1.3.8.     The Commission

LEGAL BASIS

211 to 219 (155 to 163) ECT.

HISTORY

The Commission is composed of 20 Members, or Commissioners (two for each "large Member State", and one for each of the others).

Commission is the Community's one executive body. To begin with, each Community had its own executive the High Authority for the European Coal and Steel Community of 1951, and a Commission for each of the two communities set up by the Treaty of Rome in 1957, the EEC and Euratom. These three bodies merged into a single European Commission under the Treaty of 8 April 1965, which took effect on 1 July 1967 (* 1.1.2.).

COMPOSITION AND LEGAL STATUS

1.   Number of Members

Under the Treaty the Commission is composed of 20 Members, at least one and not more than two per Member State. In practice the five most populous countries return two Commissioners and the others one.

The protocol on the institutions, annexed to the Treaty of Amsterdam (amending the various European treaties) makes provision to amend the Commission's composition in the event of further enlargement:

• if this adds no more than five countries, the Commission will in future have only one Member per State
• if it adds more than five countries, there will have to be an intergovernmental conference to review the Commission's composition (and the other institutions')

2.     Method of nomination

Treaty of Amsterdam made substantial changes.

a.  Before:

• The Member States reached common agreement, after consulting Parliament, on the person they proposed to appoint president of the Commission, and then, in consultation with that person, on the other Commissioners;
• all such nominations were then jointly put to Parliament for approval;
• after approval the nominees were appointed by the Member States.

b.  After:

• The Member States' nominee for Commission president is first put to Parliament for approval;
• after approval the Member States appoint the other Commissioners by common accord with the nominated President;
• finally, as before, there is a further round of parliamentary approval and they are appointed.

3. Legal status

a. Term of office

Since the Treaty of Maastricht a Commissioner's term of office has matched Parliament's legislative term of five years. It is renewable.

b. Personal accountability (Articles 213(2) and 216)

-   Members of the Commission are required:

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

-   Commissioners can be dismissed by the Court of Justice, at the request of the Council or the Commission itself,

• if they break any of these obligations,
• if they cease to fulfil the conditions required for the performance of their duties,
• if they are guilty of serious misconduct.

c. Collective accountability

The Commission is collectively accountable to Parliament under Article 201 (144). If Parliament adopts a motion of censure against the Commission, all of its Members are required to resign.

1. Allocation of tasks and administrative organization

-   After establishing the Commission the President allocates the sectors of its activity among the Members. This gives each Commissioner responsibility for a specific sector and authority over the administrative departments concerned.

-   The Commission can appoint one or two Vice-Presidents from among its Members. It normally appoints two (up to the Treaty of Maastricht there were six, appointed by common accord of the Member States).

-   The Commission has a general secretariat consisting of 23 directorates-general and 14 specialist departments, including the Legal Service, Statistical Office and Publications Office

2. Method of decision-making

With one or two exceptions, the Commission takes decisions by a majority vote, under Article 17 of the Merger Treaty. This establishes the principle of collegiate responsibility.

As it acts in the common interest the Commission is responsible for launching Community action and ensuring that it is carried out.

1. Power of initiative

As a rule the Commission has a monopoly on the initiative in Community decision-making. It draws up proposals for a decision by the two decision-making institutions, Parliament and the Council.

a. Full initiative: the power of proposal

The power of proposal is the complete form of the power of initiative, as it is always exclusive and is relatively constraining on the decision-making authority, which cannot take a decision unless there is a proposal and must base it on the proposal as presented.

-   Legislative initiative The Commission draws up and submits to the Council and Parliament any legislative proposals (regulations or directives) that are needed to implement the treaties (* 1.4.1.). In drawing up such proposals the Commission normally takes account of the national authorities' guidelines. This concern was one of the aspects of the 1966 ‘Luxembourg Compromise'. This document, which is a declaration with no legal value (* 1.1.2.), expresses the wish that where proposals are of a particularly delicate nature (of ‘particular importance') the Commission will contact the governments of the Member States before drafting begins, but it does add that such consultation must not affect the Commission's right of initiative.

-   Budgetary initiative The Commission draws up the preliminary draft budget, which is put to the Council under Article 272(2) and (3) [203(2) and (3)] (* 1.4.3.).

-   Initiative in Community relations with third countries The Commission is responsible for negotiating international agreements under Articles 133 and 300 (113 and 228), which are then put to the Council for conclusion.

b. Limited initiative: the power of recommendation or opinion

form of initiative differs from the previous kind because, firstly, it does not always give the Commission exclusive rights and, secondly, it does not form the only basis for decision-making by the authority concerned.

