The role of the European Council in External action and CFS/DP – de facto decision-maker? The role of the European Council in External action and CFS/DP – de facto decision-maker? The role of the European Council in External action and CFS/DP – de fa

VIІI Международная научно-практическая конференция

«Научная мысль информационного века – 2012»

Экономические науки/ 2.Внешнеэкономическая деятельность.

Dinara Aitkazy

student of Master EUCAIS program

The role of the European Council in

External action and CFS/DP – de facto decision-maker?

I. History of the European Council as an institution of the European Union.

The European Council is the institution of the European Union (EU) responsible for defining the general political direction and priorities of the Union.

Why the European Council was founded?

The first European Council arose out from summit meetings of the Heads of the State and/or Government in February and July 1961 (Paris and Bonn correspondingly). They were informal summits of the leaders of the European Community and were started due to then-French President Charles de Gaulle's resentment at the domination of supranational institutions (e.g. the European Commission) over the integration process. At the 1972 on Paris Summit it was agreed to hold meetings on a regular basis, and since then Heads of Government, accompanied by their Foreign Ministers have met three times a year as a European Council. Loose rules of procedure for these meetings were agreed in 1977 [1].

At the 1969 on Hague Summit the United Kingdom was admitted into the Community and foreign policy started taking larger cooperation and integration beyond economics.

At the December summit in Paris in 1974, following a proposal from then-French President Valéry Giscard d'Estaing, it was agreed that more intergovernmental, political input was needed following the monetary instability after the break-up of Bretton-Woods, a war in the Middle East and the oil and energy crisis. The inaugural European Council, as it had become, was held in Dublin on 10-11 March 1975 as it was agreed by the Ministers of Foreign Affairs on 21 January 1975 [2].

European Council’s milestones: Single European act and Lisbon treaty

Single European Act (was signed at Luxembourg on 17 February 1986, and at Hague on 28 February 1986; came into effect on 1 July 1987) first introduced the European Council in the founding Treaties of the Communities. This was a revision, a modification of the original Treaties, it devoted only one article (Article 2) in which it defined European Council’s composition and the frequency of its meetings (at least twice a year), but not its functions. Thus, the European Council is given formal recognition as a Community institution. But these meetings have been outside the ambit of the Treaties, in that they were not formally constituted meetings of the Council of Ministers, and the subjects discussed are certainly not restricted to issues regulated by the Treaties. Any decisions taken, which have usually been on broad policy issues, were not part of community law [3].

In 1993 the European Council went a step further and formally defined for the first time role and tasks in the Maastricht Treaty [4]. In article 4 of the TEU, European Council also submitted the same frequency of meetings as it was in the Single European Act (at least twice a year).

Treaty of Lisbon (was signed by the EU member states on 13 December 2007, and entered into force on 1 December 2009) has clarified the institutional architecture of the European Union and fully recognized the role and functions of the European Council within the EU: «…The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof. It shall not exercise legislative function» [5]. Thus, even though the European Council became one of the institutions of the EU and gives the major impulse to EU development, it has no formal legislative power.

Evolution of European Council: rising significance

The emphasis in the European Council had traditionally been upon broad issues of policy often relating to matters outside the sphere of Community competence [6]. According to the Lisbon Treaty the European Council is the institution of the EU responsible for the next policy directions:

§ defining the general political direction and priorities of the EU;

§ police and justice planning,

§ foreign policy and constitutional matters, including: the composition of the Parliament and Commission;

§ matters relating to the rotating presidency;

§ the suspension of membership rights;

§ changing the voting systems in the treaties bridging clauses;

§ nomination the President of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy.

The rising significance of the European Council can be seen from the fact that with time it developed from informal summit into the body which fixed goals for the EU and set the course for achieving them in all fields of EU activity. The European Council comprises the heads of state or government of EU member states, President of the European Council and the President of the Commission. In practice, the European Council meets at least four times a year with possibility of extraordinary meetings in exceptional circumstances [7]. Although the European Council’s decisions do not represent Community law, they have, nevertheless, always had significant influence on the Community and its policies.

