Richard Crowe*

 

Introduction

The regular summits of Heads of State or Government that came to be known as the European Council have been an essential feature of the European Union’s decision-making structures for almost four decades.[1] Yet it was only with the entry into force of the Treaty of Lisbon on 1 December 2009 that the European Council was legally integrated into the institutional titles of the Treaties as one of the seven institutions of the Union, alongside the European Parliament, the Council, the Commission, the Court of Justice, the European Central Bank and the Court of Auditors.[2]

The legal integration of the European Council into the Union’s institutional framework coincided with a strengthening by the Treaty of Lisbon of the competences of other institutions, notably the European Parliament, whose legislative powers were enhanced through the extension of the ordinary legislative procedure to a wider range of policy areas.[3] The entry into force of the Treaty of Lisbon also coincided with the outbreak of the euro crisis, which has forced the institutions to adjust the pace and intensity of their deliberations, notably in economic and budgetary matters, and which has led to increased popular scrutiny of the decision-making procedures at Union level.

Tensions regarding the role and influence of the European Council in the Union’s decision-making process are nothing new[4], but its formal incorporation into the institutional titles of the Treaties means that these tensions can now be framed more clearly in legal terms. After Lisbon, the European Council is expressly subject to the rule in Article 13(2) TEU that: “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.”

Article 13(2) TEU essentially codifies the principle of ‘institutional balance’, which the Court of Justice has said is based on “a system for distributing powers among the different [Union] institutions, assigning to each institution its own role in the institutional structure of the [Union] and the accomplishment of the tasks entrusted to the [Union].”[5]The practices adopted by an institution may not have the effect of depriving other institutions of a prerogative granted to them by the Treaties.[6]

This article assesses the institutional role of the European Council in light of the Treaty of Lisbon and its practical application over the past two and a half years. It will be seen that several legal ambiguities persist regarding the scope of the European Council’s powers and the nature of its role in the Union’s system of institutional balance.

2. The formal competences of the European Council

2.1.      General description of its role: Article 15(1) TEU

Article 15(1) TEU states that: “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.”

This wording was developed through several key reports and amendments to the Treaties over the past four decades. The communiqué of the Paris summit of December 1974 that established the European Council presented the initiative as a response to “the need for an overall approach to the internal problems involved in achieving European unity and the external problems facing Europe.”[7]

The Tindemans Report on European Union of 29 December 1975[8] explained that: “Within this framework the Heads of Government will collectively use the authority which they have at the national level to give from within the European Council the impetus which is needed for the construction of Europe, and to search together for that political agreement which will allow dynamic progress to be maintained, in spite of difficulties.”[9] In similar vein, the Solemn Declaration on European Union adopted at Stuttgart on 19 June 1983 stated that the European Council “provides a general political impetus to the construction of Europe” and “defines approaches to further the construction of Europe and issues general political guidelines”.[10]

A first attempt to define the role of the European Council in the Treaties was made in the new Article D TEU, as adopted at Maastricht in 1992.[11] Drawing inspiration from the Tindemans Report and the Stuttgart Declaration, Article D TEU provided that: “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.”

The text of Article D TEU, subsequently renumbered Article 4 by the Treaty of Amsterdam, was reworked by the Convention on the Future of Europe in 2003. The Draft Treaty establishing a Constitution for Europe took over this wording as its Article 20(1), but with the phrase “general political guidelines” replaced by “general political directions and priorities” and with the addition of a new sentence stating that: “It does not exercise legislative functions.” These amendments were retained in the final wording of Article 15(1) TEU of the Treaty of Lisbon, with the word “does” replaced by “shall” in the final sentence.

The amendments tabled during the Convention on the Future of Europe provide some indications as to the rationale behind the small but significant changes that were made to the wording. Notably, several representatives of the European Parliament expressed reservations about the phrase “general political directions and priorities”, since it “could be misunderstood as going too far already into legislative matters which should be exclusively dedicated to the Council.”[12] It could be partly in response to this concern that the final text included the new sentence excluding the European Council from exercising legislative functions.

The new sentence excluding the exercise of legislative functions is also consistent with the deletion by the Treaty of Lisbon of all references in the Treaties to the Council meeting in the composition of the Heads of State or Government. After Lisbon, the European Council and the Council have clearly distinct compositions and, at least in formal terms, clearly distinct powers. The hypothesis according to which the European Council could legally substitute itself for the legislative Council is now definitively ruled out.[13]

In light of this evolution, it can be considered that the European Council’s competence under Article 15(1) TEU to “provide the Union with the necessary impetus for its development” derives from its founding rationale as a body composed of the highest political representatives of the Member States, which should deliberate on strategies for the future development of the Union, if necessary by instigating procedures for the adoption of new Treaties or the amendment of existing Treaties.

