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WHERE NEXT FOR THE EUROPEAN COUNCIL?
 


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1. Introduction

The European Council, which is the name given to the system of summit meetings of heads of state or government, and which is the supreme political authority in the European Union, has in recent years been subject to critical scrutiny and analysis, and also significant proposals for reform. There have been, amongst other things, the joint Blair/Schroeder letter of February 2002 to Jose Maria Aznar (as President of the European Council) entitled "On the reform of the European Council"; the report by Javier Solana, as Secretary-General of the Council, of March 2002, entitled "Preparing the Council for Enlargement"; the further joint report by the Presidency to the European Council and the General Secretariat of the Council of June 2002, entitled "Measures to Prepare the Council for Enlargement"; and the conclusions of the June 2002 Seville European Council itself, which included, in an annex, new rules for organising the proceedings of European Council meetings.

Since this spate of reform activity in 2002 at least two major events have occurred. First, the EU has indeed enlarged to 25 member states (with even more members due to join in future); and, second, rejection of the European constitutional treaty in France and the Netherlands has made any changes that require treaty amendment problematic in the extreme. This means, in particular, that proposals to abolish the revolving six-monthly Presidency of the Council, and create a new semi-permanent President of the European Council, remain in limbo.

Given these developments, it may be timely to take stock of progress made in reforming the European Council, and preparing it for enlargement, and also to consider whether what has been done is sufficient.

It may appear, at first sight, as if these might be minor technical or procedural issues, of no great significance. However, the way in which the political leaders of 25 member states, governing a total population of 450 million people and an economy the size of the United States, organise their limited time, resources and political capital when setting their collective political strategy must be a subject of some importance. If they cannot do so effectively then Europe as a whole is disadvantaged.

2. The 2002 Reform Proposals

The essential problem which the 2002 reforms were meant to address was vividly described in his March 2002 report by Javier Solana, the Secretary-General of the Council, as follows:

"The European Council is the Union's supreme political authority. It possesses a legitimate power of decision. It represents the unity between the Union, on the one hand, and its Member States, on the other, in its closest form. Its task is 'to provide the Union with the necessary impetus for its development and define general political guidelines.' That presupposes clarity of objectives, transparency of decisions, continuity of action. For some years now, the European Council has been sidetracked from its original purpose. Owing to malfunctioning of the Council, it is increasingly asked to spend time on laborious low-level drafting work, which adversely affects normal Community procedures. The drift in the workings of the Presidency has reduced its meetings to report-approval sessions or inappropriate exercises in self-congratulation by the institutions."

In a similar vein, Tony Blair and Gerhard Schroeder wrote jointly in 2002 as follows:

"As the EU confronts increasingly complex global issues and as we embrace new Member States, providing [?] leadership will become both more important but of course more challenging. We therefore need to ensure that we maximise the efficient use of European Council time, keeping our agenda focussed on key priorities."

They then proposed that to do this the following principles should be adopted:

overloaded agendas should be avoided;
discussions should focus on strategic and overarching issues, such as considering the Commission's annual programme and maintaining momentum behind the EU's economic reform agenda;
consideration of individual legislative dossiers should in principle be precluded. Where there are problems in reaching agreement in sectoral councils, the European Council might set fixed deadlines for agreement;
reports submitted to European Councils should be limited both in length and number;
unanimity should only be applied in areas where this is provided for in the Treaties. Decisions referred to the European Council under Treaty bases subject to QMV should be decided by QMV. Failure to do so can impede progress in key areas;
the confidentiality of European Council discussions should be restored;
the process for producing Council conclusions should be reformed in order to minimise the time Heads need to spend considering draft text. Language should focus on the issues discussed."

In the event, two kinds of reforms were agreed at the Seville European Council in 2002.

First, it was agreed that there should be further study of options requiring Treaty change, such as altering the six-monthly revolving Presidency system. This, in turn, led to the proposals to the Convention on the Future of Europe to abolish this system and also create a new semi-permanent President of the European Council. This idea was set out in Article I-22 of the constitutional treaty, which has not yet entered into force, as follows:

1.The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once.
2.The President of the European Council:
a.shall chair it and drive forward its work;
b.shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Council, and on the basis of the work of the General Affairs Council;
c.shall endeavour to facilitate cohesion and consensus within the European Council [?]
3. The President of the European Council shall not hold a national office.

