Master thesis
How to strengthen the CJEU in its ability to maintain the
institutional balance effectively
Lukas Huthmann
Master of Laws (LL.M.) in European Union Law (International and European Law) Date of submission: 25 July 2018
Supervisor: Prof. Dr. Christina Eckes Amsterdam Graduate School of Law 2018
Abstract
The institutional balance is a fundamental structural principle for the European Union’s legal order. This paper takes into its focus how the institutional balance can be judicially maintained. It therefore first evaluates how well the Court of Justice of the European Union (CJEU) is suited to adjudicate inter-institutional disputes. In the quest for potential
improvements, the paper draws inspiration from German legal system with its
Organstreitverfahren – a special procedure designed to address inter-institutional disputes. It argues that certain elements of the Organstreitverfahren could, if transferred to the EU context, enhance the CJEU’s ability to maintain the institutional balance. An independent and contentious procedure would allow the CJEU to focus in more detail on the institutional conflict. The option to ask for a declaratory judgement could reflect the applicant’s interests more accurately. And finally, the inclusion of intra-institutional conflicts would be a valuable addition.
Table of contents
1) Introduction ... 1
2) The institutional balance – a brief conceptualisation ... 3
2.1 Significance for the EU ... 3
2.2 Judicial maintenance ... 7
3) Status quo of inter-institutional dispute procedure in the EU ... 9
3.1 Development and main characteristics ... 9
3.2 Shortcomings ... 13
4) A better way to maintain the institutional balance? ... 15
4.1 Towards a subjective procedure? ... 15
4.2 Effect of the judgement: constitutive vs. declaratory nature ... 20
4.3 Include intra-institutional conflicts? ... 23
4.3.1 Government and opposition ... 24
4.3.2 Minorities and majorities ... 25
1) Introduction
The Court of Justice of the European Union1 consistently held that the institutional balance is a principle of crucial importance and that it requires judicial maintenance.2 Assuming that both of the Court’s presumptions are right,3 this paper takes into its focus the judicial
remedies before the CJEU and asks whether they allow the Court to maintain the institutional balance effectively. The paper concentrates on one particularly promising way for the Court to maintain the institutional balance – the adjudication of inter- and intra-institutional conflicts.4 It argues that the current system has certain characteristics that hamper the CJEU from addressing these conflicts adequately. Considering the importance of the task, this paper makes specific proposals on how to strengthen the CJEU’s potential to adjudicate
inter-institutional conflicts. To that end, it methodologically harnesses a comparative perspective. It draws inspiration from the judicial system of one of the EU’s Member States (the German Organstreitverfahren) and argues that the transfer of certain features from the national to the EU level enhances the Court’s ability to adjudicate inter-institutional conflicts.
The constitutional and judicial systems of the Member States have been an often considered source for inspiration for the EU’s development.5 This is well illustrated by the fact that the French recours pour excès de pouvoir inspired the CJEU’s current procedural approach to inter-institutional disputes.6 In the quest for potential improvements it seems profitable to look into a judicial system with a different procedural approach. Whereas the French and the EU’s legal system integrate the adjudication of inter-institutional disputes in a broader
1 Hereinafter ‘CJEU’ or ‘the Court’
2 See e.g. Case 9/56, Meroni & Co, Industrie Metallurgiche, SpA v High Authority, EU:C:1958:7; Case C-70/88, European Parliament v Council (Radioactivity), EU:C:1990:217 [22–23 and 26].
3 It has been doubted whether the institutional balance is indeed of such fundamental importance, see e.g.: Roland Bieber, ‘The Settlement of Institutional Conflicts on the Basis of Article 4 of the EEC Treaty’ (1984) 21 Common Market Law Review 505, 519, calls it an ‘empty formula’. The vagueness of the concept raises the question whether it should be judicially protected. Entrusting the Court with the competence to ensure
observance with a rather undefined and open concept, gives it significant interpretative leeway. This results in an increase of the CJEU’s powers. This paper only touches upon these issues (see chapter 2 and conclusion) but relies on the Court’s assumption that the institutional balance has an important legal content, which needs judicial protection.
4 Meaning conflicts between and within the institutions.
5 See e.g. Art. 6 (3) TEU, which emphasizes the significance of ‘constitutional traditions common to the Member States’ for EU fundamental rights protection.
6 Dörr, ‘Art. 263 AEUV - Nichtigkeitsklage’ in Grabitz, Hilf and Nettesheim (eds), Das Recht der Europäischen
procedure, Germany, Italy and several Eastern European countries have special remedies.7 This principal difference makes these judicial systems attractive comparators.
To concentrate on the Organstreitverfahren as only one of these systems allows a more detailed assessment than to conduct a comprehensive legal comparison. This paper aims to make selected proposals to improve the CJEU’s ability to maintain the institutional balance. Compared to its Eastern European counterparts, the Organstreitverfahren has the advantage of a comparably long existence.8 Thus the practical impact of the procedure on the German institutional system can be observed.9 The interpretation of how the German Federal
Constitutional Court (GFCC) shaped the Organstreitverfahren is a further valuable source for inspiration. Compared to the more limited Italian conflitti di attribuzione tra i poteri dello stato, the Organstreitverfahren is wider and allows the GFCC inter alia to adjudicate intra-institutional conflicts.10
The paper, first, highlights the paramount importance of the institutional balance for the (future) development of the EU and underpins the need for appropriate judicial remedies. Next, the paper identifies shortcomings in how the CJEU has been adjudicating inter- and intra-institutional disputes so far. The section thereafter draws inspiration from the
Organstreitverfahren and makes specific proposals how to strengthen the Court’s ability to protect the institutional balance. The conclusion ends with a brief outlook how the proposals would alter the role of the Court.
7 Art. 134 of the Italian Constitution: ‘conflitti di attribuzione tra i poteri dello stato’. For an overview of special inter-institutional dispute procedures in the EU: Maartje De Visser, Constitutional Review in Europe: A
Comparative Analysis (Bloomsbury Publishing 2013); Armin von Bogdandy, Christoph Grabenwarter and Peter
Michael Huber (eds), Ius Publicum Europaeum: Band VI: Verfassungsgerichtsbarkeit in Europa: Institutionen (CF Müller GmbH 2017); Specifically for Eastern European countries: Georg Brunner, ‘Die Neue
Verfassungsgerichtsbarkeit in Osteuropa’ (1993) 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 819, 852 et seq.
8 The Organstreitverfahren goes back to the Constitution of St. Paul’s Church (Paulskirchenverfassung) from 1849 (see its § 126 b)), but only gained practical effect with the adoption of the German Basic Law in 1949. It is now enshrined in Art. 93 (1) Grundgesetz (German Basic Law), official translation by the German Bundestag, <https://www.btg-bestellservice.de/pdf/80201000.pdf> accessed 8 May 2018; §§ 13 Nr. 5, 63-67 of the Federal Constitutional Court Act [Bundesverfassungsgerichtsgesetz, hereinafter BVerfGG] concretise the exact requirements.
