Council proceedings

The Council is above all the institution of the EU in which the Member States are represented. After consecutive enlargements of the EU, the number of Member States now counts altogether 28 EU countries.¹⁹⁶ The Council, being a playground of the Member States, is thus the forum where diverging positions of the Member States clash and where national interests most visibly find their way to the EU debate. Although the Council is one institutional entity, its work is organized hierarchically between different levels. The first level is the Council Working Group level that is usually characterized as technical. Sectorial Council Working Parties deal with legislative and policy initiatives falling within their remit under the Council structure. Most of the preparation of legislative work takes place in these groups.

The discussion in the working group often ends in a deadlock. In this situation, the dossier under discussion will be taken to the Coreper level. This Committee of Permanent Representatives of Member States, the committee consisting either of Permanent Representatives (Coreper II) of Member States or their Deputies (Coreper I), is a kind of compromise factory of the EU. The outstanding and often more political issues of political and legislative files will be handled in Coreper in order to find a compromise between various positions. With the constitutional tendency to make decisions in accordance with the ordinary legislative procedure, the role of the Coreper is paramount especially in preparing negotiating mandates for the rotating Presidency of the Council for trialogue meetings with the EP.¹⁹⁷ Very often, the Coreper may find a way out, but sometimes this attempt may be in vain and in this case the problem needs to be taken to a higher political level. The Coreper also has an important role to play in ensuring the consistency of EU policies and actions and overseeing that the principles of legality, subsidiarity and proportionality are observed.¹⁹⁸

196 This is bound to change due to the Brexit. The impact of the UK leaving the EU has been excluded from the scope of this dissertation.

197 What remains intact after the entry into force of Lisbon Treaty is the rotating Presidency of Council. In the new constitutional framework the European Council, which is now a formal institution chaired by the permanent President of the European Council, has diminished the role of the Member State holding the Presidency of the Council. The main tasks of the Presidency have been summarized as follows: previously, the Presidency used to function as a business manager, manager of foreign policy, promoter of initiatives, package broker, liaison point and collective representative. See Hayes-Renshaw Fiona and Wallace Helen: The Council of Ministers. Second edition. Palgrave MacMillan. Basingstoke 2006, pp. 140-154.

198 Article 19 of the Rules of Procedure of the Council. Council decision of 1 December 2009 adopting the Council’s Rules of Procedure (2009/937/EU). OJL L 325/35, 11.12.2009.

Sectorial Councils organized at the ministerial level are the highest point of the Council architecture. Ministers of EU Member States discuss unresolved issues trying to find solutions acceptable to everyone around the Council table.

It should be noted, nevertheless, that usually the way has been paved for the decisions at a lower level with involved political guidance all the way throughout the process. In addition to solving the most important political problems, the essential role of the ministers is to provide input to political discussion relating to dossiers under discussion and also to give the Commission guidance on how to proceed with future legislative work. This can take place, for example, in the form of Council Conclusions. The last instance and institutionally separate institution is the European Council that steers the work of the different Councils and may decide on policy issues that have not been solved by the ministers.¹⁹⁹ At all the levels described above, the Commission is also represented. The aim of this chapter is to perform a legal analysis on different forms of ex ante control of fundamental rights in the context of different legislative proposals in the Council structure. The objective is to answer the question of how the Council, at its different levels, seeks to ensure the compliance of the legislation with EU fundamental rights?

Ex ante control can be considered to take place at all levels of the Council preparation. We should however distinguish different types of control according to different actors involved in the legislative work. It is possible to identify the essential role of the Council Legal Service which is organizationally a part of the Council Secretariat. The Council Legal Service is the body that supervises the legality of legislative texts under preparation. It is present at all levels, from the working group to the ministerial level. It presents comments and views on the discussed texts and their conformity with the acquis communautaire. In addition to its spontaneous role during Council meetings at different levels, it may also present written opinions on legal problems.

Usually the demandeur of these written contributions is the Presidency.²⁰⁰ The first stage initiative frequently comes from the interested delegations, the Member States. In addition to the task of helping the Council to respect the rule of law, it defends it in cases before the CJEU.²⁰¹ It is therefore very neutral in the legislative process but has representative functions on behalf of the Council (which is not always unanimous) in court proceedings. The Council Legal Service therefore offers a counterweight to Legal Services of other EU institutions.

