The EU Treaty of Lisbon turns the European Council into an institution, which needs rules on decision making. Consensus is the normal mode of operation for political guidelines, and a number of concrete decisions are taken by unanimity. In some instances the European Council can advance by voting. (The various situations have been presented in earlier posts.)
Original Lisbon Treaty
Article 2, point 189 of the original Treaty of Lisbon inserted a new Section 1a on the European Council and new Articles 201a and 202b (OJEU 17.12.2007 C 306/103).
Consolidated Lisbon Treaty
In the consolidated Treaty of Lisbon we find Article 201a as the renumbered Article 235 of the Treaty on the Functioning of the European Union (TFEU), in Part Six Institutional and financial provisions, Title 1 Institutional provisions, Chapter 1 The institutions, Section 2 The European Council (OJEU 9.5.2008 C 115/152─153):
THE EUROPEAN COUNCIL
Article 235 TFEU
1. Where a vote is taken, any member of the European Council may also act on behalf of not more than one other member.
Article 16(4) of the Treaty on European Union and Article 238(2) of this Treaty shall apply to the European Council when it is acting by a qualified majority. Where the European Council decides by vote, its President and the President of the Commission shall not take part in the vote.
Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity.
2. The President of the European Parliament may be invited to be heard by the European Council.
3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.
4. The European Council shall be assisted by the General Secretariat of the Council.
The reference to Article 16(4) of the Treaty on European Union (TEU) gives us the key to the intended permanent definition of a qualified majority from 1 November 2014:
Article 16(4) TEU
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 238(2) of the Treaty on the Functioning of the European Union.
Without Commission or High Representative proposal
From 1 November 2014, when the European Council decides without a proposal from the Commission or the High Representative, the threshold for the qualified majority is set at 72 per cent of the members instead of 55 per cent:
Article 238(2) TFEU
2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union.
If the Lisbon Treaty enters into force and if the reform is sensible, why not apply the rules from day one?
Instead, to reach unanimous agreement, the intergovernmental conference had to postpone the application almost to the end of 2014.
Title II Provisions concerning the qualified majority (Article 3) of Protocol (No 36) on transitional provisions lays down the rules applicable until then.
(In addition, between 1 November 2014 and 31 March 2017 a member of the Council may request that an act is to be adopted in accordance with the old rules.)
Reforming the EU
Thorough reform of the European Union, especially since the latest enlargements, is a “mission impossible”. The aims have to be set ludicrously low in order to reach agreement between governments, and we have seen that it would take almost a miracle of political stability and maturity to complete the ratification procedures in every member state within a decent time-frame.
The reform cycle started in December 2000 in Nice is still unfinished, but the Lisbon Treaty has long ago been overtaken by international challenges, financial crisis and economic recession, making transitional postponements all the more pathetic.