The competence to “define the general political directions and priorities” of the Union can be understood in similar terms. The directions and priorities that are to be defined are “general” and not “specific”. Moreover, the directions and priorities to be defined are “political”.

2.2.      Specific tasks of the European Council

In addition to its role of giving impetus and general political direction, the European Council also exercises specific decision-making tasks.[14] The European Council was first granted decision-making powers by the Treaty of Amsterdam.[15] The Treaty of Lisbon greatly expanded their number, with the European Council taking over many of the decision-making competences that were previously exercised by the Council meeting in the composition of the Heads of State or Government.[16] The Treaty of Lisbon also provided for the European Council to lay down strategic guidelines in certain policy areas. The specific tasks of the European Council under the Treaty of Lisbon can be classified into six main categories, as set out below.

2.2.1    Decisions relating to the revision of the Treaties

Under Article 48(3) TEU, the European Council may decide to convene a Convention to examine amendments to the Treaties or, if it decides not to convene Convention, it may define the terms of reference for an intergovernmental conference. Under Article 48(6) TEU, the European Council may itself decide on a simplified revision of Part Three TFEU.[17]

2.2.2.   Decisions relating to membership of the Union and of the euro area

According to Article 49 TEU, the European Council shall agree on conditions of eligibility for membership of the Union. Under Article 50 TEU, the European Council plays a key role in the procedure leading to the withdrawal of a Member State from the Union. Under Article 7 TEU, the European Council decides on the existence of a serious and persistent breach by a Member State of the Union’s values, which may lead to a suspension of certain of the membership rights of that Member State. Under Article 355(6) TFEU, the European Council may adopt a decision amending the status of certain overseas countries and territories. Furthermore, under Article 140(2) TFEU, the European Council shall have a discussion before a decision is taken that a Member State with a derogation can join the euro area.

2.2.3.   Decisions concerning the application of certain passerelle provisions

According to Article 48(7) TEU, the European Council may adopt a decision authorising the Council to act by qualified majority vote (QMV) in areas governed by Title V TEU (CFSP) or by the TFEU for which unanimity is currently required. Similarly, where the TFEU provides for the adoption of legislative acts by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for such acts to be adopted under the ordinary legislative procedure. Article 31(3) TEU also allows the European Council to adopt a decision authorising the use of QMV in the CFSP. Finally, Article 312(2) TFEU allows the European Council to authorise the use of QMV in the adoption of the multiannual financial framework regulation.

2.2.4.   Decisions relating to the composition of the institutions and appointments to senior institutional posts

Under Article 14(2) TEU, the European Council adopts a decision establishing the composition of the European Parliament. Under Article 236 TFEU, it establishes the list of Council configurations and the Presidency configurations on the basis of equal rotation (Art 16(9) TEU). Under Article 17(5) TEU, it decides on the system of rotation of Commissioners if the number of Commissioners is ever lower than the number of Member States. In relation to appointments, Article 17(7) TEU provides that the European Council shall propose to the European Parliament a candidate for the post of President of the Commission. On the basis of Article 18(1) TEU, it appoints the High Representative. On the basis of Article 238(2) TFEU, it appoints the President, Vice-President and other Executive Board members of the European Central Bank.

2.2.5.   Decisions laying down strategic guidelines in certain sensitive areas of policy

In the context of the Union’s external action, Article 22(1) TEU states that the European Council shall “identify the strategic interests and objectives of the Union”.^[18] Article 24 TEU provides that the CFSP “shall be defined and implemented by the European Council and the Council.” Article 26(1) TEU states that the European Council “shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for” the CFSP. According to Article 42(2) TEU, it is for the European Council to decide on the establishment of a common defence. More generally, the ‘solidarity clause’ of Article 222(4) TFEU requires that: “The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.”

In the area of freedom, security and justice, Article 68 TFEU states that: “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.”^[19]

In the area of economic policy, the second subparagraph of Article 121(2) TFEU states that: “The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Union.” Similarly, in relation to employment, Article 148(1) TFEU provides that: “The European Council shall each year consider the employment situation in the Union and adopt conclusions thereon, on the basis of a joint annual report by the Council and the Commission.”

2.2.6.   Decisions taken as a supreme political arbitrator to which legislative procedures may be referred if they become blocked or if especially sensitive interests of a Member State are at stake (the ’emergency brake’ mechanism)

Article 48(5) TEU provides for a referral to the European Council if four-fifths of the Member States have ratified a revision of the Treaties and one or more Member States have encountered difficulties in proceeding with ratification. In the CFSP, Article 31(2) TEU allows for matters to be referred to the European Council where a Member State declares that, for vital and stated reasons of national policy, it will oppose the adoption of a decision to be taken by QMV.

