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Published online by Cambridge University Press: 06 March 2019
The purpose of this article is to explore the avenues for legal accountability vis-à-vis the European Council after the Treaty of Lisbon. This will be achieved through an assessment of the jurisdictional realms of, on the one hand, the Court of Justice of the European Union (CJEU), and on the other hand, the European Ombudsman, always in relation to the European Council. Legal accountability may be understood in this respect as the supervision of the observance of the European Union (EU) rule of law. The European Ombudsman is an EU body established by the Treaty of Maastricht; by virtue of Art. 228 of the Treaty on the Functioning of the European Union (TFEU), he or she has the power to investigate complaints of maladministration “in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role.”
1 Consolidated Version of the Treaty on the Functioning of the European Union art. 228, Dec. 13, 2007, 2008 O.J. (C 115) 47 [hereinafter TFEU].Google Scholar
2 Ireland, Pringle v., CJEU Case C-370/12, 296 (Nov. 27, 2012), http://curia.europa.eu/jcms/jcms/j_6/.Google Scholar
3 This expansion is not assed here normatively, but is merely accepted for the purposes of the inquiry.Google Scholar
4 Treaty on European Union art. 13.1, Dec. 24, 2002, 2002 O.J. (C325) 14 [hereinafter TEU].Google Scholar
5 See TEU art. 15.5.Google Scholar
6 See TEU art. 15.1 (emphasis added). Note the stronger formulation as compared to TEU art. 4 of the Nice Treaty, which stated that the European Council “shall define the general political guidelines thereof.”Google Scholar
7 See TEU art. 15.1.Google Scholar
8 Jan Werts, The European Council 25–27 (2008).Google Scholar
9 See The ‘Community Method': Obstinate or Obsolete? (Renaud Dehousse ed., 2011).Google Scholar
10 Paolo Ponzano, Costanza Hermanin & Daniela Corona, The Power of Initiative of the European Commission: A Progressive Erosion? (2012).Google Scholar
11 Tosato, Gian Luigi, The Shape of Post-Lisbon Europe, in The European Union in the 21ST Century: Perspectives From the Lisbon Treaty 271, 276 (Stefano Micossi & Gian Luigi Tosato eds., 2009). See also Uwe Puetter, Europe's Deliberative Intergovernmentalism: The Role of the Council and European Council in EU Economic Governance, 19 J. Eur. Pub. Pol'y 161 (2012).Google Scholar
12 Crum, Ben, Accountability and Personalisation of the European Council Presidency, 31 J. Eur. Integration 685 (2009).Google Scholar
13 See Herman Van Rompuy, The European Council in 2011 6 (2012).Google Scholar
14 Craig, Paul, The Lisbon Treaty: Law, Politics and Treaty Reform 115–16 (2010). Due to space limitations, the notion of “accountability“ cannot be discussed in this account, but see generally Mark Bovens, Analysing and Assessing Accountability: A Conceptual Framework, 13 Eur. L.J. 447 (2007); Carol Harlow, Accountability in the European Union (2002).Google Scholar
15 See generally Marianne van de Steeg, Public Accountability in the European Union: Is the European Parliament Able to Hold the European Council Accountable? 13 Eur. Integration Online Papers (2009), available at eiop.or.at/eiop/index.php/eiop/article/view/2009_003a; Crum, supra note 12, at 696; Henri de Waele & Hansko Broeksteeg, The Semi-Permanent European Council Presidency: Some Reflections on the Law and Early Practice, 49 Common Mkt. L. Rev. 1066 (2012); DN, JHR and TV, The European Council and the National Executives: Segmentation, Consolidation and Legitimation, 8 Eur. Const. L. Rev. 166, 170 (2012); Van Rompuy supra note 13, at 5.Google Scholar
16 Craig, supra note 14, at 115–16.Google Scholar
17 Hofmann, Herwig C.H., Seven Challenges for EU Administrative Law, 2 Rev. Eur. Admin. L. 48 (2009). Hofmann adds that these elements consist of “the principles of requirement of a legal basis, excluding ultra-vires activity and all activity violating fundamental rights and fundamental principles including the principles of good administration.” See id. at n. 33. This definition—encompassing the principles of good administration—is particularly relevant for present purposes, as will be demonstrated below.Google Scholar
