Questions concerning how to balance public power and individual and political self-determination within a constitutional order are universal. Republican thought has been an essential strand of constitutionalism designed to achieve such a balance since antiquity. The central tenants of republicanism include non-domination, non-arbitrariness, self-governance, pluralism, and the pursuit of the public good. These essential elements of republicanism are designed to ensure limited government by preventing the arbitrary interference with individual and political self-determination by those that exercise public power. Such a republican nondominating paradigm, aims to ensure an institutional balance that reconciles competing societal interests, legitimacy claims, and constitutional values while achieving the public good. This constitutional model promotes ex ante and ex post processes of a legal and political nature in different dialogical fora of contestation, negotiation, and reconciliation. This model demands individuals and collective societal forces – legal, political, economic, and cultural – more broadly are ‘free and equal’ to pursue their version of the public good to achieve such republican ideals.
This article explores the CJEU case law on institutional balance to investigate whether the EU constitutional order adheres to fundamental themes of republicanism and if this is desirable. Currently, the EU and its institutions exercise real ‘coercive’ and autonomous power through the adoption of binding acts and decisions that shape the balance between the exercise of public power and individual and political self-determination. The exercise of such power in the EU is subject to and limited by an array of different societal forces operating at different levels. Compared with national constitutional orders, however, the Union system of decision-making processes and institutional structures and arrangements of a legal and political nature, are complex and suffer from the perception of a democratic and accountable deficit. Such widespread perceptions lead to deeply contentious debates concerning the legitimation of the EU constitutional order. As shown in section D, the case law of the CJEU on institutional balance is a paradigmatic example of such contestation.
Questions concerning the nature, role, and scope of institutional balance are vital for the legitimation of the EU constitutional order. Such issues involve how public power is balanced and exercised within the EU and its member states. Ultimately, questions involving institutional balance inevitably arise because it fundamentally shapes the future of the EU. Accordingly, competing perspectives of the institutional balance are axiomatic. Such questions focus on the ubiquitous subject, ‘who governs’ and how best to reconcile competing visions of the public good. Essentially, who has the ultimate authority to determine what the institutional balance is and explicate its role in the EU constitutional order? Such debates lead to the central question, whether and, if so, how a republican model of institutional balance as constitutional dialogue can add value to our understanding of the CJEU’s role in shaping the institutional balance and its role in the EU constitutional order.
The structure proceeds in the following manner. First, the analysis traces the republican origins of the institutional balance, elucidates central tenants of the principle, and puts forth a republican model of institutional balance as constitutional dialogue. Second, it explores who has the ultimate authority to interpret and shape the institutional balance and its role in the EU constitutional order. Third, the analysis shifts to explore how the CJEU has created, applied, and interpreted the institutional balance to achieve public good from its perspective.. Finally, the analysis concludes that institutional balance is a product of multi-actor and interactive processes, not the sole terrain of any societal force within the EU.
I. IInstitutional Balance as Legitimate Government
Institutional balance rests on the notion that to achieve legitimate government, a constitutional order must have a balanced interaction between different societal forces. Accordingly, a central tenant of institutional balance is the continuous ambition to establish and promote a balanced interaction between societal forces that find solutions to constitutional conflicts. This demands constitutional actors operate on behalf of the public good rather than particular factional self-interests. Linking institutional balance with republicanism.
A. Core Tenets of Institutional Balance within the EU
The institutional balance in the EU is a fundamental characteristic of self-government and an essential constitutional norm in the EU that governs the relations between Union institutions. Different actors have competing views concerning how public power is balanced and exercised in the EU. The discourse has traditionally focused on the relations between the actors in the institutional triangle, the European Parliament, the Council, and the Commission, as well as the CJEU case law governing such interactions. Yet, it should be understood as a multilevel concept shaping relations beyond the seven Union institutions listed under Article 13.2 of the Treaty on the European Union (TEU).