One of the examples of increased significance of the European Council could be the October European Council (held on 18-19 October 2007) that was responsible for the preparation of the final drafts of the Lisbon Treaty. The group of legal experts from all Member States led by the President-in-Office of the European Council José Sócrates ensured the successful signing of the Treaty through a few last-minute rebates. Namely, Poland was given a stronger wording for the procedure of voting in the European Community (from 2014 a new version of the 1994 "Ioannina Compromise" should take effect, which would allow small minorities of EU states to call for re-examination of EU decisions they do not like) and an additional Advocate General at the European Court of Justice.

II. Main functions of the European Council

For better understanding the CFS/DP functions realized by the President of the European Council, I will elaborate more on the role of the European Council President and his competences.

European Council President’s competence and limitations regarding the CFS/DP.

Article 15.5 of the Lisbon Treaty defines that the European Council’s President is elected by the European Council by a qualified majority for a term of two and half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end President’s mandate according to the same procedure.

The European Council President's work is largely administrative. Main responsibilities include:

§ coordinating the work of the European Council, which includes chairing the European Council and driving forward its work, ensuring its proper preparation and continuity in cooperation with the President of the Commission;

§ efforts to facilitate cohesion and consensus within the European Council;

§ presents a report to the European Parliament after each of European Council’s meeting;

§ ensure the external representation of the Union on issues concerning common foreign and security policy, without prejudice to the responsibilities of the High Representative [8].

The Constitution provides that the President of the European Council may not hold a national mandate at the same time. It will therefore be impossible for a sitting Head of Government of a Member State to be President of the European Council. This is because of the burden of work associated with the Presidency of the European Council, particularly in an enlarged Union of 27 Member States. However, this does not prevent the President of the European Council from holding another mandate at the same time within another European institution. This allows for the possibility, in future, of combining the functions of President of the European Council with those of the President of the Commission, if the Member States so wish. Following the ratification of the treaty in December 2009, the European Council became one of the seven institutions of the Union and elected the then-Prime Minister of Belgium Herman Van Rompuy as its first permanent President (resigned from Belgian Prime Minister) [9].

European Council’s competence regarding the CFS/DP.

The Common Foreign Security Policy (CFSP) was established under the Maastricht Treaty in 1992 (came into effect in 1993, and strengthened under the Amsterdam Treaty in 1997, which entered into force in 1999).

The European Security and Defense Policy (ESDP) was created the operational arm for the CFSP under the Amsterdam Treaty. The CFSP further reinforced under the Nice Treaty in 2001 (entered into force in 2003).

The main objectives of the CFSP under the TEU are:

§ to save the common values, fundamental interests, independence and integrity of the EU;

§ to strengthen the security of the EU;

§ to preserve peace and strengthen international security;

§ to promote international cooperation,

§ to develop and consolidate democracy and the rule of law, respect for human rights and fundamental freedoms.

Since the beginning, foreign and security policy has been an important item at the European Council’s summit meetings.

European Council declarations gave important steps forward in the developing of common positions on foreign policy: Venice (June 1980) - on the Middle East peace Process; Hague (June 1986) – on sanctions against South Africa; Madrid (June 1989) – on relations with the USSR and Eastern Europe on the siege of Sarajevo; Cannes (June 1995) – on the financial agreements for eight European Development Fund for Africa; Berlin (March 1999) – on the adoption of two statements on Kosovo; Brussels (September 2001) – on the fight against international terrorism [10].

What are the relationship of the President and HR regarding CFS/DP?

