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to equal pay for work of equal value where no classification has been made. Such a position
is not consonant with the general scheme and provisions of Directive 75/117. The recitals in
the preamble to that directive indicate that its essential purpose is to implement the princi-
ple that men and women should receive equal pay contained in Article [141 EC] and that it
is primarily the responsibility of the Member States to ensure the application of this princi-
ple by means of appropriate laws, regulations and administrative provisions in such a way
that all employees in the Community can be protected in these matters.
To achieve that end the principle is defined in the first paragraph of Article 1 so as to
include under the term ˜the same work™, the case of ˜work to which equal value is attrib-
uted™, and the second paragraph emphasizes merely that where a job classification system
is used for determining pay it is necessary to ensure that it is based on the same criteria for
both men and women and so drawn up as to exclude any discrimination on grounds of sex.
It follows that where there is disagreement as to the application of that concept a worker
must be entitled to claim before an appropriate authority that his work has the same value
as other work and, if that is found to be the case, to have his rights under the Treaty and
the directive acknowledged by a binding decision. Any method which excludes that option
prevents the aims of the directive from being achieved.
That is borne out by the terms of Article 6 of the directive which provides that Member
States are, in accordance with their national circumstances and legal systems, to take the
measures necessary to ensure that the principle of equal pay is applied. They are to see that
effective means are available to take care that this principle is observed.
In this instance, however, the United Kingdom has not adopted the necessary measures
and there is at present no means whereby a worker who considers that his post is of equal
value to another may pursue his claims if the employer refuses to introduce a job classifica-
tion system.
The United Kingdom has emphasized . . . the practical difficulties which would stand
in the way of implementing the concept of work to which equal value has been attrib-
uted if the use of a system laid down by consensus were abandoned. The United
Kingdom believes that the criterion of work of equal value is too abstract to be applied by
the courts.
The Court cannot endorse that view. The implementation of the directive implies
that the assessment of the ˜equal value™ to be ˜attributed™ to particular work, may be
effected notwithstanding the employer™s wishes, if necessary in the context of adversary

As a result of this judgment, the United Kingdom Government was bound to
introduce new legislation to give full e¬ect to the Equal Pay Directive. The Equal
Pay Act 1970 was accordingly amended by the Equal Pay (Amendment)
Regulations 1983, S1 1983/1794, allowing claims for equal pay whether or not
a job evaluation scheme had been carried out.
291 The European dimensions

(For more detailed analysis of the European Commission, see D
Dimitrakopoulos (ed), The Changing European Commission (2004); D Spence
(ed), The European Commission (2006) and N Nugent, The European
Commission (2001).)

The Council of Ministers
The Council of Ministers consists of representatives of the governments of the
Member States at ministerial level. Its membership varies according to the
subject under consideration “ ministers responsible for agriculture, for
example, meeting as the ˜Agriculture Council™ when issues of the common agri-
cultural policy are to be discussed. The o¬ce of President of the Council is held
in rotation among the Member States for terms of six months.
The Council represents the interests of the Member States but as an institu-
tion of the Community it has responsibilities under the EC Treaty for further-
ing Community objectives. It has a duty to ensure coordination of the general
economic policies of the Member States and it takes the most important deci-
sions on Community matters. It is the principal legislative authority of the
Community, but now acts together with the European Parliament (in the
co-decision procedure) in most areas of its legislative activity (see further
on law-making procedures, below). Chalmers et al (2006), p 101 o¬er the
following summary of the Council™s powers:

The Council™s powers are fivefold. First, in areas of policy where responsibility lies with the
Member States, such as general economic policy, foreign and security policy, justice and
home affairs, it acts as a forum within which Member States can consult with each other and
coordinate their behaviour. Secondly, the Council can take the other institutions before the
Court, either for actions which contravene EC law or for failing to act when required by
Community law. Thirdly, the Council can request the Commission to undertake studies or
submit legislative proposals. Fourthly, the Council can delegate legislative powers to the
Commission. The fifth and most influential role is the power of final decision on the adop-
tion of legislation in most areas of EU policy. This power of assent bolsters the Council™s influ-
ence at earlier stages in the decision-making process because the other institutions are
aware that a proposal will only become law if it has the Council™s approval and, thus, tailor
their actions accordingly.

