See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/353889885

The relations and connections between the European Council and the
European Parliament in the EU decision-making process

Chapter · May 2021

CITATION READS

1 177

1 author:

Marta Witkowska
University of Warsaw
57 PUBLICATIONS   81 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

"Przegląd Europejski" 4/2015 View project

Kryzysy w procesie integracji europejskiej i sposoby ich przezwyciężania View project

All content following this page was uploaded by Marta Witkowska on 13 August 2021.

The user has requested enhancement of the downloaded file.

Marta WITKOWSKA

The relations and connections between

the European Council and the European Parliament
in the EU decision-making process

The majority of academic studies focus on how the authority in the European
Union (EU) is distributed within the institutional triangle of the European Com-
mission (EC), the Council of the European Union (Council) and European Par-
liament (EP) (cf. Conway, 2011; Barcz, 2010; Michałowska-Gorywoda, 2004;
Hofmokl, 2006; Tsebelis, Kalandrakis, 1999). A different current is represent-
ed by authors seeking the principle of institutional balance within the EU sys-
tem (checks and balances) (Hix, 2010; Young, Young, 2010, Dubowski 2010;
Grzeszczak, 2011; Szczerba-Zawada, 2013a; Galster, 2014; Galster, Łachacz,
2014). They are primarily concerned with the above-mentioned three institutions
and the EU’s judiciary.
Yet only a handful of authors analyze these issues with an emphasis on the role of
the European Council in the political processes of the EU. There are only a few anal-
yses of the influence the European Council exerts on decision-making procedures,
or of mutual relations between the European Council and other EU institutions (cf.
Przybylska-Maszner, 2018; Jaskulski, 2017; Szczerba-Zawada, 2013; Werts, 2008;
Wallace, Wallace, Pollack, 2010; Grinsven, 2003; Crowe, 2016). That is why this
chapter analyzes the specific nature of the informal links between the European
Council and the European Parliament and investigates the impact these mutual in-
teractions have on European integration processes. These impacts are presented in
order to analyze the main determinants and directions of influence that can facilitate
better understanding of political processes in the EU.
The main research problem is to determine the relationships and dependencies
between the European Council and the European Parliament, and in particular their
nature as well as impact on the decisions made.
The main research goal will be achieved using the theory of decision analysis and
normative analysis of EU legislation, including primarily the Treaty on European
Union and the Treaty on the Functioning of the EU, and analyzing doctrinal com-
ments. The study goes beyond the static analysis of procedures, the investigation of
principles and competencies, or the formal requirements which determine the types
of decisions made, or temporal and procedural restrictions. The solution is sought
primarily in the dynamic aspects of the mechanisms studied, that is, in the prac-
tice of cooperation of the entities involved, in phenomena and processes, as well as
in emerging interactions. This chapter will provide answers to questions about the
120 Marta Witkowska

direction of interactions, their intensity, and the outcome of these interactions for
political processes in the European Union.

Methodology and research assumptions

The processual approach applied here demanded a specific set of research methods.
Comparative studies were the basic tool, in which the whole of the system studied
provided a point of reference in what is called the configurative approach. Compara-
tive studies within one system, in this case the European Union’s system, make it
possible to avoid the danger of drawing conclusions in isolation from the real socio-
political context and to achieve more reliable research results through the limitation
of the determinants involved. This approach additionally assists the researcher by
providing a conceptual apparatus relevant for the political system studied.
Complementary methods include hermeneutics, which was applied in the de-
scription and observation of facts, events and processes, laying the foundation for
structural interpretation in due course. The research results demonstrate a network of
connections, relations and dependencies, or structural interlocking.
The decision analysis theory facilitates the examination of the decision-making
center, its surroundings and the decision-making process itself, among other things
(Pietraś, 2000). The adaptation of decision analysis theory for the study of the Euro-
pean Union’s system allowed the author to identify by analogy the designates of ba-
sic conceptual categories, such as the decision-making center, the decision-making
process and political decisions in relation to the European Union, including them
in the cognitive process (Witkowska, 2013). The study approaches the decision-
making center as a decision system. In the case of the European Union, this center
is not homogeneous and it is therefore difficult to unanimously classify it as one of
the distinguished types.1 In accordance with the principle of the division of powers
between member states and the European Union, the European decision-making
center may be intergovernmental or Community in nature, depending on the subject
matter of the decision. The distinguishing features of either center include, inter
alia, the entities participating in the decision-making process and the legal nature of
decisions, the degree of control and its type (for more see: Witkowska, 2011). After
the entry into force of the provisions of the Lisbon Treaty (Treaty of Lisbon, 2007),
the Community decision-making was named the EU method (cf.: European Parlia-
ment resolution, 2009).
The basic analytical tool is provided by Nayak (Nayak, 1973) and adopted for
the purposes of this study of the composition of the decision-making center in the
EU. Nayak draws a number of concentric circles, among which he distinguishes an
internal circle of power consisting of the most important decision makers, a circle
1
  Pietraś distinguished two types: national and international centers, and added one more type,
a transnational center, in his later works.
The relations and connections between the European Council and the European... 121