In a limited number of fields, regular legislative files may be referred to the European Council by way of an ‘emergency brake’. These situations are: where the balance of a Member State’s social security system may be threatened (Article 48 TFEU), where a proposal concerning judicial cooperation in criminal matters may affect fundamental aspects of a national criminal justice system (Articles 82(3) and 83(3) TFEU), where the establishment of a European Public Prosecutor’s office is proposed (Article 86(1) TFEU)^[20], and where proposals are made in the area of police cooperation (Article 87(3) TFEU).

3. Assessment of the European Council’s role in light of its formal competences

The European Union is founded on treaties concluded between states.^[21] In the famous words of the Bundesverfassungsgericht, the Governments of the Member States are the Herren der Verträge.^[22]In accordance with the principle of conferral (Article 5 TEU), the Union acts within the limits of the competences conferred upon it by the Treaties. Competences not conferred upon the Union remain with the Member States. The Member States may amend the Treaties so as to extend or restrict the competences conferred upon the Union.

However, the amendment of the Union’s primary law is a cumbersome process, often requiring long and contentious negotiations and difficult ratification procedures. In response to this problem, the Governments have, through successive amendments of the Treaties over the past 20 years, sought to make the Union’s treaty framework more flexible and open to adaptation in the future, while at the same time safeguarding their own interest in retaining control over fundamental decisions that impact on sensitive matters of national sovereignty.

The role of the European Council, as reflected in the six categories of tasks outlined above, can be understood as a means to achieve that objective. The European Council is the highest political instance representing the interests of the Member States in the Union’s institutional framework.^[23] Through the European Council, fundamental decisions on matters such as revisions of the Treaties, membership of the Union, shifts from unanimity voting to QMV, shifts from special legislative procedures to ordinary legislative procedures and the composition of supranational institutions that exercise autonomous powers over the Member States may be adopted relatively quickly, within the Union’s institutional framework and without necessarily having recourse to an intergovernmental conference.

Moreover, the fact that these decisions are adopted by representatives of the Governments within the Union’s institutional framework means that the supranational institutions can be formally involved in the procedures leading to their adoption. For example, the European Parliament must be consulted on any proposal for revision of the Treaties under Article 48 TEU and it must give its consent before the European Council adopts a decision not to convene a convention. Similarly, decisions on accession to and withdrawal from the Union are subject to the consent of the European Parliament, as is the use of the general passerelle clause of Article 48(7) TEU.

It can further be noted that the areas of policy where the Treaties provide for the European Council to adopt strategic guidelines and where the ‘emergency brake’ may be employed are, for the most part, areas that fell within the old second and third pillars of the pre-Lisbon Union. The past 20 years have seen a progressive trend towards ‘communitarisation’ of the area of freedom, security and justice. Nevertheless, this area, together with the CFSP, remains especially sensitive from the perspective of national sovereignty and the Governments wish to retain a particular influence over how these two areas of policy develop. While CFSP decision-making may remain distinct on a long-term or even permanent basis, the provisions of the Treaties allowing for European Council involvement in the area of freedom, security and justice may be viewed as residual elements in a process of full ‘communitarisation’ that is almost complete.

As regards the adoption of broad guidelines on economic policies and conclusions on the employment situation in the Union, the guidelines of the European Council in these areas relate to matters that fall for the most part within the competences of national Governments.^[24] These tasks of the European Council could be seen essentially as mechanisms for peer review and open coordination between Governments.

In terms of its formal powers, therefore, the institutional role of the European Council does not have to be viewed in a negative light. The existence of the European Council allows for the adoption of fundamental decisions of a constitutional nature without recourse to full revisions of the Treaties. Since those decisions are adopted within the Union’s institutional framework, it is often possible for the traditional Union institutions to play a formal role in the procedures leading to their adoption. Also, the existence of the European Council has enabled the Governments to accept ever greater ‘communitarisation’ of certain policy areas, while at the same time being assured that, through the European Council, they still retain some direct control over the general direction of those policies.