18 Craig, supra note 14, at 115.Google Scholar
19 Pringle, CJEU Case C-370/12 at 296.Google Scholar
20 Council, Roujansky v., CJEU Case C-253/94, 1995 E.C.R. I-7 [hereinafter Roujansky]; Bonnamy v. Council, CJEU Case C-264/94, 1995 E.C.R. I-15 [hereinafter Bonnamy].Google Scholar
21 See Roujansky, supra note 20, ¶ 2; Bonnamy, supra note 20, ¶ 2.Google Scholar
22 See Roujansky, supra note 20, ¶ 11; Bonnamy, supra note 20, ¶ 11.Google Scholar
23 Les Verts v. European Parliament, CJEU Case C-294/83, 1986 E.C.R. I-1339.Google Scholar
24 See Roujansky, supra note 20, ¶ 11; Bonnamy, supra note 20, ¶ 11.Google Scholar
25 Luxembourg v. European Parliament, CJEU Case C-213/88, 1991 E.C.R. I-5643 [hereinafter Luxembourg].Google Scholar
26 Resolution of the European Parliament of 18 Jan. 1989 on the Seat of the Institutions and the Main Place of Work of the European Parliament, Eur. Parl. Doc. A2-316/88 (1989) available at www.cvce.eu/obj/european_parliament_resolution_on_the_seat_of_the_institutions_18_january_1989-eneccf4423-735d-45f5-a26c-04c331452d2f.html.Google Scholar
27 See Luxembourg, supra note 25, at ¶ 15.Google Scholar
28 U.K. v. Comm'n, CJEU Case C-114/86, 1988 E.C.R. I-5289 [hereinafter U.K. v. Comm'n]. See also Comm'n v. Council (European Agreement on Road Transport or ERTA), CJEU C-22/70, 1971 E.C.R. I-263, cited in K.C. Wellens & G.M. Borchardt, Soft Law in European Community Law, 14 Eur. L. Rev. 291, 310, 312 (1989). The Court stated that whatever the form of “common rules” adopted by the Community in order to implement a common policy (transport in that case), member states should not “undertake obligations with third countries which affect those rules.” Id. at ¶ 17. Moreover, the Court did not accept the Council's submissions on the nature of the proceedings which, according to the latter, “were really nothing more than a coordination of policies amongst Member States within the framework of the Council, and as such created no rights, imposed no obligations and did not modify any legal position.” Id. at ¶ 36. The judicial review must ensure, according to the Court, the “observance of the law in the interpretation and application of the Treaty” and in that sense any act other than a recommendation or opinion—including acts which might not necessarily constitute a regulation, a directive or a decision—should be examined as to its potential legal effects. Id. at ¶ 40–42.Google Scholar
29 Salerno v. Comm'n and Council, Joined CJEU Cases C-87, 130/77, 22/83, 9 & 10/84, 1985 E.C.R. I-2523, at ¶ 59.Google Scholar
30 See Luxembourg, supra note 25, at ¶ 27.Google Scholar
31 See Luxembourg, supra note 25, at ¶ 25.Google Scholar
32 See U.K. v. Comm'n, supra note 28.Google Scholar
33 See U.K. v. Comm'n, supra note 28, at ¶¶ 13–15.Google Scholar
34 See U.K. v. Comm'n, supra note 28, at ¶ 14.Google Scholar
35 See ERTA, supra note 28, at ¶¶ 44–55. In particular, the Court found that “the Council's proceedings dealt with a matter falling within the power of the Community, and that the Member States could not therefore act outside the framework of the common institutions.” Id. at ¶ 52. The Court also found that on the “objective of the negotiations … the proceedings of 20 March 1970 could not have been simply the expression of the recognition of voluntary coordination, but were designed to lay down a course of action binding on both the institutions and the Member States, and destined ultimately to be reflected in the tenor of the regulation.” Id. at ¶ 53. Finally, on the procedure, the provisions adopted by the Council included derogations from the status quo concerning “negotiations with third countries and the conclusion of agreements.” Id. at ¶ 54.Google Scholar
36 Opinion of the Advocate General Dutheillet de Lamothe, at 287, Commission of the European Communities v. Council of the European Communities, CJEU Case 22/70 (Mar. 10, 1971), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61970CC0022:EN:NOT.Google Scholar
37 Id. at 288.Google Scholar