of less important decision makers, a peripheral circle of state administration and all
other political organizations, and the fourth circle of leaders and representatives of
other social organizations.
Adapting Nayak’s concept, the author of this paper assigned specific groups of
entities to the circles distinguished (for more see: Witkowska, 2013, p. 22). The
first, internal circle consisting of the most important decision-makers was assigned
the two main EU institutions which adopt legislation: the Council and the European
Parliament.2 Non-legislative acts may be adopted by the European Commission and,
in the case of policies implemented on the basis of intergovernmentality, by the
Council (TFEU, Article 291(2)). When examining the intergovernmental center, the
European Council will constitute the inner circle.
The above results indicate that it is possible to use comparative studies in further
analysis because both analyzed institutions are in the same circle of power. In further
studies, the analysis will focus primarily on determining the role of the European
Council as one of the entities in the center of power, and secondly, on identifying
connections and relations with the European Parliament.

The European Council and EU political processes

The analysis of the scope of interaction between the European Council and the Eu-
ropean Parliament should be preceded by an explanation of the systemic role and
position of the European Council in the organizational and functional structure of
the EU. From a formal point of view, the European Council is an EU institution
(TEU, Article 13). Provisions regarding the role of the European Council as part of
the decision-making process were introduced by the Maastricht Treaty (Maastricht
Treaty, 1992). Since then, Art. 15(1) of the Treaty on European Union has stated that
“[t]he European Council shall provide the Union with the necessary impetus for its
development and shall define the general political directions and priorities thereof. It
shall not exercise legislative functions” (TEU, Article 15(1)). On the one hand, this
is a clear and positive definition of the scope of ​​activity of the European Council,
by stating its obligations to plan the development of EU integration structures. On
the other hand, the boundaries of European Council activity are limited in a negative
way, by indicating the scope that is excluded from its competence.
This regulation grants the European Council the leading role in the integration
process as a political body of the European Union. Within the meaning of Art. 15 of
TEU, the European Council acts as an intergovernmental center. Ziemowit J. Pietraś
interprets this as the establishment of an informal decision-making center, because
2
  In the case of a regular legislative procedure, these are the Council and the European Parliament
acting jointly. In the case of special legislative procedures, it is usually stipulated that the Council
makes the decision after the EP is consulted or issues its consent. There is also another statement
informing that the decision is taken by Parliament with the consent of the Council.
122 Marta Witkowska

