European Parliament and the European Court of Justice
The European Parliament (EP) and the Council of the European Union are the legislative branches of the European Union. The EP is the directly-elected parliamentary institution of the European Union (EU), and, as such, is the largest trans-national directly-elected institution in the world. As a result, it is one of the most powerful representative legislative bodies in the world, despite the fact that its powers are limited because each member state is sovereign. Moreover, the Treaty of Maastricht divided the European Union into three distinct pillars, a community (EC) pillar, a common foreign and security policy (CFSP) pillar, and a police and judicial cooperation in criminal matters (PJCC) pillar.
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Get Help Now!The EP’s involvement is practically limited to the EC, though it does have some limited power and influence in the CFSP and PJCC pillars. Because the EP’s influence is the strongest in the EC, it has a significant amount of control over the EU’s economic security. For example, the European Parliament legislates in the following areas: customs, economic markets, agricultural policy, social policy, fisheries policy, economic competition, education, culture, citizenship, immigration, political asylum, consumer protection, healthcare, research, and environmental law. Despite its virtual limitations to one pillar, the EP has significant power. For example, it has control over the EU’s budget and can veto appointments to the European Commission.
The Court of Justice of the European Communities (ECJ) is the highest court in the European Union. It does not have jurisdiction over individual member nation’s laws and legal disputes, but over matters of European Union law. It interprets EU laws. Furthermore, it seeks to obtain uniform application of those laws among the member nations. The ECJ actually predates the modern formation of the EU, and was initially established as part of the European Coal and Steel Community, with the goal of resolving related disputes and questions. Its jurisdiction expanded in 1957 with the establishment of the European Economic Community and the European Atomic Energy Community. When the EU was created in 1993, the ECJ’s jurisdiction remained similar to those it held prior to the establishment of the EU, because the EDJ is largely involved in the community pillar of the EU. The ECJ has lower courts. The Court of First Instance hears suits brought by non-EU employees, while the Civil Service Tribunal hears suits brought by EU employees. The ECJ has broad jurisdiction over community, but not national, disputes, and those disputes can be brought by and against Member Nations.
Because the ECJ’s primary function is to interpret EU laws and ensure that they are applied in a consistent manner throughout the EU, the ECJ and the European Parliament are interdependent. However, that does not mean that the EP and the ECJ always work towards the same goals. On the contrary, the EP has taken an interest in expanding its power, and that interest sometimes conflicts with the ECJ’s role. The ECJ has the duty to interpret the EU’s treaties and the laws and provisions promulgated by EU institutions. Member nations can be at fault for failing to adhere to treaty provisions, but the EP can also overstep its boundaries by attempting to exert greater influence and power than allowed by treaty.
Extending the Borders of Parliament’s Jurisdiction
While the EP has shown a desire to extend its jurisdiction, the ECJ has a duty to ensure that the EP is not going beyond the legal limits of its power. There are three cases that directly address EP’s jurisdiction and demonstrate the ECJ’s role in extending or limiting that jurisdiction. In Les Verts, the ECJ determined that it had the jurisdiction to review decisions made by the EP, even in an instance where such jurisdiction was not specifically conferred by law. While that decision did not overtly limit the EP’s power, it did give the ECJ the power to review, which has the potential of significantly the EP’s power to adopt measures, since such measures are subject to judicial review. In Chernobyl I, the EP brought an action to annul a regulation adopted by Council of Ministers, which objected on the grounds of inadmissibility because the EP did not have authority to bring such an action under Article 146. However, the ECJ determined that the EP could bring an action for annulment against an act of the Council or the Commission as long as such action was aimed only at safeguarding the EP’s prerogatives. Despite the ECJ’s apparent willingness to extend the EP’s jurisdiction, the ECJ has imposed limits on what the EP can do. For example, in Comitology, the ECJ refused to grant the EP the power to bring an action for annulment in a scenario where the other available remedies gave the EP a substantial opportunity to challenge an action by the Council, and the action was not taken to safeguard the EP’s prerogatives.
