Liberum veto curse

The union of the European Council, by the European Council, for the European Council, shall perish from the earth. 

The Future of Europe address: democratic government and sufficient powers instead of liberum veto 

 

What does European power mean? 

The necessity of a Constitution, at least equally energetic with the one proposed…It rests upon axioms as simple as they are universal: the means ought to be proportioned to the end… (Hamilton, The Federalist Papers XXIII)

Ralf Grahn

P.S. [Update 6 June 2021] Here is what I mean, the proposal to the Conference on the Future of Europe:

Stronger together: A democratic European Federation

Lisbon Treaty & European Council: Tasks and powers

Arguably the European Council already is the politically most powerful (influential) body of the European Union. Formally the Lisbon Treaty would retain the description of the European Council’s general tasks almost as they are, but the heads of state or government have increasingly taken over the leading role from the Community institutions. The Treaty of Lisbon would see the European Council among the EU institutions in a formal sense as well (Article 13 TEU).

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General tasks

In the consolidated Treaty of Lisbon, Article 15(1) of the Treaty on European Union (TEU), replaces the first paragraph of the current Article 4 TEU. In the amending treaty, the general political guidelines become the general political directions and priorities. The clarification is added that the European Council does not exercise legislative functions (but it comes awfully close) (OJEU 9.5.2008 C 115/23):


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.


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Role of European Council

Paul Craig and Gráinne de Búrca describe the role of the European Council in a few well chosen sentences (with added explanations and examples):

• The European Council is central to the very development of the Community and Union itself.
• The European Council will often confirm important changes in the institutional structure of the Community.
• The European Council can provide the focus for significant constitutional initiatives that affect the operation of the Community and Union.
• The European Council will frequently consider the state of the European economy as a whole.
• Conflict resolution is another issue addressed by the European Council.
• The European Council plays a role in the initiation or development of particular policy strategies.
• The European is also central in external relations.
• The European Council will also consider new accessions to the Community.

(Source: Paul Craig and Gráinne de Búrca: EU Law ─ Text, Cases, and Materials; pages 56 to 57; Fourth edition, Oxford University Press)


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Communication: Presidency Conclusions


The European Council communicates its political guidelines through Presidency Conclusions, issued at the end of each meeting.

The next ones are expected tomorrow, after the spring European Council.

The European Council does not have the Rules of Procedure necessary according to the Lisbon Treaty (one of the implementing tasks to prepare), but the General Secretariat of the Council has published Rules for the organisation of the European Council (January 2007):



Conclusions

12. The conclusions, which shall be as concise as possible, shall set out policy guidelines and decisions reached by the European Council, placing them briefly in their context and indicating the stages of the procedure to follow on from them.

13. An outline of the conclusions shall be distributed on the day of the European Council meeting in good time for the start of proceedings. The outline shall distinguish clearly between those parts of the text which have previously been approved and which are not in principle subject to discussion and those parts of the text which the European Council is to discuss with a view to reaching final conclusions at the meeting.


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In addition, the European Council reports to the European Parliament.


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Comments

Naturally, being central to includes the limits and limitations imposed by the European Council and by its decision making mostly based on unanimity or consensus.

The European Council is essentially free to set its own agenda, when it acts outside the specific decisions mandated by the treaties. It chooses independently how it deals with the political (non-mandatory) input from the Community (Commission) and intergovernmental (Council) feeding mechanisms. Thereby it becomes the most intergovernmental body of the European Union, sometimes concluding intergovernmental agreements outside the institutional framework, but with direct bearing on it.

On the other hand, most of the formal decisions are still taken by the ‘Community’ institutions.

Since the formal description of the general tasks of the European Council remain almost unchanged under the Treaty of Lisbon, most reports and comments on the amending treaty have concentrated on the obvious changes (President, High Representative, Presidential relations), while the incremental rise of the body have gone almost without remarks.



Ralf Grahn

EU: TFEU Policy coordination

The systematic approach towards competences of the European Union in the Treaty of Lisbon includes mandatory coordination of member states policies in two important areas, economic and employment policies, with an option to take coordinating initiatives in a third, social policies.

Drafting novelties for better presentation do not necessarily change the way the European Union works. A mechanical comparison between the Lisbon Treaty and the Constitution is therefore of limited value, unless we elucidate the substantial changes or lack of them, and consider what they mean in relation to the present treaties, the ones which actually are amended.

To contribute to the knowledge of all sides about the EU and its workings, regardless of the recipients’ (and the comparer’s) preconceived views, these comparisons have to be made as objectively as possible.

In addition, I allow myself both value judgments and banter, trying to make clear when I am writing in objective and when in subjective mode. (Today’s epistle is not especially representative of the latter, being almost wholly factual in tone.)

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In the Treaty of Lisbon (ToL) the intergovernmental conference inserted a new Article 2d TFEU (OJ 17.12.2007 C 306/47):

Article 2d TFEU (ToL), to be renumbered Article 5 TFEU

1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.

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Since many visitors seem to be interested in the similarities and differences between the Lisbon Treaty and the Constitution, we can track the history backwards until we reach the existing treaties, the ones actually being amended.