38 Frederic Eggermont, The Changing Role of the European Council in the Institutional Framework of the European Union: Consequences for the European Integration Process 147 (2012) (discussing Germany v. European Parliament and Council, CJEU Case C-233/94, 1997 E.C.R. I-2405).Google Scholar
39 Comm'n v. Council, CJEU Case C-27/04, 2004 E.C.R. I-6649.Google Scholar
40 See Eggermont, supra note 38, at 148–50.Google Scholar
41 See TFEU art. 263.Google Scholar
42 See TFEU art. 265.Google Scholar
43 Craig, supra note 14, at 127.Google Scholar
44 See TEU art. 15.1.Google Scholar
45 Report on the Treaty of Lisbon, at 47 (Jan. 29, 2008) available at http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2008-0013&language=EN.Google Scholar
46 See TEU art. 24.1. See also TEU art. 22.1 (stating that, in regard to external action, the European Council “shall identify the strategic interests and objectives of the Union”).Google Scholar
47 See TEU art. 18.2 (stating that she will “conduct the Union's common foreign and security policy” and “the common security and defence policy”). See also TEU art. 24.1 (stating that the High Representative will “put into effect” the CFSP). Note also that since 2004, a European Defence Agency operates in Brussels.Google Scholar
48 See TEU art. 15.2.Google Scholar
49 See TEU art. 18.1. It has been argued that the High Representative may be seen as an agent of the European Council. See Wolfgang Wessels & Franziska Bopp, The Institutional Architecture of CFSP after the Lisbon Treaty – Constitutional Breakthrough or Challenges Ahead?, Challenge Research Paper n.10 (2008), available at www.ceps.eu/book/institutional-architecture-cfsp-after-lisbon-treaty-constitutional-breakthrough-or-challengesa. This is notwithstanding the President's absence of “any autonomous powers” over the High Representative. See Henri de Waele & Hansko Broeksteeg, The Semi-Permanent European Council Presidency: Some Reflections on the Law and Early Practice, 49 Common Mkt. L. Rev. 1063 (2012) (claiming that “the constitutional position of the President is of slightly greater weight than that of the High Representative” and additionally that “the President prevails, largely by virtue of the weight and force of the institution he presides”).Google Scholar
50 See TEU art. 27.3; Declaration No. 15 of the Lisbon Treaty, Sept. 5, 2008, 2008 O.J. (C115) 343.Google Scholar
51 See TEU art. 24.1; TEU art. 40.Google Scholar
52 See, e.g., Wessels & Bopp, supra note 49, at 17–18; Report on the Treaty of Lisbon, supra note 45, at 47. Note, though, if CFSP measures require implementation that will be adopted under an area of the CJEU's jurisdiction, as in Kadi, the Court “could indirectly review the CFSP act.” See Dorota Leczykiewicz, “Effective Judicial Protection” of Human Rights After Lisbon: Should National Courts be Empowered to Review EU Secondary Law?, 35 Eur. L. Rev. 326, 327 (2010).Google Scholar
53 See Piet Eeckhout, The EU's Common Foreign and Security Policy after Lisbon: From Pillar Talk to Constitutionalism, in EU Law After Lisbon 265, 290–91 (Andrea Biondi, Piet Eeckhout & Stefanie Ripley eds., 2012) (finding the status quo—including the limited role of the European Parliament—“unacceptable in a polity governed by the rule of law” and proposing a departure from the debate between supranaltionalism and intergovernmetalism towards accountability issues and constitutionalism in CFSP).Google Scholar
54 See Piris, Jean-Claude, Appendix 6 of The Lisbon Treaty: A Legal and Political Analysis, at 379–82 (2010); Michael Dougan, The Treaty of Lisbon 2007: Winning Minds, Not Hearts, 45 Common Mkt. L. Rev. 617, 627 (2008) (arguing that some of the legally binding decisions of the European Council are of “‘quasi-constitutional’ or ‘high politics’ nature'”). See also Editorial Comments to An Ever Mighty European Council—Some Recent Institutional Developments, 46 Common Mkt. L. Rev. 1383, 1391 (2009).Google Scholar
55 Unanimous decisions of the European Council enabling the Council to switch from unanimity to qualified majority or from a special legislative procedure to the ordinary legislative procedure.Google Scholar
