Question 1

‘The Council of Ministers is by its very nature the federal institution of the Community’ (Walter Hallstein).

Discuss.

Answer guidance

This question is based on a quote from the 1950s and appears to be quite simple; but in order to get a respectable mark it would involve you in more work than meets the eye. In order to answer this fully, a little lateral thought is required rather than just simply describing or analysing the position and the work of the Council. However, it clearly involves the Council as the central element in any answer. The term ‘federal’ is also a decisive element of the question. In order to provide a meaningful answer there should be a definition of what is meant by federal, both generally and in particular respect to the EU. If your answer only included those aspects it would be adequate but only just and probably not attract more than a 2(ii) mark. To get more you would have to place these central elements of your answer in context. The relevant context here would be in relation to other institutions of the Union as the question implicitly requires an answer to this point, i.e. that the Council is ‘the’ federal institution as opposed to, or in contrast to, the others. You would need therefore to consider the position and role of the Commission and the EP and compare these with the Council. Whilst this is a historical quote, it should now be discussed in view of the fact that the Lisbon Treaty has added the European Council as one of the main institutions of the EU and which also should be considered in relation to the Council.

Question 2

‘The choice of legal base of an EU legislative provision can become a matter of dispute.’

Discuss.

Answer guidance

First of all you need to consider exactly what a legal base is, so a definition must be provided and the relevance of its choice must be explained, as must the consequences for the various parties involved in the legislative processes. E.g., Article 45 TFEU provides the basic policy and Art 46 TFEU provides the legal base to enact secondary legislation in support of the policy. The use of different legal bases in the Treaty determines which particular legislative procedure is employed in enacting the provision. This in turn determines the extent of the role played by the various institutions. You should determine which institutions are concerned and why. The choice of a certain legal base is important to the Member States, the Council, the Commission, and the EP. Each of these could be considered briefly in turn. Then the reasons why it can and does give rise to legal disputes must be provided. Good example cases are: C-22/96 EP v Council (Data Exchange), Case 68/86 UK v Council (the Hormones case) and Case C-155/91 Commission v Council (Waste Directive).

Question 3

Do the changes made by various Treaty amendments to the powers of the European Parliament go far enough to address the Community's alleged ‘democratic deficit’?

Answer guidance

Before the SEA, the Parliament had largely advisory and consultative powers, which meant that the EP need only be consulted before a decision could be adopted by the Council. Its participation in the legislative process was increased by the Conciliation procedure of 1977, the co-operation procedure by the SEA and the assent of the EP is a prerequisite to the accession of new Member States. Its legislative role is still limited, to such an extent that the term "democratic deficit" is used to describe this state of affairs. The TEU gave Parliament a more extensive role in the legislative process by giving its consent (co-decision) or by delivering an advisory opinion (co-operation).

The EP is the only directly elected body but only having a minor role in the legislative process whereas increasing powers are being transferred from the member states out of the reach of nationally elected parliaments. Thus a deficit in democracy is argued to be introduced. However, following the Lisbon Treaty, the EP plays a much greater role in law making with few areas now remaining outside the ordinary legislative procedure which incorporates the co-decision procedure.

Additionally there is the question of delegation of legislative power to Committees controlled by the Council and not the EP. This whole argument is described as the democratic deficit , i.e. because the EP is the only directly democratically elected element, in order to maintain the democratic right or justification of EU laws, the legislative process must be democratically justified and therefore promulgated. If this democratic deficit is real then something needs to be done.

The Council is made up of ministers of governments who are often elected members of each member state so there is an indirect representation here but you should point out there is a lack of openness/accountability and that they are not dismissible.

These additional powers go some small way towards correcting the democratic deficit in the EU, but is this far enough?

This depends on your view. Criticisms are that the new powers still do not go very far and only give the EP a negative power of veto and still only apply to limited specific areas, and further complicates matters by the addition of another legislative procedure which is also quite lengthy. If you want more federalism this can only be done democratically if the EP is given more representative power. Increasing the powers of the EP has to be at someone's expense, not the national parliaments but the Council of Ministers and, or, the Commission. The Lisbon Treaty now provides that national parliaments also be involved in scrutinising EU legislative proposals which has certainly increased the democratic input but possibly at the expense of some efficiency in the law making procedures (see Art 12 TEU).