The Treaty establishing a Constitution for Europe contained the following Article I-15 The coordination of economic and employment policies (OJ 16.12.2004 C 310/17):

Article I-15
The coordination of economic and employment policies

1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.

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We can conclude that the Lisbon Treaty has taken over this Article of the Constitutional Treaty unchanged.

The following stop is the European Convention and its draft Treaty establishing a Constitution for Europe, where the corresponding provision is Article I-14 (OJ 18.7.2003 C 169/11):

Article 14
The coordination of economic and employment policies

1. The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.

2. Specific provisions shall apply to those Member States which have adopted the euro.

3. The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.

4. The Union may adopt initiatives to ensure coordination of Member States' social policies.

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Basically, the new Article was introduced by the Convention, although the IGC 2004 made some editorial changes. Paragraph 1 of each version seems to indicate some substantial shift, the Constitution being slightly more wishy-washy than its predecessor.

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Coordination of member states’ economic policies, including the broad economic policy guidelines, is firmly based in the current TEC, where Articles 98 and 99 offers a range of activities (for the latest consolidated version of the TEU and TEC, go to OJ 29.12.2006 C 321 E/82-83):

CHAPTER 1 TEC
ECONOMIC POLICY

Article 98

Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Community, as defined in Article 2, and in the context of the broad guidelines referred to in Article 99(2). The Member States and the Community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.

Article 99

1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with the provisions of Article 98.

2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.

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 Community.

On the basis of this conclusion, the Council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. The Council shall inform the European Parliament of its recommendation.

3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and regularly carry out an overall assessment.

For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary.

4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned. The Council may, acting by a qualified majority on a proposal from the Commission, decide to make its recommendations public.

The President of the Council and the Commission shall report to the European Parliament on the results of multilateral surveillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public.

5. The Council, acting in accordance with the procedure referred to in Article 252, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4 of this Article.

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The interested reader can find additional information in the following official documents:

Council Recommendation 2005/601/EC of 12 July 2005 on the broad economic policy guidelines of the Member States and the Community (2005 – 2008) (OJ 6.8.2005 L 205)

Council Recommendation 2007/209/EC of 27 March 2007 on the 2007 update of the broad guidelines for the economic policies of the Member States and the Community and on the implementation of Member States' employment policies (OJ 3.4.2007 L 92)

There is a convenient presentation of the Broad economic policy guidelines (2005 – 2008) available on the Commission’s Scadplus web pages:

http://europa.eu/scadplus/leg/en/lvb/l25078.htm

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Specific provisions apply to those Member States whose currency is the euro. Monetary policy for the Eurozone is an exclusive EU competence according to the TFEU. How the members belonging to the Eurozone handle their economic policies has direct implications for the monetary policy.

We are going to encounter the detailed provisions later, but at this stage I will only draw your attention to the Protocol on the Euro Group annexed to the Lisbon Treaty, with informal meetings of the (Finance) Ministers and a President elected for two and a half years, an arrangement currently in use (OJ 17.12.2007 C 306/151):

PROTOCOL
ON THE EURO GROUP

THE HIGH CONTRACTING PARTIES,

DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever closer coordination of economic policies within the euro area,

CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1
The Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.

Article 2
The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.

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After living a life on their own, the employment policy guidelines have been integrated with the Broad Economic Policy Guidelines. For a introduction you could visit the Scadplus web pages of the Commission, Employment policy guidelines (2005 – 2008):

http://europa.eu/scadplus/leg/en/cha/c11323.htm

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Whereas economic policy and employment policy coordination are mandatory, the coordination of member states’ social policies is an option.

For an overview of DG Employment, Social Affairs and Equal Opportunities, you could start from the DG’s homepage:

http://ec.europa.eu/employment_social/index_en.html

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I hope that this presentation has supported, coordinated or supplemented your knowledge of EU competences. Anyway, these are the competences we are going to look at next time.


Ralf Grahn

EU Treaty of Lisbon: Separate powers and rules

The European Community (EC) is merged into the European Union (EU), but the separate powers and procedures remain for the ‘Community’ areas and the intergovernmental common foreign and security policy (CFSP).

We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.

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In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):

45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:

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Article 25b

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

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Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):

Article 46(f)

The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:

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(f) Articles 46 to 53.

Article 47

Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

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We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.

The following Articles then indicate in which areas the different competences (powers) apply:

Article 2 B TFEU

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal
market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.


Article 2 C TFEU

1. The Union shall share competence with the Member States where the Treaties confer on
it a competence which does not relate to the areas referred to in Articles 2 B and 2 E.

2. Shared competence between the Union and the Member States applies in the following
principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being prevented
from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise of that
competence shall not result in Member States being prevented from exercising theirs.


Article 2 D TFEU

1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.


Article 2 E TFEU

The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation.

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We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):

Article III-209

The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.

The Court of Justice shall have jurisdiction to monitor compliance with this Article.

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Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):

Article III-308

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.

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The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).

The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.

The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.

The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.

This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:

Article 240a TFEU

The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

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Financial provisions for the CFSP are next in line.


Ralf Grahn