In the shadow of the European Council: When and how do national leaders influence everyday law-making?

This article analyses the role of the European Council in two key legislative packages on economic and budgetary coordination, the Six-pack and the Two-pack, which were negotiated under the ordinary legislative procedure. It assesses how and to what extent the key actor in the literature on the new intergovernmentalism – the European Council – is able to curb the powers of the supranational institutions – the Commission and the European Parliament – in a policy area where the community method has been applied since the Treaty of Lisbon. It tracks the development of the legislative negotiations – from the stages preceding the Commission’s proposal to their conclusions, relying on official documents, press reports and 30 original interviews with key decision-makers. The strong role of the European Council both as an agenda-setter and in the legislative negotiations stands out, and suggests that the implications of new intergovernmentalism may well extend beyond intergovernmental decision-making processes.

The European Council is one, if not the , key institution of the European Union (EU). Coming together for the first time about 50 years ago, in March 1975, the European Council comprises notably the Heads of State or Government of the EU member states, thus linking national and European levels. It takes important decisions in various policy areas and has regularly expanded the EU’s agenda and competences. In recent years, the European Council has acted as the prime crisis manager. At the same time, because of its requirement for consensus and its own small internal capacities, it is vulnerable to blockades and depends on other EU institutions for the preparation and implementation of its decisions. This article analyzes the European Council as key actor in the EU’s multi-level and multi-institutional system of governance. Comparing and bringing together different theoretical perspectives, it critically examines its various roles, functions, and shortcomings. Contrary to the predominant view, the European Council – despite its intergovernmental composition – tends to strengthen the EU’s supranational procedures. With this institution becoming ever more important and visible, the paper also suggests avenues for the further study of the European Council.

Despite the considerable volume of the Court of Justice of the European Union (CJEU) case-law on Treaty basis for secondary legislation, the claim that any doubts concerning the choice of the Treaty basis for secondary legislation in the area of environment and energy in the EU law have been clarified is incorrect. On several occasions, the choice of the proper legal basis for such a legal act gave rise to serious doubts. It was unclear whether the subject matter of the act determined the application of Article 192(1) TFEU (ordinary legislative procedure) or Article 192(2), first paragraph of the TFEU (special legislative procedure). The aim of this article is to analyse the control criteria for the check of the Treaty basis for secondary legislation in the area of environment and energy conducted by the CJEU. This issue is considered in a broader context of the Treaty provisions, practice and the CJEU case law. The utmost attention is given to the judgement of the Court of Justice of the European Union issued on 21 June 2018 in the case C-5/16, Republic of Poland v European Parliament and Council of the European Union, where the Court dismissed the action for annulment of the Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC. The Author of the article comes to the conclusion that the Court, when reviewing the choice of the Treaty basis for a legal act, considers mainly its purpose and content, while the likely impact is of secondary importance. According to the Author, the judgement of the Court in the case C-5/16, Republic of Poland v European Parliament and Council of the European Union is likely to impede the application of Article 192(2)(c) TFEU (special legislative procedure) as a proper legal basis for legal acts in the area of environment which may affect a Member State’s energy mix.

Under the EU founding treaties, the European Commission has been entrusted with a range of responsibilities, the most significant of which are the enactment and execution of EU legal acts. First of all, the Commission has a major role in proposing new legal acts and initiating common EU policies and measures. Concurrently, the Commission may be given the authority to adopt some general EU legal acts, acting either on the basis of the original powers it has been vested under the founding treaties or on the basis of rights it has been delegated by the European Council and the European Parliament. Yet, only in exceptional cases can the Commission act in the capacity of the holder of original powers; in most cases, it acts on the basis of the delegated authorities conferred by the Council and the Parliament. Finally, the Commission has executive powers, which are aimed at ensuring a uniform implementation of the legally binding EU acts. The Lisbon Treaty has brought significant changes in terms of the Commission's role in the process of enactment and execution of EU legal acts. Under this Treaty, the Commission has retained and partly extended its authority to propose new legislation in the legislative procedure, as well as its competences in the field of foreign and security policy, and police and judicial cooperation in criminal matters. In addition to the original legislative powers entrusted to the Commission, the Lisbon Treaty introduced a completely new category of legal acts into the EU legal system. The delegated acts are adopted by the Commission on the basis of the authorization contained in a legislative act for the purpose of supplementing or amending some non-substantial elements of that legislative act. In terms of the Commission's executive powers, the Lisbon Treaty still leaves the implementation of EU law and policies to the Member States. However, apart from the Commission and the Council, which may be entrusted with the implementation of legal acts, the Treaty introduced a new actor: the European Parliament, which is given the authority to participate in the regulation of the comitology system by adopting regulations in the ordinary legislative procedure. Although such a change is insufficient to deprive the Commission of its status of the chief executive authority, it is sufficient (particularly in light of the new regulation on comitology) to justify a conclusion about an altered role of the Commission in exercising its executive function in the EU legal system.

