The Spanish Presidency of the Council of the European Union and Autonomous

Communities: A Sea of Doubts.

Dr. Susana Beltran, Universitat Autònoma de Barcelona, Mirna Nouvilas and Lucia

Popartan researchers in the University Institute of European Studies (Eureges Research

Group). susana.beltran@uab.es; mirna.nouvilas@iuee.eu; lucia.popartan@uab.es

Table of contents

Introduction

1. Functions of the Presidency of the Council after Lisboan Treaty

1.1. The Council after the reforms of the Lisboan Treaty

1.2. The role of the country who leads the Presidency of the Council: the Spanish

Presidency

2. Spain's process of making decisions in the Council

2.1. CARUE’s role in the process

2.2. The Agreements adopted by CARUE to promote the participation of the

ACs in the Council

3. How the participation of the ACs in the Council is implemented

3.1. Pros and cons of the ACs’ participation

3.2. The State-ACs collaboration when Spain led the Council

A Sea of Doubts....

Introduction

The Spanish state, from January to June 2010, assumed the Presidency of the Council of

the European Union, once the new Treaty of the European Union came into force. The

Spanish system allows the Autonomous Communities (ACs) to participate in the

formation of the Spanish will in the European affairs. In particular, the Conferencia

para Asuntos Relacionados con la Union Europea (Conference on Affairs Related with

the European Union (currently the CARUE) adopted, in December 2004, two

agreements to regulate the participation of the Autonomous Communities in some of the

Council formations and its preparatory bodies. Thus, we should distinguish, on one

hand, the participation process of the Autonomous Communities in the preparatory

bodies –the Working Groups and the Permanent Representatives Committee, and on the

other hand, the ACs direct representation in the Spanish Delegation in some

configurations of the EU Council. In order to assure the better conditions for the ACs

participation, the Consejería de Asuntos Autonómicos de la Representación Permanente

de España ante la Unión Europea- REPER (Office of Affairs of Autonomous

Communities in the Permanent Representation of Spain to the European Union) was

strengthened and, nowadays, is currently composed by two Counsellors proposed by the

ACs. The application of these agreements has been a little confusing and changing

depending on the configurations of the Council. These problems showed during the

Spanish

Presidency, where the Spanish regions logically wanted to continue participating in the

participation process, but the ACs realized that the Presidency required some attitudes,

for example, the neutrality of Spain in the decision-making process in the Council, for

which they were not prepared. But, at the same time, maybe as a result of the good

disposition in some moments between the Spanish Government and the ACs, the

regions were allowed to participate in the Informal Meetings of Ministers, which was

not planned before the Spanish Presidency. This paper seeks to analyse the lights and

shadows of this period of time, in order to draw some reflection elements and to make

progress in this topic.

1. Functions of the Presidency of the Council after Lisbon Treaty

1.1. The Council after the reforms of the Lisboan Treaty

The Treaty of Lisbon –this is, the new Treaty of the European Union (TEU) and the

Treaty of the Functioning of the European Union (TFEU) came into force the past first

of December of 2009, still under the Swedish Presidency, after overcoming numerous

political and juridical difficulties. The rotating Presidency of the Council of the

European Union responsible for the implementation of the new changes introduced by

the TEU was the Spanish Presidency, which hold for the fourth time this responsibility

after its accession to the European Communities in 1986. Spain hold the rotating

Presidency of the Council the first semester of 2010, becoming the first Presidency who

work completely in the normative framework of the TEU, with the logical obstacles that

the situation involved, in a learning and transition context (Barbé 2010).

In general terms, the most significant innovations established in the TEU and TFEU are

related to the institutional design and the decision making process in the European

Union, with the aim to make them more efficient, transparent and democratic. To fulfil

all these reforms, the rotating Presidency of the Council will have to take into account

the advice of the General Secretary of the Council. In particular, the advice of the GSC

is fundamental to encourage and consolidate the different changes proposed in the new

Treaty, as well as to give continuity and some uniformity to the agenda of the Council

and its preparatory bodies.

The Spanish rotating Presidency, in the framework of these changes introduced by the

TEU, added for the first time a new and strategically program of work. A new method

of coordination and support to the rotating Presidency was established, consisting in a

presidential troika or ―Triple Presidency‖. The Spanish Presidency worked together

with Belgium and Hungary, the two countries that were supposed to hold the following

rotating presidencies in the second semester of 2010 and the first semester of 2011. A

new program of work for the next 18 months was set up (Council of the EU, 16771/09,

November 2009). This common program with the three presidencies made possible to

provide with more coherence and continuity the work initiated during the Spanish

Presidency. Even if it was considered a positive initiative in general terms, it also meant

a loss of some protagonist role for the Spanish Presidency (Mestres 2010).

After the reforms introduced by the TEU and the TFEU, one of the most evident

changes is the loss of the former role for the rotating Presidency in the European

Council. The Spanish Presidency was the first one to deal with the two new institutional

posts, the permanent President of the European Council and the High Representative of

the Union for Foreign Affairs and Security Policy and Vice-President of the

Commission. They were created in the European Council of 20 November 2009 and

assumed their functions the same day that the new TEU came into force. These two new

posts assume roles of political leadership and foreign affairs, functions that before the

Lisbon reforms were assigned in part to the six-monthly Presidency. For the first time,

the rotating Presidency in the first semester of 2010 had to give a protagonist role to the

President of the European Council and the High Representative of the Union for

Foreign Affairs and Security Policy. The two people appointed for these posts were

Herman Van Rompuy and Catherine Ashton respectively.