4. The role of the European Council in practice

In light of the formal tasks of the European Council set out above, it can be considered that its role is to adopt fundamental decisions of a constitutional nature and to exercise functions of strategic guidance and unblocking of decision-making procedures in a limited number of sensitive policy areas. Practical experience shows, however, that the European Council itself has a much broader understanding of its own role, based on an open-ended understanding of the competence to define “general political directions and priorities”, as provided for in Article 15(1) TEU, rather than the more limited elaboration of its tasks set out in individual policy chapters of the Treaties.[25]

This tendency creates a risk, already identified long before the entry into force of the Treaty of Lisbon[26], that the activities of the European Council could, in contravention of the principle of institutional balance, encroach on the Commission’s power of legislative initiative[27] and on the legislative powers of the Parliament and the Council.[28] Some practical examples from recent experience will serve to illustrate the issues.

4.1.      Response to the euro crisis

The European Council has been the central forum for deliberations on the Union’s response to the crisis in the euro area. Considering the urgency and the magnitude of the crisis, the preference for rapid intergovernmental solutions, such as the establishment, upon the initiative of the European Council, of the European Stability Mechanism (ESM), hardly comes as a surprise. However, the dominance of the European Council in formulating the Union’s response to the crisis does raise concerns for the institutional balance.

For example, the resort to intergovernmental or quasi-intergovernmental solutions outside the framework of the Treaties, excluding the participation of the Union’s legislative institutions but nevertheless having consequences for them, risks becoming a routine solution when the European Council is divided internally. The failure in December 2011 to reach a consensus on the need to incorporate a fiscal compact for the euro area into the existing Treaties led to the adoption, outside the Union framework, of the Treaty on Stability, Coordination and Governance (TSCG) in the EMU.[29] Like the ESM Treaty, the TSCG grants tasks to the Union’s institutions.[30] It also lays down rules on certain matters for which the Union’s legislative institutions were competent to legislate.[31] In formal terms, the European Council had no role in the preparation of the TSCG, yet in practical terms it is hard to avoid the view that the intergovernmental solution was debated and, at least tacitly, agreed within the framework of the European Council.[32]

The euro crisis has also seen the European Council becoming more and more dominant in pushing new legislative initiatives, to the apparent detriment of the Commission’s right of legislative initiative. To take the example of banking legislation, the President of the European Council explains in the annual report of his institution for the year 2012 that on 28 June 2012: “European leaders decide[d] to establish a single supervisory mechanism that will cover all the banks in the Eurozone … After we had set the course, everything fell into place. Right after the summer, the Commission had legislative proposals ready; and within three months the finance ministers reached an agreement, while the Parliament adopted its position at committee level … Within 24 hours of the finance ministers agreeing on the technicalities of the supervision, on 14 December we were already embarking on the next step: a single resolution mechanism.”[33]

This example illustrates that the European Council’s directions can go beyond the setting of general political directions and priorities to defining with some precision the legislative initiatives that must be brought forward. It can be noted in this regard that the President of the Commission is a Member of the European Council[34] and Commission Presidents have sometimes welcomed the advance impetus that the European Council can provide for legislative initiatives that they have already prepared behind the scenes.[35] However, it is not always clear which institution is really pushing the agenda.

In the context of the euro crisis, sometimes even appears that the European Council and the Commission are competing with one another to be seen as the institution with the best new initiatives.[36] This may not in itself be a bad thing, but it does illustrate the uneasy relationship between the European Council’s competence to provide impetus and define general political directions on the basis of Article 15(1) TEU and the Commission’s right of legislative initiative on the basis of Article 17(2) TEU.

4.2.      The Multiannual Financial Framework

Article 312(2) TFEU states that the Council, acting unanimously after obtaining the consent of the European Parliament, shall adopt a regulation laying down the multiannual financial framework (MFF). Article 312(5) TFEU further provides that: “Throughout the procedure leading to the adoption of the financial framework, the European Parliament, the Council and the Commission shall take any measure necessary to facilitate its adoption.” The Treaties do not foresee any role for the European Council in the legislative procedure.[37]

The Commission presented its proposal for a MFF regulation for the period 2014-2020 on 29 June 2011.[38] At the same time, it presented proposals for numerous sectoral legislative acts to establish the sectoral funding programmes for the next seven-year period. The vast majority of these sectoral acts, in areas such as agriculture and cohesion policy, will be adopted by the ordinary legislative procedure (OLP).