the European Council decides on the most important issues of the Community, but it
does not do so in a legal form (Pietraś, 2006, pp. 268–269).
The structure of the decision-making procedure results from the European Coun-
cil’s competences. Due to formal restrictions, this chapter will not mention the scope
of European Council authority as stipulated in the Treaty, which involves an ex-
tensive range of powers in the field of constitutional rights and political systems,
including the change of treaties, formative powers and issuing decisions in the form
of appeals against the rulings of the Council. The European Council, however, has
no law-making powers, although it may submit initiatives that inspire the legislative
process. The European Council mainly takes political decisions, approves the initial
programmatic decisions of the European Commission (including white papers) and
adopts documents which identify the directions for deepening and stabilizing the
process of European integration.
Due to its political importance, in practice the European Council can deal with all
EU problems that it deems relevant. The European Council may reach conclusions,
adopt declarations, set out action plans, issue announcements and statements, set
tasks for other institutions, establish EU policy priorities, and inspire the legislative
process. Although these are all soft law instruments (atypical acts), the representa-
tive composition of the European Council usually decides to perform all of them in
the course of the procedures set out in treaties.
Procedural and organizational issues pertaining to European Council meetings
are regulated in the 1977 London Declaration (The European Council, 1977). It
provides for three forms of discussion in the European Council (after: Witkowska,
2007, p. 20):
–– informal exchanges of views that are not designed to lead to any formal decisions
or public statements;
–– discussions which are designed to produce binding agreements expressing the
joint view of the entire European Council on a given matter and are publicly an-
nounced;
–– discussion on the issues submitted by the Council of the European Union on
outstanding matters related to further development of the Communities. In this
case, the European Council conforms to the appropriate procedures laid down in
the Community treaties and with respect to statutory institutions.
The European Council makes decisions on behalf of member states. Its decisions
bind member states with respect to their positions and conduct, or constitute a spe-
cific advisory political recommendation. The European Council’s decisions are not
subject to review by the EU Court of Justice. Due to its intergovernmental nature,
the European Council operates as a forum for top-level agreements and enables in-
dividual EU member states to express their will.
The scope of political authority of the European Council presented above and
the entire political leadership, characterized by the setting of general goals, active
taking of initiatives and generating incentives to make specific decisions, is undeni-
The relations and connections between the European Council and the European... 123

ably analogous to the scope of ​​activity exercised by executive power (cf. Szczerba-
Zawada, 2013, p. 49). At the same time, the European Council enjoys significant
rights with respect to legislative procedures as well as far-reaching powers in the
constitutional and political field, which gives it a unique position in the organiza-
tional structure of the EU.

The dimensions of formal relations between the European Council

and the European Parliament

Mutual relations between the European Council and the European Parliament emerge
as a reason for the complex institutionalization process of the former. The analysis
only takes into account internal reasons internal to the EU, including in particular
the discussion on the nature of integration, in which the model of Community gov-
ernance is opposed to the intergovernmental model, and the discussion on the need
to reform the institutional system (cf. Szczerba-Zawada, 2013).
An important problem has long been raised in the academic discussion, name-
ly the inefficiency of the EU institutional system, which is also presented as one
of the reasons for the institutionalization of the European Council (Szczerba-
Zawada, 2013a, pp. 65–67). The arguments used to support the need to reform
the institutional system of the EU in the period of the institutionalization of the
European Council included, inter alia, the European Parliament’s weak authority
among member states, its insufficient involvement in the decision-making pro-
cess (cf. Werts, 2008, p. 61), and all the too-visible politicization of activities,
which does not support the legitimization of the integration process and the deci-
sions made (Herbut, 2014, p. 16). Certain measures to stimulate the strengthening
of the EP at the expense of the European Council or the other way round have
been applied in response to the fluctuating levels of the extent to which EU citi-
zens identified themselves as European, which translated into their increased or
decreased interest in integration issues and was reflected by their turnout in the
European Parliament elections.
In this context, the initiative to develop solutions that could change the weak
public support for European integration processes and strengthen the position and
authority of the EP was taken for the first time by the heads of government of mem-
ber states before the formal institutionalization of the European Council. These ini-
tiatives include the Declaration on European Identity adopted at the 1973 Copenha-
gen Summit (Déclaration sur l’identité européenne, 1973) and the decision on direct
elections to the EP taken at the Paris meeting in December 1974 (Communiqué...,
1974). This means that the decision that had significant consequences for the further
direction of European integration, and for strengthening the position of the Euro-
pean Parliament in the EU institutional architecture and raising the awareness of its
presence among EU citizens, was actually taken by the intergovernmental center.
124 Marta Witkowska