Almost all substantive decisions in Council are made through either one of
two means: unanimously, or by ˜quali¬ed majority voting™ (QMV) (for some
procedural matters a simple majority is all that is required). Clearly, when
unanimity is required, the power of each Member State government is
increased, as each has a veto. Where legislation may be adopted by QMV, on
the other hand, it may be passed even against the wishes of a number of
Member State governments. The rules of QMV are complex and, whenever
the prospect of their reform arises, hotly contested. At present the largest
countries, Germany, the United Kingdom, France and Italy, have twenty-nine
292 British Government and the Constitution

votes each; Spain and Poland have twenty-seven each; the Netherlands
thirteen; Greece, the Czech Republic, Belgium, Hungary and Portugal have
twelve each; Sweden and Austria ten each; Slovakia, Denmark, Finland,
Lithuania and Ireland seven each; Latvia, Slovenia, Estonia, Cyprus and
Luxembourg four each; and Malta three. For a measure to pass it requires 232
out of 321 possible votes, with at least thirteen Member States voting for it.
The aim here is to achieve some sort of balance between preserving each
national voice on the one hand and re¬‚ecting the vastly di¬erent population
sizes of the Member States on the other. The current numbers, however, reveal
several anomalies. The ¬fteen smallest Member States, for example, have
a combined population of about 58 million, just over two-thirds of the size of
Germany™s population, yet they have between them 102 votes, almost four
times the number accorded to Germany. The most overrepresented states are
Spain and Poland. Their populations are each less than half that of Germany,
yet they have only two votes less (see Chalmers et al (2006), p 103; for the
ways in which this would have been reformed by the Constitutional Treaty, see
ibid, pp 104“5).
The preference for majority voting expressed in the EC Treaty re¬‚ects a per-
ception of the Council as a Community body pursuing Community goals, and
not a mere inter-governmental forum for representing national interests, yet in
comparison with the Commission, the European Parliament and the Court of
Justice, it remains signi¬cantly more inter-governmental and less supranational
in character.
The Council is assisted by a Committee of Permanent Representatives
(COREPER) which consists of representatives of the Member States who
have ambassadorial rank and head the sta¬s of o¬cials constituting the
permanent representation of each Member State to the Community. This
Committee has responsibility (under Article 207 EC) ˜for preparing the
work of the Council and for carrying out the tasks assigned to it by the
Council™. It sets up its own specialised working groups of national o¬cials,
examines proposals that have been submitted to the Council and tries to reach
an accommodation of national viewpoints. COREPER and its working groups
take no decisions themselves but exercise an important in¬‚uence in settling
and de¬ning the issues for Council decision. These o¬cial bodies operate
beyond the reach of democratic control and accountability. Uncontroversial
proposals agreed by COREPER are generally adopted without debate by the
Council. Decisions of the Council on more contentious matters are the
product of inter-governmental bargaining and compromise. Ministers may
often be compelled to make concessions on one issue in return for support on
(See further J Peterson and M Shackleton (eds), The Institutions of the
European Union (2nd edn 2006), ch 4, and, in more detail, F Hayes-Renshaw
and H Wallace, The Council of Ministers (2006) and D Galloway and
M Westlake, The Council of the European Union (3rd edn 2004).)
293 The European dimensions

The European Council
The heads of government of the Member States have met regularly for many
years as the European Council, a body (confusingly enough) to be distinguished
from the Council of Ministers, considered above. The European Council lacked
formal recognition in the Treaty until the Single European Act in 1986. Article
4 TEU now sets out the tasks of the European Council:

The European Council shall provide the Union with the necessary impetus for its develop-
ment and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the
Member States and the President of the Commission. They shall be assisted by the Ministers
for Foreign Affairs of the Member States and by a Member of the Commission. The European
Council shall meet at least twice a year, under the chairmanship of the Head of State or
Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its
meetings and a yearly written report on the progress achieved by the Union.

The European Council has been accurately described as ˜the most politically
authoritative institution™ of the European Union (S Bulmer and W Wessels, The
European Council (1987), p 2). It determines the future institutional shape and
tasks of the European Union and it develops the broad principles EU policy is
to adopt. It plays a particularly dominant role in the second pillar (the common
foreign and security policy).

The European Parliament
The original Treaties established an Assembly to represent the peoples of the
Community; since 1962 it has been known as the European Parliament and this
name was con¬rmed by the Single European Act in 1986. Initially composed of
delegations from national Parliaments, the ¬rst direct elections to the European
Parliament took place in 1979. Since then such elections have taken place every
¬ve years. The European Parliament currently has 732 Members (or MEPs).
Each Member State is allocated a certain number of MEPs, with the bigger states
having more in absolute terms, but with the smaller states being overrepre-
sented in proportionate terms. Thus, for example, Germany has ninety-nine
MEPs, the United Kingdom has seventy-eight and Luxembourg has six. This
means that Germany has one MEP for every 820,000 of its citizens whereas
Luxembourg has one for every 65,000 of its citizens.
Initially, there was no agreement on a uniform electoral system for elections
to the European Parliament and it was decided that the Member States should
be free for the time being to use the system of their choice. For the ¬rst four elec-
tions, of 1979, 1984, 1989 and 1994, the United Kingdom adopted the plurality
or ˜¬rst past the post™ system for the elections in Great Britain and proportional
representation (the single transferable vote) for Northern Ireland, while the
294 British Government and the Constitution

