7.1 The European Commission: Executive & Guardian of Treaties

7.1 The European Commission: Executive & Guardian of Treaties

Official Reference: Notice EPSO/AD/427/26 – Administrators (AD 5), Section 4.3.2(c): a 30-question EU knowledge test on "the EU, its institutions, procedures, and the main policies", taken in Language 2 in Part 2 of the testing phase.

In the institutional architecture of the European Union, the European Commission serves as the supranational executive body, policy driver, and legal enforcer of the Union. Governed primarily by Article 17 of the Treaty on European Union (TEU) and Articles 244 to 250 of the Treaty on the Functioning of the European Union (TFEU), the Commission is distinct from the Council and the European Council because it does not represent national governments. Instead, its explicit constitutional mandate is to "promote the general interest of the Union and take appropriate initiatives to that end" (Article 17(1) TEU).

For candidates preparing for the EPSO AD5 examination, mastery of the Commission requires a precise understanding of its constitutional independence, the multi-phase investiture procedure, the internal powers of the Commission President, its monopoly over legislative proposals, its implementation machinery under Articles 290 and 291 TFEU, and the rigorous mechanics of infringement proceedings under Articles 258 and 260 TFEU.

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Constitutional Independence & Collegiality

The functioning of the Commission rests on two core principles: strict supranational independence and collegiality.

Strict Independence (Article 17(3) TEU & Article 245 TFEU)

• Institutional Autonomy: The members of the Commission are chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
• Prohibition on Instructions: In carrying out their duties, the Commission and its individual members shall neither seek nor take instructions from any government or from any other institution, body, office, or entity.
• Obligations of Member States: Under Article 245 TFEU, Member States enter into a binding Treaty commitment to respect the independence of the Commissioners and refrain from attempting to influence them in the performance of their tasks.
• Ethical Integrity: Commissioners may not, during their term of office, engage in any other occupation, whether gainful or not. They give a solemn undertaking before the Court of Justice of the European Union (CJEU) to observe the obligations arising from their office, including duties of integrity, discretion, and loyalty with regard to post-tenure appointments.

The Principle of Collegiality (Principe de Collégialité)

The Commission operates as a collective collegiate body (College of Commissioners). Although each Commissioner is assigned responsibility for a specific portfolio (such as Competition, Trade, Internal Market, or Agriculture) and oversees the corresponding Directorate-General (DG), decisions are adopted collectively. Measures are agreed upon either by consensus, through written procedures, or by majority vote of the College under Article 250 TFEU. Once adopted, all members of the College share collective political responsibility for that decision before the European Parliament.

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Composition & Size of the College

The Lisbon Treaty Reduction Plan vs. Reality

Under Article 17(5) TEU, the Treaty of Lisbon originally stipulated that, as from 1 November 2014, the Commission would consist of a number of members corresponding to two-thirds of the number of Member States (which would have been 18 Commissioners for 27 states), chosen according to a system of strictly equal rotation between the Member States.

However, Article 17(5) TEU also empowered the European Council, acting unanimously, to alter this number. Following the initial rejection of the Lisbon Treaty by Irish voters in June 2008, the European Council pledged that a decision would be taken to allow every Member State to retain a permanent Commissioner. Consequently, by European Council Decision 2013/272/EU, the European Council exercised this legal power, maintaining a College composed of one national from each Member State.

Current Structure (27 Members)

Today, the College of Commissioners comprises 27 members:

1. The President of the European Commission;
2. The High Representative of the Union for Foreign Affairs and Security Policy (HR/VP), who serves ex officio as one of the Commission's Vice-Presidents (Article 18(4) TEU);
3. 25 Commissioners, including several Executive Vice-Presidents and Vice-Presidents appointed by the President to manage cross-cutting thematic clusters.

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The Multi-Stage Appointment Procedure (Article 17(7) TEU)

The appointment of the Commission represents one of the most intricate constitutional sequences in EU public law, balancing democratic legitimacy from the European Parliament with intergovernmental consensus from the European Council.

The Spitzenkandidat Process

Introduced in the 2014 European elections pursuant to the Lisbon Treaty phrasing "taking into account the elections to the European Parliament", European political parties nominated lead candidates (Spitzenkandidaten). Under this convention, the lead candidate of the European political group winning the largest plurality of seats in the European Parliament should be proposed by the European Council as Commission President. This process led to the appointment of Jean-Claude Juncker in 2014.

The European Council bypassed the process in 2019 by nominating Ursula von der Leyen, who had not been a lead candidate. In 2024 she ran as the European People's Party lead candidate. Parliament re-elected her as President on 18 July 2024 (401 votes in favour), approved the new College on 27 November 2024, and the second von der Leyen Commission took office on 1 December 2024 for the 2024–2029 term.

