The Legal Regime Applicable to the Council Presidency: Competing Conceptual Approaches and Pragmatic Solutions

The Council rotating Presidency sits at the crossroad of legal orders which have competing claims to regulate its actions. EU law provides for the office of the Presidency in the Treaties and in secondary law. However, the Presidency is held by representatives which remain organs of the respective Member State and act in accordance to its political and administrative structures. The clear demarcation of these two co-existing dimensions is controversial. In institutional practice two competing conceptual approaches have emerged: a functionalist approach, which links the applicable legal regime to the function, and an organic approach, which distinguishes the office of the Presidency from the national organ and links them to separate set of rules. The chapter looks at four case studies where those two approaches have proposed competing solutions: the interaction with interests’ representatives (Transparency Register); ethics rules (sponsorship of the Presidency; proposal for an interinstitutional ethics body); and the Presidency’s communication policy (notably the applicable linguistic regime). It will show how the tension between the two competing normative and legitimacy claims have been solved in practice, notably by adopting pragmatic arrangements which side-step the issue of competence and find practical solutions to meet the needs on the ground.