Since the EU is a multilevel system of governance it is not only an arduous task to limit the scope of the concept to the seven Union institutions, but also undesirable. Institutional balance is shaped and influences by the relationship among Union institutions, the relationship between the EU and Member States, the relationship between Member States and EU institutions, and the relationship between the Member States. Additionally, since the EU is a multi-level polity that exercises ‘real’ public power, it shapes the balance between the exercise of public power and individual and political self-determination. This means that the concept shapes relations between a broad array of multilevel actors including Union institutions, Member States, the peoples of Europe, and public and private interests group operating in EU civil society. From this viewpoint, institutional balance captures the multilevel nature of EU governance.
This understanding requires a clarification of the two distinct understandings of institutional balance, one legal and one political. As Jacque explains, the legal approach concentrates on the formal Treaty provisions and the Court of Justice of the European’s (CJEU) case law. The political approach, on the hand, is a broader and more dynamic understanding of the concept that incorporates both formal and soft law and governance process that are extralegal that develop in constitutional practice.
De Burca famously details the challenges with the legal positivist approach in her ‘critique of formal-legal constitutionalism.’ Similarly, commentators such as Craig, Smismans, and Curtain argue that this positivist approach is both ‘partial and misleading’, reflecting the ‘formal constitution’ rather than ‘real’ constitution. This republican model utilizes the political dimension of institutional balance. This broader political understanding of institutional balance better captures the dynamism and the complex realities of EU governance.
B. Ongoing Contestation of Institutional Balance
Institutional balance is a republican mode of governance used to describe the constitutional and institutional structures, processes, practices, and decision-making apparatus within the EU governance. Institutional balance rests on the republican notion that the constitutional rules of the game are shaped and influenced by an array of different societal forces with different sources of legitimacy that compete and cooperate in search for the public good. From this viewpoint, institutional balance demands that each of the different phases of EU governance have multiple actors that exercise public authority. Thus, it is based on a complex web of overlapping authority between different societal forces operating at multiple levels of governance This captures the mutual interdependency, multi-functionality, pluralistic and overlapping system of shared constitutional authority in the EU that often operates in a heterarchical rather than hierarchical nature. Importantly, the institutional balance is continuously shaped and reshaped; it is not in a fixed state of affairs, but a dynamic concept. The institutional balance in the EU varies depending on the policy area, the decision-making procedure, and legal basis provided for in the Treaty. Accordingly, a single permanent institutional balance across all phases of the EU governance does not exist.
II. The Republican Model of Institutional Balance as Constitutional Dialogue
This republican model ties two strands of constitutional thought— institutional balance and constitutional dialogue—together in pursuit of the republican ideals linked with good governance. The model concentrates on an essential element of constitutionalism—balance—that explores the relationship between the exercise of public power and self-determination. The republican understanding of balance recognizes that in certain contexts, different societal forces exercise public power and make decisions that may limit self-determination. A vital element from the republican perspective is that such actors, however, must prevent the arbitrary interference with individual and political self-determination. This model understands that the arbitrary interference with individual and political self-determination is less likely to occur when multiple actors with different constitutional perspectives participate in each of the different phases of public power, – lawmaking, executing, interpreting, and regulating. For these reasons, normative aims linked with the republican ideals, particularly appealing for the multilevel system of EU governance. The question remains, however, whether the EU realizes these republican aims.
A survey of the literature illustrates the ubiquitous nature of this issue—how to reconcile public action with self-determination—within constitutional discourse. The problem concerns how to ensure a balanced interaction between the exercise of public power and individual and political self-determination, when a society consists of a multitude of societal forces with competing viewpoints concerning what the public good is and how best to govern in order to achieve it. The following section briefly elucidates the two-prong reading of self-determination, individual and political, which is shaped by a long strand of republican thought.
A. Individual Self-Determination as Nondomination
Individual self-determination reflects the demand for individuals to be free from domination. This republican understanding stresses each individual may have different—even diametrically opposed—understandings of what the public good is and how best to govern to realize such it. For this reason, to achieve the republican aims, each individual must be ‘free and equal’. Each must be able to identify and articulate its own unique view on how best to govern.
