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4.1.2.  The European Commission

    The Treaty of Lisbon (copying the draft Constitutional Treaty) states that, as from 2014, the Commission should comprise a number of Commissioners corresponding to two thirds of the number of Member States, chosen according to a system based on equal rotation among the Member States (Article 17 TEU = article I-26, Constitution). However, Article 17 TEU declares that the European Council, acting unanimously, may decide to alter this number. In fact, in order to satisfy one of the demands of the Irish people – in view of the second referendum (held on 2 October 2009) on the ratification of the treaty of Lisbon – the European Council of December 2008 declared that, provided that this treaty entered into force, a decision would be taken to the effect that the Commission should continue to include one national of each Member State. This was confirmed by Decision of the European Council of 22 May 2013 [Decision 2013/272 and Decision 2014/749]. Hence, the current situation of one Commissioner per Member State will remain applicable, despite the wording of Article 17 of the TEU.

    Thus, actually, the European Commission, usually referred to as the Commission, is composed of 28 members (Commissioners), who are proposed by the government of each Member State and are appointed, for a period of five years, by the Council, acting by a qualified majority and by common accord with the nominee for President. The members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. They must not take instructions from any government and all governments must respect this principle and not seek to influence the members of the Commission in the performance of their tasks (Articles 17 TEU and 245 TFEU). The Council, by common accord with the President-elect, adopts the list of the other persons whom it proposes for appointment as members of the Commission and submits it to a vote of consent by the European Parliament (Article 17 TEU). The Parliament examines every Commissioner as to his or her programme and ideas and may put forward objections as to his/her suitability for his/her particular responsibilities inside the Commission, but may not reject his/her appointment. Hence, in case of objections expressed by the Parliament for certain members of the Commission, its President has the option of either assigning other responsibilities to the members in question or of risking the rejection of the body by the Parliament [see e.g. Decisions 2004/642 and 2004/753].

    The President of the Commission is proposed to the European Parliament by the European Council, acting by a qualified majority. The proposal of the European Council must take into account the elections to the European Parliament, thus respecting the will of the majority of the citizens of the Union, since the personality proposed to head the Commission must have the same political orientations as the political group which carried the European elections (Article 17 TEU). The Parliament elects the candidate, acting by a majority of its component members. If he or she does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy, who shall be a Vice-president of the Commission (Article 18 TEU) [see section 8.2.1]. The President, the High Representative of the Union for Foreign Affairs and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament (Article 17 TEU).

    The Commission is the driving force for European integration. Article 294 (TFEU) stipulates that where reference is made in the Treaties to the ordinary legislative procedure for the adoption of an act, the Commission shall submit a proposal to the European Parliament and the Council. This means that under the ordinary legislative procedure, no other body and no individual State can replace the Commission in the task of submitting proposals. Moreover, it alone can amend its proposal, with the sole exception of there being unanimity in the Council to do so. On the basis of the political impetus given by the European Council with declarations and often by the European Parliament with resolutions, it is the task of the Commission to make proposals to the Council and to the Parliament to undertake new activities in the framework of the Treaties. It should be noted that the declarations of the European Council and the resolutions of the Parliament are often prompted by reports or communications of the Commission itself. The power of initiative, which is held by the Commission, is particularly important for the development of the common policies and therefore for the progress of the multinational integration process. All common policies, all EU legislation, all EU programmes have been adopted by the legislative bodies with Commission initiatives in the form of explanatory communications and proposals of legal acts. However, the Treaty of Lisbon gives the citizens the possibility to influence the initiatives of the Commission. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties (Article 11 TEU = Article I-47, Constitution) [see section 9.5].

    In its proposals, the Commission is entrusted with the task of defining the common interest in each policy, legal measure or action that it proposes and the representatives of the Member States in the Council can only unanimously substitute it in this role. This means that even if only one state believes that the amendment to the proposal of the Commission, promoted by the majority, is contrary to its interests, the proposal cannot be adopted by the Council with qualified majority voting. The proposal must be amended by the Commission itself, which must find a compromise solution that comes closer to the common interest. Of course, if the Commission considers that the minority is exaggerating or filibustering, it can amend its proposal in the sense wanted by the majority, which may thus adopt it. In most cases, however, in the course of the deliberations and negotiations within the Council, the Commission amends its proposal repeatedly in order to encourage concessions here and there and thus reach agreement. The Commission can therefore paralyse the Union's decision-making process, just as it can expedite it, which it has always done. Year in, year out, it submits some 700 proposals to the Parliament and the Council, which are sooner or later adopted by the decision-making organs.

    It should be stressed, however, that the Commission only proposes legal acts or actions of the EU. The decisions are taken, usually in tandem, by the European Parliament and the Council, i.e. by the representatives of the citizens and the governments of the Member States [see section 4.3]. However a legislative act may, under certain conditions, delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act, in which case the acts of the Commission are called ''delegated acts'' (Article 290 TFEU). The Commission has defined the general framework within which such delegations of power should operate [COM/2009/673]. Where uniform conditions for implementing legally binding Union acts are needed, those acts confer implementing powers on the Commission, in which case the acts of the Commission are called ''implementing acts'' (Article 291 TFEU).