Working on the basis of draft documents prepared by the General Affairs Council (GAC), the European Council met on 22/23 November 2012 to deliberate on the MFF package. The Governments did not agree any conclusions on the MFF on that occasion, but a Statement was issued which stated that: “The European Council gives its President the mandate together with the President of the European Commission to continue the work and pursue consultations in the coming weeks to find a consensus among the 27 over the Union’s Multiannual Financial Framework for the period 2014-2020.”[39]

The European Council reconvened to discuss the MFF on 7/8 February 2013. Pursuant to the Statement of 23 November 2012, negotiations between the Governments continued behind closed doors in what the Chair of the European Parliament’s Committee on Budgets described as a “permanent conclave” of Government leaders.[40] When the white smoke finally emerged from the summit room of the Justus Lipsius building on 8 February 2013, it took the form of a European Council Conclusions document that is forty eight pages long and that sets out in great detail the precise amounts and detailed contents to be included not only in the MFF regulation, but also in many of the sectoral legislative acts that must be adopted by OLP.[41]

Speaking in the European Parliament’s plenary on 3 July, the European Council’s President justified the engagement of the European Council in the MFF process as follows: “Under the Treaty, [the MFF] is a matter for the Council of ministers and your Parliament. However, we all know from past experience that this is one of the areas in which the European Council will inevitably be called on to fulfil its role, under Article 15 of the Treaty, of ‘defining the general political directions and priorities’.”^[42] Reporting to the European Parliament on the outcome of the European Council of 7/8 February 2013, he began by announcing that “the European Council has now fulfilled its role under Article 15(1) TEU of defining ‘the general political directions and priorities’ of the Union.”[43]

It may well be true that the MFF was always decided by the European Council in the past and there may well be grounds to think that a deliberation by the most senior political representatives of the Member States is politically necessary if an agreement concerning such large amounts of money is to last, but the fact remains that the Treaties do not foresee any role for the European Council in the MFF legislative process. From a legal perspective, it could be argued that the European Council conclusions of 8 February 2013 were adopted ultra vires the European Council’s powers. If the Governments intended the European Council to play a role in the MFF process, then why did they not provide for this in the Treaty of Lisbon?

As for the justification put forward by the President of the European Council, it is stretching credibility to argue that a forty-eight page document which lays down the precise figures to be inserted in the MFF regulation and which contains, for example, thirteen pages of detailed directions on the contents of OLP legislation in cohesion policy and a further seven pages on OLP legislation in agriculture, concerns mere “general” directions and priorities, as envisaged by Article 15(1) TEU.

Concerning the argument that the European Council’s Conclusions are merely “political” in nature and do not bind the legislative institutions, regard must be had to their practical impact on the legislative procedures in question. At its meeting of 22 April 2013, the GAC simply adopted the Conclusions of the European Council as its mandate for the legislative negotiations with the European Parliament. In formal terms, it satisfied its obligation to meet in public when deliberating on a draft legislative act, as required by Article 16(8) TEU. In reality, however, all the most essential elements of the Union’s budgetary framework for the next seven years were already decided behind closed doors in the European Council’s “conclave”. This is hardly compatible with the requirement in Article 10 TEU that the Union’s decisions must “be taken as openly and as closely as possible to the citizen.”

No doubt the European Parliament still has an important role to play in the procedure, but in practical terms the intervention of the European Council in the MFF process places the European Parliament in a very difficult situation. In the first instance, the European Parliament is presented with a fait accompli package and invited to take it or leave it, with little scope for further negotiation. At the same time, it is warned by the Member States that time is running and the current multiannual financing programmes will expire at the end of 2013. The implication is that any interruption of the programmes owing to a late adoption of the MFF regulation will be blamed on the European Parliament, when in fact the delay is a direct result of the legally unjustified interference of the European Council in the legislative procedure.

4.3.      The Unitary Patent Package

The Treaties specify a number of limited policy areas where on-going legislative procedures may be referred to the European Council if they become blocked or if especially sensitive interests of a Member State are at stake.[44] The legislative procedures leading to the adoption of regulations on the unitary patent protection system, proposed on the basis of Article 118 TFEU, do not fall within the categories of legislative procedures that may be referred to the European Council under the Treaties.

Nevertheless, with a view to unblocking the legislative deadlock, point 5 of the European Council Conclusions of 28/29 June 2012[45] laid down detailed directions on how the system of judicial remedies in patents should operate. The European Council went so far as to instruct the deletion of specific paragraphs of the draft regulation. The text states: “We suggest that Articles 6 to 8 of the Regulation implementing the enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.”

The European Council’s unblocking of a stalled legislative procedure may well have positive effects, and in this case the relevant legislation was finally adopted in December 2012.[46] If the Council of Ministers simply cannot reach an agreement, the Heads of State or Government may be able to break the deadlock, at least on the Council side of the legislative equation, at their level.

Once more, however, this practice does not fit well with the texts of the Treaties. If the Treaties have specified a limited number of areas where legislative procedures may be referred to the European Council, then it must follow that procedures in areas where no mention is made of the European Council may not be referred to it. Even if a competence to unblock all legislative procedures could be implied from the Article 15(1) TEU competence to define general political directions and priorities, the actions of the European Council in instructing the deletion of very specific paragraphs of a draft regulation cannot be considered to constitute the definition of mere “general” directions or priorities.

