Wednesday, 18 March 2009

European Council & Lisbon Treaty: Serious breach

Under the EU’s Treaty of Lisbon the European Council ─ arguably the most important EU body already ─ officially becomes an institution (Article 13 TEU).

In a number of posts we are going to look at the European Council under the Treaty of Lisbon.

***

Disappearing Council configuration

The special Council configuration ─ the Council, meeting in the composition of the Heads of State or Government ─ would disappear, when the European Council becomes an institution.

Compare the existing and amended Article 7 TEU on a serious breach of the European Union’s founding values (with the voting arrangements detailed in Article 354 TFEU).

***

Serious breach of founding values

Article 7 of the Treaty on European Union (TEU) lays down the procedure if a member state is suspected of breaching the founding values of the European Union (human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities; Article 2 TEU).

The Council determines if there is a clear risk of a serious breach (warning).

The European Council ─ acting unanimously ─ determines the existence of a serious and persistent breach; grounds for sanctions by Council decision (OJEU 9.5.2008 C 115/19─20):

Article 7 TEU
(ex Article 7 TEU)

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.


***

Unanimity minus one

According to Article 354 of the Treaty on the Functioning of the European Union (TFEU) the member of the European Council representing the Member State in question shall not take part in the vote.

Even a proposal to consider a breach of one or more founding values has negative consequences for the image of a member state, but if more than one member were to be targeted, they would be able to frustrate the imposition of sanctions by supporting each other in the European Council.


Ralf Grahn