Nationally elected ministers decide on the common foreign and security policy (CFSP) of the European Union in Brussels.
Currently the foreign ministers meet in the General Affairs and External Relations Council (GAERC), but if the Treaty of Lisbon enters into force, they would convene in the Foreign Affairs Council (FAC), while the coordination of Council activities would take place in the General Affairs Council (GAC).
We take a closer look at the CFSP tasks of the Council in the light of the Lisbon Treaty.
Conduct of foreign policy
External action is a wide concept, covering all areas including the ones managed by the Commission. The CFSP (including the CSDP) is narrower and intergovernmental (but the Foreign Affairs Council deals with all aspects of external relations).
Roughly, the Lisbon Treaty splits the provisions on external relations in two. After principles common to external relations in general, the CFSP and the CSDP provision are laid down in the amended Treaty on European Union (TEU), and the rest of external relations are regulated in the Treaty on the Functioning of the European Union (common commercial policy, cooperation with third countries and humanitarian aid).
According to Article 24(1) of the Treaty on European Union (TEU), the EU's common foreign and security policy (CFSP) covers all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence (consolidated version of the Lisbon Treaty, published OJEU 9.5.2008 C 115).
The CFSP is subject to specific rules and procedures. It is defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts is excluded, as is generally the jurisdiction of the Court of Justice of the European Union.
The intergovernmental character of the CFSP and the EU’s inability to “speak with one voice on the world scene” are enshrined in the basic unanimity rule, allowing even one dogged member state to paralyse the EU in key questions, despite the evocation of the principle of mutual political solidarity (paragraph 3).
Instead of dealing with the EU’s external action as a whole in the Treaty on the Functioning of the European Union, the intergovernmental conference (IGC 2007) broke the unity by keeping the CFSP and CSDP provisions in the Treaty on European Union.
Because of the specific character of the CFSP, Article 26 TEU reiterates the leading role of the European Council and the tasks of the Council in an area where the Commission and the European Parliament are on the sidelines.
The Council’s tasks are laid down in the second paragraph:
Article 26(2) TEU
2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.
The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.
European External Action Service
If the Treaty of Lisbon enters into force, the European External Action Service (EEAS) will be established by a Council decision. This is one of the more demanding implementing tasks with regard to the Lisbon Treaty, requiring preparation and public discussion (naturally based on an open preparatory stage, so far sadly lacking):
Article 27(3) TEU
3. In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.
At the operational level, the Council (FAC) makes the decisions, according to Article 28(1) TEU:
Article 28 TEU
(ex Article 14 TEU)
1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
If there is a change in circumstances having a substantial effect on a question subject to such a decision, the Council shall review the principles and objectives of that decision and take the necessary decisions.
In addition to the operational action mentioned above, the Council may adopt decisions on a common approach to particular CFSP matters. If the Council is able to agree, the member states are supposed to act in accordance with the adopted approach:
Article 29 TEU
(ex Article 15 TEU)
The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.
CFSP initiatives and proposals
Whereas the Commission has a near monopoly in making formal proposals within the current ‘Community pillar’, the intergovernmental and political character of the CFSP is illustrated by the right of each member state to submit initiatives or proposals to the Council (besides the right of the High Representative):
Article 30(1) TEU
(ex Article 22 TEU)
1. Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.
Article 31(1) TEU repeats that CFSP decisions are generally taken unanimously by the European Council and the Council. According to the general voting rules, abstention does not prevent a decision from being taken, but the second subparagraph of Article 31(1) adds that a member state can make a formal declaration to the effect that it is not obliged to apply the decision (qualified abstention). It is expected not to act against the decision. This is described as a spirit of mutual solidarity. If the minority is sizeable, no decision is taken:
Article 31 TEU
(ex Article 23 TEU)
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.
The main rule for CFSP decisions is unanimity, but there are exceptions. According to Article 31(2) TEU qualified majority voting (QMV) applies to questions where the European Council has laid down the guiding principles or asked for a detailed proposal. It applies also to implementing decisions and to appointing special representatives.
Despite these limitations, the Lisbon Treaty contains an “emergency brake”. Even one member state can prevent a vote. This leads to a mediation effort by the High Representative, but if this fails, the matter may be delegated upwards to the European Council for a unanimous decision:
Article 31(2) TEU
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 22(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 33.
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 a decision by unanimity.
Expanding QMV in CFSP
There is a cautious opening towards wider use of qualified majority voting in the Council with regard to the common foreign and security policy, but only by unanimous decision by the European Council:
Article 31(3) TEU
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.
Qualified majority voting is excluded for matters with military implications and even a unanimous European Council is unable to extend QMV to these questions:
Article 31(4) TEU
4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.
Procedural questions are the only ones where the Council (FAC) can advance by “normal” majority decisions:
Article 31(5) TEU
5. For procedural questions, the Council shall act by a majority of its members.
The member states are supposed to consult each other in the European Council and the Council, leading to converging views and coordinated action:
Article 32 TEU, first subparagraph
(ex Article 16 TEU)
Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.
The Council can appoint a special representative, on a proposal by the High Representative (Article 33 TEU).
Personal data protection
The protection of personal data is one of the principles the European Union prides itself on, but in the area of the common foreign and security policy the member states’ governments do not want to be hampered by the rules laid down in Article 16 TFEU, including the movement of such data.
Therefore, in a treaty written by the member states, the Council adopts the rules in the CFSP area, without the need to co-legislate with the European Parliament:
Article 39 TEU
In accordance with Article 16 of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
Article 41 TEU lays down basic rules on the allocation of CFSP expenses, with various Council decisions, including some instances where the Council can unanimously deviate from the main rules.
The Lisbon Treaty preserves the unanimity rule (liberum veto), with minor exceptions, and the intergovernmental character of the common foreign and security policy. These principles constitute the “clay feet” of the European Union in world affairs.
With these constraints, the Council (FAC) ─ guided by the European Council ─ requires intensive efforts to formulate working common policies. The foreign ministers meet frequently, including informal meetings (Gymnich), to agree on the CFSP, perhaps even effective implementation.
Despite its shortcomings, the Lisbon Treaty would improve the chances of more consistency and coherence in EU foreign affairs. In this respect, non-conclusive treaty reform and ratification difficulties cause competing powers much joy.