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Published online by Cambridge University Press: 27 October 2017
Various provisions of the Treaty on European Union (“TEU”) and of the EC Treaty specifically require action to be taken, at the definitive stage or at some preparatory or intermediate stage of decision-making, by the European Council, or by the Council of the European Union meeting in the composition of Heads of State or Government (“the HSG Council”); and there is one instance of an appointing power exercisable by an intergovernmental conference at the level of Heads of State or Government (“an HSG Conference”). Reserving a role for the political leaders of the Union in the adoption of particular decisions was an innovation of the TEU, more especially in the Title of the EC Treaty on economic and monetary policy, and further instances have been added by the Treaty of Amsterdam (“TA”) and the Treaty of Nice (“TN”).
1 Art. 112 (2)(b) on the appointment of the President, the Vice-President and the other members of the Executive Board of European Central Bank (“ECB”).
2 New Title VII of Part Three of the Treaty. Besides Art. 112(2)(b), provisions in Title VII that date back to the TEU are Art. 99(2) EC, Art. 121(3) and (4) EC and Art. 122(2) EC. These are further discussed below.
3 Art. 7(1) TEU (due to become Art. 7(2), pursuant to the T.N.); Art. 13(1) and (2) TEU; Art. 17(1) TEU (amended pursuant to the TN); Art. 23(2) TEU; Art. 40(2) TEU (due to become Art. 40a (2), and amended, pursuant to the TN); Art. 11(2) EC (amended pursuant to the TN); Art. 128(1) EC. See below.
4 Art. 214(2) EC; Art. 10(6) of the Statute of the European System of Central Banks and of the European Central Bank (“ESCB Statute”). See below.
5 “HSG” is used in the discussion that follows as a collective epithet, in phrases such as “HSG bodies”, “HSG level”, “HSG attribution” etc.
6 Bull EC 12-1974, 6 et seq.
7 There is a large literature on the European Council. See, in particular: Lauwaars, , 14 (1977) CMLRev 25 Google Scholar; Wessels, Der Europäische Rat (1980); Dewost in Mêgret, (ed.) Le droit de la Communauté européenne économique, Vol. 9 376 Google Scholar; Werts, The European Council (1992); Glaesner in Curtin, D. and Heukels, T., (eds.), Institutional Dynamics of European Integration, Vol. II (1994) 101 Google Scholar.
8 Cf. Art. 206 EC. See also Rules of Procedure of the Council (hereinafter, “Council Rules”), Arts. 4 and 11(3). The Council Rules, in their latest version, are found at OJ 2000 L149/21.
9 See Art. 23(2) TEU and the present Arts. 40(2) TEU and 11(2) EC.
10 A framework of informed arrangements for the organisation of European Councils was laid down at the London meeting in June 1977: Bull EC 6–1977, 83.
11 See Art. 202, second indent EC. See also Art. 211, third indent, which says that the Commission shall “have its own power of decision”.
12 Art. 3, first para. TEU.
13 Council Rules, Art. 2(H)(1) provides that “[t]he Council may meet in different configu rations”. A list of “standard” configurations is fixed by the General Affairs Council. For the current list, see OJ 2000 C174/2. The HSG Council does not figure on the list.
14 Council Rules, Art. 5(2).
15 Art. 250 EC. See Wyatt & Dashwood’s European Union Law (London, Sweet and Maxwell, 2000) (hereinafter, Wyatt & Dashwood) 52 to 54.
16 Glaesner, above n 7, above, points out that, although not a member of the Government, the President chairs its meetings. See the references in his footnote 15.
17 The original Art. 146 EC, and the equivalent provisions of the ECSC and Euratom Treaties, were repealed by the Merger Treaty and replaced by Art. 2 of the latter. The TEU, in turn, repealed Art. 2, substituting a revived Art. 146 EC (now Art. 203).
18 Council Rules, Art. 1.
19 Council Rules, Art. 3. Para. (6) of the Article provides that the inclusion on the agenda of an item other than those appearing on the provisional agenda requires a unanimous deci sion by the Council.
20 Council Rules, Art. 5(3).
21 See above, n 9. In the writer’s view, it would be legally possible for the HSG Council to act validly with up to seven of the Heads of State or Government of the present Member States absent but represented.
22 Council Rules, Art. 13.
23 See Art. 223 EC re. the Judges and Advocates General of the Court of Justice and (new) Art. 224 re. the members of the Court of First Instance. Art. 214(2) EC re. the President and other Members of the Commission is to be amended by the TEU, with the Council (in HSG formation for the nomination of the Commission President) substituted for a conference of the representatives of Member State governments.
24 It is suggested in Part VI, below, that any instance of regular HSG involvement in decision-making ought, on grounds of transparency, to receive an explicit mention in the Treaties.
25 Art. 13(3), first paragraph TEU requires the Council to take all decisions necessary for defining and implementing the CFSP on the basis of European Council guidelines. On the divi sion of labour in CFSP matters between the European Council and the Council, see Dashwood, A. “External Relations Provisions of the Amsterdam Treaty” 35 (1998) CMLRev 1019, 1030Google Scholar. Reprinted in O’Keeffe, and Twomey, (eds.) Legal issues of the Amsterdam Treaty, (Oxford, Hart, 1999) 201 Google Scholar.