Inevitably, different constitutional visions develop and continuously conflict with one another, as each societal element is designed to represent different and competing legitimacy claims, societal interests, and constitutional norms. This reflects the perpetual state of societal conflict in which constitutional questions must be resolved. Since the different constitutional visions on how best to govern in a matter that achieves the public good compete with one another, distinct fora must be established which would allow for contestation and deliberation over contested constitutional issues. This provides the framework to establish ongoing negotiation and reconciliation of the divergent viewpoints in a multi-actor and interactive deliberative process. In the EU, the process of national referenda and the European Citizen’s initiative are of examples of societal forces attempting to realize individual self-determination.
B. Political Self-Determination as Nondomination
Thus, the second element of self-determination, political self-determination, recognizes the need to have constitutional processes that can reconcile these competing viewpoints when they inevitably clash. Accordingly, this model recognizes that non-domination; non-arbitrariness, pluralism, and dialogical deliberation are essential elements of the two-prong understanding of self-determination. From the viewpoint of this model, this demands a non-dominating dialogical forum that can achieve republican aims and reconcile competing claims of constitutional authority. Such a forum must incorporate ex-ante and ex post procedural and substantive norms (process norms) of a legal and political nature.
This dialogical reading of institutional balance requires a complex matrix of procedural and substantive rules of an ex-ante and ex-post nature. Consequently, societal forces are subject to a mixture of different control and coordination mechanisms: enshrined in constitutional text (Treaties); codified in formal mechanisms; or soft law and extralegal processes that may develop in practice, including clearly articulated legislative objectives; judicial review; budgetary controls; the active participation of public and private interest groups; public and private monitoring bodies; the input of specialized bodies with technical expertise, such as agencies and other regulatory bodies. As De Burca notes, such dialogical mechanisms are spelled out in the Treaty, by the Courts in its interpretation and application of the Treaties, and array of societal forces. Such actions establish and reinforce political and legal checks and balances that promote process norms linked with a dialogical understanding of institutional balance, including the promotion of the rule of law in relation to the interpretation of the application of the Treaty, protecting institutional prerogatives.
Process norms can include the duty to give reasons, rules on transparency and access to information, rules concerning the participation of different actors including interest groups, and the duty to meet standards of good administration. Since each of the dialogical participants must justify their response, this allows each actor the opportunity to exchange ideas and reflect on different viewpoints. This will enhance the legitimation of the decisions, as outcomes are based on rational debate.
This provides the frame for each societal element to be checked and held politically and legally accountable, while also providing each an opportunity to participate in a non-dominating dialogical deliberation concerning contested constitutional issues. Essentially, procedural and substantive processes that ensure each societal force is ‘free and equal’ to articulate and promote its own version of the public good in an open and fair deliberative process. For these reasons, this model is designed to explain interactions between majoritarian and non-majoritarian, judicial and non-judicial, public and private, political and non-political, formal and informal elements. In the process, the participation of different actors in the exercise of public power each in the different processes of governance, can help legitimate EU decision-making.
C. A Dialogical Understanding of Institutional Balance
This model of institutional balance as constitutional dialogue is designed to achieve constitutional values linked with republicanism. This model demands that an ongoing ‘non-dominating’ dialogue occurs between different societal forces concerning how best to resolve constitutional conflicts and achieve the public good. Such a model provides the framework to promote a balanced interaction between societal forces representing different societal interests, legitimacy claims, and constitutional norms exists. This promotes a deliberative democratic process, with an institutionalized and constructive dialogue, between different societal interests engage in pursuit of the public good. In this republican paradigm, no single actor has the ability to unilaterally say what the institutional balance and explicate its role in the EU constitutional order. A number of different actors are involved in an ongoing multi-actor and deliberative process involving how to resolve questions concerning the institutional balance.
This nondominating dialogue is constitutional since it aims to contribute and shape the basic norms that govern the actions of societal actors who exercise public authority and influence within a constitutional order. Each actor, representing distinct societal elements, brings their own unique perspective to a constitutional conflict. Accordingly, each actor must be ‘free and equal’ to reflect, articulate, and then voice its constitutional vision concerning how best to govern in a manner that achieves the public good and realizes individual and political self-determination.
