 TFEU (ex art. 310 TEC)2;
– the decisions adopted by the bodies created by such association agree-
ments3, includin g joint agreements concluded by the Community/Union and the
Member States with third parties4.
In principle, the Court is not competent to interpret or examine the valid-
ity of conventions concluded between Member States, pursuant to art. 267 TFEU
(because they are neither acts of the institutions nor can they be included in the
law of the Union having a regulatory object that goes beyond the field of Com-
munity integration)5, but the Member States, in many cases, by express provisions
inserted in these conve ntions or in subsequent protocols annexed they gave the
jurisdiction of the Court of Justice also the interpretation of these interstate in-
struments. We exemplify in this regard:
– Brussels Convention of 29 February 1968 on the mutual recognition of
compan ies and legal entities, accompanied by a protocol on its interpretation;
– Brussels Convention of 27 September 1968 on jurisdiction and enforce-
ment of judgments in civil and commercial matters, the interpretation of which is
given in the Court's jurisdicti on, in accordance with the Luxembourg Protocol of
3 June 1971;
– The Rome Convention of 19 June 1980 on the law applicable to con-
tractual obligations, in accordance with two protocols concluded on 19 December
19886.
The aforementioned conventions are sent to the Court for interpretation,
by the courts whose decisions are compulsory, not susceptible of domestic judi-
cial appeal, courts obliged to notify the Court of Justice, by derogation from the
1 CJEC, February 3, 1976, Manghera , aff. 59/75, Rec. p. 91
2 CJEC, A pril 30, 1974, Haegeman , aff. 181/73, Rec. p. 449, CJEC, September 30, 1987, Demirel ,
aff. 12/86, Rec., p. 3719.
3 CJEC, September 20, 1990, Sevince , aff. 192/89, Rec. I -3461.
4 CJEC, June 16, 1998, Hérmes , aff. 35/96, Rec. I -3603 regarding the TRIPS agree ment adopted
by the WTO.
5 See B. Ștefănescu, op. cit. (Trimiterea prejudiciară…), pp. 82 -96.
6 Published in O.J. of E.C. 1989, L. 48, p. 17.
Organizat ion and duties of the European Union institutions 159
provisions of art. 267 TFEU (for example, articles 2 and 3 of the Luxembourg
Protocol of 3 June 1971).
The treaties of the Union are excluded from the competence of examining
the validity of the Court of Justice.
✓ Only the national court – called the national jurisdiction by the treaties
prior to the Lisbon Treaty – is the author of the pre -eminence referral.
The notion of national jurisdiction/national court was defined by the
Court of Justice according to commun ity criteria1: the legal origin and perma-
nence of the jurisdiction body, its compulsory jurisdiction and the contradictory
nature of the procedure for the disputes to be resolved, the way of appointing its
members and its mission of applying the rules of l aw2. Also, the jurisdiction em-
powered to refer the EU Court of Justice must be the one who is called upon to
settle the dispute on the merits3. In this sense, the national jurisdiction can be
administrative, civil, criminal.
Only the national judge has the power to invoke and to refer the matter
to the Court of Justice for a preliminary question, insofar as he considers that the
reference is necessary to give his ruling. The parties to the dispute (substantive)
can only raise the preliminary question before the Court, possibly to propose it to
the national judge. The formulation of the preliminary question and its submis-
sion comes within the competence of the national court, which judges the merits
of the case.
Article 267 TFEU distinguishes between the cour ts that make the refer-
ence for a preliminary ruling to the Court, as they decide, in the first or last in-
stance.
The first, the courts whose decisions are susceptible to appeal, have the
power to refer the matter to the Court, "if it considers that a decis ion in this regard
is necessary for it to render a judgment" [art. 267 (2) TFEU].
The second category of courts are those whose decisions are not subject
to any domestic legal remedy. They are required to refer the matter to the Court
of Justice.
The incid ental nature of the preliminary reference procedure. The
preliminary procedure is an incident to the procedure that takes place before the
national court4.
The initiative to refer the matter to the Court belongs to the national court.
The procedure begins with a suspension of the national procedure, followed by a
referral of a preliminary matter to the Court, whose object is either the interpre-
tation (…) or the validity examination (…).
1 CJEC, June 30, 1966, Vaassen -Gobbles, aff. 61/65, Rec. 377.
2 See M. Voicu, op. cit. , p. 156; I. N. Militaru, op. cit. (Trimiterea preju diciară…), p. 150 et seq.
3 CJEC, May 17, 1994, Corsica Ferries Italy , aff. C -18/93, Rec. I -1783.
4 See I. N. Militaru, op. cit . (Trimiterea prejudiciară…), p. 205: "It is not a contentious procedure
to resolve a dispute between the parties, (…), it is a procedure without parties".
160 Ioana Nely Militaru
The procedure for sending the question in question will be finaliz ed – as
a result of the Court's response, given in the form of a judgment1 – by resuming
the national procedure and by resolving the dispute before the national judge,
according to the interpretation given by the EU Court of Justice2.
✓ The Lisbon Treaty a nd the competences of the Court of Justice within
the former pillars of the European Union
– The Court of Justice of the European Union does not have jurisdiction
over the provisions on the common foreign and security policy – CFSP, nor on
the acts adopted under them. However,
The court is competent to control compliance with the provisions of art.
40 TEU3 and to decide on the actions taken under the conditions provided for in
article 263 par. 4 TFEU (within the actions for annulment), regarding the control
of the legality of the decisions which provide for restrictive measures against the
natural or legal persons adopted by the Council under Title V, Chapter 2 TEU.
In Part III, Title V, Chapters 4 and 5, regarding the area of freedom, se-
curity and justice , the EU Court of Justice is not competent to verify the legality
or proportionality of the operations carried out by the police or other enforcement
services. the law in a Member State and neither to decide on the exercise of the
responsibilities incumben t upon the Member States in order to maintain public
order and to defend internal security.
The Treaty of Lisbon brings an increase in the competence regarding the
control of the legality of acts and has effects on its territory, thus "the Court of
Justice is competent to rule on the legality of an act adopted by the European
Council or the Council pursuant to art. 7 TEU only at the request of a Member
State which is the subject of a finding of the European Council or of the Council
and only in respect of t he procedural provisions provided for in that article. This
request must be submitted within one month from the date of the respective find-
ing. The court shall decide within one month from the date of the request" (art.
269 TFEU).
1 See D. Simon, L'effet dans le temps des arrȇts préjudicielles de la CJCE , in Du droit de 1'intégra-
tion, Liber amicorum Pierre Pescatore , Ed. Baden -Baden, Nomos Verlag, 1987.
2 See A. Barav, Some aspects of the prelimina ry rulings procedure in EEC law , Eur. L. Rev., 1977,
p. 3.
3 The implementation of the common foreign and security policy is without prejudice to the appli-
cation of the procedures and the corresponding scope of the attributions of the institutions provided
for in the treaties in order to exercise the Union's powers provided for in art. 2 -6 TEU. Also, the
implementation of the policies provided for in those articles shall be without prejudice to the appli-
cation of the procedures and the scope applicable to t he attributions of the institutions provided for
in the Treaties in order to exercise the Union's powers under this Chapter (article 40 TEU).
Organizat ion and duties of the European Union institutions 161
6.7. General Court
6.7.1. Regulation. Necessity of establishing the General Court/Court
of First Instance1
The legal basis of the General Court is included in the following provi-
sions:
– art. 254 -257 TFEU;
– art. 40 TEuratom;
– TITLE IV of the Protocol no. 3, annexed to the Treaties, on the Statute
of the Court of Justice of the European Union.
The Court of First Instance (CFI)2 represents the first step towards diver-
sifying the structure of the Community/Union jurisdiction, by redistributing some
competences previously h eld by the Court of Justice for the benefit of other Com-
munity jurisdictions, provided, of course, of protecting the supreme control of the
Court3.
Art. 168A CEE and 32 quinto CECO introduced by the the Single Euro-
pean Act (SEA) have fully fulfilled the c onditions for diversifying the Cornish
jurisdiction. These articles empowered the Council, acting unanimously on the
Court's request and, after consulting the Commission and the European Parlia-
ment, to establish before the Court of Justice a jurisdiction t o examine at first
instance certain categories of litigation subject to an appeal before the CJEC, lim-
ited to the questions of right, under conditions set by the statute.
The CFI was created by the decision of the Council of October 24, 19884,
provided tha t the volume of activity of the Court became incompatible with the
requirements of a good administration of justice5. However, the establishment of
the CFI did not stop the agglomeration of cases with which the Court was con-
fronted6.
1 During the work we used the name of Court of First Instance whenever we referred to the period
prior to the Trea ty of Lisbon.
2 See I.N. Militaru, Tribunalul de Primă Instanță , „Revista de Drept Comunitar” no. 2/2003, pp.
90-103.
3 See G. Isaac, Mark Blanquet, op. cit ., p. 256.
4 O.J. of E.C. no. L319/1 of November 25, 1988.
5 From 1957 to 1987 the number of cases brought before the Court of Justice increased from 130 to
395, and the cases pending on December 31 of each year increased from 318 to 527, and the time
required for settlement was on average from 9 to 22 months for direct actions, and for preliminary
actions from 6 months to 18 months.
6 The Treaty of Maastricht replaced, by a new wording, art. 168A TEC, as in art. 32quinto (TECSC)
and 140A (TEuratom). In the year 2000, despite the transfers of actions to the CFI, the number of
cases brought before the Court amounted to 508, the number of c ases pending on December 31,
2000 to 873, and the average duration of the cases has increased to 21, 5 months for the preliminary
actions and at 24 months for direct actions. We add that, in turn, the CFI has been notified with 387
cases and accumulates on December 31, 2000 a number of 786 pending cases. The average duration
162 Ioana Nely Militaru
Without a doubt, the solutions have not only consisted in the multiplica-
tion of community jurisdictions1, but it is here that the Treaty of Nice finds its
originality.
The agglomeration of cases, characteristic not only of the Court but also
of the General Court, determined th e authors of the Treaty of Nice to provide for
the possibility of creating judicial chambers for first instance analysis of special
litigation (art. 225bis TEC).
A declaration annexed to the treaty stipulates from the outset that one of
these judicial cham bers is competent to settle disputes between the Community
and its officials in the first instance; also, the possible actions in the field of intel-
lectual property, certainly, according to some authors, is another area particularly
conducive to the creati on of these new structures2.
Through the Treaty of Nice, the CFI acquires a more important position
in the Community judicial system, being in the future associated3 with the Court
in the essential mission of "ensuring respect for the law in the interpreta tion and
application of the Treaty"4, thus ceasing to be an auxiliary of the Court. Articles
224 and 225 TEC are applicable to them, except for the exception provided by
the Statute of the Court5.
By the Treaty of Lisbon, the Court of First Instance will h ereinafter be
referred to as the General Court.
6.7.2. Composition, organization and functioning of the General
Court
✓ The General Court6 comprises at least one judge from each Member
State (art. 19, paragraph 2 TEU) and art. 254 TFEU provides that the number of
judges is established in the Statute of the Court of Justice of the European Union.
Article 48 of Protocol no. 3 to this statute, as last amended by Council Regulation
(EU, Euratom) 2016/1192 of 6 July 2016, provides that, the General Court is
composed of 47 judges from 1 September 2016 and from two judges for each
of the procedure (in the case of the CFI) increased from 23.4 months in 1993 to 27.5 months in
2000. For the excessive duration of one of the processes (5 years and 6 months), the CFI w as even
criticized by some Court, holding it responsible for violating the "reasonable time principle" (prin-
ciple arising from Article 6 of the European Convention on Human Rights; see, to that effect, CJEC
December 17, 1988, Baustahlgewebe v. Commission , aff. C -185/95 P, Rec.I -8485; G. Isaac, M.
Blanquet, op. cit ., p. 258).
1 CJEC, L'avenir du système jurisdictionnel de l'Union européenne , summary document presented
to the Council of the European Union on May 27, 1999, in G. Isaac, M. Blanquet, op. cit ., p. 258.
2 See G. Isaac, M. Blanquet, op. cit ., p. 259.
3 By amending art. 220 TEC, through the Treaty of Nice, both the Court of Justice and the CFI
assure each, within its competence, that, in the interpretation and application of the Treaty, the right
is respected.
4 Art. 220 TEC, according to the Treaty of Nice.
5 See G. Isaac, M. Blanquet, op. cit. , p. 275.
6 Article 48 of the Statute of the CJEU.
Organizat ion and duties of the European Union institutions 163
Member State starting with September 1, 2019.
The members of the General Court, the judges and the general counsel
are chosen from the persons who present all the guarantees of independence and
who have the required capacity for the exercise of high judicial functions (condi-
tions stipulated in art. 254 T FEU).
Also, the members of the General Court are chosen from the personalities
that fulfill the conditions required for the exercise, in their countries, of the high-
est jurisdictional functions or who are jurisconsulates whose competences are
recognized (a rt. 253 par. 2 TFEU).
Like the members of the CJEU, the members of the General Court are
jointly appointed by the governments of the Member States for a period of six
years, after consulting the committee (provided for in art. 255 TFEU). Every three
years a partial replacement takes place.
Members who have completed their term of office may be reappointed.
The number of judges of the General Court is established by the Statute
of the CJEU. The Statute may provide for the General Court to be assisted by
Advo cates General (art. 254 TFEU).
Judges may be required to act as Advocate General because, unlike the
Court of Justice, the General Court does not have permanent attorneys’ general.
The Advocate General has the role to present, in a public hearing, with
full impartiality and complete independence, the reasoned conclusions regarding
certain cases submitted to the General Court, to assist him in the fulfillment of
his mission.
The criteria for the selection of cases, as well as the methods of appoint-
ing the Ad vocates General, were established by the Rules of Procedure of the
General Court. A member of the General Court called to exercise the office of
Advocate General in a case may not take part in the trial of that case.
✓ The judges shall appoint the President of the General Court from
among them for a period of three years. His term of office may be renewed.
The judges, attorneys’ general and the clerk reside at the headquarters of
the Court of Justice.
