The European Union has a unique institutional set up that essentially comprises of three central pillars, namely; the Council of the European Union, the European Parliament, and the European Commission. In unison, these institutions hold crucial responsibilities in sustaining the European Union albeit each play a distinctive part in implementing their functions. This lies in the wake of the changes introduced by the Treaty of Lisbon, where reforms of the EU’s institutional framework and structure established an imperative role of the EU’s stance in the socio-economic developments in Europe as well as the rest of the world.
The legal system in the EU, much like most national legal systems, is largely made up of the legislative, the executive and the judiciary – with the legislative and executive being the main focuses of this discussion. The EU has been subject to the belief of “unity in diversity” over the years, nevertheless, this unity has eventually begun to erode. Irrefutably, there are rising concerns about the unity, efficiency and democratic legitimacy of the EU political system that is in play.
Nonetheless, the relationship of international economic law with public international law, particularly to EU laws, is a complex one. Taking this into account, the consequence of the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA) for the first time since its increase in power is clear, in that it undeniably triggered a tension with the European Commission which had invested substantially to negotiate the agreement. This is because the heavy criticisms of ACTA which included the secrecy of negotiations, as well as threats to freedom and human rights appeared as a catalyst for the European Parliament to showcase its newfound extension of powers.
Before we delve deeper into the connection between ACTA’s rejection and the divergence of the legislative and executive branch of the European government, it is noteworthy to appreciate that one of the effects of the Treaty of Lisbon was the significant extension of Parliament’s powers to approve and reject international agreements, which now made the legislative process even more complex. As Joe McNamee from the European Digital Rights lobby (EDRi) puts it, "This is about much more than just ACTA. It's about the European Parliament acting as an independent and democratic institution."
Thus, this brings us to the concept of institutional balance which has long been regarded as both political and legal. Nevertheless, under any constitution there must be a separation of powers in order to ensure that power is dispersed among the major institutions of the state rather than concentrated in one institution. However, the separation of powers among the EU institutions differs from conventional arrangements. Typically, the legal doctrine of separation of powers suggests that the principal pillars – the executive, legislative and judiciary – should be divided in person and in function in order to safeguard liberties and guard against tyranny, albeit this is often complicated by the different layers of the supranational authority, such as the Commission and the Parliament. According to the strict interpretation of the separation of powers, none of the three branches may exercise the power of the other, and instead, the independent action of the separate institutions should create a system of checks and balances between them.
Ultimately, it would indeed be ideal for a system of checks and balances in the European government.
In place of a Montesquieu-style separation of powers, the ECJ has developed instead the concept of institutional balance.
The separation of state powers has been a central concept of modern constitutionalise ever since Montesquieu. The classic formulation is that there are three distinct functions of government and that no individual should be a member of more than one of them. Interestedly, at the international and European level, the principle of separation of powers simply does not exist. In the words of Lenaerts: “It simply appears impossible to characterize the several Community institutions as holders of one or other power since a close analysis of their prerogatives certainly does not indicate a clear-cut line between the legislative and the executive branches of Community government”
The separation of powers as it is classically understood also includes the idea that one branch of government will be checked and balanced by the action of another (Marshall). The essential constitutional “value” behind the principle is that it functions as a guarantee against tyranny – or put more positively in order to ensure the protection of liberty. Checks and balances’ do not presuppose a radical division of government into three separate parts, with particular functions neartly parcelled out amongst them. Rather, “the focus is on relationships and interconnections, on maintaining the conditions in which the intended struggle at the apex may continue” (Strauss)
From the outset, the central instrument of transparency has been the right of public access to documents.