In this sense, and considering the role that the Council is supposed promote for the

institutional balance of the EU, the rotating presidencies of the Council in the post-

Lisbon framework should give special attention to new and relevant aspects. First of all,

the Presidency of the Council must contribute to specify the functions of the permanent

President of the European Council and the High Representative of the Union for

Foreign Affairs and Security Policy. It is necessary to define and articulate the functions

of Van Rompuy y Ashton with the other functions that correspond strictly to the six-

monthly rotating Presidency of the Council. Thus, it is important to mention the fact

that unlike the past functioning of the institutions in the EU, the Presidency of the

Council of Foreign Affairs is not hold for Minister of Foreign Affairs of the country

holding the rotating Presidency of the Council anymore. The Presidency of this

significant and sensitive Council is assigned now permanently to the High

Representative of the Union for Foreign Affairs and Security Policy. The Spanish

Minister of Foreign Affairs was the first one to be displaced of this role for Catherine

Ashton, loosing one of the most visible functions of the rotating Presidency. The

Spanish Presidency had to deal also with clarification and articulation of the functions

and agendas of the Council of General Affairs and Council of Foreign Affairs. At the

same time, it had to begin the general proceedings of coordination regarding to the

foreign representation of the European Union. According to the TEU, the roles are

distributed to the following posts:

- The President of the European Council. This is a permanent post for two years and a

half and the possibility of renewal just once. The former Prime Minister of Belgium

was appointed as the first president. Their functions are set up in the article 15.6 of

the TEU. The President of the EC chairs and drives the work of the institution; it

ensures the preparation and continuity of the work of the European Council in

cooperation with the President of the Commission and on the basis of the work of

the General Affairs Council; shall endeavour to facilitate cohesion and consensus

within the European Council. As a President, presents a report to the European

Parliament after the meeting of the European Council and ensures the external

representation of the Union on issues concerning its common foreign and security

policy ―(…) at his level and it that capacity, (…) without prejudice to the powers of

the High Representative of the Union for Foreign Affairs and Security Policy‖. (art.

15.6-d of the TEU).

- The High Representative of the Union for Foreign Affairs and Security Policy and

Vice-President of the Commission, appointed by the European Council by a

qualified majority and with the agreement of the President of the Commission, shall

conduct the Union’s common foreign and security policy. He shall represent the

Union for matters relating to both policies. Concerning these matters, he will

contribute to the elaboration of those policies and shall carry out as mandated by the

Council (art.18.2 of the TEU). The High Representative of the Union for Foreign

Affairs and Security Policy ―(…) shall preside over the Foreign Affairs Council―

and ―(…) shall ensure the consistency of the Union’s external action. He shall be

responsible within the commission for responsibilities incumbent on it in external

relations and for coordinating other aspects of the Union’s external action” (art.

18.3 and 18.4 of TEU). He will also ensures the implementation of the decisions

adopted by the European Council and the Council in common foreign and security

policy and shall conduct political dialogue with third parties on the Union’s behalf.

Moreover, it will express the Union’s position in international organisations and at

international conferences (art. 27-2 of the TEU). The person selected for this post –

not without polemic-, Catherine Ashton, shall work with the assistance of the new

European External Action Service to fulfil his mandate (art. 27-3 of the TEU).

- The President of the Council configurations doesn’t change its rotating and six-

monthly term. As the article 16.9 of the TEU states, ―The Presidency of the Council

configurations; other than that of Foreign Affairs, shall be held by Member State

representatives in the Council on the basis of equal rotation, in accordance with the

conditions established in accordance with Article 236 of the Treaty on the

Functioning of the European Union‖. The President of the Council doesn’t hold the

foreign representation of the Union anymore, since it shall be hold by the High

Representative of the Union for Foreign Affairs and Security Policy for the foreign

and security matters or the President of the European Council. For the rest of

policies, the external representation of the Union will be hold by the President of the

Commission -except for the summits that take place in Brussels, which has shall be

presided just for the President of the European Council-. Thus, if the TEU points out

that the European Council is the formal institution to provide the necessary strategic

impetus for the Union and to define the general political directions and priorities

(art. 15-1 TEU), is logical that the permanent President of this body is the one who

is in charge of carrying out the actuations and statements in this sense. Therefore,

the rotating Presidency of the Council shall exercise basically the legislative,

budgetary and sectorial competences. The Presidency of the Council configurations,

other than that of Foreign Affairs, shall transmit to the rest of Member states the

reports concerning the works of the councils. This should take place in the European

Council. Furthermore, to assure the coherence among the European institutions, the

rotating Presidency and the permanent Presidency shall appear together after the

meetings of the European Council, to avoid possible incongruences in the strategic

lines of the European policies.

In the case of other functions not related to the political leadership and foreign

representation, the reforms of Lisbon also transferred competences from the rotating

Presidency to the permanent Presidency of the European Council and the High

Representative of the Union for Foreign Affairs and Security Policy. The functions of

organization and mediation shall take place in the European Council and the Foreign

Affairs Council respectively.

