. 59
( 155 .)


While subsidiarity is, in principle, justiciable, it is as much a political prin-
ciple as it is a legal requirement. As the Netherlands v Parliament case illustrates,
the interpretation of subsidiarity bristles with di¬culties, and the attempt was
made in the Treaty of Amsterdam to clarify and strengthen the principle of
subsidiarity in introducing a new Protocol on the Application of the Principles
of Subsidiarity and Proportionality, now annexed to the EC Treaty. The
institutions of the Community are directed by the Protocol to ensure that
the principle of subsidiarity (as well as that of proportionality) is complied
with in exercising their powers. For any proposed Community legislation, the
reasons on which it is based are to be stated and justi¬ed (by reference to
qualitative or quantitative indicators) as complying with the principles of
subsidiarity and proportionality: the Protocol sets out guidelines for examin-
ing whether the requirements of subsidiarity are met. The Community is to
legislate ˜only to the extent necessary™ and, other things being equal, ˜directives
should be preferred to regulations and framework directives to detailed
measures™. Community measures ˜should leave as much scope for national
decisions as possible™. The Protocol includes provisions to ensure that the
actions of the Commission, the Council and the Parliament in the process of
legislation are informed by due consideration of the requirements of Article 5.
The Commission has to report annually on the application of the principle of
subsidiarity. Unfortunately, however, the Commission™s reporting has been as
lacklustre as has the Court™s willingness to take subsidiarity seriously “ its
e¬ective enforcement remaining extremely problematic, notwithstanding the
Amsterdam Protocol (see further Chalmers et al (2006), pp 219“30 and
Dashwood, ˜The relationship between the Member States and the EU/EC™
(2004) 41 CML Rev 355).
Cases in which the Court of Justice has relied on Article 10 EC include Case
14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891
and Joined Cases C-6 and 9/90 Francovich and Bonifaci v Italy [1991] ECR
I-5357, both of which are discussed further below (see pp 312“14).
285 The European dimensions

Notwithstanding the requirements of Article 10 EC, it should be pointed out
that the European Union has admitted a degree of ¬‚exibility (sometimes said to
result in a ˜variable geometry™ of the Union) in the participation of Member
States in its activities. (Note in this connection the United Kingdom™s opt-out
from the third stage of monetary union: ie, the adoption of the Euro as its
currency.) ˜Flexibility™ was institutionalised at Amsterdam, allowing groups of
Member States to pursue closer cooperation among themselves, to the exclusion
of non-participating Member States, on certain conditions, ˜as a last resort™ and
with the approval of the Council of the European Union. Nice extended the
possibility of recourse to ˜enhanced cooperation™, in particular for implement-
ing foreign and security policies. Member States taking part in enhanced coop-
eration are to ˜apply, as far as they are concerned, the acts and decisions adopted
for the implementation of the enhanced cooperation in which they participate.
Such acts and decisions shall be binding only on those Member States which
participate in such cooperation™ (Art 44(2) TEU, as amended at Nice).
The Schengen Agreement of 1985 provided for the abolition of checks at the
common borders of the participating Member States, which did not include the
United Kingdom or Ireland. At Amsterdam a new objective of the European
Union was adopted, declared in the amended Article 2 TEU, to maintain and
develop the Union ˜as an area of freedom, security and justice™, assuring the free
movement of persons. At the same time the Schengen Agreement was incorpo-
rated into the Treaties, but a Protocol permits the United Kingdom and Ireland
to continue to operate frontier controls on persons entering their territories
from other Member States. A further Protocol exempts the United Kingdom
(and also Ireland and Denmark) from action taken under Title IV EC (on visa,
asylum and immigration policies), with provision for opting-in to particular
measures. Thus, it may be said that despite the apparent simplicity of the con-
stitutional provisions of Articles 5 and 10 EC, the reality is rather more complex
and considerably more untidy, with various Member States (including the
United Kingdom) eager to preserve aspects of law- and policy-making to them-
selves. (See further Curtin, ˜The constitutional structure of the Union: a Europe
of bits and pieces™ (1993) 30 CML Rev 17 and Chalmers et al (2006), ch 5.)
A key theme of EU law is non-discrimination. To this end Article 12 EC
provides that ˜Within the scope of application of this Treaty . . . any discrimi-
nation on grounds of nationality shall be prohibited™. Further, Article 13 EC
provides that the European Union may make laws ˜to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age or sexual
A further provision of constitutional importance is Article 6 TEU, which pro-
vides as follows:

The Union is founded on the principles of liberty, democracy, respect for human rights and fun-
damental freedoms, and the rule of law, principles which are common to the Member States.
286 British Government and the Constitution

The Union shall respect fundamental human rights, as guaranteed by the European
Convention on Human Rights . . . and as they result from the constitutional traditions common
to the Member States, as general principles of Community law.