9 On the tremendous impact of the GFCC on the development of democracy in Germany: Brun-Otto Bryde, ‘Der Beitrag des Bundesverfassungsgerichts zur Demokratisierung der Bundesrepublik’ [2006] Das
Bundesverfassungsgericht im politischen System 321; Matthias Jestaedt and others, Das Entgrenzte Gericht:
Eine Kritische Bilanz Nach Sechzig Jahren Bundesverfassungsgericht (Suhrkamp Verlag 2011); Sascha Kneip, Verfassungsgerichte als Demokratische Akteure (Nomos Verlagsgesellschaft mbH & Co KG 2009); Hans-Peter
Schneider, ‘Acht an Der Macht! Das BVerfG Als „Reparaturbetrieb “des Parlamentarismus’ (1999) 18 Neue Juristische Wochenschrift 1303; Rupert Scholz, ‘Das Bundesverfassungsgericht: Hüter Der Verfassung oder Ersatzgesetzgeber’ (1999) 16 APuZ B 3; Manfred H Wiegandt, Norm Und Wirklichkeit: Gerhard Leibholz
(1901-1982)-Leben, Werk Und Richteramt (Nomos-Verlag-Ges 1995).
2) The institutional balance – a brief conceptualisation
This part aims to shed light on the preliminary issues of why the institutional balance is significant for the EU and why it needs judicial maintenance. It argues that the institutional balance reflects an essential structural principle for the EU’s legal order, which is central for guaranteeing democracy, the rule of law, and the peculiar nature of the EU’s multi-level structure. Recent challenges to the EU further highlight the need for protection. A second issue is whether the protection of the institutional balance is a judicial task. The paper argues that the institutional balance has both a political and a legal dimension and that the protection of the latter falls under the Court’s mandate.
2.1 Significance for the EU
The institutional balance is of such an importance as it constitutes the EU’s equivalent to the separation of powers – a constitutive element for modern democracy and the rule of law within domestic systems. Proving the close resemblance between the two is a daunting task, mainly because the separation of powers itself is an elusive concept. Nobody will deny its significance, but when trying to identify common denominators in the descriptive design or its normative function, one encounters difficulties.11 Historically, the separation of powers
doctrine finds its modern origins in the works John Locke and Charles de Montesquieu.12 Writing under the impression of absolutist regimes, Locke’s and Montesquieu’s main motivation for separating powers was to preserve individual liberties by preventing a concentration of powers in just one person and the potential thereof for abuse and
despotism.13 Montesquieu favoured a tripartite division into a judiciary, a legislature and an executive branch (often referred to as trias politicas) that were to be exercised by largely independent institutions. His understanding of the separation of powers influenced the first
11 See further Christoph Möllers, Gewaltengliederung - Legitimation Und Dogmatik Im Nationalen Und
Internationalen Rechtsvergleich (Mohr Siebeck 2005) 40-72, focuses on the relationship between separation of
powers and legitimacy. Regarding the relationship with political accountability: Torsten Persson, Gerard Roland and Guido Tabellini, ‘Separation of Powers and Political Accountability’ (1997) 112 The Quarterly Journal of Economics 1163.
12 Charles de Montesquieu, De l’esprit Des Lois (1748); John Locke, Two Treatises of Government (1690) pt 2, s 132 et seq. The idea of separating powers already existed in the antiquity. In his writing on the Commonwealth (De Re Publica), Cicero proposed to allocate public power to different institutions and thereby to combine the respective advantages of democracy, aristocracy, and monarchy. Other exponents of the concept of a mixed government/constitution are Polybios, Saint Thomas Aquinas, or Johannes Calvin.
13 Koen Lenaerts and Amaryllis Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’ in Christian Joerges and Renaud Dehousse, Good Governance in Europe’s Integrated Market (Oxford University Press) 41, contend that already Montesquieu favoured a ‘balanced government’.
Constitution of the United States.14 To prevent concentration the U.S. Constitution still stipulates a rather rigid division of powers.15 However, it vests each branch with specific competences, which allow them to control each other effectively (system of checks and balances). Instead of limitation and reciprocal control between the three branches, in many European states’ democracies other normative ideas for separating powers prevail. Allocating powers to different institutions can enhance the effectiveness of governance;16 and different institutions can reflect the multitude of interests in a society more ideally.17 These
underpinnings affect the concrete design: compared to the U.S., e.g., the division of powers in parliamentary democracies is usually less strict and the institutions are closer interwoven. A closer look at the institutional balance in the EU reveals many similarities to the separation of powers in its plurality of designs and underlying normative ideas.18 From a descriptive perspective, it is still possible to pinpoint the typical trias politicas model. Although the EU does not have an organic separation – meaning the three governmental branches are allocated to different institutions that are exclusively responsible for them – a functional division into legislative, executive and judicial tasks exists.19 The legislative task of enacting abstract rules lies with the Commission, the Council and the Parliament (ordinary legislative procedure). The executive task to enforce abstract rules and/or to supervise compliance is exercised by the Commission or the Council (and often involves the Member States authorities). Only the judicial task to interpret and apply law in case of concrete disputes is not performed by various institutions but is exclusively attributed to the courts (CJEU and national courts). Compared to the United States the EU’s institutions do not enjoy a similar degree of
independence.20 But the absence of an organic separation does not mean that the trias political
14 Rebecca L Brown, ‘Separated Powers and Ordered Liberty’ (1991) 139 University of Pennsylvania Law Review 1513, 1534.
15 See Art. 1, 2, and 3 of the U.S. Constitution. This does, however, not mean that the institutions are completely unconnected, see e.g. Tom Clark, ‘Separation of Powers’ (1974) 11 Willamette Law Journal 1, 3.
16 Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Müller 1982) para 482; Möllers (n 11) 68; cf regarding the US Constitution: Louis Fisher, ‘The Efficiency Side of Separated Powers’ (1971) 5 Journal of American Studies 113.
17 Lenaerts and Verhoeven (n 13) 41.
18 See also: Ernst-Ulrich Petersmann, ‘Proposals for a New Constitution for the European Union; Building-Blocks for a Constitutional Theory and Constitutional Law of the EU’ (1995) 32 Common Market Law Review 1123, 1134, 1135, 1149–1152.
19 See Art. 14 et seq. TEU; Koen Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (1991) 28 Common Market Law Review 11, 13; See also Jürgen Bast, ‘Handlungsformen’ in Armin Bogdandy, Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge (Springer-Verlag 2013) 503 et seq.
20 Miriam Hartlapp and Claudia Wiesner, ‘Gewaltenteilung und Demokratie im EU-Mehrebenensystem’ (2016) 26 Zeitschrift für Politikwissenschaft 3, 7.
model is irrelevant. Instead a stronger interdependence between the institutions characterises the exercise of public powers in the EU.