5. Competing understandings of the European Council’s role

The increased tensions that are emerging regarding the activities of the European Council since the entry into force of the Treaty of Lisbon reflect a fundamental divergence between competing understandings of what role the European Council should play in the Union’s system of governance.

The European Parliament, representing the citizens directly, and the Council of Ministers, representing the Member States, can increasingly be viewed as the two chambers of a bi-cameral parliamentary system at Union level. The Commission can be seen as the executive. Where then does the European Council fit in? One view is that “[t]he European Council is situated at the place where, in the national systems you would find the presidency, in this case, a collective presidency.”[47]

In fact, the idea of the European Council playing the role of a sort of collective president or monarch for the Union may be the vision that best fits with its formal tasks as laid down in the Treaties. The European Council adopts fundamental decisions of a constitutional nature and provides general strategic guidance and direction. The current tensions regarding the intervention of the European Council in legislative matters are reminiscent of the disputes that sometimes arise at national level when a Head of State or monarch oversteps the customary limits of their office and interferes in the daily cut and thrust of national politics.

The major problem with viewing the European Council as a collective Head of State or monarch for the Union is of course that such a role does not fit well with its composition. The European Council is comprised of ambitious presidents and prime ministers who are usually in the full flush of their political prime. Voluntary self-restraint in the exercise of power is not a concept that sits easily with many Government leaders, either individually or collectively, not least if that self-restraint is to be exercised vis-à-vis a Council of Ministers comprised of hierarchical underlings and a European Parliament rather than the national parliament.

An alternative understanding of the European Council is to view it as an emerging European Government. Jean Monnet himself promoted the idea of a European Council as “a provisional European government” which would meet every three months and which “would decide on the necessary instructions to the ministers of the Council”.[48] The idea of the European Council developing into a European government was also mentioned in Joschka Fischer’s famous speech at Humboldt University on 12 May 2000[49] and continues to be the subject of lively academic debates.[50] However, to view the European Council as an emerging European government raises the question of the future role of the Commission, whose President rather sees his institution as the emerging “European economic government”.[51]

Moreover, whereas the Commission is accountable to the European Parliament, the European Council is not subject to any democratic controls at Union level.[52] The Members of the European Council are of course accountable to their national electorates and Union law acknowledges the goal of striving to place national and supranational democracies in a mutually reinforcing relationship.[53] However, decision-making in a European Council composed of representatives of Governments who are mandated only to defend national red lines can quickly descend into an unseemly intergovernmental power-struggle that resembles an international law of the jungle, where the big beasts fight out the grand bargains amongst themselves and the little creatures scurry around hoping not to be trampled underfoot.

A strong parliamentary counterweight with a pan-European outlook is essential at Union level to balance the collective expression of national self-interests that currently emerges from the European Council. As long ago as 1980, the European Court of Justice stressed “the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly.”[54] If the European Council were to strictly respect the limits of its formal role, then the European Parliament could provide that parliamentary counterweight vis-à-vis the Council. If, on the other hand, the European Council continues to develop in the direction of becoming a European government, it must be made accountable to the European Parliament or be made subject to co-decision procedures in its deliberations.

6. Conclusion

Almost forty years after its creation and two and a half years after its legal integration into the institutional titles of the Treaties, the place of the European Council in the Union’s institutional architecture remains hard to define. In formal terms, it adopts fundamental decisions of a constitutional nature and exercises functions of strategic guidance and unblocking of decision-making procedures in a limited number of sensitive policy areas.

In practical terms, it interprets its competence under Article 15(1) TEU to “define the general political directions and priorities” of the Union very broadly as entitling it, notwithstanding the prohibition on exercising legislative functions laid down in the same paragraph, to adopt detailed instructions on the legislative proposals that should be brought forward by the Commission, on the specific contents of legislative acts and on the unblocking of stalled legislative procedures, even where no referral to it is foreseen in the relevant articles of the Treaties.

If the European Council is to persist in this expansive interpretation of its competences, then the fundamental principles of open and democratic exercise of power at Union level require that its proceedings are made more transparent and that its relationships with the European Parliament and with the Commission are reassessed. The Union’s institutional balance remains in flux and a satisfactory equilibrium has yet to be found.

 ***

* Member of the Legal Service of the European Parliament, Unit for Institutional & Budgetary Law. All views expressed are entirely personal to the author.

