Both publications can be obtained free of charge in all official EU languages via this website.
For the greater part of its history, the European Union (and before 1992, the European Communities) predominantly dealt with economic issues, such as trade policy, competition, industrial development, and agricultural policy. Its fundamental values were the so-called “four freedoms”, namely the free movement of goods, services, capitals and persons. It was only from the nineteen-nineties onwards that the EU developed an ambition to deal with social policy issues. This was in part due to the insight that a community of sovereign states that one day might develop into a full-fledged political union must be built on a comprehensive set of common values that reaches beyond economic well-being, and in part to the sentiment that a perception of the EU as a technocratic elite project driven solely by economic interest might fail to win the sympathy and support of the wider public. The call of then Commission President Jacques Delors that “we must give a soul to Europe” is still widely remembered. Does Europe need “a soul”? It would be completely sufficient if the EU’s political action was rooted in a correct understanding of human rights as they are expressed in, for example, the 1950 European Convention of Human Rights (ECHR), to which all EU Member States have signed up. It should, in this context, be remembered that the Council of Europe (which is the institution responsible for the ECHR and many other human rights conventions) and the European Communities (that were transformed into the EU as of 1992) both were part of the same European integration process. It is true that the process of economic and political integration involved, and continues to involve, only a narrower circle of Member States – but they all were part of the wider circle of countries forming the Council of Europe, so that the EC had always been based on a common set of values, enshrined in the ECHR and other conventions. Jacques Delors and other EU politicians, when speaking of the need to give a soul to the European Union, appear to have been strangely oblivious of that fact. Be that as it may, the European Union from the late 1990s onwards has developed strong ambitions to itself become a human rights organisation, or even a human rights watchdog exercising some kind of oversight over its Member States – with a different, seemingly more ambitious set of values than those set out in the ECHR. In that way, the EU suddenly entered into a sort of competition with the Council of Europe to become the continent’s leading human rights authority. The decisive step in this development was the drafting and adoption of the EU’s own human rights document, the EU Fundamental Rights Charter (FRC). One might describe this process as a slow and surreptitious usurpation of human rights competence of the EU, mostly at the expense of the Council of Europe. And it is clearly discernible that in particular the liberal, socialist, green, and communist groups within the European Parliament attach a great importance to this newly acquired EU competence, whereas Christian democrats and conservatives still appear to think of the EU as serving a mainly economic purpose. However, if Liberals, Greens, Socialists and (in particular) Communists suddenly discover their love for human rights, everyone else should be watchful: the human rights those groups are advocating are certainly not the same human rights on which there is universal agreement. Why have the political left decided to use the institutions of the European Union, and in particular the European Parliament (EP) and the EU Fundamental Rights Agency, as their preferred fora to promote its peculiar understanding of “human rights”, and the social policies that follow therefrom? It appears that this has happened mainly for two reasons:
- First, because at the level of each Member State there is generally little public attention for what is going on inside the EU institutions. There is hardly any coverage by popular mass media of parliamentary debates at the EP, or on the meetings of Council working groups (which, anyway, meet behind closed doors). The EU institutions may be easily accessible for well-trained lobbyists who know exactly what they want and where they can get it – but they remain remote and enigmatic for ordinary citizens. This means that the wider public learns of new decisions only after they have been adopted, i.e., when it is too late to change them. This makes it possible to get far-reaching decisions adopted without a lot of public debate, and without too much scrutiny by the media.
- Second, a decision made at European level will usually make an impact on all 28 Member States, i.e. it is imposed from above. In this way, lobbying efforts at EU level often offer a much greater reward than on national level. A report adopted by the EP in which abortion is described as a “human right of women” may not make much sense from a legal point of view and has no immediate legal effect – but it can be trumpeted as giving expression to a “Europe-wide consensus”, and thus be used to influence the debate at national level. In many cases, EU decisions can even have the effect of side-lining national debates, including on matters falling within the exclusive competence of Member States. For example, the homosexualist movement since many years is making the attempt of invoking the free movement of persons, one of the EU’s for “fundamental freedoms”, as an argument to impose on the majority of EU Member States that do not legally recognize same-sex “marriages” an obligation to give full legal effect to same-sex “marriages” that have been concluded in those Member States where it is possible. In other words, the decisions of a minority (or in the extreme case, of one or two) Member States would be imposed on the rest.
