The reality of the Communitys constitution

It is clear that both the Commission and the European Court of Justice have important roles to play, as supranational institutions, in the integration of Europe. Both have shown themselves to be powerful and influential. I shall now endeavour to analyse the exact importance of the roles they play within the European Community (hereafter refered to as 'the EC') before concluding which, in my view, is the more dominant. With regards to the Commission I intend to show the vital role it has to play in the creation of legislation, be it primary or secondary, and in the protection of the Community's goals and objectives.

This is done both by means of regulations and directives and by ensuring such regulations and directives are implemented by Member States. Finally I shall briefly mention the Commission's role as the international representative of the Community. Moving on to the European Court of Justice I will demonstrate the key part it also has played in the promotion of a united Europe. This has been done through the creation of doctrines such as direct and indirect effect, mutual recognition and state liability, as well as that of EC supremacy.

Having closely looked at these two institutions I shall lastly look at their dependance on each other before deciding which, if any, is the dominant supranational institution. I shall also take a brief look at the effectiveness of each institution. The Commission. The Commission has been described as being "at the very heart of the Community system"(1) and it is quite clearly a powerful institution within the European Union. Church and Phinnemore stated its importance in referring to it as, "the collective conscience of the Community [and] the mechanic with the oil can which keeps the machine on the road"(2).

It is comprised of Commissioners (two from the larger member states and one from those remaining), nominated by each member state, and is headed by a President (currently Jacques Santer). Although Commissioners are usually former ministers or high officials of the member states they are, in theory, bound by oath not to take instructions from governments, but instead from the Treaty of Rome, giving priority to Community interests. The role of the Commission is set out in Articles 155-163 EC Treaty with the intention being that it should be the key institution pushing forward European integration.

I shall now examine the way in which it aims to do this by looking at the main functions of the Commission. The treaty is, by its nature, a traite cadre. In other words it provides a framework of goals, laying out the European aims to be achieved. However it fails to specify exactly how they should be reached, as would be the case with a traite loi. The Commission is therefore entrusted with the job of formulating policies to meet these goals using its so called 'right of initiative'.

It has been suggested that this initiative applies to a relatively broad scale and the Commission, with regard to the opinions of other bodies, can initiate virtually any legislation in those areas which it has jurisdiction. Nugent writes that, "[the Comissioners'] duties are often only broadly defined and there can be considerable potential… to stimulate development in specific and, if they wish, new and innovative policy ideas"(3). Such policy ideas, having been formulated by the Commission, are subsequently translated into primary legislation which is then handed to the Council of Ministers for consideration.

It is in this role that we can see the Commission at its most influential. Although the Council or the European Parliament may request that a proposal be formulated (Articles 152 and 138b EC Treaty), or under the co-decision procedure the dialogue is essentially between the Council and Parliament, the decision in the vast majority of cases lies with the Commission. It is the Commission alone that decides whether any legislation should be initiated and what the initial legal basis of any such legislation should be.

It is in this light that we can see the Commission as being "the motor of the Community"(4) The 1992 single market programme, for example, involved the Commission drafting 282 measures, again stressing the essential role that it plays. Without the Commission proposing and drafting legislation in the first place there would be no legislation. Weatherill and Beaumont stated that, "the Commission's role as initiator of legislation and participant in the Council, combined with the restarints on the power of the Council to amend the Commission's proposals, give the Commission real influence on the content of the final legislation.

"(5) Although the Court may be called upon to interpret legislation, it has no role in initiating it. Following on from this, as it is not always sensible for other institutions to get involved with the law making process, the Commission has the power to adopt its own rules under delegated legislation. These rules are known as secondary legislation. The Council often passes powers over to the Commission, although it often has a say in how these powers are used, and indeed the majority of the Commission's powers are those delegated in such a way.

A clear example of this can be seen with the Common Agricultural Policy. Another highly influential role of the Commission is its role as 'Guardian of the Treaties' (Article 155 EC). It acts as, what is commonly described as, a 'watchdog'. The first part of this involves overseeing the activities of the other institutions, ensuring that they carry out the obligations of the treaty and bringing actions against them if the need arises. Secondly, and more importantly from an integration point of view, it also ensures that member states abide with the Treaty and Community legislation.

The Commission might take action against member states who don't implement Community obligations on time or fail in other ways to uphold Community law. This action, at its strongest, might involve referral to the European Court of Justice but it often involves merely notifying Member States of where they are at fault. This is explained by, inter alia, Weatherill and Beaumont as being a four stage process of informal discussion, letter of formal notice, reasoned opinion and finally reference to the ECJ.

(6) In this way the Commission acts as a kind of sheepdog, warning any sheep that strays or lags behind of its impending presence, without getting rough unless absolutely necessary. Synder noted that, "The main form of dispute settlement used by the Commission is negotiation, and litigation is… generally a minor part of this process. "(7) In other words the Commission, in its role as 'Guardian of the Treaties', tries to reason with Member States rather than take a heavy handed approach. This method in turn leads to better relations between the member states which consequently leads to better communication and inevitably greater integration.

By cracking the metaphorical whip behind the member states, but rarely allowing the whip to make contact (only 5% of complaints made to the Commission in 1990 were referred to the ECJ), this allows for a swifter and more efficient integration process. Little progress would be made if the Commission was constantly bringing lengthy action against Member States for a failure to act. This 'anti-inflammatory' stance taken by the Commission is even more far reaching according to Burley and Mattli who praise the Commission's role, "in depoliticizing potentially inflammatory disputes among the member states.

"(8) They argue, with the backing of Judge Pescatore, that rather than letting states bring potentially relation souring actions against each other under Article 170, the Commission will often bring an action itself against one of the Member States under Article 169 thus, "defusing the potential fireworks"(ibid. ) which may hamper inter-state relations and consequently the integration process. If Member States were constantly bringing actions against each other the scope for future European cooperation would be slim. By stepping into such squabbles the Commission ensures the best communication possible between Member States.

Penultimately, the Commission represents the EC at international level in the role of negotiator, pushing forward the idea of European integration. The Commission is generally held to be a neutral and detached institution within the EC and so is in a good position to do this. Nugent describes the Commission as being, "particularly well placed… [as] it is normally seen as being non-partisan… [and it] is simply in the best position to judge what proposals are likely to command support, both inside and outside the Council…[as] it is represented at virtually every stage and in virtually every forum of the Community's decision-making system"(9).

We can therefore see that the Commission has an important role to play in encouraging co-operation on a world level as well as a European level, thus promoting integration. If Europe is to be considered by the rest of the world as a single body then it must be included in world deals and the Commission is best placed to negotiate such agreements. On a final, and somewhat less important, note the Commission drafts the EC budget as well as overseeing the distribution and collection of funds.