The Council Legal Service is in a key position to react to the Commission’s original proposal and to propose amendments made to it by the delegations

199 For the reasons of work economy and the relatively general level guidance that the European Council provides, I have decided not to deal with the European Council exhaustively in this thesis.

Despite its growing role and formally institutionalized character the European Council is unlikely to go in-depth with ex ante review should the file concerned not become a large political issue.

200 The usual practice at the working party level or in the Coreper is that one of the delegations in the Council seeks legal advice on some particular issue. In the negotiations this request is channeled to the Council Legal Service by the Presidency. Some “critical mass” is therefore needed to back up these individual requests by delegations.

201 Bishop Michael: The Council’s Legal Service. In Westlake Martin and Galloway David (eds.): The Council of the European Union. Third edition. John Harper Publishing. London 2006, p. 357.

within the Council. This is important because preceding matters such as legal basis, general principles of law and statement of reasons, all constitute grounds for the annulment of a Court act by the CJEU. As Bishop observes, this is why the advice of the Legal Service must be professional and independent.²⁰² As for the possible grounds for annulment by the CJEU, attention should be drawn to general principles of law, which according to the interpretation practice of the CJEU also include fundamental rights. The Legal Service therefore has a significant task of also ensuring compliance with fundamental rights in the legislative phase. In very practical terms, the Council Legal Service can make a positive contribution to this work by pushing forward better quality in drafting.²⁰³

Most of the first-stage preparatory work of legislation is carried out in various working parties of the Council. The most important for Council Working regarding fundamental rights is the Working Party on Fundamental Rights and Citizenship (FREMP). It has a significant role above all in the work on fundamental rights scrutiny. Another key working group of the Council is the Human Rights Working Group (COHOM), but the work of the COHOM is mainly focused on the external dimension of EU fundamental rights policy. All other Council sectorial working groups deal with fundamental rights issues, but it is fair to say that very often the fundamental right focus is not that remarkable in everyday work. Sectorial working groups handle legal dossiers from their angle of expertise and probably the most extensive expertise can be found in working groups dealing with AFSJ, because mostly fundamental rights issues are probably most common in these dossiers. Another channel of ex ante control in the Council is offered by the Member States. All the Member States have in place their national preparation mechanisms of EU affairs at the national level. These systems are very different from each other. Some national systems empower national parliament with a strong say on EU affairs while the others maintain most of the control functions at the governmental level.

202 Ibid., p. 358.

203 Pursuant to Article 22 of the Council’s Rules of Procedure “the Legal Service shall be responsible for checking the drafting quality of proposals and draft acts at the appropriate stage, as well as for bringing drafting suggestions to the attention of the Council and its bodies.” Council decision of 1 December 2009 adopting the Council’s Rules of Procedure (2009/937/EU). OJ L 325/35, 11.12.2009.

Graph 2. Physical assessment of fundamental rights within the Council

Despite these possibilities to control conformity of legislation with fundamental rights we can see that the real Achilles’ heel in the legislative process is the non-existence of formal impact assessments. This relates to the common practice during the legislative process where the original proposals of the Commission will be significantly changed. As considerable changes to the Council texts will be introduced, no impact assessments will be carried out.

The Commission and the legal services of both the Commission and the Council are at the disposal in securing that draft legal texts are in line with the EU law but this fails to satisfactorily compensate for the lack of impact assessments because changes may often have strong implications on fundamental rights as well. The jurist-linguist phase at the very end of the legislative process is rather technical, but in this phase terminological problems may still emerge. In this connection we should note that if a group of Member States takes the legal initiative in the AFSJ there is no obligation to carry out impact assessment.

One practical problem related to the Council proceedings is the limited access to travaux préparatoires of the Council that are usually not public. This is especially true with regard to first reading legislative files. These are hard to follow because no “official” Council positions are available as is the case with second reading files. This creates a practical problem in reflecting the final outcome of the legislative process, the legal act, against the Council positions and thus determining what the real impact of the Council was in the legislative