Each member state of the European Union is represented by its head of state or government in the European Council and by its government in the Council, the two most powerful institutions of the EU (although the European Council formally becomes an institution only if the Treaty of Lisbon enters into force).
The second of these intergovernmental institutions, the Council of the European Union (European Community) exercises legislative and budgetary functions. It also holds executive powers, but in the Treaty of Lisbon this is expressed more obliquely by using the words policy-making and coordinating functions.
This post looks at some general principles concerning the exercise of power by the Council (and the other institutions).
Treaty in force
The main provision expresses the tasks of the Council in a fragmented manner in Article 202 of the Treaty establishing the European Community (TEC), published in the latest codified version of the treaties in force in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/135:
Article 202 TEC
To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty:
— ensure coordination of the general economic policies of the Member States,
— have power to take decisions,
— confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament.
Consolidated Lisbon Treaty
Council’s tasks in general
Since the publication of the consolidated version of the Treaty of Lisbon on 9 May 2008, the proposed primary legislation of the European Union is on the whole more readable than the existing treaties (although a modernised text cannot abolish the complicated structure of the EU).
In two sentences Article 16(1) of the amended Treaty on European Union (TEU) in the consolidated version of the Treaty of Lisbon manages to convey a general idea of what the Council is supposed to do (OJEU 9.5.2008 C 115/24):
Article 16 TEU
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
According to the Treaty of Lisbon, the institutions of the European Union act within the limits of the treaties; the principle of attributed or conferred powers:
Article 5(1) TEU
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
The guiding principles are common to the institutions, which depend on each other:
Article 13(1) TEU, first subparagraph
1. 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.
The powers of each institution are set out and limited by the treaties, and the need for interinstitutional cooperation is stated (institutional balance):
Article 13(2) TEU
2. 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.
This sets the background for the treatment of the various tasks the Lisbon Treaty confers upon the Council.