26 The three Common Strategies which have so far been adopted, namely those on Russia, on the Ukraine and on the Mediterranean Region, have all been published in the “L” Series of the Official Journal: see, respectively, OJ 199 L 157/1; OJ 1999 L331/1; OJ 2000 L183/5.
27 For a discussion of Art. 23 TEU, see the writer’s article cited above, n 25 at 1033 et seq.
28 Cf. the reference in Art. 28(1) to “the areas referred to in this Title” In the language of the Treaties, the terms “area”, “field” and “sphere” seem to be used interchangeably: see, e.g. among the amendments introduced by the TN, Art. 133 paras. (5) and (6); Art. 181(a). The possibility of defining common strategies on “thematic subjects” was explicitly envisaged by the Vienna European Council of December 1998: see Vienna Conclusions, para. 74.
29 Above, n 27. See also, Dashwood, , “States in the European Union”, 23 ELRev 210, 214 to 215Google Scholar. Reprinted in Rider (ed.) Law at the Centre, 235.
30 “The Council acts by qualified majority when adopting joint actions, common positions or any other decisions within the scope of Title V of the Treaty on European Union (Common Foreign and Security Policy), on the basis of the Common Strategy”.
31 Art. 249, second para. EC.
32 Eg. Common Strategy on Russia, Instruments and Means, points 2 and 4: OJ 1999 L157, and 4.
33 OJ 2000 L183 at, respectively, points 16 to 23 and points 25 and 32. Emphasis added.
34 See the writer’s article cited above, n 25 at 1031 to 1032.
35 See Council Report to the European Council, dated 8 December 1998,1943/98, PESC 324.
36 See, on Russia, Cologne Conclusions, Annex II; on Ukraine, Helsinki Conclusions, Annex V; on the Mediterranean Region, Santa Maria da Feira Conclusions, Annex V.
37 The decision is by unanimity, on a case by case basis: Council Rules, Art. 17(3).
38 Ibid.
39 Art. 14 TEU.
40 Art. 15 TEU.
41 The Union is under a duty to ensure the consistency of its external activities as a whole: see Art. 3 TEU.
42 The assumption that common strategies may serve as cross-pillar instruments underlies the three texts which have been adopted so far (see above, n 24). For an analysis of this issue, focused on the Russia and the Ukraine Common Strategies, see Hillion, C. “Institutional Aspects of the Partnership between the European Union and the Newly Independent States of the Former Soviet Union: Case Studies of Russia and Ukraine” 37 (2000) CMLRev 1211 Google Scholar. Reprinted under “Common Strategies and the Interface between EC External Relations and the CFSP: lessons of the Partnership Between the EU and Russia” in Dashwood, A. and Hillion, C., (eds.) The General Law of EC External Relations (London, Sweet and Maxwell, 2000) 287 Google Scholar.
43 The first sub-paragraph of para. (1) is to be amended, through the deletion of a reference to the present second sub-paragraph, as to which, see below.
44 For a discussion of such powers, as further developed by the TN, see Dashwood, , “The Constitution of the European Union after Nice: Law-Making Procedures”, 26 ELRev. (2001) 215 Google Scholar.
45 Nice Conclusions, paras. 11 and 12, and Presidency Report on the European Security and Defence Policy.
46 Art. 24(3) TEU. Surprisingly, there is no mention of international agreements imple menting common strategies.
47 Art. 27 a et seq. TEU
48 Pursuant to the TN, this will become Art. 40a(2) TEU.
49 See the article cited above, n 27 at 215.
50 Ibid.
51 Art. 99(3), second sub-paragraph; Art. 128(3).
52 Art. 99(4); Art. 128 (4). See, as an example of action taken pursuant to Art. 99(4), Council Ree. 2001/191 with a view to ending the inconsistency with the broad guidelines of the eco nomic policies in Ireland, OJ 2001 L69/22; and Council Dec. 2001/192 making public that Recommendation, OJ 2001 L69/24. See, as an example of action taken pursuant to Art. 128(4), Council Ree. 2001/64 on the implementation of Member States’ employment policies, OJ 2001 L22/27.
53 Lisbon Conclusions, point 5.
54 Ibid. point 36.
55 Ibid.
56 See Stockholm Conclusions.
57 Santa Maria de Feira Conclusions, point 40, and Council Report on the Broad Guidelines of the economic policies of the Member States and the Community (9164/00).
58 See the reference, at point 45 of the Stockholm Conclusions, to the Key Issues Paper for the 2001 BEPGs.
59 Stockholm Conclusions, point 3, fourth indent.
60 See Santa Maria da Feira Conclusions, point 40; Nice Conclusions, point 17.
61 The TN adds a new para. (1) to Art. 7 TEU (as to which, see below). This will affect the numbering of the Article’s other paragraphs, the present para (1) becoming para. (2) etc.