Merely observing a functional trias politicas in the EU does not prove that the institutional balance is ‘necessary’, much less that it is an essential (structural) principle of crucial importance for the EU. Does the sui generis concept of the EU need an equivalent to the separation of powers, a principle originally envisaged for domestic systems? And does the institutional balance serve comparable objectives? The answer is yes. The necessity for the EU to incorporate an equivalent principle to the separation of powers results from the fact that it exercises functions traditionally assigned by nation-states.21 The Member States may only transfer certain competences if the EU ensures a comparable level of democratic and rule of law standards. Therefore, the separation of powers cannot be disregarded. The EU’s particular character between a federation and a federal state, however, needs certain modifications.22 Taking a closer look at the objectives of the institutional balance, the limitation of public power in order to preserve individual liberties does not appear as the primary purpose. Whereas other normative underpinnings are entirely applicable to the EU, such as the idea of a balanced government that represents all interests in a society, or the guarantee of effective governance. Two examples will illustrate these aspects. As to the balanced government, in the majority of cases where the EU exercises public powers, both a supranational and an
intergovernmental institution partake. This duality ensures that the interests of the EU and its citizens as well as those of the Member States are represented. The concept of effective governance can be seen in the combination of differently composed and structured institutions with their respective advantages. While the European Parliament (EP) is best suited for
thorough democratic debates between competing political programmes, the high level of expertise and the decision-making structures in the Commission facilitate prompt decisions even in complex matters. This combination increases input- and output legitimacy. To
summarise, the institutional balance resembles both in its descriptive design and its normative functions the separation of powers. Considering the continually growing competences of the EU – a process that does not seem to have reached its end – a strong commitment to this
21 In favour of such a transfer: Rudolf Streinz, EUV/AEUV: Vertrag über die Europäische Union und Vertrag
über die Arbeitsweise der Europäischen Union: Kommentar (CH Beck 2012) Art. 13, para. 17.
22 In detail: Ingeborg Tömmel, ‘Gewaltenteilung in der EU – Problem oder Baustein demokratischer Ordnung?’ (2016) 26 Zeitschrift für Politikwissenschaft 53, 56 et seq., argues that the separation of powers in the EU is mainly characterised by a division of political initiative and decision-making authority. See also: Streinz (n 21) Art. 13, para. 17; Möllers (n 11) 257; Rainer Grote, Der Verfassungsorganstreit: Entwicklung, Grundlagen,
structural principle, which is indispensable for democratic and constitutional domestic systems, seems a logical consequence.
In addition to the general benefits associated with the separation of powers, certain characteristics of and developments in the EU underline the need for maintenance.23 Compared to the relatively stable separation of powers in national states, the EU’s institutional balance has been altered through various Treaty amendments.24 This is most visible in the power shifts from the Council and the Commission to the European Parliament, which developed from a chamber with a purely consultative role to a key player in a now bicameral system of legislation.25 A shift of power between institutions does not just affect the institutional balance horizontally, it can also have implications for the vertical dimension between the EU and the Member States. On the one hand, a competence gain of any European institution can intensify the rivalry with its the domestic counterparts;26 on the other hand, a shift from an intergovernmental to a supranational institution could be perceived as
strengthening the EU to the detriment of the Member States.27 Keeping these implications in mind, it is remarkable that the development of the institutional balance so far lacks an
overarching and general idea.28 Instead of a generally valid concept for the institution balance,
23 See Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (n 19) 17, highlights the importance of studying the institutional balance in the EU thoroughly as it represents an essential structural guarantee for democracy and the rule of law; Regarding the challenges Post-Lisbon: Ben Smulders and Katharina Eisele, ‘Reflections on the Institutional Balance, the Community Method and the Interplay between Jurisdictions after Lisbon’ (2012) 31 Yearbook of European Law 112.
24 This notion of the institutional balance refers to its political dimension (see section 2.2).
25 Smulders and Eisele (n 23) 113; G Federico Mancini and David T Keeling, ‘Democracy and the European Court of Justice’ (1994) 57 The Modern Law Review 175, 175; For the development until the Treaty of Amsterdam: Michael Nentwich and Gerda Falkner, ‘The Treaty of Amsterdam: Towards a New Institutional Balance’ 5 et seq.; Jean-Paul Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 Common Market L. Rev. 383, 388 et seq.; A detailed analysis of the changes that led to an increased need for democratic self-legitimation through the European Parliament, see e.g Dieter Grimm, ‘Auf Der Suche Nach Akzeptanz Über
Legitimationsdefizite Und Legitimationsressourcen Der Europäischen Union’ (2015) 43 Leviathan 325, 33–34; Dieter Grimm, ‘Zum Stand Der Demokratischen Legitimation Der Europäischen Union Nach Lissabon’ [2015] Supranationalität und Demokratie: Die Europäische Union in Zeiten der Krise 17.
26 See e.g. conflicts between the CJEU and national constitutional courts on who is the final decisionmaker. Furthermore, the gradually strengthened role of the European Parliament has led to its claim that it represents European citizens. This could conflict with the self-perception of national parliaments as embodying the heart of direct democratic legitimation. However, it needs to be acknowledged that competence shifts do not necessarily need to be a zero-sum game. Taking the example of the European Parliament, national parliaments, on one hand, might lose the exclusive mandate of representing citizens, but on the other hand, they are entrusted with new additional tasks like supervising the compliance with the principle of subsidiarity (yellow and orange card procedure, introduced by the Lisbon Treaty). As a consequence, it might be more accurate to speak of a potentially changed role. The perception of a loss of competences is nevertheless widespread and at least regarding certain aspects not wrong.
27 Commission, EP and the CJEU are seen as supranational institutions, whereas the Council and European Council are intergovernmental institutions.
28 Convincing analysis by Jacqué (n 25) 387 et seq.; See also Lenaerts and Verhoeven (n 13) 38, who contend that the various Treaty reforms reflect different visions for the further development of the EU.
the specific subject matter and more technically the choice of the legal basis determine how the institutions interplay with each other.29 The expansion of the ordinary legislative
procedure to many policy fields in the Lisbon Treaties contributes to a greater unification of the inter-institutional relationships and increases the need for a coherent concept.30 Current threats to the institutional balance make its protection even more necessary.31 The handling of the Euro-crisis has shown that important political decisions were not made by the EU
institutions but outside the formal framework.32 Furthermore, the general trend towards judicialization and decision-making by the executive poses a risk to parliamentarism and democracy.33 To clearly define the limits of judicial and executive decision-making and to observe compliance with them could ensure that the Parliament’s prerogatives are protected effectively, which could strengthen democratic rule in the EU.34
2.2 Judicial maintenance
The Court has often expressed that it sees itself in the position to protect the institutional balance.35 However, according to one of the most fundamental principles of EU law – the principle of conferral – an EU institution cannot define its own competences.36 From a legal perspective,37 the Court only has a mandate if the Treaties provide it with one. Art. 19 TEU grants the Court the mandate to ensure that the law is observed in the interpretation and application of the Treaties. Consequently, the Court can only supervise compliance with the institutional balance if it is rooted in the Treaties – or, put differently, if it has a legal content. It is, therefore, imperative to differentiate between a political and a legal dimension of the
29 Joint Cases C-188-190/80, French Republic and Others v Commission, EU:C:1982:257 [6].
30 Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (n 19) 14; Thomas Giegerich, ‘Organstreit Vor Dem Gerichtshof Der Europäischen Gemeinschaften’ (1990) 50 Zur aktiven
Parteifähigkeit des Europäischen Parlaments im Nichtigkeitsklageverfahren, ZaöRV 812, 816, who contends that if the EU develops into a federal state, the institutional balance will be the ‘nucleous’ (Keimzelle) of a new system of vertical and horizontal separation of powers.
31 See further: Tömmel (n 22).
32 In detail: Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817, 823 et seq.
33 To merely name two examples for this in the EU context: both the Euro-crisis, as well as the trade negotiations regarding CETA and TTIP were largely addressed by the executive without including the EP.