When the new Treaty came into force, the institutional level was affected by significant

changes. Prominent changes include the decision-making process and the voting

procedure in most of the configurations of the Council, affecting the works of the

rotating Presidency somehow. Even though some of these changes shall take effect on

the 1st November 2014, is important to mention them. Briefly, the novelty in the

institutional framework is a response to the recurrent critics of different political and

civil society groups concerning the democratic legitimacy problem –or the democratic

deficit- in the European institutions. The Treaty has expanded the qualified majority

vote to most of the spheres of the Union, replacing the unanimity as the standard voting

procedure. Moreover, this qualified majority shall change. A qualified majority will be

reached when at least 55% of the members of the Council, comprising at least fifteen of

them and representing Member States comprising at least 65% of population of the

Union will vote in favour of a proposal. The extension of the ordinary legislative

procedure -the so-called co-decision procedure before the reforms- to new areas of

policy increases the legislative power of the European Parliament. According to the

TEU, ―The European Parliament shall, jointly with the Council, exercise legislative and

budgetary functions‖ (art. 14-1 of the TEU). These reforms allow the Parliament to

intervene increasingly in different policies that require the approval of the representative

institution. During the Spanish Presidency, these new rules for the legislative procedure

had to be implemented for the first time to all the current documents at that moment.

In the same order of institutional changes, it is important to mention the new relations

that can be established between the Council and the Parliament. It is the case of the

introduction of a new category of legislative acts, the delegate acts to the European

Commission. Under the article 290 of the TFEU, ―A legislative act may delegate to the

Commission the power to adopt non-legislative acts of general application to

supplement or amend certain non-essential elements of the legislative act‖. These acts

may enter into force only if no objection has been expressed by the European

Parliament or the Council. The role of the rotating Presidency of the Council is to work

together with the legal services of the Council to contribute to determine the specific

characteristics of these kind of acts and, most of all, to negotiate with the European

Parliament the necessary mechanisms of control.

As it has been mention above, the changes introduced by the new Treaty are not strictly

limited to the functions and responsibilities of the Council and its Presidency, but affect

and have direct consequences to the rest of institutions and bodies of the Union. During

the first semester of 2010, the Spanish Presidency had the opportunity to launch some

new functions for the forthcoming rotating presidencies, in particular the inter-

institutional mediation service and the boost for the creation of the European External

Action Services (EEAS), two of the most successful actions of the Spanish Presidency

(Herranz 2010). The mediation service was fundamental for the approval of the

―SWIFT Agreement between the EU and USA‖ that had been rejected first in the

Parliament, and finally approved thanks to the efforts of the Spanish Presidency to reach

an agreement with the EP. The agreement establishing the EEAS is considered probably

the major institutional achievement of the Spanish Presidency (Molina 2010). On April

2010, the Council approved a political agreement pointing out the broad lines of these

services, that create the service calls for deploying more than 6,000 people in 138

diplomatic missions around the world over the next five years. The agreement was

based in a draft presented in March 2010 by the High Representative of the Union for

Foreign Affairs and Security Policy. In May and June, Ashton and Miguel Angel

Moratinos, the Spanish Minister of Foreign Affairs, negotiated the rest of issues of

political control, budget and staffing with the main groups in the European Parliament.

An accord was reached in Madrid the 21 June 2010, and then ratified by a plenary

session of the Parliament.

Finally, another example of success during the Spanish Presidency was the regulation of

the European Citizen’s Initiative (ECI). The Presidency worked to press the new

European Commission, not formed until February, to present a draft by the end of

March regulating the ECI. The definitive approval came after the Spanish Presidency,

but had its roots on the first semester 2010.

1.2. The role of the country who leads the Presidency of the Council: The

Spanish Presidency

Since the TEU and the TFEU came into force, the Spanish Presidency not only was the

first one to loose the most visible and attractive functions – to chair the European

Council and the Foreign Affairs Council-, but also had difficulties to lead politically

other sectorial areas, such as agriculture and fisheries, competitiveness, environment,

economic affairs, etc. (Sorroza and Molina 2010). The obligation of the country holding

the rotating Presidency to behave with neutrality to be able to get consensus among the

rest of Member States in the configurations of the Council was the main reason for this

lack of political leadership. Nevertheless, the rotating Presidency of the Council still

holds important functions of administration and management. Fundamental roles of the

daily work of the Presidency can be sum up as the following: to set up the agenda for

nine out of the ten configurations of the Council, the institution who has the last word in

the normative processes of the Union; to work to reach the necessary consensus and

agreements with the rest of Member States and the rest of institutions –the Parliament

most of all- and to work for the achievement of texts and agreements that reflect the

position of the Union in certain areas are still significant roles in the hands of the six-

monthly Presidency of the Council. Despite the modifications of the new Treaty, it is

possible to state that the four main roles assigned to the rotating Presidency –

organization, agenda setter, mediation and representation- are still the same in essence.

First of all, the function of organization seems to be simplified because of the

decreasing role of the rotating Presidency in the European Council and the Foreign

Affairs Council. Even though that this is the case, the necessity to coordinate positions

with the permanent Presidency of the European Council and the two countries that will

hold the two next presidencies -the ―Triple Presidency‖- add a new management effort.

Secondly, the role of agenda setter is certainly conditioned for the new post Lisbon

reforms. Now the rotating Presidency has to reach a consensus with several new –and

old- actors involved: the two countries conforming the ―Triple Presidency‖, the

permanent Presidency of the European Council, the High Representative of the Union

for Foreign Affairs and Security Policy and the Commission and the General Secretary

of the Council. Despite the obvious limited leeway, the six-monthly Presidency still has

inside information of the rest of actors and could behave as an influent mediator in the

negotiations.

The third function points out the role of mediating, negotiating and conciliating

positions among the different actors of the Union. Before the first semester 2010, the

rotating President of the Council was able to have a substantial role in the achievement

of agreements, consensus and majorities. The reforms limit these former functions,

since the permanent President of the European Council shall assume this mediator role

among the heads of government. To that end is important that the rotating Presidency

could hold a neutral and impartial position, keeping away from the national interest.

