In this essay I shall attempt to analyse whether the separation of powers is respected in the attribution of competences within the European Union.
The separation of powers
In order to assess this question we first have to consider what the doctrine of separation of powers actually is. The idea was developed by the French jurist Montesquieu in the 18th Century. It is based on a division of power between the legislature, the executive and the judiciary. Each institution have their distinct and largely exclusive domain. The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organisations. The executive’s main function is to carry out the law. It initiates legislation, maintains order, promotes social and economic welfare, administrates public services and conducts external relations of the state among other things. The primary judicial function is to determine disputed questions of fact and law in accordance with the law laid down by the legislature. The concept of “separation” may mean at least three different things: (i)
that the same persons should not form part of more than one of the three organs of government, e.g., that ministers should not sit in Parliament; (ii)
that one organ of government should not control or interfere in judicial decisions; (iii)
that one organ of government should not exercise the functions of another, e.g., that ministers should not have legislative powers.
The reason why there should be a separation of powers is so that each distinct institution can carry out its function independently and check the other two – a form of checks and balances. The doctrine is opposed to the concentration of state power in a single person or group, since that is a clear threat to democratic government and in the same sense it is important that the legislature is not only a rubber stamp for the executive. Even an independent judiciary is necessary if the rule of law is to have any substance. It is in the US’ constitution that this doctrine can best be seen.
How then does the division of power look like within the European Union? The main institutions within the Union are the Council of the EU (also known as the Council of Ministers), the European Commission, the European Parliament (the EP) and the European Court of Justice (the ECJ). In deep contrast to the doctrine of separation of powers, there is no independent legislature or executive within the EU. Almost all of the institutions are interrelated and there is no clear separation of competences. Only the judiciary (the ECJ) is more or less separated from the other institutions regarding its judiciary powers.
In the EU, the legislative power is shared between the Council of EU and the European Parliament. The Council is the EU’s main decision-making institution and final legislative authority. However, it shares competence with the EP in respect to the legislative power. For a wide range of Community issues it exercises its legislative power in co-decision with the Parliament. The role of the Council as the main decision-making institution in the EU is defined in terms of three pillars set out in the Treaty of Maastricht. The first pillar covers a wide range of policies such as agriculture, environment, transport, energy and development. The Council may either adopt, amend or ignore the proposed law. However, a wide range of legislation is subject to a co-decision procedure. Depending on the individual legal basis, the EP takes part, to varying degrees, in the drafting of Community legislation. The role of the EP as co-legislator applies to a wide range of issues - 39 legal bases in the EC Treaty. The co-decision procedure means that legislation has to be adopted by both the Council and the Parliament. This is a clear example of the mixture of competences that exists within the EU. For the two other...
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