34 Exemplarily for the alleged democratic deficit of the EU Christophe Crombez, ‘The Democratic Deficit in the European Union: Much Ado about Nothing?’ (2003) 4 European Union Politics 101; Andreas Follesdal and Simon Hix, ‘Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 JCMS: Journal of Common Market Studies 533.
35 See e.g. Case C-9/56, Meroni & Co., Industrie Metallurgiche, SpA v. High Authority, EU:C:1958:7 (n 2). 36 Art. 4 and 5 TEU
37 Regarding the potential institutional consequences of strengthening the Court in its ability to maintain the institutional balance, see section 5.
institutional balance.38 The political dimension refers to a dynamic concept. It can be used to describe the allocation of powers between the institutions throughout the process of European integration and to critically reflect on whether this allocation fulfils a certain normative underpinning.39 The legal dimension, by contrast, refers to a stable concept. Solely and exclusively the Treaties in their current form determine the institutional balance.40 The CJEU’s mandate is hence limited to preserving that the institutional balance as envisaged in the Treaties is preserved; it may not replace it by its own vision of a fair institutional
balance.41 There is, however, a problem with these theoretical considerations. The Treaties do not mention the institutional balance explicitly.42 Instead, the institutional balance is a
principle that was discovered by the Court in its jurisprudence. Starting with its judgement in Meroni,43 the CJEU has often had recourse to the principle of the institutional balance in its case-law44 and upheaved it by stressing that it reflects a fundamental democratic principle.45 A clear definition of what it entails, however, is absent. Indications can be drawn from the CJEU’s judgement in Chernobyl, where it held:46
The Treaties set up a system for distributing powers among the different Community institutions, assigning to each institutions its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted with the Community. Observance of the institutional balance means that each of the institutions must exercise its powers with due regard to the powers of the other institutions.47
Bearing in mind this understanding it is now also possible to identify an anchor of the institutional balance in the Treaties. Art. 13 (2) TEU stipulates that each institution shall act within the limits of the powers conferred to it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. From a legal perspective, it is therefore justified to describe the Court’s mandate as follows: it should ensure that each institution performs the role assigned to it in the Treaties and that it refrains from encroaching upon the
38 Smulders and Eisele (n 23) 3–4; Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (n 19) 47–49.
39 See e.g. Smulders and Eisele (n 23) 3. 40 Jacqué (n 25) 383.
41 For the difficulties particularly with regard to the CJEU, Lenaerts and Verhoeven (n 13) 45–47.
42 There used to be a notion in Art. 2 of the Protocol annexed to the Treaty of Amsterdam - Protocol on the application of the principles of subsidiarity and proportionality, Official Journal C 340 , 10/11/1997 P. 0105. 43 Case C-9/56, Meroni & Co., Industrie Metallurgiche, SpA v. High Authority, EU:C:1958:7 (n 2).
44 E.g. Case C-294/83, Parti écologiste Les Verts v European Parliament, EU:C:1986:166; Case C-70/88,
European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 2).
45 Case C-138/79, SA Roquette Frères v Council, EU:C:1980:249 [33]; See also Mancini and Keeling (n 25) 178 et seq.
46 Case C-70/88, European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 2). 47 ibid 21–22.
competences of another institution.48 How the CJEU ensures that an institution does not encroach upon the competences of another, ultimately depends on the procedural tools it is entrusted with. One judicial tool the Court itself mentioned is the penalisation of potential infringements.49 The penalisation necessitates as a pre-step a clear definition of the respective competences, the limits thereof, and the relationship between the institutions. Hearing and adjudicating institutional conflicts is therefore of vital importance for the Court to interpret how the Treaties envisaged the institutional balance and to ensure its practical effect.
3) Status quo of inter-institutional dispute procedure in the EU
Unlike the laws of several Member States, the Treaties of the EU do not provide for a special judicial procedure designed to address inter-institutional disputes. Instead, the adjudication of these conflicts is integrated in other procedures: the action for annulment (Art. 263 TFEU) or – if the potential infringement lies in an omission – the action for failure to act (Art. 265 TFEU). The following section outlines the CJEU’s significant impact in shaping these procedures for the specific use of addressing inter-institutional conflicts, their main
characteristics, and their shortcomings.50 It argues that the current procedural approach is not entirely inappropriate but that it limits the Court in adjudicating inter-institutional conflicts best-possibly. This is because it does not focus directly on the institutional dispute, the judgement’s legal effects are too rigid and do not allow for differentiation, and the adjudication of intra-institutional conflicts is widely excluded.
3.1 Development and main characteristics
The action for annulment allows review of legislative acts and of acts of all major institutions except for recommendations and opinions.51 The CJEU’s interpretation of potentially
reviewable acts can be described as generous.52 Reiterating that the EU is a community based
48 Similar: Jacqué (n 25) 383; Vittorio Di Bucci and Michaela Di Bucci, Der Gerichtshof und das
Rechtsschutzsystem der Europäischen Gemeinschaften (1991) 191; Koen Lenaerts, ‘The Principle of Democracy
in the Case Law of the European Court of Justice’ (2013) 62 International & Comparative Law Quarterly 271, 282.
49 Case C-70/88, European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 2) [23].
50 Since Art. 265 TFEU is the counterpart to Art. 263 TFEU and has essentially the same requirements, the two will be outlined to together. For the action for annulment in general: René Barents, ‘The Action for Annulment’ in Helen E Breese (ed), Remedies and Procedures before the EU Courts, vol 97 (2016); Alexander H Türk,
Judicial Review in EU Law (Edward Elgar Publishing 2010) 9–202.
51 Art. 263 (1) TFEU.
on the rule of law,53 the CJEU has made clear that all measures intended to produce legal effect must be judicially reviewable – no matter what their nature or form is.54 In its current form, Art. 263 TFEU differentiates between three groups of applicants, of which only the first two are relevant for inter-institutional disputes (privileged, semi-privileged and natural/legal persons). The procedure’s nature, the rationale behind it, as well as the exact formal
requirements for bringing an action for annulment vary depending on the categorisation of the applicant, which has changed quite significantly through various Treaty reforms.55 These Treaty reforms are at least partly the codification of remarkable CJEU case-law, which has been described as “the invention of a European inter-institutional dispute procedure by the CJEU”.56 A brief historical recapitalization shows that the Court has had a profound impact on using the action for annulment for inter-institutional disputes, especially with regard to the EP.57
Although it concerned the passive procedural capacity, the historical starting point of this jurisprudence was the CJEU’s landmark Les Verts case.58 Art. 263 TFEU’s predecessor, Art. 173 EEC Treaty, did not include the EP – neither to bring an action nor in that its acts could be reviewed. In Les Verts the CJEU expressed explicitly the Community’s commitment to the rule of law, which meant that no act by a European institution could escape the scope of judicial review. The Court reasoned that the role and the competences of the Parliament had changed, and that it could now adopt measures intended to produce legal effect.59 The Court concluded that these acts which potentially affect the legal position of third parties must be open to judicial review.60 Shortly after, the CJEU also recognised the active procedural capacity of the Parliament to bring an action for annulment. The question first arose in the Comitology case, where the Court found that the applicable Treaty provisions did not enable it
53 E.g. Opinion 1/09, European Patents Court, EU:C:2011:123 [70]; Case C-50/00 P, Unión de Pequeños
Agricultores v Council, EU:C:2002:462 [38–40].