Second, a series of new "Rules for Organising the Proceedings of the European Council" were agreed (Annex 1 to the conclusions of the Seville European Council). None of these would require Treaty change. Notable features included a requirement (Rule 3) that at least four weeks before a European Council an annotated agenda should be prepared distinguishing between (i) items where no discussion was necessary; (ii) items for discussion with a view to defining general political guidelines; (iii) items for discussion with a view to adopting a "decision"; and (iv) items for discussion but not to be the subject of conclusions. Under Rule 4 brief outline papers would be prepared, setting out the issues when agenda items of types (ii) and (iii) arose.

Meetings themselves would be subject to the control of the Presidency of the day. Thus, under Rule 8:
"The Presidency shall ensure that business is conducted smoothly. To this end, it may take any measure conducive to promoting the best possible use of the time available, such as organising the order in which items are discussed, limiting speaking time and determining the order in which contributors speak."

As for the conclusions of the European Council, under Rule 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."

3. Effect of the 2002 Reform Proposals

It is probably fair to say that only modest progress in the direction of reform can be discerned so far. In the June 2002 paper "Measures to Prepare the Council for Enlargement" it was noted, with justice, that "The point which the various possible reforms [involving Treaty change] have in common is movement from the concept of the individual Presidency by one State to the concept of a collective Presidency, with its collective nature being more or less marked in the different versions put forward."

However, the idea of a "collective Presidency" - at least via Treaty change - as a means of giving greater continuity to deliberations of the Council is, for the moment, a dead letter, as is the idea of a semi-permanent President of the European Council.

The rules of procedure which have been agreed for European Council meetings are no doubt a step forward. But it is not obvious that any substantial change in practice has actually taken place. One reason for suggesting this is that the conclusions of European Councils, despite the calls for brevity noted above and the new Rule 12 requirement that they should be as concise as possible, appear much the same as ever.

It is worth pausing to consider in more detail the nature of European Council conclusions. They are not strictly issued by the European Council itself, but instead are "Presidency Conclusions", issued in the name of the State holding the six month Presidency. They do not exactly reflect what heads of state or government have actually discussed, but instead are an idealised, almost Platonic, account of what they should have said. Nor are they in any sense aimed at guiding European public opinion, or winning over hearts and minds in favour of a particular policy direction. Instead, they are formally issued by the Presidency to "Delegations" (that is, representatives of the Member States in Brussels), and often finalised by officials long after the event, and long after the last head of state or government has left town. (For example, the "revised version" of the conclusions of the 23/24 March 2006 European Council, held in Brussels, was issued by the Presidency to Delegations two months later on 18 May 2006; those of the 15/16 June European Council, also held in Brussels, were issued in a revised version to Delegations one month later on 17 July 2006. In the intervening periods it can only be speculated that discussions between officials over what exactly the European Council should have said must have taken place.)

But it is in their length that European Council conclusions most distinguish themselves. Those of the March 2006 European Council ran to 36 entire pages; those of the June 2006 European Council to 38 pages. The year before, in 2005, the three European Council meetings in March, June and December produced conclusions of, respectively 39 pages, 40 pages and 24 pages.

Despite the calls for them to be shorter, it is hard to detect any material change in practice since 2002. In 2001, for example, the conclusions of the June European Council were 23 pages long, and those of the December European Council were 35 pages long.

These conclusions do not have a legal character, because the European Council is a political body and not, formally, part of the EU legislature. It therefore cannot pass laws. Instead the conclusions are declamatory or exhortatory in nature, recording the comments of European leaders on all manner of topics, great and small.