56 See Dougan, supra note 54, at 643. In sum, these provisions enable a member state in cases where a national interest is at stake to suspend the ordinary legislative procedure and refer the matter to the European Council. The social security measures and judicial cooperation in criminal matters are two areas of use.Google Scholar
57 TEU art. 7.2.Google Scholar
58 Cf. Jacobs, Francis G., The Lisbon Treaty and the Court of Justice, in EU Law After Lisbon 197, 199 (Andrea Biondi, Piet Eeckhout & Stefanie Ripley eds., 2012) (asserting that the instances where the Court will review an act of the European Council “might be expected to be relatively rare”).Google Scholar
59 See House of Lords, European Union Committee The Treaty of Lisbon: An Impact Assessment, 10th Report of Session, at 2007–08 (Mar. 13, 2008), available at http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/ldeucom.htm.Google Scholar
60 See id. at 76 (Opinion of Sir David Edward).Google Scholar
61 Id. (Opinion of Professor David Chalmers).Google Scholar
62 Id. Google Scholar
63 Piris, supra note 54, at 205–06.Google Scholar
64 Goebel, Roger G., The European Council after the Treaty of Lisbon, 34 Fordham Int'l L.J. 1251, 1258 (2011).Google Scholar
65 See Birkinshaw, Patrick, Transparency and Access to Documents, in The European Union Legal Order After Lisbon 232, 232–33 (Patrick Birkinshaw & Mike Varney eds., 2010); Craig, supra note 14, at 117.Google Scholar
66 See TFEU art. 48(b) (covering the social security system).Google Scholar
67 See Werts, supra note 8, at 62 (using stronger words: the conclusions are “politically binding”).Google Scholar
68 Senden, Linda, Soft Law In European Community Law 193 (2004). Cf. TFEU art. 297 (stating that legislative acts “shall be published” in the OJEU, but not specifying the process to be followed with non-legislative acts).Google Scholar
69 See European Council Decision 2009/882/EU, art. 12.1, 2009 O.J. (L 315/51) (EC) (adopting its rules of procedure).Google Scholar
70 Werts, supra note 8, at 27. See Alan Dashwood, Decision-Making at the Summit, 3 Cambridge Y.B. of Eur. Legal Stud., 29, 81–82 (2000) (arguing accordingly when admitting that had the European Council been granted a “power to effect changes in the law of the Union,” this would contravene the “deep structure of the Union order,” which imposes upon the institutions a mission to “retain their specific identities and maintain the integrity of their reciprocal relationships”).Google Scholar
71 Note, though, that Wellens & Borchardt, supra note 28, at 321 concluded in their seminal article on “soft law” as follows: “In so far as Community law intends to cause legal consequences with regard to the individual these rules of conduct are particularly eligible for an appeal for annulment or a preliminary ruling. In this light having recourse to Community soft law appears to be justified if and in so far as it furthers the process of European integration. On the other hand the individual's legal protection calls for its cautious use.”Google Scholar
72 See Editorial Comments, supra note 54, at 1386. To be sure, this configuration was not inaugurated in 2009, but is used here as an example for our hypothesis.Google Scholar
73 See Craig, supra note 14, at 115; Wellens & Borchardt, supra note 28, at 321; TFEU art. 267. See also Pringle discussion infra B.III (reaching the Court via a preliminary reference).Google Scholar
74 See TFEU art. 267; TEU art. 13.Google Scholar
75 See Bart Van Vooren, A Case Study of “Soft Law” in EU External Relations: The European Neighbourhood Policy, 34 Eur. L. Rev. 696, 700 (2009) (citing Senden, supra note 68, at 112).Google Scholar
76 Vooren, Van, supra note 75, at 700.Google Scholar
77 See Piris, supra note 54, at 379–82; Dougan, supra note 54, at 627.Google Scholar
78 Roujansky, CJEU Case C-253/94 P;Bonnamy, CJEU Case C-264/94 P.Google Scholar
