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Advanced Introduction to European Union Law

European Union Law

Jacques Ziller

This book explains how member states of the EU confer powers to the Union through the founding treaties and the legal frame applicable to the Union’s institutions, and the rules that apply to their functioning and the legal review of their action. It reviews the main fields of action of the EU – the internal market, area of freedom, security and justice, external action – and how law is shaping them. The interaction between the EU and its member states is also explained.
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Distribution of powers in the EU

Jacques Ziller

Extract

It is commonly argued that there is no clear separation of powers in the EU governance system. The sources of such criticism are mainly due to the fact that the EU institutional scheme does not correspond to the usual parliamentary or congressional/presidential systems of liberal democracies – but neither does the Swiss system of governance, to name only one. On the other hand, it is not sufficiently acknowledged that the separation concept inherited from Montesquieu and the founding fathers of the US Constitution that summarises separation of powers in the existence of three branches of government – legislative, executive and judiciary – does not fit with the reality of contemporary systems. A functional approach to governance systems should, after the classical legislative/budgetary, executive and judicial functions, include functions of representation, oversight, institutional design and management and, last but not least, political guidance.

More than separation of powers, it is the existence and functioning of checks and balances that guide serious institutional analysis of constitutional law, and there is no doubt that they are present, though complex, in the EU system of governance.

Scholarship sometimes refers to vertical and horizontal separation of powers which bear no unanimous usage: for certain scholars, “vertical” refers to a line between the EU level and the member state level, while for others it refers to some kind of line drawn between EU institutions. What is important and should never be lost sight of is that EU policy-making and implementation are not vested only in...

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