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Prerogatives of the Commission President (Article 17(6) TEU)

Historically, the Commission President was considered merely primus inter pares (first among equals). Successive revisions in the Treaties of Amsterdam, Nice, and Lisbon fundamentally presidentialized the executive office, granting the Commission President authoritative powers:

1. Setting Political Guidelines: Under Article 17(6)(a) TEU, the President lays down the guidelines within which the Commission is to work. The President establishes the political roadmap (e.g., the Political Guidelines presented to Parliament prior to election).
2. Internal Organization: Under Article 17(6)(b) TEU, the President decides on the internal organization of the Commission, ensuring that it acts consistently, efficiently, and on a collegiate basis. This includes creating, merging, or restructuring Directorates-General and establishing task forces.
3. Portfolio Allocation and Reshuffling: Under Article 17(6)(c) TEU, the President appoints Vice-Presidents (other than the HR/VP, who is designated by the European Council under Article 18(1) TEU) from among the members of the Commission. The President allocates specific policy portfolios to Commissioners and retains the absolute discretion to reshuffle these portfolios throughout the mandate.
4. Power to Demand Resignation: Under Article 17(6) TEU, a member of the Commission shall resign if the President so requests. Prior to Nice, an individual Commissioner could only be removed by the CJEU for serious misconduct or incapacity (Article 247 TFEU), or if Parliament brought down the entire Commission via a motion of censure. Today, the President holds the constitutional sword to dismiss any Commissioner individually without collapsing the College. The High Representative must also resign if requested by the President, in accordance with Article 18(1) TEU.

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Substantive Powers of the European Commission

1. Monopoly of Legislative Initiative (Article 17(2) TEU)

Under Article 17(2) TEU, Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. This legislative monopoly protects the European general interest against fragmented national interests.

• Exceptions to the Monopoly: In very limited non-legislative or specialized fields, acts may be initiated by a group of Member States (e.g. police and judicial cooperation in criminal matters under Article 76 TFEU), on a recommendation from the European Central Bank, or at the request of the Court of Justice (Article 281 TFEU).
• The Council's Unanimity Hurdle (Article 293(1) TFEU): Where the Council acts on a proposal from the Commission, the Council may amend that proposal only by acting unanimously, except in conciliation committee proceedings under the Ordinary Legislative Procedure. This is a critical EPSO test point: if the Council wishes to alter the substance of a Commission text against the Commission's will, all 27 Member States must agree unanimously.
• Power of Amendment and Withdrawal (Article 293(2) TFEU): As long as the Council has not acted, the Commission may alter its proposal at any time during procedures. Furthermore, under settled CJEU jurisprudence (Case C-409/13 Council v Commission, 2015), the Commission possesses the right to withdraw its proposal entirely if the co-legislators intend to amend it in a manner that distorts its essential objectives, provided the Commission states objective grounds.

External Indirect Triggers for Legislative Proposals

While the formal monopoly remains intact, external actors can formally invite the Commission to initiate legislation:

• Council Request (Article 241 TFEU): The Council, acting by simple majority, may request the Commission to undertake studies and submit appropriate proposals. If the Commission chooses not to propose legislation, it must formally notify the Council of its reasons.
• Parliamentary Request (Article 225 TFEU): The European Parliament, acting by a majority of its component members, may request the Commission to submit any appropriate legislative proposal. If the Commission does not submit a proposal, it must inform Parliament of the reasons.
• European Citizens' Initiative (Article 11(4) TEU): At least 1 million citizens from a minimum of one-quarter of Member States (at least 7 states, meeting individual national population thresholds) may invite the Commission to present a proposal. The Commission is legally required to examine the initiative within 6 months and state its legal and political conclusions, but it is not legally bound to table a proposal.

2. Executive Implementation & Comitology (Articles 290 & 291 TFEU)

The Commission exercises wide-ranging secondary regulatory authority delegated to it by the co-legislators:

• Delegated Acts (Article 290 TFEU): A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope, and duration of the delegation must be explicitly defined. Both the Council and the European Parliament retain the power to revoke the delegation or enter an objection within a fixed period, which blocks the act from entering into force.
• Implementing Acts (Article 291 TFEU): Where uniform conditions for implementing legally binding Union acts are needed, those acts confer implementing powers on the Commission. Implementing acts are subject to Member State control through Comitology, governed by Regulation (EU) No 182/2011:
  • Advisory Procedure: The Commission submits a draft implementing measure to a committee of Member State representatives. The committee delivers an opinion by simple majority; the Commission must take "utmost account" of the opinion but is not bound by it.
  • Examination Procedure: Applied to measures of general scope, common agricultural policy, fisheries, environment, trade, and taxation. The committee votes by Qualified Majority. If the committee delivers a negative opinion, the Commission cannot adopt the measure (it can only submit an amended draft or appeal to the Appeal Committee).

3. Execution of the Union Budget (Article 317 TFEU)

Under Article 317 TFEU, the Commission implements the EU budget in cooperation with the Member States, on its own responsibility and within the limits of the allocations, having regard to the principles of sound financial management.