This paper examines the importance of human rights protection – in particular the European Convention on Human Rights – to the Council of Europe's survival as a political authority. Its underlying premise is that the proliferation of regional organisations in Europe in post-war Europe, and the creation of the Communities in 1958, contributed to a loss of a sense of purpose as to the Council of Europe's role in post-war Europe. Initial attempts to widen the scope of its political authority in relation to the Member States and other regional organisations were unsuccessful. It was, therefore, necessary for the Council of Europe to consolidate its existing mandate in ensuring the region's democratic security through human rights protection. Thus, led by its Parliamentary Assembly, Council of Europe institutions have, since 1949, provided the Member States with the necessary regional fora for examining and promulgating regional human rights legislation, such as the European Convention on Human Rights and its two additional protocols abolishing the death penalty.

Territorial Conflict, Domestic Crisis, and the Covid-19 Pandemic in the South Caucasus. Explaining Variegated EU Responses.

This article examines the European Union (EU)'s financial response to the COVID-19 pandemic. To do so, it traces the role of the European Council in the policymaking process for the establishment of two innovative financial instruments – the Recovery and Resilience Facility (RRF) and the general regime of conditionality (GRC) for the protection of the Union's budget, both adopted through the ordinary legislative procedure (OLP) of the supranational system. Combining insights from the ‘new intergovernmentalism’ and the ‘emergency politics’ literatures, the article argues that, in times of emergency, consensus becomes the guiding norm of European integration through the leading role of the European Council even in the context of majority-based supranational policymaking. The article shows that in both cases the European Council exercised quasi-legislative decision-making powers, thereby limiting the role of other EU institutions. This contributes to turning the post-Maastricht paradox of ‘integration without supranational policymaking’ into the new paradox of ‘intergovernmental integration within supranational policymaking’.

This chapter discusses the adoption of the Council on the provisions referred to in Article 187, which was proposed from the Commission and consulted after the European Parliament and the Economic and Social Committee. It mentions the European Parliament and the Council that will act in accordance with the ordinary legislative procedure and will adopt the provisions referred to in Articles 183, 184 and 185. It also highlights the adoption of the supplementary programmes that require the agreement of the Member States concerned. The chapter reviews the procedural provision of Article 188 TFEU that stipulates the ways in which the joint undertakings mentioned in Article 187 TFEU and the supplementary provisions on the multiannual framework programmes are to be adopted. It details how the former happens through a special legislative procedure, while the latter has the European Parliament (EP) and Council as co-legislators under the ordinary legislative procedure.

In November 2009, the European Council elected Herman Van Rompuy its first standing President, under the terms of the newly-implemented Lisbon Treaty. Using the analytical framework developed by Ingeborg Tömmel to assess the performance of three Commission presidents, this contribution examines Van Rompuy’s leadership in the European Council during two terms in office (2009–2014). First incumbents are generally influential in shaping the positions they occupy. Van Rompuy’s personal qualities helped him meet the demands of an inherently difficult job in an extremely challenging situational context. Yet, institutionally, the presidency of the European Council is a weak office. It brings prominence and close proximity to power, but not the potential of power itself. Nevertheless, Van Rompuy was an effective President because he understood the formal and informal rules of the game, making a modest contribution to leadership in the European Council during a severe financial and political crisis.

The ordinary legislative procedure of the EU consists of a process where the European Council proposes legislation and the European Parliament and the Council adopt it together. This codecision procedure was created by the Maastricht Treaty and balances three European interests: The European Parliament must protect the interests of the citizens; the Council must protect those of the Member States and the Commission must promote the general European Interest. The ordinary legislative procedure consists of three readings. First, the Commission submits a proposal to the EP and the Council. The plenary will then adopt or reject the proposal, with or without amendments. If the proposal cannot be adopted at the first reading, a second reading follows. The EP receives the Council’s position and must make a decision within 3 months after that. If the proposal is still not adopted, a Conciliation Committee is composed, that has the task of reaching an agreement based on the positions of the EP and the Council. In the past years, a trend can be seen where more and more proposals are concluded in the first reading. This shows the flexibility of the codecision procedure and the willingness between institutions to cooperate. The author concludes by stating that the European Parliament has become a real actor within this ordinary legislative procedure. She, however, warns about the potential lack of transparency that can take place within these trilogue discussions between the EP, EC and the Council. The European Parliament has taken new procedural measures to address this issue.

