EU Council tasks: Treaty reform

If the areas of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), including permanent structured cooperation, are intergovernmental, even more so is changing the primary legislation of the European Union at the present time.

Treaty amendments have seen the governments of the EU member states convening in intergovernmental conferences outside the institutions (but using Council infrastructure).

The Treaty of Lisbon would reform the process of treaty amendment, by making the Convention method the primary option. The Convention is more broadly based than an intergovernmental conference, and it bears some traits of a constituent assembly.

There have been two Convention experiments, leading to proposals to the member states’ governments.

The first Convention led to the EU Charter of Fundamental Rights, declared politically binding by the institutions in December 2000 in Nice and destined to become legally binding if the Lisbon Treaty enters into force.

The second, known as the European Convention, wrote the draft Treaty establishing a Constitution for Europe. The intergovernmental conference 2003 and 2004 pared down the proposals somewhat to agree on the Constitutional Treaty, but the ratification processes petered out after the French and Dutch referenda.

The IGC 2007 produced the ‘Constitution light’ initially prepared as the Reform Treaty, but now known as the Treaty of Lisbon, after the city where it was signed on 13 December 2007. (The consolidated version was published in the Official Journal of the European Union, OJEU 9.5.2008 C 115.)


***

Treaty revision procedures

In the Treaty of Lisbon, Article 48 of the amended Treaty on European Union offers two modes for treaty amendment:

1. the ordinary revision procedure
2. simplified revision procedures.


Proposals for the amendment of the treaties are addressed to the Council, and they can be made by any member state, the European Parliament of the Commission.

The Council submits the proposals to the European Council and notifies the national parliaments.

(The European Council can reject the proposal or it can vote for a Convention or an intergovernmental conference; but formally the latter take place outside the institutions. A Convention makes proposals only, but a subsequent IGC decides. )

***

Simplified revision procedures


TFEU internal policies and action

Interestingly, proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union (TFUE) relating to the internal policies and action of the Union are addressed directly to the European Council. They may lead to a unanimous decision to revise the treaty, but cannot increase the competences (powers) of the EU.


***

Added flexibility

Some flexibility is built into the provisions enabling the European Council to facilitate decision making in the Council, by moving to qualified majority voting in an area or in a certain case. (In a similar way, the European Parliament can be involved by moving from a special legislative procedure to the ordinary legislative procedure.)


***


The formal provisions mentioning the Council do not offer a comprehensive view of the active participation of the governments (ministers) in the various stages of treaty reform. With or without a preparatory Convention, the ordinary revision procedure is concluded by an intergovernmental conference.


Ralf Grahn

European Observatory on Counterfeiting and Piracy

On 2 April the Commission of the European Communities is going to launch a European Observatory on Counterfeiting and Piracy. This is a new step in the European Union’s fight against fake goods, illegal downloading and other infringements of intellectual property rights (IPR).

The launch takes place at the second High Level Conference on Counterfeiting and Piracy, with presentations by industry interests and enforcement agencies.

For more information, see the Commission’s press release (30 March 2009, IP/09/497), including links to the conference programme and the OECD study Economic Impact of Counterfeiting and Piracy.


Ralf Grahn

European e-Justice action plan

The Council of the European Union has published a notice on a Multi-annual European e-Justice Action Plan 2009─2013, in the Official Journal of the European Union (OJEU) 31.3.2009 C 75/1.

The project aims at developing the use of information and communication technologies (ICT) at European level in the field of justice.

Objectives worth mentioning are:

• Improved access to information in the field of justice, in particular European legislation and case law as well as that of the EU member states.

• The dematerialisation of cross-border judicial and extrajudicial proceedings, by electronic communication between a court and the parties to cross-proceedings.

• Simplifying and encouraging communication between the judicial authorities and the Member States.

• The establishment of a European e-Justice Portal, which will provide access to the whole European e-Justice system, i.e. to European and national information websites and/or services.



Ralf Grahn

European Union: Common import rules

Here is a piece of EU legislation of interest to ’the whole world’.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:084:0001:0017:EN:PDF

Council Regulation (EC) No 260/2009 of 26 February 2009 on the common rules for imports (Codified version), published in the Official Journal of the European Union (OJEU) 31.3.2009 L 84/1.

The recast Regulation 260/2009 applies to most imports from the rest of the world (third countries) into the European Community (European Union), and it is based on Article 133 of the EC Treaty, on the common commercial policy.



The more exact scope of the Regulation is laid down in Article 1 Imports under Regulations 517/94 and 519/94 are excluded from the scope. The bulk of the recast Regulation concerns European Community surveillance of imports and safeguard measures:

Article 1

1. This Regulation applies to imports of products originating in third countries, except for:

(a) textile products subject to specific import rules under Regulation (EC) No 517/94;

(b) the products originating in certain third countries listed in Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries.

2. The products referred to in paragraph 1 shall be freely imported into the Community and accordingly, without prejudice to the safeguard measures which may be taken under Chapter V, shall not be subject to any quantitative restrictions.


***

Certain textile imports


Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules (originally published in the Official Journal 10.3.1994 L 67/1) has been amended many times. The latest consolidated version is dated 1 January 2008.


***

Excluded countries

Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83 (originally published in the Official Journal 10.3.1994 L 67/89), has been amended many times.

The latest consolidated version of Regulation 519/94 is from 9 March 2003, but the all-important country list in Annex I has last been amended by Commission Regulation No 110/2009.

The shrinking country list now contains only:

Armenia
Azerbaijan
Belarus
Kazakhstan
North Korea
Russia
Tajikistan
Turkmenistan
Uzbekistan
Vietnam



Ralf Grahn

EU Council tasks: Security & defence policy CSDP

The European Union’s common security and defence policy (CSDP) is an integral part of its common foreign and security policy (CFSP). At this stage of development, it is geared towards humanitarian, peace and crisis management missions drawing on both civilian and military assets (Petersberg tasks).

The Treaty of Lisbon envisions the progressive framing of a common Union defence policy, leading to a common defence.

The intergovernmental CSDP respects a) the ‘specific character’ of the security and defence policy of ‘certain member states’ (non-aligned, neutral) and b) the obligations of the vast majority which are NATO members.

We look at the Council’s CSDP tasks in the light of the Lisbon Treaty, with the relevant provisions located in the amended Treaty on European Union (TEU).


***

Defining objectives

The Council of the European Union defines the objectives for the implementation of the CSDP, assisted by the European Defence Agency (EDA)(OJEU 9.5.2008 C 115):


Article 42(3) TEU


3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.


Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as ‘the European Defence Agency’) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.


***

Unanimity

The CSDP decisions are adopted unanimously by the Council:


4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.


***

Delegation of tasks

The Council can delegate the execution of tasks (a mission) to a group of member states (Article 42(5) TEU), with the willing and able keeping the Council informed. If the decision needs to be changed, it is dealt with by the Council, as provided in Article 44 TEU.


***

Implementation and scope

According to the second paragraph of Article 43 TEU, the Council adopts the decisions relating to the extended Petersberg tasks, listed in paragraph 1:


Article 43 TEU

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.


***

European Defence Agency

The European Defence Agency (EDA) is intergovernmental, ‘subject to the authority of the Council’ (Article 45 TEU). The EDA’s statute, seat and operational rules are adopted by the Council by a qualified majority.


***

Permanent structured cooperation

According to Article 46 TEU, the Council adopts, by qualified majority, the decision establishing permanent structured cooperation (akin to enhanced cooperation in other policy areas) between member states, which fulfil the criteria and made the commitments on military capabilities in accordance with Protocol No. 10.

Decisions concerning later entrants are decided by the participating states.

Permanent structured cooperation is one of the questions in need of preparatory work, public discussion and implementing decisions, if the Treaty of Lisbon enters into force.


***

Council configurations

The current Council configuration, the General Affairs and External Relations Council (GAERC), already meets separately for its two main areas of activity. The Lisbon Treaty would separate the configurations, and the Foreign Affairs Council (FAC) would carry on with the whole of the European Union's external action, namely common foreign and security policy, European security and defence policy, foreign trade, development cooperation and humanitarian aid. (Cf. current Council’s Rules of Procedure and Lisbon Article 16(6) TEU.)


The Defence Ministers of the EU member states convene in connection with GAERC meetings and for separate informal meetings. The latest informal meeting was held in Prague on 12 to 13 March 2009.


The Council is assisted by the Political and Security Committee (known as PSC or COPS), which monitors the international situation, delivers opinions and can be authorised to direct crisis management operations (Article 38 TEU).


The European Union Military Committee (EUMC) is the highest military body set up within the Council. It is composed of the Chiefs of Defence of the Member States, who are regularly represented by their permanent military representatives. The EUMC provides the PSC with advice and recommendations on all military matters within the EU.

***

European Parliament

Being on the sidelines of the intergovernmental CSDP does not prevent the European Parliament from showing a keen interest in The European Security Strategy and ESDP, as witnessed by the 19 February 2009 EP Resolution P6_TA-PROV(2009)0075, based on an own-initiative report by the Committee on Foreign Affairs:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2009-0075+0+DOC+XML+V0//EN

The European Parliament sees the need for a common defence policy in Europe requiring an integrated European Armed Force which consequently needs to be equipped with common weapon systems so as to guarantee commonality and interoperability.

