Sharpening the Separation of Powers Through a Hierarchy of Norms? Reflections on the Draft Constitutional Treaty's Regime for Legislative and Executive Law-Making

Abstract

European Union - born in 1958 with the genetic code of an international organization - could hardly be viewed to reproduce the trias politica of a nation state. Article 4 of the EEC Treaty modestly provided: The tasks entrusted to the Community shall be carried out by the following institutions: an Assembly, a Council, a Commission, a Court of Justice. Each institution shall act within the limits of the powers conferred upon it by this Treaty. When the European Community was established, its regulatory competences were not immediately conceived of as of a legislative quality. nature of the Community in general, and its legal instruments in particular, defied parliamentary conceptions of legislation: law-making function was until the SEA (almost)exclusively in the hands of the Council with the European Parliament playing, at most, a consultative function. From a (national) democratic perspective, it seemed that all decision-making powers of the European Community were executive in character. Only the subsequent ascendancy of the European Parliament to become co-legislator with the Council under the co-decision procedure - today applicable to the majority of legal competences of the European Union - has cleared the way for the gradual emergence of a parliamentary definition of legislation in the Union legal order.