This article presents the findings of a statistical analysis of the major enlargement events of the European Union, NATO, and the Council of Europe - the establishment of institutionalized relations between the organization and outsider states, outsider states' application for membership, accession, and exclusion or suspension of membership. It is designed to test the 'liberal community hypothesis' about enlargement according to which the likelihood of these enlargement events depends on the degree to which states adhere to the constitutive liberal values and norms of these three regional organizations. The main results of the event history analysis corroborate the liberal community hypothesis: compliance with democratic standards is the only variable that is robustly significant across different organizations, events, and time periods.

The context of the current research is the crisis of the multilateral framework, since scepticism of effective multilateralism has been growing in recent years. The thesis focuses on the particular situation of the Council of Europe, and intends to examine the correlation between the soft power human rights instruments, the “normative institutionalism” and the classical, “power” realism. The dissertation aims to present one political (suspension of voting rights of the Russian parliamentary delegation in the Parliamentary Assembly of the Council of Europe) and one legal case study (reluctant implementation of the judgement of the European Court of Human Rights) to illustrate the political and legal difficulties the Council of Europe faces. After a qualitative analysis I seek an answer to the question, how the organisation can solve the challenges resulting from the reappearance of power realism in an intergovernmental organisation with the protection of human rights as a core mission. How, in other words, to solve its own Copenhagen dilemma. The concrete research questions are as follows: 1) “Could the recent political and legal challenges to effective multilateralism endanger the functioning of the Council of Europe in the long run?” 2) Could normative institutionalism prevail over the great powers’ geopolitical interests, and if so, to what extent?” The thesis also intends to examine the enlargement dilemma of the organisation in the mid-nineties, whether to invite the Eastern European countries to join before they were in compliance with the main standards or to delay their accession until their legal and institutional structures were closer to European standards. This Chapter is highly relevant for the initial hypothesis, which is that the Eastern enlargement with the accession of the Russian Federation as a great power largely contributed to the political and legal challenges of the Council of Europe. The way I intend to conduct the research is partly based on my personal experiences in 1999 and between 2011 and 2016 in the Council of Europe, when I served in Strasbourg, as deputy to the Permanent Representative of Hungary to the Council of Europe. In this capacity I actively participated in the work of four rapporteur groups preparing the decision-making process of the Committee of Ministers and in the Human Rights (DH) sessions of the Ministers’ Deputies responsible for the supervision of the execution of the Strasbourg Court’s judgements. I also followed the activity of the Parliamentary Assembly in recent years, between 2016 and 2020. In addition, I am currently the Hungarian delegate in two institutions of the Council of Europe, the Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI) and in the Governing Board of the Observatory on History Teaching. I also build on the evaluations of the semi-structured interviews with high-ranking officials of the Council of Europe and of the Hungarian foreign service. As the sources are very limited, there is no academic literature analysing these developments, the interviews with competent officials are of utmost importance. The list of interviewees covers different nationals of the Council of Europe working in the structure of the Committee of Ministers and the Parliamentary Assembly on the one hand, politicians of the Parliamentary Assembly and high ranking diplomats of the Hungarian foreign service on the other. It should be also noted that the structure of the thesis was determined in 2020, long before the war between the Russian Federation and Ukraine. However, this war in a neighbouring state has had a major impact on this research, therefore the exclusion of the Russian Federation from the Council of Europe, and its assessment will form an integral part of this research. Based on the conclusions of the thesis, the followings could be the new scientific results: • • Contribution to the general literature focusing on the future role of multilateral organisations; • • Providing a comprehensive analysis of the impact of political developments in the Council of Europe to the scientific literature; • • Chance to be the first to analyse the new complementary joint procedure; • • Based on the findings concerning their efficiency and capacity, the thesis could contribute to evaluating the role and opportunities of multilateral organisations, especially the Council of Europe; • • The conclusions of the research could assist the actions of the diplomacy in multilateral frameworks, contribute to fine-tuning the general perception of manoeuvring room in multilateral diplomacy.