In addition, the EP Resolution offers an updated overview on the latest proposals and current shortcomings of the EU’s security and defence policy.



Ralf Grahn

Gordon Brown’s European mainstream

“So I stand here, proud to be British and proud to be European, representing a country that does not see itself as an island adrift from Europe, but as a country at the centre of Europe, not in Europe’s slip-stream but in Europe’s mainstream.”

Thus spoke UK prime minister Gordon Brown to the European Parliament on 24 March 2009.

***

Europe’s mainstream?

Recent UK polls show very little recognition of a country where the population sees itself as in Europe’s mainstream or desiring to become part of it.

Even if Brown equated country and government, the statement is far from convincing.

***

The UK government (not least Brown himself) has fought an ongoing battle to thwart or limit treaty reform aimed at making the European Union more effective, democratic and solidary, and British government representatives miss few opportunities to hamper progress during daily Council work.

Currently the United Kingdom has opt-outs from two crucial areas of EU policy: the Schengen agreement abolishing border controls and the third stage of economic and monetary union (the euro).

Under the Treaty of Lisbon, the British opt-outs would be extended to two new areas: the EU Charter of Fundamental Rights as well as police and judicial cooperation in criminal matters.

In each case the United Kingdom belongs to a fraction of EU member states outside the common framework (although only 16 have made it into the Eurozone as yet).

If Brown rejects the idea of his country being in the slip-stream of Europe, how about describing it as forming a counter-current to progress?


Ralf Grahn

Magna Carta or EU Charter?

Recently I encountered yet another one of those anti-EU campaigners who prefer their ’ancient rights and freedoms’ to the existence of the European Union. The Magna Carta (1215) seems to be a favourite reference.

Is their belief based on a myth or on rational thought?

I invite readers to make a comparison.

Read the text of the Magna Carta in an English translation, available here with an introductory note:

http://www.fordham.edu/halsall/source/magnacarta.html

Then turn to the Charter of Fundamental Rights of the European Union, published in the Official Journal of the European Union 14.12.2007 C 303/1.

After reading both, make your informed decision. Which Charter do you opt for and why?



Ralf Grahn

EU Council tasks: Foreign & security policy CFSP

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

Unanimity rule


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).


***

CFSP


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.


***

Operational action


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.


***

Particular matters


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.


***

Qualified abstention

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.


***

Qualified majority


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.


***

Further limits

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

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.


***

Consultation

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.


***

Special Representative

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.


***

CFSP expenditure

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.


***

Hobbled Giant

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.





Ralf Grahn

European elections: Soini Libertas candidate?

The True Finns (Perussuomalaiset) dropped Jussi Halla-aho, under prosecution for xenophobic blogging, from their list of candidates in the European elections in June 2009.

Party chairman Timo Soini ─ one of the signatories of Libertas’s failed application for recognition as a political party at European level and for funding from the European Parliament ─ stepped into the breach by launching his own candidacy, despite his earlier rejection of the idea.

The True Finns tout the European elections as a last call to prevent the Treaty of Lisbon from entering into force:

http://www.perussuomalaiset.fi/ajankohtaista/?issue=137

***

Question marks

Interestingly, Libertas is not mentioned, although Soini has conceded earlier that an elected True Finn MEP might join them in a parliamentary group in the European Parliament.

The reasons may be tactical, since it may be harder to attract nationalistic voters under a pan-European umbrella.

Nothing is, of course, said about possible campaign contributions from Libertas.

***

Media scene

A quick scan of the web versions of Finnish main media (Helsingin Sanomat, Hufvudstadsbladet, YLE) revealed no critical questions about the possible European links of the True Finns’ campaign, just Soini’s well-known anti-EU message and discussion about the reasons for dropping Halla-aho. See for instance YLE ‘Charges for True Finns Councillor Over Racist Blog Comments’ (last update 28 March 2009):

http://www.yle.fi/uutiset/news/2009/03/charges_for_true_finns_councillor_over_racist_blog_comments_645781.html

Are the media in Finland as uninterested as the general public is oblivious of possible European connections? The elections are European, aren’t they?

Ralf Grahn

EU Council tasks: External action

The intergovernmental European Council provides or fails to provide the necessary impetus and the political directions for the EU. The national governments are represented in the second most important institution as well, the Council of the European Union.

The Council is a unitary institution, but it meets in different configurations , which cover all the policy areas of the European Union, including those where the Commission and the European Parliament have little or no say.

We look at the legislative, budgetary and executive powers of the Council in more detail. (The executive powers of the Council are tactfully described as policy-making and coordinating functions; Article 16(1) TEU.)

We start with the European Union on the world stage ─ external relations in the wide sense ─ in the light of the Treaty of Lisbon.


***

Foreign Affairs Council (FAC)


The new Foreign Affairs Council is one of the two Council configurations mentioned in the Lisbon Treaty together with its tasks (OJEU 9.5.2008 C 115/24):


Article 16(6) TEU, third subparagraph

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.


***

High Representative

The Empire struck back in the Lisbon Treaty negotiations, depriving the foreign affairs chief of the title Foreign Minister, but extending the Council’s grasp to the external relations managed by the Commission, by the “double-hatted” role of the High Representative acting both directly for the Council and as Vice-President of the Commission.

The High Representative is appointed by the European Council. He chairs the new Foreign Affairs Council (Article 18(3) TEU) and he is the work-horse of the Council in matters pertaining to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP):


Article 18(2) TEU

2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.


(See also Article 27 TEU.)



***

Consistency


In addition to the guiding principles for the external action of the European Union (Article 21 TEU), consistency is emphasised between a) between the different areas of external action, and b) external actions and other policy areas:


Article 21(3) TEU, second subparagraph



The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.


***

Recommendations: Strategic interests and objectives

External action

The European Council identifies the strategic interests and objectives for the European Union’s external action, with regard to countries, regions or themes, but it acts unanimously on a recommendation by the Council, and the implementation returns to the Council (FAC), the High Representative or the Commission.

The High Representative and the Commission (Vice-President) make proposals to the Council (FAC) (Article 22 TEU).


***

We will turn to the Council’s role in the common foreign and security policy (CFSP) in a future post.


Ralf Grahn

EU Guidelines: Human Rights & Humanitarian Law

The European Union publishes a lot of useful information for students of politics, law and economics, as well as other interested EU citizens.

Many of the publications are available at the EU Bookshop in printed or digital form (pdf):

http://bookshop.europa.eu

I would like to draw attention to a recent publication issued by the Council of the European Union (General Secretariat of the Council) ‘EU Guidelines Human Rights and International Humanitarian Law’ (March 2009; 89 pages).

The publication is downloadable for free in English and French (Lignes directrices Droits de l’homme et Droit International Humanitaire).

The Guidelines serve not only international EU missions, but they contain a wealth of information useful for students, teachers, researchers and others interested in the human rights and humanitarian law.

Here is a look at the contents:

1. Death Penalty (1998) (updated on 2008)

2. Torture and other cruel, inhuman or degrading treatment or punishment (2001) (updated on 2008)

3. Human Rights dialogues with third countries (2001) (updated on 2009)

4. Children and armed conflict (2003) (updated on 2008)

5. Human Rights Defenders (2004) (updated on 2008)

6. Promotion and Protection of the Rights of the Child (2007)

7. Violence against women and girls and combating all forms of discrimination against them (2008)

8. Promoting Compliance with International Humanitarian Law (IHL) (2005)


***

Death penalty

Because misleading information about the European Union is continuously spread on the web, I recommend that everyone unsure about the EU’s position reads the Guideline on the death penalty.

The conspiracy theorists repeating the ‘footnote within a footnote’ distortions are, I presume, beyond redemption.



Ralf Grahn

Fact Sheets on the European Union 2009

The EU Bookshop has published the 2009 update of the Fact Sheets of the European Union (although the manuscript was finished in August 2008).

The 12th edition contains 165 fact sheets (subjects) aimed at the general public. The Fact Sheets (521 pages) are available as a freely downloadable pdf document (hefty 9.22 MB) or as a print publication with an accompanying CD-ROM (price 40 €):



http://bookshop.europa.eu/eubookshop/download.action?fileName=BAAA08001ENC_002.pdf&eubphfUid=10061951&catalogNbr=BA-AA-08-001-EN-C

If I understood correctly, the printed text (pdf) is available in six languages (English, French, German, Italian, Polish, Spanish) but the CD-ROM in 21 languages.


Since the Fact Sheets originate in the European Parliament, the EP’s role is usually described in each case in addition to the general information.

The Fact Sheets are handy when you need an overview of an unfamiliar area of EU policy. This is how they are described by the publisher:


The aim of these fact sheets is to provide those new to the subject with an overview of the process of European integration and the European Parliament’s role in this development.