-   in the context of economic and monetary union:

• the Commission has an important role in setting up EMU. For the move to the third stage, in 1999, it was asked to report to the Council on whether the Member States had fulfilled the conditions for access and to make recommendations for the access of individual Member States, under Article 121 (109j). It will have the same task with the access of further countries;
• in managing EMU the Commission submits to the Council: recommendations for draft broad guidelines of the economic policies of the Member States, under Article 99(2) [103(2)]; reports reviewing economic developments in the Member States, under Article 99(3) [103(3)]; recommendations on the attitude to be taken on Member States which are not complying with the broad guidelines, under Article 99(4) [103(4)]; proposals for measures in the event of serious economic difficulties in the Community or a Member State, under Article 100(1) and (2) [103a(1) and (2)]; opinions and recommendations in the event of an excessive government deficit in a Member State, under Article 104(5) and (6) [104c(5) and (6)]; proposals for conferring on the European Central Bank specific tasks for prudential supervision of credit institutions, under Article 105(6); proposals (in the absence of proposals from the Bank) for amending the Statute of the European System of Central Banks, under Article 107(6) [106(6)]; recommendations for the exchange rate between the single currency and the other currencies and for general orientations for exchange-rate policy, under Article 111 [109]; recommendations on measures to be taken if a Member State is in balance-of-payments difficulties, under Article 119 [109h].

-   Under the common foreign and security policy and police and judicial cooperation: in these areas, not only is the Commission fully involved in the Council's work, but it may also — in the same way as the Member States — consult the Council on any proposal, under Articles 22 and 34(2) EUT [J.12 and K.6].

2. Powers to monitor the implementation of Community law

The Community treaties require the Commission to ensure they are properly implemented, together with any decision taken to implement them (secondary law). This is its role as guardian of the treaties. It does so mainly through the‘ failure to act' procedure under Article 226 (169) ECT: if it considers that a Member State has failed to fulfil an obligation under the treaty, it can initiate proceedings by requiring the State concerned to submit its observations. If these do not satisfy the Commission it delivers a reasoned opinion requiring the matter to be put right by a specific date; after that date it can ask the Court of Justice to settle the matter.

3. Implementing powers

a. Conferred by the treaties

The main ones are:

• implementing the budget, under Article 274 (205) ECT;
• authorising the Member States to take safeguard measures laid down in the treaties, particularly during transitional periods;
• enforcing the competition rules, particularly in monitoring state subsidies, under Article 88(2) [93(2)].

b. Delegated by the Council

Articles 124 EAEC and 211 (155) ECT state that the Commission must exercise the powers conferred on it by the Council for the implementation of the rules laid down by the Council. The Single Act amended the EC Treaty, in Article 202, so as to require the Council to confer such powers, but it also allowed the Council:

• to reserve the right to exercise implementing powers itself,
• when conferring such powers on the Commission, to impose certain requirements.

As part of these ‘requirements' the Council has taken to setting up ‘committees' composed of national civil servants which are associated with the Commission's implementing powers. While some of these committees are only advisory, others make it possible to curb the Commission's powers (in the case of management committees) or even absorb them (in the case of regulatory committees). Parliament has repeatedly criticised the adverse effects of this ‘commitology', which is increasingly inappropriate as the codecision procedure spreads into general use; see in particular Parliament's resolution of 13 December 1990. But instead of solving the problem as Parliament requested, the Amsterdam Treaty merely invites the institutions to do so.

However, there is one area in which Council regulatory acts have conferred considerable implementing powers on the Commission. This concerns the competition rules applying to companies — concerted practice and abuse of a dominant position (* 3.3.1. and 3.3.2.).

4. Regulatory powers

The treaties seldom give the Commission full regulatory powers.

a. In the ‘obsolete' provisions:

• establishing levies on undertakings under the ECSC Treaty;
• pacing the abolition of taxes and measures having an equivalent effect to customs duties or quantitative restrictions during the transitional period of the Treaty of Rome, setting up the customs union.

b. In provisions that remain in force:

• applying Community rules to public undertakings and public service undertakings, under Article 86(3) [90(3)].

5. Consultative powers

-   The treaties give the Commission a general power of recommendation and opinion, under Article 211 (155) ECT.

-   They also provide for it to be consulted on certain decisions, such as on the admission of new Member States to the Union, under Article 49 EUT;

-   Lastly, the Commission is consulted on the Statute for MEPs and the Statute for the Ombudsman.

01/12/2000