Circumventing the European Union’s treaties via the European Council’s conclusions can be politically counterproductive and push the EU toward disintegration.
Tomasz Grzegorz Grosse
Circumventing the European Union’s treaties via the European Council’s conclusions can be politically counterproductive and push the EU toward disintegration.
The European Council’s conclusions are a smart political maneuver to make controversial changes without all member states having to approve a treaty revision, thus avoiding the need to conduct difficult negotiations by way of an intergovernmental conference. The unanimous agreement of member state leaders in the European Council has in fact become a substitute for treaty changes.
There is a lively discussion in the European Union about the need to increase the efficiency of decision-making as a remedy for the EU’s dysfunctions. The most important proposal is to abandon the member states’ right of veto and adopt qualified majority voting on an increasing number of issues in its place. This could speed up the legislative process, but it will also shift the power over legislation even further to the largest member states. They have the most votes, so they can easily head majority coalitions that promote certain legislative solutions in the Council. This includes France and Germany in particular.
Such a change requires the adoption of a new treaty, and therefore the unanimous approval of all member states. This is no easy thing. Indeed, many countries oppose giving up their right of veto, seeing it as a loss of influence within the EU. But the way to circumvent this opposition is through an informal political reinforcement of the European Council. The idea is that in matters requiring unanimity, the European Council should adopt fairly general conclusions on a consensus basis, indicating broad guidelines for future action. Subsequently, on specific matters – that is, on specific legislative proposals – the procedure would be based on a qualified majority vote by concerned ministers in the Council of the EU [the EU’s Council of Ministers, not to be mistaken with the European Council, which consists of the EU-27 heads of state and government]. This way of creatively circumventing the treaties has been applied, for example, to the EU’s energy and climate policy.
The legal framework for the European Council’s powers
According to Article 15 of the Treaty on European Union, the European Council does not have a legislative function. According to the same provision, the European Council provides the impetus necessary for the European Union’s development and defines its general directions and political priorities. In a ruling of the Court of Justice of the European Union (CJEU) dated June 21, 20181, there was a reminder that the European Council “shall not exercise legislative functions.” Legislative competence is reserved for Parliament and the Council of the EU. The principle of institutional balance means that neither the Commission nor the Council of the EU is legally bound by the European Council’s conclusions. According to another CJEU judgment dated September 6, 20172, the European Council’s conclusions cannot limit the European Commission’s legislative initiative. It is up to the Commission to determine the object, purpose, and content of such an initiative. Moreover, the European Council’s conclusions cannot give the CJEU the legal basis to annul a decision of the Commission.
From the point of view of the EU treaties and CJEU case law, the conclusions of the European Council are therefore not binding on the Commission or the EU Council, nor do they have any legislative effect. In practice it is fundamentally different, however.
The European Council was initially established as an informal body of the European Communities in 1974. It was nonetheless instrumental in such projects as the Single European Market and the Economic and Monetary Union, and also in recovering from the failed ratification of the Treaty establishing a constitution for Europe. The political importance of this body was then strengthened by the Lisbon Treaty and a series of crises at the beginning of the 21st century in which its informal political role grew.3 The Lisbon Treaty formalized the status of the European Council and strengthened it through the position of a permanent president. The crises meanwhile provided an opportunity for this institution’s significant informal influence over EU legislation. In practice, this meant that the European Council was encroaching on the Commission’s treaty powers.4 In this way, a feature of European integration – the massive gap between the formal provisions of the treaties and political practice – became very apparent.