The pluralistic inclusion of multiple actors in the exercise of every power is an essential element in the constitutional allocation of power within the EU constitutional order. This is consistent with a central tenant of republicanism, which demands the inclusion of different societal elements aimed at ensuring non-domination of any societal force. This demands that each of the different exercises of power in the EU involve multi-actor processes. In the EU, such multi-actor processes are evident in the law-making process (the Commission, Council, and EP), the application of those laws (Commission, Council, Comitology Committees), in the interpretation of the laws, (CJEU, National Courts, and Commission), and in the regulatory process (The Commission, EU Agencies, National Representatives), and agenda-setting (European Council, Commission, Council). For this reason, judicial, extrajudicial, public, private, majoritarian, non-majoritarian, and technocratic societal actors exert varying degrees of power, while operating at different levels of governance: subnational, national and now supranational, transnational, and international, are significantly involved in the divergent processes of constitutional decision-making.
This leads to the mutual interdependence of the ‘generation of norms’ and ‘constitutional avowable norms’ – a multi-actor and interactive process of shaping and reshaping constitutional norms, including the institutional balance. This requirement of multi-actor and interactive processes promotes the republican notion of non-domination, as it is designed to prevent any single actor from dominating any process of EU governance. Under the republican model, any societal element is able to contribute to the gradual emergence of these mutually interdependent ‘constitutional avowable norms’ (shared constitutional norms), and are part of an ongoing process than continuously shapes and then reshapes the meaning of these norms over time. In this way, each societal element can engage in a multi-actor and interactive dialogical process that allows each to participate in the making, application, and interpretation of constitutional norms. The institutional balance exemplifies this mutually interdependent and shared creation of constitutional norms. This dialogical interaction is deliberative and has legitimating force, as it can potentially resolve, or at least diminish, societal tensions concerning the institutional balance. Importantly, this also brings to the fore the concept of constitutional dialogue.
Constitutional dialogue is a concept that is meant to reconcile competing sources of authority. The concept was originally introduced as a way to reconcile competing legitimacy claims between the legislature and the judiciary. From a republican perspective, understanding interactions between the two actors as a dialogue enhances the legitimation of constitutional decision-making as it prevented either the legislature or judiciary from reigning supreme. The concept, however, has also been used in a broad sense to incorporate the range of societal actors beyond just the legislature or judiciary, which exercise public power in contemporary systems of constitutional governance. It is this broad understanding of constitutional dialogue is most apt to reflect the complexities of EU governance and applied in this model.
This overlapping system of mutually interdependent, competitive, and coordinated exercises of public authority is best captured in the republican model of institutional balance as constitutional dialogue. This demands that a number of different actors are involved in each of the distinct processes of constitutional decision-making. Now that the meaning of the institutional balance has been explicated and the republican model of institutional balance as dialogue constructed, the article shifts focus to the question who has the ultimate authority to say what the institutional balance is?
III. Who has the Ultimate Authority on the Institutional Balance?
The Role of the CJEU in Shaping the Institutional Balance
The Court, in two seminal decisions, Van Gend en Loos and Costa, created ‘a new legal order’, distinct from those operating at the national or international level and established constitutional norms in direct effect and supremacy that declared its decisions were supreme over other the Member States. Significantly, the CJEU has also demonstrated that the Union is of a ‘constitutional’ nature. It frequently proclaims that the EU is based on the rule of law and that the European Treaty is a Union constitution that provides the CJEU role in settling constitutional disputes between institutions. Les Verts is a paradigmatic example; the CJEU declares that the EU is based on the rule of law, and that those decisions taken by Union actors and the Member States must comply with the ‘constitutional charter’, the Treaties. Further, the Court has utilized the preliminary reference procedure and the legal basis requirement to maximize its scope and shape the EU constitutional order from its own perspective.
A. The CJEU’s Role in the EU Constitutionalisation Process
The seminal judgments of Van Gend and Costa by the CJEU in the early stages of the European integration process in the 1960s show that the CJEU fundamentally influences the nature of EU governance and the balance between constituent elements. The Court famously declared in Van Gend de Loos that ‘the EEC created a new legal order of international law compromising both member states and their nationals, where in limited fields the member states limited their sovereign rights for their benefits.’ The CJEU declares that the then Community is a unique entity, distinct from either nation states or international organizations. Importantly, in doing so, the CJEU sets the frame for a constitutional disposition of powers distinct from constitutional arrangements at the national level or at the international level. Accordingly, the Court’s articulation of the EEC as a ‘new legal order’ is a transformative event shaping the institutional balance and how public power is balanced within the EU.