79 See Pringle, CJEU Case C-370/12. For a thorough analysis, see Vestert Borger, The ESM and the European Court's Predicament in Pringle, 14 German L.J. 113, 113–40 (2013); Pieter-Augustijn Van Malleghem, Pringle: A Paradigm Shift in the European Union's Monetary Constitution, 14 German L.J. 141, 141–68 (2013); Jonathan Tomkin, Contradiction, Circumvention and Conceptual Gymnastics: The Impact of the Adoption of the ESM Treaty on the State of European Democracy, 14 German L.J. 169, 169–90 (2013).Google Scholar
80 European Council Decision 2011/199/EU, 2011 O.J. (L 91) (EC) (amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro).Google Scholar
81 See Pringle, CJEU Case C-370/12, at ¶ 30.Google Scholar
82 Malleghem, Van, supra note 79, ¶ 149.Google Scholar
83 Pringle, CJEU Case C-370/12, ¶ 31.Google Scholar
84 See European Council Decision 2011/199/EU, art. 3, 2011 O.J. (L 91) (EC).Google Scholar
85 Cf. also Piris, supra note 54, at 379–82.Google Scholar
86 See Pringle, CJEU Case C-370/12, at ¶ 36.Google Scholar
87 Cf. the Recital 5 of European Council Decision 2011/199/EU, 2011 O.J. (L 91) (EC).Google Scholar
88 See Pringle, CJEU Case C-370/12, ¶ 42. See also Van Malleghem, supra note 79, at 149–50 (noting that it is settled case law “that a preliminary reference concerning the validity of an act is only barred when the party challenging that validity had the right to bring a direct action under Art. 263 TFEU.”).Google Scholar
89 See Pringle, CJEU Case C-370/12, at ¶¶ 58, 65.Google Scholar
90 Cf. Eggermont, , supra note 38, at 148–50.Google Scholar
91 European Ombudsman Annual Report 1995, at 22 (Apr. 22, 1996), available at http://www.ombudsman.europa.eu/activities/annualreports.faces.Google Scholar
92 Id. at 23.Google Scholar
93 Id. at 5.Google Scholar
94 Id. Google Scholar
95 European Ombudsman Annual Report 1997, at 24 (Apr. 20, 1998), available at http://www.ombudsman.europa.eu/activities/annualreports.faces.Google Scholar
96 See Diamandouros, P. Nikiforos, The European Ombudsman and Good Administration Post-Lisbon, in The European Union After the Treaty of Lisbon 210, 212–13 (Diamond Ashiagbor, Nicola Countouris & Ioannis Lianos eds., 2012).Google Scholar
97 European Ombudsman Annual Report 2009, at 27 (Apr. 19, 2010), available at http://www.ombudsman.europa.eu/activities/annualreports.faces.Google Scholar
98 Cf. also the delineation of legal accountability by Hofmann, supra note 17, at 48.Google Scholar
99 Relevant here is Harlow's understanding of legal accountability as “accountability through law”, where she inter alia discusses the link between accountability and the rule of law, even though she does not directly refer to the Ombudsman. See Harlow, supra note 14, at 145 et seq. Bovens would classify the European Ombudsman's control among the instruments of “administrative accountability”, “[n]ext to the Courts”, as a “quasi-legal forum”. See Bovens, supra note 14, at 456. Thus, while Bovens recognizes a certain degree of overlap, it has been shown in this account why the placement of the European Ombudsman among the instruments of legal accountability is still plausible).Google Scholar
100 The European Ombudsman Annual Reports are available at http://www.ombudsman.europa.eu/activities/annualreports.faces.Google Scholar
101 Koutrakos, Panos, Primary Law and Policy in EU External Relations—Moving Away from the Big Picture, 33 Euro. L. Rev. 666, 668–69 (2008) (stating that despite this, the “legal characteristics” of CFSP remain “intact”).Google Scholar
102 See European Ombudsman, supra note 97, at 23; European Ombudsman Annual Report 2010, at 14 (Feb. 18, 2011), available at http://www.ombudsman.europa.eu/activities/annualreports.faces.Google Scholar
103 Compare supra notes 51–53.Google Scholar
104 As is the case with the CJEU; cf. TFEU art. 263.Google Scholar
105 See supra note 88.Google Scholar
106 See Bonnor, Peter, When EU Civil Society Complains: Civil Society Organisations and Ombudsmanship at the European Level, in Civil Society and Legitimate European Governance 141 (Stijn Smismans ed., 2006) (stating that just as civil society organizations benefit from the ombudsman's presence, they may equally prove considerable aids to the ombudsman herself by providing her with “input”).Google Scholar