54 Case C-22/70, Commission v Council (ERTA), EU:C:1971:32; Although not in a direct action but in a preliminary reference procedure, the Court essentially reviewed the legality of a press release made by Mario Draghi on behalf of the Governing Council of the ECB (OMT), see: Case C-62/14, Gauweiler v Deutscher
Bundestag, EU:C:2015:400.
55 See Dörr (n 6) paras 1–2.
56 Paraphrased translation of Giegerich (n 30) 812.
57 In detail: Anthony Arnull, The European Union and Its Court of Justice (2nd Edition, Oxford University Press 2006) 63 et seq.
58 Case C-294/83, Parti écologiste Les Verts v. European Parliament, EU:C:1986:166 (n 44); See further, e.g., Neil Walker, ‘Case 294/83, Parti Écologiste “Les Verts” v European Parliament - Opening or Closure? The Constitutional Intimations of the ECJ’ in Miguel Poiares Maduro and Loïc Azoulai, The Past and Future of EU
Law: the classics of EU law, revisited on the 50th anniversary of the Rome Treaty / ed. by Miguel Poiares Maduro and Loïc Azoulai (Hart Publishing 2010).
59 Case C-294/83, Parti écologiste Les Verts v. European Parliament, EU:C:1986:166 (n 44) [24–25]. 60 ibid 25.
to recognise an active procedural capacity of the Parliament in an action for annulment.61 According to the Court, the Treaties conferred the responsibility to ensure respect for the Parliament’s prerogatives on the Commission, and where appropriate, the Commission should bring an action for annulment.62 This view, however, did not last for long. Only 20 months later, the Court was confronted with the issue again in the Chernobyl case.63 The particularity of this case was that the Commission had expressed that it shared the Council’s legal
viewpoint and was therefore not willing to bring an action for annulment. Recognising that its own proposed solution in Comitology was ineffective, the Court faced a difficult decision. Should it adhere to its previous literal interpretation of Art. 173 EEC with the consequence that the EP’s prerogatives would be unprotected?64 Or should it grant the Parliament active locus standi, which it had denied only shortly before? The Court opted for the second option and granted the Parliament locus standi but posed a restriction on it: the EP could only bring an action to defend its own prerogatives.65 In its judgement, the Court specifically highlighted the importance of the institutional balance and its own responsibility of maintaining it.66 Both judgements received a large amount of scholarly attention.67 Several crucial arguments can be extracted from the debate; e.g. that the CJEU strengthened the role of the Parliament and thereby enhanced democracy in Europe; or that doing so necessitated quite an
61 Case C-302/87, European Parliament v Council (Comitology), EU:C:1988:461 [28]. 62 ibid 27.
63 Case C-70/88, European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 1) The case concerned a regulation on maximum limits of radioactive contamination in foodstuff, which the Council had adopted on the basis of a Commission proposal in the aftermath of the Chernobyl disaster. The Parliament was dissatisfied with its only consultative role in the adoption of the Regulation and contended that the correct legal basis should have been Art. 100A EEC instead of Art. 31 Euratom. Art. 100A EEC would have granted the Parliament a more important role in the legislative procedure.
64 The Parliament only could have brought an action for failure to act against the Commission. See for the inadequacy of this alternative even if Commission and Parliament have a common view: Opinion of Advocate General Jacobs in C-295/90, EU:C:1992:228 [27–30].
65 Case C-70/88, European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 2) [21–27]; Lenaerts calls it the ‘companion’ case to Les Verts, see: Koen Lenaerts, ‘Case 294/83, Parti Écologiste “Les Verts” v European Parliament - The Basic Constitutional Charter of a Community Based on the Rule of Law’ in Miguel Poiares Maduro and Loïc Azoulai, The Past and Future of EU Law: the classics of EU law, revisited on the 50th
anniversary of the Rome Treaty / ed. by Miguel Poiares Maduro and Loïc Azoulai (Hart Publishing 2010) 298.
66 Case C-70/88, European Parliament v. Council (Radioactivity), EU:C:1990:217 (n 2) [20–23].
67 For Les Verts see fn. 58; for Chernobyl inter alia: Giegerich (n 29); Gerhard Bebr, ‘Comment on C-70/88’ (1991) 28 Common Market Law Review 663; Meinhard Hilf, ‘Das Klagerecht Des Europäischen Parlaments Im Organstreit’ [1990] Europarecht 273 et seq.; Lord Slynn of Hadley, ‘The Parliament in Court’ (1992) 45 Current Legal Problems 237; K St Clair Bradley, ‘Sense and Sensibility: Parliament v. Council Continued’ (1991) 16 European Law Review 245; Thomas Hieber, Die Europäische Bürgerinitiative Nach Dem Vertrag von Lissabon:
Rechtsdogmatische Analyse Eines Neuen Politischen Rechts Der Unionsbürger, vol 94 (Mohr Siebeck 2014);
Angela Faber, ‘Die Klagebefugnis Des Europäischen Parlaments’ [1990] Deutsches Verwaltungsblatt 1095 et seq.; Manfred A Daues, ‘Ein Sieg Für Die Demokratie in Europa’ 169; Gerhard Bebr, ‘The Standing of the European Parliament in the Community System of Legal Remedies: A Thorny Jurisprudential Development’ (1990) 10 Yearbook of European Law 171.
interpretative stretch.68 For the purpose of this paper, it is particularly worth noticing that the Court had a profound impact on creating a forum for inter-institutional disputes. By
recognising active and passive locus standi for the Parliament, it considerably widened the scope of the action for annulment. Initially, the Commission was supposed to oversee observance of EU law alone. Because it could not be entrusted with controlling its own action, the Council was also allowed to bring actions for annulment.69 Extending this competence to another institution not only meant a strengthening of the Parliament but it showed a potential new usage of the action for annulment: besides its function of objectively reviewing EU acts, it could also be used for institutions to defend their prerogatives. The Court’s judgements were codified in the Maastricht Treaty.70 The Treaties of Nice changed the system again, abolishing the restriction for the Parliament that it could only defend its own prerogatives.71 Thus, it no longer has to indicate in an appropriate manner the substance of the prerogatives to be safeguarded and how that prerogative is allegedly being infringed.72 Since the Lisbon Treaty entered into force, Art. 263 TFEU knows three groups of applicants. The privileged applicants comprise the Member States, the Commission, the Council, and the Parliament. They are entrusted with the task to preserve the legality of the EU legal order and may therefore ask for judicial review without having to demonstrate a subjective interest in bringing the action. Thus, for them the procedure is objective in nature. As the historical recapitalisation has shown, the inclusion of the Parliament only occurred with the Treaty of Nice. Since then the Parliament does not have to indicate the substance of the prerogative to be safeguarded and how it is allegedly infringed. However, this does not exclude privileged applicants from seeking to protect their own prerogatives by bringing an action for annulment. To do so, the institutions simply claim that the act concerned suffers from a deficiency of the first or second ground for annulment (lack of competence or the infringement of an essential procedural requirement). In its review of the legality of the act, the Court must necessarily
68 See for the allegation of judicial activism: Patrick Neill, ‘The European Court of Justice: A Case Study in Judicial Activism’ (European Policy Forum London 1995); Trevor C Hartley, ‘The European Court, Judicial Objectivity and the Constitution of the European Union’ (1996) 112 Law Quarterly Review 95, 101; Convincing defense of the Court’s approach by Giegerich, who argues that recognising the procedural capacity of the Parliament in an action for annulment is only the logical consequence of the substantively altered role, see Giegerich (n 30) 826–829; Similar: David T Keeling, ‘In Praise of Judicial Activism. But What Does It Mean? And Has the European Court of Justice Ever Practised It?’ [1998]; Arnull (n 57) 68.