New fact sheets on topical issues and the developments of the last few years have recently appeared online, for example: the institutional reforms undertaken in preparation for the accession of Bulgaria and Romania; the new financial perspective; gender equality; asylum, and immigration policy; management of external borders; judicial cooperation in civil and criminal matters; sports policy; the Lisbon strategy; the European neighbourhood policy (ENP); the South Caucasus (Armenia, Azerbaijan and Georgia) and central Asia.

With access to around 165 fact sheets, readers will find that this is one of the best sources of information about the Union’s institutions and policies.
The content of these fact sheets covers six main areas: how the EU works, citizens’ Europe, the internal market, common policies, economic and monetary union and the EU’s external relations.

In order to speak with one voice, the EU has developed several policies and measures that all Member States endeavour to apply. These ‘common policies’ concern the entire Union and are designed to achieve common objectives.

Economic and monetary union

Economic and monetary union (EMU) is the result of a long process aimed at harmonising the economic and monetary policies of the European Union Member States and introducing a single currency: the euro. So far, 16 Member States have adopted the euro, which is used on a daily basis by over half the EU’s population.


The EU’s external relations

The EU’s economic, commercial and financial weight makes it a leading player on the international scene. It has signed a series of bilateral and multilateral agreements with most countries and regions of the world. The common foreign and security policy (CFSP) is one of the instruments of the European Union’s external relations.


How the European Union works

The European Union (EU) has its own legislature and executive and an independent judiciary, which are supported and complemented by an additional set of institutions and bodies. The EU’s rules and decision-making procedures are laid down in the Treaties. In order to achieve its objectives, the Union has its own budget.


Citizens’ Europe

For EU citizens, the right to travel, live and work throughout the Union can easily be taken for granted. However, in order for them to be able to enjoy this right fully, an effective system to protect fundamental rights within the EU needs to be put in place and maintained.


The internal market

Following the dismantling of previous barriers, goods, services and capital move as freely throughout Europe as inside a Member State. The removal of obstacles and the opening up of national markets means that more companies can compete with one another.

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The Fact Sheets are convenient for anyone who needs quick information, for a school or university assignment, but especially ahead of the European elections the MEP candidates and their campaign groups should have them available as reference tools for various occasions.



Ralf Grahn

European Parliament: New Rules of Procedure

They still call it the 16th edition, but the latest version of the European Parliament’s Rules of Procedure has now been updated to March 2009.

It is available on the web pages of the European Parliament:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20090309+0+DOC+PDF+V0//EN&language=EN


For researchers and students, at least, it would be an improvement if the Rules of Procedures had references to the original decision and the amendments.

Work is under way to amend the Rules ahead of the next parliamentary term (Corbett report) and to take account of the Treaty of Lisbon, if it enters into force.

In other words, look out for new updates.


***


With regard to the previous post, here is the rule on the oldest member at the first sitting after the European elections:


Rule 11 Oldest Member

1. At the sitting provided for under Rule 127(2), and at any other sitting held for the purpose of electing the President and the Bureau, the oldest Member present shall take the Chair until the President has been elected.

2. No business shall be transacted while the oldest Member is in the Chair unless it is concerned with the election of the President or the verification of credentials.


Ralf Grahn

Jean-Marie Le Pen

The French quality blog Diner’s Room published a thoughtful post on the PES proposal within the European Parliament to prevent Jean-Marie Le Pen from presiding at the beginning of first EP session after the European elections in June 2009, by amending its Rules of Procedure.

‘Jean-Marie Le Pen et les principes de l'état de droit’ is available here:


http://dinersroom.free.fr/index.php?2009/03/26/1080-jean-marie-le-pen-et-les-principes-de-l-etat-de-droit

According to the EP Rules of Procedure, the oldest member presides until the President has been elected. No other business is conducted until then.

The proposal to change the rule to the detriment of one individual speaks volumes about lousy political judgment and an utter incomprehension of the rule of law, one of the founding principles of the European Union.

Like Gandhi, we have to say to Martin Schulz of the PES group that Western civilization would be a good idea.


Ralf Grahn

EU Council tasks (principles)

Each member state of the European Union is represented by its head of state or government in the European Council and by its government in the Council, the two most powerful institutions of the EU (although the European Council formally becomes an institution only if the Treaty of Lisbon enters into force).

The second of these intergovernmental institutions, the Council of the European Union (European Community) exercises legislative and budgetary functions. It also holds executive powers, but in the Treaty of Lisbon this is expressed more obliquely by using the words policy-making and coordinating functions.


This post looks at some general principles concerning the exercise of power by the Council (and the other institutions).



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Treaty in force

The main provision expresses the tasks of the Council in a fragmented manner in Article 202 of the Treaty establishing the European Community (TEC), published in the latest codified version of the treaties in force in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/135:

SECTION 2
THE COUNCIL

Article 202 TEC

To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty:

— ensure coordination of the general economic policies of the Member States,

— have power to take decisions,

— confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament.


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Consolidated Lisbon Treaty

Council’s tasks in general

Since the publication of the consolidated version of the Treaty of Lisbon on 9 May 2008, the proposed primary legislation of the European Union is on the whole more readable than the existing treaties (although a modernised text cannot abolish the complicated structure of the EU).

In two sentences Article 16(1) of the amended Treaty on European Union (TEU) in the consolidated version of the Treaty of Lisbon manages to convey a general idea of what the Council is supposed to do (OJEU 9.5.2008 C 115/24):

Article 16 TEU

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.


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Conferred powers

According to the Treaty of Lisbon, the institutions of the European Union act within the limits of the treaties; the principle of attributed or conferred powers:


Article 5(1) TEU

1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.


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Institutional framework


The guiding principles are common to the institutions, which depend on each other:


Article 13(1) TEU, first subparagraph

1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.


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Limited powers

The powers of each institution are set out and limited by the treaties, and the need for interinstitutional cooperation is stated (institutional balance):


Article 13(2) TEU

2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.


***


This sets the background for the treatment of the various tasks the Lisbon Treaty confers upon the Council.



Ralf Grahn

Governments taking over the European Parliament too?

How are we to understand the latest news about the coming President of the European Parliament?

EurActiv writes ‘Face-off between Italians, Poles over Parliament presidency’ (26 March 2009):

http://www.euractiv.com/en/eu-elections/face-italians-poles-parliament-presidency/article-180656

The leader of the EPP-ED parliamentary group, Joseph Daul, is reported saying:

"We have two candidates: Mario Mauro, who has been designated by Italian Prime Minister Silvio Berlusconi, and Jerzy Buzek, who was nominated by Polish PM Donald Tusk."


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Are there no limits to the greed of heads of state or government at the expense of a voice by citizens in EU affairs?

A great number of national leaders have effectively gone back on the principle they enshrined in the Lisbon Treaty to let the European elections decide the following President of the Commission, thereby paralysing the political parties at European level and depriving the elections of even a modicum of pan-European public attention.

Prime Ministers now seem to be interfering in the European Parliament’s internal business, that of electing its own President.

And Daul ─ the current leader of the largest group ─ seems to accept this as meekly as a lamb.

Good grief!


Ralf Grahn

European Union: Council

Nationally elected officials ─ heads of state or government in the European Council and government ministers in the Council ─ meeting in Brussels set the pace and the limits for a European Union primarily based on member states.

Expansion, internal and external developments and the proposals of the Treaty of Lisbon point to the rising importance of the European Council and its main feeding mechanism, the Council.

Currently, the Council is mentioned as an institution (after the European Parliament) of the European Community in Article 7 of the Treaty establishing the European Community (TEC). Article 13 of the Treaty on European Union, in the Treaty of Lisbon, inserts the European Council as an EU institutions above the Council.

To the extent that the intergovernmental bodies are able to decide by (qualified) majority, their effectiveness (output legitimacy) improves. In this sense, the Treaty of Lisbon would be a step forward, when we increasingly see the need for European solutions and European contributions on the world scene.

But the democratic (input) legitimacy of the European Union remains a vexed question, with national politicians deciding European level questions and the EU citizens directly represented only through the European Parliament.

In this blog post we recap the main provision on the EU Council as agreed by the member states in the Treaty of Lisbon.

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Original Lisbon Treaty

Article 1, point 17 of the original Treaty of Lisbon inserted a new Article 9c into the Treaty on European Union (TEU); Official Journal of the European Union (OJEU) 17.12.2007 C 306/18.

Cf. Articles I-23, I-24 and I-25 of the Constitutional Treaty (OJEU 16.12.2004 C 310), Article I-22, I-23 and I-24 of the preceding draft Constitution, as well as Articles 202 to 207 of the Treaty establishing the European Community (TEC) in force.


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Consolidated Lisbon Treaty

The new Article 9c was renumbered Article 16 TEU in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/24):

Article 16 TEU

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 238(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 236 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 236 of the Treaty on the Functioning of the European Union.


***

Article 16 TEU is packed with information relevant to the functioning of the European Union. We are going to look at the individual paragraphs in future posts.

Even if the entry into force of the Lisbon Treaty remains at least as uncertain as before (due to the Czech Republic and Ireland, but also Germany and Poland), the pan-European challenges are on the increase, and the proposed improvements and their severe limitations of the amending treaty have lost nothing of their importance for EU citizens.