In addition to the European Council President’s mostly representative functions, Treaty of Lisbon created a High Representative of the Union for Foreign Affairs and Security Policy (in the proposed constitution this post was called the Union Minister of Foreign Affairs, Treaty of Amsterdam). In fact it was a merger of the two posts - High Representative for the Common Foreign and Security Policy and the European Commissioner for External Relations and European Neighborhood Policy. The new High Representative will be ensuring coordination in the EU foreign security policy, become a Vice-President of the European Commission for external action and the administrator of the European Defense Agency with the right to propose defense or security missions.

According the Lisbon Treaty High Representative may represent the Union’s position in the Security Council. In case that a common approach of the Union would be defined by the European Council, High Representative has to coordinate European Council’s activities within the Council [11].

Under the article 18.2 of the Lisbon Treaty, the High Representative “shall conduct the European Union’s CFSP”. At the same time, according to the article 26.1of the same treaty, the President of the European Council “shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for CFSP, including for matters with defense implications. It shall adopt the necessary decisions”.

Moreover, the High Representative takes part in European Council meetings, which are chaired by European Council President. That means that the High Representative has an influence in the questions related to the CFSP and CSDP via proposals, suggestions and activities.

How they share a job? President’s everyday activities on behalf of CFS/DP?

The formulation “…The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy” [12] shows that Treaty formers conjecture to appear the potential conflict between the roles of President of the European Council and High Representative.

The tasks and responsibilities of the European Council President on behalf of CFS/DP are not as clear as they are described for High Representative. It looks like the main task if the European Council’s President add up to promote consensus among all Members of the European Council, after which the European Council’s President has to captain the implementation of the European Council’s decisions into the life. But in addition to the role of the representative chairperson of the European Council, the President of the European Council also has to play the role of “President of Europe” in international arena.

As example of that is the active participation of the European Council’s President in the recently top level meetings with third countries:

1. EU-RUSSIA SUMMIT (Rostov-on-Don, 31 May 2010 - 1 June 2010)

2. EU-PAKISTAN SUMMIT (Brussels, 4 June 2010)

3. EU-BRAZIL SUMMIT (Brasilia, 14 July 2010) - the 4th EU-Brazil Business forum

4. EU-SOUTH AFRICA SUMMIT (Brussels, 28 September 2010)

5. ASEM SUMMIT (Brussels, Palais Royal, 4 - 5 October 2010)

6. EU-REPUBLIC OF KOREA SUMMIT (Brussels, 6 October 2010)

7. EU-CHINA SUMMIT (Brussels, 6 October 2010)

8. G20 (planning: Seoul, 11 - 12 November 2010)

Analysis of the agenda of upper mentioned meetings showed that the main discussed issues were in following context:

1. The global economic and financial crisis;

2. Strengthening the strategic dialogue and partnership;

3. Climate change and energy issues;

4. Democracy, governance and the promotion of human rights;

5. Security and bilateral issues; as well as Euro-Atlantic Security;

6. International and regional issues, in particular the Iranian nuclear program, the Middle East peace Process, Georgia and Moldova/Transnistria and the situation in Afghanistan and Pakistan, Review the situation of the Latin America region ;

7. G-20 Toronto Summit;

8. EU Neighborhood Policy;

9. EU 2020: a new Strategy for jobs and growth; and others.

Moreover, the closer look at the Presidency Conclusions (PC) in the light of external actions of the European Council in 2009 showed the following results:

· PC dated 19-20 March 2009 (Brussels) – agreed a Declaration launching the Eastern Partnership;

· PC dated 18 -19 June 2009 (Brussels) – underlined the strategic importance of transatlantic relations, reconfirmed the great importance of stability and security in Afghanistan, Pakistan and the wider region and adopted declarations on Iran and the Democratic People’s Republic of Korea;

· PC dated 29-30 October 2009 (Brussels) – established the position of the EU with regard to the forthcoming Copenhagen Conference, adopted the EU Strategy for the Baltic Sea Region, addresses the situation in Afghanistan/Pakistan;

· PC dated 18-19 June 2009 (Brussels) – adopted a new multi-annual Stockholm Programme for the years 2010-2014 an area of freedom, security and justice and adopted declarations on Iran and Afghanistan.