It is for these reasons that, despite exclusive competence of Member States for such matters being explicitly recognized in the EU treaties, the EU and its institutions play an ever increasing role in shaping policies concerning fundamental rights issues, including marriage and the family, the right to life, or freedom of conscience.
The Functioning of the EU
Treaties, Regulations and Directives
The EU is governed by a set of international treaties between the EU Member States that set out the EU’s constitutional basis. The treaties, together with numerous protocols, annexes, and declarations, establish the competency of the EU and its institutions. Any amendment to the treaties requires the ratification of every signatory. The EU is based on two main treaties: the Treaty on the European Union (TEU), also known as the Maastricht Treaty 1993, and the Treaty on the Functioning of the European Union (TFEU), which is the up-to-date version of the Treaty of Rome 1958. Together they are known as the “Consolidated Treaties.” The Charter of Fundamental Rights of the European Union was adopted in 2000 and acts as the primary human rights instrument of the EU. The Charter enshrines in EU law certain political, social, and economic rights for EU citizens. When the Treaty of Lisbon was adopted in 2009, the Charter gained the same level of importance as other EU treaties. All EU institutions and agencies must act consistently with the Charter or the Court of Justice will strike down any EU law that contravenes it. The Charter also applies to Member States, but only when they are implementing EU law. The Charter does not extend the competences of the EU. In addition to the treaties, EU law takes the form of regulations, which are immediately binding on Member States as written, or directives, which must be implemented by Member States within a certain time frame, in a manner consistent with the country’s choosing. The EU may also issue individual decisions that are binding only on those countries or individuals to which they are addressed.
The key institutions of the EU are:
- The European Commission, consisting of 28 Commissioners (one for each Member State). The Commission is the EU’s main executive institution, and its funcions are comparable to that of a government. However, it also plays an important role in the EU’s legislative procedure, as it is the only institution possessing a “right of initiative”: the EU cannot adopt any regulation or directive unless it has been proposed by the Commission.
- The European Parliament, which is elected for a five-year term. The number of Members of the European Parliament (MEPs) attributed to each Member State depends on the size of the Member State’s population; however, smaller Member States have proportionally more MEPs than bigger ones. The European Parliament must give its assent to most of the legal acts the EU adopts.
- The Council of the European Union is, besides the Parliament, the second legislative institution of the EU. While in most cases a new legal act must be adopted both by the Parliament and the Council (“codecision procedure”), in some specific cases the Council decides alone, leaving to the Parliament a merely advisory role. The Council consists of the government ministers of each Member State. The votes of each Member States are weighted according to the size of its population. The Council usually decides by “qualified majority” (which means that, according to a raher complicated calculation, the votes must represent at least 65% of the Population and, depending on the matter, 55 (or 72)% of Member States. In certain cases a unanimous vote is required.
- The Court of Justice of the European Union (CJEU) is the EU’s supreme judicial instance.
- Distinct from the Council of Ministers, the European Council comprises the Heads of State or government of the EU Member States, along with its own European Council President and the President of the European Commission (though neither President can take part in voting). The European Council has no official legislative power, but is charged with defining the general political directions and priorities of the EU. The European Council is therefore a strategic body that collectively acts as the presidency of the EU. The Council meets approximately four times per year.
Besides these key institutions, the EU comprises a great quantity of other organs. Among these are the European Court of Auditors (which controls the finances of the EU), and the European Central Bank. The EU also contains many subsidiary bodies that are distinct from the institutions, which are set up to accomplish specific tasks, notably a growing number of so-called “agencies” with administrative and advisory tasks. Among these agencies, the Vienna-based EU Fundamental Rights Agency (FRA) is one of the most notorious ones.