In Case 294/83, Parti Ecologiste ‘Les Verts’ v. European Parliament, Judgment of the ECJ of 23 April 1986, European Court Reports 1986, p.1339 (Les Verts), the ECJ was called upon to determine an action brought under the second paragraph of the EEC Treaty requesting the ECJ to declare void the decision of the bureau of the EP concerning the allocation of general budget appropriations and a related decision of the Enlarged Bureau of the EP governing use of the appropriations for reimbursement of expenditures related to expenditures for the 1984 European elections. Before it could resolve that dispute, the ECJ had to determine several issues, which touched upon the European Parliament’s power.
Most significantly the ECJ had to determine whether it had jurisdiction to hear and determine an action for annulment brought under article 173 of the EEC treaty against a measure adopted by the EP. The ECJ determined that it did have jurisdiction to hear and determine such an action. First, the ECJ reasoned that both the 1982 decision and the 1983 rules were adopted by organs of the EP and were to be regarded as measures directly adopted by the EP.
The ECJ recognized the applicant’s position that the ECJ’s power to review the legality of measures adopted under article 173 could not be limited to measures adopted by the Council and the Commission without causing a denial of justice.
Furthermore, the EP acknowledged that the ECJ could review the legality of measures besides those adopted by the Council and the Commission.
The EP did not dispute that the ECJ had the power of judicial review in areas where such review was specifically conferred by treaty. However, the EP contended that if article 173 was broadly interpreted, allowing a challenge in an action of annulment, then the EP should also have the capacity to bring similar actions against the Council and the Commission.
The ECJ reasoned that the European Economic Community (EEC) was a community based on rule of law, because its member states and institutions were subject to judicial review to determine the constitutionality of their actions in light of the treaties governing them. Article 173, combined with articles 184 and 177; provide a complete system of legal remedies and procedures.
Article 173 specifically refers only to acts of the Council and the Commission. However, the ECJ had previously decided that the Treaty made a direct action available against all institutionally-adopted measures that were intended to have legal effects. The fact that the EP was not mentioned in Article 173 was due to the fact that the EEC Treaty merely granted the EP the power of consultation and political control, and not the power to adopt measures. Furthermore, under Article 38 of the ECSC Treaty, when the EP was given the power to adopt binding measures, the measures adopted by it were not made exempt from actions for annulment. Under the EEC Treaty, these types of actions are governed by article 173.
Therefore, the ECJ had jurisdiction to entertain the action.
In Case 70/88, European Parliament v. Council of Ministers, Judgment of the ECJ of 22 March 1990, European Court Reports 1990, p. I-2041 (Chernobyl I), the EP brought an action for annulment of a regulation adopted by the Council. The Council raised an objection of inadmissibility, based on a prior judgment by the ECJ that the EP did not have the capacity to bring an action for annulment. The ECJ disagreed with the Council. First, the ECJ determined that, since this dispute related to the Euratom Treaty, the admissibility of an action for annulment had to be derived from that Treaty.
The ECJ agreed that Article 146 of the Euratom Treaty did not give the EP the right to bring an action of annulment, because it was identical to Article 173 of the EEC Treaty.
The ECJ pointed that in Article 146, the EP was not included among the institutions that could bring an action for annulment against any measure of another institution.
In addition, because the EP was not a legal person, it could not bring an action as a person.
However, that does not leave the EP without legal remedies. For example, the EP has the right to bring an action for failure to act, and can also take action to have the ECJ review acts of the Council or the Commission.
Despite those protections, the ECJ determined that the legal remedies provided for in the Euratom Treaty and EEC treaty might be ineffective or uncertain.
For example, an action for failure to act cannot be used to challenge a measure that has already been adopted.
In addition, though the EP has the right to seek a preliminary ruling on the validity of such an action, such a ruling does not mean that anyone will actually bring an action for annulment.
In fact, even though the Commission is required to respect the EP’s prerogatives, it is not obliged to adopt the EP’s positions as its own.
As a result, the ECJ concluded that the legal remedies available to the EP were not sufficient to guarantee that a measure adopted by either the Council or the Commission in disregard of the EP’s prerogatives will be reviewed.
That potential lack of review creates a problem because those prerogatives are one of the elements of balance created by the Treaties, and “observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions.”
Furthermore, the institutional balance requires that it be possible to penalize any breach of the institutional balance rule.