Ralf Grahn

European Council: Council configurations & Presidencies

According to the EU Treaty of Lisbon, the European Council would decide on Council configurations and Council Presidencies by qualified majority voting (QMV).


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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).

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Consolidated Lisbon Treaty

In the consolidated Treaty of Lisbon we find Article 202b as the renumbered Article 236 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 115/153):


Article 236 TFEU

The European Council shall adopt by a qualified majority:

(a) a decision establishing the list of Council configurations, other than those of the General Affairs Council and of the Foreign Affairs Council, in accordance with Article 16(6) of the Treaty on European Union;

(b) a decision on the Presidency of Council configurations, other than that of Foreign Affairs, in accordance with Article 16(9) of the Treaty on European Union.


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Council configurations

In the Lisbon Treaty, Article 16(6) of the Treaty on European Union (TEU) means that the current General Affairs and External Affairs Council (GAERC) is split into two.

The aim is that the new General Affairs Council (GAC) coordinates the work of the different Council configurations, as well as prepares and follows up the meetings of the European Council.

The new Foreign Affairs Council (FAC) would deal with the EU’s external action on the basis of the strategic guidelines laid down by the European Council.

The other Council configurations can be changed by the European Council by QMV.

If the Treaty of Lisbon enters into force, implementing decisions are required (and need to be prepared).


Existing configurations

The Council configurations have been brought down to fairly manageable number of nine. The existing configurations are found in Annex 1 to the Council’s Rules of Procedure (the consolidated version of 1 January 2009) of Council Decision of 15 September 2006 adopting the Council’s Rules of Procedure (originally published OJEU 16.10.2006 L 285/47):


ANNEX I
LIST OF COUNCIL CONFIGURATIONS

1. General affairs and external relations;

2. Economic and financial affairs;

3. Justice and home affairs;

4. Employment, social policy, health and consumer affairs;

5. Competitiveness (internal market, industry and research);

6. Transport, telecommunications and energy;

7. Agriculture and fisheries;

8. Environment;

9. Education, youth and culture.



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Council Presidency

The new Foreign Affairs Council is chaired by the High Representative, but the Council Presidency as a generic term or the Presidencies of the different Council configurations need to be established on the basis of equal rotation according to Article 16(9) TEU and Article 236(b) TFEU.


Declaration 9


At the time of signing the Treaty of Lisbon, the intergovernmental conference was keen to exhort the Council to begin preparing the decision establishing the procedures for implementing the decision on the exercise of the Presidency of the Council as soon as the Treaty of Lisbon is signed, and to give its political approval within six months.


Declaration 9 on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council contains a Draft decision of the European Council on the exercise of the Presidency of the Council.

The main provision is Article 1, which does not achieve a united Council Presidency for 18 months, but aims to enhance the current “troika” system into a Presidency “trio”, but still with separate stints at the helm (OJEU 9.5.2008 C 115/341):


Article 1

1. The Presidency of the Council, with the exception of the Foreign Affairs configuration, shall be held by pre-established groups of three Member States for a period of 18 months. The groups shall be made up on a basis of equal rotation among the Member States, taking into account their diversity and geographical balance within the Union.

2. Each member of the group shall in turn chair for a six-month period all configurations of the Council, with the exception of the Foreign Affairs configuration. The other members of the group shall assist the Chair in all its responsibilities on the basis of a common programme. Members of the team may decide alternative arrangements among themselves.



Existing Presidency list

The existing list of Council Presidencies is contained in the Annex to the Council Decision of 1 January 2007 determining the order in which the office of President of the Council shall be held (OJEU 4.1.2007 L 1/11).

The first trio with a common programme was Germany, Portugal and Slovenia. The second 18 month programme is the ongoing one of France, the Czech Republic and Sweden. In a union of 27 states, each one is in turn every 13.5 years.

Formally, the European Council may prepare to adopt a new decision, if the Lisbon Treaty enters into force, but it does not necessarily mean that the order would be changed. In the event of accessions, the new member states might be inserted into an amending decision, or added only when the current list runs out.



ANNEX

Germany January-June 2007

Portugal July-December 2007

Slovenia January-June 2008


France July-December 2008

Czech Republic January-June 2009

Sweden July-December 2009


Spain January-June 2010

Belgium July-December 2010

Hungary January-June 2011


Poland July-December 2011

Denmark January-June 2012

Cyprus July-December 2012


Ireland January-June 2013

Lithuania July-December 2013

Greece January-June 2014


Italy July-December 2014

Latvia January-June 2015

Luxembourg July-December 2015


Netherlands January-June 2016

Slovakia July-December 2016

Malta January-June 2017


United Kingdom July-December 2017

Estonia January-June 2018

Bulgaria July-December 2018


Austria January-June 2019

Romania July-December 2019

Finland January-June 2020



Ralf Grahn

European Council voting rules

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.)

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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):

SECTION 2
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.


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Qualified majority

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.


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Transitional provisions

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.)


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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.


Ralf Grahn

EU customs cooperation: IPR infringements

European Union customs cooperation against counterfeiting and piracy has advanced one step with the new EU customs action plan to combat infringements of intellectual property rights (IPR) for the years 2009 to 2012.


EU Customs Action Plan to Combat IPR Infringements 2009-2012

The new programme strives to take into account the growing threat posed by counterfeit goods to health and safety and to the environment, as well as the latest trends in the area of counterfeiting and piracy, especially with regard to the new challenges posed by the globalisation of world trade and Internet sales.

Council Resolution 2009/C 71/01 of 16 March 2009 on the EU Customs Action Plan to combat IPR infringements for the years 2009 to 2012 has been published in the Official Journal of the European Union (OJEU) 25.3.2009 C 71/1.


Ralf Grahn

Community Trade Mark Regulation

The Community trade mark Regulation has been recast in a codified version, published in the Official Journal of the European Union (OJEU) 24.3.2009 L 78/1. Officially, this text with EEA relevance is called:

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version).

***

Under the current Treaty establishing the European Community (TEC), there is no specific legal base for intellectual property rights, so the Regulation is based on the so called flexibility clause, Article 308 TEC with its requirement of unanimity.

The Treaty of Lisbon would improve matters by enabling the European Union to create European intellectual property rights in accordance with the ordinary legislative procedure, with the exception of language arrangements still needing Council unanimity (Article 118 of the Treaty on the Functioning of the European Union; TFEU).


Ralf Grahn

Lisbon Treaty & European Council: President’s job

In these troubled times, new job openings are scarce. Have you thought about becoming President of the European Council?

If the EU Treaty of Lisbon enters into force, the heads of state or government of the member states are going to fill a new post, that of the President of the European Council. We look at the official job description and look at how openly our leaders have prepared the position and the perks.



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Lisbon Treaty

Article 15(6) of the amended Treaty on European Union describes the tasks of the new President (OJEU 9.5.2008 C 115/23):


Article 15(6) TEU

6. The President of the European Council:

(a) shall chair it and drive forward its work;

(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;

(c) shall endeavour to facilitate cohesion and consensus within the European Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.

The President of the European Council shall not hold a national office.



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Liaisons

In addition, as President of the European Council you would have to liaise with the new General Affairs Council (GAC) and the Commission:


Article 16(6) TEU, second subparagraph

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.


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Emergency meetings

The leisurely pace of four annual meetings may be broken if developments on the international scene turn for the worse. You may have to convene an extra meeting:


Article 26(1) TEU, second subparagraph

If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union's policy in the face of such developments.


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Convention

If the European Council decides to call a Convention to examine treaty amendments, your job is to send the invitations:


Article 48(3) TEU, in part

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. ---


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Package deal

If you apply for this prestigious job, to become a member of the European Council (without a vote), you will have to convince at least a qualified majority of the current members that you are their man or woman.

But besides your personal qualities, you will have to fit into a larger pattern. In Declaration 6 the heads of state or government (intergovernmental conference) agreed on the following guidance for the (s)election of the President of the European Council. Note that political affiliation and gender are not mentioned among the relevant factors of diversity (OJEU 9.5.2008 C 115/338):



6. Declaration on Article 15(5) and (6), Article 17(6) and (7) and Article 18 of the Treaty on European Union

In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.


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Taking over

When you take over the reins, you may need to know how your buddies have planned the transition:


8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council

In the event that the Treaty of Lisbon enters into force later than 1 January 2009, the Conference requests the competent authorities of the Member State holding the six-monthly Presidency of the Council at that time, on the one hand, and the person elected President of the European Council and the person appointed High Representative of the Union for Foreign Affairs and Security Policy, on the other hand, to take the necessary specific measures, in consultation with the following six-monthly Presidency, to allow an efficient handover of the material and organisational aspects of the Presidency of the European Council and of the Foreign Affairs Council.


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Salary and perks

According to Article 243 of the Treaty on the Functioning of the European Union (TFEU), your salary and perks will be decided by your peers:


Article 243 TFEU
(ex Article 210 TEC)

The Council shall determine the salaries, allowances and pensions of the President of the European Council, the President of the Commission, the High Representative of the Union for Foreign Affairs and Security Policy, the Members of the Commission, the Presidents, Members and Registrars of the Court of Justice of the European Union, and the Secretary-General of the Council. It shall also
determine any payment to be made instead of remuneration.


