The European Commission

The Commission is the EU institution that has the monopoly on legislative initiative and important executive powers in policies such as competition and external trade. It is the principal executive body of the European Union and it is formed by a College of members composed of one Commissioner per Member State. It also chairs the committees responsible for the implementation of EU law. The former comitology system has been replaced by new legal instruments, namely implementing and delegated acts.

Legal basis

Article 17 of the Treaty on European Union (TEU), Articles 234, 244 to 250, 290 and 291 of the Treaty on the Functioning of the European Union (TFEU), and the Treaty Establishing a Single Council and a Single Commission of the European Communities (Merger Treaty)[1].

History

At the beginning, each Community had its own executive body: the High Authority for the European Coal and Steel Community (1951) and a Commission for each of the two communities set up by the Treaty of Rome in 1957, the EEC and Euratom. These were merged into a single European Commission on 8 April 1965 by the Merger Treaty (1.1.2).

Composition and legal status

a.Number of members

For a long time the number of Commissioners per Member State had to be no less than one and no more than two. The Treaty of Lisbon originally stipulated that the membership of the Commission, from 1 November 2014, was to be equivalent to two thirds of the number of Member States. At the same time, it introduced an element of flexibility by allowing the European Council to determine the number of Commissioners (Article 17(5) TEU). In 2009, the European Council decided that the Commission would continue to consist of a number of members equal to the number of Member States.

b.Method of appointment

The Treaty of Lisbon stipulates that the results of the European elections have to be taken into account when the European Council, after appropriate consultations (as set out in Declaration 11 on Article 17(6) and (7) of the Treaty on European Union, annexed to the Lisbon Treaty) and acting by a qualified majority, proposes the candidate for President of the Commission to Parliament. This candidate is elected by Parliament by a majority of its component members (Article 17(7) TEU).

The Council of the European Union (hereinafter ‘the Council’), acting by a qualified majority and by common accord with the President-elect, adopts the list of the other persons whom it proposes for appointment as members of the Commission, on the basis of the suggestions made by Member States.

The President and the other members of the Commission, including the High Representative of the Union for Foreign Affairs and Security Policy, are subject to a vote of consent, as a body, by Parliament and are then appointed by the European Council, acting by a qualified majority.

Since the Treaty of Maastricht a Commissioner’s term of office has matched the European Parliament’s five-year term and is renewable.

c.Accountability

1.Personal accountability (Article 245 TFEU)

Members of the Commission are required:

  • to be completely independent in the performance of their duties, in the general interest of the Union; in particular, they may neither seek nor take instructions from any government or other external body;
  • not to engage in any other occupation, whether gainful or not.

Commissioners may be compulsorily retired by the Court of Justice, at the request of the Council or of the Commission itself, if they breach any of the above obligations or have been guilty of serious misconduct (Article 247 TFEU).

2.Collective accountability

The Commission is collectively accountable to Parliament under Article 234 TFEU. If Parliament adopts a motion of censure against the Commission, all of its members are required to resign, including the High Representative of the Union for Foreign Affairs and Security Policy as far as his or her duties in the Commission are concerned.

Organisation and operation

The Commission works under the political guidance of its President, who decides on its internal organisation. The President allocates the sectors of its activity among the members. This gives each Commissioner responsibility for a specific policy sector and authority over the administrative departments concerned. After obtaining the approval of the College, the President appoints the Vice-Presidents from among its members. The High Representative is automatically a Vice-President of the Commission. Current President Jean-Claude Juncker decided to organise the College into seven clusters led by Vice-Presidents. A member of the Commission must resign if the President so requests, subject to the approval of the College.

The Commission has a Secretariat-General consisting of 33 departments (directorates-general) and 11 special departments (services), including the European Anti-Fraud Office, the Legal Service, the Historical Archives and the Publications Office. Barring a few exceptions, the Commission acts by a majority of its members (Article 250 TFEU).

Powers

a.Power of initiative

As a rule the Commission has a monopoly on the initiative in EU law-making (Article 17(2) TEU). It draws up proposed acts to be adopted by the two decision-making institutions, Parliament and the Council.

1.Full initiative: the power of proposal
a.Legislative initiative

The power of proposal is the complete form of the power of initiative, as it is always exclusive and constrains the decision-making authority to the extent that it cannot take a decision unless there is a proposal and it has to base its decision on the proposal as presented.