62 Art. 7 (4) (future Art. 7(5)) TEU.
63 Art. 7(4) and Art. 309(4) EC.
64 Cf. Art 23(2), third sub-para. TEU and Art. 34(3) TEU.
65 For a full discussion of the new Art. 7(1), see the article, in ELRev (2001), which is cited above, n 44.
66 Art. 49 TEU
67 The same point is made in the article cited in n 44, above.
68 See Art. 121, paras. (1) and (2).
69 Council Dec. 97/736/EC of 13 December 1996, OJ 1996 L335/48. A political decision to this effect had already been taken at the European Council of Madrid in December 1995: see Council Reg. 1103/97 on certain provisions relating to the introduction of the euro, first recital (OJ 1977 L12/1).
70 After a repetition of the procedure laid down by Art. 121(1) and (2).
71 Council Dec. 98/317, OJ 1998 L139/80.
72 See Art. 122(1) second sub-para.
73 Respectively, Protocol (No. 25) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, and Protocol (No. 26) on certain provisions relating to Denmark. The Protocol Nos. were originally 11 and 12.
74 Denmark’s notification had already been given at the Edinburgh European Council in December 1992. For an account of the transition process, see Wyatt & Dashwood, 526 to 529.
75 Art. 121 (1) EC and Protocol (No. 20) on the excessive deficit procedure and Protocol (No. 31) on the convergence criteria referred to in Article 121 of the Treaty establishing the European Community. The Protocol Nos. were originally 5 and 6.
76 There is a similar oddity in the new procedure for the nomination of the President of the Commission: see the discussion of Art. 214 (2), below. This has been remarked on by the writer in the article cited above, n 44.
77 See Council Press Release, 9416/00 (Presse 215), 5.
78 Council Dec. 2000/427, OJ 2000 L167/19.
79 Cf. Art. 99(2), above.
80 See the Press Release cited above, n 77.
81 Respectively, Art. 10(2) first sub-para ECSC and Art. 127(2), first sub-para. Euratom.
82 Art. 112(2)(b) EC.
83 Art. 223 first para. EC.
84 Art. 225(3) EC Post-TN, Art. 224, second para. EC.
85 See Dashwood above n 44.
86 In connection with Art. 121 (3) and (4) EC.
87 For a discussion of the new Art. 10(6), ESCB Statute, as an example of a procedure for amending the EC Treaty without having recourse to the full procedure of Art. 48 TEU, see the article cited above, n 42.
88 Appointment of the Judges and Advocates General of the Court of Justice and of the Judges of the Court of First Instance (and also of the Commission, until the TN comes into force) is by common accord of the governments of the Member States, but without specifica tion that this takes place at HSG level, which in practice it does not.
89 Art. 112(2)(b) is one of the Treaty provisions under which “Member States” must be read as “Member States without a derogation”: see Art. 122(4) EC.
90 See Council Press Release No. 8170/98 (Presse 124), p.13. That was the occasion on which Mr Duisenberg made an oral statement to the effect that he did not intend to serve his full term of eight years as ECB President: ibid.
91 Dec. 98/345/EC taken by common accord of the Governments of the Member States adopt ing the single currency at the level of Heads of State or Government, of 26 May 1998: OJ 1998 L 154/33. Although the appointing Decision was formally adopted during the British Presidency, it was signed by Mr Victor Klima, the Austrian Federal Chancellor, as the Head of Government of the next, among the Member States adopting the single currency, to hold the Presidency.
92 The European Council decides on whether a given country is acceptable as a candidate for membership with which accession negotiations may commence. See, as to the present enlargement exercise, the Copenhagen Conclusions of June 1993 where it was agreed, in prin ciple, that “the associated countries in Central and Eastern Europe that so desire shall become members of the European Union”, and where the famous set of political and economic crite ria for membership were laid down: Conclusions, point 7.A. (iii); also, the Luxembourg Conclusions of December 1997 and the Helsinki Conclusions of December 1999.
93 See as to the latest septennial package of financial arrangements, known as “Agenda 2000”, the Berlin Conclusions of March 1999.
94 As recently at Nice, on 9 and 10 December 2000.
95 The point is illustrated by the so-called “Copenhagen Conditions” on enlargement (see above n 92) which have been treated as if written in stone. See also, e.g. the detailed set of “operational recommendations” relating to the Council, contained in Annex HI to the Helsinki Conclusions.
96 See, e.g. the account by Glaesner in his article cited above n 7 of the attempt that was made, at the Milan European Council in December 1984, to adopt a Council decision con vening an IGC, pursuant to the Treaty provisions equivalent to the present Art. 48 TEU: the attempt failed, because notice of a Council meeting had not been given within the time limit specified by the Council Rules, and the unanimity required, in order to derogate from the Rules, was lacking.
97 As, e.g. when they adopted a Decision, pursuant to the provision which is now Art. 389 EC, on the seats of the institutions, at the Edinburgh European Council in December 1992.
98 Title IV of Part Three of the EC Treaty.