This short report has been prepared by the Council on European Responsibilities (COEUR).
COEUR was established to promote debate on the continuing construction of Europe and to suggest ways to balance the perceived ‘democratic deficit’. The aim is to ensure that the European Union is equipped to act politically under a shared collective responsibility fully accepted by all the citizens of the EU.
COEUR was launched in February 1999 with a discussion panel hosted in Berlin by the President of the German Federal Republic.
‘The Community, in fact, had an objective limited to the solidarities inscribed in the treaties, and although we always thought that these solidarities would call for others and little by little imply the widest integration of human activities, I knew that progress would stop at the boundary where political power begins. At that point we would need to invent once more.’ (Jean Monnet: Mémoires 1976, on the birth of the European Council)
2. The current position
3. The original idea
4. Optimum conditions
5. Practical suggestions
This report briefly describes the current working methods of the European Council. It recalls the original idea behind this body. It then sketches out how the European Council might potentially function under optimum conditions. Finally it lists a number of practical ways of improving working methods. The report draws on contacts with a range of people across Europe (listed in the Annex). Although there appears a wide consensus that the status quo is not satisfactory, the reforms suggested may well not be exhaustive. The European Council is a political body: and ultimately it is the prerogative of EU political leaders to decide on their own method of operation.
No treaty amendments are needed for the suggestions in this report. If agreed, any changes could be implemented relatively quickly.
The European Council (the regular EU summit meeting of heads of state or government, plus the President of the Commission) is of comparatively recent origin. In 1974 Community heads of state and government, meeting in Paris, decided that in order to provide a global approach to both internal and external Community business they should meet, accompanied by foreign ministers, three times a year ‘and whenever necessary’. In the Solemn Declaration on European Union adopted in Stuttgart in 1983 the European Council was agreed to give a general political impulse to European construction, defining its guidelines and setting the broad political direction for the European Communities as well as for European political cooperation.
These ideas have been incorporated into amendments of the treaties. In 1986 the Single European Act first referred to the European Council. Article D of the 1992 Maastricht Treaty on European Union stated that ‘The European Council shall provide the Union with the necessary impetus for its development and shall define the General political guidelines thereof.‘ Under Article 103 the European Council should, acting on the basis of a report from the Council, ‘discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community’. The 1997 Treaty of Amsterdam added at Article J.3 that ‘the European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications’. It went on to say that the European Council ‘shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.’ Under Article J.13 the European Council can resolve disagreements in the Council of Ministers on the implementation of such common strategies.
Although the European Council is the senior political authority in the EU, its precise legal status is peculiar. It is not, formally speaking, a European institution. Its working methods are not prescribed by the treaties. The conclusions of the European Council do not normally have the force of European law, but are instead declamatory or political in nature. This distinction is in fact crucial. EU law under the treaties has formally to be proposed by the Commission and adopted by the Council of Ministers and European Parliament. It is subject to the ultimate review of the Court of Justice and may well, depending on its nature, bind all EU citizens and be of direct effect in national courts. Conclusions of the European Council, by contrast, may have great political importance in the EU and member states but require further translation into EU legislation to have such legal effect. In 1994 the European Court of First Instance ruled in Roujansky v Council of the European Union (where a private citizen attempted to annul a declaration of the European Council on the date of entry into force of the Maastricht Treaty) that because Article 31 of the Single European Act expressly excluded the application to the European Council of the provisions of the Treaty concerning the jurisdiction of the Community judicature, and because this exclusion was maintained by Article L of the Treaty on European Union, the Court was not competent to review a declaration of the European Council.
Although not a legislative body, heads of state and government meeting in the European Council possess great political authority. Current practice is that the European Council meets formally at least twice a year, in June and December, and usually (informally) more often. Major EU decisions are frequently reserved for heads of state and government by the Presidency of the day. Many important initiatives have been taken at this level. Examples include the launch of the European Monetary System; the decision to elect the European Parliament by universal suffrage; and, more recently, the adoption of the Agenda 2000 package to prepare for enlargement to the east and the designation of a High Representative for Common Foreign and Security Policy. Observers agree that at its best the European Council can be a most impressive, flexible and informal political body, responding decisively when important strategic issues are at stake.