Figure 3 UK Parliament
Allegations of expanding executive power in European governance
The executive control in the context of the European Union has indeed shown some evolution over the years. Most prominently, a relatively new perspective grounded in comparative politics analyses the evolving nature of the EU in a manner that does not compare it to either international organizations nor states. (Hix)
The picture that emerges at the level of the EU political system in terms of executive governance is a dispersed and fragmented one, lacking the unitary conception of “government” in the nation state as a general term to describe the body that has authority in a given unit as well as to describe the whole constitutional system. (Curtin)
Attempts by scholars to describe the executive branch of the EU – the Commission, the Council of Ministers, or the European Council – as the “government” of the EU in a constitutional sense remain far-fetched. (Eijsbouts)
In fact, Europeans in general tend to use politics and administration as an internal subdivision of the executive, in contrast to the American view of administration as an appendage to the separation of the three distinct powers: executive, legislative and judicial (Rutgers)
On the European view, the executive is considered to have two types of power: political, the leadership of society through the proposal of policy and legislation and administrative, the implementation of law, the distribution of public revenues and the passing of secondary and tertiary rules and regulations. (Hix)
The argument is that the EU and its predecessors bring about a new executive order that transcends the inter-governmental origins due in particular to the consolidation of the European Commission as a new and distinctive executive actor at the supranational European level, outside of the inter-governmental locus, the Council of Ministers. The Commission can be described as the “core executive” of the Union.
In this respect… ACTA , expanding executive power…
the Commission exercised supranational executive power in imposing sanctions on companies for infringement of the Treaty competition rules as well as having a policy leadership role. The result is an increasingly compound and accumulated order of executive power in contemporary Europe.
Of course, the nature and function of the executive at the European level, with the supranational intertwined with the national, has a habit of popping up often in an unpredictable and novel manner in evolving legal and institutional practices. It also evolves and changes – unpredictably &nda
sh; over time.
The most recent economic crisis, resulted in an acceleration of decision-taking by supranational and national executives at the European level, often with a very profound and wide-reaching national impact. Executive dominance by EU institutions and by some national actors at the European level has now reached into such sensitive policy fields as national budgets and macro-economic decisions.
Executive power has long been the “residual”, hard to define and rarely attempted, category and as exercised within the EU political system it is clearly not unitary. It consists of supranational institutions and the governments and civil servants of the Member States. Executive actors and administrative constellations transgress national levels of governance and national borders in a manner that challenges the coherence of national governments in an unprecedented way.
The scope and nature of executive power in a given political system remains difficult to define in substantive terms. This may have something to do with the fact that the executive power is rarely fixed and determinate but evolves over time, shaped by social and political circumstances as well as the letter of a constitution. One thing that does seem inherent in executive power is its tendency towards expansion (Poguntke and Webb)
In the political system of the EU this may be aggravated by the fact that the legislative and executive functions are so mixed together, more so than in the political systems of the constituent Member States where the legislative power will basically be exercised by a directly elected parliament. The executive branch of government can arguably be considered today as “the most dangerous branch” (Flaherty), particularly in the context of externalization and Europeanization.
The crucial challenge in coming years is how these carious levels can be better related and interconnected with one another in a perspective inspired by the need to ensure that growing executive power is subject overall to a cumulative system of checks and balances.
Figure 4 Books
Possible impacts of these tendencies on legal education
In light of globalisation in the economic era, there is a profound effect on the way in which law is perceived, produced and consumed which undoubtedly have consequences for legal education. The possible impacts of the tendencies of the apparent disunity of the European government and the allegations of the expanding executive power on legal education are vast.
Thus, political economy does much to determine the ends and means of legal education and research, especially since globalization is a dominant influence on political economy. In essence, globalization is associated not only with a change in our material circumstances and relationships, and not just with the adaptation of public policy, legal practice and legal education to new patterns of economic activity. Rather, globalization involves a change in our social values, and in our fundamental understandings about what role law does play and should play in society. Globalization is, in other words, an idealogy.
Scheuerman argued that globalization, together with technological change, has reshaped the constitutional matrix within which the three branches of government perform their functions. It has disabled the legislature which cannot legislate in derogation of free trade, let alone debate in any serious way the detailed regimes by which foreign and domestic economic activity is to be regulated. This in turn has enhanced the power of the executive branch, which typically enjoys an open-ended parliamentary mandate to negotiate trade regimes, and to make critical decisions concerning fiscal and economic policies.
But not only is globalization effectively amending the constitutions of states by triggering the redistribution of powers amongst the different branches and lecals of government, it is also subjecting national governments to entirely new constitutional constraints.
However, unlike the study of economics, the particular strength of the law derives not only from the predictability of the system, but rather from the experiences and understandings that it encounters. In summary, the merest scrutiny of the study of law will reveal that neo-liberal globalization has redefined the very concept of law itself, redrawn the map of law-making and law enforcement, revised legal practice and reconfigured legal education.