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Preparatory work: Start

You might be interested in how the implementation of the Treaty of Lisbon is moving along. Your first source of information is naturally what the European Council has decided in public. First you encounter the initial decision right after the signing of the treaty. The Presidency Conclusions reassuringly tell you that on 14 December 2007, the European Council agreed that it will take stock of progress on necessary preparatory work when appropriate so as to ensure the full functioning of the Treaty as soon as it enters into force. It underlines the comprehensive nature of this exercise and the consequent need for a single framework as well as political guidance at the highest level. Technical work will start in Brussels in January on the basis of a work programme which will be presented under the authority of the incoming President of the European Council [Slovenia].


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Follow-up

The following tidbits are offered to you and the rest of the public half a year later, in the 13 June 2008 report by the Slovenian Council Presidency to the 18 and 19 June 2008 European Council (document 10650/08). This is what it has to say about your coming job with regard to the needed new Rules of Procedure of the European Council:

Considerable progress was made on technical aspects of the European Council's Rules of Procedure; some other issues, related in particular to the preparation of European Council meetings, will require further work. A preliminary exchange of views focussed on the respective roles of those involved in the preparation of European Council meetings. There was broad support for the need for all of them to work closely together. A significant number of delegations underlined the need to ensure an adequate role in European Council meetings for the Head of State or Government of the Member State holding the Council presidency. These issues will require further work.


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Up-to-date information

Having seen that further work is needed, you want fresh information on progress.

The December 2008 meeting of the European Council was mainly interested in Ireland. It also tried to envision the transition to the Lisbon Treaty with regard to the numbers of MEPs and Commissioners, as well as the nomination of the President of the Commission and the rest of the Commission.

It did, however, without preceding public discussion, offer a glimpse of its thoughts about the preparation of the decisions concerning your new job and other matters of interest (document 17271/1/08 REV 1 Annex 1). As you see, you are to be consulted, if elected:

Declaration of the European Council

Treaty of Lisbon – Transitional measures concerning the Presidency of the European Council and the Presidency of the Foreign Affairs Council

In the event that the Treaty of Lisbon enters into force at a date when a six-monthly Presidency of the Council has already begun, the European Council agrees that, as a matter of transition, in order to take into account the preparatory work and ensure harmonious continuity of work:

− the competent authorities of the Member State holding the six-monthly Presidency of the Council at that time will continue to chair all the remaining meetings of the Council and the European Council, as well as third-country meetings, until the end of the period of office;

− the following six-monthly Presidency of the Council will be in charge of taking the necessary specific measures relating to the organisational and material aspects of the Presidency of the European Council and of the Foreign Affairs Council during its period of office, in conformity with the Treaty. On these issues, close consultation will be established between this Presidency and the President (elect) of the European Council and the High Representative (designate) of the Union for Foreign Affairs and Security Policy.


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Other matters

You may be interested in the nomination procedure, the public debate, the weighing of your merits and the decision making, before you are consulted about the organisational and material aspects of your office as President of the European Council.

Sorry, the best public information you are able to lay your hands on is yesterday’s response from Europe Direct, available with comments on the Grahnlaw blog (Lisbon Treaty implementation: State of play).

Why worry? If you don’t belong to the charmed circle readily informed about the real state of affairs, you have no chance of getting the job.



Ralf Grahn

Lisbon Treaty implementation: State of play

This is the information Europe Direct has provided today with regard to my questions to the Council and the Commission on preparatory work for the implementation of the Treaty of Lisbon:


“In reply to your questions please note the following information provided by the Secretariat General of the European Commission:


a) Preparatory work on the implementation of the Lisbon Treaty


- Council & European Council

" On 13 June 2008, the Slovenian Presidency circulated a progress report on preparatory work in view of the entry into force of the Lisbon Treaty. This report gives an overview of the work undertaken under the chairmanship of the Slovenian Presidency, recalling that no decision can be taken whilst the ratification process is still underway.

" The European Council took note of this progress report, which briefly summarises discussions of Permanent Representatives on a number of implementation issues: citizens' initiative, data protection, advocates-general, consultative panel for nomination of judges, delegated and implementing acts, transition to co-decision, committee structures in the area of Justice and Home Affairs, budget for 2009 and budget procedure, inter-institutional programming, rules of procedure of European Council and Council, European External Action Service, chairmanship of preparatory bodies in the area of external relations, and issues relating to the General Affairs Council.


- European Commission

" The European Commission has been taking part in Coreper/Council discussions on preparatory work. It has also undertaken its own internal reflection on a number of issues, especially where new initiatives of the Commission are required, such as the Citizens' Initiative or the framework regulation on implementing acts. President Barroso has presented the Commission's approach on implementation issues and more particularly institutional and external relations aspects in April 2008.

" The Commission has always paid careful attention to the balance between the need to avoid seeming to anticipate a Treaty still in the process of ratification, and prudent preparation for the scenario of its implementation. After the Irish no-vote, the preparatory work has been out somewhat on hold.


- European Parliament

" The European Parliament has been working on several reports, mainly:

• Dehaene (PPE-DE/BE) report on the impact of the Lisbon Treaty on the development of the institutional balance in the EU
•
• Leinen (PSE/DE) report on the Parliament's new role and responsibilities implementing the Treaty of Lisbon
•
• Brok (PPE-DE/DE) report on the institutional aspects of creating a European service for external action
•
• Brok (PPE-DE/DE) report on the development of the relations between the European Parliament and the national parliaments under the Lisbon Treaty
•
• Guy-Quint (PSE/FR) report on the financial and budgetary aspects of the Lisbon Treaty
•
• Corbett (PSE/UK) report on the general review of the Rules of Procedure
•
• Kaufmann (GUE-NGL/DE) report on the implementation of the European Citizens' initiative
•
• Grabowska (PSE/PL) report on the perspectives for developing the civil dialogue under the Lisbon Treaty
•
• Wielowieyski (ex-Geremek) (ALDE/PL) report on communicating on and gaining the citizens' support for the Treaty of Lisbon
•

" For information on the content of these reports and the state of play, please consult the Website of the European Parliament : http://www.europarl.europa.eu/news/public/default_en.htm



b) and c) Coming changes to the Commission's Rules of Procedure and planned interinstitutional agreements

Changes and plans not available for the moment.

We hope the above information will be of help to you.

With kind regards,
EUROPE DIRECT Contact Centre”


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Comments

I am grateful for the reply. A few comments about the substance of the information provided.


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European Council and Council

As we see, no new information has been disclosed about preparations within the European Council and the Council after the Slovenian report to the June 2008 European Council.

These have been presented and discussed on this blog, as have later conclusions and declarations of the European Council concerning limited aspects.

There is no new substance about work in progress.


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Commission

The Commission does not deny discussing and reflecting, but it offers nothing of substance. Is it prudent to exclude public discussion?


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European Parliament

The European Parliament is the only institution, which has shown willingness to prepare its views publicly (but only a few days ago it was reported that the EP is going to put the work on hold). The European Parliament should press ahead in order to adopt resolutions.

The Dehaene, Leinen, Brok (on parliaments) and Corbett reports have been presented on this blog, as well as the Duff report on the European elections.


This blog will gladly turn to the reports on budgetary matters (Guy-Quint and Böge), when it advances to the financial provisions. But they may be of interest to readers before that.


The Kaufmann, Grabowska and Wielowieyski deal with matters, which are of interest to citizens and MEP candidates. These issues may reappear again during our continued progress through the Treaty of Lisbon, although various aspects of these questions have been discussed earlier.


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Rules of Procedure

The Commission gave no information about its Rules of Procedure or planned interinstitutional agreements.

Nothing was mentioned with regard to the Council, which needs to amend its Rules of Procedure, or about the European Council, which needs new ones. Neither were interinstitutional agreements mentioned.


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All in all, with the possible exception of the European Parliament (until a few days ago), the EU institutions seem to more inclined to adopt ‘omertà’ than to encourage public discussion.

Yes, the reply was instructive in that regard.



Ralf Grahn

Gibraltar & Lisbon Treaty

A while back I wrote that the UK Foreign and Commonwealth Office and Gibraltar have not answered my questions about possible approval of the EU Treaty of Lisbon in Gibraltar.

The geographical scope - Article 355(3) and (4) TFEU - includes the Aland Islands and Gibraltar (additionally Declaration 55), but the Wikipedia article on the Lisbon Treaty reports that these territories with self-rule are to decide on the applicability in their territories.

The Wikipedia information is correct as to Aland, but I had failed to find information to confirm or deny that Gibraltar would need to approve the Lisbon Treaty.

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Today I received an answer from the Minister of Justice of Gibraltar D A Feetham, saying that Gibraltar is part of the European Union by virtue of UK membership on the basis that the UK is responsible for the external affairs of the territory. Gibraltar is not a Member State and does not ratify treaties.