Thus, to take the June 2006 conclusions (38 pages) as an example, there is, first, a section entitled "Europe Listens", consisting of 3 paragraphs. There is then a section entitled "Europe At Work", which contains 11 paragraphs in its first sub-section "Promoting freedom, security and justice; 15 paragraphs in a sub-section "Promoting the European way of life in a globalised world"; 3 paragraphs in a sub-section "Improving the efficiency, coherence and visibility of the Union's external policies"; and 8 paragraphs in a sub-section "Improving the functioning of the Union". Then there is a section "Looking to the Future", which contains 8 paragraphs in the sub-section "Pursuing reform: the Constitutional Treaty"; 6 paragraphs in the sub-section "Enlargement" and one paragraph in the sub-section "Western Balkans". The final section, entitled "External Relations" consists of 4 paragraphs. There are, however, then a further eight annexes attached to the conclusions. The first is on "Transparency", and the remaining seven are declarations on the Western Balkans, Iran, Iraq, the Middle East Peace Process, Africa, Lebanon and Timor-Leste.

These 38 pages of declamatory language constitute a kind of tour d'horizon of current events, with appropriate diplomatic commentary. Thus, to give a flavour:

26The European Union will continue to actively promote the dialogue between cultures and civilisations through all existing mechanisms, including the Barcelona Process, the Anna Lindh Foundation and the Alliance of Civilisations. Particular emphasis will be given to the role that free media and civil society as well as their promotion can play in this regard.
27The European Council welcomes the meeting with leading representatives of churches and religious communities organised by the Presidency and the European Commission in Brussels on 30 May 2006.
28The European Council welcomes the conclusions of the Inter-Institutional Agreement on the Financial Perspectives 2007-2013 providing the Union with the means to carry through its policies and stresses the importance of rapidly adopting the necessary legal instruments?"

Irrespective of the merits of such conclusions one thing is clear. It would have been physically impossible in the short time available on 15 and 16 June 2006 for 25 heads of state or government to have properly discussed all these topics, much less agreed the detailed language to be adopted. The conclusions do not, therefore, accurately reflect what European leaders have discussed or decided.

4. The Purpose of Reform

As Javier Solana noted in 2002, when commenting that "the drift in the workings of the Presidency has reduced its meetings to report-approval sessions or inappropriate exercises in self-congratulation by the institutions", the European Council has been sidetracked from its original purpose for some years. Its task, as set out in Article D of the Treaty on European Union, is "to provide the Union with the necessary impetus for its development and define general political guidelines." But to do this presupposes clarity of objectives, transparency of decisions and continuity of action.

As background to the 2002 attempts at reform, I drafted a study in 2000 on behalf of the Council on European Responsibilities entitled "The European Council: Relaunching Europe's Political Authority", which was circulated to various European institutions and governments. The full text can be found at www.coeur.ws (at Reports). To prepare this report as many individuals and experts as possible with experience and views on European Council meetings were consulted, some very senior, from a representative range of member states and institutions (The Netherlands, France, Germany, the UK, Ireland, Spain, Finland, Sweden and the European Commission). While there was not unanimity on all points, it would be fair to say that those closely involved in either attending or preparing European Council meetings subscribed to the following general consensus:

European Councils did not of late usually work well. Among fifteen member states the organisation of large scale high-profile conferences, as had become the norm, precluded proper political discussions between European leaders, and the establishment of a confidential, collegiate atmosphere;
The best European Councils were the most informal, with the fewest outside participants, the least protocol and some substantive political issue to discuss. Political leaders could co-operate very effectively with each other in the right circumstances;
On the other hand, it was a poor use of resources for the European Council to be a court of appeal from other, junior, Councils, and to expect that heads of state or government should resolve disagreements at that level. Frequently they did not understand the very technical issues, and were ill-equipped to take proper decisions;
The short-term six month Presidency was too short to get to grips with big long term policy issues. Some way of dealing with long term strategic questions should be devised. Meetings should not be dominated by short term ad hoc issues, which wasted time and energy;
The conclusions of European Councils should be radically recast.

Many of the detailed recommendations in that 2000 report, which broke down into the three headings of modification of the preparation of European Council meetings; their functioning; and their follow-up, are reflected in the ideas for reform which were current in 2002.

