The Actors of Postnational Rule-Making

Contemporary challenges of European and International Law

Elaine Fahey, Elaine Fahey

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317515852
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Despite its centrality to academic discussions of power and influence, there is little consensus in legal scholarship over what constitutes an actor in rule-making. This book explores the range of actors involved in rule-making within European Union law and Public International law, and focuses especially on actors that are often overlooked by formative and doctrinal approaches.

Drawing together contributions from many scholars in various fields the book examines such issues as the accommodation of new actors in the process of postnational rule-making, the visibility or covertness of actors within the process, and the role of social acceptance and legitimacy in postnational rule-making.

In its endeavour to render and examine the work and effect of actors often side-lined in the study of postnational rule-making, this book will be of great use and interest to students and scholars of EU law, international law and socio-legal studies.

Section II

New institutional components and systems

Establishing autonomy in postnational rule-making

4 Strained actorness

The ‘new’ European Council in theory and practice

Henri de Waele^*

1 Introduction

Still today, the European Council (EuCo) remains a relatively understudied institutional actor. To avoid misunderstanding, this statement does not mean to disparage any of the research conducted earlier, but merely point to the richness of the subject for further inquiry, particularly through the lens of postnational rule-making. To be sure, however, the institution’s growing political clout has certainly not gone unnoticed, and neither has the progressive enhancement of its position within the Union’s legal architecture.¹ After a protracted period of ‘floating outside’ and ‘hovering above’ that spanned several decades, the EuCo became more solidly entrenched than ever in 2009, at the entry into force of the Lisbon Treaty. Meanwhile, it has already been alleged that the ‘new’ European Council can be justifiably perceived as the Union’s ‘government’.² Such assertions may seem overly bold and slightly premature; yet recent developments do testify of a broader momentum that cannot be so easily downplayed – a sterling case of an actor (en route towards) cementing its autonomy.

Nowadays, the EuCo unmistakably functions as the ‘central venue for directing processes of intensified policy coordination’,³ and with great frequency, the activities it undertakes ‘embody determinative policy choices directing the action of the EU institutions and even Member States’.⁴ It is equally hard to take issue with the statement that the EuCo currently forms the ‘alpha and omega of executive power’.⁵ What is more, while it is formally not rendered competent to exercise legislative functions,⁶ in reality, its guidance exerts an immediate impact on the legislative process. Consequently, the governance mode that permeates EU decision-making at the present day and time is held to be (neo-)intergovernmentalism.⁷

At the same time, it might be assumed rather too quickly that the ‘new’ European Council possesses a genuine actorness that enables it to plot the Union’s course, either overtly or covertly. To an extent indeed, the rise of intergovernmentalist decision-making in key policy fields may have sidelined the traditional supranational institutions, yet this presents us with one side of the story only. Real-time practices testify of a more subtle, variegated process, and a creeping, surreptitious fragmentation. The latter does not denote the fragmentation of executive power across the Union in a broad sense, but an internalised, incremental and potentially more corrosive development unfolding at the heart of the EuCo’s functioning. Lest we forget, the EuCo is not a monolithic actor, perhaps even less so than any of the other EU institutions. In actual fact, it may not so much be the institution itself, but rather a small selection of members, including its President, that has solidified its position most vigorously, and manages to dictate its preferences even when faced by a numerical majority. Hence, for the sake of accuracy, any contemporary assessment needs to take heed of these evermore relevant fracture lines, and the tectonics of the EuCo’s component parts. Ultimately, the upshot could not so much be a pattern of increasing intergovernmentalisation of EU governance due to the ‘unstoppable advance of the European Council’,⁸ but in actual fact a state of executive dominance featuring a small set of key players that is effectively capable of forcing the hand of that institution.

With these preliminary admonitions in mind, the present chapter proceeds as follows. It starts off with a brief sketch of the EuCo’s early development, taking a mildly unorthodox view of its origin and the motives for its creation (section 2). Next, it proceeds to gauge the institution’s modern-day competences, and its position within the wider constitutional framework (section 3). Hereafter, the inter-institutional linkages are subjected to review, in an attempt to assess how the Union’s other main actors measure up to the revamped EuCo (section 4). After these theoretical reflections, we move on to consider the dynamics in practice, focusing on the three most salient trends from the post-Lisbon period (section 5). The threads are drawn together in the concluding paragraph, presenting a critical appraisal of the EuCo’s ‘strained actorness’ (section 6).

2 Origins and early development

While 1974 has gone down in history as the EuCo’s official year of birth, it is still all too often overlooked that its true origins date back to the early 1960s. At the inception of the Communities, the erected institutional architecture did not provide for recurrent gatherings of the Heads of State or Government of the Member States. Thus, the first sessions of the embryonic entity, convened in Paris and Bonn in February and July 1961, took place without the Treaties providing legal authorisation for the initiative. These and subsequent conferences were mainly organised for negotiating issues on which the Council of Ministers could not reach agreement, and with an eye to resolving any avoidable stagnation.⁹ The organisation of this type of summit reflected a looming desire for institutionalised political cooperation at the highest level, as underscored by the fact that the 1961 meetings quickly received their follow-ups; for already at the dawn of the integration process, in cases of persistent deadlock, none of the existing actors possessed the necessary standing to take decisive action.¹⁰ In retrospect, then, one may say that it was a crescent practical need, more than anything else, that sparked the creation of the ‘proto-EuCo’. Correspondingly, the move has been hailed as a classic example of change to accommodate political reality.¹¹

