Institutions, Power and Institutional Balance

Abstract

The EU institutions have always been ‘singular’. From the very inception of the EEC it has been difficult to fit the principal institutions within any neat ordering that corresponds to that within the traditional nation state. The very location of legislative and executive power in the Rome Treaty was problematic, and these problems were exacerbated over time as new institutions developed, often initially outside the strict letter of the Treaty, in response to a complex set of political pressures. Institutional balance, as opposed to strict separation of powers, characterized the disposition of legislative and executive power in the EEC from the outset. The concept of institutional balance has a rich history. It was a central element in the republican conception of democratic ordering, embodying the ideal that the form of political ordering should encapsulate a balance between different interests, which represented different sections within civil society. This balance was perceived as necessary to ensure that decision-making served the public good rather than narrow sectional self-interest. The concept of institutional balance was an important part of republican discourse in the fifteenth and sixteenth centuries, shaping the desired structure of government in the Italian republics, exerting later influence in England and the emergent United States. Institutional balance is not however self-executing. It presumes by its very nature a normative and political judgment as to which institutions should be able to partake of legislative and executive power, and it presumes also a view as to what constitutes the appropriate balance between them. These normative underpinnings have, not surprisingly, altered over time in the EU, and continue to do so. These changes are charted throughout the subsequent analysis and form the underlying theme of the chapter, which is divided into three temporal periods. The initial period runs between the Rome Treaty and the Single European Act 1986 (SEA). The second section covers the period between the SEA and the Nice Treaty. And the third covers the Constitutional Treaty and the Lisbon Treaty. Treaty reform is a continuation of politics by othermeans. It is not therefore surprising that institutional issues on the agenda in the previous decade dominated debates on more comprehensive Treaty reform, including in particular the appropriate distribution of legislative power, coupled with contestation as to the locus of executive power. These were the prominent themes in the debates on Treaty reform. It is clear that while most if not all protagonists in this debate believed in institutional balance, they nonetheless differed markedly as to what this should entail.