Reform was not seen as an end in itself. It was, instead, a means to a wider end, which was to use the collective political authority of heads of state and government more sparingly, so that, as a counterpart to the legislative system embodied by the Commission, the Parliament and the Council, the EU could address major policy questions in a more coherent manner (or, as Javier Solana later put it, with "clarity of objectives, transparency of decisions, continuity of action").

5. What Now?

Although reforms that need Treaty amendment before they can be made may be on ice, it is worth considering further measures that could be taken in the meantime. Because the European Council is a political body, outside the legislative system set out in the Treaties, the way it organises business is largely by agreement between the political leaders who are its members.

A model, at the national level, is the cabinet system of government - that is, the collection of ministers with different official responsibilities for the setting and execution of national policy. Just as, at a national level, the composition and working methods of a cabinet will vary according to circumstances, so at a European level working methods will depend on participants, internal politics and changing external pressures. The nature of collective responsibility at a European level will not be exactly the same as at a national level: but, nonetheless, the idea of a collective agreement to go in a particular direction can be transferred from the national to the European level. It is a pragmatic, political principle, rather than a legal rule which can be expressed in treaty language. (It is worth remembering there is, however, as a foundation the basic EC Treaty Article 10 obligation for member states to "abstain from any measures which could jeopardise the attainment of the objectives of this Treaty".)

With this cabinet analogy in mind the following practical ideas may be worth further and early exploration. (There may, of course, be other possibilities.)

Conclusions of the European Council. These still need radically pruning. They could be operational, not declamatory (that is, they could say clearly what the European Council has decided to do, not what it hopes will happen). They could be drafted with the citizens of Europe in mind, not "Delegations". They could be brief, avoid jargon and reflect only what has actually been discussed. If a matter has not been discussed or no decision has been reached there is no need to mention it. Rule 12 of the "Rules for Organising the Proceedings of the European Council" is worth revisiting: "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."

Another possibility would be to create a single spokesperson for the European Council, to provide rapid and factual accounts of what has transpired to the outside world.

To Govern is to Choose. Rather than issuing omnibus declarations the focus should be on effective choices - exercising the "legitimate power of decision" that Javier Solana has referred to. Under the 2002 Rules there appear to be two main alternatives for action: the adoption by the European Council of "general political guidelines" and the adoption of "decisions". The former is clearly a reference to the powers of the European Council under Article D of the Treaty on European Union. The latter is admittedly a little more uncertain. According to Rule 9: "In the context of enlargement and in exceptional cases, where an item is placed on the agenda of the European Council for a decision, the European Council shall discuss the item concerned. The political conclusions drawn from the positions emerging during the discussion shall be brought to the attention of the Council so that it may consider the implications for subsequent proceedings, in accordance with the applicable Treaty provisions."

A formal "decision" by the European Council appears, therefore, to be something rather exceptional. It is important to be clear that any such "decision" is not the same thing as a decision by the European Commission, which under Article 249 of the EC Treaty is a legal instrument binding on those to whom it is addressed. The European Council (unless formally adopting a proposal from the Commission, which is very unusual) is not empowered to adopt a legislative act; nor are its declarations amenable to judicial review by the European Court. (The first point is made explicit in Article I-21 of the constitutional treaty: the second point was upheld by the Court of First Instance in Case T-584/93 (Roujansky)). A "decision" by the European Council therefore appears to be something more specific than a policy guideline but less than a legislative act. Examples may be decisions on "enlargement" (presumably deciding which candidate countries can join) and also establishing the list of configurations of the Council (envisaged at Article I-24 of the constitutional treaty).

The common factor in both such "policy guidelines" and "decisions" is that the European Council is in effect giving political instructions to other, subordinate, public bodies in the EU, as part of its task of giving the "necessary impetus" for its development. Since most such public bodies are ultimately controlled by those who sit in the European Council it is reasonable to expect they will pay attention. (The position of the Commission is different. Here instructions from national governments are forbidden under the Treaties. On the other hand, the President of the Commission, who is a member of the European Council, is party to the policy-making process.)