Thus, the Presidency of the Council could be considered a valid and legitimate

intermediary and negotiator among the rest of Member States and institutions of the

Union (Sorroza and Molina 2010).

Finally, as it has been mentioned above, the loose of the external representation of the

Union it is a hard and sensitive change for the rotating Presidency. The State holding

this Presidency shall work to have some co-protagonist role in the international summits

carried out in its own country, the leadership on the rest of configurations of the Council

and in the acts where the head of government will present the priorities of the

Presidency and the reports of the six-monthly outcomes.

The Spanish Presidency was not different than the rest of presidencies planning the

activity of the Council for those six months with a lot of anticipation. The General

Secretary of the Council was as well an essential actor to prepare the rotating

Presidency. Despite the programmed formal meetings and the planned schedule for the

configurations of the Council and its preparatory bodies, other practices are becoming

increasingly common in the daily schedule of the Council. This is the case of the so-

called ―informal councils of Ministers‖. These particular councils were mentioned for

the first time in the agreement of the European Council of Helsinki the 10 and 11

December 1999. These meetings, organized and chaired by the rotating Presidency of

the semester, are useful to exchange different points of view among the Member States

concerning certain sectorial areas. They are usually held in the cities of the state holding

the rotating Presidency. They are not formally sessions of the Council, so in theory they

are not allowed to achieve agreements neither decision-making accords. The informal

councils of Ministers should be an informal discussion forum in a more relaxed

environment, where the sectorial Ministers of the Member States should discuss and

exchange their points of view in order to facilitate later the agreement in the formal

Councils (Ferrer de Martin, available online). Furthermore, the Helsinki agreement

stated that the number of these informal councils shouldn’t be more than five each

semester. In practice it can be observed that the agreement has not been obeyed, in

particular for the number of meetings and the prohibition of achieving accords. As

noted above, the Spanish Presidency lost the leadership role in the European Council

and the Foreign Affairs Council, but still chairs the rest of Councils. This means that the

responsibility to convene the meetings, the agenda setting functions and the

administrative and management capacity are powers of the rotating Presidency. During

the first semester of 2010, the initiative and the political boost of the Spanish Presidency

in the nine configurations of the Council were especially positive. The changing context

of the semester didn’t alter essentially the schedule and the rhythm of work. Around 20

informal meetings of Ministers where hold in Spain, in addition to the scheduled formal

Councils of Ministers held in Brussels. In short, the normal activity of the formal and

informal Councils was not affected by the reforms introduced by the TEU and the

TFEU.

Despite the fact that some of the functions of the rotating Presidency and the activity of

the Council were not altered during the first semester of 2101, the Spanish Presidency

had to deal with a unique moment of change in the Union. The President of the Spanish

government, José Luis Rodríguez Zapatero presented the main goals of the rotating

Presidency in an act organized by the Association of European Journalist in Madrid, the

12 February 2009. In his ambitious speech, the President pointed out the importance to

be a transformative Presidency, not just an administrative one. This approach had an

implicit prioritization of the political leadership for Spain that at the end it couldn’t be

achieved. The application for the first time of the TEU, the slowly rhythm of the

institutional changes –as the delay in the creation of the new Commission- and some

minor incidents involving a lack of coordination and small clashes in the distributions of

functions among the new actors were obstacles to accomplish the objectives. The

Spanish Presidency became mainly an administrative Presidency, what it has not to be

considered inferior to the political visibility or a non-prestigious function per se. On the

other side, if we consider the Presidency of the Council not only focused in the

administrative functions but also in the international projection that the State could

reach, the Spanish Presidency lacked this kind of symbolic recognition due to the

Lisbon reforms (Mangas Martin, 2010). Moreover, the exclusion of the Spanish

Presidency in some spheres, such us the management of the Greek economic crises, the

environmental international agreements or the significant cancellation of the Summit

EU-USA, among others, are considered a failure in the promoting capacity of the

Spanish Presidency (Barbé 2010). The Spanish press pointed out in some articles the

absence of the Spanish Presidency in the important meetings where the Union dealt with

the austerity budget measures in 2010(Vidal Folch, 2010).

Moreover, the Spanish government prepared the agenda and schedule of the six-

monthly Presidency based in the former model -before Lisbon-. Thus, the Spanish

Presidency was not prepared to face some unexpected situations and scheduled acts

could not take place. It is the case example of the extraordinary summit of Seville in

February 2011. The ―Reflection Group for the future of the European Union 2030‖,

presided by the former Prime Minister Felipe Gonzalez, was supposed to present its

proposals for the future Union. The act was cancelled because the new President of the

European Council, Herman Van Rompuy, organized an extraordinary Council in

Brussels to discuss about the financial crises.

To sum up, the Spanish Presidency can be seen as an administrative and managing

Presidency, lacking the political leadership and visibility that was set up as an ambitious

main goal. Despite important obstacles, such as the economical problems in Europe and

Spain, the necessary learning period for the implementation of the new Treaty or the

loose of sensitive roles -the external representation and the chair of the Foreign Affairs

Council- the Lisbon reforms began to be applied smoothly and the institutional goals of

the Spanish Presidency were achieved almost completely. The creation of the mediator

service, the European External Action Service, the European Citizen’s initiative or the

fact that the activity in formal and informal meetings didn’t stop are significant

achievements that also have to be considered.