Its functional in dependence – of the General Court – is guaranteed by the
existence of a separate Registry, under the leadership of which the General Court
appoints the Registrar, to whom it establishes its status.
The President of the Court of Justice and the President of the General
Court jointly determine the ways in which officials and other agents attached to
the Court provide their services to the Court to ensure its functioning (library,
research, translation, interpretation).
✓ The General Court establishes its rules of procedure in agreement with
the Court of Justice. This regulation is submitted for approval to the Council,
which decides.
✓ The General Court meets in chambers composed of three or five
164 Ioana Nely Militaru
judges. The judges choos e the presidents of the chambers.
The presidents of the chambers of five judges are elected for three years.
Their term of office may be renewed once.
The Rules of Procedure establish the composition of the chambers and
the distribution of cases to them.
When the Rules of Procedure establish, the General Court may meet in
plenary or with a single judge1.
The General Court may also meet in the Grand Chamber, in the cases and
conditions provided by the regulation2.
The Treaty of Nice brings the organization o f the General Court closer to
that of the Courtof Justice, especially through the new art. 224 TEC, which admits
that the statute provides for the assistance of the CFI by the general counsel and
by the conditions of appointment of judges, appointment that refers to the quali-
fication required for the exercise of the high jurisdictional functions3. These as-
pects are also maintained by the Lisbon Treaty art. 19 paragraph 2 TEU and art.
254 TFEU).
The specificity and extension of the General Court's missions l ead to a
specific solution regarding you the number of its judges, in support of these con-
clusions the provisions of art. 19 paragraph 2 TFEU, which provides that "the
General Court shall comprise at least one judge from each Member State".
It follows that the number of CFI judges in each Member State may be
higher than that of the judges of the Court of Justice.
✓ Unless the Statute of the CJEU provides otherwise, the provisions of
the TFEU concerning the Court of Justice shall also apply to the General Court.
6.7.3. Jurisdiction of the General Court
✓ In the Preamble of the decision no. 88/24 October 1988, esta blishing
the CFI, in the last paragraph the material competence of the General Court is
specified as a power of attribution4.
According to this decision, the Council, acting unanimously on the re-
quest of the Court of Justice and after. after consulting th e European Parliament
and the Commission, it established the categories of actions at first instance which
fall within the jurisdiction of the General Court:
1. Art. 168A, in the version of the SEA, authorized the transfer to the CFI
of all the actions for mulated by the natural or legal persons. But, by its decision
1 Article 50 paragraph (2) of the Rules of Procedure (as amended by the Rules of Procedure of 17
May 1999 ). See R. Munoz, Le système de juge unique pour le reglèment d'un problème multiple,
l’encombrement de la CJCE et du TPI , R.M.C. no. 444/2001, p. 60.
2 Article 50 par. 2 of the Rules of Procedure.
3 See G. Isaac, M. Blanquet, op. cit ., p. 276.
4 See O. Ma nolache, op. cit. , p. 139.
Organizat ion and duties of the European Union institutions 165
of October 24, 19881, the Council decided only the transfer of actions that take a
long time to resolve2 and for which complex facts are frequently required to be
examined. These actions are as follows:
With the main title, the Court can resolve:
– disputes between the Communities and their agents3 and art. 152 TEur-
atom – referred to as personnel cases, including action for liability;
– the actions for annulment brought against a Community institution b y
the natural or legal persons4 and the deficiency action5 regarding the implemen-
tation of the competition rules applicable to the companies.
By way of accessory and for obvious reasons of simplification, the
General Court may also prosecute the actions for liability6, which seek to repair
the damages caused by a community institution by an action or inaction which
are the subject of an action for annulment or default introduced by the same ap-
plicant (see the main competence of the General Court).
2. By a nother decision, from June 8, 19937, the Council transferred8 to
the jurisdiction of the General Court – which is equivalent to an extension of its
competence – the actions for annulment9, deficiency10 and liability11 introduced
by natural or legal persons b ased on the provisions of the three treaties, including
on the basis of a compromise clause12.
3. Based on art. 168A, in the version of the TEU, which has become 225
TEC, the transfer may be extended in the future to all other direct actions, that is
to tho se introduced by the Member States and institutions, because the Treaty
only reserves the Court only for preliminary references.
Regarding this aspect, the Treaty of Amsterdam does not make any
changes.
The Treaty of Nice not only makes CFI a genuine commu nity law judge
at first instance for all direct actions, but extends its competence "to examine
preliminary issues in specific matters determined by statute" (according to art.
1 OJEC no. L 319/1 of November 25, 1988.
2 See G. Isaac, M. Blanquet, op. cit ., p. 276.
3 According to art. 236 TEC, at present art. 270 TFEU, ie the dispute between the Union and its
agents.
4 According to art 230 TEC, at presen t art. 263 TFEU.
5 According to art. 232 TEC, at present art. 265 TFEU.
6 According to art. 235 and art. 288 TEC, at present art. 268 and art. 340 TFEU.
7 O.J. of E.C. no. L 144/21 of June 16, 1993; Decision no. 93/350 of June 8, 1993.
8 This transfer was to take effect from 1 August 1993, with the exception of actions against Com-
munity trade defense measures (art. 74 TECSC, art. 113 TEC) for which on 15 March 1994 the
Council was unanimously retained. This date was fixed by Decision no. 94/149 of March 7, 1994,
which amended Decision no. 93/350.
9 Art 230 TEC, at present art. 263 TEUE.
10 Art. 232 TEC, at present art. 265 TFEU.
11 Art. 235 and art. 288 TEC, at present art. 268 and art. 340 TFEU.
12 Art. 238 TEC, at present art. 272 TFEU.
166 Ioana Nely Militaru
234 TEC1 in conjunction with Article 225 TEC2).
It can be added that, according to art. 225A paragraph (3) TEC, the deci-
sions of the judicial chambers may be subject to a limited appeal to legal issues
or, when the decision to set up the chamber so provides, a right of appeal also to
the questions of fact, to the Court of First Insta nce (CFI).
✓ The new competences of the CFI, according to the Treaty of Nice, also
concern the decisions of the Court of First Instance pronounced on the prelimi-
nary issues. They may be subject, under the conditions provided for in the statute,
to an excep tional review by the Court, "in the event of a serious risk of affecting
the unity or coherence of Community law" (art. 225 paragraph 3 TEC).
The appeal will be limited to legal matters only. As a result, only unlaw-
ful reasons may be invoked: incompetence of the CFI, failure to comply with the
procedure in front of it, prejudicing the appellant's interests and violation of Com-
munity law by the CFI. Also, the CFI is a court of appeal regarding the decisions
of the judicial chambers (art. 225A TEC).
✓ According to the Treaty of Lisbon, the extended competences of the
General Court, as regulated by the Treaty of Nice, are maintained, with the cor-
responding changes in the judicial structure of the Union.
The General Court has the power to judge in the f irst instance the actions
for annulment (art. 263 TFEU), in default (art. 265 TFEU), in the repair of dam-
ages (art. 268 and art. 340 TFEU) those born under a compromise clause (art. 272
TFEU) and disputes between the Union and its agents (art. 270 TFEU), e xcept
those assigned to a specialized court, established in accordance with art. 257
TFEU, and those reserved by the Statute of the Court of Justice.
Article 1 of Annex 1 of the Statute of the CJEU assigns to a specialized
court, respectively to the Civil Service Tribunal, for settlement in the first in-
stance:
– disputes between the Union and its officials (according to art. 270
TFEU);
– disputes between any organs, offices or agencies and their officials.
According to art. 51 paragraph (1) of the Statute of the CJEU, the actions
for annulment (art. 263 TFEU) and in default (art. 265 TFEU) are reserved to the
EU Court of Justice when they are brought by a Member State against:
a) an act or an abstention from the decision of the EP or the Council or
the two institutions together, except:
– the decisions adopted by the Council according to art. 108 paragraph
(2) TFEU;
– the acts of the Council adopted pursuant to a Council regulation on trade
defense measures within the meaning of art. 207 TFEU;
– the acts of the Council by which it exercises its powers of execution in
1 Currently art. 267 T FEU.
2 Currently art. 256 TFEU.
Organizat ion and duties of the European Union institutions 167
accordance with art. 291 paragraph (2) TFEU.
b) an act or an abstention to decide on the Commission pursuant to art.
331 paragraph (1) TFEU.
Also, the CJEU is reserved for the same actions mentio ned above when
they are brought by an institution of the Union against an act or an abstention
from the decision of the EP or the Council, the two institutions together or the
Commission, or are introduced by an institution of the Union against an act or a n
abstention from deciding the European Central Bank [art. 51 paragraph (2) of the
Statute of the CJEU].
Therefore, the General Court is competent to judge, in the first instance,
in the category of actions for annulment and in default, those introduced by the
natural and legal persons (the category of privileged complainants).
6.8. The specialized courts
✓ Establishment of specialized courts.
The specialized courts are set up by the European Parliament and the
Council, which decide in accordance with the ordinary legislative procedure. The
European Parliament and the Council shall act by regulations, either on a proposal
from the Commission and after consulting the Court of Justice, or at the request
of the Court of Justice and after consulting the Commis sion.
The specialized courts operate in addition to the General Court.
✓ Composition and competence of specialized courts.
The rules regarding the composition of this court and the extent of the
powers assigned to it are established by the regulation establishing the specialized
court.
The members of the specialized court are chosen from persons who offer
full guarantees of independence and who have the required capacity for exercis-
ing judicial functions. They are appointed by the Council, which decides unani-
mously.
The specialized courts are competent to judge in the first in stance certain
categories of actions in special matters (art. 257 TFEU).
The decisions of the specialized courts may be subject to an appeal to the
General Court, limited to questions of law or, if the regulation on the establish-
ment of the specialized cou rt so provides, and to matters of fact.
The specialized courts shall establish their rules of procedure in agree-
ment with the Court of Justice. This regulation is approved by the Council. The
provisions of the treaties relating to the Court of Justice of t he EU and the provi-
sions of the Statute of the CJEU also apply to specialized courts, unless the reg-
ulation establishing it provides otherwise.
Also, the provisions of the Treaties on the Court of Justice of the EU and
the General Court, regarding the stat us of judges and advocates general, including
168 Ioana Nely Militaru
the language regime of the CJEU, also apply to specialized courts (Title I and art.
66 CJEU Statute). A specialized court is the Civil Service Tribunal of the Euro-
pean Union.
✓ The Treaty of Nice envisaged the establishment of independent and
specialized judicial chambers in some technical disputes1.
This line of concern includes the Declaration annexed to the Treaty of
Nice regarding the request made by the Conference of the representatives of the
governments of the Member States, the Court of Justice or the Commission, to
prepare as soon as possible a draft decision for the creation of a competent judicial
chamber to resolve in the first instance disputes between the Community and its
officials2.
The decisions of these judicial chambers could be the subject of an appeal
limited to the problems of law or, when the decision to establish the chamber so
provides, of an appeal concerning the factual issues, to the Court of First Instance
[art. 225A paragraph (3) TCE ].
6.8.1. Civil Service Tribunal of the European Union (CSTEU)
Following the Declaration – annex to the Treaty of Nice regarding the
article that considered the judicial chambers (art. 225A TEC), the Council Deci-
sion no. 2004/752CE of November 2, 2004, which regulates the establishment of
the Civil Service Tribunal, renouncing the name of court room. It was designed
to be organized by the Court of First Instance, now by the General Court.
The Civil Service Tribunal is regulated by the Annex to the Statu te of the
Court of Justice of the European Union.
✓ Composition of the EU Civil Service Tribunal.
The Tribunal is made up of seven judges whose number can be increased
by the Council (which decides by qualified majority) at the request of the Court
of Justice. The term of office of the judges is six years with the possibility of
being renewed.
Any vacancy is filled by the appointment of a new judge for a period of
six years.
The members of the EU Civil Service Tribunal are chosen from the per-
1 Thus, "The Council, acting unanimously, on the basis of a Commission proposal and after con-
sulting the Parliament and the Court of Justice or on the basis of a request from the Court and after
consulting the Parliament and the Commission, may establish judicial chambers responsible for
resolving at first instance certain categories of actions introduced in specific fields" (art. 225A
TEC).
2 In the legal literature it has been shown that litigation in the field of intellect ual property could be
transferred from the ICC within the jurisdiction of a judicial chamber, for example actions relating
to Community trade marks, or to be assigned litigation regarding the Community patent. See O.
Manolache, op. cit ., p. 151.
Organizat ion and duties of the European Union institutions 169
sons who offer full guarantees of independence and who have the r equisite ca-
pacity for the exercise of judicial functions, after consulting a committee set up
under art. 3 paragraph 3 of Annex to the Statute of the CJEU, according to art.
257 paragraph 4 TFEU.
After the above conditions are met, the judges are appointed by the Coun-
cil.
When appointing judges, the Council ensures the most balanced compo-
sition of the EU Civil Service Tribunal on the widest possible geographical crite-
rion between the nationals of the Member States and with regard to the national
legal syste ms represented (Article 3, paragraph 1, Statute of the CJEU).
Any person who is a citizen of the European Union who fulfills the con-
ditions stipulated in art. 257 paragraph 4 TFEU. The Council, acting on the rec-
ommendation of the CJEU, determines the condi tions and modalities for the sub-
mission and processing of these applications (Article 3 paragraph 2 Annex to the
Statute of the CJEU).
The committee consulted by the Council for the appointment of the
judges of the EU Civil Service Tribunal consists of sev en persons selected from
among the former members of the Court of Justice and of the General Court and
from jurists recognized for their competence. The appointment of the members
of the committee and the operating rules are determined by the Council, acti ng
on the recommendation of the President of the CJEU (art. 3 paragraph 3, Annex
to the Statute of the CJEU).
The Committee shall give its opinion on the suitability of the candidates
to act as judge of the EU Civil Service Tribunal1.
The judges elect the president of the Civil Service Tribunal for a term of
three years. The president can be re -elected.