Meanwhile, in Costa, the Court stated that the Treaty is an innovative, autonomous, and distinct source of law that cannot be overturned by domestic legal provisions without the very nature of the Union legal order itself being questioned. Costa demonstrates, from the CJEU’s institutional perspective, that Union law has supremacy or primacy and therefore prevails, over the laws of the Member States of the Union.
The CJEU could have limited its reasoning in both judgments to conform to the conventional understanding of international law. Under this reading, states are ‘masters of the Treaties’. From this view, Member States and their constitutional order would remain supreme over the law of the European Communities. Instead, the CJEU greatly expanded the scope of Union law. The transformative decisions laid down in the 1960s by the CJEU explicitly challenged the applicability of this conventional understanding of international law to the EU legal order. In the process, it significantly altered the path of European integration.
These two ground-breaking decisions illustrate the CJEU’s vital role in interpreting the Treaties, and resolving constitutional conflicts. The discourse concerning the relationship between the CJEU and the highest national courts have been particularly significant to debates concerning EU governance. These decisions created an ongoing dialogue relating to the relationship between the EU and national legal orders. Despite general acceptance of the CJEU’s role in the integration process, at no time has there been unanimity among different societal forces concerning how to resolve constitutional conflicts that arise between the two legal orders.
The notion of supremacy has caused profound controversy among certain national courts and legal commentators. National courts have pushed back when they felt the CJEU was taking a stance that interfered with the former’s latter’s constitutional authority under national constitutions. Demonstrating national Courts also have a fundamental role to play in shaping the institutional balance. Increasingly, concerns of ‘judicial activism’ are espoused as the CJEU’s case law has significantly contradicted the objectives and ideals of Member States when the original European Treaties were created in the 1950s. As Alter argues, the CJEU has transformed the European legal order so fundamentally, that its decisions now routinely challenge fundamental objectives of the European project, including interference with national sovereignty and the interests of individual and collective Member States.
The Court also claims that it has the ultimate authority both to say what the institutional balance is, and to explicate its role in the EU constitutional order. The CJEU uses this authority and wide discretion it has interpreted for itself to settle constitutional conflicts. The Court utilizes its role under Article 19 TEU to considerably impact the institutional balance and ensure the rule of law under the Treaty. The CJEU has used the uncertainty of Treaty provisions that are often vague and unclear as a frame to promote its constitutional vision of the public good within the EU. As a result, the Treaty has been labelled an ‘incomplete contract’ by Herieter and Farrell. This has provided the CJEU with power to frequently interpret the Treaty in a meta-teleological manner. As Bradley argues,
it is the very open-ended character of the relevant Treaty provisions which has enabled the Court of Justice to develop a coherent theoretical structure of inter-institutional relations in the Community decision-making process, based on the notion of the institutional balance intended by the Treaty, which is underpinned by a set of substantive and procedural legal rights and obligations.
However, the CJEU has been labelled an ‘activist court’, as serious questions are raised in relation to its case law on institutional balance. Chernobyl and ESMA shows how the CJEU promotes an institutional balance that is, arguably, not reflected in the Treaty. Nevertheless, it is now generally accepted that the CJEU plays a fundamental role in settling constitutional disputes over the balance of powers within the EU.
B. The CJEU’s Creates, Applies, & Interprets the Institutional Balance
The Court’s essential role in establishing and maintaining the institutional balance is evident in its landmark decision in Meroni, involving the delegation of power, the first reference to institutional balance within the EU. According to Meroni, the principle of institutional balance derives from the distribution of powers established in the Treaties. However, it is in its Chernobyl decision where the CJEU most precisely elucidates its institutional perspective on what the institutional balance is and how the concept shapes the EU constitutional order.