Once the Lisbon Treaty is ratified by the UK it will then be applicable to Gibraltar.


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I am grateful for the response.

A few remarks:

The answer is official, so the editors of the Wikipedia article on the Lisbon Treaty need to take the position into account.

The autonomy of the Aland Islands is roughly comparable, but there the treaty needs to be approved with regard to its territory and the policy areas pertaining to self rule (and my question did not imply formal ratification).

The answer does not contain any legal references, but if someone has more exact information to share, I am grateful.

The concept ‘external affairs’ is given a wide interpretation for direct applicability, given the subject matter of the EU treaties (a number of internal policy areas, some of which probably are included in Gibraltarian self-rule).

The United Kingdom has ratified the Treaty of Lisbon, so its entry into force awaits the final ratifications by the last member states.

The UK FCO has not responded yet.


Ralf Grahn

Lisbon Treaty & European Council: “Presidential elections”

The Treaty of Lisbon would endow the European Union with a new office-holder: the President of the European Council.

The new President would be elected by the European Council, by a qualified majority.

The President’s term in office would be two and a half years, renewable once.

The relevant provision is Article 15(5) of the amended Treaty on European Union (TEU), published in the consolidated version of the Lisbon Treaty OJEU 9.5.2008 C 115/23:


Article 15(5) TEU

5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.


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Declaration 6

In Declaration 6 the heads of state or government (intergovernmental conference) agreed on the following guidance for the election of the President of the European Council (OJEU 9.5.2008 C 115/338):



6. Declaration on Article 15(5) and (6), Article 17(6) and (7) and Article 18 of the Treaty on European Union

In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.


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Development of Council Presidency

In The Treaty of Lisbon: Implementing the Institutional Innovations (joint study by CEPS, EGMONT and EPC, November 2007), the chapter The Presidency of the Council: The paradox of the new presidency (from page 39) paints a background picture of how the Council Presidency has evolved, and presents an analysis of weaknesses of and the requirements for the potential success of the proposed system.

Under the Treaty of Lisbon, the Council Presidency will be split up into no less than five different and somewhat unconnected levels of responsibility namely (page 46):

(1) the President of the European Council,
(2) the group of three Member States in the eighteen-month Presidency Team,
(3) the Member State in the team holding the six-month Presidency,
(4) the High Representative for foreign policy, President of the Foreign Aff airs Council, and
(5) the President of the euro group.


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Pros and cons

Another discussion of the pros and cons of the permanent President of the European Council is presented in the UK House of Lords report The Treaty of Lisbon: an impact assessment, Volume I: Report (HL Paper 62-I, 13 March 2008), from page 41.

The witnesses presented quite different views on how difficult the coordination between the President of the Commission, the President of the European Council, the High Representative and the member state holding the rotating Council Presidency would turn out to be.

Conclusion 4.34 acknowledged the significance of the post and the disputed role of the President of the European Council (page 48):

“The creation of a full-time European Council President, in place of a six-monthly rotation among heads of government, is a significant move, and is likely to make the European Council more effective at creating direction and action. This could mean a more active/activist European Council—a consequence which would be welcomed in some quarters but not in others.”


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European elections

In Think global, act European (published by Notre Europe), thirteen European think tanks gave their views to the upcoming trio, the EU Council Presidencies of France, the Czech Republic and Sweden, against the background of the planned entry into force of the Treaty of Lisbon.

Gaëtane Ricard-Nihoul and Elvire Fabry advised against including the President of the Commission in a crude package deal within the European Council (page 19):

“The troika must also take care to ensure that the European Council does not agree to any upstream intergovernmental deal concerning the nominations of the Council president, the Commission president and the High Representative. The appointment of the new President of the Commission should depend upon the outcome of the European elections of June 2009. More than ever these elections need a genuine political agenda in order to mobilise voters, since turnout has been declining since 1979.”


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Interinstitutional agreement

The thirteen think-tanks made further recommendations on the implementation of the Lisbon Treaty. The trio of Council Presidencies should negotiate an interinstitutional agreement with the Commission and the European Parliament (page 25):



“To negotiate with the Commission and the European Parliament a sort of “code of conduct” (Europeum), an inter-institutional agreement to define the principles that should prevail not just in the choice of individuals to fill key posts, but also in the way these new functions will be incorporated into the existing institutional framework (impact on COREPER, working groups, rotating Presidencies, role of the General Affairs Council, conciliation of co-decision, etc.) (SIEPS, DemosEuropa).”


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Selection of President

The think tanks made the following recommendation for the selection of the President of the European Council (page 26):


“To select a President of the European Council who does not become, in any form whatsoever, a rival to the President of the European Commission. The Council President should be a prominent European figure respected by all member states, capable of having authority vis-à-vis the exterior and, at the same time, of building a consensus within the community. This implies someone from the heart of the current European integration process, that is from a member of the euro-zone and of the Schengen Agreement (CEPS, Eliamep, Notre Europe).”


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Interinstitutional relations


The post of the President of the Commission and the new posts of President of the European Council and the double-hatted High Representative are linked, as shown by Declaration 6 (above). It is possible that the entry into force of the Lisbon Treaty coincides more or less exactly with the start of the next Commission’s term of office, and the Treaty of Lisbon creates the two other posts.

On 9 March 2009 the Committee on Constitutional Affairs (AFCO) of the European Parliament voted on the draft report by Jean-Luc Dehaene on the impact of the Treaty of Lisbon on the development of the institutional balance of the European Union (2008/2073(INI)).

The AFCO report proposes a procedure and a timetable for the nominations, with a wish to see them applied already after the June 2009 European elections:

“42. In this context, proposes as a possible model the following procedure and timetable for the nominations, which could be agreed by the European Parliament and the European Council:

– weeks 1 and 2 after the European elections: installation of the political groups in the European Parliament;

– week 3 after the elections: consultations between the President of the European Council and the President of the European Parliament, followed by separate meetings between the President of the European Council and the Presidents of the political groups (possibly also with the Presidents of the European political families or restricted delegations);

– week 4 after the elections: indication by the European Council, taking into account the results of the consultations mentioned in the previous indent, of the candidate for President of the Commission;

– weeks 5 and 6 after the elections: contacts between the candidate for President of the Commission and the political groups; statements by that candidate and presentation of his/her political guidelines to the European Parliament; vote in the European Parliament on the candidate for President of the Commission;

– July/August/September: the elected President of the Commission agrees with the European Council on the nomination of the High Representative and proposes the list of Commissioners-designate (including the High Representative/Vice-President);

– September: the European Council adopts the list of Commissioners-designate (including the High Representative/Vice-President);

– September/October: hearings of the Commissioners-designate and of the High Representative/Vice-President-designate by the European Parliament;

– October: presentation of the college of Commissioners and their programme to the European Parliament; vote on the entire college (including the High Representative/Vice-President); the European Council approves the new Commission; the new Commission takes up its duties;

– November: the European Council nominates the President of the European Council;


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EP President

Against the background of the link between the posts and the Deahaene report, at the spring European Council the President of the European Parliament Hans-Gert Pöttering spoke about the nomination and the election of the next President of the Commission, but with implications for the whole “package”:

“What we need in this difficult situation is a clear timetable. On 14 July the newly-elected European Parliament will hold its constitutative part-session.

No matter what, we want that the election of the President of the Commission takes place on 15 July 2009. This election must reflect the outcome of the European elections. For this to happen, consultations between the Council Presidency and the European Parliament will be necessary.

This consultation procedure need not be exclusively related to the choice of person for Commission President, but must also include upcoming legal, political and personnel questions.

Parliament would be willing to conduct them after the elections and before the June meeting of the European Council. We must also make arrangements to ensure that the new Commission can still take office this year.”


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Reflections

Instead of a European Union based on representative democracy, with a directly elected European Parliament and a politically accountable executive built on the existing Commission, the leaders of the member states have opted for the strengthening of the intergovernmental European Council, where they direct union affairs.

A permanent President of the European Council serves this interest by bringing continuity to the post and by full-time employment.

As an internal choice of the European Council, without direct input from the EU’s citizens or the other institutions, the new President has little democratic legitimacy. He or she is selected behind closed doors by an electoral college of 27. These are “Presidential elections” European style.

Against this background, the President of the European Council is not and cannot be the President of Europe. Possibly, the new position will sow confusion outside and create complications inside.

If the six month rotating presidency is felt to be inadequate for the European Council, the post could be merged with the post of the President of the Commission, which would give it a modicum of democratic legitimacy at the current stage of development, as well as continuity. This has been proposed by the WhoDoICall.eu campaign.



A future directly elected President of the European Council, as some have speculated, would in my opinion be a wrong turn, leading to a presidential system alien to most of the EU member states, with the notable exception of France. The vast majority of the member states are parliamentary democracies, and there is reason to simplify the structures at EU level, not to add complications.

In the long run, if the European project is to survive and prosper, it has to be re-founded on its citizens, with a democratically legitimate government.



Ralf Grahn

Lisbon Treaty & European Council: Voting rules

The voting rules for the European Council are essentially the same as for the Council. They are the results of the political blackmail invited by the requirement to agree unanimously on treaty amendments.