107 See for example European Ombudsman Annual Report 2010, supra note 102, at 37 (stating that 33% of cases, or 107 out of 326, dealt with requests for information and access to documents (transparency)).Google Scholar
108 It might be so because, contrary to the Nice Treaty and quite regrettably, there is no CFSP provision in Lisbon referring to Art. 15.3 TFEU (access to documents). For more on the pre-Lisbon status, see Ramses A. Wessel, Good Governance and EU Foreign, Security and Defence Policy, in Good Governance and the European Union: Reflections on Concepts, Institutions and Substance 215, 228–39 (Deirdre M. Curtin & Ramses A. Wessel eds., 2005).Google Scholar
109 See also Settembri, Pierpaolo, Transparency and the EU Legislator: “Let He Who is Without Sin Cast the First Stone,” 43 J. of Common Mkt. Stud. 637, 640 (2005) (“a broader [than access to documents] definition of transparency is proposed, to be understood as the availability of all information required by an actor in order to fulfil a specific function in a given context.”).Google Scholar
110 Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 O.J. (L145/43).Google Scholar
111 This is probably what Settembri calls “transparency of the debates.” See Settembri, supra note 109, at 642.Google Scholar
112 The European Ombudsman treats conflicts of interest as a separate category of complaints, even though one could argue that they are inter-connected with transparency questions to a considerable extent.Google Scholar
113 Decision of the European Ombudsman Adopting Implementing Provisions, adopted on 8 July 2002 and amended by decisions of the Ombudsman of 5 April 2004 and 3 December 2008, available at www.ombudsman.europa.eu/en/resources/provisions.faces; id. art. 9 (stating that both the powers of investigation and the procedures in own-initiative inquiries are analogous to the ones followed further to the submission of a complaint).Google Scholar
114 See European Ombudsman Annual Report 1995, supra note 91, at 11.Google Scholar
115 Certain examples are provided, see infra notes 120–42.Google Scholar
116 See TFEU art. 228.Google Scholar
117 See Decision of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, 1994 O.J. (L 113) art. 2, available at, www.ombudsman.europa.eu/en/resources/statute.faces.Google Scholar
118 Art. 1 of the European Code of Good Administrative Behaviour, available at http://www.ombudsman.europa.eu/resources/code.faces#/page/1.Google Scholar
119 See also Diamandouros, supra note 96, at 211 (discussing that transparency is an area the Ombudsman himself considers pertinent when discussing the expansion of the mandate towards the European Council).Google Scholar
120 See European Ombudsman Case OI/3/2011/KM, available at http://www.ombudsman.europa.eu/cases/home.faces.Google Scholar
121 See Regulation 1049/2001, supra note 110, art. 8.2 (providing examples of “a very long document” or “a very large number of documents”).Google Scholar
122 See European Ombudsman Case OI/3/2011/KM, supra note 120, at ¶¶ 9–15.Google Scholar
123 Id. at pt. C.Google Scholar
124 See European Ombudsman Case 2172/2005/MHZ, available at http://www.ombudsman.europa.eu/cases/home.faces.Google Scholar
125 Id. Google Scholar
126 Id. at pt.3, 5–10 (“The Ombudsman's efforts to achieve a friendly solution”).Google Scholar
127 Id. ¶ 1.6–1.9 (The Ombudsman's “Decision”).Google Scholar
128 See European Ombudsman Case 808/2011/MHZ, available at www.ombudsman.europa.eu/en/cases/decision.faces.Google Scholar
129 Id. ¶ 19.Google Scholar
130 Id. ¶¶ 17–18.Google Scholar
131 The transparency regime of the European Council is regulated by art. 10 of its Rules of Procedure, entitled “Making public votes, explanations of votes and minutes and access to documents.” It reads as follows:Google Scholar
1. In cases where, in accordance with the Treaties, the European Council adopts a decision, the European Council may decide, in accordance with the voting arrangement applicable for the adoption of that decision, to make public the results of votes, as well as the statements in its minutes and the items in those minutes relating to the adoption of that decision.