The phenomenon was then only formalised (if not canonised) at the 1974 summit in Paris. At that point, the blueprint was agreed for half-yearly conferences under a rotating presidency. The 1975 gathering in Dublin was the first to meet under this new regime. Only in 1987, with the entry into force of the Single European Act, was the existence of the EuCo acknowledged in the EEC Treaty. With the entry into force of the Maastricht Treaty in 1993, its role was elaborated in more detail; Article 4(1) TEU couched its task in familiar terms when it instructed it to ‘provide the Union with the necessary impetus for its development and define the general political guidelines thereof’. It was thus designed to take a ‘helicopter view’, and come up with answers to the paramount questions of European integration.¹²

The pace with which, from then on, the EuCo shaped up from a cuckoo in the nest to a centripetal force remains astounding. In the decades since its creation, no major development could take place without its official blessing, or at least tacit approval.¹³ This is all the more remarkable considering that its most regular output, the Conclusions published at the end of every summit, never enjoyed a ‘hard law’ status.¹⁴ Moreover, the EuCo was only attributed official decision-making powers by the Amsterdam Treaty in 1999.¹⁵

With the entry into force of the Lisbon Treaty on 1 December 2009, the EuCo’s high-speed evolutionary trajectory has reached its provisional apogee. For starters, it was elevated to the rank of an official Union institution, a privilege shared with only six siblings.¹⁶ It was transformed further by being endowed with a plethora of decision-making competences, the installation of a semi-permanent Presidency, and the formal ousting of the Ministers of Foreign Affairs that had hitherto been members.¹⁷ This may, then, with only slight overstatement, be justifiably regarded as the ‘new’ European Council’s genesis.

3 Constitutional position

3.1 Multiplicity of roles and functions

Even before it became an official institution, the EuCo has proactively taken up a number of different roles, ranging from that of allocator of budget funds to that of appellate body in case of disputes in or between other institutions, besides getting prominently involved in inter alia the shaping of the Common Foreign and Security Policy, the Area of Freedom, Security and Justice, and even typical EC domains such as environmental policy.¹⁸ Legal doctrine offers some fine analyses of the multiplicity of (informal) functions it performs, among which the facilitation of informal exchanges of information and opinions, the fostering of personal understanding between the respective members, acting as supreme arbitrator on delicate problem dossiers, and a constant endeavouring to accommodate divergent national preferences.¹⁹ Taking its cue from the additional powers granted in 2009, the EuCo has in the meanwhile managed to expand its role even more, as will be illustrated further below.

3.2 Place in the hierarchy

In terms of hierarchy, the EuCo not only intuitively belongs at the apex of the Union’s institutional order; the presumption can be corroborated by pointing to the array of powers that has of late been placed at its disposal. Reference can, for instance, be made to the fact that it takes centre stage in defining the EU’s strategic interests and objectives in the field of external relations, as well as in defining the EU’s strategic guidelines for action within the AFSJ.²⁰ Already in this respect, the Council and Commission may be considered to have been placed in a hierarchically inferior position, proceeding as they do on the basis of the EuCo’s input. Moreover, the EuCo is to determine the configurations of the Council of Ministers,²¹ the composition of the Parliament as regards the allocation of MEPs between Member States,²² and the tentative rotation system of Commissioners.²³ Even when the Parliament has newly acquired a greater influence, de facto if not de jure, in its pre-appointment scrutiny of proposed Commissioners, the EuCo maintains the right to definitely appoint the Commission, after the Parliament has approved of the nomination of the envisaged members.²⁴ In similar vein, at least in the abstract, the President of the Commission and the High Representative for Foreign Affairs and Security Policy could be regarded as hierarchically subservient, since the EuCo possesses the exclusive prerogative to propose the candidates for taking up those offices.²⁵

3.3 Powers of the Presidency

Since the entry into force of the Lisbon Treaty, a crucial part is played by the EuCo’s Presidency, which has also had a profound bearing on the place of the institution as a whole.²⁶ As of December 2009, the office of President has obtained a ‘stable’ or ‘semi-permanent’ quality, with incumbents being expected to occupy the post for a term of 2.5 years (once renewable). The Treaties are conspicuously vague with regard to the content of the function, leaving ample room for diverging interpretations and potentially endless turf-wars.²⁷ This lack of clarity, as so often, mirrors the inability of the Herren der Verträge to reach consensus on a strong definition or delineation. Nevertheless, judging from an appointment-and-dismissal perspective, the President appears to be in a relatively strong legal position: for one thing, he is elected by the EuCo itself, i.e. without the involvement of any other institutions, and if need be by a qualified majority of representatives; in addition, only the EuCo possesses the competence to force him to step down.²⁸ The President is therefore not accountable to anyone but the EuCo members themselves, so that his position verges on the unassailable.

The foregoing conclusion might seem thoroughly disquieting, yet there would only be true cause for alarm if the office is able to play a substantial part in the EU’s lawmaking and policymaking process. In this light, it should be noted that the (few) autonomous powers of the Presidency are largely internal ones, meaning that they relate overwhelmingly to the organisation and management of EuCo meetings. Article 15(5) TEU stipulates that the President chairs the European Council and drive forward its work; that he shall ensure the preparation and continuity of the work of the European Council; that he shall endeavour to facilitate cohesion and consensus within the Council; and that he shall present a report to the European Parliament after each of the meetings of the European Council.²⁹ The EuCo’s Rules of Procedure provide that he is to submit an annotated draft agenda to the General Affairs Council at least four weeks before every ordinary meeting, to prepare draft guidelines for the EuCo conclusions, to draft those conclusions, as well as European Council decisions, which are subsequently to be discussed in the General Affairs Council.³⁰ The Rules of Procedure moreover state that the EuCo President shall ensure the preparation and continuity of the work of the Council in cooperation with the Commission President, on the basis of the ...