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VOTING RULES





European Council voting

Article 235 TFEU lays down the voting rules for the European Council. The provision offers a member the possibility to be represented by another (as did take place between Gerhard Schröder and Jacques Chirac).

The President of the European Council and the President of the Commission do not take part in the vote.

The same rules apply as to the Council: the definition of a qualified majority from 1 November 2014 and a blocking majority (Article 16(4) TEU). But further details are needed (Article 238(2) TFEU and the Protocol on transitional provisions) to come to grips with the applicable rules.

Abstentions offer less enthusiastic members an opportunity to show detachment without wrecking the progress of others when unanimous decisions are needed.

Procedural questions and the adoption of the European Council’s Rules of Procedure require only a simple majority:


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.


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To see the full mess, read Article 3 of Protocol (No 36) on transitional provisions, with provisions concerning the qualified majority.

(Negotiating treaties under multiple unanimity rules leaves its marks on the results, and they leave one wondering if they are in anybody’s interest, national or other.)



Ralf Grahn

Lisbon Treaty & European Council: Simple majority decisions

After looking at qualified majority voting (QMV) in the European Council, we turn to the instances when it takes its decisions by simple majority.



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SIMPLE MAJORITY


Treaty amendment ─ With or without IGC?

When a member state, the European Parliament or the Commission has submitted to the Council a proposal for the amendment of the treaties, Article 48 TEU under the ordinary revision procedure, sees the European Council deciding by a simple majority to examine the proposed amendments. Normally, this leads to a Convention, but the European Council can decide by a simple majority to refer “small change” directly to an intergovernmental conference (IGC):


Article 48(3) TEU


3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.


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Procedural questions & Rules of Procedure

According to Article 235(3) of the Treaty on the Functioning of the European Union (TFEU), the European Council decides by simple majority on procedural questions and the adoption of its Rules of Procedure:


Article 235(3) TFEU

3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.



(We are still waiting for progress reports on the preparatory work and concrete proposals concerning the implementation of the Treaty of Lisbon. Among the awaited proposals is the one with the European Council’s Rules of Procedure.)


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The next post is going to indicate the voting rules (a tribute payment to the constraints of unanimous treaty amendment).



Ralf Grahn

Lisbon Treaty & European Council: Qualified majority voting

The European Council generally seeks consensus on political guidelines and most of its concrete decisions have to be unanimous. But some questions the European Council can decide by voting.

We look at where the European Council needs a qualified majority (QMV) according to the Treaty of Lisbon.

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QUALIFIED MAJORITY VOTING

“Presidential elections”

The European Union elects its President by a qualified majority according to Article 15(5) of the amended Treaty on European Union (TEU):


Article 15(5) TEU

5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.



(Consolidated Treaty of Lisbon, published in OJEU 9.5.2008 C 115)


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President of the Commission


The European Council takes the results of the European elections into account and holds appropriate consultations, before it proposes a candidate for President of the Commission. The proposal is made by a qualified majority.

If the proposal fails, a new one is made by qualified majority.

When the European Parliament has elected the Commission President and later given its consent to the Commission as a body, the European Council appoints the Commission by a qualified majority:


Article 17(7) TEU


7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.

The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.

The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.


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(See Declaration 11 on Article 17(6) and (7) of the Treaty on European Union on consultations between the European Parliament and the European Council.)



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High Representative

Qualified majority voting can be used by the European Council to appoint the High Representative, as well as to end his term of office:


Article 18 TEU

1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.


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Council configurations and Presidency

The Lisbon Treaty splits the existing General Affairs and External Relations Council (GAERC) into two new configurations named in the treaty, the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) covering the whole of external relations.

Therefore the European Council decides only on the other Council configurations. The decision is made by qualified majority.

The rotating Council Presidency is abolished for the European Council itself (new President) and for the FAC (High Representative), but with regard to the other Council configurations the system continues. The system is based on equal rotation, offering each member state six months at the helm every 13.5 years (in an EU with 27 members):


Article 236 TFEU

The European Council shall adopt by a qualified majority:

(a) a decision establishing the list of Council configurations, other than those of the General Affairs Council and of the Foreign Affairs Council, in accordance with Article 16(6) of the Treaty on European Union;

(b) a decision on the Presidency of Council configurations, other than that of Foreign Affairs, in accordance with Article 16(9) of the Treaty on European Union.


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(See Declaration 9 on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council.)


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Executive Board of ECB

The President, the Vice-President and the four other members of the Executive Board of the European Central Bank are (ECB) appointed by the European Council, acting by a qualified majority:


Article 283(2) TFEU, second subparagraph

The President, the Vice-President and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, from among persons of recognised standing and professional experience in monetary or banking matters, on a recommendation from the Council, after it has consulted the European Parliament and the Governing Council of the European Central Bank.


(The contents are repeated in Article 11.2 of the Statute of the European System of Central Banks and the European Central Bank; Protocol (No 4))


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The Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union foresees a qualified majority decision by the European Council in a case referred to it:


Article 5(4)

4. If, by the end of the period of four months, the Council has not adopted a decision, a Member State may, without delay, request that the matter be referred to the European Council. In that case, the European Council shall, at its next meeting, acting by a qualified majority on a proposal from the Commission, take a decision in accordance with the criteria referred to in paragraph 3.


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The next post looks at when the European Council can decide by simple majority.



Ralf Grahn

Lisbon Treaty & European Council: Unanimous decisions

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.


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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.)


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Equal rotation

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.


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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.)




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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).


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CFSP

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.


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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).


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CSDP

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.)



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Secession


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.


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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.




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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.


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Non-European territories



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.


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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 40.2.


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.


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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.



Ralf Grahn

Lisbon Treaty & European Council: Decisions by unanimity

The European Council takes a number of decisions by unanimity, according to the Treaty of Lisbon (OJEU 9.5.2008 C 115).


The European Council determines the existence of a serious and persistent breach by a Member State of the European Union’s founding values (Article 7(2) TEU).


The European Council adopts by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament (Article 14(2) TEU).


If a member state applies the emergency brake with regard to a decision on foreign and security policy (CFSP), the European Council takes the decision by unanimity (Article 31(2) TEU).


With regard to the simplified revision procedure mentioned in Article 48 TEU, the European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council acts by unanimity, but the decision does not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.


The European Council shall act by unanimity when it adopts a decision authorising the Council to act by a qualified majority in an area or in a case providing for unanimity under the Treaty on the Functioning of the European Union or Title V TEU (external action, CFSP, excluding decisions with military implications or those in the area of defence) (Article 48(7) TEU).



Ralf Grahn

Lisbon Treaty & European Council: Decisions by consensus

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).

Let us see where else the Lisbon Treaty employs the term consensus in conjunction with the European Council.

In Article 82 TFEU, when the European Council has become employed by the ‘emergency brake’ concerning mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Council after discussion, and in case of a consensus, within four months of the suspension, refers the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

The same procedure applies with regard to proposed directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 83 TFEU).

Likewise, if a group of at least nine member states wants to establish enhanced cooperation in order to establish a European Public Prosecutor's Office from Eurojust, with the task to combat crimes affecting the financial interests of the Union (Article 86 TFEU).

The same procedure applies to operational cooperation concerning police authorities (Article 87 TFEU).


With regard to qualified majorities and blocking minorities, Protocol (No 9) on the decision of the Council relating to the implementation of Article 16(4) of the Treaty of European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other, any amending or modifying act would be preceded by a preliminary deliberation by the European Council based on consensus.

Declaration (23).on the second paragraph of Article 48 of the Treaty on the Functioning of the European Union recalls that the European Council acts by consensus when it deals with a referral, where a member state has declared that a draft legislative act would affect important aspects of its social security system.


***


There seem to be two different situations mainly: The European Council sorts the situation out by reaching consensus needed for a Council decision. The referral is only temporary, and the willing press ahead with enhanced cooperation.

Next, we look at the terms unanimity and by unanimous decision.


Ralf Grahn

Lisbon Treaty & European Council: Consensus or unanimity?

The European Council primarily takes decisions which are politically (not legally) binding, such as Presidency Conclusions, declarations and guidelines. Its mode of operation can be seen as consensus seeking. Basically, the political texts can be watered down until consensus is reached.

One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.

***

Consensus

In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:


Article 15(4) (Lisbon Treaty)


4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.


(OJEU 9.5.2008 C 115/23)


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Consensus or unanimity?

Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).

Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.

The Lisbon Treaty employs both terms in conjunction with the European Council.

My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.


People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.

In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?


Ralf Grahn

European Council: Lisbon Treaty implementation

After the spring European Council, how much wiser are we on the implementation of the Treaty of Lisbon and the needed preparatory work?

The Czech Presidency Conclusions (Council document 7880/09) tell us ─ nothing we don’t know ─ about Ireland and the Czech Republic:



Treaty of Lisbon

34. The European Council was informed of the state of play on implementing its conclusions of December 2008 on the Treaty of Lisbon. It will revert to this issue at its June 2009 meeting.