Where the result of a vote is made public, the explanations of the vote provided when the vote was taken shall also be made public at the request of the member of the European Council concerned, with due regard for these Rules of Procedure, legal certainty and the interests of the European Council.
2. The provisions concerning public access to Council documents set out in Annex II to the Rules of Procedure of the Council shall apply mutatis mutandis to European Council documents. European Council Decision 2009/882/EU, supra note 69, at art. 10.
132 European Ombudsman Case 0531/2012/MMN, available at www.ombudsman.europa.eu/cases/caseopened.faces. Note also that another inquiry has been opened against the European Council concerning—again—access to documents. See European Ombudsman Case 0862/2012/RT, available at www.ombudsman.europa.eu/cases/caseopened.faces.Google Scholar
133 European Ombudsman Case 3272/2008/(WP)BEH, available at www.ombudsman.europa.eu/cases/decision.faces.Google Scholar
134 Id.¶¶ 12–15.Google Scholar
135 Id. ¶¶ 33, 35.Google Scholar
136 Id. ¶ 37. It may be relevant that the European Council is currently constructing its own building in Brussels, the, EUROPA Building. See EUROPA: A Building for the European Council (Aug. 4, 2013), www.european-council.europa.eu/the-institution/europa-building. This is certainly a positive development, which will hopefully provide the necessary administrative and operational independence from the Council in due time. For now, the Treaty states that the General Secretariat of the Council shall assist the European Council. See TFEU art. 235.4.Google Scholar
137 European Ombudsman Case OI/I/2010/(BEH)MMN, available at www.ombudsman.europa.eu/cases/decision.faces.Google Scholar
138 See id. ¶ 32.Google Scholar
139 See id.¶¶ 33–39.Google Scholar
140 Id. ¶ 35.Google Scholar
141 See id. ¶ 39.Google Scholar
142 Id. It should be acknowledged that an extensive analysis of cases against the High Representative might be relevant in a contribution discussing the European Council's legal accountability only to a certain extent, due to her institutional links with both the Commission (Vice President) and the Council (President of the Foreign Affairs Council), even though at the time of writing (May 2013) there were no registered cases against the High Representative by the Ombudsman's office.Google Scholar
143 Vooren, Bart Van, A Legal-Institutional Perspective on the European External Action Service, 48 Common Mkt. L. Rev. 475 (2011).Google Scholar
144 See European Ombudsman Case 1051/2010/BEH, available at www.ombudsman.europa.eu/cases/decision.faces. The case was initially directed against the Commission and afterwards transferred to the EEAS.Google Scholar
145 See European Ombudsman Case 0510/2011/JF, available at www.ombudsman.europa.eu/cases/decision.faces/en/11255/html.bookmark. See also European Ombudsman Case 1286/2011/TN, available at www.ombudsman.europa.eu/en/cases/decision.faces (discussing problems relating to the complainant's social security file).Google Scholar
146 As is the case with the High Representative, it should equally be acknowledged that an extensive analysis of EEAS cases might not be entirely relevant in this contribution, precisely due to its sui generis nature.Google Scholar
147 Comments, Editorial, supra note 54, at 1383.Google Scholar
148 Bogdandy, Armin Von, Founding Principles, in Principles of European Constitutional Law 34, 34 (Armin Von Bogdandy & Jürgen Bast eds., 2009).Google Scholar
149 As demonstrated by the recently opened inquiries against the European Council. Compare European Council Decision 2009/882/EU, supra note 69, at art. 10, with European Ombudsman Case 0531/2012/MMN. See also Diamandouros, supra note 96, at 211.Google Scholar
150 See European Ombudsman Case 808/2011/MHZ, supra notes 128–30.Google Scholar
151 See European Ombudsman Case OI/I/2010/(BEH)MMN, supra notes 137–42.Google Scholar
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