[1]For accounts of the historical development of the European Council, see:S. Bulmer and W. Wessels, The European Council, Macmillan, 1987;B. Taulègne, Le Conseil européen, PUF, 1993; J. Werts, The European Council, Harper Publishing, 2008; F. Eggermont, The Changing Role of the European Council in the Institutonal Framework of the European Union, Intersentia, 2012.

[2] Title III of the TEU and Part Six, Title I of the TFEU. The European Council was initially established outside the framework of the Treaties on the basis of the communiqué of the Paris summit of 9-10 December 1974. The first Treaty reference to it was in Article 2 of the Single European Act. The Treaty of Maastricht introduced a basis for it in Article D, later Article 4, of the TEU. However, it was not a Community institution under Article 5 TEU and Article 7 EC.

[3]According to Craig: “The EP emerged as an “institutional winner” from the EU Constitution, and also from the Treaty of Lisbon.” P. Craig, ‘The Treaty of Lisbon: Process, architecture and substance, (2008) 33 ELRev, p. 137, at p. 156.

[4]For a discussion of the situation pre-Lisbon, see Editorial Comments, ‘An ever mighty European Council – Some recent institutional developments’, 46 CMLRev 2009, p. 1383.

[5] Case C-70/88 European Parliament v Council (Chernobyl) [1990] ECR I-2041, para. 21.

[6] Case 149/85 Wybot [1986] ECR 2391, para. 23.

[7] Bull. EC 12/1974, p.7, para. 2 of the communiqué.

[8] Bull. EC, Supplement 1/76.

[9]Ibid., p. 30.

[10]Bull. EC 6/1983, p. 24. The Solemn Declaration further provided that the European Council “deliberates upon matters concerning European Union in its different aspects with due regard to consistency among them”, “initiates co-operation in new areas of activity” and “solemnly expresses the common position in questions of external relations” (point 2.1.2 of the Solemn Declaration).

[11] The European Council had previously been mentioned in Article 2 of the Single European Act, but that article merely stated the composition of the European Council and the regularity of its meetings.

[12]Explanation accompanying the amendment tabled by Mr Brok, Mr Santer and others to the draft Constitutional Treaty article on the European Council. See http://european-convention.eu.int under Proposed amendments/Article 20: The European Council (webpage last consulted on 26.04.2013).

[13] J-P Jacqué, ‘Le traité de Lisbonne : Une vue cavalière’, RTDeur. 44(3), juillet-sept. 2008, pp.439-483, at p.456.

[14]Jacqué distinguishes between the European Council’s « mission générale d’orientation » under Article 15(1) TEU and its decision-making « fonctions de nature constitutionnelle » under specific articles of the Treaties. See J-P Jacqué, Droit institutionnel de l’Union européenne, 6e édition, Dalloz, 2010, pp. 279-280. Similarly, Lenaerts distinguishes between the function of the European Council when exercising its more general function of providing political direction and guidance and its role as “constituent authority” in taking specific decisions of a constitutional nature. See K. Lenaerts & P. Van Nuffel, European Union Law, 3rd ed., Sweet & Maxwell, 2011, pp. 475-478.

[15]In the Amsterdam Treaty provisions on the CFSP.

[16] For example, decisions in the context of a procedure for establishing a serious and persistent breach of the Union’s principles under Article 7 TEU and the nomination/proposal of the Commission President under old Article 214(2) EC and new Article 17(7) TEU.

[17] The validity of a decision of the European Council adopting a revision of the Treaties by the simplified procedure was recently upheld by the Court of Justice in case C-370/12 Pringle v Ireland, judgment of 27 November 2012.

[18] Under Article 16(6) TEU, the Foreign Affairs Council shall elaborate the Union’s external action on the basis of the strategic guidelines established by the European Council.

[19] These guidelines have been adopted in the form of the Tampere, Hague and, most recently, Stockholm Programmes. The Stockholm Programme for the period 2010-2014 was adopted at the European Council meeting of 10/11 December 2009.

[20]Article 86(4) TFEU also makes the European Council responsible for any decision to extend the powers of the European Public Prosecutor’s office.

[21]Confirmed by the failure of the Treaty establishing a Constitution for Europe and the subsequent adoption of a classical amendment of the Treaties in the form of the Treaty of Lisbon.

[22]Brunner v Treaty on the European Union (89 BverfGE 155).

[23] According to Article 10(2) TEU: “Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.”

[24] See Art 5 TFEU: The EU’s competence in economic and employment policies is limited to coordination.

[25]See F. Michea, ‘Le role du Conseil européen après Lisbonne: Lecture critique des traités modifiés’, Revue de l’Union européenne, No. 555, February 2010, p. 76.

[26]See the discussion of the development of the European Council’s role in Philippe de Schoutheete, ‘The European Council and the Community Method’, Notre Europe, Policy Paper 56, July 2012, at p. 12.