✓ Operation of the the EU Civil Service Tribunal (EUCST). The
EUCST judges in chambers of three judges. Its Rules of Procedure provide in
certain cases to adjudicate cases in plenary, in a chamber composed of five judges
or a single judge.
The Civil Servic e Tribunal is supported by the services of the Court of
Justice and the General Court.
The President of the Court of Justice or, as the case may be, the President
of the General Court, shall agree with the President of the EUCST, the conditions
under which officials and other servants of the Court of Justice or the General
Court contribute to the functioning of the Civil Service Tribunal. Certain officials
or other officers are subordinate to the EUCST Registrar, under the authority of
its President.
The EU CST appoints the Registrar and establishes its status.
1 The Comm ittee attaches to its opinion a list of candidates with the most appropriate high level
experience. Such a list contains the names of at least twice as many candidates as the number of
judges to be appointed by the Council (Article 3, paragraph 4, Statute of the CJEU).
170 Ioana Nely Militaru
The judges, the Advocates General and the EUCST Registrar reside at
the headquarters of the Court of Justice.
✓ EUCST competence . The EU Civil Service Tribunal exercises in the
first instance:
– disput es between the Union and its officials pursuant to art. 270 TFEU
and art. 152 TEuratom, including in:
– disputes between any bodies, offices or agencies and their officials, on
which the Court of Justice was competent until the establishment of the Civil
Service Tribunal.
Decisions given by the Civil Service Tribunal in the exercise of its juris-
dictional powers may be appealed against before the General Court, being limited
to questions of law.
According to art. 11 paragraph (1) of the Statute of the CJEU -Annex, the
appeal may be founded on the following grounds:
– lack of competence of the Civil Service Tribunal;
– infringement of the procedure before the Court of First Instance which
prejudices the interests of the party concerned;
– infringement of Union law by the Civil Service Tribunal.
When the appeal is well founded, the General Court annuls the decision
of the EUCST and decides on the dispute itself. It sends the case to the EUCST
for re -examination in case the dispute is not in court.
When the case i s referred to the EUCST for re -examination, it is held by
the disassociation given to the legal issues by the decision of the General Court
(art. 13 paragraph 2 Annex to the Statute of the CJEU).
As we have shown, the Civil Service Tri bunal of the European Union
was created in 2004, with the mission of judging disputes between EU institutions
and their staff when they did not fall within the competence of a national court.
In order to increase the total number of judges of the Court of Justice, the
Civil Service Tribunal was dissolved on 1 September 2016 and integrated into
the General Court, by Regulation (EU, Euratom) 2016/1192 of the European Par-
liament and of the Council of 6 July 2016 on the transfer to the General Court of
jurisdic tion to decide at first instance in disputes between the European Union
and its agents1 (thus the Council Decision 2004/752/EC, Euratom establishing the
Civil Service Tribunal of the European Union was repealed).
The cases pending before the Civil Service Tribunal on August 31, 2016
were transferred to the General Court, with effect from September 1, 2016. The
General Court must continue to judge these cases from the stage they are in, and
the procedural steps performed by the former Civil Service Tribunal remain in
force (they are applicable), which is why the section on the Civil Service Tribunal
remains in this paper.
If a case has been transferred to the General Court after the hearing, the
1 See U. Bux, April 2017, op. cit .
Organizat ion and duties of the European Union institutions 171
oral phase of the proceedings will not be reopened1.
Therefore, a transitional regime was introduced for appeals under review
if jurisdiction was transferred on September 1, 2016 or after that date against de-
cisions of the Civil Service Tribunal2. The General Court will continue to have
jurisdiction to hear and adjudic ate in these appeals. For the reasons shown, art. 9 –
12 Annex I to the Statute of the Court should remain applicable to the procedure
in question.
6.9. The contribution of the Court of Justice of the European Union
in the integration process
European inte gration is a process in which the Court of Justice by its
judgments created not only principles with general validity, but also principles
applicable in specific fields, which the Treaties did not provide as such in its reg-
ulations, these being conceived i n practice – with the value of necessity and con-
tinuity – on the occasion of the cases with which the Court of Justice was referred.
The Court being the only one able to confirm them by its rulings has created
precedents. Subsequent to the decisions adopte d by it, the subsequent treaties in-
cluded them in its provisions, in the annexes or in the declarations that accompa-
nied the treaties, having the same legal force with them.
We mention by way of example3:
1. decisions of general value:
– the judgment give n in the Costa/Enel case (on July 15, 1964) mainly
created priorities for the Community law of the Union in relation to the national
law of the Member States;
– the judgment in Van Gend & Loos (5 February 1963) established the
principle that Community/Unio n law is directly applicable in the territory of the
Member States, with the obligation to be recognized, as such – directly applicable
by the national authorities of the Member States, respectively their national
courts;
– the judgment given in the Nold case (on May 14, 1974) stated that the
fundamental human rights are an integral part of the general principles of law
whose respect it ensures.
2. decisions with principle value in specific areas provided by the treaties:
– the judgment given in the Royer case (on April 8, 1976), in the field of
"Right of establishment" in which it was asserted "the right, for a national of one
Member State, to stay in the territory of another Member State, independent of
the residence permit issued by the host state";
– the judgment given in Cassis de Dijon (on 20 February 1979), in the
1 Idem .
2 Idem .
3 Idem .
172 Ioana Nely Militaru
field of "Free movement of goods", which stated that "any product manufactured
legally and marketed in a Member State must, in principle, be admitted to the
market any other Member State";
– AETR decision delivered in the Commission/Council case (on March
31, 1971), in the field of "External jurisdiction of the Community", by which "the
Community is recognized as having the power to conclude international agree-
ments in the fields covered by Co mmunity regulations";
– the judgment given in Bosman case (1995) in the field "Free movement
of persons", which stated that "professional sport is an economic activity whose
exercise cannot be hampered by rules of football federations, which regulate the
transfer of players or limit the number of nationals of other states".
– the judgment given in Francovich et al. case (1991), in which the Court
of Justice developed the principle "liability of a Member State to natural persons
for the damages caused to the m by failing to fulfill their obligations to transpose
a directive into national law, or to transpose it within the time limit stipulated in
its content". In this decision, the Court has ruled, in principle, the obligation to
make a claim for the Member St ates that have not transposed or delayed the di-
rectives in the national legislation;
– the judgment given in the Defrenne case (1976) in the field of "Social
security", regarding the equal remuneration of men and women;
– the decision given in the BECTU case (2001), in the field "Workers'
health and safety", etc.
By stating the principle that "treaties should not be interpreted rigidly,
but must be viewed in the context of the integration stage and the objectives they
set", the Court "opened" the Community the possibility to legislate in areas where
the treaties did not provide for provisions specific, for example, that of combating
pollution. Thus, by the judgment given in case C -176/05 of 13 September 2005,
the Court of Justice authorized the European Unio n to take legal measures of
criminal law when they are considered necessary to achieve the objective pursued
with regard to environmental protection.
Chapter 7. The Court of Auditors of the European Union
7.1. Regulation of the institution of the EU Court of Auditors
The legal basis of the institution of the Court of Accounts of the EU is
included in the provisions of art. 285 -287 TFEU.
The system of integral financing of the Union budget through its own
resources – following the Council decision of 19701 – and the enlargement of the
powers of the European Parliament in matters of budgetary control required the
establishment of the Court of Accounts in order to organize an external financial
control, more stable than the one organized by the Communiti es. European. The
Court of Accounts replaced the Audit Office of the European Communities, con-
stituted by TCEE and TEuratom and the Financial Audit Office of the ECSC2.
Along these lines, the budgetary powers of the European Parliament (re-
spectively the re sponsibility of this institution to grant discharge to the Commis-
sion for the implementation of the budget), by the Treaties of Luxembourg and
Brussels, of April 22, 1970 and July 22, 1975 (also called the Treaties) budget).
✓ By the budgetary treaty of 1975, which entered into force in 1977, at
the proposal of the Parliament, the Court of Accounts is set up, so that, by TMs,
in 1993, the Court of Accounts acquires the status of institution of the European
Communities. The EC Treaty mentions this in art. 7 par. 1, in presenting the in-
stitutional mechanism of the Union with the purpose of accomplishing the tasks
entrusted to the Community.
The institution of the Court of Accounts is regulated by art. 285 -287
TFEU and its Rules o f Procedure – Official Journal of the European Union 103/1
of 23 April 2010, entered into force on 1 June 2010.
7.2. Composition and organization of the Court of Accounts
The Court of Accounts is organized and functions as a collegial body3,
comprising: its members and its president. The members shall form, according to
the organizational structure of the Court, chambers and committees, and the Court
shall appoint from among its members by secret ballot a Secretary -General, in
accordance with the procedu re established in the implementing rules4.
✓ The Court of Accounts is composed of one national from each Member
1 Decisions on own resources followed in 1976, 1985, 1988, 1994, 2000.
2 See D.M. Tilea, Strategic priorities regarding the higher education financing within European
Union , „Metalur gia Intemational”, Special Issue nr. 5/2010, pp. 139 -143.
3 See art. 1 of the Rules of Procedure of the EU Court of Auditors, which refers to the Treaties
(TEU and TFEU), the Financial Regulation and the Rules of Procedure of the EU Court of Auditors.
4 See art. 13 paragraph (1) of the rules of procedure of the EU Court of Auditors.
174 Ioana Nely Militaru
State, ie 28 members currently, whose term of office is six years with the possi-
bility of being renewed.
According to art. 286 TFEU, "the members of the Court of Auditors are
chosen from persons who are part of or have been part of the external control
institutions in their countries, or who have a special qualification for this function.
They must provide all guarantees of independence".
Each Member State proposes a list of members, which is adopted by the
Council, after consulting the EP [art. 286 paragraph (2) TFEU]. The members of
the Court of Accounts are appointed for a period of six years. Their term of office
may be renewed.
The conditions of employment and, in particular, the remun eration, al-
lowances and pensions of the president and the members of the Court of Accounts
are established by the Council, which decides by qualified majority. By the same
majority, the Council shall decide on any allowance for remuneration.
As European Co mmissioners, the members of the Court of Auditors:
– exercises its functions in complete independence, in the general interest
of the Union (art. 285 TFEU);
– does not request or accept instructions from any government or another
body, in carrying out thei r duties [art. 286 paragraph (3) TFEU].
They refrain from any act incompatible with their duties.
Like the members of the Court of Justice, the members of the Court of
Accounts:
– during their term of office, they may not engage in any other profes-
sional a ctivity, whether paid or not;
– when installing in office, solemnly undertakes to respect, during the
term of office and after its termination, the obligations resulting from the man-
date, and in particular, the obligation to show honesty and prudence in ac cepting
certain functions or benefits after the termination of their position.
Also, the provisions of the Protocol (No. 7) on the privileges and immun-
ities of the European Union applicable to the judges of the Court of Justice are
also applicable to the m embers of the Court of Accounts.
The termination of the function is similar to that of the members of the
Commission except the termination of the function by the vote of distrust of the
specific Parliament only Committees. Thus the function of the members of the
Court of Accounts ceases:
– through regular renewal and death;
– individually, by voluntary resignation;
– individually by dismissal or can be declared forfeited from the right to
retirement or other equivalent benefits only if the Court of Justice finds, at the
request of the Court of Accounts, that they have ceased to comply with the con-
ditions required or to fulfill the obligations arising from their function [art. 286
paragraph (6) TFEU]. The dismissal or forfeiture of rights is declared by the EU
Court of Justice. The person concerned shall be replaced until the end of the term.
Organizat ion and duties of the European Union institutions 175
Except for dismissal, the members of the Court of Accounts will remain in office
until they are replaced.
The conditions for employment and, in particular, the salaries, allow-
ances and pensions of the President and of the members of the Court of Accounts,
including any remuneration that takes place in remuneration, are established by
the Council.
✓ The members of the Court of Accounts shall appoint the President from
among them for a period of three years. His term of office may be renewed. The
President of the Court has the following powers1:
– convenes and presides over the meetings of the Court and ensures the
proper conduct of the debates;
– ensures the application of the decisions of the Court;
– it ensures the good performance of the Court's services, as well as the
good management of its different activities;
– designates the agent responsibl e for representing the Court in any dis-
pute in which it is involved;
– represents the Court in external relations and especially in relations with
the discharge authority, the other institutions of the Union and the audit institu-
tions in the Member States.
The President may delegate part of his duties to one or more members.
In order to exercise the competence to adopt certain categories of reports
and opinions, in accordance with art. 287 paragraph (4) TFEU, the Court of Ac-
counts establishes internal chamb ers2.
The competences of the different chambers are distributed by the Court
at the proposal of its president.
The chambers adopt reports and opinions, with the exception of the an-
nual report on the general budget of the Union and the annual report on Euro pean
development funds3. The chambers have the responsibility to carry out the prep-
aration tasks related to the documents that are the subject of adoption by the
Court, including the draft observations and opinions, the proposals of activity
programs and o ther audit documents4.
In accordance with the provisions set out in the implementing rules, com-
mittees are set up, which have the responsibility to carry out the tasks of preparing
certain documents provided by the rules of procedure5.
✓ The Court appoints a Secretary -General responsible for the Secretariat
of the Court. The Secretary General is responsible for managing the staff and
1 See art. 9 of the Rules of Procedure of the Court of Accounts.
2 See art. 11 paragraph (1) and (2) of the Rules of Procedure of the Court of Accounts.
3 The reports and opinions are adopted in accordance with the provisions provided in the imple-
menting rules [art. 11 paragraph (1) of the Rules of Procedure of the Court of Auditors].
4 See art. 11 paragraph (3) of the Rules of Procedure of the Court of Accounts.
5 Idem .
176 Ioana Nely Militaru
administering the Court, as well as any other tasks assigned to it by the Court.
Thus, at the proposal of the Secretary -General, the Court allocates the positions
listed in the personnel scheme.
7.3. Operation of the EU Court of Auditors
✓ The Court establishes the provisional calendar of its meetings once a
year, before the end of the previous year.