69 Grote (n 22) 349.
70 See Art. 173 (1) and (3) Treaty of Maastricht. 71 See Art. 230 (1) Treaty of Nice.
72 Case C-316/91, European Parliament v Council, EU:C:1994:76 [11–13]; Case C-303/94, European
Parliament v Council, EU:C:1996:238 [17]; Case C-189/97, European Parliament v Council, EU:C:1999:366
rule on the scope of the competence of the institutions concerned. Inter-institutional disputes often centre around the question of the correct legal basis as every legal basis determines the legislative procedure and thereby also the rights of the institutions involved. It is also possible to base a claim on the infringement of an essential procedural requirement, e.g. if a right of consultation was not considered.73 The fact that privileged applicants use the action for annulment to defend their prerogatives, however, does not alter the objective nature of the procedure.74 The semi-privileged applicants consist of the Court of Auditors, the European Central Bank, and the Committee of the Regions. They may only bring an action for annulment to defend their own prerogatives.75 This changes the nature of the procedure. Instead of an objective and more or less comprehensive review of the legality of an act, the Court reviews only if the rights of the applying institution were not respected. Art. 263 (4) regulates that individuals (non-privileged applicants) only have locus standi if the act is addressed to them or concerns them directly and individually.76
3.2 Shortcomings
One problem of the current procedural approach is that for the group of privileged applicants, the procedure’s focus lies on the legality of an act and not on the institutional dispute. To clarify functions, rights and relationships of the institutions is a task of tremendous
importance, which deserves a special judicial forum and concentration on the dispute. The inclusion of these conflicts in a broader procedure with a different focus risks not to ensure the visibility of what is at stake. Furthermore, the restriction to only one possible legal effect of the judgement (constitutive effect) limits the Court in its ability to differentiate of what the applicant really sought. Art. 263 (2) TFEU names four grounds for an annulment. The first two grounds – lack of competence and the infringement of an essential procedural
requirement – are reviewed by the Court ex officio.77 Claims that the act at issue infringes the
73 Case C-65/90, European Parliament v Council, EU:C:1992:325. 74 Grote (n 22) 349.
75 Art. 263 (3) TFEU; like the Parliament’s position until the Treaty of Nice.
76 See for the debate on locus standi for private applicants: Gordana Cirkovic, ‘The Locus Standi of Private Applicants before the Court of Justice of the European Union after Lisbon Treaty’ (2011) 45 Zbornik Radova 605; Anthony Arnull, ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’ (1995) 32 Common Market L. Rev. 7; Floris De Witte, ‘The European Judiciary after Lisbon’ (2007) 15 Maastricht Journal of European and Comparative Law 43; John A Usher, ‘Direct and Individual Concern-an Effective Remedy or a Conventional Solution?’ (2003) 28 European Law Review 575; Paul Craig, ‘Legality, Standing and Substantive Review in Community Law’ (1994) 14 Oxford Journal of Legal Studies 507; Albertina Albors-Llorens, ‘Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam’ (1998) 35 Common Market L. Rev. 1273.
77 See e.g. Alexander Fritzsche, ‘Discretion, Scope of Judicial Review and Institutional Balance in European Law’ (2010) 47 Common Market Law Review 361, 366.
Treaties or any rule of law relating to their application (third ground) or constitutes a misuse of power (fourth ground) have to be put forward by the applicant.78 If the act suffers from at least one of these deficiencies, the Court has to declare the act concerned to be void.79 The Court’s judgements have effect erga omnes and ex tunc.80 Art. 264 (2) TFEU, however, grants the Court the discretion to state which of the effects of the act which it has declared void shall be considered as definitive. The Court may place temporal limitations upon an annulment.81 The adjudication of intra-institutional conflicts is mostly excluded. Neither Art. 263 TFEU nor any of its predecessors list parts of EU institutions – such as parliamentary groups or single members of the Parliament – as applicants in an action for annulment. Of special significance intra-institutional conflicts is also the so-called Les Verts restriction, according to which a judicial review of acts of the Parliament is only possible if they are intended to produce legal effect vis-à-vis third parties.82 The historic recapitalisation has shown that for a full picture the CJEU’s jurisprudence has to be taken into account. The first reactions of the Court to parliamentary groups seeking the annulment of acts of the Parliament were quite clear. The CJEU dismissed as inadmissible two actions on the basis that the internal
organisation of work of the Parliament could not be challenged in an action for annulment.83 Even though the Court found the actions in Les Verts and Weber admissible, they are in line with this case-law.84 Ms Weber’s action concerned a decision that affected her status after having ceased to be a Member of the European Parliament and Les Verts had brought the action as a legal entity outside the Parliament and not as a group thereof.85 Both actions fell under Art. 230 (4) EC (now Art. 263 (4) TFEU), which regulates standing of private litigants. In Martinez, Members of the Parliament brought an action based on Art. 230 (4) EC to
78 For an overview: Augustin Fuerea, ‘The ECJ Case-Law on the Annulment Action: Grounds, Effects and Illegality Plea’ (2017) 24 Lex ET Scientia International Journal.
79 Despite the wording of Art. 264 (1) TFEU: “shall declare the act concerned to be void”
80 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Third Edition (2014), Cambridge University Press) 464.
81 See e.g. Case C-392/95, European Parliament v Council, EU:C:1997:289.
82 CJEU in Case C-294/83, Parti écologiste Les Verts v. European Parliament, EU:C:1986:166 (n 44) [25]; now codified in Art. 263 (1) TFEU, which applies also for the European Council.
83 Case C-78/85, Group of the European Right v European Parliament, EU:C:1986:227 [11], where a group of the Parliament sought a declaration by the Court that a decision by the Parliament’s president setting up a committee of inquiry into the rise of fascism and racism in Europe is void. Further: Case C-68/90, Yvan Blot and
Front National v European Parliament, EU:C:1990:222 [10–13], where a Parliamentary group called into
question the propriety of the procedure by which the chairman of an interparliamentary delegation was appointed.
84 Case C-294/83, Parti écologiste Les Verts v. European Parliament, EU:C:1986:166 (n 44); Case C-314/91,
Beate Weber v European Parliament, EU:C:1993:109.
