If the European Union is a ship, the European Council represents the shipowners. The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) Article 4 presents the tasks, the membership and the reporting of the European Council, without formally making it one of the EU institutions:
The European Council shall provide the Union with the necessary impetus for its development 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 Convention included the European Council among the institutions and proposed two Articles. The first one, I-20, reiterated the present tasks of the European Council, but clarified that it does not exercise legislative functions. The basic membership (Heads of State or Government) was the same, but the new chairman (President) was mentioned. The Ministers for Foreign Affairs would have lost their membership; their participation would have become optional. This was intended to bring back something of the informal beginnings as “fireside chats” which were becoming impossible with more than fifty participants in an enlarged Union.
The European Council would have met every three months. Extraordinary meetings would have been possible. Decisions would have been made by consensus, if the Constitution did not provide otherwise. The difference between “consensus” and “unanimity” was not elaborated.
The second provision proposed by the Convention, Article I-21, concerned the new semi-permanent President of the European Council, elected for two and a half years (renewable once) and replacing the chairmanship of the current six month Presidency of the Council. This was a victory for those who wanted the European Council to steer a clearer course and to safeguard continuity in action. One of the innovations in this direction was that the President could not hold a national office at the same time. (On the other hand, uniting the offices of President of the European Council and of the Commission remained a possibility.)
The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) took on board most of the proposals made by the Convention, in Artcles I-21 and I-22. The national Ministers for Foreign Affairs, whose participation was becoming optional, lost their monopoly to participate if ministers were needed. For instance, the ministers representing the member states in the evolving General Affairs Council, or the Ministers for Finance or the Economy could have participated depending on the theme of the meeting. (The spring European Council, with the economic reforms and the Lisbon strategy on the agenda could offer an example, as well as future meetings dedicated to the area of freedom, security and justice.)
The intergovernmental conference (IGC 2007) decided to merge two Articles into one, Article 9b. There are minor differences. In Article 9b(2) the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”. In Article 9b(3) the quarterly meetings have become somewhat more flexible: meetings twice every six months. Otherwise, the changes are minimal compared to the Constitutional Treaty.
Like all institutions, the European Council is reminded of the “common good”: The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. Article 9(1) TEU.
The wording follows the structure of the amended TEU and advances more or less in the same order from values to objectives and further to the interests of the citizens of the Union and of its Member States.
Consistency, effectiveness and continuity are mentioned as essential guidelines for decision making.
Is this shocking? Every successful organisation needs a modicum of team play. Even if the members of the European Council represent the particular interests of the Member States all of the time, these national leaders have to make the effort to find the common interests that bind them together, at least for about eight days yearly.
Without the strategic direction given by the European Council, the European Union would come to nought.
The crucial reform of the Lisbon Treaty concerning the European Council, in addition to formal status as an institution, is the semi-permanent President.
He or she shall chair the meetings and drive forward the work of the European Council. The President ensures the preparation and continuity of its work and tries to facilitate cohesion and consensus. The President takes over the reporting to the European Parliament, as well. The President represents the Union “at his level and in that capacity” on issues concerning the foreign and security policy of the European Union.
Gone will be the days when an active President or Prime Minister of a Member State had to juggle his national obligations with the task to drive forward the European Council and to represent it both substantially and ceremonially.
The Treaty of Lisbon creates a demanding square between the new President of the European Council, the partly new “double-hatted” High Representative/Vice President of the Commission, the existing President of the European Commission and the somewhat devalued rotating Presidency of the Council, in charge of the General Affairs Council and the ‘ordinary’ Council formations (if separate persons head the European Council and the Commission).
On the whole, the Lisbon Treaty seems to strengthen the intergovernmental traits of the European Union. The President of the European Council is the potential new star, firmly embedded in an intergovernmental setting, and it looks more probable that the High Representative is going to extend the power of the Council into the Commission, than the other way around.
Much will depend on the choice of persons and their capacity to interact. Despite the bland wording of joint Declaration (number 6) on Article 9 B(5) and (6), Article 9 D (6) and (7) and Article 9 E of the Treaty on European Union, the jockeying for positions can be expected to be intense. The Protocol says:
“In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.”
Taken at face value, the “geographical and demographic diversity” of the EU and its Member States refer to the map and population size, but in reality the political aspects are preponderant. Should the persons to be chosen represent the values of the integrationist core or halfway houses outside the Eurozone, the Schengen area, the Charter of Fundamental Rights and readiness to promote a common defence based on dual EU and NATO membership?
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9b.
1. 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.
2. 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.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
In my next instalment I turn to the Council.