At the initiative of the President or at the request of at least a quarter of
its members, the Court may hold additional meetings. The President shall draw
up the agenda of each meeting.
The decisions of the Court shall be adopted:
– in the meeting;
– in written procedure. The Court shall, depending on the case, determine
the decisions to be taken by written procedure1.
The sittings of the Court shall be presided over by the President. Court
hearings are not public, they are closed, except where the court provide s other-
wise2.
The quorum required for deliberation shall be established at two thirds of
the members of the Court. A report shall be prepared for each sitting of the Court.
✓ The court makes its decisions in the college, after having examined
them in a ch amber or a committee3.
The decisions are taken by the Court, as follows:
– with the majority of the votes of the members that compose it, in case
of adopting the annual reports, of the special reports or opinions [art. 287 para-
graph (4) TFEU4] and the sta tement of assurance regarding the veracity of the
accounts [art. 287 paragraph (1) TFEU];
– with the majority of the votes of the members present at the Court's
sitting, in the case of other acts5. In this situation the vote of the president is de-
cisive in case of equality of votes.
The chambers make decisions with the majority of the votes of the mem-
bers that compose them. In case of equality of votes, the vote of the dean or of
the member assuring his interim is decisive. The decisions of the private cham-
bers adopt the reports and opinions6, except the annual report on the general
1 The detailed rules of this procedure are set out in the implementing rules. See, in this regard, art.
25 paragraph (5) of the Rules of Procedure of the Court of Accounts.
2 See art. 22 of the Rules of Procedure of the Court of Accounts.
3 Except for t he decisions that must be taken as the authority empowered to make appointments or
the authority authorized to conclude employment contracts. See, in this regard, art. 25 paragraph
(1) of the rules of procedure of the EU Court of Auditors.
4 See art. 25 pa ragraph (2) of the Rules of Procedure of the Court of Accounts.
5 See art. 25 paragraph (3) of the Rules of Procedure of the Court of Accounts.
6 See art. 11 paragraph (1) of the Rules of Procedure of the Court of Accounts.
Organizat ion and duties of the European Union institutions 177
budget of the EU and the annual report on the European development funds.
All members of the Court may attend the meetings of a chamber, but may
vote only in the chambers of whic h they are members. The committees make
decisions under the same procedure for the adoption of decisions by the cham-
bers, unless otherwise provided in the implementing rules.
✓ Reports, notices, observations, statements of assurance and other doc-
uments tha t are subject to publication are prepared in all the official languages of
the EU. The rules regarding their transmission and publication are established by
the implementing rules set by the Court.
7.4. Duties of the Court of Auditors of the European Unio n
7.4.1. Regulation and definition of the tasks of the Court of Auditors
of the European Union
The Court of Auditors of the European Union is responsible for the audit
of EU finances. As an external auditor of the European Union, it contributes to
impro ving the EU's financial management and plays an independent guardian of
the financial interests of the citizens of the Union1.
"The Court of Auditors ensures the control (audit) of the Union's ac-
counts" (art. 285 TFEU) – it is the provision that essential ly expresses the com-
petence of the institution, so that, in the following articles, it details the control it
performs.
According to art. 287 TFEU, the control power of the Court of Accounts
consists of the following:
1. The Court shall verify all the Unio n's revenue and expenditure ac-
counts, including any body, office or agency established by it, in so far as the
instrument of incorporation does not exclude such control. In this regard, the
Court of Accounts presents to the European Parliament and the Coun cil a state-
ment of assurance regarding the veracity of the accounts (known as "DAS", from
the French term "declaration of assurance")2, as well as the legality of the trans-
actions and their registration in accounts, declaration published in the Official
Journal of the European Union [art. 287 paragraph (1) TFEU and art. 319 para-
graph (1) TFEU]. The statement can be supplemented with specific assessments
for each major area of activity3;
2. The Court examines the legality and the correctness of the incomes
and expenses and ensures the sound financial management. In this regard, the
1 See R. Verdins, June 2017, Fișe tehnice cu privire la Uniunea Europeană, Curtea de Conturi a
Uniunii Europene, http://www.europarl.europa.eu/aboutparliament/ro/displayFtu.html?ftuld=FTU
_1.3.12.html.
2 About "Statement of assurance and error rate", see, for details, R. Verdins, 06. 2017, op. cit ..
3 See D. M. Tilea, Tendințe actuale in auditul intern (evolutie, perspectivă, auditul intern pe plan
mondial) , „Monthly magazine of quality management”, vol. no. 113/Special -2010, pp. 1263 -1276.
178 Ioana Nely Militaru
Court of Accounts reports any irregularities. Revenue control is carried out both
on the basis of the revenues to be achieved and on the basis of those actually
achieved by the U nion. The control of the expenses is made on the basis of the
commitments made, as well as on the basis of the payments made.
In such cases, the control is carried out on the basis of the documents and
information that are made available to them, and when necessary, checks can be
carried out on the spot, by checks at the premises of any natural and legal person
benefiting from payments from the budget. Therefore, these checks can be carried
out before the accounts of the budget year in question are conclude d.
The control shall be carried out on the supporting documents and, if ap-
plicable, on the spot, at the other institutions of the Union, at the premises of any
body, office or agency that administers revenue or expenditure made on behalf of
the Union and i n the Member States, including the premises of any natural person.
or legal entities that benefit from payments from the budget [art. 287 paragraph
(3) TFEU].
In the Member States, the control is carried out in collaboration with the
national control insti tutions or, if they do not have the necessary competences,
with the competent national services [art. 287 paragraph (3) TFEU].
In order to fulfill its mission, the Court of Accounts and the national con-
trol institutions of the Member States practice cooper ation based on their confi-
dence and respect for their independence. If these institutions or services intend
to participate in the control, inform the Court of Accounts.
The Court of Auditors has the right to request to be communicated any
document or info rmation necessary for the fulfillment of its mission by the other
institutions of the Union, by any body, office or agency that manages income or
expenses on behalf of the Union, by natural or legal persons benefiting. of pay-
ments from the budget and by th e national control institutions or, if they do not
have the necessary competences, by the competent national services [art. 287 par-
agraph (3) TFEU].
The Court has no powers of inquiry. Therefore, it notifies the European
Anti-Fraud Office (OLAF) about case s of corruption and misuse of funds by or-
ganized crime, and OLAF investigates those cases1.
With regard to the competence of the Court of Accounts regarding the
assurance of a good financial management, considering that the activity of man-
aging the revenu es and expenses of the Union is exercised by the European In-
vestment Bank, the Court of Accounts has the right of access to the information
held by this bank. The right of access is regulated by an agreement between the
Court, the bank and the Commission. Even in the absence of this agreement, the
Court has access to the information needed to control the Union's revenues and
expenses administered by the bank [art. 287 paragraph (3) TFEU].
3. The Court establishes the detailed rules regarding the conduct of the
1 See R. Verdins, op. cit.
Organizat ion and duties of the European Union institutions 179
audits that it must carry out under the provisions of the treaties1.
The Court conducts audits in accordance with the objectives set out in its
work program. For each audit task to be performed, the Chamber shall appoint a
rapporteur member. And for ea ch task that goes beyond the specific frame of a
room, the member is appointed, on a case -by-case basis, by the Court.
4. The Court of Accounts has the power to draw up an annual report after
the end of each financial year. This report is transmitted to th e other institutions
of the Union and is published in JOUE, together with the answers made by these
institutions to the Court's observations [art. 287 paragraph (4) TFEU].
5. The Court of Accounts may present its observations at any time, espe-
cially in the form of special reports, on specific issues and may issue opinions at
the request of one of the other institutions of the Union [art. 287 paragraph (4)
TFEU].
6. The Court of Accounts adopts annual reports, special reports or opin-
ions with the majority of its members [art. 287 paragraph (4) TFEU].
As we have shown, in order to adopt certain categories of reports or opin-
ions, the Court may establish internal chambers, in accordance with the rules of
procedure2.
7. The Court of Accounts supports the European Parliament and the
Council in exercising their function of controlling the budgetary execution, issu-
ing at their request advisory opinions and specialized opinions on issues related
to the collection of revenues and the execution of payments [art. 287 par agraph
(4) TFEU].
Therefore, the Court has advisory power, according to art. 287 paragraph
(4), art. 322 and art. 325 TFEU, based on which a request for an opinion is ad-
dressed3. In this regard, the Court:
– adopts opinions with the majority of its members [art. 287 paragraph
(4) TFEU];
– it is consulted by the EP and the Council with a view to adopting by
regulation the financial norms for establishing and executing the Union budget
[art. 322 paragraph (1) TFEU];
– is consulted by the EP and the Council in order to take the necessary
measures in the field of fraud prevention and combating this fraud4.
1 See art. 30 of the Rules of Procedure of the Court of Accounts.
2 See art. 10 of the Rules of Procedure of the Court of Accounts.
3 See art. 31 of the Rules of Procedure of the Court of Accounts.
4 The European Anti -Fraud Office – OLAF – was set up by a decision of the E uropean Commission
and replaced the Anti -Fraud Coordination Unit (UNCLAF), created in 1988. OLAF investigates
the management and financing of all EU institutions, bodies, agencies, acting completely independ-
ent. Since 1 June 1999, OLAF is the body responsi ble for combating fraud in the EU budget.
OLAF's mission includes, among its competences, the fight against corruption and the improper
conduct of European institutions. See I. Niță, Dicționar explicativ al Uniunii Europene , Ed. Irecson,
Bucharest, 2009, p p. 149 -150.
180 Ioana Nely Militaru
8. The TA widens the role of the Court of Accounts by the competence
to notify the EU Court of Justice with an action to annul the acts adopted with the
viola tion of its prerogatives, according to art. 263 paragraph (3) TFEU. This com-
petence is also maintained by the Treaty of Lisbon.
9. The court also has the power to establish its rules of procedure, accord-
ing to art. 287 paragraph (4) TFEU.
✓ In accordance with the principles of transparency, any citizen of the
Union and any natural and legal person having his residence or registered office
in a Member State has the right of access to the documents of the Court under the
conditions establishe d by the decision establishing the internal norms regarding
the treatment of access requests. to the documents held by the EU Court of Audi-
tors1.
7.4.2. Exercise of the powers of the EU Court of Auditors
✓ Provided that the principle of collective respo nsibility is respected, the
Court may empower one or more members:
– taking clearly defined management or administration measures, on be-
half and under the control of the Court;
– carrying out the activities in order to elaborate a decision to be adopted
at a later date by the college of the Court.
The respective members report to the college on the measures they have
taken.
✓ In accordance with the internal rules for the execution of the budget,
the members of the Court of Accounts exercise the powers of authorizing officer
of credits, and the Secretary General exercises the powers of authorizing officer
of delegated credits2.
The rules and practices regarding the procedures for controlling the way
of exercising the powers of authorizing officer and delegating authorizing officer
are established by the Court through decisions regarding the internal budget exe-
cution rules3.
1 See art. 35 of the Rules of Procedure of the Court of Accounts.
2 See art. 15 paragraph (1) of the Rules of Procedure of the Court of Accounts.
3 Idem .
Chapter 8. European Central Bank
8.1. Regulation of the European Central Bank
The legal basis of the European Central Bank includes the following pro-
visions – art. 3 and art. 13 TEU;
– art. 3 paragraph (1) letter c) and at art. 119, art. 123, art. 127 -134, art.
138-144, art. 219 and art. 282 -284 TFEU – Protocol (No. 4) on the Statute of the
European System of Central Banks (ESCB) and of the European Central Bank
(ECB)1, Protocol (No. 15) on certain provisions relating to the United Kingdom
of Great Britai n and Northern Ireland and Protocol (No. 16) on certain provisions
concerning Denmark annexed to the TEU and the TFEU;
– Regulation (EU) no. 1024/2013 of the Council of October 15, 2013 con-
ferring specific attributions to the European Central Bank regardin g the policies
related to the prudential supervision of credit institutions (Regulation on the
unique supervision mechanism – MUS);
– Regulation (EU) no. 806/2014 of the European Parliament and of the
Council of July 15, 2014 establishing uniform rules and a uniform procedure for
resolving credit institutions and certain investment firms (Regulation on the Sin-
gle Resolution Mechanism – MUR).
– ECB Rules of Procedure, adopted by ECB Decision of 19 February
2004 (ECB/2004/2)2, decision amended by Decision ECB /2009/5 of 19 March
20093.
✓ The European Central Bank (ECB) was established on 1 June 1998,
following the model of the German Federal Bank – Deutsche Bundesbank. It is
based in Frankfurt (Germany).
The ECB replaced the European Monetary Institute establi shed in 19944.
The establishment of the European Central Bank was determined by the
creation of a single currency and by the establishment of the economic and mon-
etary union, having a decisive role for the implementation of the European mon-
etary policy (a rticles 127 -133 TFEU). The ECB is the main institution of the Eco-
nomic and Monetary Union (EMU) responsible for the monetary policy of the
euro area from 1 January 1999 (date when the zone was created5).
1 O.J. of E.U. no. C -191 of July 29, 1992, p. 68.
2 O.J. of E.U. no. L -80 of March 18, 200 4, p. 33,
3 O.J. of E.U. no. L 100 -10 of April 18, 2009.
4 The European Monetary Institute, shortened to the EMI, had the role of preparing the definitive
Economic and Monetary Union – EMU – following the fact that, upon entering the third stage of the
implementation of EMU, he would relinquish the place of the European System of Central Banks –
ESCB – and subsequently , The European Central Bank
5 The area was created in 1999 by eleven countries: Austria, Belgium, Finland, France, Germany,
Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, which were joined by Greece in 2001,
Slovenia in 2007, Cyprus and Malta in 2008, Slovakia in 2009, Estonia in 2011, Latvia in 2014 and
182 Ioana Nely Militaru
From November 4, 2014, it has tasks related to the p olicies regarding the
prudential supervision of credit institutions under the unique supervision mecha-
nism (MUR). In its capacity as the supervisory authority of the banking sector,
the ECB also has a consultative role regarding the resolution plans of the credit
institutions.
