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Who Decides in Legislative Decision-Making? When the European Council Limits the Zone of Discretion of the Council of the EU in the Legislative Process

Daniela Annette Kroll

The European Council (EUCO) is a key institution for the European integration process. While the EUCO´s role in EU agenda-setting and intergovernmental policy coordination is widely acknowledged, its role in legislative decision-making is less-well established. According to the Treaty of Lisbon the EUCO shall not exercise legislative functions. Yet, this does not prevent the institution to go beyond its Treaty mandate informally. Based on the principal-agent model it is argued that the EUCO´s position as principal of the Council of the EU allows the institution to influence the Council´s legislative decision-making activities. By formulating (specific) instructions to the Council, the EUCO limits its agent´s zone of discretion and pre-determines its position in the legislative process. So far, only anecdotal evidence and qualitative cases studies exist on the EUCO´s role in the legislative process. Thus, the core goal of this paper is to draw a general picture of the extent to which the EUCO limits the Council´s zone of discretion in legislative decision-making. Based on a qualitative content analysis of all EUCO conclusions from 1975 until 2016, the EUCO´s control of the Council of the EU over time and across policy areas is compared. The paper thereby contributes to inter-institutional research in the EU and the (new) intergovernmentalism - supranationalism debate by analyzing the EUCO´s role in the legislative process.

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