But certain aspects are more unsatisfactory. Formal European Councils in the EU of the Fifteen tend to be large, cumbersome, two-day conferences, high profile in nature and attracting an enormous media presence. Up to 10,000 people may gather at such conferences (of whom a tiny proportion are real participants). In the summit meetings the time taken for discussion of any one subject by political leaders from fifteen member states, plus the Commission, makes it physically impossible to do justice to more than about four items on the first of the two days: while the second day tends to be dominated by detailed discussion of the technical conclusions normally produced overnight by officials. The conclusions themselves are issued in the name of the Presidency, and frequently bear little relation to what political leaders have actually discussed. Conclusions have grown ever longer (those of the Vienna summit in 1998 ran to 31 pages; of Cologne in 1999 to 44 pages) and are encyclopaedic in character, referring tangentially to almost everything happening in Europe and the world beyond. Important items are mixed in with routine exhortations (‘The European Council welcomes the Council’s second progress report on reinforced tax policy cooperation and invites a third report by the time of the Helsinki European Council’). The consequence is that the political authority of EU leaders and any clarity of strategy tends to be lost in an excess of technical detail, which cannot be understood by non-experts, or the European public at large.
The original idea behind what became the European Council was to create a high level authority which would act to impress a unified European political view on technical ministers meeting in the Council, hitherto operating solely according to national instructions. In 1973 Jean Monnet proposed to European political leaders that, to overcome decision-taking blockages resulting largely from the habit of unanimity in the Council since the 1966 Luxembourg compromise, ministers in the Council should be subject to a new source of common instructions emanating from heads of state and government themselves, meeting in a new European configuration to be called a ‘Provisional European Government.’ The ‘Provisional European Government’ would oversee the programme for the establishment of a European Union, agreed in 1972, with heads of state and government thereby taking personal responsibility to implement what had been agreed. Summit meetings would be regular (once a quarter) but not protocol-driven, and would focus not on technical issues but rather on a few major political questions, debated freely in a confidential collegiate manner, somewhat akin to national Cabinet discussions.
The situation facing the EU today is of course different. The return in the 1980s to more majorities voting on single market issues has unblocked much technical legislation in the Council. The bulk of such legislation is now, under the Amsterdam Treaty, subject to co-decision with the European Parliament. The Community itself has become the European Union. Yet the need for a high level authority, taking a strategic view of the broad political questions, appears as great as ever. Many of the major new policy areas facing the EU today (foreign policy, defence issues, economic coordination etc) require a political rather than legal response. As a political body the European Council is unique in that it can operate on two distinct levels. On one level it can set the general strategic direction of the EU as a whole, including giving a political view on the extent of EU legislation to be proposed by the Commission for decision by Council and Parliament. The President of the Commission, as a member of the European Council, is directly involved in this process. But on another level political leaders meeting in the European Council can also, subject to domestic constitutional constraints, commit the national administrations of the member states to act together according to agreed courses of action. If agreement can be reached, the resources which can be mobilised are potentially vast.
Under optimum conditions the European Council would become much more forward-looking and strategic in nature. Rather than reacting to policy problems thrown up by technical Councils on a six monthly Presidency-to-Presidency cycle, EU leaders would themselves more actively set the EU policy direction, set their own agenda (including which technical items they were prepared to discuss), plan the forward programme of EU business (and, as in national governments, review progress), issue only concise and clear press statements when there is something to say and, as necessary, give guidance or instructions to national authorities to pursue agreed European policies. The European Council would, in effect, act more like a national Cabinet, exercising collective responsibility by determining forward-looking policy at a European level and co-ordinating the optimum EU and national response to shifting circumstances. The current order would thus be reversed: rather than starting from existing EU procedures and dealing with policy problems which happen to fit them, the European Council would work backwards from real policy problems which it wanted to address in the real world, deploying the most appropriate administrative response to the case. And, having set objectives for the EU, one vital task for the European Council would then be to mobilise public opinion in favour of those objectives. The crucial right of the Commission to initiate legislation would remain unaffected: but (as in national Cabinets) legislation need not be the sole policy option available.