The European Council is largely responsible for key projects that are changing the EU, such as those pertaining to climate change. It is also responsible for designing steps, including legislative ones, in major crisis. This was particularly evident during the eurozone’s problems after 2010,5 as well as in the pandemic crisis. Finally, the European Council deals with politically sensitive issues, and is thus of crucial electoral importance.6 This was the case in the migration crisis and during the negotiation of EU asylum reforms alongside changes to the migration and refugee policy.7
In this way, the European Council sets the details for individual reforms, including by designing the assumptions underlying subsequent legislative initiatives.8 It also submits requests to the Commission for the preparation of relevant legislative proposals (in accordance with its own instructions) or reports on specific matters.9 In addition, it monitors the institutions responsible for the legislative process, such as the Commission and the Council of the EU, in an effort to impose the guidelines it desires for legislative work. The European Council has also repeatedly put pressure on the European Parliament to achieve a desired legislative effect. As a matter of fact, it is increasingly involved in monitoring the day-to-day work of the EU institutions as well as current political affairs in the domestic and non-EU arena.10 Increasingly, the burden of the European Council’s work is shifting away from strategic issues and toward monitoring the day-to-day affairs and activities of other institutions.11 This is especially true in the fields of energy, climate, and the EU internal market.12 And it is also evidenced by the frequency of the European Council’s meetings, which has steadily increased beyond the treaty’s designated two official meetings per year. It now averages 7-8 meetings per year,13 after having reached as many as 11 meetings a year during the eurozone crisis.14
The relationship between the European Council and the Commission has received a lot of attention. The European Council is considered to be the politically dominant institution in the EU.15 It is also a source of democratic legitimacy in the EU – much more so than the European Parliament, for example. In other words, its conclusions tend to legitimize subsequent legislative action.16 From this point of view, the Commission’s role is one of civil service, i.e. to ensure the implementation of decisions taken by the European Council.17 At the same time, a certain degree of competition can be observed between the two institutions. This is best evidenced by the cyclical rivalry between the presidents of the two institutions – most recently between Ursula von der Leyen and Charles Michel, and earlier between Jean-Claude Juncker and Donald Tusk, among others.
As a rule, the Commission follows the European Council’s guidelines. However, it also tries to influence the position of the member states, including by submitting numerous documents and reports to them intended to influence the European Council’s conclusions.18 In such a case, the Commission uses its information and administrative capacity to influence the European Council according to its own preferences. Often, in fact, it has moved in the direction of centralization – that is, the transfer of new powers to the Commission.19 This is seen as the most effective way for officials to act. They get the best results if they are able to skillfully influence the European Council so that its conclusions set such directions for further legislative work which satisfy the Commission and also politically legitimize its actions.20
Sometimes, however, the Commission tries to defend its own exclusive prerogative of legislative initiative and even goes so far as to ignore the European Council’s conclusions, or comes up with ideas that contradict the general guidelines outlined in those conclusions.21 This competitive approach on the part of officials stems from a desire to take advantage of the divisions between EU member states and of the European Parliament’s support.22 Most often, confrontation with the European Council is counterproductive for the Commission’s initiatives, especially if officials act against the political will of Western Europe’s largest member states.
Thus, the role played by the European Council’s conclusions is huge, especially in socially sensitive and controversial issues, during crises, and also when the Union undertakes systemic changes. This is also the case when setting new directions in economic policies (monetary union, climate policy, combating pandemics, etc.), with serious constitutional implications for European integration. These are things which, by definition, would normally require new treaties.
Circumventing the EU treaties
Meanwhile, the European Council’s conclusions are a smart political maneuver to make controversial changes without all the member states having to approve a treaty revision, thus avoiding the need to conduct difficult negotiations by way of an intergovernmental conference. The unanimous agreement of member state leaders in the European Council has in fact become a substitute for treaty changes. This is why it carries so much political weight for the subsequently introduced legislative measures. As a rule, these legislative measures are adopted through the usual procedure, i.e. by a qualified majority vote in the EU Council and by a decision of the Parliament. The latter institution is very much in favor of all such “reforms” that move the bloc toward centralization and federalization. This is also supported by the Commission, especially when a legislative change leads to the transfer of new powers to EU officials.
Strengthening the European Council’s decision-making processes does not limit other EU institutions, including the technocratic ones.23 Thus, increasing the importance of the European Council means deepening transnational integration.24 Indeed, a stronger European Council enables further centralization,25 and even the drift of the EU towards the federal model. It makes it possible to circumvent the impossibility of adopting new treaties by introducing system changes “through the back door” – that is, without the need to revise the treaties.
The European Council’s conclusions set in motion processes of fundamental change in the EU primarily by giving them democratic legitimacy. Then, in accordance with these conclusions, the bureaucratic machine is set in motion,26 implementing such major changes as the climate transition. At the very least, this should necessitate an adjustment to Article 192 of the Treaty on the Functioning of the European Union, which states that there has to be unanimous consent among all the member states on decisions affecting the choice between different energy sources and the overall energy supply structure (the so-called energy mix). Indeed, it is hard not to notice that the EU’s increasingly ambitious climate transition goals are affecting its countries’ choice of energy sources and energy mix.