During this period, the role played by the ACs was limited. They collaborated with the

central government before and during the Spanish Presidency of the Council in an

uncoordinated way and not following an action protocol. This fact was highlighted

during the process of making decisions regarding European affairs. According to the

Spanish legal system, the ACs' participation before the Council was specially

constrained by the functions that Spain had to carry out as being the Council’s

president.

2. Spain's process of making decisions in the Council

2.1. CARUE’s role in the process

The Conference on Affairs Related with the European Union (CARUE) was constituted

by law in 1997 (it had already existed since 1988 but its actions were redirected from an

informal collaboration to more officious terrain). It is a forum for cooperation between

the State and the ACs in European Union affairs. Formally, the functions of the CARUE

Secretariat are exercised from the Ministry of Territorial Policy’s Dirección General de

Cooperación Autonómica (General Direction of Autonomous Cooperation), generally

taking change of monitoring the participation of the ACs in European Union affairs in

collaboration with the Ministry of Foreign Affairs and Cooperation. Therefore, although

the CARUE is an organ for dialogue and cooperation between the State a nd the ACs, it

is linked to the General State Administration and, in whatever case, as the Law itself

declares "it should guarantee the effective participation of the ACs in the phase of

forming the State’s desires in relation to community institutions..."

So, and it is important to mention this, the system for the participation of the ACs that is

developed under this umbrella forms part of the actions of what is understood to be the

State as a whole. It therefore was not designed to be a system to enable collaboration

with central administration in defence of an Autonomous Community’s interest that is

different to what would be the action of the State. An internal cooperation is articulated

to reinforce the unique position of Spain with regard to the institutions of the EU

(Azpitarte: p. 144-147). Therefore, all those claims for the ACs to have more power in

European affairs, whether in determining, in some cases, the final position on a subject

or being developed with the specific character of the Autonomous Community, had no

place in this system of participation. This logic was later transferred to the CARUE

Agreements adopted in 2004 to guarantee the presence of the ACs in the Spanish

Delegation to the Council and its preparatory bodies. In particular, they state that the

whole process is to be governed, among others, by the principle of the "oneness of the

representation of Spain within the European Union". With the CARUE having been

created in view of such cooperation and consultancy between Spain and the ACs, it has

the following functions:

- Inform the ACs of the European process.

- Articulate mechanisms for effective participation in the formation of the State’s

will within the European communities.

- Resolve on the basis of cooperation any aspect related with the EU. Specifically,

there is a need to highlight the authority to cater for the participation of the ACs in

European affairs in which they lack any Sectorial Conference or equivalent.

- Promote the procedure and participation of the ACs in the respective Sectorial

Conferences with respect to community policies that affect the competences of the

autonomous regions and also guarantee that they comply with said functions .

In order to implement these commitments, the CARUE has at its disposal the Plenary

Conference made up (on behalf of central administration): the Minister for Territorial

Policy, the SEAE and the Secretary of State for territorial administrations; (on behalf of

autonomous administration): the Councillor (equivalent to the regional ministry) who is

designated by each Autonomous Community, depending on the issue at stake. It also

has two supporting bodies, on the one hand, the Commission of Coordinators, formed

by members of all administrations that are General Directors or equivalent. On the other

hand, the working groups, which are constituted within the Commission to prepare

specific questions and that are made up of specialist experts. The Counsellors for

Autonomous Affairs of the REPER are members of the Commission of Coordinators,

and also have the right to attend the Plenary Conference.

Finally, it is important to highlight that the CARUE can adopt agreements, such as those

of December 2004, depending on their internal regulations. The optimum cooperation

between the interlocutors of the CARUE Plenary would make it possible to resolve the

deficiencies that will be exposed in the following paragraphs. In this sense, the Plenary

Conference would have to meet at least twice a year, or whenever deemed necessary, at

the behest of the President or five of its members. However, one of the problems is that

it has not always had the sufficient quorum to be constituted.

2.2. The Agreements adopted by CARUE to promote the participation of the

ACs in the Council

On December 9, 2004, the CARUE adopted various agreements to promote the

participation of the ACs in the EU, and specifically in the Council, Committee of

Permanent Representatives (COREPER) and Working Groups. In order to do this in the

best possible conditions, the figure of the Counsellor for Autonomous Affairs of the

REPER was also strengthened. According to these Agreements, there is a need to

distinguish between, on the one hand, the process for the participation of the ACs in the

preparatory bodies: Working Groups and the COREPER and on the other hand, the

representation of the ACs in the configurations of the Council. In relation to this last

point, the participation of one Autonomous Community representative is expected in the

Spanish Delegation in the following four Council formations: a) Employment, social

policy, health and consumers; b) Agriculture and fishing; c) Environment; d) Education,

youth and culture. It is important to note that these are formations dealing with issues in

which the ACs have competences.

The method for designating the region representative is to be decided within the

corresponding Sectorial Conferences, which will nominate an Autonomous Community

representative to join the Spanish Delegation to the Council as a member with full rights

in representation of the ACs as a whole. The procedure to be followed is that

determined by each Sectorial Conference on the basis of a previous proposal agreed

only by the ACs. As an illustration, the 2004 Agreements declare that the mandate will

be for duration of at least six months. Once designated, the region representative must

undertake the following actions:

- Coordinate the process prior to the incorporation in the Spanish Delegation

(obtain information, communicate with other ACs…)

- Designate the specialists that will attend the Council’s preparatory meetings, i.e.

those developed within the Work Groups

- Participate through a Councillor from the autonomous governments in the

Spanish Delegation

- Transmit the results to the other ACs and the Counsellors for Autonomous

Affairs of the REPER in all matters concerning this representation both in the Council

and in the Working Groups

- Monitor the evolution of the affairs and the negotiations

When attending the Council with the Spanish Delegation, the Autonomous Community

representative may speak if it affects the competences of the ACs, if there is a common

position and if the head of the Spanish Delegation considers this opportune (which is

not always the case and varies depending on formations). In any case, the 2004

Agreements state that during negotiations the "autonomic position must be duly taken

into account‖ .