[27] Article 17(2) TEU provides that “Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.” For a further analysis of this issue, see D. Ponzano, C. Hermanin and P. Corona, ‘The power of initiative of the European Commission: A Progressive erosion?’, Notre Europe, Policy Paper 89, January 2012.

[28] In accordance with Articles 14(1) and 16(1) TEU, legislative powers are exercised jointly by the Parliament and the Council.

[29]Signed on 2 March 2012 by all Member States except the United Kingdom and the Czech Republic. The treaty entered into force on 1 January 2013 for the 16 states which completed ratification prior of this date

[30]The Court of Justice confirmed in its judgment in case C-370/12 Pringle that a treaty concluded between a number of Member States outside the Union framework may confer specific tasks on the Union institutions. See judgment of 27 November 2012, paras. 153-177.

[31] The proposed ‘Two Pack’ regulations of the European Parliament and the Council on economic governance (COM(2011)819 final and COM(2011)821 final) are based on Article 136 TFEU and will incorporate certain elements of the TSCG into Union secondary law.

[32]Tellingly, Article 14 of the TSCG provides that the depository responsible for gathering the instruments of ratification is the General Secretariat of the Council of the European Union. Also, the TSCG was signed by the Heads of State or Government in the margins of the European Council meeting of 1/2 March 2012.

[33]‘The European Council in 2012’, General Secretariat of the Council, January 2013, p. 8.

[34] Article 15(2) TEU provides: “The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.”

[35] On the attitude of former Commission President Jacques Delors, see P. de Schoutheete, ‘The European Council and the Community Method’, Notre Europe, Policy Paper 56, July 2012, p. 6.

[36] On 28 November 2012 the Commission published its ‘Blueprint for a deep and genuine EMU’, COM(2012) 777 final/2. A few days later, on 5 December 2012, the President of the European Council presented his ‘four presidents’ report entitled ‘Towards a genuine EMU’.

[37]The second paragraph of Article 312(2) TFEU allows the European Council to decide that the Council shall act by QMV when adopting the MFF regulation, but this is a one-off decision of a constitutional nature that is separate from the legislative process.

[38] COM(2011)398 final, subsequently amended by COM(2012)388 final of 6 July 2012.

[39] Statement by the Members of the European Council, Brussels, 23 November 2012.

[40] Alain Lamassoure, speaking at the public meeting of the Committee on Budgets of 20 February 2013.

[41] EUCO 37/13 of 8 February 2013.

[42] Speech by Herman Van Rompuy, President of the European Council, to the European Parliament, 3 July 2012, EUCO 129/12, PRESSE 312, PR PCE 111, pp. 3-4.

[43] Herman van Rompuy, addressing a meeting of the Enlarged Conference of Presidents on 18 February 2013.

[44] See above, point 2.2.6.

[45]EUCO 76/12 of 29 June 2012.

[46]Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, OJ L 361, 31.12.2012, p. 1, and Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, OJ L 361, 31.12.2012, p. 89.

[47]Speech by Klaus Welle at the École nationale d’administration (ENA), Strasbourg, 16 January 2013. http://www.europarl.europa.eu/the-secretary-general/resource/static/files/2013-01-16-speech-by-kw-at-ena–str-.pdf (webpage last accessed 26 April 2013).

[48] See P. de Schoutheete, supra, note 35, p. 4.

[49]‘From Confederacy to Federation – Thoughts on the finality of European integration’, Speech at the Humboldt University, 12 May 2000.

[50]See, for example, T. Eijsbouts and M. Claes, ‘From confederacy to convoy: Thoughts about the finality of the Union and its Member States’, 6 EUConst (2010), p. 1.

[51] José Manuel Barroso, State of the Union address 2011, Speech 10/607, European Parliament, Strasbourg 28 September 2011.

[52]Article 15(5)(d) TEU requires the President of the European Council to present a report to the European Parliament after each of the meetings of the European Council, but the European Parliament has no powers of control over him or over his institution. According to de Waele and Broeksteeg “the President is currently not accountable to anyone but the European Council members themselves.” H. de Waele and H. Broeksteeg, ‘The semi-permanent European Council Presidency: some reflections on the law and early practice’, 49 CMLRev 2012, p. 1039 at p. 1053.

[53]See K. Lenaerts, ‘The Principle of Democracy in the Case Law of the European Court of Justice, 62 ICLQ, April 2013, p. 271.

[54]Case 138/79 Roquette Frères v Council [1980] ECR 3333, para. 33, and Case 139/79 Maizena GmbH v Council [1980] ECR 3393, para. 34.