The central issue in Chernobyl involved the ability of the EP to bring an action for annulment. The EP was consulted by the Council, but argued that the Commission used the wrong legal basis to reduce the EP’s role in the lawmaking process. The Council vehemently rejected this argument claiming that, pursuant to the Treaties and CJEU’s Comitology decision, the EP does not have the right to bring an action for annulment.
From the CJEU’s perspective, it is the Treaties that have created an institutional balance within the EU constitutional order that distributes powers and assigns a particular role for each institution in order to achieve the public good – Union objectives established in the Treaties. From the CJEU’s perspective, since each institution has its own constitutional tasks, the institutional balance shall not be altered in a manner not envisaged by the Treaty itself. From the legal dimension of institutional balance, such changes run contrary to the rule of law and interfere with the ability to achieve Union objectives. Chernobyl also declares that a legal remedy should be available when an actor takes actions that circumvent the institutional balance.
The Court places itself at the centre of disputes between institutions. It declares that ‘the Court, which under the Treaties has the task of ensuring that in the interpretation and application of the Treaties the law is observed, must therefore be able to maintain the institutional balance, and consequently, review the observance of the Parliament’s prerogatives when called upon to do so by the Parliament, by means of a legal remedy which is suited to the purpose which the Parliament seeks to achieve’. Accordingly, Chernobyl also lays down a general principle that a Union institution has the ability to protect its prerogatives and, thus, its institutional position.
The Chernobyl decision exemplifies the increasing perception that the CJEU is an activist court. The criticism of the CJEU for this decision was particularly striking since the Treaty, under Article 173 EEC, explicitly provided an exhaustive list of potential litigants who could request the CJEU to review EU legislation. Thus, the CJEU unilaterally expanded the list of litigants in a manner contrary to the explicit text of Treaty. Some argue that in certain cases, such as Chernobyl, the Court has gone beyond the strict letter of the law and provided the European Parliament with powers that were not attributed to it in the Treaty. The CJEU reasoned that it was respecting the general principle of representative democracy to justify its Chernobyl decision. This illustrates that it creates constitutional norms that augment the powers of the EP, in the name of democratic deliberation. This, from the Court’s reasoning, was necessary to ensure the public good, and to ensure that the European Parliament – the democratically elected assembly at the EU level – has the ability to have its voice heard in the lawmaking processes. Since the Member States failed to amend relevant Treaty provisions to recognise the EP’s increasing powers, the CJEU unilaterally incorporated such changes in the decisions it rendered.
The CJEU has continuously played a role in promoting the ability of the EP to contribute to ongoing dialogue over contested issues during the EU lawmaking process. This is particularly evident in situations where the EP is in a comparatively weak position to the Council. As we will see, this is evident in cases such as Isocluse and Roquette. Chernobyl is illustrative of how the Court promotes a dialogue between divergent actors within the lawmaking process. The Court has also promoted dialogic deliberation in a number of other cases, specifically in the area of consultation and reconsultation. In this regard, the CJEU has promoted the principle of sincere cooperation, in order to ensure both the EP and the Council are engaging in ‘nondominating’ dialogue.
The CJEU’s creation, application, and interpretation of institutional balance, epitomises the role of the CJEU in settling constitutional conflicts concerning that same institutional balance. The Court – when deciding cases involving institutional balance – creates a rule by developing the concept of institutional balance in Meroni, applies and develops the concept further in Chernobyl, and interprets other relevant rules.
Importantly, the CJEU is often called upon to act as a problem-solver, to reconcile competing societal forces representing distinct legitimacy claims, constitutional values, and societal interests across Europe – Union institutions and other bodies, national governments, national parliaments, public and private interests groups, and the peoples of Europe. In this way, the CJEU engages with judiciary and extrajudicial societal elements to provide its own view on how best to resolve constitutional conflicts concerning the institutional balance. This allows the Court to act as a dialogical forum of judicial nature that provides a fair process for contestation, negotiation, and reconciliation between different societal forces.
From a republican perspective, this illustrates that the CJEU creates constitutional rules, applies them, and interprets them in order to promote and maintain the institutional balance. The CJEU exercises judicial review and utilizes meta-teleological interpretation to further promote European integration and achieve the ultimate objectives of the Treaty. In other words, the CJEU utilises such teleological interpretation to achieve its own vision of what the public good ought to be within the Union.