Meanwhile, with respect to the preparatory bodies, the CARUE Agreements state that

the ACs should be present in the COREPER and in the Working Groups related with the

configurations of the Council in which the ACs can be represented in the State

Delegation. Curiously, and despite these dispositions, the ACs do no attend the

COREPER either directly nor through the Counsellors for Autonomous Affairs of the

REPER. However, attendance of the Working Groups has been the focus of special

interest. There are two forms of participation:

- Ordinary: incorporation of Counsellors for Autonomous Affairs of the REPER

in the Spanish Delegation

- Supplementary: incorporation of a specialist from the ACs to exercise regional

representation in the Spanish Delegation

Once the mode of participation has been decided, the regional representative will work

in the Working Groups in the name of all of them, and enjoying si milar faculties to

those stipulated for regional participation in the Spanish Delegation to Council. It

should be stated that in practice, the ACs make more use of the special procedure, even

though the 2004 Agreements considered that the intervention of the Counsellor for

Autonomous Affairs of the REPER was the most feasible system. However, there are

reasons why the scales have been tipped towards the former method.

The formal participation of ACs in the four Council’s configurations open to regional

entities represents a first relevant result which gives visibility and confers a substantive

role to Spanish ACs. It has occasionally been commented that the ACs’ interest in

figuring in the Spanish Delegation and, if possible, having the right to speak, is more

emblematic than effective. However, some believe, with good reason, that it is the result

of efforts that had already begun in earlier phases. If the Autonomous Community

representative who represents the whole ACs has been working since the beginning to

defend the interests of all and has achieved a common position that the Spanish

Delegation then fails to give the due attention, then hasn’t all that effort been in vain?

Nevertheless, not only formal participation in the official Council configurations is

important. Many ACs reassesses the necessity to participate also in the preparatory

sessions of the Council’s Working Groups. Indeed, the ACs have realised that their

effective participation requires them to be present in the phases prior to the decis ion-

making by Council. As is widely known, many of the proposals that are adopted by said

institution have already been discussed and negotiated by the preparatory bodies.

Therefore, it makes no sense to only be present at the final stage when there is nothing,

or very little, that one can do. So, and although the Counsellors for Autonomous Affairs

of the REPER could represent the ACs in these Groups, these prefer to be implied

directly by undertaking intense activity in this field (Donaire: p.668).

3. How the participation of the ACs in the Council is implemented

3.1. Pros and cons of ACs’ participation

More than six years have passed since the adoption of the 2004 Agreements, a sufficient

amount of time to evaluate the results of the participation.

Positive Aspects:

-In all, this system has energized and increased the awareness of the regional

administrative departments in regards to European issues, and has therefore had an

important educational effect regarding the importance of the European Union nor mative

power and its impact on local politics. From this perspective the participation of the

ACs in European affairs is irreversible.

- The formal participation of ACs in the Council’s configurations is undoubtedly a

positive elements which enhances the Autonomous Communities role in the EU affairs.

- The process of definition of the common position among all ACs to be presented as

part of the position presented in the Council by the Spanish Delegation is also a positive

element since it fosters horizontal cooperation among the ACs, but it is not a

consolidated system in all areas.

Aspects to Improve:

- The Autonomous Community which owns the regional representation must secure a

common position among the ACs both in the Council and in the preparatory bodies,

which is not easy in terms of the subject and the time. In some sectors and subjects it

has been revealed that consensus is more easily reached than in others. In addition, there

is very little time to reach any agreements. There are two ways of seeking the adoption

of a common position: from Spain, on the one hand, and on the other during the

negotiations in the preparatory bodies in Brussels. In the former, the regional

representative, prior to the holding of a Sectorial Conference, meets with the other ACs

in order to establish a position that will later be transferred to the Conference with an

eye to reaching a consensus with the corresponding Ministry of the central

administration. The aim is to transmit the common regional position to the Spanish

Delegation to Council. The entire exercise has to be positively evaluated as it represents

a monumental effort in synthesizing the 17 different Autonomous Communities

positions.

What can happen here is that the time constraints are extremely severe and temporal

alignment among the correspondent Sectorial Conference, the Council and the Working

Groups is complicate. The obtainment of information in order to be aware of the matters

to be discussed in Working Groups and by the Council is not easy. In fact, it is one of

the biggest battlefields. One of the obstacles resides in the fact that there is no optimal

synchronicity between the designation of the regional representative and the meetings of

the Working Groups and the formation of Council (Beltran: p. 16). During the Working

Groups’ meetings, which are normally attended by a specialist from the Autonomous

Community representing all the others, the drafts are modified in accordance with the

negotiations. Usually, the regional representative has very little time indeed to advise,

negotiate and agree upon a common position at the same time that the negotiations are

going on in the Working Groups. In this respect, some authors have started insisting on

the need to reinforce horizontal cooperation, among the ACs, via the institutionalisation

of instruments such as agreements or others (Castellà: p. 87)

- Some difficulties exist at the moment of coordinating and making beneficial the efforts

between the ACs and the central state’s ministries. As has been explained, one of the

main functions of the Counsellors for Autonomous Affairs of the REPER are to transmit

information both to the ACs and to the Ministry of Territorial Policies. Similarly,

according to the CARUE agreements of 2004, said communication must be fast. In

relation to this aspect, the expeditiousness is justified by the principle of efficacy in

order to be able to adequately intervene in all potential areas of the participation of the

ACs in the EU. This problem is procedural, quantitative and selective (for identifying

important documents).