Several observers have stressed the value of the informal nature of European Council discussions, so that political leaders can address a few major, non-technical, subjects in a frank and effective manner. The question is how to organise such informality, to ensure that only key issues are discussed and any agreements are implemented. Formal summit meetings may still be required to do this, but informal sessions should also be encouraged. In addition, modern communications systems may help: when political leaders know and trust one another routine business (as well as some sensitive matters to be handled beyond public gaze) might effectively be despatched between summit meetings through direct communications contacts. (Such an approach might also help surmount language difficulties). As in many large international businesses (where key assets are not so much tangible things but rather the skills involved in linking solutions to particular needs), problem-identifying and problem-solving do not require everyone to be under the same roof.
In meetings themselves, because the European Council is a political body it is not really necessary to duplicate Council machinery primarily designed for law-making. Instead, European Council members could evolve working habits more suited to the issues under consideration (which, potentially, might range very widely). Not all participants, for example, should feel the need to speak on every subject: only those who want to or can contribute to a particular project might do so. An informal majority in the European Council might suffice to adopt a particular policy direction, provided that only those who agree should be bound to take action. To strengthen the collegiate nature of discussions a new rule of collective responsibility might be adopted, whereby criticisms of a policy direction, once embarked upon, might be made privately between colleagues but not publicly. Such a rule can work in practice even in countries with coalition governments.
Although it may be that, for constitutional or other reasons, some member states might be more capable of action in some fields than others (eg operations requiring a military input on behalf of the EU) it is extremely important to avoid a directoire, or domination of the European Council by a handful of larger member states. One answer is to develop the delegation of tasks, so that member states (or individuals or agencies) with particular specializations or expertise in certain fields have the responsibility to operate on behalf of the EU as a whole. The aim always would be to use the best available expertise on a given question, raising the standard of European policy response to a given problem as high as possible. Experience suggests that individuals and administrations can adapt quite easily to the demands of wider European responsibility.
In some member states it may be that ministers other than heads of state or government have responsibility or expertise in European affairs. Rather than add to the numbers involved at European Council level it may be possible for such ministers to substitute for their leaders, by common consent.
Once agreement has been reached at European Council level on a particular policy objective the range of policy instruments available may in fact be quite large. In some cases formal EU legislation may still be appropriate, whether in the form of regulation, directive or decision, subject to existing treaty rules (ie Commission proposal to the Council etc), but placed within easily understood long term policy objectives. In addition, the European Council could issue general policy statements engaging the authority of the EU as a whole (implying also a responsibility to explain them to domestic public opinion). Where legislation is not the answer but there is existing EU machinery that in itself could be directed to address the policy problem in question. Where there is not EU machinery the national administrations and resources of the member states might be directed to address the issue. At this level several variations may be possible, depending partly on differing constitutional considerations. National administrations might be directed to act collectively; specialized ad hoc agencies might be instituted; certain national administrations might act together on behalf of the EU; or even certain specific public authorities or agencies might be given a mandate to work together in the form of an ad hoc task force to achieve certain policy goals over a given period. At the opposite end of the spectrum from formal legislation, single member states, or even single individuals, might be given delegated political authority to handle, on behalf of the European Council, matters requiring particular delicacy or expertise. From such a wide range of possible policy instruments that most proportionate to the problem to be addressed should be selected.
It may well be necessary to retain the existing regular formal summits of the European Council, but even here there is room for much better preparation of discussion and also follow up of political agreements. The conclusions of the European Council could be radically recast, so they both focus on a few key points and also explain more to public opinion what is at issue. Some mechanism would be required both to filter business submitted to the European Council and also to ensure agreed policies are carried out.