The example of EU energy and climate policy
Energy and climate policy is indeed a good example of how treaties are bypassed. Unanimity was preserved on repeated occasions, but only at the stage of guideline decisions made in the European Council, whereas the details have been proceeded by majority voting in the Council of the EU.
There have been several European Council meetings that are considered to have been landmarks for these policies. The 2005 Hampton Court summit, for example, called on the Commission to come up with more comprehensive energy and climate policies, including by insuring the liberalization of trade in raw materials and more international connections (including interconnectors) in the EU. Such measures have served energy security, and have benefited the EU’s largest exporters of raw materials and energy. In this context, it is worth noting that on August 29, 2006, Russia’s Gazprom and Germany’s E.ON Ruhrgas and BASF signed a final agreement in Moscow on the construction of the Northern Pipeline and the creation of the Nord Stream consortium. In addition, the European Council’s 2005 summit linked energy policy to climate transition and nature conservation.
At a European Council summit held in 2007 at the initiative of Angela Merkel, renewable energy and greenhouse gas reduction targets were then adopted. The Commission was also asked to prepare a package of relevant legislative initiatives on the issue, including binding country-specific targets.27 Another European Council summit held in 2008 adopted climate commitments for 2020, which were then to be translated into EU legislation. Other important summits for the climate agenda were held in 2011 and 2013, where, among other things, Poland’s resistance to ambitious climate targets and the tools to implement them was overcome.28
In 2014, the European Council adopted in its conclusions the assumptions for the Energy Union, which was primarily intended to ensure the best possible circulation of raw materials and energy between member states. The European Council also ordered relevant regulatory initiatives from the Commission to ensure the project’s implementation. Ardent advocates of the idea included then-Energy Commissioner Günther Oettinger, Commission President Jean-Claude Juncker, his Head of Cabinet Martin Selmayr, and Donald Tusk, who was to be appointed as the new European Council president soon after.29 Successive European Council summits on energy and climate exemplify the strong German influence on decision-making.30
The December 2022 European Council conclusions brought another breakthrough. The heads of state and government agreed to raise the climate target, i.e. to reduce greenhouse gases by at least 55 percent by 2030 compared to 1990 levels. They also urged the European Commission to draft relevant legislation, and the EU Council and European Parliament to adopt the Commission’s legislative initiatives as soon as possible.31
The Polish government resisted the conclusions adopted at the summit for a long time, but eventually relented in exchange for a general political declaration that Poland would receive somewhat bigger EU financial support for the climate transition. The consequence of the European Council’s conclusions was the launch of an extensive and highly ambitious package of regulations implementing the Fit for 55 goals. The whole thing proved to be very costly for Poland.32
While the regulations in question were based on unanimous agreement by the European Council on the general direction of the changes, the details were decided by majority vote. And this has raised legitimate doubts. A consensus decision in the European Council is not a full substitute for treaty revision. Furthermore, one may reasonably expect similar consensus decisions on the most important regulations based on the European Council’s conclusions. In that respect, the European Council’s unanimous consent can in fact be terminated later on by any member state, resulting in a refusal to implement a regulation adopted by majority vote. This is why circumventing the treaties through the European Council’s conclusions could very well turn out to be politically counterproductive and push the EU toward disintegration.33
1 Court ruling of June 21, 2018, Case C-5/16.
2 Court ruling of September 6, 2017, Joined Cases C-643/15 and C-647/15.
3 P. Bocquillon, M. Dobbels (2014) An elephant on the 13th floor of the Berlaymont? European Council and Commission relations in legislative agenda setting, Journal of European Public Policy, 21:1, 20-38.
4 T. Christiansen (2012) ‘The European Union after the Lisbon Treaty: an elusive institutional balance?’, [in:] A. Biondi and P. Eeckhout (eds), European Union Law after the Treaty of Lisbon, Oxford: Oxford University Press, pp. 228–47; D. Corona, C. Hermanin, P. Ponzano (2012) The Power of Initiative of the European Commission: A Progressive Erosion, Paris: Notre Europe, Studies and Research no. 889; W. Wessels, O. Höing (2013) ‘The European Commission’s position in the post-Lisbon institutional balance: secretariat or partner to the European Council?’, [in:] M. Chang, J. Monar (eds), The European Commission in the Post-Lisbon Era of Crises, Brussels: P.I.E.-Peter Lang, College of Europe Studies Vol. 16, pp. 123-46.