Thus, it is a legal obligation of the European Union to respect fundamental
rights. Action taken by the European Union which fails to do so may be quashed
by the Court of Justice as being in breach of the ˜general principles of
Community law™. None the less, the European Union has no enforceable bill of
rights of its own. Every one of the Member States happens to have rati¬ed and
is therefore bound by the ECHR, but while this is true of the Member States, it
is not true of the European Union itself. The European Union has drawn up
a Bill of Rights of its own, known as the Charter of Fundamental Rights and
Freedoms, but while this document was ˜proclaimed™ by the governments of the
Member States at Nice, it is not, as the law currently stands, legally enforceable.
The Constitutional Treaty would have made it so had it come into force, but as
we have seen this is, for the present time at least, unlikely to happen. (See further
S Peers and A Ward (eds), The EU Charter of Fundamental Rights (2004) and
Chalmers et al (2006), ch 6).

(b) Institutional structure and law-making powers
Formally, the European Union has ¬ve institutions: the Commission, the
Council of Ministers, the European Parliament, the Court of Justice and the
Court of Auditors (Art 7 EC). In this section we outline the composition and
powers of each of these, as well as of the European Council and a number of
other EU bodies, such as the European Ombudsman, the Economic and Social
Committee and the Committee of the Regions. At the end of this section we
outline something of the EU™s law-making procedures.

(i) Institutions and bodies of the European Union
The Commission
The Commission is a body of about 24,000 sta¬ that is best understood as being
divided into three categories: the College of Commissioners, the Directorates-
General and the Cabinets. The College of Commissioners contains, at present,
twenty-seven members, one from each Member State. They are appointed for a
renewable ¬ve-year term, to run concurrently with that of the European
Parliament (which is elected every ¬ve years “ see below). Each Commissioner
is allocated a portfolio by the President of the Commission; thus there
is a Commissioner for competition, a Commissioner for agriculture, a
Commissioner for the environment, and so on (for the current list in full,
consult the Commission™s website http://ec.europa.eu/index_en.htm). Article
213 EC provides that the Commissioners shall act ˜in the general interest of
287 The European dimensions

the Community™ and that they must be ˜completely independent in the
performance of their duties™. In particular, ˜in the performance of their duties,
they shall neither seek nor take instructions from any government™. The
President of the Commission is nominated by the governments of the Member
States, the nomination then needing to be approved by the European
Parliament before he can take o¬ce (Art 214 EC). The President of the
Commission then nominates the other members of the College of
Commissioners in consultation with the national governments. The nomina-
tions are collectively approved by the European Parliament, which holds
nomination hearings during which nominees are subjected to detailed political
scrutiny (for a comprehensive account of the most recent such hearings, which
resulted in a series of changes having to be made to the composition of the
Commission, see Eijsbouts et al (2005) 1 Eu Const L Rev 153).
The Directorates-General, in which most of the Commission™s sta¬ work, are
akin to government departments. The Cabinets are the political o¬ces of each
Commissioner. These are small, comprising no more than six individuals each
(except the President™s Cabinet, which may have up to ten members).
As for the Commission™s powers and functions, Article 211 EC provides as

the Commission shall:

• ensure that the provisions of this Treaty and the measures taken by the institutions
pursuant thereto are applied;
• formulate recommendations or deliver opinions on matters dealt with in this Treaty . . .;
• have its own power of decision and participate in the shaping of measures taken by the
Council and by the European Parliament in the manner provided for in this Treaty;
• exercise the powers conferred on it by the Council for the implementation of the rules laid
down by the latter.

As this provision reveals, the Commission has a wide range of duties under the
Treaty. In broad terms it acts as the guardian of the Treaties, it initiates
Community policies, and it executes decisions. More speci¬cally, we may view
the Commission™s powers as falling within four categories: legislative powers,
agenda-setting powers, executive powers and supervisory powers (see further
Chalmers et al (2006), pp 93“101). Of these, probably the least signi¬cant are
the Commission™s legislative powers. Its legislative powers are concerned mainly
with delegated legislation and arise principally where the Council confers power
on the Commission to make rules implementing decisions taken by the Council
(see Art 202 EC). Its agenda-setting powers are more considerable. The
Commission is responsible for initiating the policy process (at least within
the ¬rst, Community, pillar). As such, it sets the Community™s annual legisla-
tive programme. Yet even this, in practice, is not such a broad power as may
288 British Government and the Constitution