The relaunch of the European Council as Europe’s political authority would be both a relatively simple and speedy way of reconnecting European public opinion with European integration through the medium of recognised and familiar political leaders, and also a way of enabling the EU to address some major new policy areas. Economic integration in Europe began in 1950 with the Schuman Plan and the heavy fixed industries of coal and steel. Today, half a century later, the legal and institutional foundations of an economic unity are in place. European law takes precedence over national law; eleven of the twenty most productive economies in the world are members of the EU; a single currency has been launched; and the basic EU structure has proved robust enough to outlive the cold war. The question now is how to build on this undoubted success and move from the economic to the political plane. A refocused European Council, with political leaders fully exercising collective responsibility, could have a vital role to play in this process.
Modifications of existing European Council practice can be considered under three headings:
- Only major strategic questions and essential matters should be considered at European Council level. This may mean employing a filter mechanism, involving either trusted political advisers, or else ministers, responsible for keeping agendas short and, if necessary, agreeing secondary questions on behalf of political leaders;
- Alternatively, the Presidency of the day could keep matters off the European Council agenda by deeming non contentious items to be agreed in advance, either by a written or silent procedure (under which absence of comment within a given period would imply assent). (This implies building on regular communications links between political leaders and/or their offices);
- The Presidency of the day should not handle the European Council solely as the culmination of its own (short) six-monthly programme but rather as a standing political authority with long-term objectives of its own:
- The European Council should in any case no longer function as a General court of appeal from lower Councils (unless there is specific authority, such as in Article J.13 of Amsterdam). Reforms to Council working procedures already under discussion (on the basis of the Trumpf-Piris report) should help in this area. In extremis only members of the European Council themselves should be allowed to raise matters still under discussion at a lower level;
- Any papers submitted from within the EU machinery (eg specialist Councils) should be very short and non-technical, and indicate clearly what has or has not been achieved so a check can be kept on progress;
- Advice on political issues could be brought in from outside the formal EU machinery(academic institutions, think tanks etc) to provide a fresh perspective. Possibly a small planning cell or policy unit, working with political offices, could coordinate this.
- Experience suggests by far the most valuable summit meetings are those conducted with the greatest informality and the least number of outsiders (other ministers, officials etc). The ideal is for meetings to be held in one small room with only one official note-taker (from the Council Secretariat) and, possibly, one personal adviser for each leader. Heads of state/government could, if they choose to, seek rapid advice from their national governments by mobile phone. Other ministers or advisers might listen in to proceedings on a relay (if political leaders agree);
- As well as formal summits, modern communications should also be exploited to create permanent links between EU leaders and/or their offices, so allowing routine and/or urgent business to be despatched (and also, if necessary, allowing contentious items to be discussed away from public gaze). Fixed periods in the week/month might be allotted to dealing with ‘European Council business’;
- More innovatory methods of debate should be encouraged at meetings of the European Council, possibly based on themes or presentations from experts or personalities with something interesting to say – or prominent individuals, such as heads of state/government, appointed to delegated tasks. Structured seminars might work (eg on economic themes, not hitherto discussed in depth at European Council level);
- Conclusions of summit meetings should be quite brief and should only reflect those issues actually discussed. Items not discussed (eg routine foreign policy declarations) should not be mentioned;
- Separately, press statements might better explain the background to some issues to the European public. It might be useful to issue progress reports indicating what has or has not been achieved across the board.
- Where major policy objectives are set, this should imply a responsibility to mobilise European and national public opinion behind them;
- The Commission and Council Secretariat should (as now) ensure follow-up of matters where there is EU machinery. Where there is not EU machinery political advisers/ministers should ensure the coordination of any national administrative action. Timetables and checklists should be kept so that progress can be followed;
- Advisers/ministers should ensure that where tasks have been delegated by the European Council to special representatives etc appropriate administrative support is available;
- Where task forces or other ad hoc forms of administrative arrangement have been agreed, advisers/ministers should agree a coordination mechanism, terms of reference, timetable and reporting schedule;
- Consideration should be given to devising a new instrument which translates political agreements in the European Council into binding form, without necessarily involving formal legislation or rendering acts of the European Council justiciable in the Court of Justice. Ad hoc vehicles (such as agencies to execute certain new tasks, like the organization of defence procurement), might be devised.
COEUR has greatly benefited from contacts and advice from the people listed below. None, however, is committed in any way to the detailed suggestions in the report.
Andreas van Agt
Hans van den Broek