It is worth recalling that one of the original ideas behind the creation of the European Council in the 1970s was that it should give common instructions to national ministers meeting in the Council, as a way of unblocking decision-taking paralysis caused by the then practice of unanimity.

As the supreme political authority of the EU, therefore, the power of the European Council, if used in a focussed way, to shape events across Europe - and in particular in the 25 member states - is very considerable. It is nothing less than the power to direct the collective public resources of the European states in a particular direction.

European Councils could, therefore, aim to produce only "policy guidelines" or "decisions". It would then be the task of either the Presidency or the Secretary-General of the Council to ensure that these "policy guidelines" or "decisions" are translated into action.

General declarations. If it is still felt necessary to make declarations or observations on important topics these could be thought-through, argued, self-standing policy statements of agreed EU positions, with explanations and reasons. They could be maintained on their own website, for general and permanent consultation and guidance. (One example could be the "Lisbon Strategy" of economic reform of 2000. Another is the European Security Strategy of 2003. A third could be the EU's internal and external energy policy, when that is adopted.) There is, however, no need to react at head of state/government level to every foreign policy development or crisis in the world. This dilutes the collective authority of political leaders. If necessary any such ad hoc declarations should be by Foreign Ministers (or other appropriate technical ministers). Another possibility is for a new single spokesperson of the European Council (as mentioned above) to field routine questions about current events. Or this could be the same person as the present spokesperson for the High Representative.

Continuity of Action. In the absence of a semi-permanent President to "drive forward" and "ensure the preparation and continuity of the work of the European Council" is the quest for continuity to be abandoned? There seems little doubt that continuity of policy is necessary, and that short term six monthly Presidencies represent a stumbling block. What more could be done?

A starting point might be to establish a better collective memory - that is, exactly what, among the hundreds of pages of conclusions that have been adopted, has the European Council actually agreed to do already? How far have such agreements been implemented? These could, perhaps, be held in the same database as the self-standing general declarations or policy positions, suggested above, with the object of building up a consistent body of agreed European policy, accessible by anyone interested.

Further thought could then be given to ensuring continuity between one meeting of the European Council and the next. Modern developments in communications technology have created various ways in which European leaders (or their offices) could easily remain informally in touch with one another, on a more or less permanent basis. Linking 25 member states (plus the President of the Commission and the Council Secretariat), who are in similar time zones, is no greater a challenge than linking parts of large international businesses spread out all over the world. Dedicated voice or information networks can allow complete mobility and permanent contact. Documents can be exchanged rapidly and, if necessary, conference calls or videoconferences arranged between participants, on an ad hoc basis or even at regular pre-arranged intervals.

If there is no full-time President to expedite such matters the Presidency of the day could take the initiative to do this. Or the Secretary-General of the Council could make a proposal in this sense, and be responsible in the interim for creating a communications system which allows the necessary continuity and fits in with the work habits of all concerned. A further possibility would be for the European Council itself to mandate one of its members (or a non-member, or the Secretary-General) to consult on the most suitable practical arrangements, and then make detailed proposals.

There are a number of arguments in favour of creating a permanent body, or a kind of virtual European Council. One is to maintain the desired continuity of policy from one Presidency to the next. Another is to allow for rapid reaction to events that happen between formal meetings themselves (with gaps of several months between them). Another is to allow more private and confidential exchanges to take place on matters which members might not want to place on the agendas of formal meetings. And yet another is to deal with minor matters which do not need discussion in formal sessions of the European Council, and so ease the pressure on agendas for these meetings.

Existing summit meetings could become plenary sessions of the European Council. While there may be much to be said for each Presidency hosting a large scale event on its own territory (known in fact as "informal" European Councils) as a way of linking European and national politics, it must also be recognised that there are real practical problems with actual summit meetings involving numerous participants, and that with progressive enlargement these problems will increase. (This is not peculiar to the European Council: G8 economic summit meetings have been criticised in recent years for similarly becoming unwieldy.) Such plenary sessions could deal with a handful of large-scale, high profile issues only, perhaps explicitly linked to the member state which is exercising the six-month Presidency. However, the day to day business of exercising collective political authority could increasingly be handled through the kinds of new machinery outlined above.