The interaction of the EU institutions is aimed at aggregating a wide range of interests and ensuring the widest possible (preferably consensual) support for the policy. However, game theory reveals that the ordinary legislative procedure breeds competition between two co-legislators - the Council and the European Parliament - that seek to reflect their preferences within the legislative draft. This study attempts to assess the development of cooperative practices in the ordinary legislative procedure (since its establishment under the name “codecision procedure”) and the importance of these practices for the effectiveness of the legislative process. The development of cooperative practices is illustrated by three examples. First, the transformation of the rules of the third reading. Second, peculiarities of the Conciliation Committee functioning. Third, the development of trialogues and their main features.According to the results of the study, the author concluded that a set of cooperative practices between the EU Council and the European Parliament has been formed within the framework of the ordinary legislative procedure which is structured in a way that encourages co-legislators to cooperate and engage in intensive inter-institutional negotiations that complement the negotiations within each of the institutions. The reason for this is that the ordinary legislative procedure has a complex system of checks and balances. This allows a number of actors to block or delay the decision-making process. Complex procedure literally forces the EU institutions to come to a compromise. The ordinary legislative procedure as it was set out in the Treaties was supplemented by number of cooperative practices based on political agreements, which enhance a more effective interaction between institutions. The need to ensure the support of all (the vast majority) of the Member States in the Council and key political groups in the European Parliament prompts to take into account the whole spectrum of interests. As a result, it ensures high quality of decision-making process and high quality of governance.

The existence of political responsiveness in multi-level systems like the EU remains an open question despite significant recent research on the topic. This article studies whether the European Council responds to the shifting policy priorities of European citizens. More specifically, it explores the synchronic and diachronic associations between what people consider to be the most important problems and the political attention devoted to these issues from 2003 to 2014. The economic crisis after 2008 appears to have made the ranking of public concerns and the European Council agenda more alike. However, a detailed examination of the shifts in prioritisation of single issues over time reveals little evidence for dynamic issue responsiveness. Recently the European Council has paid more attention to the issues that the public considered the most pressing problems but the convergence could possibly be driven by the intensity of the underlying policy problems.

This article was written by Yuriy Pochta for the Council of Europe and was published in the spring of 2016 in the collection: Regionalisation trends in European countries 2007-2015. A study by members of the Group of Independent Experts of the European Charter of Local Self-Government / Editor: Prof. Francesco Merloni. Strasburg, 2016. Yuriy Pochta is a member of a group of independent experts of the Congress of Local and Regional Authorities, which is the pan-European political assembly representing local and regional authorities from the forty-seven member states of the Council of Europe. The Congress entrusted the Group of Independent Experts on the European Charter of Local Self-Government with the task of producing a comparative academic study. This study is based on information from Council of Europe member States affected by the regionalisation process and on recent regionalisation developments in Europe. The intention is to review the situation regarding regionalisation since the 2007 report of the European Committee on Local and Regional Democracy (CDLR). Following on from this, the idea is to achieve a broader understanding of the phenomenon from both the legal and institutional angles. The main aim of this study is to evaluate regionalisation trends, towards both more and less regionalisation, in individual countries and consequently in Europe as a whole. At the same time it seeks to determine whether the various countries considered actually have regional institutions as defined by the 2009 Council of Europe Reference Framework for Regional Democracy. In preparing his section on Russia, Yuriy Pochta proceeded from the fact that the modern Russian state emerged relatively recently - at the turn of 1980-90-s. of the 20th century and its formation, including its federal structure continues. It is shown that since 2007 the process of regionalization of the Russian Federation is developing successfully. Having opted for the creation of a democratic society, post-Soviet Russian Federation borrowed Western model, adapting it to its own circumstances. The impact of these conditions leads to the fact that it is quite difficult to relate the existing Russian federal system to the classic Western model. On this occasion Russian and Western scholars participate in a lively debate about the nature of Russian federalism - whether it is real or a simulation, whether it is in the crisis. But in 2014, in connection with the entry of the Crimea and Sevastopol to the Russian Federation, Russian federalism issues become even more urgent, raising a number of questions about the evolution of Russian federalism, the possibility of the organic integration of the two new subjects in the federation in a situation of sharp complication of Russia's relations with the West, led by the United States, caused by the political and socio-economic crisis in the Republic of Ukraine.