Since the Lisbon Treaty was adopted in 2009, the EU has developed its external action significantly. The post of High Representative of the Union for Foreign Affairs and Security Policy was created and the European External Action Service (EEAS) was established to support this position. The EEAS engages in diplomacy and foreign affairs amongst countries outside the EU and other international organizations. The EEAS is autonomous from other EU bodies, but must ensure it acts in consistency with other EU policies. The High Representative automatically is a Vice-President of the European Commission.
The European Economic and Social Committee (EESC) and the Council of Regions (CoR) are bodies that must be consulted on each legislative procedure, but which have no right to veto them.
The European Ombudsman is appointed by the European Parliament for a full term of Parliament, which is renewable. The Ombudsman investigates complaints about maladministration in EU institutions, bodies, offices and agencies. The Ombudsman may find maladministration if an institution fails to respect fundamental rights, legal rules or principles, or the principles of good administration. Any EU citizen or legal entity may appeal the Ombudsman to investigate an EU institution or agency.
The Life of an EU Law
Once known as the “codecision procedure,” the “ordinary legislative procedure” is now the main way in which EU laws are adopted.
European Commission proposal
Firstly, the European Commission creates a legislative proposal. In the EU, only the Commission can initiate legislation. During this process, the Commission must listen to the views of the Member States’ national parliaments and other EU bodies – like the Economic and Social Committee and the Committee of Regions. Of course, other interested parties also give their opinion to the Commission about what legislation should be passed, but this is not formalized or particularly transparent. The Economic and Social Committee consists of representatives of the various economic and social components of organised civil society and the Committee of the Regions consists of representatives of regional and local bodies.
European Parliament position
Secondly, the legislative proposal is sent to the European Parliament for a first reading. The proposal is first of all discussed and amended in the relevant parliamentary committees and then sent to the plenary session where it can be voted on and adopted and/or amended by a simple majority. After the European Parliament has delivered its position at its first reading, the Commission has a further opportunity to incorporate the European Parliament amendments into its proposal.
Council of the EU position
Thirdly, legislative proposal is sent to the Council of the EU. Smaller working groups comprised of the representatives of the Member States and chaired by the Member State holding the six-monthly Presidency first assess the legislative proposal. Following the preparatory work by the working parties, decisions are adopted or rejected by the Council, either with or without a debate. In most cases, the Council will reach decisions by a qualified majority (each country is given a number of votes according to its population – it is the total number of votes, not the number of countries that counts). In some cases the Council requires unanimity.
Manoeuvring between the Commission, Parliament and Council
At this stage, a number of different processes can take place, depending on the views of the Parliament, Commission, and Council, and whether any of the bodies have altered the proposal. In fact, the EU website contains a simplified flow chart of the procedure and lists up to 24 different possible processes that can take place between the Council’s first reading of the proposal, and its ultimate adoption or rejection. In short, the proposal can bounce back and forth between the Council and Parliament, with input from the Commission. If agreement is still not reached, the proposal can be sent to the Conciliation procedure.
If no agreement has been reached, a Conciliation Committee is formed. The committee brings together representatives of the Council and the European Parliament, as well as the Commissioner responsible for the proposal. Together, the three bodies engage in negotiations with the aim of producing a compromise “joint text”. If a joint text is formed, it must then be approved by the Parliament (by simple majority, no amendments are permitted) and Council (by qualified majority in most cases). If the joint text is approved then the legislative proposal will have been completed. However, if a joint text is not produced, or if the Parliament or Council reject the joint text, the legislative procedure is ended.
EU Ways to Engage: Checklist
- Gain accreditation with the European Parliament, European Commission and Fundamental Rights Agency
- Conduct advocacy at the European Commission, European Parliament, Council of Ministers and national parliaments
Complaints / Communications/ Litigation
- Bring or support cases before the Court of Justice of the EU
- Bring complaints relating to EU institutions to the European Ombudsman
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