The European Council Conclusions of the year 2010 (25-26 March 2010, 17 June 2010, 16 October 2010 and 28-29 October 2010) were focused on Strategy of Europe 2020, Climate change, discussion on forthcoming G20 Toronto Summit, UN Millennium development goals, Orientation for upcoming events (Summits with China and Republic of Korea and Asia-Europe Meeting (ASEM) and India.

According to the conclusions of the European Council (October 2010) next political key messages will be promoted by the President of the European Council (and the President of the Commission) at the forthcoming summits with the United States, Russia, Ukraine, India and Africa [13].

From checking out the homepage of the President of the European Council, I can say there is no doubt that the European Council accomplish an important role, though giving to foreign policy a respectful visibility and resonance which could not be reached at another level [14].

The question is – Whether they all need to be made at the highest level? To answer that question, I checked out the current agenda of the High Representative:

· Declaration on recent legislative developments in Guatemala concerning the death penalty (20 October, 2010);

· Declaration on the OHCHR Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003 (6 October 2010);

· Declaration on the elections in the Bolivarian Republic of Venezuela (28 September 2010);

· Declaration on political prisoners in Eritrea (21 September 2010);

· Declaration on the occasion of the International Day of Democracy on 15 September (15 September 2010);

· Declaration on the fifth Anniversary of the signature of the Aceh MoU and Aceh's peaceful evolution (15 August 2010);

· Declaration on the sentencing of 7 Baha'i leaders (12 August 2010);

· Declaration on the International Day of the World's Indigenous People (9 August 2010);

· Declaration on the approval of a new Constitution in Kenya (5 August 2010);

· Declaration on the Convention on Cluster Munitions (1 August 2010);

· Declaration on Syria Human rights cases (27 July 2010).

The High Representative also was dealing with the Middle East peace process, has been mandated to represent international community in conducting talks with Iran on its nuclear program, led the EU's active role in a number of countries in the Western Balkans, Central and Eastern Europe.

As we see the High Representative lately was occupied by Declarations, but if situation required High Representative participated in more complicated questions. Probably the best answer to the upper mentioned questions would be: in the modern diplomacy style, which packed of new elements of declarations, agreements, memorandums, contacts and meetings at the highest level, the position of High Representative allows EU participate in that worldwide activity.

The High Representative's role, under the Treaty, is to assist the Presidency in formulating policy in that context. A new institution “European External Action Service” will assist the High Representative to “fulfilling his mandate” [15], to ensure the consistency and better coordination of the European Union's external actions.

The European Defense Agency - the CFSP body - which was set up on 12 July 2004 has been included in the Lisbon Treaty “to improve military capability” of the EU [16]. According to the Joint Action of the Council, which established the EDA, it is said that the High Representative should have a “leading role in the Agency’s structure”. Thus, the High Representative became the Head of the Agency with overall organizational and functional responsibilities, including assurance for all implementation of guidelines and decisions.

Furthermore, High Representative is responsible for informing the European Parliament about “main aspects and the basic choices” of the CFSP [17], and at that point High Representative works with the President of the European Council who prepare a report for the European Parliament after each meeting of the European Council.

From the upper-mentioned, we see that the President of the European Council as a representative of the European Council has very strong potential impact, plays “strategic” role and might be perceived as the main "spokesperson” of the EU in all matters of international interest.

At the same time High Representative, as Ukrainian ambassador Andriy Veselovsky said "specialized on bilateral relations"[18], and plays more “tactical” role through focusing on assistance to the European Council’s President in formulating policy.

Nevertheless, it is not clear how the EU external representation will be “shared” between these two positions in everyday practice (when things go more complicated) and it looks like in the future the EU might have at least “two figures” of external representation.