The channels that are used to receive documentation are not always satisfactory in this

respect. Specifically, the General Secretary of Council transmits the agendas and

documentation to the REPER’s Sectorial Councillors; these, in turn, if the matter is of

interest to the regions, are responsible for passing it on to the ACs. Throughout this

process, it must also be remembered that there is a huge amount of draft texts and

additional or complementary documentation that is handled during Working Group

meetings and not only must this be received on time but there also has to someone who

selects and identifies the most important documents.

However, even supposing that fast transmission is guaranteed, this would not satisfy the

interests of all of the potentially affected collectives. Some would prefer, indeed, to

receive the information directly from the REPER’s Sectorial Ministries, or directly from

the Council’s Secretary. Ultimately, there is an underlying debate regarding the role that

the Counsellors for Autonomous Affairs of the REPER should play in relation to the

ACs and State Administration: some feel that there is a need to increase the number of

Councillors given that they have far more work than they can cope with; others feel that

this figure adds to the bureaucracy, and that its functions could be exercised directly by

the ACs.

- The lack of a common position of the ACs with the state. If we assume that it was

difficult to have all the 17 ACs reach a consensus among themselves it is easy to deduce

that it will not be easy to transfer it to the State level.

The adoption of a common position rests with the Communities and from this

perspective the intervention of the Minister is unnecessary. However, once they have

adopted a common position they must notify the state so that it take it into account

during the negotiations in which the Spanish delegation takes part. Nevertheless, the

majority of times the ACs agrees on a common position a few days before holding a

Council. After consulting the reports of the Ministry of Territorial Policies on the

implementation of the 2004 Agreements, it was found that the ACs meet approximately

one week, ten days before the Council summit. Therefore, the ACs cannot pass their

opinion to the Spanish delegation in the preparatory Council where the negotiations

actually begin.

- The improvement of horizontal cooperation among ACs requires developed

administrative capacities at the regional level for participation being effective. T he

preparation of personnel for attending preparatory bodies is a delicate question. The

profile required to guarantee an effective regional participation in the Spanish

Delegation that intervenes in the Working Groups is not equally available in all ACs’

administrative staff. Practice shows that this either consists of expert specialists on a

specific subject or otherwise general specialists in European affairs (this is a matter that

is decided by the Autonomous Community chosen as a representative). Sometimes

even, expert-specialists (not necessarily civil servants) are contracted, or some members

attend from the Autonomous Office in Brussels. In short, the practice is very diverse.

The ACs may reach an agreement that two profiles are necessary: an expert specialist

that understands the subject, and a specialist that knows how to negotiate both in and

outside of the Spanish Delegation (a kind of regional ―diplomat‖). In many cases, it

would be useful for there to be two or more people attending Working Groups, but this

is not viable economically, or in terms of the availability of staff and the modus

operandi. The cost of finding experts and transferring them from Spain to Brussels, and

the time required for the specialists to prepare for and attend meetings to the detriment

of their other designated functions, are not encouraging.

- But it exists a problem more deeply: not all want the same model of participation; not

all want to participate with Spain or under Spain in connection with European Union

This last question became more evident during the Spanish Presidency of the EU

Council.

3.2. The State – ACs collaboration when Spain led the Council

The coordination difficulties between the ACs or the lack of consensus between the

ACs and the central government deepened during the Spanish Presidency of the

Council. Our country was assigned the role of promoting policies, seeking consensus,

while remaining neutral. For this reason, the system of participation of the ACs under

the 2004 Agreements was kept on standby. The ACs could not go against the the

Spanish Presidency’s program as it would have contradicted a text they submitted (as

parts of the Spanish state!). This was the reason why the ACs did not meet to form a

common position prior to the formation of the Council.

The solution would have been that the state had previously discussed with the ACs the

six-month program it was going to present as well as the manner to proceed during that

period of time, but that was not the case in general terms. The state did not articulate

any formal previous mechanism through which the ACs could express their opinions

before submitting their timetable to the national delegations.

However, the coordinating Autonomous Community continued to serve a dual role:

representing the ACs in the Spanish Delegation before the Council and preparatory

bodies and informing the rest of the regions of the actions of the Spanish Presidency. In

some cases, even the involvement of the Autonomous Community representative was

greater. For example, the Canary Councillor was invited to co-chair the Informal

Employment Council held in Barcelona on 27-28 January 2010. However this visibility

of the participation of the ACs was not equally present in all sectors and was mostly

voluntary.

The second remarkable aspect is that during this period the ACs were paradoxically

allowed, for the first time, to participate in the informal Council meetings. This

possibility was not explicitly stated in the 2004 Agreements, but it was not considered

to be prohibited either. It simply had not been done. Now, this was done without much

coordination as, for example, in the informal Council meetings, were not scheduled in

the territory of the representative Autonomous Community, which would have the most

appropriate if the intention was to strengthen the model of the ACs’ participation

according to the 2004 Agreements.

