Government and Government and GovernanceGovernance

LUMSALUMSA

The principle of the separation of The principle of the separation of powers and the Rule of lawpowers and the Rule of law

The principle of the separation of The principle of the separation of powers and the principles of: legality, powers and the principles of: legality, non-discrimination/equality and non-discrimination/equality and freedom are basic elements of the Rule freedom are basic elements of the Rule of lawof lawSeparation of powers– theoretical Separation of powers– theoretical model of the Enlightenment based on model of the Enlightenment based on the English experience-the English experience- It avoids the concentration of the It avoids the concentration of the political power (one person or one political power (one person or one social class)social class)

The tripartite system of separation The tripartite system of separation of political powersof political powers

Legislative, Executive, JudiciaryLegislative, Executive, Judiciary

Each power should be exerted by a Each power should be exerted by a different branch of the governmentdifferent branch of the government

The symmetry between acts and The symmetry between acts and institutions in the classical tripartite institutions in the classical tripartite

systemsystem

It is assumed a symmetry among the It is assumed a symmetry among the different types of actions and the Institutionsdifferent types of actions and the InstitutionsEach institution 1) serves a function 2) Each institution 1) serves a function 2) through specific means of action “moyens through specific means of action “moyens d’action” d’action”

PowersPowersLegislative branch – Parliament - lawLegislative branch – Parliament - law

Executive branch - Government- Executive branch - Government- executes laws in generalexecutes laws in general

Judiciary branch – Courts – DecisionsJudiciary branch – Courts – Decisions

Difficult application of the clear-cut Difficult application of the clear-cut principle of separation of powers..principle of separation of powers..

The model of the clear-cut division of The model of the clear-cut division of powers mandates that each branch powers mandates that each branch of the government has its own of the government has its own prerogatives and specific means of prerogatives and specific means of action: each power has a prerogativeaction: each power has a prerogative

Nowadays the theoretical model is Nowadays the theoretical model is impracticable, and probably it has impracticable, and probably it has never been entirely applied.never been entirely applied.

Cooperation among PowersCooperation among PowersMontesquieu_ De l’esprit des lois (1758)Montesquieu_ De l’esprit des lois (1758)

The three powers should rest: but due to The three powers should rest: but due to the necessary movements of things they will the necessary movements of things they will be forced to act in concertbe forced to act in concert

““Les trois pouvoirs devraient rester en Les trois pouvoirs devraient rester en repos: Mais pour le nécessaire mouvement repos: Mais pour le nécessaire mouvement les choses seront contraintes à procéder de les choses seront contraintes à procéder de concert” concert”

The model doesn’t fit the EUThe model doesn’t fit the EU-inapplicability of the model to the EU--inapplicability of the model to the EU-

A fixed application of the separation A fixed application of the separation of power is impracticable too: each of power is impracticable too: each Institution exercise different functions Institution exercise different functions through many ways of actionthrough many ways of actionThe EU Commission exercises the The EU Commission exercises the legislative power (initiative) and the legislative power (initiative) and the EU Parliament and the Council are co-EU Parliament and the Council are co-legislatorslegislators

Powers and functions of the EU InstitutionsPowers and functions of the EU Institutionsa) The European Commissiona) The European Commission

The Commission:The Commission:-- - It shall oversee the application of Union law shall oversee the right application of shall oversee the right application of primary and secondary European Union law;primary and secondary European Union law;-- It can issue recommendations and - It can issue recommendations and opinions;opinions;-- It participate the decisional activity of - It participate the decisional activity of other Institutions (right of initiative and other Institutions (right of initiative and intervention during the legislative intervention during the legislative procedure);procedure);-- it can exercise - it can exercise purepure normative power or normative power or delegated by the Council of Ministersdelegated by the Council of Ministers-- Proposal: green papers, white papers, - Proposal: green papers, white papers, programmesprogrammes

Asymmetry and SeparationAsymmetry and Separation

At European Union level it is difficult At European Union level it is difficult to imagine a rigid separation of powersto imagine a rigid separation of powersThe EU Commission has many The EU Commission has many functions: legislative, the task to functions: legislative, the task to represent the general interest of the represent the general interest of the Union, the job to put EU’s common Union, the job to put EU’s common policies. These functions are attained policies. These functions are attained by means of different “ways of action”.by means of different “ways of action”.

b) The European Councilb) The European CouncilAccording to the TEU the EU Council According to the TEU the EU Council defines the general political directions and defines the general political directions and priorities of the Union (main centre of priorities of the Union (main centre of political decision) it exercises:political decision) it exercises:-The coordination of the general economic The coordination of the general economic policies of Member States;policies of Member States;-Pure normative powerPure normative power-Decides and carries out the CFSP (art. 26 Decides and carries out the CFSP (art. 26 TEU)TEU)-Coordinates the action of the MS and adopts Coordinates the action of the MS and adopts decisions concerning police and judicial decisions concerning police and judicial cooperation (criminal law)cooperation (criminal law)-Entrusts the Commission with the regulatory Entrusts the Commission with the regulatory power of executionpower of execution

The CouncilThe CouncilDefinition:Definition:

The Council = Council of Ministers Acts:Normative: regulations, directivesDecisions, actions, positions (CFSP)Conclusions, declarations,

resolutions, opinionsAFSJ (ex III pillar + asylum and

immigration law) International Agreements

The CouncilThe CouncilAccording to the Treaty establishing the According to the Treaty establishing the European Economic Community (Rome European Economic Community (Rome 1957), the Council played the role of 1957), the Council played the role of legislator in a context of separation of legislator in a context of separation of powers from the Commission powers from the Commission At the beginning as a general rule, and now At the beginning as a general rule, and now according to the Treaty, the Council according to the Treaty, the Council cooperates with the Commission during the cooperates with the Commission during the legislative processlegislative processThe Council, jointly with the European The Council, jointly with the European Parliament, exercise the legislative function Parliament, exercise the legislative function (ordinary legislative procedure = codecision)(ordinary legislative procedure = codecision)

c) The European Parliamentc) The European ParliamentThe European Parliament:The European Parliament:- exercises the legislative power - exercises the legislative power together with the Council.together with the Council.- exercises functions of political and - exercises functions of political and budgetary control:budgetary control:1.1.It approves the budget of the Union It approves the budget of the Union (Council);(Council);2.2.It exercises a function of control on It exercises a function of control on the activity of the Commission and of the activity of the Commission and of the Council;the Council;

The EU ParliamentThe EU ParliamentThe EU Parliament has gained more The EU Parliament has gained more power in the process of appointment of power in the process of appointment of the Commissionthe CommissionMotion of censure.Motion of censure.Plurality of functions - plurality of Plurality of functions - plurality of instruments (normative or not, and instruments (normative or not, and binding or not).binding or not).