other Member States used one or other system of proportional representation.
The European Parliamentary Elections Act 1999 introduced a regional list
system of proportional representation for elections to the European Parliament
in Great Britain. The ˜closed list™ system adopted enables electors to vote for
a party, rather than for individual candidates, the successful candidates being
chosen from lists drawn up by the political parties, in the order of preference set
by each party list (there was much controversy over the use of the ˜closed list™
system, such that the 1999 Act had to be passed using the Parliament Act pro-
cedure “ ie, without the assent of the House of Lords; for an extensive analysis
of the background, see House of Commons Library Research Paper 98/102,
available from the parliamentary website). The single transferable vote contin-
ues to be used in Northern Ireland (see now the European Parliamentary
Elections Act 2002).
Members of the European Parliament (MEPs) are required to vote ˜on an
individual and personal basis™ and they ˜shall not be bound by any instructions
and shall not receive a binding mandate™ (Article 4(1) of the Act annexed to
Council Decision 76/787/EEC on direct elections). On the other hand MEPs
form political groups, as permitted “ indeed encouraged “ by Article 191 EC.
They are elected, however, not as representatives of European political parties
(such beings do not (yet?) exist) but as representatives of their national parties.
When in plenary session MEPs sit in their political groups, not in national
groups. Most of the European Parliament™s work, however, is carried out in its
twenty or so specialised committees (for a full list of which, consult the
European Parliament™s website, www.europarl.europa.eu/).
The European Parliament has traditionally been something of a poor relation
to the Commission and the Council, but over the course of the last twenty years
its powers have gradually grown, such that it has now become an institution that
cannot be overlooked. It has ¬ve di¬erent sorts of powers. First are its legisla-
tive powers. These vary according to which legislative procedure is adopted (see
further below). Most procedures give the European Parliament a subordinate
legislative role to that of the Commission and Council. It is only with regard to
˜co-decision™ procedure that the European Parliament may claim a voice equal
to that of the Council. This procedure is, however, being used more and more.
Secondly, the European Parliament has certain powers of appointment and
dismissal. We saw above that the College of Commissioners is nominated by the
President of the Commission but approved by the European Parliament (see
Art 214 EC). The European Parliament also has the power to pass a motion of
censure on the Commission: if such a motion is passed by a two-thirds major-
ity, the Commission is required to resign (Art 201 EC). This has never
happened: when the Commission resigned in disgrace in 1999 it did so without
the European Parliament having passed a motion of censure against it (see
Tomkins, ˜Responsibility and resignation in the European Commission™ (1999)
62 MLR 744). Thirdly, the European Parliament has certain powers of inquiry
and investigation (Art 193 EC), although these have not been as widely used as
295 The European dimensions

they might have been. Fourthly it has powers of litigation: it may bring the other
institutions before the Court of Justice if it considers them to have breached
Community law (Art 230 EC). Finally, and importantly, it has a range of powers
over the European Union™s budget (Art 272 EC).
(See further J Peterson and M Shackleton (eds), The Institutions of the
European Union (2nd edn 2006), ch 6 and, in more detail, R Corbett, F Jacobs
and M Shackleton, The European Parliament (6th edn 2005) and D Judge and
D Earnshaw, The European Parliament (2003).)

The European Court of Justice
The European Court of Justice (ECJ), which has its seat in Luxembourg,
consists of one judge per Member State, appointed by common accord of the
governments of the Member States for renewable terms of six years. The judges
are chosen ˜from persons whose independence is beyond doubt and who
possess the quali¬cations required for appointment to the highest judicial
o¬ces in their respective countries or who are jurisconsults of recognized com-
petence™ (Art 223 EC). A judge can be removed only by the unanimous decision
of the other judges and the Advocates General of the Court. Most cases are
heard not by the full court but by a Chamber of three or ¬ve judges or “ if
requested by a Member State or Community institution that is a party to the
proceedings “ a Grand Chamber of thirteen judges. The judges are assisted by
eight Advocates General, who are themselves members of the Court, also
appointed by agreement of the governments of the Member States and enjoy-
ing the same status and security of tenure as the judges. The o¬ce of Advocate
General is similar to that of the commissaire du gouvernement of the French
Conseil d™Etat. The Advocate General™s role is to make, in open court, impartial
and independent submissions on cases brought before the Court (Art 222 EC).
When the arguments in a case have been concluded, the Advocate General gives
his or her opinion to the Court, reviewing the facts and the law and suggesting
how the case should be decided. The opinions of the Advocates General are
published in advance of the judgment of the Court being reached. While the
Court is not obliged to agree with the Advocate General it does so in a majority
of cases. Advocate General opinions and Court judgments di¬er considerably
from one another in character. The judgments of the Court are usually quite
short and are always unanimous (ie, there are no dissenting judgments) whereas
the opinions of the Advocates General can be longer and are usually consider-
ably more discursive (and, therefore, often more interesting). They are, as such,
an excellent resource.


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