✓ The European Central Bank can only be analyzed in the context of the
links with the national central banks of the Member States, together forming a
system.
The European Central Bank and the national central banks constitute the
European System of Central Banks (ESCB).
The European Central Bank and the national central banks of the Member
States whose currency is the euro1, which constitutes the Eurosystem (euro area),
conduct the monetary policy of the Union [art. 282 paragraph (1) TFEU].
8.2. Objects an d missions of the European System of Central Banks
– ESCB2
The main objective of the ESCB is to maintain price stability [art. 127
paragraph (1) and art. 282 paragraph (2) TFEU].
In line with this objective, the ESCB supports the general economic pol-
icies of the Union in order to contribute to the achievement of the Union's objec-
tives3.
The fundamental missions of the ESCB are provided in art. 127 para-
graph (2) TFEU4, as follows:
– defines and implements the monetary policy of the Union;
– performs foreig n exchange operations (according to art. 219 TFEU);
– holds and manages the official currency reserves of the Member States;
– promotes the smooth functioning of payment systems. The ESCB also
contributes to the smooth implementation of the policies promot ed by the com-
petent authorities regarding prudential supervision of credit institutions and the
Lithuania in 2015. Currently, there are 19 states in the euro area. Throug h the monetary agreements
with their neighbors, they are attached to the euro area: Andorra, Monaco, San Marino and the
Vatican. Two other states, Kosovo and Montenegro, use the European currency without the EU's
agreement.
1 The name "euro" was officially adopted on December 16, 1995, and the currency itself entered
international markets on January 1, 1999, replacing the so -called European monetary unit ECU. On
January 1, 2002, it was introduced into circulation, replacing the national currencies in the eu ro area
in the auction. One euro is divided into 100 cents, also called cents, in Romance -speaking countries,
or leptó in Greece.
2 See the Statute of the ESCB and of the ECB, Chapter II.
3 These are defined in art. 3 TEU.
4 See also art. 3 Statute of the ESCB and of the ECB. The holding and administration of the official
currency reserves of the Member States, as a fundamental mission of the ESCB, shall apply without
prejudice to the holding and administration, by the governments of the Member States, of w orking
capital funds in foreign currency (Article 125 paragraph 3 TFEU).
Organizat ion and duties of the European Union institutions 183
stability of the financial system.
The ESCB is headed by the decision -making bodies of the ECB. These
are: the Governing Council and the Executive Committee (ar t. 129 paragraph 1
TFEU1).
The President of the ECB is invited to attend Council meetings if he de-
liberates on matters relating to the objectives and missions of the ESCB (art. 284,
paragraph 2 TFEU).
8.3. Composition, organization and competences of the European
Central Bank
✓ The ECB has legal personality (art. 282 paragraph 3 TFEU). In this
capacity, each Member State enjoys the largest legal capacity, recognized by le-
gal persons through national law; the ECB may in particular acquire movable and
immov able property and stand trial2.
✓ The ECB ensures that the tasks conferred on the ESCB are carried out
through its own activities or through the national central banks3.
The decision -making bodies of the ECB, which also run the ESCB, are:
The Governing C ouncil and the Executive Committee.
✓ The Governing Council of the ECB, according to art. 283 paragraph 1
TFEU, is made up of the members of the ECB's Executive Committee and the
governors of the national central banks of the Member States whose currency i s
the euro.
The Governing Council meets at least 10 times a year, which has the fol-
lowing powers4:
– adopt the guidelines and take the necessary decisions for carrying out
the tasks entrusted to the ESCB by treaties and the Statute of the ESCB and the
ECB ;
– defines the monetary policy of the Union, and, where appropriate, the
decisions regarding the intermediate monetary objectives, the reference interest
rates and the establishment of reserves within the ESCB;
– establishes the guidelines necessary for t he application of the aforemen-
tioned decisions;
– adopts an internal regulation establishing the internal organization of
the ECB and its decision -making bodies5.
The President of the Council and a member of the Commission may at-
tend the meetings of the Go verning Council of the ECB without voting rights.
1 See also art. 8 Statute of the ESCB and of the ECB.
2 See art. 9 par. 1 Statute of the ESCB and of the ECB.
3 See art. 9 par. 3 of the Statute of the ESCB and of the ECB.
4 See art. 12.1 of the State of the ESCB and of the ECB.
5 See art. 12.3 of the Statute of the ESCB and of the ECB.
184 Ioana Nely Militaru
The President of the Council may also propose a motion for deliberation to the
Board of Governors of the ECB.
Lithuania's accession to the euro area since January 1, 2015 has led to the
creation of a system according to which the ECB governors hold voting rights in
the Governing Council. Governors in the first five countries (depending on the
size of their economies and their financial sectors) have four voting rights in com-
mon. All the others (currently 14) share 11 voting rights in common. Governors
use voting rights one at a time, one month. The members of the Executive Board
of the ECB have permanent voting rights.
✓ The executive committee consists of the president, a vice -president and
four other members (art. 283 paragraph 3 TFEU)1.
The President, the Vice -President and the four members of the Executive
Committee are appointed by the European Council, acting by a qualified major-
ity, at the recommendation of the Council and after consulting the European Par-
liament and the Council of Governors of the ECB, from persons whose authority
and professional experience in the monetary or banking field are recognized. (art.
283 paragraph 2 TFEU).
Their term of office is eight years and cannot be renewed. Only the citi-
zens of the Member States can be members of the Executive Committee.
The Executive Committee has the following responsibilities:
– implements the monetary policy in accordance with the guidelines and
decisions adopted by the Governing Council;
– gives the necessary instructions to the national central banks, in the im-
plementation of the monetary policy.
The Executive Committee is also responsible for:
– the current administration of the ECB2, namely:
– preparation of meetings of the Governing Council3.
The Executive Committee may be delegated certain powers by decision
of the Board of Governors.
✓ The President or, in his absence, the Vice -President presides over the
Governing Council and the Executive Board of the ECB.
✓ The ECB's competences
The European Central Bank has the following powers:
1. It is the only power, through the Board of Governo rs, to authorize the
issue of euro banknotes in the Union. The ECB and national central banks may
issue such notes. Banknotes issued by the ECB and national central banks are the
only ones that have the status of legal means of payment within the Union (ar t.
128 paragraph 1 TFEU and art. 16 Statute of the ESCB and the ECB).
1 See also art. 11 Statute of the ESCB and of the ECB.
2 See art. 11.6 of the Statute of the ESCB and of the ECB.
3 See art. 12.2 of the Statute of t he ESCB and of the ECB.
Organizat ion and duties of the European Union institutions 185
The ECB shall, as far as possible, comply with existing practices regard-
ing the issuance and graphics of banknotes.
The measures necessary for the use of the euro as the single currency are
established, without prejudice to the ECB's powers, by the European Parliament
and the Council, acting in accordance with the ordinary legislative procedure (ar-
ticle 133 TFEU). These measures shall be adopted after consulting the ECB.
2. To perform th e tasks entrusted to the ESCB, in accordance with the
treaties and under the conditions established by the Statute of the ESCB and of
the ECB, according to art. 132, paragraph 1 TFEU, the ECB has the following
decision -making powers:
– adopt regulations, t o the extent necessary to fulfill the missions defined
in the Statute of the ESCB and of the ECB to which art. 132 TFEU;
– adopts decisions necessary for carrying out the tasks entrusted to the
ESCB, in accordance with the treaties and the Statute of the E SCB and the ECB;
– adopts recommendations and opinions. The ECB may decide to publish
decisions, recommendations and opinions.
3. In the same vein as the ESCB mission concerns, the ECB, supported
by the national central banks, collects the necessary statis tical information, either
from the competent national authorities or directly from the economic agents (ar-
ticle 5 of the Statute of the ESCB and of the ECB).
To this end, the ECB shall cooperate with the institutions, bodies, offices
and agencies of the Un ion, with the competent authorities of the Member States
or third countries, and with international organizations.
4. Performs advisory functions, which are exercised through the Board
of Governors1, according to art. 127, paragraph 4 TFEU2. In this regard :
a) The ECB is consulted:
– with regard to any proposed Union act in the fields within its compe-
tence;
– by the national authorities regarding any regulatory project in the fields
that fall within its competence, but within the limits and under the condit ions
established by the Council.
b) The ECB may present opinions, in the fields within its competence, to
the institutions, bodies, offices and agencies of the Union or national authorities.
5. In the field of international cooperation on missions entruste d to the
ESCB, the ECB shall decide, through the Board of Governors, on how to repre-
sent the ESCB (article 6 of the Statute of the ESCB and of the ECB). The ECB
and, subject to its agreement, the national central banks may participate in inter-
national mone tary institutions.
1 See art. 12.4 of the Statute of the ESCB and of the ECB.
2 See art. 4 of the Statute of the ESCB and of the ECB.
186 Ioana Nely Militaru
6. The ECB has specific missions regarding policies in the field of pru-
dential supervision of credit institutions and other financial institutions1, with the
exception of insurance undertakings. These tasks may be entrusted to the ECB by
the Council, acting unanimously through regulations, in accordance with a special
legislative procedure, after consulting the European Parliament and the ECB (ar-
ticle 127, paragraph 6, TFEU).
Among the main responsibilities of the ECB are the euro area mo netary
policy which, according to the Regulation on the single supervisory mechanism,
gives the ECB certain supervisory functions of credit institutions as from 4 No-
vember 2014. From this date, the ECB is responsible for overseeing all credit
institutions (either directly, for the largest banks or indirectly, for other credit
institutions) in the Member States participating in the Single Supervisory Mech-
anism (SSM) and cooperating closely with the other entities in this function The
European System of Finan cial Supervisors (ESFS).
The ECB and the competent national authorities of the euro area Member
States together form the single supervisory mechanism (SSM). The competent
authorities of the Member States outside the euro area can also participate in the
SSM.
The ECB directly supervises the largest banks and the national supervi-
sory authorities continue to monitor the other banks.
The main tasks of the ECB and national supervisory authorities are to
verify that banks comply with EU rules on the banking secto r and to deal with
problems at an early stage.
7. It is authorized to impose fines and penalties on a periodic basis in case
of non -fulfillment of the obligations resulting from its regulations and decisions,
within the limits established by the Council (i n accordance with art. 229 para-
graph 4 TFEU).
8. Other functions of the ECB2.
The ECB also has powers conferred by legal grounds other than treaties.
a. The Treaty on European Stability Mechanism (ESM) provides that the
ESM is an international financial in stitution and grants the ECB, among others,
in particular evaluation and analysis tasks related to the provision of financial
assistance.
b. For the macro -prudential supervision of the financial system in order
to prevent or reduce systemic risks at Europe an Union level, the European Sys-
temic Risk Committee (ESRC) was established3. According to the regulation es-
tablishing the ESRC, the ECB provides the ESRC with a secretariat that provides
1 See D. Paternoster, Fișe tehnice cu privire la Uniunea Europeană, Banca Centrală Europeană ,
http://www.europarl. europa.eu/atyourservice/ro/displayftu.html?ftuid=ftu_1.3.11.html.
2 Idem .
3 The European Systemic Risk Committee (ESRC) is an independent body of the European Union
based in Frankfurt. Temciut Juridie of the ESRB is included in: Regulation (EU) no. 1092/2010 of
Organizat ion and duties of the European Union institutions 187
analytical, statistical, logistical and administrative support. The President of the
ECB is also the Chair of the ESRC. The ECB has an advisory role with regard to
the assessment of the resolution plans of the credit institutions elaborated under
the Directive on the recovery and resolution of banking institutions (DRRB,
2014)1 and of the Regulation on the Single Resolution Mechanism (SRM).
The ECB under the Single Resolution Mechanism (SRM) has the role of
determining whether a credit institution faces or is likely to face major difficulties
and accordingly informs the Eur opean Commission and the Single Resolution
Committee.
The authorities responsible for resolution decide on the appropriate res-
olution measures. The single resolution committee is the main body that makes
decisions within the single resolution mechanism. It s mission is to ensure that
credit institutions and other entities in its area of competence, which are facing
major difficulties, are subject to an efficient resolution, which involves minimal
expenses for taxpayers and the real economy. The single reso lution committee is
fully operational as of January 1, 2016.
✓ The European Central Bank has reporting obligations.
Thus, the ECB prepares and publishes reports on the ESCB's activity at
least once a semester. A consolidated financial statement of the ESCB is pub-
lished each week.
In this regard, the ECB submits to the European Parliament, the Council
and the Commission, as well as the European Council, an annual report on the
ESCB's activity and the monetary policy of the previous year and the current year.
The President of the ECB shall present this report to the Council and the European
Parliament and may hold a general debate on the subject. The President of the
ECB and the other members of the Executive Committee may, at the request of
the European Parli ament or on its own initiative, be heard by the competent com-
mittees of the European Parliament (art. 284, paragraph 3, TFEU).
✓ The European Central Bank is independent in exercising its powers
and managing its finances. The institutions, bodies, offices and agencies of the
Union, as well as the governments of the Member States, respect this independ-
ence (art. 282, paragraph 3, TFEU).
the European Parliament and of the Council of 24 November 2010 on the macro -prudential super-
vision at European Union level of the financial system and setting up of a European Committee for
Systemic Risk and in Regulation (EU) no. 1096/2010 of the Coun cil of November 17, 2010 regard-
ing the granting of specific competences to the European Central Bank regarding the functioning
of the European Committee for Systemic Risk.
1 Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing
a framework for the recovery and resolution of credit institutions and investment firms was trans-
posed by Law no. 312/2015 regarding the recovery and resolution of credit institutions and invest-
ment firms, in force since December 14, 2015.
188 Ioana Nely Militaru
8.4. National central banks of the Member States
Each Member State shall ensure the compatibility of its internal legis lation,
including the statute of its national central bank, with the treaties and the Statute of
the ESCB and the ECB.
The statutes of the national central banks provide for the term of office of
the governor of the national central bank, which may not be less than 5 years. A
governor may be released from office only if he no longer fulfills the conditions nec-
essary for the performance of his duties or if he has committed a serious misconduct1.