85 Case C-314/91, Beate Weber v. European Parliament, EU:C:1993:109 (n 84) [11]; Case C-294/83, Parti
challenge the withdrawal of their status as a “group” within the meaning of Art. 29 of the Procedure of the Parliament. The Court of First Instance reiterated the differentiation between measures that relate purely to the internal organisation of work in an institution and those going beyond that.86 In the case at issue, it found that both the actions by the French political party (“Front National”) and the Members of the former group in the Parliament (“TDI”) were admissible.87 In the appeal the CJEU, by contrast, considered the application by a national party inadmissible as it did not affect the applicant directly within the meaning of Art. 230 (4) EC.88 However, the action by the former TDI group of the Parliament was found to be
admissible. To conclude, the jurisprudence regarding intra-institutional disputes is not entirely clear. It seems, though, as if measures that relate to the status of members or groups of the Parliament as such are open to judicial review; on the other hand, measures that affect the rights of parts of an institution in the work-progress are outside the scope of Art. 263 TFEU.89
4) A better way to maintain the institutional balance?
How could the CJEU’s ability be strengthened? Conceptually, a transfer of an element of the Organstreitverfahren to the European level seems desirable only if a) the element seems to have had a relevant impact on maintaining the institutional balance in Germany, and b) the EU’s institutional architecture and the concept of the institutional balance do not differ decisively compared to its German counterparts.
4.1 Towards a subjective procedure?
Whereas the action for annulment is an objective and comprehensive review of the legality of an EU institution’s act, the Organstreitverfahren is a subjective procedure. At its core lies the clarification of the constitutional relationship between two organs in order to resolve a
concrete constitutional dispute [verfassungsrechtliche Streitigkeit].90 High federal institutions bring an Organstreitverfahren if they seek a declaration that a specific conduct or omission by another institution infringed upon one of their rights granted by the German Constitution.
86 Case T-222/99, Martinez and Others v European Parliament, EU:T:2001:242 [51 et seq.]. 87 ibid 60-65 (for TDI), 66-75 (for Front National).
88 Case C-486/01 P, Front National v European Parliament, EU:C:2004:394 [38 et seq.] The TDI-group’s application was still admissible. Martinez’ appeal was dismissed due to substantive reasons, see: Case C-488/01
P, Martinez v European Parliament, EU:C:2003:608.
89 Similar: Grote (n 22) 355; Michael Stauß, Das Europäische Parlament und seine Untergliederungen als
Parteien im Verfahren der Nichtigkeitsklage (Art. 173 EVG) (Nomos-Verlag-Ges 1996) 48.
90 Klaus Schlaich and Stefan Korioth, Das Bundesverfassungsgericht - Stellung, Verfahren, Entscheidungen (10th edn, CH Beck 2015) para 79; (n 22) 92 et seq.
Several characteristics highlight the subjective nature and the focus on the constitutional dispute of the Organstreitverfahren.
Firstly, it is essential for the characterisation of the Organstreitverfahren to relate it to other procedures before the GFCC. Next to the Organstreitverfahren, the German Basic Law provides, among others, for a procedure aimed at the abstract review of statutes [Abstrakte Normenkontrolle, Art. 93 (1) Nr. 2 German Basic Law]. The Basic Law enlists a limited group of potential applicants, including the Federal Government, or a quarter of the Members of the Bundestag, who can ask for the abstract judicial review of the compatibility of a federal statute or Land law with the German Basic Law.91 The judicial review is comprehensive and objective in nature; the applicants do not have to claim that their own rights are affected by the statute. If the action is well founded, the GFCC will void the law.92 This outline reveals two things: The existence of an independent procedure for the abstract review of statutes next to the Organstreitverfahren emphasises their independent functions. Further, the close
resemblance between the abstract review of statutes and the action for annulment for privileged applicants poses the question whether the Organstreitverfahren actually finds an equivalent in the action for annulment.
Secondly, subject matter of the Organstreitverfahren is a concrete dispute.93 From its literal sense, a(n) (inter-institutional) dispute is an argument or a disagreement, which usually presupposes two competing positions.94 The GFCC shared this view and held that a substantive conflict between two parties is an imperative requirement for an
Organstreitverfahren.95 The procedural consequence is that the Organstreitverfahren is a true contradictory or contentious procedure, which means that there is always an applicant and a respondent.96 The aim of the procedure is to protect the institutions’ prerogatives in
relationship to one another.97 In case of a concrete conflict, the institutions (and parts thereof),
91 § 76 BVerfGG (English Translation under
http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__blob=publicatio nFile&v=5)
92 § 78 BVerfGG
93 Interpretation by the GFCC in BVerfGE 45, 1 28; BVerfGE 1, 208 221; BVerfGE 2, 347 365 et seq.; Under reference to the legislative background and the wording of Art. 93 (1) Basic Law, some authors argue that subject matter of the Organstreitverfahren is the abstract interpretation of the German Basic Law and not the dispute; see in detail Grote (n 22) 92 et seq. The GFCC has explicitly rejected this view.
94 ‘dispute’ Oxford English Dictionary, ‘Oxford English Dictionary’ [1989] Simpson, JA & Weiner, ESC. 95 BVerfGE 2, 143 155 et seq.
96 ‘Das Bundesverfassungsgericht’ in Armin von Bogdandy, Christoph Grabenwarter and Peter Michael Huber (eds), Ius Publicum Europaeum: Band VI: Verfassungsgerichtsbarkeit in Europa: Institutionen (CF Müller GmbH 2017) 129.
can ask for a judicial review of another institution’s conduct or omission. Just to allege that the conduct was unconstitutional, however, does not suffice for an Organstreitverfahren to be admissible.98 Since the Organstreitverfahren is not an objective procedure,99 the applicant has to claim that its own constitutional rights are affected [so-called Klagebefugnis].
Juxtaposing the German procedural approach to the action for annulment, it can be observed that it depends on the applicant whether the action for annulment resembles more an
Organstreitverfahren or an abstract review of a statute. For the main political institutions (the Council, the Parliament and the Commission) the action for annulment takes an objective form similar to the abstract review of a statute. The specific characteristics of an
Organstreitverfahren, by contrast, seem to be more closely reflected in the action for annulment for semi-privileged applicants; both are subjective procedures aimed at the
protection of an institution’s prerogatives, whose assertion is also condition for admissibility. Attention should be paid to another difference. For the GFCC, the Organstreitverfahren’s procedural form as a contentious or contradictory procedure is of central importance since it reflects the substantive subject of the procedure – a true conflict between institutions. The contentious nature of the action for annulment is less pronounced. Looking at the names of the inter-institutional disputes before the CJEU, one is inclined to assume that these are contradictory procedures.100 However, this perception is not entirely accurate. According to Art. 263 TFEU, an applicant can bring an action for annulment of an act, which was adopted by a European institution. Hence, the action is technically not focussed on the constitutional conflict between the institutions, but on the result thereof - the act itself. This differentiation might seem hair-splitting, but it again illustrates the different focuses of the two procedures: review of the legality of an act vs. constitutional dispute.
Are the subjective nature, the accentuation of the contentious character, and the explicit focus on the dispute in the Organstreitverfahren elements that could, if transferred to the EU level, enhance the CJEU’s ability to adjudicate inter-institutional conflicts? This paper contends that the introduction of an independent, subjective, and contentious procedure for
inter-institutional disputes would indeed be desirable.101 From a conceptual perspective, the benefit
98 ‘[Das Organstreitverfahren] dient nicht einer allgemeinen Verfassungsaufsicht.’, see ibid. 99 See inter alia: BVerfGE 126, 55 [45]; BVerfGE 104, 151 [114].