A Sea of Doubts…

In sum, the representation of the ACs in the Spanish Delegation during the period of the

Presidency was considered a cohesive element of the state by some of the

administration experts we interviewed, due to the fact that the ACs were involved in the

development. On the other hand, others said it was a wasted period of time because the

ACs could not influence the elaboration of European policies and in practice they only

received information. In any case it is a fact that the participation of the ACs before the

Council and their preparatory bodies was passive given that they could not express their

opinion.

For this last reason in particular, it would have been the perfect period to improve the

previously internal participation to try to include the ACs position in the Program of the

Presidency of the Council, but this was not the case. Only during the Spanish

Presidency were reflections made by ACs in some fields, i.e agriculture (Grupo de

Trabajo de las Comunidades Autonomas para la Presidencia española, 2010), but it is

uncertain whether the central state took that opinion into account. A system doesn't yet

exist to verify it. Moreover the central state is not required to justify its European

position before ACs.

In any case, during this period it was obvious that the role the regions play or could play

before the Council is not independent of the state to which they belong. As has bee n

stated on numerous occasions, this institution exists to defend state interests. The

proposals to better the system of participation of the ACs before the Council should not

forget this premise. From here, strengthening coordination between ACs and between

them and the central state is a claim that demands a certain amount of urgency to engage

–effectively— the ACs in the EU decision-making process. Otherwise, the ACs do not

realistically participate and we remain submerged in a sea of doubts. And finally, Spain

cannot defend its position in the Council in the optimal way.

Bibliography and Documentation

Azpitarte, M. "El Estado autonómico unitario y el Informe del Consejo de Estado sobre

la inserción del derecho europeo en el ordenamiento español", Revista d'Estudis

Autonòmics i Federals, n. 9, 2009, pp. 129-164

Barbé, E. (edit), Entre la irrelevancia institucional y el aprendizaje: La Presidencia

española de la Unión Europea (2010), Institut Universitari d’Estudis Europeus, 2010.

Beltran, S. "La aplicacion de los Acuerdos que regulan la participación de las

Comunidades Autónomas en el Consejo de la Unión Europea", Revista General de

Derecho Europeo, n. 22, 2010, pp. 1-28

Castellà, J. M. "Las Comunidades Autónomas en Bruselas: la dimensión externa de la

participación autonómica en la Unión europea", Revista d'Estudis Autonòmics i

Federals, n.6, 2008, pp. 37-91

Comunidades Autonomas. Grupo de Trabajo de las Comunidades Autónomas creado

en el marco de la Presidencia española de la Unión Europea (Agricultura), May 2010

Consejo Europeo de Helsinki, Anexo III, recomendaciones operativas, punto E, de las

Conclusiones de la Presidencia, 10 and 11 December 1999.

Donaire, F.J. "La Conferencia para Asuntos Relacionados con las Comunidades

Europeas en el año 2008", La Unión europea y las Comunidades Autónomas, Instituto

de Derecho Público, 2009, pp. 668-697

Ferrer Martín de Vidales, C. El Consejo de la Unión Europea, European Community

Studies Association, in http://www.ucm.es/info/audesco/de/wp0901.pdf

Herranz, A. ―La presidencia española ante el papel reforzado del Parlamento Europeo

en política exterior: el nuevo rol de mediación interinstitucional‖, in Barbé, E., (edit),

Entre la irrelevancia institucional y el aprendizaje: La Presidencia española de la

Unión Europea (2010), Institut Universitari d’Estudis Europeus, 2010.

Mangas Martin, A. ―El Tratado de Lisboa dejó coja a la presidencia española‖, La

Nueva España, 21 July 2010.

Mestres, L. ―Preparando la última presidencia del Consejo de la UE: algunos entresijos

de la gestión española de la política europea‖, in Barbé, E., (edit), Entre la irrelevancia

institucional y el aprendizaje: La Presidencia española de la Unión Europea (2010),

Institut Universitari d’Estudis Europeus, 2010.

Ministerio de Política Territorial. Secretaria de Estado de cooperación territorial,

Dirección General de Cooperación Autonómica., Informe sobre el cumplimiento de los

acuerdos de la Conferencia para Asuntos relacionados con las Comunidades Europeas,

de 9 de diciembre de 2004, referentes a la participación de las Comunidades

Autónomas en el Consejo de ministros de la Unión Europea (years 2007,2008, 2009)

Molina, I. ―Implementation of the Lisbon Treaty under the Spanish Presidency‖, in EU-

27 Watch no.9, Institut für Europäische Politik, July 2010 available at http://www.EU-

27watch.org

Molina, I., Sorroza, A. ―La presidencia española como primera experiencia post-

Lisboa‖, in Sorroza Blanco, A. (coord.), Presidencia española: Retos en una nueva

Unión Europea, Madrid, Real Instituto Elcano, 2010.

Programa de 18 meses de las Presidencias española, belga y húngara, Council of the

European Union 16771/09, Brussels, 27 November 2009.

Proyecto Europa 2030: Retos y oportunidades. Informe al Consejo Europeo del Grupo

de Reflexión sobre el futuro de la UE2030, May 2010.

Rodríguez Zapatero, J.L. ―Discurso y posterior coloquio del Presidente del Gobierno

para presentar los objetivos de la Presidencia española de la Unión Europea en un acto

organizado por la Asociación de Periodistas Europeos‖, Madrid, 12 February 2009.

Vidal Folch, X. ―Ni España está ni se la espera‖, El País, 30 September 2010.