It is the ECJ’s job to ensure that law of the Treaties is observed which requires that the ECJ be able to maintain the institutional balance.
While the ECJ cannot include the EP among the institutions that can bring an action under Article 173 or Article 146, it can remedy a procedural gap in the treaties.
As a result, the Court determined that “an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the actions seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement. Provided that condition is met, the Parliament’s action for annulment is subject to the rules laid down in the Treaties for actions for annulment brought by the other institutions.”
In Case 302/87, Parliament v. Council of the European Communities, Judgment of the ECJ of 27 September 1988, European Court Reports 1988, 5615 (Comitology), the EP brought an action under Article 173 of the EEC Treaty seeking a declaration that a Council decision was void. The Council objected that the action was inadmissible pursuant to Article 91(1) of the Rules of Procedure of the Court, based on the fact that Article 173 did not expressly provide that the EP could bring an action for annulment. The ECJ agreed with the Council. The ECJ held that Article 173 contrasted the right of actions of institutions with the right of action of individuals, whether natural or legal persons, and that the EP is not a legal person.
Furthermore, the court found that Article 173 would not serve as an appropriate basis for an action of annulment by the EP because applicants have to be directly and individually concerned by the actual content of the challenged act.
The ECJ held that the EP is in the position to exercise influence over the measures adopted by the Council.
However, the fact that the EP had the power to challenge failure to act did not mean that it was entitled to bring actions for annulment, because there was no necessary link between an action for annulment and an action for failure to act.
In fact, the ECJ explicitly rejected the EP’s argument that there had to be a parallelism between the capacity of defendant and the capacity of applicant in proceedings for judicial review.
The Maastricht Treaty and the Reinforcement Powers of the European Parliament
The Maastricht Treaty, signed in 1992, was significant because it signaled a turning point in the European integration process.
While prior unification treaties addressed the common economic goals of the member nations, the Maastricht Treaty went a step further and discussed the idea of political unity. The Maastricht Treaty set up the pillar system. The first pillar was based on the prior European economic treaties, and discussed the community dimension of the union. The second and third pillars added new dimensions to the EU; common foreign and security policy and police and judicial cooperation in criminal matters. The EP’s power is mainly confined to the first pillar, but that does mean it is powerless in the other two pillars. However, the main difference between the community pillar and the new pillars “has to do with the procedure of taking decisions and with the competence of the community institutions.”
As a result, “in the community pillar decisions passed on a majority will be more and more a general rule, and the role of community institutions is essential; in the so called intergovernmental cooperation pillars decisions must be taken take by common consent and the Commission, the European Parliament or the Court of Justice have scarcely competences.”
Because the ECJ greatly expanded the EP’s ability to bring actions for annulment and otherwise challenge actions by the Council and the Commission, Article 173 became an insufficient guideline for when the EP could bring such actions. As a result, the Treaty of Nice amended former Article 173. Article 230 of the Treaty of Nice provides that:
The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
Article 230 signaled a major change because it explicitly recognized the EP’s ability to bring actions for annulment. While those unfamiliar with European law may not understand the significance of such actions, the reality is that actions for annulment play a significant role in European administrative law. In fact, “annulment of a binding institutional act occupies a central place among the judicial sanctions provided for in the Treaty, and, although the procedure was modeled on that found in French administrative law, supervision of the legality of institutional acts is to be found, in one form or another, in the legal systems of all the Member states.”
Conclusion
Thought the ECJ has obviously engaged in judicial activism in relation to the EP’s powers to bring actions of annulment and exert influence over other the other governmental institutions, fears that the ECJ has unduly increased the EP’s power seem largely unfounded. After all, the Treaty of Nice makes it clear that the EU members agree that the EP should have the power the ECJ extended to it. Moreover, the ECJ is not the type of activist court that suggests judicial, rather than legislative, law-making. On the contrary, changes have “been lackluster in both ambition and result, incremental rather than radical.”
In a democratic system where legislation is driven by popular vote, one would expect to find only incremental changes created by the judicial branch of the governing body. Furthermore, one would expect to see these changes ratified by later legislation. This is exactly what has occurred in regards to the ECJ’s expansion of the EP’s powers to challenge decisions by other institutions, suggesting that the ECJ has not unduly expanded those powers.
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