National central banks act in accordance with the ECB guidelin es and in-
structions. Ensuring compliance with these guidelines and instructions is made by the
Board of Governors, which requests, in this regard, from them all the necessary in-
formation.
National central banks may also perform other functions than those m en-
tioned in the Statute of the ESCB and of the ECB, these are exercised at their own
risk and at their own risk2.
✓ The European Central Bank, the national central banks or the members of
their decision -making bodies exercise their powers and fulfill thei r missions, respec-
tively the duties that were conferred on them by treaties and the Statute of the ESCB,
with complete independence.
This independence implies that they cannot request or accept instructions
from the institutions, bodies, offices and agenci es of the Union, from the governments
of the Member States or from any other body.
Also, the institutions, bodies, offices and agencies of the Union, as well as
the governments of the Member States, undertake to respect this principle and not to
try to inf luence the members of the decision -making bodies of the ECB or of the
national central banks in carrying out their tasks (art. 130 TFEU and art. 7 Statute of
the ESCB and of the ECB). Member States may issue the euro coin, subject to the
ECB's approval of the issue volume. The Council, on a proposal from the Commis-
sion and after consulting the European Parliament and the ECB, may adopt measures
to harmonize the unit values and technical specifications of all metal coins intended
for circulation, to the ex tent necessary to ensure their proper circulation within the
Union. (art. 128 paragraph 2 TFEU).
As regards Member States whose currency is not the euro3, as well as their
central banks, they retain their powers in the monetary field, in accordance with th e
provisions of the TFEU4 and the Statute of the ESCB and the ECB.
1 Against the decision taken in this regard, the respective governor or the Board of Governors may
bring to the Court of Justice an action based on a violation of the treaties or any rule of law applying
to them [art. 14.2 paragraph (2) Statute of the ESCB an d of the ECB].
2 See art. 14.4 paragraph (2) Statute of the ESCB and of the ECB.
3 These states are referred to as "derogating Member States" (article 139 paragraph 2 TFEU).
4 See art. 282 TFEU, which refers to the following provisions: art 127 -133 TFEU an d art. 138
TFEU.
Chapter 9. The advisory bodies of the European Union
9.1. European Economic and Social Committee
9.1.1. Regulation of the European Economic and Social Committee
The EESC's legal basis is set out in the following provisions:
– art. 13 paragraph (4) TEU;
– art. 301 -304 TFEU;
– Council Decision (EU, Euratom) 2015/1790 of 1 October 2015 appoint-
ing members to the European Economic and Social Committee for the period 21
September 2015 -20 Sep tember 2020.
The Economic and Social Committee was established by the Treaty of
Rome (TCEE) of 19571. With each subsequent treaty – the Single European Act
(1986), the Treaty of Maastricht (1992), the Treaty of Amsterdam (1997) and the
Treaty of Nice (2001 ) strengthened its advisory role, today representing "the
voice of organized civil society", bringing together, besides the representatives
of the different segments of the economic -social life, employers' organizations,
trade unions, but also non -governme ntal organizations2.
The Economic and Social Committee ensures the connection between the
Union and the different socio -professional categories of the economic -social life
in order to involve them in the decision of the Union in the form of a consultation,
in the event that it is intended to make decisions with economic and social impli-
cations, related to especially for living conditions3. The EESC's headquarters are
in Brussels.
9.1.2. Organization of the EESC
The committee consists of the following bodi es: the Assembly, the Bu-
reau, the chairman and the specialized sections4.
The assembly is composed of all the members of the Economic and So-
cial Committee.
The office consists of5:
– president and two vice -presidents;
– three group presidents;
– president s of specialized section;
1 See art. 193 -198 TCEE and art. 165 -170 TEuratom.
2 See A. Popescu, I. Diaconu, op. cit ., p. 247.
3 See F. Cotea, op. cit ., p. 393.
4 See art. 2 of the Rules of Procedure.
5 See art. 3 of the Rules of Procedure.
190 Ioana Nely Militaru
– a variable number of members, which does not exceed that of the Mem-
ber States.
The Committee constitutes specialized sections during the constituent
meeting, after each renewal every five years, for the main areas covered by the
TFEU.
Currently, six sections are organized: Single market, production and con-
sultants – INT; Transport, energy, infrastructure and the information society –
TEN; Agriculture, rural development and environmental protection – NAT; Eco-
nomic and monetary uni on, economic and social cohesion – ECO; Employment,
social affairs and citizenship – SOC; external relations – REX.
The specialized sections have the task of adopting opinions or infor-
mation reports on the issues with which they are referred.
The specializ ed sections may constitute a working or drafting group
within them or may appoint a single rapporteur.
The committee is made up of three working groups by areas of activity1:
– group I – employers, which brings together entrepreneurs from industry,
commerc e, services and agriculture (112 members);
– Group II – employees, which includes representatives of national trade
union organizations at the level of confederations and federations (120 members);
– group III – socio -professional groups, of economic and s ocial character,
which include representatives of farmers, artisans, liberal professions, coopera-
tors, consumer protection associations, associations of persons with disabilities,
scientific communities and teachers, etc. (109 members)2.
The expertise, the dialogue and the search for convergences that result
from them can increase the quality and credibility of the political decision at Eu-
ropean Union level, improving its understanding and acceptance by the European
citizens, as well as the transparency ind ispensable to democracy3.
Within the Committee, advisory committees4 may be set up, consisting
of members and delegates from different fields of organized civil society, and
sub-committees to elaborate draft opinions on certain issues or in certain areas,
to be submitted to the Committee's deliberation.
The Bureau establishes the order of priority for examining the opinions,
dividing them into categories. The rules of procedure provide for three categories
of notices/requests for opinions defined according to the following criteria5:
Category A (referrals on topics recognized as priority). This includes:
1 See art. 27 paragraph (1) of the Rules of Procedure.
2 Idem .
3 See Rules of Procedure – Preamble. The codified version was adopted on July 14, 2010.
4 An Advisory Commission on Industrial Change (CCMI) may be set up, consisting of members of
the Committee and of delegates from organizations representing the various economic and social
sectors. See art. 24 paragraph (3) of the Rules of Procedure.
5 See art. 30 of the Rules of Procedure.
Organizat ion and duties of the European Union institutions 191
– all requests for exploratory opinion (Commission, European Parlia-
ment, future Council Presidencies);
– all proposed own -initiative opinions adopted;
– certain mandatory or optional notifications.
Category B (mandatory or optional notifications, which refer to topics
of secondary interest or are of an urgent nature);
Category C (notifications, obligatory or optional, of purely technical
character).
9.1.3. Composition of the Econ omic and Social Committee. The sta-
tus of members1
✓ The EESC currently has 350 members divided between the Member
States as follows:
– 24 for Germany, France, Italy and the United Kingdom;
– 21 for Spain and Poland;
– 15 for Romania;
– 12 each for Austria , Belgium, Bulgaria, the Czech Republic, Greece,
Portugal, Sweden, the Netherlands and Hungary;
– 9 for Croatia, Denmark, Finland, Ireland, Lithuania and Slovakia;
– 7 for Latvia and Slovenia;
– 6 for Estonia;
– 5 for Cyprus, Malta and Luxembourg.
The maxi mum number of EESC members permitted by the Lisbon Treaty
is 350, according to art. 301 TFEU. This number was briefly exceeded between
July 2013 and September 2015 as a result of Croatia's accession to the EU on July
1, 2013. As nine new seats for the new member state were added, the total number
of members increased to 353 (from 344).
Council Decision 2015/1600 of September 18, 2015 appointing members
to the European Economic and Social Committee for the period September 21,
2015 to September 2020, has the refore decreased from six to five, in both cases,
the number of members in Luxembourg and from Cyprus, and from seven to six
members in Estonia, according to the allocation of seats in the Committee of the
Regions, which also has 350 members.
✓ The ETUC is a consultative institutional body2, made up of represent-
atives of employers' organizations, salaries and other representatives of civil so-
ciety, especially in the socio -economic, civic, professional and cultural fields (art.
300, paragraph 2 TFEU).
1 See U. Bux, April 2017, Fișe tehnice cu privire la Uniunea Europeană, Comitetul Economic și
Social European , http://www.europarl.europa.eu/atyourservice/ro/displayFtu.html?ftuld =FTU_1
.3.13.11html.
2 See the Rules of Procedure – Preamble, the codified version was adopted on July 14, 2010.
192 Ioana Nely Militaru
Therefore, it is composed of representatives of different categories of
economic and social life, especially of producers, farmers, carriers, workers, trad-
ers and craftsmen, liberal professions and representatives of the general interest.
✓ The numb er of EESC members may not exceed three hundred and
fifty. The Council has a decisive role in the procedure by which the EESC mem-
bers are appointed (articles 301 -303 TFEU).
Thus, the composition of the Committee is adopted by the Council, by
decision, act ing unanimously on a proposal from the Commission.
The Council adopts the list of members established according to the pro-
posals of each member state. On this list, the Council shall act on a proposal from
the Commission. The Council can obtain the opinion of the representative Euro-
pean organizations for the different economic and social sectors and of the civil
society, which the activity of the Union concerns.
The Council shall also determine the allowances of the members of the
Committee.
The members of the Committee are appointed for a term of five years1.
Their term of office may be renewed. The members of the Committee exercise
their functions in complete independence, representing the interest of the Union
(as well as the members of the Commission and the Court of Auditors).
EESC members have the title of advisor. EESC members benefit from
the usual privileges, immunities or facilities during the exercise of their duties2.
The Committee shall appoint from among its members, the President and the Bu-
reau, for a term of two and a half years3.
The Committee shall adopt its rules of procedure.
With regard to the organization and conduct of its activities, the EESC
uses the services of its Permanent Secretariat in Brussels in conjunction with the
Secretariat of the Committee of the Regions4.
Also, the Parliament's Office concluded an agreement with the EESC, in
the framework of the 2014 budgetary procedure, on achieving efficiency gains in
the field of translations. The EESC has an annual administrative budget , in sec-
tion VI of the Union budget, amounting to EUR 131 million (2014) 5.
9.1.4. Competence of the European Economic and Social Committee
According to art. 300 paragraph 1 TFEU, the Economic and Social Com-
1 Prior to the Treaty of Lisbon, their term of office wa s 4 years.
2 See art. 10 of Chapter IV of Protocol no. 7 on the privileges and immunities of the EU, annexed
to the Treaties.
3 Prior to the Treaty of Lisbon, their term of office was 2 years.
4 For its headquarters in Brussels, see Protocol no. 6 to the T reaty of Lisbon on the location of the
headquarters of the institutions.
5 See U. Bux, April 2017, op. cit.
Organizat ion and duties of the European Union institutions 193
mittee is consultative. Its mission is to assis t the European Parliament, the Coun-
cil and the Commission.
1. The Committee shall be consulted by the European Parliament, the
Council or the Commission in the cases provided for in the Treaties or may be
consulted by these institutions in any case they co nsider appropriate (article 304
TFEU).
The Committee is consulted by the institutions in numerous cases pro-
vided by the TFEU, corresponding to the following areas:
– art. 46, the realization of the free movement of workers;
– art. 50, achieving the freedom of establishment;
– art. 59, the liberalization of a certain service;
– art. 100, maritime and air transport;
– art. 113, the harmonization of the laws regarding the turnover tax, ex-
cise duties and other indirect taxes;
– art. 114 paragraph 1 and art. 115 , the approximation of the laws, regu-
lations and administrative provisions of the Member States whose purpose is the
functioning of the internal market;
– art. 148 paragraph 2, employment;
– art. 157, the field of social policy;
– art. 166 paragraph 4, edu cation, vocational training, youth and sports;
– art. 168 paragraph 4, public health;
– art. 173 paragraph 3, industry;
– art. 175, paragraph last, art. 177 and art. 178, economic, social and ter-
ritorial cohesion;
– art. 182 paragraph 4 and art. 188, resea rch, technological development
and space;
– art. 192, medium;
– art. 194, energy.
2. The Committee has the right of initiative in issuing opinions in all
cases it considers appropriate. If it deems it necessary, the European Parliament,
the Council or the Commission shall give the Committee a period within which
it may deliver its opinion, which may not be less than one month. This term shall
begin to run from the date the President receives the communication addressed to
him for this purpose. After the dea dline has expired, the lack of an opinion does
not prevent the proceedings from unfolding. The opinion of the Committee as
well as the minutes of its debates shall be forwarded to the European Parliament,
the Council and the Commission.
The opinions of the Committee shall be published in JOUE in accordance
with the procedure established by the Council and the Commission after consult-
ing the Committee's Bureau1.
Therefore, the EESC is a privileged intermediary between organized civil
1 See art. 63 of the Rules of Procedure.
194 Ioana Nely Militaru
society and the Union i nstitutions1.
Moreover, as a forum and a framework for the preparation of opinions,
the EESC responds to the need for democratic legitimation of the construction of
the European Union, including in its relations with the economic and social envi-
ronments o f third countries2.
3. The EESC may discuss information reports to examine an issue related
to EU policies and possible developments3, for example:
– every three years, the Commission submits to the European Parliament,
the Economic and Social Committee an d the Committee of the Regions a report
on the progress made in achieving economic, social and territorial cohesion and
how they have contributed to this progress. This report shall be accompanied, if
appropriate, by appropriate proposals [art. 175 paragra ph (2) TFEU];
– The Commission draws up annually a report on the evolution of the
objectives, in the field of social policy, including on the demographic situation in
the Union. It sends the report to the European Parliament, the Council and the
Economic a nd Social Committee (article 159 TFEU).
Also, the specialized sections of the EESC have the task of adopting opin-
ions and information reports on the issues with which they are referred under art.
32 of the Rules of Procedure4.
4. The EESC may, on a proposa l from a specialized section, one of its
groups or one third of its members, adopt resolutions on current issues for the
Union5.
5. The Committee establishes its Internal Regulations, which, in turn, es-
tablishes the composition and rules of competence of t he specialized sections and
sub-committees.
