In a European Union of citizens and states, the latter have the upper hand. Not only is the EU based on international Treaties between the Member States, but the states are represented in the European Council and in the Council (of Ministers), the two most important institutions of the Union.
The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).
The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.
In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.
The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.
A few comments on the end result:
Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.
If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.
The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.
Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.
The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.
The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.
The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.
3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 205(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 201b of the Treaty on the Functioning of the European Union.
The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council.
8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
9. The Presidency of 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 201b of the Treaty on the Functioning of the European Union.
An overview of the Commission will follow.