The Commission draws up and submits to the Council and Parliament any legislative proposals (for regulations or directives) needed to implement the treaties (1.4.1).

b.Budgetary initiative

The Commission draws up the draft budget, which it proposes to the Council and Parliament under Article 314 TFEU (1.4.3).

c.Relations with non-member countries

Where a mandate has been given by the Council, the Commission is responsible for negotiating international agreements under Articles 207 and 218 TFEU, which are then submitted to the Council with a view to their conclusion. This includes negotiations for accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(2) TEU). As regards foreign and security policy it is the High Representative who negotiates agreements. Under Article 50 TEU and Article 218(3) TFEU the Commission submits recommendations on the opening of negotiations on the withdrawal from the EU, for which it can also be nominated as a negotiator on the EU’s behalf.

2.Limited initiative: the power of recommendation or opinion
a.In the context of Economic and Monetary Union (4.1.2)

The Commission has a role in managing Economic and Monetary Union (EMU). It submits to the Council:

  • recommendations for the draft broad guidelines for the Member States’ economic policies, and warnings if those policies are likely to be incompatible with the guidelines (Article 121(4) TFEU);
  • assessment proposals to enable the Council to determine whether a Member State has an excessive deficit (Article 126(6) TFEU);
  • recommendations on measures to be taken if a non-euro area Member State is in difficulties as regards its balance of payments, as provided for in Article 143 TFEU;
  • recommendations for the exchange rate between the single currency and other currencies and for general orientations for exchange-rate policy, as provided for in Article 219 TFEU;
  • assessment of national policy plans and presentation of country-specific draft recommendations falling under the European Semester.
b.Under the Common Foreign and Security Policy

In this area many competences have been transferred from the Commission to the High Representative of the Union for Foreign Affairs and Security Policy and her European External Action Service (EEAS). However, the Commission may support the High Representative in submitting any decision to the Council concerning the Common Foreign and Security Policy (Article 30 TEU). The HR is also a Commission Vice-President.

b.Power to monitor the implementation of Union law

The Commission is required under the Treaties to ensure that the Treaties themselves, and any decisions taken to implement them (secondary legislation), are properly enforced. Therein lies its role as guardian of the Treaties. This role is exercised mainly through the procedure applied to Member States where they have failed to fulfil an obligation under the Treaties, as set out in Article 258 TFEU.

c.Implementing powers

1.Conferred by the Treaties

The main powers vested in the Commission are as follows: implementing the budget (Article 317 TFEU); authorising the Member States to take safeguard measures laid down in the Treaties, particularly during transitional periods (e.g. Article 201 TFEU); and enforcing competition rules, not least by keeping State aid under review, in accordance with Article 108 TFEU.

In the financial rescue packages dealing with the debt crises of some Member States, the Commission is responsible for the management of the funds raised through and guaranteed by the EU budget. It also has the power to alter the voting procedure in the European Stability Mechanism (ESM), enabling the Board of Governors, instead of acting unanimously, to act by a special qualified majority (85%), if it decides (in agreement with the ECB) that a failure to adopt a decision to grant financial assistance would threaten the economic and financial sustainability of the euro area (Article 4(4) of the ESM Treaty) (4.2.3).

2.Delegated by Parliament and the Council

In accordance with Article 291 TFEU the Commission exercises the powers conferred on it for the implementation of the legislative acts laid down by Parliament and the Council.

The Treaty of Lisbon has introduced new ‘rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers’ (Article 291(3) TFEU and Regulation (EU) No 182/2011). They replace the previous committee mechanisms with two new arrangements, the advisory procedure and the examination procedure. The right of scrutiny accorded to Parliament and the Council is formally included, as is a provision for an appeal procedure in cases of conflict.

3.Delegated acts

The Treaty of Lisbon has also introduced a new category of acts, ranking between legislative and implementing acts. These ‘delegated non-legislative acts’ (Article 290 TFEU) are ‘acts of general application to supplement or amend certain non-essential elements of the legislative act’ (also called the ‘basic act’). In principle, Parliament enjoys the same rights of oversight as the Council.

d.Regulatory and consultative powers

The Treaties seldom give the Commission full regulatory powers. One exception to that rule is Article 106 TFEU, which empowers the Commission to enforce Union rules on public undertakings and undertakings operating services of general economic interest and, where necessary, to address appropriate directives or decisions to Member States.

The Treaties provide the Commission with the power to make recommendations or deliver reports and opinions in many instances. They also provide for it to be consulted on certain decisions, such as on the admission of new Member States to the Union (Article 49 TEU). The Commission is also consulted, in particular, about changes in the statutes of other institutions and bodies, such as the Statute for Members of the European Parliament, of the European Ombudsman and of the Court of Justice.

Role of the European Parliament

The Commission is the principal interlocutor of Parliament in legislative and budgetary matters. Parliamentary scrutiny of the Commission’s work programme and its execution is increasingly important for ensuring better democratic legitimacy in EU governance.

[1]OJ P 152, 13.7.1967, p. 2.

Petr Novak

04/2017