✓ The Lisbon Treaty specifies that the TFEU provisions on the nature of
the EESC's composition will be reviewed periodically by the Council, in order to
take into account, the economic, social and demographic evolution of the Union.
For this purpose, the C ouncil adopts decisions, at the proposal of the Commission
[article 300 paragraph (5) TFEU].
9.2. Euratom Scientific and Technical Committee (art. 134 TEur-
atom)
The Euratom Scientific and Technical Committee is active in the specific
field of atomic ene rgy. The Scientific and Technical Committee is set up next to
the Commission and is consultative.
1 See the Rules of Procedure – Preamble, the codified version was adopted on July 14, 2010.
2 See Chapter V III of the Rules of Procedure on "Dialogue I Economic and social organizations of
the EU and third countries".
3 See A. Popescu, I. Diaconu, op. cit ., p. 247.
4 See art. 17 of the Rules of Procedure.
5 See A. Popescu, I. Diaconu, op. cit ., p. 247.
Organizat ion and duties of the European Union institutions 195
Like the EESC, the Scientific and Technical Committee is obliged to con-
sult in the cases provided by the Treaty (TEuratom). It may be consulted in all
cases d eemed appropriate by the Commission.
The Committee shall consist of twenty members, appointed by the Coun-
cil after consulting the Commission.
The members of the Committee are appointed on a personal basis for a
period of five years, with the possibility of renewing their mandate. They cannot
be bound by any mandatory mandate.
The Committee appoints its chairman and chairperson from among its
members annually.
✓ The Euratom Scientific and Technical Committee has the following
tasks:
– promote research and ensure the dissemination of technical information.
To this end, the Commission is asking the Member States to inform them about
nuclear research programs. The Commission publishes, at regular intervals, the
list of nuclear research sectors that have not been sufficiently exploited;
– to establish universal safety standards in order to protect the health of
the population – each Member State defines its appropria te provisions – legislative
or administrative acts. The legislation was also adopted for the medical sector,
research, health protection under radiological emergencies, minimum levels of
radioactive contamination in food, etc.;
– to facilitate investments and ensure the establishment of the basic in-
stallations necessary for the development of nuclear energy in the European Un-
ion. To this end, the Commission regularly publishes illustrative nuclear pro-
grams, indicating, in particular, the objectives of produ cing nuclear energy and
the investments necessary to achieve them;
– to ensure that all users in the Union receive a constant and equitable
supply of minerals and nuclear fuels, based on the principle of equal access to
common sources of supply;
– to ensur e that civilian nuclear materials are not redirected to other (es-
pecially military) purposes. TEuratom introduces an extremely comprehensive
and strict system of guarantees that ensures that civilian nuclear materials are not
diverted by the Member States. The Union has exclusive powers in this area,
which it exercises with the help of a team of 300 inspectors, who have imposed
Euratom rules throughout the European Union.
For the purposes mentioned above, the Commission has established, after
consulting the Scientific and Technical Committee, a Joint Nuclear Research
Center. The Center ensures the conduct of research programs and other tasks en-
trusted by the Commission.
The Center also ensures the establishment of a uniform nuclear terminol-
ogy and a unique c alibration system. The center establishes a central office for
nuclear measurements. For geographical or functional reasons, the activities of
the Center can be carried out in separate offices (art. 8 TEuratom).
196 Ioana Nely Militaru
9.3. Committee of the Regions (CoR)
The l egal basis of the Committee of the Regions is included in the fol-
lowing provisions:
– art. 13 paragraph (4) TEU;
– art. 300 and art. 305 -307 TFEU;
– Council Decision (EU) 2015/116 of 26 January 2015 appointing mem-
bers and alternates to the Committee of the Regions for the period from 26 Janu-
ary 2015 to 25 January 2020.
The need to liaise with the natural persons of the Member States, as Eu-
ropean citizens, through local or regional representatives, given that approxi-
mately three quarters of EU law is impleme nted at local or regional level, has
required the creation of a regions.
The European Parliament, the Council and the Commission are assisted
by a Committee of the Regions, which exercises advisory functions (article 300
paragraph 1 TFEU).
The members of t he Committee of the Regions, as well as the alternate
members, represent the regional and local authorities. According to its own state-
ment of misitme, the CoR is a political assembly1, the members of this body are
either the holders of an electoral mandat e within a regional or local authority, or
they are politically responsible in front of a chosen assembly. In exercising their
function, they cannot be bound by any imperative mandate2.
Like the members of the EESC, the members of the Committee of the
Regi ons, they exercise their functions, in complete independence, in the general
interest of the Union.
The seat of the Committee of the Regions is in Brussels.
9.3.1. Organization of the Committee of the Regions (CoR)
The organs of the Committee are the Pl enary Assembly, the President,
the Bureau and the committees.
The plenary assembly is composed of all the members of the Committee;
it meets in quarterly meetings. The plenary assembly has the following tasks3:
– adopts opinions, reports and resolutions;
– adopts the project for estimating the income and expenses of the Com-
mittee;
– adopts the political program of the committee at the beginning of each
term;
1 See U. Bux, April 2017, Fișe tehnice privind Uniunea Europeană, Comitetul Regiunilor (CoR),
http://www.europarl. europa.eu/aboutparliament/ro/displayFtu.html?ftuld=FTU_1.3.14.html
2 See art. 2 of the Rules of Procedure.
3 See art. 13 of the Rules of Procedure.
Organizat ion and duties of the European Union institutions 197
– elect the president, the first vice -president and the other members of the
bureau;
– set up commit tees within the Committee;
– adopts and revises the Rules of Procedure of the Committee.
The Committee of the Regions shall appoint its President and the Bureau
from among its members for a period of two and a half years1. The chairman, the
bureau, the ple nary assembly and the committees, ensure the leadership of the
Committee of the Regions.
The Committee's Bureau is composed of the president, first vice -presi-
dent, 28 vice -presidents, 28 members and chairmen of the political groups within
the Committee2.
The Bureau normally meets in seven ordinary meetings, before each ple-
nary meeting of the Committee, as well as in extraordinary meetings3.
With the exception of the functions of president and first vice -president
and of the seats reserved for the presidents of political groups, the other seats in
the Bureau are divided among the national delegations, as follows:
– the Bureau has the following tasks4: elaborates and presents to the Ple-
nary Assembly its draft political program at the beginning of each term, so that
at the end of the term it presents a report on the implementation of its political
program; controls the implementation of the work program; organizes and coor-
dinates the work of the Plenary Assembly as well as the committees; has general
competences in financial matters, administrative organization regarding the alter-
nate members; adopts the decision to bring an action before the EU Court of Jus-
tice.
The Committee shall be convened by the President, at the request of the
European Parliament, the Coun cil or the Commission (article 306 TFEU). It can
also meet on its own initiative. The Chairman shall direct the work of the Com-
mittee. The committee is represented by the chairman. He may delegate this at-
tribution.
– The committees of the Committee are con stituted at the beginning of
each mandate by the Plenary Assembly, which establishes its composition and
powers. The commissions are chaired by a president, a vice president and at most
two vice presidents. The commissions have as main attributions, the an alysis of
the draft normative acts, the elaboration of draft opinions, the drafting of reports
and resolutions, which are submitted for approval in plenary sessions5.
✓ There are three working structures at the Committee level: national
delegations, politi cal groups and interregional groups.
1 Prior to the Treaty of Lisbon, their term of office was two years.
2 See art. 29 of the Rules of Procedure.
3 See F. Cotea, op. cit ., p. 400.
4 See art. 36 of the Rules of Procedure.
5 The bureau shall establish, in accordance with art. 36, an advisory c ommission for financial and
administrative affairs, chaired by a member of the Bureau (article 71 of the Rules of Procedure).
198 Ioana Nely Militaru
National delegations and political groups contribute in a balanced way to
organizing the Committee's work1.
A national delegation consists of the members and alternates of a Mem-
ber State. Each national delegation establ ishes its own internal organization and
elects its chairman, whose name is officially communicated to the chairman of
the Committee2.
Political groups may consist of members and alternates who reflect their
political affinities. In order to form, a politic al group must have at least 18 mem-
bers or alternates3.
Interregional groups are made up of members or alternate members, pro-
vided that the interregional group is declared to the chairman of the Committee.
9.3.2. Composition of the Committee of the Regions . The status of
members
The Committee of the Regions consists of 350 members representing the
regional and local authorities in the 28 Member States of the European Union.
The Committee of the Regions is composed of a number of members and
all the alterna tes, distributed among the Member States as follows4:
– 24 for Germany, France, Italy and the United Kingdom;
– 21 for Spain and Poland;
– 15 for Romania;
– 12 each for Austria, Belgium, Bulgaria, the Czech Republic, Greece,
Hungary, the Netherlands, Portu gal and Sweden;
– 9 for Croatia, Denmark, Finland, Ireland, Lithuania and Slovakia;
– 7 for Latvia and Slovenia;
– 6 for Estonia;
– 5 each for Cyprus, Luxembourg and Malta.
As can be seen, each Member State has a certain number of places, their
distributio n being similar to that of the EESC.
As in the EESC, the Council plays a decisive role in appointing members
to the Committee of the Regions (article 305 TFEU).
Thus, the Council, acting unanimously, on a proposal from the Commis-
sion, adopts a decision est ablishing the composition of the Committee. The mem-
bers of the Committee, as alternate members, are appointed for a term of five
years. Their term of office may be renewed. The Council shall adopt the list of
members and alternates established in accordanc e with the proposals of each
Member State.
1 See art. 7 of the Rules of Procedure.
2 See art. 8 of the Rules of Procedure.
3 Prior to the Lisbon Treaty, a political group ha d at least 16 members or alternates.
4 In accordance with the provisions of Council Directive 2014/930/EU of 16 December 2014.
Organizat ion and duties of the European Union institutions 199
Thus, for the period from 26 January 2015 to 25 January 2020, the Coun-
cil adopted Decision (EU) 2015/116 of 26 January 2015 appointing members and
alternates to the Committee of the Regions for the period from 26 January 2015
to 25 January 2020.
The term of office of a member or of an alternate member shall begin on
the date of its appointment by the Council1.
The term of office of a member or of an alternate member shall end by
resignation, at the end of the term of office under which he was appointed or by
death2.
At the end of the mandate stipulated in art. 300 paragraph 3 TFEU, which
refers to the electoral mandate of the members of the Committee of the Regions
within a regional or local authority, pursuant to which they have been proposed,
the mandate of the members of the Committee ceases ex officio and they are re-
placed for the rest of the respective mandate in accordance with the same appoint-
ment procedure (article 305 TFEU).
Their term of office may be rene wed. As regards the members of the CoR
TFEU imposes a ban, they cannot be members of the European Parliament at the
same time. The members and alternates with appropriate mandates benefit from
the privileges and immunities provided by the Protocol (no. 7) regarding the priv-
ileges and immunities of the European Union.
9.3.3. Competence of the Committee of the Regions
1. According to art. 307 TFEU, the Committee adopts opinions3:
a) when consulted by the European Parliament, the Council or the Com-
mission i n the cases provided for in the Treaties and in all other cases where these
institutions consider the consultation advisable, in particular where cross -border
cooperation is concerned4.
If it deems it necessary, the European Parliament, the Council or the
Commission shall give the Committee a period within which to deliver its opin-
ion, which shall not be less than one month from the date on which the commu-
nication is addressed to the President for this purpose. After the deadline has ex-
pired, the lack of a n opinion does not prevent the proceedings from unfolding.
In addition, the European Parliament's Rules of Procedure (Annex V,
point XII) gives the Commission for Regional Development (REGI) the respon-
sibility to maintain relations with the Committee of th e Regions, interregional
cooperation organizations and local and regional authorities.
1 See art. 3 paragraph l of the Rules of Procedure.
2 See art. 3 paragraph 2 of the Rules of Procedure
3 See also art. 39 of the Rules of Procedure.
4 For example, art. 100, in the field of maritime and air transport.
200 Ioana Nely Militaru
According to the Cooperation Agreement between the European Parlia-
ment and the CoR, concluded on 5 February 20141:
– The CoR prepares assessments of the impact of the pr oposed EU legis-
lative acts, which it sends to the Parliament in good time, before the start of the
modification procedure. These impact assessments contain detailed information
from the national, regional and local levels, on how the legislation in force w orks,
as well as opinions on the improvements that can be made to the proposals of
legislative acts;
– a member of the CoR is invited to all relevant meetings of the commit-
tees of Parliament. This rapporteur or spokesperson presents CoR opinions. The
rappo rteurs of the Parliament may attend, in their turn, the meetings of the CoR
committees;
– the general legislative cooperation and the work plan are discussed
twice a year by the President of the Conference of Committee Chairs in Parlia-
ment and his counterp art from the Committee of the Regions;
– since 2008, the REGI and COTER Commission (CoR Commission on
Territorial Cohesion Policy and the EU Budget) organized an annual joint meet-
ing within the "Open Doors: European Week of Regions and Cities" event;
b) on its own initiative, if it considers it useful;
c) when, in case of consultation of the EESC in accordance with art. 304
TFEU, the Committee of the Regions is informed by the European Parliament,
the Council or the Commission of the request for an opinion. If it considers that
specific regional interests are at stake, the Committee of the Regions may issue
an opinion to that effect.
In all cases, the opinion of the Committee, as well as the minutes of its
debates, shall be transmitted to the European Parlia ment, the Council and the
Commission (art. 307, last paragraph, TFEU).
The Committee of the Regions is consulted by the institutions, in order
to adopt an opinion, in many cases provided for by the TFEU, corresponding to
the following areas2:
– art. 100, m aritime and air transport;
– art. 148 paragraph 2, employment;
– art. 166 paragraph 4, education, vocational training, youth and sports;
– art. 167, in the field of culture;
– art. 168 paragraph 4, public health;
– art. 175, paragraph last, art. 177 and ar t. 178, economic, social and ter-
ritorial cohesion;
– art. 192, medium;
– art. 194, energy.
1 See U. Bux, April 201 7, op. cit.
2 In these cases, it is also requested to consult the ETUC, and in some of them and the European
Parliament.