The opposite can also be observed. The Treaty of Lisbon introduced the emer-
gency brake, which allows the European Council to intervene in the legislative pro-
cess. This concerns the areas that are sensitive from the point of view of the interests
of individual member states (including some decisions on judicial cooperation in
criminal matters and social policy). In certain strictly defined cases, a member state
may object to adjusting its national law in a given field, arguing that the adoption
of the relevant act would “affect fundamental aspects of its criminal justice system”
(Article 82(3), Article 83(3), Article 86 (3)1 of TFEU), or “important aspects of its
social security system” (Article 48 TFEU sentence 2). In this case, the draft of the
contentious legal act in question is referred to the European Council and the ordinary
legislative procedure is suspended for a period of four months. The European Coun-
cil may refer the draft to the Council or to its initiator, requesting them to submit
a new proposal (Article 48 TFEU, sentence 2, letters (a) and (b)).
This is where the EU’s decision-making center clashes with the intergovernmen-
tal center. Only the consensus reached by the European Council within the frame-
work of the above mechanism makes it possible to continue working on a legal
act under the ordinary legislative procedure. Importantly, legislative powers are not
transferred to the intergovernmental center. It is imperative for a political decision to
be taken by an intergovernmental center in order for it to become a success, that is,
to have the EU center make the decision which nevertheless results from the activi-
ties of numerous actors involved at EU level.
The scholarly literature on the subject also features the interpretation that, in this
way, the European Council has been given an important tool for shaping the course
of relevant legislative procedures (Szczerba-Zawada, 2013, p. 52). A consensus
within the European Council in practice means that it is highly probable for a legal
measure to be adopted in due course, as agreed by the heads of state or government.
Any attempt to introduce changes to the agreed draft legislative instrument in the
course of resumed legislative procedure may lead to another deadlock, for example
when trying to introduce further changes not included in the compromise achieved.
The formula of the European Council’s intervention in legislative procedures
rules out the independence of the bodies of EU legislature, which is confirmed by the
treaties that require that the agreed draft be referred to the Council for adoption if the
European Council reaches consensus regarding the contested legal measure (cf. Art.
86(1) TFEU and Art. 87(3) TFEU). The failure to reach agreement at the European
Council level unanimously results in the legislative procedure being concluded (cf.
Grzelak, 2008; Eggermont, 2012).
One of the famous examples of launching the above described procedure under
Art. 48 of TFEU, concerned the demands of the British Prime Minister in early
2016, which were concluded with the compromise adopted at the European Council
Summit in February 2016 (European Council, 2016).
The oscillation between the Community and intergovernmental models direct-
ly affects mutual relations between the European Council and the EP, shifting the
The relations and connections between the European Council and the European... 125

decision-making center and affecting the scope of exercised powers. The literature
on the subject is dominated by the belief that crisis situations, including the deceler-
ated dynamics of the European integration process, demand the intergovernmental
governance model to be strengthened. In these situations, the will to come up with
new European initiatives disappears, due to member states adopting a conservative
attitude and focusing on national interests and needs rather than on Community is-
sues (cf. Report, 1980). Then the European Council becomes the dominant forum
where agreements and compromises are made, thereby taking over the role of the
decision-making center and, informally, becoming one. However, after the crisis is
resolved, the activities strengthening the democratization and legitimacy of the EU
structure are intensified.
The above example of a decision adopted at a meeting of heads of state or gov-
ernment gathered in the European Council illustrates the trend in question (Europe-
an Council, 2016). This decision also addressed the issue of extending the scope of
national parliaments’ influence on the decision-making process, and, more specifi-
cally, establishing a veto mechanism for national parliaments (the ‘red card’). The
‘red card’ procedure refers to the principle of subsidiarity and applies when reasoned
opinions on the non-compliance of a draft legislative act of the EU with the principle
of subsidiarity, sent within 12 weeks from the transmission of that draft, represent
more than 55% of the votes allocated to the national Parliaments. Then “the Council
Presidency will include the item on the agenda of the Council for a comprehensive
discussion on these opinions and on the consequences to be drawn therefrom. Fol-
lowing such discussion, and while respecting the procedural requirements of the
Treaties, the representatives of the Member States acting in their capacity as mem-
bers of the Council will discontinue the consideration of the draft legislative act in
question” (Annex I to Conclusions European Council, 2016).
The ‘red card’ procedure significantly determines the position of the European
Parliament in the decision-making process. It can be said that it reduces the powers
of the EP under the ordinary legislative procedure (OLP) in favor of the Council.
The treaties mention the equal position of the Council and the EP in the OLP. Other
procedures for monitoring compliance with the principles of subsidiarity and pro-
portionality are set out in the Protocols annexed to the Treaties. An analysis of the
content of these protocols indicates careful compliance with the checks and balances
principle, where the role of individual institutions in controlling compliance with
this principle is carefully balanced. In the ‘red card’ procedure, however, the Council
decides on the further progress of the legislative process in place of the European
Commission. The Council obliged itself not to undertake any further legislative
work “unless the draft is amended to accommodate the concerns expressed in the
reasoned opinions” (Annex I to Conclusions European Council, 2016).
Mutual interactions between the European Council and the European Parliament
are particularly intensive in formative procedures, and especially in the selection of
the European Commission. This is also related to the above-mentioned incentive
126 Marta Witkowska