be imagined: ˜very few proposals are at the Commission™s own initiative.
It enjoys, instead, a gate-keeper role, where di¬erent interests “ national
governments, industry, NGOs “ come to it with legislative suggestions™
(Chalmers et al (2006), p 96). That said, ˜nothing can happen without the
Commission deciding to make a proposal in the ¬rst place, and it can frame
the terms of debate and legislation™ (Chalmers et al (2006), p 97). Among
the Commission™s executive powers are the following: it collects the European
Union™s revenue, it coordinates a large part of the Community™s expenditure
(such as the European Social Fund and the European Regional Development
Fund), it administers EU aid to third countries and it represents the European
Union in some international bodies, such as the World Trade Organization.
Finally, the Commission has extensive supervisory powers. For example, it
can declare state aids unlawful (Art 88 EC) and it can declare certain anti-
competitive practices unlawful (Regulation 1/2003, Art 7). More generally, it
has the power to bring Member States before the Court of Justice when it con-
siders them to be in breach of Community law. To this end, Article 226 EC
provides as follows:

If the Commission considers that a Member State has failed to fulfil an obligation under this
Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the
opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by
the Commission, the latter may bring the matter before the Court of Justice.

This is an extremely important provision, which enables the Commission to
enforce Community law against the Member States. The provision is widely
used. It will be noted that the Article 226 procedure is in two parts. The ¬rst
part, culminating in the Commission™s ˜reasoned opinion™, is the administrative
stage in which the Commission seeks compliance with Community law without
having to refer the matter to the Court. The second stage is the judicial stage.
Most Article 226 cases are resolved at the administrative stage. In 2003, for
example, the Commission formally noti¬ed a Member State that it was in
breach of Community law on 1,552 occasions; 553 reasoned opinions were
delivered and 215 cases were referred to the Court of Justice (see further
Chalmers et al (2006), pp 349“65).
An example of Commission enforcement proceedings being taken against
the United Kingdom is the following case.

Case 61/81 Commission v United Kingdom [1982] ECR 2601 (ECJ)
Article 141 EC Treaty (before Amsterdam renumbering, Article 119 of the EC
Treaty) requires Member States to ensure the application of the principle that
men and women should receive equal pay for equal work. To reinforce and
clarify this provision the Council in 1975 adopted Directive 75/117/EEC, the
289 The European dimensions

Equal Pay Directive, with which Member States were bound to comply. Article 1
of the Directive provided:

The principle of equal pay for men and women outlined in Article [141 EC] . . . means, for
the same work or for work to which equal value is attributed, the elimination of all
discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
In particular, where a job classification system is used for determining pay, it must be based
on the same criteria for both men and women and so drawn up as to exclude any discrimi-
nation on grounds of sex [emphasis added].

The Sex Discrimination Act enacted by Parliament in 1975 was intended to ful¬l
the United Kingdom™s obligations under the Treaty and the Equal Pay Directive;
it included amendments to the Equal Pay Act 1970. In terms of the Equal Pay
Act, as amended, a woman was entitled to equal pay if she was doing ˜like work™
to that of a man in the same employment, or if her work was ˜rated as equiva-
lent™ with that of a male employee. By section 1(5), a woman was to be regarded
as employed on work rated as equivalent to that of a man, only if their jobs had
been given equal value on a job evaluation study. However an employer was
under no obligation to introduce a job evaluation scheme, and his failure to do
so would prevent a woman from claiming equal pay under the Act on the basis
that her work was equivalent to that of a male employee.
The Commission took the view that the United Kingdom had not fully imple-
mented the Equal Pay Directive. It duly delivered to the United Kingdom
Government its ˜reasoned opinion™ that Article 1 of the Directive had been
˜incorrectly applied™ in the Equal Pay Act, and invited the United Kingdom
to adopt appropriate measures of compliance within two months. The
Government replied that it considered the UK legislation to be in conformity
with the Directive, whereupon the Commission took proceedings in the Court
of Justice under (what is now) Article 226 EC, claiming a declaration that the
United Kingdom had failed to ful¬l its obligations under the Directive.

European Court of Justice: . . . Comparison of [Article 1 of the Directive and section 1(5) of
the Equal Pay Act 1970, as amended] reveals that the job classification system is, under the
directive, merely one of several methods for determining pay for work to which equal value
is attributed, whereas under the provision in the Equal Pay Act . . . the introduction of such
a system is the sole method of achieving such a result.
It is also noteworthy that, as the United Kingdom concedes, British legislation does not
permit the introduction of a job classification system without the employer™s consent. Workers
in the United Kingdom are therefore unable to have their work rated as being of equal value
with comparable work if their employer refuses to introduce a classification system.
The United Kingdom attempts to justify that state of affairs by pointing out that Article 1
of the directive says nothing about the right of an employee to insist on having pay deter-
mined by a job classification system. On that basis it concludes that the worker may not insist
290 British Government and the Constitution

on a comparative evaluation of different work by the job classification method, the
introduction of which is at the employer™s discretion.
The United Kingdom™s interpretation amounts to a denial of the very existence of a right


. 59
( 155 .)