Michel Guénaire is a lawyer and writer. His latest book:
After Globalization.
The return to the nation
(Presses de la Cité, 2022).
Nobody says it, yet it is the origin of the European evil.
The treaties grant the Commission an exclusive right of initiative in the creation of European rules of law which gives it a central role, from which everything starts and where everything returns, and makes it an exorbitant power.
We must of course remember that the founding fathers called for, in the original treaties of 1951 and 1957, an authority that could neutrally direct the common enterprise.
The rules which organize the status of the European Commission now confirm this.
The members of the Commission are appointed for five years, a duration which places it in a continuity independent of the heads of state and government, suitable for embodying the duration of the Union and from which it draws its prestigious title: to be the guardian of treaties.
The list of commissioners is adopted by the European Council by qualified majority, then subject to a vote of approval by the European Parliament.
The Commission, after this double passage before the Council and the Parliament, benefits from a real basis of legitimacy.
Also read: Samuel Fitoussi: “A bureaucrat’s day at the European Commission”
This legitimacy is reinforced by the presence at its head of a president, originally a simple commissioner
primus inter pares
, but, since the Treaty of Lisbon, a commissioner elected by the European Parliament by a simple majority.
This election delivers him a magisterium, when in addition he gives his agreement on the proposal of their commissioner by each State and distributes the thematic portfolios between the twenty-seven members.
Personalities have given weight to the function, from the Frenchman Jacques Delors, appointed in 1985, who will be at the origin of the
White Paper
the same year followed two years later by the Single Act to organize the Single Market of 1993, to the German Ursula von der Leyen, since December 1, 2019, who has distinguished herself by a strong presence seeking to express Europe's own will as it had never been.
Finally, the European Commission is not or only very slightly accountable to the other institutions of the Union.
Parliament can vote on a motion of censure on its management, not on a question of political orientation.
The Court of Justice of the European Union (CJEU) must be contacted by the European Council to dismiss a member of the Commission, only for personal misconduct detachable from his duties.
The right of initiative given to the Commission, on the basis of such a strong organization, resulted in exorbitant power.
The legislative power of the Commission is resolved in the exercise of its right of initiative: it proposes the texts which govern Union law, and only it can do so.
Michel Guénaire
The competences of the Union had initially been divided into three groups, called "pillars", by the Treaty of Maastricht: the first covered the matters of the two communities of 1957 and continued to be governed by the European institutions, while the second , which concerned the common foreign and security policy, and the third, dealing with justice and home affairs, were to be intergovernmental.
The Commission, however, exercised its right of initiative indiscriminately in the three pillars.
When the Lisbon Treaty removed the three pillars of the Maastricht Treaty, the Commission increased its power, which was then divided into two branches: legislative power and executive power, an extraordinary fact in a political organization.
The legislative power of the Commission is resolved in the exercise of its right of initiative: it proposes the texts which govern Union law, and only it can do so.
Regulations, directives and decisions, on the one hand – all decision-making acts –, recommendations, opinions and communications, on the other hand – non-decision-making acts – are taken by him.
Its proposals are presented for approval to the Council, which it guides, and to Parliament, whose work it prepares with its means of expertise.
Also read: François-Xavier Bellamy and Anne Sander: “The overwhelming responsibility of the European Commission in the misfortune of our farmers”
This right reveals the power of the Commission.
First, it chooses the nature of the act that must be taken, and accordingly determines the legal basis for its approval.
It can be based on Article 94 of the Treaty on the Functioning of the Union (TFU), in which case a unanimous vote of the Council applies, or Article 95, which requires a qualified majority vote.
Then, it can modify the content or even the procedure chosen during the discussion, as authorized by Article 251 of the TFU.
Finally, she does what she wants with the various counter-proposals that may be submitted to her.
In the name of its executive power, the Commission monitors the application of rules by Member States and implements the various Union policies.
It can launch a sanctions procedure against a State.
It can also control the application of measures derogating from the treaties, which are called safeguard clauses.
Above all, it has its own decision-making power which leads it, particularly in the area of competition law, to authorize concentrations and sanction abuses of dominant positions and agreements.
Faced with a situation of concentration, it even has the power to self-seize and prosecute, which no other power has in a liberal legal system.
It allocates European funding and controls its use.
Finally, it manages the Union budget and also ensures the proper execution of its commitments.
Since the adoption of the European Fiscal Compact, it has closely monitored the economic policies of member states.
We must withdraw the right of initiative from the European Commission, and make it the simple general secretariat of the European Council, endowed with the power to examine decisions taken by States.
Michel Guénaire
It's a lot.
It became too much over time.
Europe has been called a model of the culture of compromise.
It is true that it was born through negotiations between States.
This culture avoided conflicts.
Europe always got along with itself.
The force that overcomes conflicts today is the will, the orientation born from decisions, the final determination of the Commission alone.
Europe always relies on it.
The culture of compromise has given birth to a policy without concessions.
The Commission is acting with irresistible means.
44 specialized directorates and services bringing together nearly 32,000 permanent and temporary agents – almost the equivalent of the staff of the United Nations Secretariat – work daily to make the rules, check the compatibility of any national project with these rules, and to state European law.
We must withdraw the right of initiative from the European Commission, and make it the simple general secretariat of the European Council, endowed with the power to examine decisions taken by States.
And thus remember the words of General de Gaulle to the young Raymond Barre, who had just been appointed commissioner, before his departure for Brussels: “
What I ask of you and what I ask of the Commission is that it does not seek to replace States.
She has her role of reflection, of proposal, I find that very good, but I intend that she sticks strictly to that
.”