It is for consideration (again by analogy with cabinet government at a national level) whether smaller sub-committees of the European Council should also be created, with mandates given to specific leaders to work on specific issues, subject to the collective responsibility of the whole European Council.

Membership of sub-committees could be self-selecting, involving European leaders with interests, experience or public resources in particular policy areas which they are willing to put to the service of the EU. Sub-committees would report back to the full European Council (whether in "plenary" or "virtual" mode), which would adopt the requisite policy guideline or decision. (This approach would address one problem at present, which is that "junior" politicians, in the shape of the General Affairs Council are meant to prepare "senior" politicians, in the European Council. European leaders are, however, more likely to pay attention to advice from within their own ranks.)

Sub-committees could, by analogy with national cabinets, be created to deal with matters such as defence and external relations; energy policy and climate change; education and innovation; and so forth. The membership of sub-committees could be entirely open to those political leaders who had the confidence of their colleagues to prepare policy proposals and if agreed act on their behalf. Since nearly all public resources within the EU remain within the control of members of the European Council this could prove a powerful way of concentrating them and bringing them to bear on particular problems and their solutions. Virtually no problem faced by European leaders is not shared by others, or could not be better addressed by a pooling of experience and a collective view.

The use of sub-committees could, moreover, reinforce the continuity of action of the European Council. The timing and composition of meetings would depend on the problems to be addressed, rather than the calendar of the six monthly Presidency.

Mobilising Public Opinion: European leaders could also do much more, collectively and individually, both to carry public opinion with them in the objectives they have set, and also act as a sounding board, to whom members of the public can address concerns. This exists in a rudimentary form, for example in contacts with the European and national parliaments around the time of summits, but could be much more developed. Having adopted a collective policy position it would then be a matter of explaining why to their own electorates, and also persuading them of its merits. Equally, in the same way that national political leaders are responsive to national political concerns, a mechanism for communicating views, or putting questions, to Europe's collective leadership could be created, perhaps through a website, a system for petitions, or similar device. The object in both cases would be to use the European Council as a non-technocratic way of re-connecting public opinion with broader European concerns.

6. Conclusions

Other ideas for reform are of course possible.

The risk of the European Council being allowed to continue to drift from its original conception is that it may be relegated to what Walter Bagehot might have called the "dignified part" of the European constitution - a large scale, high profile spectacle attracting public attention but dissipating its authority and fundamentally incapable of meaningful action.

However, as, in the words of Javier Solana, the European Council "represents the unity between the Union, on the one hand, and its Member States, on the other, in its closest form" it is clearly worth attempting to ensure that it works as effectively as possible. Bagehot described the close union between the executive and legislative powers - connected by the cabinet - as the "efficient secret" at the heart of the nineteenth century English constitution. Can such a "secret" be rediscovered at a European level? The legislative system of the EU is comparatively sophisticated, and it is not obvious it needs a major overhaul at present, or in the light of enlargement. By contrast, policy-making at a European level remains rudimentary, in a comparative state of arrested development.

Waiting to change the Treaties means, however, waiting, at a minimum, for several years. Some things clearly cannot be done without Treaty change. But much could be done within existing Treaties. One option might be for members of the European Council to adopt more effective methods of working at an early stage on a trial basis by mutual consent - and then formalise any such matters requiring new legal arrangements at a later stage in a new Treaty. Or some simple changes to the 2002 "Rules for Organising the Proceedings of the European Council" might suffice. It is, after all, as a political rather than legal body that the European Council is pre-eminent. At root the organisation of much of their work is within the gift of the members of the European Council themselves.

There are many possible ways to regain the sense of confidence lost in Europe after the French and Dutch referenda. One is the straightforward one of better collective leadership, carrying out policy consistently and competently over time.

November 2006

(* David Harrison is an EU/competition lawyer, deputy director of the Council on European Responsibilities and a member of the conseil d'administration of the Association Jean Monnet. He has been a speechwriter for both the UK Foreign Secretary and the President of the European Bank for Reconstruction and Development.)

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