provided by the necessity to reform the institutional system of the EU. Given the
broader context of the problem analyzed, this issue – which is commonly referred
to as the European top-level negotiating procedure – requires a separate holistic
examination, which is why it is not analyzed here.

Conclusions

This brief review of the competences of the European Council and possible rela-
tional and functional links with the European Parliament, which shows the operating
mechanisms, possible contact points, dependencies and interdependencies, makes it
possible to assess the political positioning of the European Council on the European
arena and to indicate its current role as well as anticipate where national interests can
be handled within the mechanisms of the European Council.
The heads of state or government of EU member states gathered in the Euro-
pean Council actually ‘program’ the activities of the EU. The political decisions
they make take effect in the form of EU laws, mainly through the Council acting in
consultation with the European Parliament and at the request of the European Com-
mission. The European Parliament supports the EU decision-making process in the
form and framework of various formalized treaty-regulated procedures. In conform-
ity with its competences, the European Commission guards the law and upholds the
EU’s legal order as determined by the entity that gives the impetus to act and adopts
the strategy, namely the European Council.
Importantly, the mechanism for setting the general directions of the EU’s de-
velopment, formally driven by the European Council, is in fact the outcome of the
activities of many entities representing various national interests, and is fueled by
their activities both formally and informally; it is associated with the lobbying sys-
tem traditionally used in the European Union and backstage arrangements. On the
basis of this analysis, it is difficult to determine the scope and impact of the institu-
tions under analysis. The vector of political activity clearly runs from the initiator
of political will towards the institutions implementing this will, and not the other
way round. One question still remains, namely: If the mutual interrelations and de-
pendencies did not exist, would the position of the European Council be legitimized
and would it have the same impact on integration processes? This analysis indicates
possible channels of influence and the shortcomings of lobbying activities and can
thus be useful for national politicians and officials.

References

Annex I to Conclusions European Council, Brussels, 19 February 2016, http://www.consilium.eu-

ropa.eu/en/meetings/european-council/2016/02/EUCO-Conclusions_pdf/.
Barcz J. (ed.) (2010), Źródła prawa Unii Europejskiej, Warszawa.
The relations and connections between the European Council and the European... 127