The CJEU has played a fundamental role in the constitutional development of the EU. From a republican perspective, the CJEU aims to ensure public power is exercised in a nondominating fashion. Through its case law, the CJEU has shaped how constitutional conflicts concerning institutional balance are settled. For this reason, cases such as Meroni and Chernobyl are of vital importance to a proper understanding of the institutional balance, as they highlight how the CJEU engages in a dialogical process to shape and reshape the institutional balance. Despite its fundamental role in shaping the institutional balance, and its role in the EU constitutional order, the CJEU does not have a monopoly on the meaning of this institutional balance. Nor can it unilaterally determine what the public good is, or ought to be, in the EU. Instead, a range of actors operating at different levels of governance are involved in the shared creation of constitutional norms, including the institutional balance. It is important to note that the CJEU has continuously been involved in an ongoing dialogue with other societal forces over how best to resolve constitutional conflicts within the multilevel system of governance.
IV. Extrajudicial Actors & the Mutual Interdependency
of the Institutional Balance
Extrajudicial societal forces use a variety of formal and informal processes to shift the institutional balance in a manner that fundamentally shapes the EU constitutional order. The actors in the institutional triangle – the Commission, European Parliament, and the Council – continuously contest and reinterpret the institutional balance laid down by the Court. For example, one of the most transformative shifts of institutional balance in the EU constitutional order has been the increasing power of the European Parliament. This is particularly evident, when the EP’s increasing powers are compared to those of the Council and the Commission. The powers of the latter two institutions have remained relatively the same throughout European integration, and they have often fiercely resisted the increase of the EP’s power.
A. The EP Shaping Institutional Balance
The EP has transformed from an advisory body – an elected assembly – with little coercive power into a ‘real’ player in EU governance. As Hix describes, the EP is now a constitutional agenda setter able to fill gaps left by the ‘incomplete contracts’ established in the Treaties through its own constitutional interpretationese gaps have also allowed the EP to shape the institutional balance through legal and extralegal processes – CJEU case law, inter-institutional agreements, and budgetary negotiations. By using such processes as strategic tools, the EP has enhanced its institutional position in the EU’s constitutional order, with the objective of obtaining an ‘equal’ status to the Council in the lawmaking process. It now exercises significant legislative, budgetary, and oversight authority. Thus, the EP has utilized various processes with the objective of achieving the republican aim of nondomination in the lawmaking process.
The EP has often sought assistance from the CJEU to strengthen its role in the lawmaking process. Perhaps the most striking of these examples is Chernobyl, as analysed boe. Yet, other cases, such as Roquette, the CJEU has stressed the fundamental importance of having the democratic assembly participate in EU decision-making processes. In Roquette, the central issue was whether the European Parliament had the right to intervene to protect its right to be consulted during the consultation procedure under Article 230 Treaty of the European Community (now Article 263 TFEU). The Court held that the European Parliament has a general right to intervene to protect its prerogatives, therefore annulling the Council measure because the latter institution failed to consult the Parliament before passing its instrument. In such cases, the Court utilised the parliamentary interpretation of the institutional balance to enhance the EP’s role and ensure its voice is heard in the governing process. In this context, the CJEU is emphasising the need for a multi-actor dialogical deliberation in the lawmaking process. Such a dialogical process also promotes the idea of non-domination, preventing the Council from unilaterally controlling the EU lawmaking process.
B. European Agencies Shaping Institutional Balance
European agencies provide another illustrative example of extrajudicial actors that have the potential to shift the institutional balance and transform its role in the EU constitutional order. The question of what is the precise role of agencies in the EU constitutional order, and how they impact (or ought to impact) institutional balance, has caused fundamental inter-institutional debates between the EP, the Council, and the Commission. The debates often lead to justifiable legitimacy concerns over the nature, powers, resources, and function of EU agencies.