• Shared Management (Gestion Partagée): Crucially for administrative reality, around 70% of the EU budget (including the Common Agricultural Policy and Cohesion Funds) is implemented through shared management, where national and regional authorities handle daily disbursements and project management under Commission auditing and supervisory control.
• Direct & Indirect Management: The remaining budget is managed directly by the Commission (e.g., Horizon Europe research grants) or indirectly through partner organizations and third-country bodies.

4. External Representation (Article 17(1) TEU)

With the exception of the Common Foreign and Security Policy (CFSP)—which falls under the High Representative and the President of the European Council—the Commission ensures the Union's external representation. It conducts international negotiations for international agreements under Article 218 TFEU, represents the EU at the World Trade Organization (WTO), and oversees bilateral trade agreements under the Common Commercial Policy (Article 207 TFEU).

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Guardian of the Treaties: Infringement Proceedings (Articles 258 & 260 TFEU)

Under Article 17(1) TEU, the Commission "shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union." To discharge this role as "Guardian of the Treaties," the Commission uses the infringement procedure against Member States failing to fulfill Treaty obligations.

                    THE INFRINGEMENT LIFECYCLE
                    
 [Pre-Litigation Phase]
   EU Pilot (Informal administrative dialogue)
        │
        ▼
   Letter of Formal Notice (Article 258 TFEU - 2-month reply window)
        │
        ▼
   Reasoned Opinion (Article 258 TFEU - Sets compliance deadline)
        │
        ▼
 [Judicial Phase - CJEU]
   Referral to CJEU under Article 258 TFEU
        │
        ▼
   Declaratory Judgment (Article 260(1) TFEU - Binding finding of breach)
        │
        ▼
 [Post-Judgment Enforcement Phase]
   Second CJEU Referral under Article 260(2) TFEU (For failure to comply)
        │
        ▼
   Financial Penalties Imposed by CJEU:
   • Lump Sum (Somme forfaitaire) for past duration
   • Periodic Penalty Payment (Astreinte) per day of future delay
   
   *SPECIAL FAST-TRACK (Article 260(3) TFEU):
    Penalties requested in initial referral for non-communication of
    directive transposition measures adopted under legislative procedure.

Stage 1: The Pre-Litigation (Administrative) Phase

1. Early Inquiries / EU Pilot: An informal dialogue between the Commission and the relevant Member State to clarify facts and resolve non-conformity without formal legal proceedings.
2. Letter of Formal Notice (Lettre de Mise en Demeure): If concerns persist, the Commission sends a formal letter under Article 258 TFEU requesting observations from the Member State, typically within two months. This delineates the formal subject-matter of the dispute.
3. Reasoned Opinion (Avis Motivé): If the Member State fails to respond or provides unsatisfactory justifications, the Commission issues a Reasoned Opinion. This legal document formally outlines the precise grounds of the infringement and establishes a binding deadline (normally two months) for the state to comply.

Stage 2: The Judicial Phase (Article 258 TFEU)

If the Member State does not comply with the Reasoned Opinion within the prescribed period, the Commission may bring the matter before the Court of Justice of the European Union.

• Nature of the Ruling: The CJEU judgment under Article 260(1) TFEU is purely declaratory. The Court confirms whether an infringement has occurred; it cannot annul national laws or award damages directly to individuals.
• Obligation to Comply: The defaulting Member State is required to take the necessary measures to comply with the judgment of the Court immediately.

Stage 3: Sanctions for Non-Compliance (Article 260(2) TFEU)

If the Member State fails to take the measures necessary to comply with the CJEU's declaratory judgment, the Commission initiates enforcement proceedings under Article 260(2) TFEU:

• Streamlined Lisbon Procedure: The Treaty of Lisbon eliminated the requirement to issue a second Reasoned Opinion before returning to Court. The Commission need only send a formal notice before referring the state back to the CJEU.
• Dual Financial Penalties: The Commission proposes, and the CJEU determines, two cumulative forms of financial sanctions:
  1. Lump Sum (Somme Forfaitaire): A fixed minimum base amount multiplied by a coefficient for gravity and duration, punishing the past unlawful conduct from the date of the first judgment until compliance or the second judgment.
  2. Periodic Penalty Payment (Astreinte): A daily fine for each day compliance continues to be delayed following the second judgment, incentivizing rapid termination of the breach.

Fast-Track Sanctions for Directives (Article 260(3) TFEU)

A major innovation of the Lisbon Treaty is Article 260(3) TFEU. When the Commission refers a Member State to the CJEU under Article 258 for failure to fulfill its obligation to notify measures transposing a directive adopted under a legislative procedure, it may specify the amount of the lump sum or penalty payment to be paid in the very first Court action. If the Court finds that the failure has occurred, it may impose financial penalties directly in its initial judgment, bypassing the lengthy two-judgment process.