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Bruno de Witte is professor of European Union law at Maastricht University, and part-time professor at the European University Institute (EUI) in Florence. He is co-director of the Maastricht Centre for European Law. The general theme of the talk is the uneasy fit of the European Council within the EU’s separation of powers. It is arguably situated both ‘outside’ and ‘above’ the EU’s system of separation of powers.

Event details of The European Council: Above and Outside the EU's Separation of Powers?
Date 22 March 2021
Time 15:30 -17:00

Abstract

As an EU institution, the European Council is bound to respect the institutional balance established by the Treaties, i.e. it should not encroach on the powers of the other institutions. This rule is judicially enforceable where the Treaties give a formal decision-making role to the European Council, as for example when it decides simplified revisions of the Treaties under Article 48 (6) and (7) TEU (confirmed by the Pringle judgment).

However, its general institutional role, as described in Art.15 (1) TEU, is to “provide the Union with the necessary impetus for its development and define the general political directions and priorities thereof.” This priority-setting activity is very broad and has no clear boundaries, but does not take the form of legally binding decisions. The European Council’s Conclusions typically contain calls for action by others, whether the other EU institutions or the member states. When doing this, the European Council remains outside the EU’s separation of powers.

In fact, though, Art.15 TEU gives only a partial and therefore distorted picture of the role played by the European Council. As argued by Van Middelaar, the European Council plays five different roles in the EU’s political system, depending on the circumstances: the European Council acts as strategist (the role described in Art. 15), but also as crisis tamer, as impasse-breaker, as shaper and as spokesperson. In some of these other roles, it is more likely to interfere with the EU’s institutional balance and of trying to situate itself above the EU’s separation of powers.

Its activity in 2020 provides some interesting examples of this.

The European Council Conclusions of July 2020 contained a very detailed political agreement on the content of the Next Generation EU package (the EU’s Covid recovery plan), as well as on the Multiannual Financial Framework (MFF) for 2021-2027, some 65 pages of text altogether. Was this ‘shaper’ act an interference with the legislative and budgetary powers of the other EU institutions?

The European Council Conclusions of December 2020 sought to tweak the Regulation on a general regime of conditionality for the protection of the Union budget, so as to make it more palatable to Hungary and Poland. This paved the way for the final adoption of the Multiannual Financial Framework and the Covid recovery package which those countries had threatened to veto. Was this ‘impasse-breaker’ act of the European Council an interference with the legislative power of the EP (and the Council), with the executive power of the Commission and the judicial power of the CJEU, as some commentators have argued?

Speaker

Bruno de Witte is professor of European Union law at Maastricht University, and part-time professor at the European University Institute (EUI) in Florence. He is co-director of the Maastricht Centre for European Law. Previously, from 2000 to February 2010, he was professor of EU law at the EUI, and co-director of the Academy of European Law there, and before that, from 1989 to 2000, he was professor at Maastricht University. He studied law at the University of Leuven and the College of Europe and obtained a doctorate at the European University Institute in 1985, on ‘The Protection of Linguistic Diversity through Fundamental Rights’.