The separation of powers In order to assess this question we first have to consider what the doctrine of separation of powers actually is. The idea was developed by the French jurist Montesquieu in the 18th Century. It is based on a division of power between the legislature, the executive and the judiciary. Each institution have their distinct and largely exclusive domain. The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organisations.
The executive’s main function is to carry out the law. It initiates legislation, maintains order, promotes social and economic welfare, administrates public services and conducts external relations of the state among other things. The primary judicial function is to determine disputed questions of fact and law in accordance with the law laid down by the legislature. The concept of “separation” may mean at least three different things:
- that the same persons should not form part of more than one of the three organs of government, e.g. , that ministers should not sit in Parliament;
- that one organ of government should not control or interfere in judicial decisions;
- that one organ of government should not exercise the functions of another, e. g. , that ministers should not have legislative powers.
The reason why there should be a separation of powers is so that each distinct institution can carry out its function independently and check the other two – a form of checks and balances.
The doctrine is opposed to the concentration of state power in a single person or group, since that is a clear threat to democratic government and in the same sense it is important that the legislature is not only a rubber stamp for the executive. Even an independent judiciary is necessary if the rule of law is to have any substance. It is in the US’ constitution that this doctrine can best be seen. How then does the division of power look like within the European Union? The
main institutions within the Union are the Council of the EU (also known as the Council of Ministers), the European Commission, the European Parliament (the EP) and the European Court of Justice (the ECJ). In deep contrast to the doctrine of separation of powers, there is no independent legislature or executive within the EU. Almost all of the institutions are interrelated and there is no clear separation of competences. Only the judiciary (the ECJ) is more or less separated from the other institutions regarding its judiciary powers. The Legislature
In the EU, the legislative power is shared between the Council of EU and the European Parliament. The Council is the EU’s main decision-making institution and final legislative authority. However, it shares competence with the EP in respect to the legislative power. For a wide range of Community issues it exercises its legislative power in co-decision with the Parliament. The role of the Council as the main decision-making institution in the EU is defined in terms of three pillars set out in the Treaty of Maastricht. The first pillar covers a wide range of policies such as agriculture, environment, transport, energy and development.
The Council may either adopt, amend or ignore the proposed law. However, a wide range of legislation is subject to a co-decision procedure. Depending on the individual legal basis, the EP takes part, to varying degrees, in the drafting of Community legislation. The role of the EP as co-legislator applies to a wide range of issues - 39 legal bases in the EC Treaty. The co-decision procedure means that legislation has to be adopted by both the Council and the Parliament. This is a clear example of the mixture of competences that exists within the EU. For the two other pillars the Council is the sole decision-maker.
Instead there is a consultation procedure, which requires consultation from the EP before the Council can adopt a legislative proposal. The Council is not required to accept the amendments listed in the opinion of the EP. The Council and the Parliament also constitute the budgetary authority adopting the Community’s budget and overseeing its implementation. The Executive Executive power in the EU is shared between the European Commission and the Council of EU. The Commission plays a major role in the EU’s policy-making process as EU laws are mainly enforced by Commission action.
One of the distinct functions of the Commission is initiating proposals for legislation. The Commission is the main institution preparing proposals. However, concerning common foreign and security policy and co-operation on justice and home affairs, the Council is the promoter of initiatives and also the institution implementing the policies. But the Commission may submit a proposal. The Commission has also the budgetary initiative, drawing up the preliminary draft budget, which is put to the Council. Even the Parliament has a right of initiative.
It has the possibility of asking the Commission to put forward a proposal and it is also involved in the budgetary procedure from the preparation stage, particularly in laying down the general guidelines and the type of spending. This is completely against the doctrine of separation of powers. Within this principle it is unthinkable that the same institution that is legislating is also the same body drafting the proposals for legislation. The Commission is also a negotiator of international trade and co-operation agreements with third countries, or groups of countries, which are put to the Council for conclusion.
In an ordinary legal system, both the negotiating and the concluding of international agreements would be made by the executive, which would then have to be presented to the legislature. In the EU, in some cases, the Council cannot even conclude the agreements by itself, but has to consult the Parliament or even have its assent before being able to do so. The Judiciary The only function that has remained more or less distinct within the EU is the judicial function. The judiciary comprises of the European Court of Justice and the Court of First Instance.
The Court of Justice is responsible for enhancing the effectiveness of EU law and integration. Its two main functions are to directly apply the law and a general responsibility for interpreting the provisions of the European Treaty. However, even here there is to some extent a mixture of power. The reason for this lies with the Commission, which is quasi-judicial. Under certain circumstances, the Commission can fine individuals, firms and organisations for infringing Treaty law. But its decisions can be appealed. The ECJ can be consulted by the Member States and enterprises when they want to appeal against fines imposed by the Commission.
Checks and balances Even though the system of the institutions of the EU is not compatible with the doctrine of the separation of powers the most important function of the doctrine still exists – institutional balance. Despite the mixture of the allocation of powers, there still remains a form of “checks and balances”. Commission proposals, actions and decisions are in various ways scrutinised, checked and judged by the other institutions. For instance, the Commission is answerable to the EP, which has the power to dismiss it by vote of censure or no confidence.
The Commission attends all the sessions of the EP and must explain and justify its policies if so requested by members of the house and it must reply to written or oral questions put by the MEPs. The Commission’s management of the EU budget is also scrutinised by the Court of Auditors which is responsible for examining the legality and regularity of revenue and expenditure and for ensuring the sound financial management of the EU budget. On the basis of the Court of Auditors’ reports, it is the EP which gives the final discharge for the execution of the annual budget.
The EP also exercises control over the Council; its representatives appearing regularly before the Parliament. Conclusion It can clearly be seen that the doctrine of separation of powers is not respected in the attribution of competences within the EU. However, complete separation of powers is possible neither in theory nor in practice, if by this is meant that each function is exercised in isolation from the others. Even in the US there is no complete separation of powers between the executive, legislative and judicial functions.
In fact, even Montesquieu did not mean that legislature and executive should not have any influence over the acts of each other, but only that neither should exercise the whole power of the other. Instead it can be argued that what is more important is that there is an elaborate system of checks and balances to enable control and influence to be exercised by each branch upon the others. The best example of this is the UK, where there is no clear separation of powers, but where we instead have a developed form of checks and balances to ensure that no arbitrary decisions are taken.
Although it can be argued whether the checks and balances that exist in the EU is as effective and elaborate as the ones in the US and the UK. In conclusion, the separation of powers is not respected in the attribution of competences within the EU. However, the lack of a clear, threefold allocation of functions is not necessary as long as there is an effective form of checks and balances.
- Constitutional and Administrative Law, A W Bradley and K D Ewing, p. 84
- Constitutional and Administrative Law, A W Bradley and K D Ewing, p. 82.