III. Is the European Council a decision-maker in CFS/DP? (de facto vs de jure)

Summarizing all upper mentioned, the European Council is the institution that can be considered as the supreme political authority of the EU, which plays a leadership role in all fields of EU activity, including international relations.

According to the Lisbon Treaty the European Council identifies the EU’s strategic interests, determines the objectives of and defines general guidelines for CFSP, including defense implications, and adopts the necessary decisions.

In fact the European Council has no formal legislative power. However, the European Council deals with major issues and can influence decision making in practice. Essentially, it gives a major impulse in defining the general political guidelines of the EU and has thus been considered to be the motor of European integration.

As I mentioned before on the second section of this paper, since the beginning, foreign and security policy has been an important item at the European Council’s summit meetings. Basically, the European Council declarations gave important steps forward in the developing of common positions on foreign policy: Venice (June 1980) - on the Middle East peace Process; Hague (June 1986) – on sanctions against South Africa; Madrid (June 1989) – on relations with the USSR and Eastern Europe on the siege of Sarajevo; Cannes (June 1995) – on the financial agreements for eight European Development Fund for Africa; Berlin (March 1999) – on the adoption of two statements on Kosovo; Brussels (September 2001) – on the fight against international terrorism.

There is no doubt that the European Council accomplish an important role as de facto decision-maker, though giving to foreign policy a respectful visibility and resonance which could not be reached at another level.

To sum up, this paper examines the developing of the European Council from informal summits to the institution of the EU, gives emphasis to the President of the European Council and his relationship with the High Representative for CFSP, gives efforts to answer the question how they (High Representative and President of the European Council) share their job and defines the role of the EC in external actions and CFS/DP as a de facto decision-maker.

References:

1. Freestone, D., Davidson J.S. (1988) The Institutional framework of the European Communities, Chapter 3, p. 56. USA, New York: Croom Helm in association with Methuen, Inc.

2. European Council in Dublin 10-11 March 1975, Background notes, The European Council, Commission of the European Communities the Spokesman’s Group, p. 16. Available from: http://aei.pitt.edu/1921/01/Dublin_march_1975_dossier.pdf (accessed 24 October, 2010).

3. Freestone, D., Davidson J.S. (1988) The Institutional framework of the European Communities, Chapter 3, p. 56. USA, New York: Croom Helm in association with Methuen, Inc.

4. Treaty of the European Union, Articles 4, 13, 17 and 40

5. Treaty of the European Union Article 15.1

6. Freestone, D., Davidson J.S. (1988) The Institutional framework of the European Communities, Chapter 3, p. 56. USA, New York: Croom Helm in association with Methuen, Inc.

7. Official website of the European Union. Available from: http://ec.europa.eu/archives/european-council/glance/index_en.htm (accessed 26 October 2010).

8. Treaty of the European Union, Article 15.6

9. Official website of the European Union. Available from: http://ec.europa.eu/archives/european-council/glance/index_en.htm (accessed 26 October 2010).

10. Schoutheete, Ph., Wallace, H. (2002) ‘The European Council’, Reserch and European Issues,19, p. 12. Groupment d’etudes et de recherché Notre Europe. Available from: http://www.notre-europe.eu/uploads/tx_publication/Etud19-en.pdf (accessed 3 November, 2010).

11. Treaty of the European Union, Article 32

12. Treaty of the European Union, article 15.6

13. Official web-site of the European Council, available from http://www.european-council.europa.eu/the-president/summits-with-third-countries.aspx?lang=en, last access; 2 November 2010).

14. Official web-site of the Council of the European Union, available from http://www.consilium. europa.eu/show Page.aspx?id=248&lang=EN, last access: 2 November 2010).

15. Treaty of the European Union, Article 27.3

16. Treaty of the European Union, Article 42.3

17. Treaty of the European Union, Article 36

18. Rettman, A. (2010) ‘Ukraine gives positive appraisal of new-model EU’, EU Observer. Available from: http://euobserver.com/9/29680 (accessed: 2 November, 2010).