Executive power in the new European constitution

Abstract

Paul Craig is certainly correct when he states that the prospective constitutional allocation of executive authority under the new constitutional settlement, as spelled out in the Treaty establishing a Constitution for Europe, or constitutional treaty, which finally emerged in June 2004,1 does not give a simple answer to the question regarding the locus of executive or administrative power within the European Union (EU).2 Even leaving aside the plethora of advisory bodies3 and independent agencies in the EU landscape, no fewer than three institutions can and do lay claim to executive and/or administrative authority within the EU: the European Commission, the Council of Ministers, and the European Council. (To this list, we might add the minister of foreign affairs, who, although associated with the work of the European Council and the Council of Ministers, and serving as a vice president of the Commission, would have a distinctive executive profile in his or her own right.) If we were to try to reconstruct in a simple, nonhistorical way the thinking that guided the constitutional convention in matters of institutional design, we would find (leaving external relations aside) that creating a unified, coherent executive or administrative power was not a very important consideration, perhaps not a consideration at all. To put into perspective the ultimate shaping of EU executive and administrative authority under the draft constitutional treaty, it may be useful to identify the institutional impulses—that is, the sense of imperatives—that did, in fact, take priority and that, once decided upon, inevitably constrained the architecture of the executive and administrative function that followed.