5 P. de Schoutheete (2012) The European Council and the Community Method, Paris: Notre Europe, Policy Paper no. 856; U. Puetter (2012) ‘Europe’s deliberative intergovernmentalism: the role of the Council and European Council in EU economic governance’, Journal of European Public Policy 19(2): 161–78.
6 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation: studying the lead roles of the European Council and the Council in post-Lisbon EU politics, Journal of European Integration, 38:5, p. 489.
7 A. Maricut (2016) With and without supranationalisation: the post-Lisbon roles of the European Council and the Council in justice and home affairs governance, Journal of European Integration, 38:5, 541-555.
8 E. Bressanelli, N. Chelotti (2016) The Shadow of the European Council. Understanding Legislation on Economic Governance, Journal of European Integration, 38:5, 511-525.
9 F. Eggermont (2012) The Changing Role of the European Council in the Institutional Framework of the European Union: Consequences for the Integration Process, Brussels: Intersentia, 104-118.
10 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation… op. cit., p. 482.
11 M. Carammia, S. Princen, A. Timmermans (2016), From Summitry to EU Government: An Agenda Formation Perspective on the European Council, Journal of Common Market Studies, vol. 54, no. 4, pp. 809-825.
12 P. Alexandrova (2017) Institutional issue proclivity in the EU: the European Council vs the Commission, Journal of European Public Policy, 24:5, p. 767.
13 P. Alexandrova (2017) Institutional issue proclivity in the EU… op. cit., p. 759.
14 E. Bressanelli, N. Chelotti (2016) The Shadow of the European Council… op. cit., p. 514.
15 A. Moravcsik, (2002) ‘In defence of the democratic deficit: reassessing legitimacy in the European Union’, Journal of Common Market Studies 40(4), p. 612.
16 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation… op. cit., p. 486.
17 J. Werts (2008) The European Council, London: John Harper Publishing, p. 52.
18 F. Eggermont (2012) The Changing Role of the European Council in the Institutional Framework of the European Union: Consequences for the Integration Process, Brussels: Intersentia, p. 76; House of Commons European Scrutiny Committee (2008) The Conclusions of the European Council and the Council of Ministers: Tenth Report of Session 2007-08, London: TSO, pp. 28-29.
19 S. Bulmer, W. Wessels (1986) The European Council: Decision-Making in European Politics, Houndmills: The Macmillan Press, p. 110.
20 P. Bocquillon, M. Dobbels (2014), op. cit., p. 27.
21 S. Smeets, D. Beach (2022) ‘It takes three to tango’: new inter-institutional dynamics in managing major crisis reform, Journal of European Public Policy, 29:9, pp. 1418-1419.
22 M.A. Pollack (1997) ‘Delegation, agency, and agenda-setting in the European Community’, International Organization 51(1), pp. 124-128.
23 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation… op. cit., p. 490.
24 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation… op. cit.
25 D. Beach, S. Smeets (2020) New Institutionalist Leadership – How the new European Council-dominated crisis governance paradoxically strengthened the role of EU institutions, Journal of European Integration, 42:6, 837-854.
26 D. Beach, S. Smeets (2020) New Institutionalist Leadership… op. cit.
27 P. Bocquillon, M. Dobbels (2014), op. cit., p. 30.
28 P. Thaler (2016) The European Commission and the European Council: Coordinated Agenda setting in European energy policy, Journal of European Integration, 38:5, p. 581.
29 P. Thaler (2016) The European Commission and the European Council… op. cit., p. 579.
30 P. Thaler (2016) The European Commission and the European Council… op. cit., p. 579; P. Bocquillon, M. Dobbels (2014), op. cit., p. 30.
31 Conclusions. European Council Meeting, December 10–11, 2020, EUCO 22/20, Brussels, December 11, 2020, p. 5.
32 T.G. Grosse, The real cost of Fit for 55: will we be able to bear it? Sovereignity.pl, July 4, 2023, https://sovereignty.pl/the-real-cost-of-fit-for-55-will-we-be-able-to-bear-it/ [29.07.2023].
33 S. Fabbrini, U. Puetter (2016) Integration without supranationalisation… op. cit., p. 488.