Organizat ion and duties of the European Union institutions 201
2. The Committee shall adopt opinions, reports and resolutions1 to be
promoted by the Bureau, as follows:
a) when the Committee receives requests for opinions from t he Commis-
sion or the European Parliament on certain documents, the chairman shall distrib-
ute them to the competent committees2;
b) requests for the elaboration of opinions or reports on its own initiative
may be submitted to the Bureau by its three members , by a commission, through
its chairman, or by thirty -two members of the Committee. The Bureau shall be
able to decide on the requests for the preparation of an own -initiative opinion or
report3;
c) the resolutions are included in the agenda only when they refer to is-
sues related to the fields of activity of the European Union, to important concerns
of the regional and local communities and if they are current. Proposals for reso-
lutions or requests for drafting a resolution may be submitted to the Committee
by at least thirty -two members or by a political group4.
3. Within the powers of the Committee, the Bureau may, at the proposal
of the Secretary -General (assisting the Committee), conclude agreements with
other institutions or bodies5.
4. The Committee sh all establish its rules of procedure (article 306
TFEU).
5. Its mission is to involve regional and local authorities in the European
decision -making process and thus to encourage greater citizen involvement6. In
order to achieve this objective, the CoR sou ght to acquire the right to refer the
matter to the Court of Justice in case of violation of the subsidiarity principle.
This right was obtained following the entry into force of the Treaty of Lisbon,
pursuant to the provisions of art. 8 of Protocol no. 2 regarding the application of
the principles of subsidiarity and proportionality.
6. In the field of cohesion policy, through its Commission on Territorial
Cohesion Policy and the EU Budget (COTER), the Committee of the Regions
focuses on evaluating the res ults of negotiations on partnership agreements and
operational programs, on applying the partnership principle in the context of pro-
gramming of structural funds and of European investments for the period 2014 –
2020, as well as on the cohesion reports prepar ed by the Commission7. The results
of the negotiations focused, in particular, on8:
1 See also Article 44 of the Rules of Procedure.
2 See also art. 40 of the Rules of Procedure.
3 See also art. 42 of the Rules of Procedure.
4 See also Article 43 of the Rules of Procedure.
5 See also art. 73 of the Rules of Procedure.
6 See U. Bux, April 2017, op. cit.
7 Idem .
8 Idem .
202 Ioana Nely Militaru
– mobility in disadvantaged regions from a geographical and demo-
graphic point of view;
– the two macro -regional strategies regarding the Adriatic and Ionian Sea
(EUSAIR) re gions;
– Strategy for the Alpine Region (EUSALP).
9.4. European Investment Bank
9.4.1. Regulation of the European Investment Bank
The legal basis of the European Investment Bank (EIB) is included in the
following provisions:
– art. 308 and art. 309 TF EU;
– additional provisions regarding the EIB are included in art. 15, art. 126,
art. 175, art. 209, art. 271, art. 287, art. 289 and art. 343 TFEU;
– Protocol (no. 5) on the Statute of the European Investment Bank;
– Protocol (no. 28) on economic, social and territorial cohesion, annexed
TEU and TFEU.
✓ The European Investment Bank (EIB) was established on 1 January
1959 in Luxembourg. The European investment bank is a self -financing financial
body1, being independent of the budget of the European Union.
The bank is also financed by loans from the capital markets, which are
then reoriented, without profit, towards the priority investments of the Union2.
The EIB provides long -term financing for projects, guarantees and advice
to promote the Union's objectiv es, supporting projects both within and outside
the EU3. By default, its financing is mostly oriented in the poorest regions (of the
Union), with the EIB granting loans to Mediterranean countries: from Africa, the
Caribbean, the Pacific and the Eastern Sta tes. Thus, in 2004, the total amount of
the loans approved by the EIB amounted to over 45.8 billion euros, intended
mainly for priority investments in the disadvantaged regions of the Union4. The
investments are placed in the respective countries, especial ly in industry, ser-
vices, education, health, environment and infrastructure.
To create additional funding sources for large -scale infrastructure pro-
jects in the EU, particularly in the key sectors of energy, transport and information
technology, the "Europ e 2020" bond issuance initiative has been created5. The
1 In another opinion, it is an institution of the European Union; to be seen J. Rideau, Droit institu-
tionnel de l'Union et des Conununautés Européennes , 3 éd., Librairie Générale de Droit et de Ju-
risprudence, 1999, p. 22.
2 See J. Echkenazi, op. cit. , p. 30.
3 See D. Paternoster, March 2017, Fișe tehnice privind Uniunea Europeană , Banca Europeană de
Investiții , http://www.europarl.europa.eu/atyourservice/ro/display-
Ftu.html?ftuld=FTU_1.3.15.html
4 See J. Echkenazi, op. cit , p. 30.
5 See D. P aternoster, March 2017, op. cit.
Organizat ion and duties of the European Union institutions 203
EIB supports the implementation of the objectives of the "Europe 2020" Strategy.
The pilot phase for the implementation of the concept started in the summer of
2012.
The EIB has legal personality, act s within the limits conferred on it by
the TFEU and by the statute provided for in the Protocol (no. 5) annexed to the
Treaties (article 308 TFEU).
9.4.2. Resources of the European Investment Bank1
According to art. 309 TFEU, is financed from own resourc es and from
the international capital market.
✓ The own resources are provided by the Member States, according to
art. 308 TFEU. Each Member State contributes to the EIB's capital, according to
art. 4 EIB status, the contribution being calculated according to the economic
power of the Member States. In order to strengthen the role of the EIB in financ-
ing the economy and in supporting the economic downturn in the Union, the Eu-
ropean Council of June 2012 recommended a EUR 10 billion increase in sub-
scribed and paid up capital. The EIB Board of Governors unanimously made a
decision [art. 4 paragraph (3) of the Statute] regarding the increase of the capital,
which entered into force on December 31, 2012. The subscribed capital increased
to EUR 242.4 billion, and the subscribed and paid up capital increased by EUR
10 billion to EUR 21.6 billion. From the international capital market, the EIB
obtains funds by issuing bonds, this being the main source of EIB financing. The
European investment money is one of the most important supranational bond is-
suers in the world. In order to obtain cost -effective financing, it is important that
the institution in question has a high credit rating. The most important credit rat-
ing agencies currently assign the highest ratings to th e European Investment
Bank, which reflects the quality of its credit portfolio. The EIB generally finances
one third of each project, but financial assistance can reach 50%.
✓ The main financing instruments used by the EIB are loans and guaran-
tees. However , other tools with a high risk profile have been unveiled. EIB fi-
nancing can be combined with financing from other EU sources (eg the EU
budget), a process known as a combination.
Loans are mainly granted in the form of direct or intermediate loans.
Direct loans for projects are granted subject to conditions, for example,
the total cost of the investment should not exceed EUR 25 million, and the credit
can only cover up to 50% of the project costs.
Intermediate loans consist of granting loans to local banks or other inter-
mediaries, which, in turn, support the final beneficiary. Most loans are granted in
the Member States.
1 Idem .
204 Ioana Nely Militaru
✓ The additional sources of funding represented, among others, an EIB
initiative to materialize large -scale infrastructure projects in the EU, in particular
in the key sectors of energy, transport and information technology.
To this end, the "Europe 2020" bond issuance initiative was created. The
pilot phase for exploring the feasibility of the concept, as we have shown, began
in the summer of 2012. In view of its experience and knowledge, the EIB It plays
an important role in this initiative, and it implements this pilot stage, ensuring
"optimization of credit conditions" in the form of subordinated debt instruments.
In addition to long -term financing, the EIB also offers consultancy in the
field of infrastructure projects. For example, the "Joint Assistance tool for project
support in European regions" (JASPERS). For new and future Member States,
the EIB offers technical, economic and financ ial advice for the entire life cycle
of the project in order to optimize the use of financing from the Structural Funds
and the Cohesion Fund.
9.4.3. The EIB Group1. Structure
✓ EIB shareholders are EU Member States. The EIB, for their part, is the
majority shareholder of the European Investment Fund (EIF), together with it
constitutes the EIB Group. As part of the Commission's Europe Investment Plan,
the EIB Group is part of a broader strategy that aims to cover the investment gap,
protecting investors from some of the risks inherent in projects.
The EIB Group was established in 2000 and consists of the EIB and the
European Investment Fund (EIF). The European Investment Fund (EI F) was es-
tablished in 1994 and was created as a public -private partnership made up of three
main groups of shareholders: the EIB, as a majority shareholder with 62.2%, the
Commission (30%) and others public and private financial institutions (7.8%).
The EI F offers various forms of instruments, for example, venture capital. The
loans granted by the EIF are mainly focused on small and medium -sized enter-
prises (SMEs) and use a wide range of innovative tools in order to improve the
access of SMEs to financing.
9.4.4. Composition and competence of the European Investment
Bank
The members of the Bank are the Member States. The shareholders of
the bank – the Member States of the European Union – collectively subscribe to
the bank's capital, and each country's con tribution reflects its economic power in
the Union.
The EIB is organized as follows2:
1 See D. Paternoster, March 2017, op. cit.
2 See O. Ținca, Drept comunitar general , Ed. Didactică și Pedagogică RA, Bucharest, 1999, p. 98.
Organizat ion and duties of the European Union institutions 205
a. The Governing Council ensures the management of the EIB; it is com-
posed of finance ministers of the Member States, establishes the general guide-
lines in the credit p olicy, approves the annual balance sheet and report, decides
to increase the capital and appoints the members of the Management Board of the
Steering Committee and of the Audit Committee;
b. The Management Board has 24 members proposed by the Member
States and one proposed by the European Commission. The members are ap-
pointed for five years. The Board of Directors decides on the granting of loans,
on guarantees, etc., with the majority of votes;
c. The Steering Committee is composed of the President and Vic e-Presi-
dents of the Bank appointed for a period of six years on the basis of the proposals
of the Board of Directors and by the Board of Governors. The Steering Commit-
tee has the task of running the current affairs, and its chairman is the chairman of
the Board of Directors;
d. The verification committee, appointed by the Board of Governors, is
responsible for checking the regularity of banking operations.
The EIB cooperates with the EU institutions, its representatives partici-
pate in the committees of the European Parliament, and the President of the EIB
participates in Council meetings when the ministers of economy and finance in
the Member States meet.
Using the capital markets and its own resources, the EIB has the mission
to contribute to the balanced a nd uninterrupted development of the common mar-
ket in the interest of the Community (article 309 TFEU). For this purpose, the
Bank facilitates, by granting loans and guarantees and without pursuing a lucra-
tive purpose, the financing in all the sectors of ac tivity of the following projects:
a. projects aimed at developing less developed regions;
b. projects aimed at the modernization or conversion of enterprises or the
creation of new activities as a result of the progressive establishment of the com-
mon marke t, which, by their size or nature, cannot be financed entirely by the
different means existing in each of the Member States;
c. projects of common interest for several Member States which, by their
size or nature, cannot be fully financed by the different means existing in each of
the Member States (article 309 TFEU).
The EIB also facilitates the financing of investment programs, combined
with the assistance provided by the Community's structural funds and other fi-
nancial instruments.
The European Investme nt Bank should not be confused with the Euro-
pean Bank for Reconstruction and Development (EBRD). The EBRD was created
in 1991 with the contribution of the EIB – 3%, for the purpose of granting loans
to the Central and Eastern European States, in order to a chieve the transition to a
206 Ioana Nely Militaru
functioning market economy1. More than 40 countries participated in setting up
the EBRD, however, more than half of the share capital is constituted with the
participation of the European Union2.
9.4.5. The European Investment B ank and the new investment
program for the European Union3
In recent years, the European Union has faced low levels of investment
due to the global financial and economic crisis, which is why the EU institutions
have provided an adequate legislative framework for this period, which has ma-
terialized in the following legislative initiatives:
– the communication from the Commission, entitled "An investment plan
for Europe", comes with solutions regarding the ways of reinvigorating invest-
ments in the EU4, creating jobs and stimulating economic growth and long -term
competitiveness;
– the proposal for a regulation of the European Parliament and of the
Council on the European Fund for Strategic Investments (EFSI)5;
– Legislative resolution adopted by the Euro pean Parliament (June 24,
2015) on the proposal for a regulation of the European Parliament and of the
Council on the European Strategic Investment Fund6. The EFSI aims to generate
private investments by mobilizing public funds and creating an environment con-
ducive to investments. An initial guarantee of EUR 16 billion, granted by the EU
to the European Investment Bank (EIB), together with a commitment of EUR 5
billion from the EIB, will mobilize private funds resulting in EUR 315 billion in
additional inve stment funds.
The plan is not intended to replace existing EU and EIB programs, but to
complement them.
✓ To this end, a parliamentary committee evaluates the activities of the
EIB and presents a report at the plenary session, at which the EIB president is
invited. On April 28, 2016, Parliament adopted a resolution on the EIB's 2014
Annual Report. The Resolu tion of the Betting proposed that the new investment
program should aim to support EU policy objectives by giving priority to invest-
ments to accelerate economic recovery and increase productivity through:
– promoting employment among young people, innovati on and SMEs;
– enhancing environmental sustainability and measures to combat climate
change;
1 See C.D. Dacian, Uniunea Europeană. Instituții. Mecanisme , 3rd ed., Ed. C.H. Beck, Bucharest,
2007, pp. 80 -81.
2 Idem .
3 See D. Paternoster, March 2017, op. cit.
4 COM (2014) 0903.
5 COM (2015) 0010.
6 Adopted texts, P8_TA(2015) 0236.
Organizat ion and duties of the European Union institutions 207
– promoting economic and social cohesion and convergence.
By its resolution, Parliament made clear the need for the EFSI to operate
efficiently, in a fully transpa rent and equitable manner, and recalled that the guar-
antee for the EFSI is meant to allow the EIB to take on more risks; Parliament
also proposed that the EIB seriously assess the financial, social and environmen-
tal impact of the project bond initiative, u pdate the external dimension of EIB
interventions and enhance the EIB's governance, transparency and control frame-
work.
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