    The Commission is the guardian of the Treaties and of the "acquis communautaire" (i.e., all the EU's legislation) [see section 3.3]. One of its main tasks is to ensure fulfilment of the obligations of the Member States and/or proper application by them of the provisions of the Treaties and of secondary legislation (Article 258 TFEU). For that purpose it has investigative power, which it exercises at its own initiative or in response to a request from a government or a complaint from an individual. If, following its investigation, the Commission considers that there is infringement of EU legislation, it invites the State concerned to submit its comments within a given period. If the State in question does not comply with the provisions or if the explanations that it provides do not convince the Commission, the latter issues a reasoned opinion to which the Member State is obliged to conform within the prescribed time-limit. If the Member State fails to conform to the reasoned opinion, the Commission refers the matter to the Court of Justice, which arbitrates the dispute and, more often than not, sanctions the irregularity as noted by the Commission and requires the recalcitrant Member State to conform to the EU legal order. There are often differences of opinion between the Member States and the Commission, but the Commission's impartiality in respect of the various Member States has never been called into question. Information on progress in proceedings initiated by the Commission for infringements of European law is presented on its infringements website.

    The Commission is also the executive body of the European Union and plays, therefore, an administrative role. The Treaties confer upon the Commission extensive powers of execution to ensure the attainment of the objectives set out in them:  the good functioning of the single market and of the economic and monetary union, the control of the rules of competition, the management of the budget of the Union and, most importantly, the implementation of all the legal acts of the decision-making authorities. The Commission's powers are constantly increased by the powers conferred to it by the legislator, i.e. the European Parliament and the Council for the implementation of common policies and of the legal acts that materialise them; but the Member States control the exercise by the Commission of its implementing powers [Regulation 182/2011]. The Commission proposes the Union budget [see section 3.4] and manages it after its adoption by decision-making bodies (Parliament and Council), as it does the various EU Funds [Regulation 1105/2003, see section 12.3] and the research and technological development programmes [see section 18.2.2]. In fact, the Commission implements all the decisions and the acts of the EU legislators. The implementation decisions and acts of the Commission usually take the form of the main decisions and acts (regulation, directive or decision).

    Finally, the Commission plays a representative role by ensuring the representation of the European Union in third countries and in many international organisations. The role of the Commission is particularly important in the conduct of the common commercial policy and of the aid to development policy. Acting on behalf of the Union on instructions from the Council, the Commission negotiates tariff agreements in the context of the World Trade Organisation (WTO) [see section 23.4], trade and partnership agreements with third countries, association agreements and even, in practice, the agreements on the accession of new member states to the European Union. In order to carry out its representative role, the Commission has its own representations in more than 160 countries with which the EU has diplomatic relations and in international organisations such as the Organisation for Economic Cooperation and Development (OECD), the WTO and the Council of Europe.

    The Treaty of Lisbon extends the role of the Commission in the field of common foreign and security policy (CFSP), since the High Representative of the Union for Foreign Affairs and Security Policy, who is one of the Vice-Presidents of the Commission, has the power of proposal and contributes by his or her proposals in the development of the Union’s common foreign and security policy, which should be conducted and carried out as mandated by the Council (Article 18 TEU = Article I-28, Constitution). Indeed, the High Representative of the Union plays a dual role, one in the Commission, as its Vice-President, and one in the Foreign Affairs Council, as its President. He or she is responsible within the Commission for tasks incumbent on it in external relations and for coordinating other aspects of the Union’s external action. This coordination task implies that the High Representative must cooperate with his or her colleagues in the Commission responsible for commercial policy, aid to development, humanitarian aid and in many cases competition, agriculture and fisheries, which means that the foreign policy proposals of the High Representative are in fact proposals of the Commission. Within the Council, the High Representative ensures the consistency of the Union’s external action in all its facets. An ambiguous matter is the external representation of the Union. The EU Treaty states that the President of the European Council shall ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union (Article 15 TEU = Article I-22, Constitution)  [see section 4.1.1]. Questions to be settled in practice are where the powers of the former end and those of the latter begin and how will be represented the Union in cases and venues where the presence of both is required.

    The Treaty of Lisbon (like the defunct Constitution) confirms, in particular, the near monopoly of the legislative initiative of the Commission (Article 17 TEU = Article I-26, Constitution). It can be inferred that the representatives of the Member States, who have signed the new Treaty on 13 December 2007, have appreciated the work of the Commission to date and agreed to place it as the arbitrator of their national interests. In fact, the Commission can play this role, thanks to two main characteristic elements. Firstly, it is made up of politicians (at its top) and technocrats (at its base) of all nationalities. Secondly, it is controlled by no one national authority, but by multinational organs: the European Council, the European Parliament and the European Court of Justice. Moreover, before making its proposals, it gets advice from scientific, technical, administrative and professional experts from all the Member States.

