De iure and de facto

The two sides of the European Council after Lisbon

Abstract

This work contributes an innovative vision of the European Council presented in two different but interrelated parts. The first, a de iure analysis of the essential primary law provisions that compose the European Council’s competence framework according to the most recent version of the Treaty of Lisbon. The second, a de facto analysis focusing on the breaches to said competence framework by European leaders during the five UE crises: financial crisis, migratory crisis, Brexit, COVID and the war in Ukraine. Some of these crises show that the European Council has gone beyond its competence framework and breached EU law, making the rest of the institutions into necessary collaborators. The main conclusions are three. First, the European Council, after the Treaty of Lisbon, has become the main constitutional and constituted «power» in the EU, holding key competences and becoming the essential institution in moving the integration process forward. Second, after studying the aforementioned crises, there is evidence that the European Council has consciously gone beyond the EU law framework, not basing their actions in existing legal frames, but in a clear will to avoid political or legal controls when it considers that a crisis calls for it. The third conclusion allows us to conclude that the rest of institutions, including the CJUE, have tried to justify these actions.