The Principle of Institutional Balance: Rise, Eclipse and Revival of a General Principle of EU Constitutional Law.

Abstract

There are several ways to define the institutional balance in the European Union. First, the institutional balance can be understood as a ‘fact’; namely, the actual balance of powers between institutions that one can observe when looking at the way EU institutions operate with one another, along with its evolution through time and the identification of possible trends for the future. Second, the institutional balance can be seen as a normative principle – that is, what the balance between institutions should be. Third, the institutional balance can be seen as a legal principle, used and enforceable by the Court of Justice. This is the meaning that I will use in this chapter. The Court of Justice defined the institutional balance in the Chernobyl case. In this ruling, the Court found that ‘the Treaties set up a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community’. In this context, ‘observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions’. It serves therefore as a principle of mutual respect between institutions as regards their respective remits and attributions. The main question about the institutional balance is whether the institutional balance is a ‘general principle of EU law’. I will argue here that the institutional balance is indeed a general principle of EU Law. This conclusion does not derive unambiguously from the case-law of the Court. Quite the contrary, there has been important fluctuations in the case-law of the Court, to the extent that we can talk about three ‘ages’ of the institutional balance. The view that the institutional balance is a general principle is not unanimously shared. I will try to address several objections to this classification before concluding.