Thursday, 17 January 2008

EU Treaty of Lisbon: CFSP decision making

Today, we look at one example of how the intergovernmental conference (IGC 2007) manifested its commitment to fair play and its adherence to the existing aims of the European Union to take the decisions “as openly as possible and as closely as possible to the citizen” (Article 1 TEU).

We start with the end product of the IGC 2007, the Treaty of Lisbon (OJ 17.12.2007 C 306), to look at the next Article waiting to be consolidated, i.e. rendered readable:

“An Article 15b shall be inserted, with the text of Article 23, with the following amendments:

(a) in paragraph 1, the first subparagraph shall be replaced by the following: "Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded." and the last sentence in the second subparagraph shall be replaced by the following: "If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.";

(b) paragraph 2 shall be amended as follows:

(i) the first indent shall be replaced by the following two indents:

"– when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 10 B(1),

– when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,";

(ii) in the second indent, which shall become the third indent, the words "a joint action or a common position," shall be replaced by "a decision defining a Union action or position,";

(iii) in the second subparagraph, first sentence, the word "important" shall be replaced by "vital"; the last sentence shall be replaced by the following: "The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity.";

(iv) the third subparagraph shall be replaced by the following new paragraph 3, the last subparagraph shall become paragraph 4 and paragraph 3 shall be renumbered 5:

"3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.";

(c) in the paragraph now numbered 4, the words "This paragraph shall not apply" shall be replaced by "Paragraphs 2 and 3 shall not apply".”


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Next, we go to the existing Treaty on European Union (TEU) Article 23 (latest consolidated version OJ 29.12.2006 C 321 E):

“Article 23

1. Decisions under this title shall be taken by the Council acting unanimously. Abstentions by members present in person or represented shall not prevent the adoption of such decisions.

When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent more than one third of the votes weighted in accordance with Article 205(2) of the Treaty establishing the European Community, the decision shall not be adopted.

2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

- when adopting joint actions, common positions or taking any other decision on the basis of a common strategy,
- when adopting any decision implementing a joint action or a common position,
- when appointing a special representative in accordance with Article 18(5).

If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.

The votes of the members of the Council shall be weighted in accordance with Article 205(2) of the Treaty establishing the European Community. For their adoption, decisions shall require at least 232 votes in favour cast by at least two thirds of the members. When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.

This paragraph shall not apply to decisions having military or defence implications.

3. For procedural questions, the Council shall act by a majority of its members.”

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To arrive at the new, consolidated wording of Article 15b TEU, we insert the IGC 2007 amendments into the existing Article 23 TEU:

“Article 15b

1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.

When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.

2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

- when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union’s strategic interests and objectives, as referred to in Article 10 B(1),
- when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,
- when adopting any decision implementing a decision defining a Union action or position,
- when appointing a special representative in accordance with Article 18(5).

If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.

3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.

4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.

5. For procedural questions, the Council shall act by a majority of its members.”

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The broadly based Convention was unable to reach a consensus on the general application of qualified majority voting (QMV) in questions pertaining to the common foreign and security policy (CFSP). See Article III-201 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).

The text taken over by the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-300 thus marked only limited progress towards more effective CFSP decision making by the EU.

In essence, the IGC 2007 took over the contents of the Constitutional Treaty; the modifications in Article 15b TEU are mainly technical.

Unanimity is still the norm in CFSP decision making, but follow-up decisions to unanimous decisions by the European Council offer some scope for more effective decision making by the Council, except in questions having military or defence implications.

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Next time we look at information and consultation within the Council.


Ralf Grahn