    The multinational composition of the college of Commissioners and of the services which work under them means that no one of the officials (often called Eurocrats) or even of the Commissioners can influence a proposal that he or she is working on, so as to favour the national interest of one or some Member State(s). If he or she tried to do so, he or she would immediately be called to order by his or her colleagues in the responsible service or in the collegiate body of the Commission. Moreover, the services of the Commission, which are organised in a similar way as national Ministries, do not work in a vacuum. They are advised by specialised committees of experts of all nationalities, established by the Commission itself or, usually, by a legal act (directive, regulation, decision) in order to advise the Commission on its particular subject. These advisory committees examine a problem from its technical, economic and legal aspects and analyse the pros and cons of all possible solutions, including the inaction of the Union. All these administrative, scientific, technical and national filters through which passes a proposal of the Commission and its eventual amendments ensure that this is the closest possible to the common interest and to the best possible solution at the time of its conception. The Commission listens to all views and arguments expressed in the various committees and usually takes up in its proposal the majority views, believing that upon them can be built a consensus in the decision-making bodies, the European Parliament and the Council. After all, the Commission knows well that, in order for any one of its proposals to have a chance to be adopted by these bodies, it has to fulfil the common interest of all the Member States or of the large majority of them.

    Of course, the Commission is not infallible and it may sometimes be mistaken in the evaluation of what is the best solution in the interest of all or most Member States. Therefore, many subsequent controls exist, which make it possible to assess and eventually correct a proposal of the Commission. At the same time as it is sent to the decision-making bodies, the proposal of the Commission is, in many cases, sent to the advisory bodies set up by the Treaty: the Economic and Social Committee, consisting of representatives of the various economic and social components of organised civil society, and in particular representatives of producers, farmers, carriers, workers, dealers, craftsmen, professional occupations, consumers and the general interest (Article 301 TFEU); and the Committee of the Regions, consisting of representatives of regional and local bodies who either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly ( 305 TFEU). These bodies examine the employment, social, environmental, regional and other impacts of a Commission proposal and give their opinion to the decision-making bodies [see sections 4.2.3 and 4.2.4].

    All these administrative, scientific, technical and national filters through which passes a proposal of the Commission and its eventual amendments ensure that this is the closest possible to the common interest and to the best possible solution at the time of its conception. In any case, the ultimate judges of the soundness of the Commission's definition of the best solution in the common interest of the Member States are the decision-making bodies: the European Parliament and the Council. These bodies have their own multinational committees, which discuss at length all Commission proposals, particularly from the point of view of the various national interests involved in the problem and in its proposed solution. Their opinions weigh heavily in the deliberations of the plenary assembly of the Parliament and of the Ministers sitting in the responsible Council configuration. These discussions often take many months or even years and usually result in many amendments to the original proposal of the Commission. The fact that, ultimately, the great majority of the proposals of the Commission are adopted proves that these proposals are consistent with acknowledged expertise and with the interests of the majority of the Member States.

    Inherent in the role of the Commission as guardian of the European legislation is the administration of the safeguard clauses provided for in the Treaties or in the provisions relating to common policies. Here also an independent, objective arbiter is necessary in order to assess whether particular difficulties or special circumstances may authorise a Member State to derogate from the rules of the Treaty or from legislative provisions relating to common policies. In performing this task the Commission obviously takes into consideration the vital interests of the Member State which feels that it is suffering damage in a particular situation, but it surrounds itself with precautions and conditions so that prejudice to the functioning of the single market or to a common policy - and therefore to the common interest - is limited in scope and time.

    Approximately 23,000 permanent officials, independent of the governments of their respective countries, work under the direction of the members of the Commission. They are divided into more than twenty-four Directorates-General, each of which is responsible for a policy of the Union, corresponding to the ministries of a national government. And yet the Commission's staff is smaller than that of a good number of national ministries; and furthermore, twenty per cent of the staff is involved in the linguistic work (translation and interpretation), which is absolutely essential to ensure equality of treatment of the 23 official languages of the Union (including Irish, Bulgarian and Romanian) [Regulation 1/1958, consolidated version 01.01.2007].

    Under the control and responsibility of the Commission, executive agencies may be entrusted with certain tasks relating to the management of EU programmes [Regulation 58/2003 and Regulation 1653/2004]. The Treaty of Lisbon provides for a European External Action Service (EEAS) which assists the High Representative of the Union in his or her functions and works in cooperation with the diplomatic services of the Member States (Article 27 TEU). This service is composed of officials from relevant departments of the General Secretariat of the Council of Ministers and of the Commission and staff seconded from national diplomatic services [see section 8.2.1].

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