Communiqué final du sommet de Paris, 9 et 10 décembre 1974, „Bulletin des Communautés euro-
péennes”, n° 12, Office des publications officielles des Communautés européennes, Dé-
cembre 1974, Luxembourg.
Conway G. (2011), Recovering a Separation of Powers in the European Union, „European Law
Journal”, vol. 17, no. 3.
Crowe R. (2016), The European Council and the Multiannual Financial Framework, “Cambridge
Yearbook of European Legal Studies”, vol. 18.
Déclaration sur l’identité européenne, Copenhague, 14 décembre 1973, „Bulletin des Communau-
tés européennes”, Office des publications officielles des Communautés européennes, n° 12,
Luxembourg, Décembre 1973, www.cvce.eu, 1.05.2012.
Dubowski T. (2010), Zasada równowagi instytucjonalnej w prawie Unii Europejskiej, Warszawa.
Eggermont F. (2012), The Changing Role of the European Council in the Institutional Framework
of the European Union. Consequences for the European Integration Process, Cambridge–
Antwerp–Portland.
European Parliament resolution of 7 May 2009 on the impact of the Treaty of Lisbon on the develop-
ment of the institutional balance of the European Union, OJ C 212 5.08.2010.
Galster J. (2014), Zasada równowagi instytucjonalnej w orzecznictwie Trybunału Sprawiedliwości
Unii Europejskiej, „Gdańskie Studia Prawnicze”, no. XXXI.
Galster J., Łachacz O. (2014), Kilka uwag o podziale władzy w Unii, „Studia Prawnoustrojowe”,
no. 26.
Grinsven P. van (2003), The European Council under Construction, “Discussions Paper in Diplo-
macy”, no. 88, https://www.peacepalacelibrary.nl/ebooks/files/Clingendael_20030900_cli_
paper_dip_issue88.pdf.
Grzelak A. (2008), Reforma Przestrzeni Wolności, Bezpieczeństwa i Sprawiedliwości, in: Traktat
z Lizbony. Główne reformy ustrojowe Unii Europejskiej, ed. J. Barcz, Warszawa.
Grzeszczak R. (2011), Władza wykonawcza w systemie Unii Europejskiej, Warszawa.
Herbut R. (2014), Procesy decyzyjne w Unii Europejskiej – kontekst polityczny i strukturalny, in:
Europejska scena partyjna i jej aktorzy, eds. A. Pacześniak, R. Wiszniowski, Wydawnictwo
Adam Marszałek, Toruń.
Hix S. (2010), System polityczny Unii Europejskiej, Warszawa.
Hofmokl J. (2006), Pozycja Komisji Europejskiej w trójkącie instytucjonalnym a proces stanowienia
prawa po rozszerzeniu Unii Europejskiej, „Studia Europejskie”, no. 2.
Jaskulski A. (2017), The role of the European Council in the Brexit negotiations and in shaping the
“new” foreign policy of the European Union, “Środkowoeuropejskie Studia Polityczne”,
no. 4.
Michałowska-Gorywoda K. (2004), Podejmowanie decyzji w Unii Europejskiej, Warszawa.
Pietraś Z. J. (2000), Decydowanie polityczne, Warszawa–Kraków.
Pietraś Z. J. (2006), Prawo wspólnotowe i integracja europejska, Lublin.
Przybylska-Maszner B. (2018), Rada Europejska w procesie przekształceń strukturalnych 1961–
1977, „Rocznik Integracji Europejskiej”, no. 12.
Report (1980) on European Institutions Presented by the Committee of Three to the European Coun-
cil, October 1979, Luxemburg.
Nayak S. (1973), An Analitycal Model of Hegemonial Tensions Among Ghanaian Elites, in: Political
Decision-Making Process: Studies In National, Comparative and International Politics, ed.
D. Sielyanski, Amsterdam–Londyn–Nowy Jork.
 128 Marta Witkowska

Szczerba-Zawada A. (2013), Pozycja ustrojowa Rady Europejskiej w systemie instytucjonalnym

Unii Europejskiej, Warszawa.
Szczerba-Zawada A. (2013a), Funkcje Rady Europejskiej w sferze unijnej władzy ustawodawczej,
„Przegląd Sejmowy”, no. 1.
The European Council, Conclusions of the sessions, Rome 29–30 June 1977, http://aei.pitt.
edu/1410/1/London_june_1977.pdf.
The European Council, Conclusions, Brussels, 19 February 2016, https://www.consilium.europa.eu/
media/21787/0216-euco-conclusions.pdf.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007.
Treaty on European Union, O.J., C 191, 29.07.1992.
Tsebelis G., Kalandrakis A. (1999), The European Paramen and envronmental legislation: the case
of chemicals, „European Journal of Political Research”, no. 36.
Wallace H., Wallace W., Pollack M. A. (eds.) (2010), Policy-making in the European Union, Ox-
ford–New York.
Werts J. (2008), The European Council, London.
Witkowska M. (2007), Udział Polski w Radzie Europejskiej, in: Polska w systemie instytucjonalnym
UE – zagadnienia legitymizacyjne, ed. K. A. Wojtaszczyk, Warszawa.
Witkowska M. (2011), Założenia metodologiczne i determinanty badań nad przyczynami moderni-
zacji Unii Europejskiej, in: Modernizacja Unii Europejskiej, ed. K. A. Wojtaszczyk, War-
szawa.
Young A. R., Young R. (2010), The European Policy Process in Comparative Perspective, in: Pol-
icy-Making in the European Union, eds. H. Wallace, M. A. Pollack, A. R. Young, Oxford–
New York.

View publication stats