Contestation between different societal forces in the EU is increasingly evident in recent case law, where the CJEU has suffered from intense criticisms for decisions following the unprecedented financial crisis, decisions such as Pringle and ESMA. The financial crisis led to the creation of new financial supervisory authorities in the EU. Such supervisory bodies were granted significant powers, with the objective of address ongoing threats to European and national financial markets.
The most pertinent aspects of the debate were not whether such actors were needed to combat threats to the European financial markets. It is generally recognized such bodies, are often justified as a functional necessity, since such actors have unique technocratic expertise and the ability address complex technical questions. Instead, the precise placement of such bodies, their powers, and what ex ante and ex post control mechanisms would exist to hold such actors accountable caused the most controversy. Concerns were raised as such actors operate largely outside the constitutional framework established in the Treaty. Another major criticism was that the EP was left largely outside the framework. Instead of having a significant role in the establishment of these agencies, similar to the EU ordinary legislative procedure, the EP had mere consultation rights. This meant that the elected assembly at the EU level was unable to exercise ‘real’ power in one of the most fundamentals crises in the history of EU integration.
Nevertheless, the Court validated the use of such financial supervisory frameworks, raising justifiable concerns over the legitimation of EU decisions and its ability to act as neutral observer rather than a rubber stamp for national governments. Despite, legitimate concerns involving the accountability, transparency, and control mechanisms available to hold ESMA to account, the CJEU concluded that the legal basis and the powers ESMA can exercise were legal. This has similar result to Koster which confirmed the legality of comitology committees within the Treaty. The financial crisis – wreaking havoc over much of the EU for almost a decade – is not the only profound turbulence and uncertainty currently facing the EU. National referenda are increasingly a forum for the peoples of the EU shape the institutional balance.
C. The Peoples of Europe Shaping Institutional Balance
The peoples of the EU have often played a significant role in the European integration process through referenda at the national level. Throughout the years, there have been a number of national referenda concerning vital issues of European integration: enlargement, the euro, opt-outs, bailouts, migrant quotas, and the European Constitution. Among the most influential were the close referenda, causing great debate, concerning the ratification of the Maastricht Treaty in 1992, and the European Constitution in 2005.
In 2016, the United Kingdom European Union Referendum (Brexit) caused political shockwaves across Europe and around the globe. In an historic ‘non-binding’ referendum, the question was posed whether the United Kingdom should leave, or remain in, the EU. Nearly 52% of the people voted to leave the Union. This vote has led to a number of dialogical deliberations, negotiations, and meetings concerning the precise processes and mechanisms by which a Member State can leave the EU.
Since the Brexit vote, an ongoing dialogue at different levels over how to reconcile competing visions of the future of UK-EU relations have occurred involving: the peoples of Britain, the British parliament, the British Government, the British Supreme Court, the European Council, the European Parliament. This includes significant decisions by the British Supreme Court and British government. Accordingly, understanding national referenda as constitutional dialogue exemplifies the peoples of Europe through national referenda can shift the institutional balance.
VI. Conclusion
This article proposes a republican model of institutional balance as dialogue to explore what the institutional balance is and its role in the EU constitutional order. The objective of this article was to put forth a republican model of institutional balance to provide insights into the multi-actor and interactive processes of EU governance. The central contention of the article is that the republican model of institutional balance as constitutional dialogue adds value to the existing discourse on institutional balance and its role in the EU constitutional order. This ‘new’ understanding of European governance goes beyond the conventional understanding of the institutional balance. Through the lens of republicanism, this model provides unique insights to the dynamics of the institutional balance that better reflect the complex realities of EU governance.
This preceding analysis vividly illustrates the Court has played an essential role in constitutional conflicts concerning the institutional balance. The analysis also elucidates the CJEU’s institutional perspective on the institutional balance. According to the CJEU, when exercising judicial review, it has the ultimate authority to unilaterally ensure the manner in which societal forces operate is in accordance with the rule of law and institutional balances established in the Treaty. In the process of interpreting the Treaty, the Court often uses a meta-teleological interpretation to make, apply, and interpret rules to shape the institutional balance and its role in the EU constitutional order. Since establishing institutional balance in Meroni, and continuously shaping and reinterpreting it, the CJEU has been instrumental in shaping the interactions