100 It is always “one institution v. another institution”.
101 Although the practical implementation is not subject of this paper, it has to be said that the introduction of a new procedure is burdensome and hence not very likely. The proposal brought forward would not mean to change Art. 263 (2) TFEU, since it still serves an important function. Putting the institutions in charge of asking for the judicial review of EU acts is central for ensuring the legality of the EU legal order and should therefore
of granting inter-institutional disputes an independent procedure lies in underlining the importance of the substantive task of maintaining the institutional balance. Questions concerning the interpretation of the scope of competences of the institutions, the respective limits and more broadly the relationship between the institutions deserve a special forum. Giving the CJEU the possibility to address questions relating to the institutional balance in a separate procedure would allow it to go more into detail and focus its attention on the inter-institutional conflict. To this end, it would also be beneficial to have a subjective procedure with an emphasis on the contentious nature. The framing would highlight the institutional conflict and thereby contribute to a greater visibility of what is at stake – namely not the legality of an act but the institutional architecture of the EU and the role of the institutions therein. Introducing an adversarial procedure forces the respective parties to put forward their view on how the institutional balance and their role was envisaged. In its application the applying institution would have to substantiate the extent of the allegedly infringed right and why it claims that the act by another institutions infringes that right. The defendant, on the other hand, would need to justify its position and explain its view on the institutional relationship with the applicant. The need to substantiate the respective positions could ultimately increase the quality of the debate. Considering the importance of the institutional balance, the CJEU should not be the only institution that further defines the institutional balance. To provide a forum, where the institutions can express their views would be a valuable addition.
Admittedly, the action for annulment, when used for inter-institutional disputes, does capture some of these aspects. The applicant and defendant do substantiate their respective positions. However, in the end the Court has to decide whether a specific act is void or not void; not choosing the correct legal basis or disregarding an essential procedural requirement are just two potential grounds for an annulment. The procedural framing as an action for annulment hence shifts the focus from the institutional conflict to the legality of an act. To conclude, from a conceptual perspective it seems to be a promising approach for maintaining the institutional balance to bring the institutional dispute to the fore. It could after all allow a more differentiated and finer approach in which the functions of the institutions and their relationship could be explored in a more detailed way.
not be abolished (equivalent to the abstract review of a statute in the German constitutional court system). However, introducing an additional procedure also requires the amendment of the Treaties, which is a daunting task.
Adopting a more practical perspective, what are the chances that these conceptual
considerations indeed play out? At first, a comparison of judgements of the GFCC and CJEU seems to support the theoretical points raised above. Via the Organstreitverfahren, the GFCC has had a significant impact on the institutional balance in Germany. The sheer quantity of Organstreitverfahren should not belie its qualitative significance in that regard. The GFCC has strengthened the Bundestag e.g. by emphasizing its right in the process of European integration;102 it has clarified the respective competences between Bundestag and
government, e.g. by adjudicating disputes about the international deployment of the German military;103 and it further defined the rights of the government, e.g. by limiting the
government’s right to conduct public relations in the run-up to elections.104 The number and length of paragraphs the GFCC uses to elaborate on the institutional functions and
relationship is considerably longer compared to the CJEU’s assessments.105
However, the Organstreitverfahren’s success in Germany does not necessarily mean that a transfer to the EU would also strengthen the CJEU’s ability to maintain the institutional balance. There are two reasons for doubt. Firstly, the framing might not be the main problem. Instead, the CJEU has in general often been criticised for not providing sufficient reasons for its judgements.106 The GFCC, by contrast, enjoys a high standing in that regard. It could be argued, therefore, that the problem is not the procedural framing but the general difference between the two courts in how thoroughly they explain their reasoning. The introduction of the specific framing would, hence, not reach the desired outcome.
Moreover, a peculiar feature of the EU’s institutional balance casts further doubts on whether a transfer would have as positive effects it had in Germany. The Organstreitverfahren’s success can be seen in the fact that by adjudicating concrete conflicts, the GFCC managed to arrive at generally valid statements on the institutions’ relationships to one another. The disputes arise from many policy fields but the GFCC’s judgements often clarify the institutional relationship in a general manner. The EU’s institutional balance, on the other hand, has been characterised by a high degree of fragmentation.107 The potential to extract the
102 BVerfGE 123, 267 366 et seq.
103 e.g. BVerfGE 90, 286; BVerfGE 121, 135. 104 BVerfGE 44, 125.
105 Compare e.g. BVerfGE 80, 188 [108-151] (only on the substantive part) to Case C-300/89, Commission v
Council (Titanium Dioxide), EU:C:1991:244, where the entire judgement was only 25 paragraphs long.
106 See inter alia JHH Weiler, ‘Epilogue: The Judicial Après Nice’ in Gráinne De Búrca and JHH Weiler (eds),
The European Court of Justice, vol 11 (2001) 225 et seq.; Ulrich Everling, ‘Zur Begründung der Urteile des
Gerichtshofs der Europäischen Gemeinschaften’ [1994] Europarecht 127 et seq., 136.
107 Due to its development, there is no one abstract conception of an institutional balance but the concrete policy field and the legal basis determine how competences are divided between the institutions; see section 2.2.
inter-institutional conflict and to clarify the relationship between institutions in a more general manner might therefore be limited. However, even under consideration of these arguments, a transfer is still desirable. The alleged poor reasoning of the CJEU might be an additional problem, one which the proposed solution admittedly does not solve. However, this does not contradict the conceptual arguments made above. Furthermore, the development of the EU is characterised by a tendency towards a more stable and generalised institutional balance. Particularly the expansion of the ordinary legislative procedure to further policy areas illustrates this development. It is therefore likely that questions concerning the institutional balance will gain a more general validity. To summarise, the introduction of an independent, subjective procedure for institutions to defend their prerogatives seems to be a valuable contribution to facilitate the Court’s ability to maintain the institutional balance.
4.2 Effect of the judgement: constitutive vs. declaratory nature
Further interlinked with the subject matter of the procedure is a second difference between the Organstreitverfahren and the action for annulment.108 Reviewing the legality of an act means that a court can be entrusted with two alternative powers. Either it may only declare the unlawfulness of the act and, where appropriate, ask the institution to take action (declaratory nature of a judgement), or it can be provided with the authority to annul the act itself
(constitutive effect of the judgement). Which of these options is chosen is essentially a question of the scope of judicial review and relates to the understanding of separation of powers within one legal system. As seen, the judgements of the CJEU in an annulment procedure have a constitutive effect. In the Organstreitverfahren, by contrast, the GFCC interprets the German Constitution and reviews whether the action or inaction of an institution infringed the rights of another institution. Since there is not necessarily an act that could be annulled, the judgements in the Organstreitverfahren are of declaratory nature.109 If the applicant seeks the annulment of an act before the GFCC, it has to follow a different procedure.110
What are the consequences for the ability to maintain the institutional balance by judicial means? Is the declaratory nature of judgements like in the case of the Organstreitverfahren an element that should be transferred to the European context?111 There are several reasons to
108 This is different for the action for failure to act, Art. 265 TFEU (declaratory judgements). 109 See: § 67 S. 1 BVerfGG.
110 Often abstract review of a statute [abstrakte Normenkontrolle]
111 It is interesting to note that EU law does not know judgements with an only declaratory nature at all. In the German procedural system, declaratory procedures (Feststellungsklagen) have an important role.
