As we have seen, the European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU), and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c)).
Further, we have looked at the decisions the European Council takes ‘by unanimity’, according to the wording of the Treaty of Lisbon.
Now we look at when the Lisbon Treaty employs the term ‘unanimous(ly)’ in conjunction with decisions by the European Council. This is not to imply any material differences between ‘by unanimity’ and ‘unanimous(ly)’, but purely as a matter of convenience.
We follow the consolidated Treaty of Lisbon, published OJEU 9.5.2008 C 115.
Number of Commissioners
Under the current Treaty of Nice, the number of Commissioners would have to be reduced, i.e. if the Lisbon Treaty does not enter into force.
The Treaty of Lisbon would directly alleviate one of the Irish concerns for the next term of the Commission. According to Article 17(4) of the amended Treaty on European Union (TEU), the Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
As from 1 November 2014 the number of Commissioners would fall, corresponding to two thirds of the number of Member States. Pursuant to Article 17(5) TEU, the European Council, acting unanimously, could decide to alter the number, which includes the Commission President and the High Representative of the Union for Foreign Affairs and Security Policy (Vice-President).
(The European Council 11 to 12 December 2008 agreed that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. ─ If the Lisbon Treaty enters into force, each member state is already guaranteed a Commissioner until the end of October 2014. Hence, the Presidency Conclusions can only mean that the member states have agreed with regard to 1 November 2014 and beyond. Technically this could be achieved by a unanimous decision by the European Council or by changing the treaty text or by adding a legally binding protocol.)
If and when the numbers of the Commission were reduced, the Lisbon Treaty foresaw a system of strictly equal rotation, based on a unanimous decision by the European Council:
Article 17(5), TEU, second subparagraph
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
Commission: system of rotation
In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission
shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the principles laid down in Article 244 TFEU.
(The botched reform of the Commission would make Article 244 TFEU redundant.)
Strategic interests and objectives
The European Council shall act unanimously on a recommendation from the Council, when it sets out the strategic interests and objectives of the European Union with regard to its action on the international scene (Article 22 TEU).
The common foreign and security policy (CFSP) is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded (Article 24 TEU).
This is repeated in Article 31 TEU.
Qualified majority in Council
The European Council may unanimously adopt a decision extending the use of qualified majority in the Council, but neither qualified majority nor extension of it applies to decisions having military or defence implications (Article 31 TEU).
According to Article 42(2) TEU, the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
(Even if many of the decisions requiring unanimity in the European Council or the Council, are practically unattainable in practice, a common defence may become a reality if the mainstream EU member states embrace the twin concepts of a European defence and NATO membership. By reintegrating into the NATO structures, France has paved the way. The six EU members still outside NATO need not stand in the way, because according to the second subparagraph the CSDP does not prejudice the specific character of the security and defence policy of certain Member States. In addition, Ireland has been given specific assurances in connection with the Lisbon Treaty.)
If a member state decides to withdraw from the European Union, Article 50 TEU foresees notification and a period of negotiations. Due to the links between the member states and the EU, it is no easy task. It could be called reverse engineering of membership. The seceding state would probably want some sort of future relationship, which would have to be negotiated, within the European Economic Area (EEA) or outside.
But Article 50(3) TEU makes it clear that the European Union does not imprison states against their will. Secession enters into force two years after notification, even if the negotiations continue, unless the member state concerned agrees to extend the period. In that case the European Council (less the seceding member) decides unanimously to prolong the period:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
Extending powers of European Public Prosecutor
According to Article 86(4) TFEU, the European Council may extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
Multiannual financial framework
According to Article 312(2) TFEU, the Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The second subparagraph offers the European Council the possibility, unanimously, to adopt a decision authorising the Council to act by a qualified majority when adopting the regulation referred to in the first subparagraph.
According to Article 355 TFEU, the provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349, and the special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to above. The European Council shall act unanimously after consulting the Commission.
Amending ESCB Statute
Article 10.2 the Statute of the European System of Central Banks and of the European Central Bank (Protocol No 4), on voting rights in the Governing Council, can be amended by a unanimous decision by the European Council in the following way:
Article 10.2 may be amended by a decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements.
Are we any wiser?
Perhaps we can draw the conclusion that the general rule on consensus applies primarily to the effort to find common ground with regard to political texts. Unanimity is regularly evoked in settings calling for concrete decisions, not only with regard to the European Council but in a multitude of questions where the unanimity requirement concerns the Council.
In both cases, less enthusiastic member states can refrain from active opposition (abstain), which means that the bottom line differences between consensus and unanimous decisions are small.
In a wider perspective, low grade compromises and the lack of unanimity hamper the development of the European Union and its action. In crucial areas, the EU remains a giant on clay feet.