Public law exam tips!

Q1. Role of Commission (powers, duties, composition and relationship with other institutions)

(Articles 211-219 EC). This guideline is brought to you by Notary public London

Members of the European Commission are called “commissioners”. There is one for every member state. The commission and the council both have powers to make legislation. Both can make regulations and directives however, it doesn’t mean the commissioner acts other than in an executive fashion. The treaty of Lisbon provides that the number of commissioners will correspond to two thirds of the number of member states.

The method by which they are appointed is that after consulting the European Parliament, the MS will first nominate the president of the commission by qualified majority. For a 5 yr term on grounds of general competence and “whose independence is beyond doubt”

The duties and powers are set of the commission are set out in Article 211 of the EC treaty.

  1. i) Guardian of the Treaties – the commission has been given the power to ensure that the provision of the treaty and the measures adopted for their implementation are applied. It monitors performance of the MS in complying with their treaty obligations and may receive complaints from individuals or companies when MS infringe their rights. Under Article 226, the commission may investigate the MS in breach and prosecute. Obligations are known as the “loyalty clause” set out in Article 10 which states “MS must take all appropriate measures, whether general or particular to ensure fulfilment of obligations arising from treaty”.
  2. ii) Initiator of Community action – Treaty of European Union now allows the Council and Parliament to request that the commission submits appropriate proposals for legislation where these are required for the purpose of implementing the treaty. It will issue Green papers containing the description of the problem and the solution and then a White paper outlining the proposed legislation for consultation.

iii) Executive of the community – it has been given the power of own decision which it exercise in the functioning and development of the common market.  It also manages the community budget for submission to the council and administer special funds. It acts as a negotiator of international trade and co-operation agreements with 3rd countries.

The commission represent the interests of the Union as a whole and are tasked under Article 213 EC to be independent of national interests and instated consider the “community interest” when making decisions.

The commission also monitors the acts of the council, parliament and European central bank and mat initiate action against them when it is believed that; their failure to act constitutes an infringement of the Treaty (Article 232) or an act of the institution constitutes an infringement of the Treaty (Article 230)

Q2. Article 230 EC

This allows an action for judicial review to be taken before the ECJ, which has the competence to examine the measure ion question. This article is in essence an action for annulment of the contested act. And under Article 231, the ECJ has power to declare the act void.

It states that the court of justice may review the legality of the following; Acts from Parliament, council, commission, and European central bank. Acts which may be subject for review will, however be widened considerably if the treaty of Lisbon is adopted.

If an individual wishes to challenge the legality of a legislative act of the community, they must give reasons for their challenge. The reasons which the court will accept are listed under Article 230 EC.

Under Article 7 EC, each community institution must act within the limit of its powers. If a Community institution were to enact legislation in an area outside of its powers, the act in question could be annulled for lack of competence.

Infringement of an essential procedural requirement. This ground is applicable to situations in which the correct procedure has not been followed in enacting the act in question.

Infringement of the treaty or any law relating to the application of the treaty. An action for annulment may be taken if the contested act infringes provisions. This ground also permits review on the basis that the act in question infringes one of the general principles of community law.

Misuse of powers, this refers to the scenario under which such powers are exercised to achieve a purpose which is not linked to the reasons for which the power was initially granted

Time limit for annulment is 2 months.

The consequence of a successful action for annulment are outlined in Article 231 EC

“If the action is well founded, the court of justice shall declare the act concerned to be void”

“The ECJ after a successful annulment can declare an act of the community or part of act to be Void.

An action for judicial review can be brought by someone who has “standing” or locus standi.

3 types of applicants under Article 230 \z having “standing” to bring an action for judicial review.

MS, EP, Council and Commission = Privileged applicants.

Court of Auditors, and E.Central Bans = Semi privileged applicants

Natural and legal persons = Non-privileged persons.