35. As a point of information, the Prime Minister of the Czech Republic reported about the state of ratification of the Lisbon Treaty in the Czech Republic. After the judgment of the Czech Constitutional Court on 26 November 2008, the Chamber of Deputies of the Czech Parliament has authorised this ratification on 18 February 2009 and the Senate will debate this subject in the coming weeks.



***


What about preparation and progress on the rest of the questions?


Can we trust the Czech government and Senate even to ratify the Lisbon Treaty?


Are there real grounds for the optimism of Hans-Gert Pöttering, the President of the European Parliament?


„Wir sind davon überzeugt, dass sich auch der tschechische Senat seiner Verantwortung für die Tschechische Republik und für die gesamte Europäische Union bewusst ist und seinen Beitrag für einen baldigen Abschluss des Ratifizierungsprozesses leisten wird!“




Ralf Grahn

Lisbon Treaty & European Council: Changing participation

Although only the President of the European Council is added as a member (without a vote) and the High Representative as a participant, the Treaty of Lisbon has both direct consequences and potential implications for summit participation.

The formal changes appear in Article 15(3) of the amended Treaty on European Union (TEU), which replaces the corresponding provisions of the current Article 4 TEU.

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Convened by President

Under the Lisbon Treaty, the European Council is convened by its President, not the member state holding the rotating Council Presidency.

***

Meetings

The European Council started by holding one (ordinary) meeting during each six month Presidency, with the current treaty setting the minimum at twice a year. But long ago the European Council moved to two meetings, so the Lisbon Treaty only codifies existing practice. (Nowadays the meetings are normally held in Brussels, breaking with the tradition to hold one meeting in the country of the Council Presidency.)

The Lisbon Treaty adds that the President can convene a special meeting when the situation so requires. Currently the ‘at least’ offers room for additional meetings, as seen during the French and Czech Council Presidencies.

***

High Representative

The High Representative of the Union for Foreign Affairs and Security Policy participates in the meetings.


The existing General Affairs and External Relations Council (GAERC) mentioned in Article 2 of the Council’s Rules of Procedure is most closely linked to the European Council through its coordinating functions and its subject matter, external relations.

The Treaty of Lisbon splits the GAERC into two different Council configurations: the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) (Article 16(6) TEU Lisbon).

(Preparatory work is needed for the implementation of the Lisbon Treaty.)


The High Representative chairs the Foreign Affairs Council (FAC), which means that it would be represented at the meetings of the European Council without the Foreign Ministers of the member states (Article 27(1) TEU Lisbon).

***


Foreign Ministers


The Foreign Ministers are the losers.

According to the current Article 4 TEU, the Foreign Ministers of the member states and a member of the Commission assist the members of the European Council.

The Treaty of Lisbon abolishes the automatic representation for the Foreign Ministers and the ‘extra’ Commissioner.

The members of the European Council can meet without ‘outsiders’. Under Lisbon, it is even the default option. If the agenda so requires, the members may decide to be assisted by a minister (and Commissioner).

The Foreign Affairs Council is represented by the High Representative anyway. The so called Europeanisation of EU affairs has increasingly made them part of internal policies in the member state and the activities of the European Union go well beyond the traditional area of foreign policy.

The current GAERC has had some difficulty in fulfilling the expectations concerning coordination of the European Council meetings. There are hopes that the new General Affairs Council (GAC) would be better equipped to concentrate on this task.

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Speculation

Europe Ministers

Ministers for Europe (and the like) have often been junior ministers (formally or informally) in comparison with Foreign Ministers.

If the new GAC becomes more influential, partly because the Council Presidency in turn finds it an outlet for its ambitions, it could mean that the Europe Ministers’ posts start moving towards more heavyweight divisions when new Cabinets are formed in the member states.

If the coordinating functions internally and externally accrue to the Europe Ministers over time, they may become the natural choices to assist their Prime Minister of President during the European Council meetings.

Prime Ministers

Usually the Prime Minister (or President) has the final word on EU affairs. It would probably be unrealistic to expect them to haggle over details at GAC meetings, then to continue the same discussions in the European Council.

But the Prime Minister of the Council Presidency may feel homeless, when the President of the European Council takes over leading its meetings. It is imaginable that the Prime Minister is tempted to chair the meetings of the GAC, at least ahead of the European Council meetings, perhaps even during the six months at the helm of the Council.



Article 15(3) TEU (Lisbon Treaty)


3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.


(OJEU 9.5.2008 C 115/23)




Ralf Grahn

Obama blocks the Lisbon Treaty?

The Obama administration is less hot than the Bush presidency about a deal on radar stations in the Czech Republic.

Ergo, the Czech Republic ─ a member state of the European Union, not the United States of America ─ is unable to ratify the Treaty of Lisbon, it seems.

This, from the prime minister of the country holding the presidency of the EU Council.

The Czech government has made it abundantly clear that the European Council needs a competent presidency.


Ralf Grahn

Lisbon Treaty & European Council: Composition

The composition of the European Council would undergo one change under the Treaty of Lisbon. The President of the European Council would become a member, according to Article 15(2) of the amended Treaty on European Union (TEU).

The head of state or government of each member state would still be a member, as would the President of the Commission, as under the current Article 4 TEU.

Article 15(2) TEU (Lisbon)

2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.

(OJEU 9.5.2008 C 115/23)


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Members first class

The heads of state or government would vote, if and when the European Council makes a decision by voting.


***

Members second class

The President of the European Council (chairman) and the President of the Commission do not have the vote, according to Article 235(1) of the Treaty on the Functioning of the European Union (TFEU).


***


High Representative

The High Representative of the Union for Foreign Affairs and Security Policy would take part in the work of the European Council.

The Council meets in different configurations, of which the existing General Affairs and External Relations Council (GAERC) mentioned in Article 2 of the Council’s Rules of Procedure is most closely linked to the European Council through its coordinating functions and its subject matter, external relations.

The Treaty of Lisbon splits the GAERC into two different Council configurations: the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) (Article 16(6) TEU Lisbon).

(Preparatory work is needed for the implementation of the Lisbon Treaty.)


The High Representative chairs the Foreign Affairs Council (FAC), which means that it would be represented at the meetings of the European Council without the Foreign Ministers of the member states (Article 27(1) TEU Lisbon).

As we will see, this has immediate consequences, but it may have interesting long term implications as well.


Ralf Grahn

When in Europe or North Korea

When in Europe, do as the North Koreans do. Or so it seems.

The heads of state or government affiliated to the European People’s Party (EPP) have unsurprisingly backed José Manuel Barroso for a second term as President of the Commission:

http://www.epp.eu/newsdetail.php?newsID=487&hoofdmenuID=5&submenuID=49&subsubmenuID=147

In the Treaty of Lisbon the leaders of the EU member states have signed up to the principle to take the results of the European elections into account when appointing the Commission President. If the EPP emerges as the largest group after the elections, we now know who the EPP affiliated heads of state or government are going to back. Fair enough.
Not everyone would agree with the reasons given by EPP President Wilfried Martens:

“Jose Manuel Barroso has a broad appeal in all the main political families and is by far the best candidate for this position taking into account his successful term as Commission President and his wide political experience at the national level.”

Is the ‘best candidate for this position’ based on Barroso being the sole candidate?

Does support among heads of state or government ─ an electoral college of 27 ─ really equal broad appeal in all the main European political families?

How successful has the first Barroso term been?

The EPP leaders in the European Council have exercised their judgment, which many see as conducive to the pre-eminence of the European Council.

***

Now it should be up to the voters to respond to the choice of candidate, but here we run into the North Korean dilemma.

With the British Tories defecting from the EPP-ED group, the Socialists and Social Democrats have a fighting chance of becoming the largest group in the European Parliament, if they launch a credible candidate with pan-European appeal.

The leaders affiliated to the Party of European Socialists (PES) met ahead of the spring European Council, but again failed to endorse a PES candidate.

The European Liberal Democrats (ELDR) have also failed to launch their own candidate to head the Commission.

***

375 million EU citizens eligible to vote are offered the choice of one candidate for the top spot: Nobody but Barroso.

Could there be a more damning self-indictment by the political parties at European level?

North Korea, here we come ...

Ralf Grahn

Lisbon Treaty & European Council: Tasks and powers

Arguably the European Council already is the politically most powerful (influential) body of the European Union. Formally the Lisbon Treaty would retain the description of the European Council’s general tasks almost as they are, but the heads of state or government have increasingly taken over the leading role from the Community institutions. The Treaty of Lisbon would see the European Council among the EU institutions in a formal sense as well (Article 13 TEU).

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General tasks

In the consolidated Treaty of Lisbon, Article 15(1) of the Treaty on European Union (TEU), replaces the first paragraph of the current Article 4 TEU. In the amending treaty, the general political guidelines become the general political directions and priorities. The clarification is added that the European Council does not exercise legislative functions (but it comes awfully close) (OJEU 9.5.2008 C 115/23):


1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.


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Role of European Council

Paul Craig and Gráinne de Búrca describe the role of the European Council in a few well chosen sentences (with added explanations and examples):

• The European Council is central to the very development of the Community and Union itself.
• The European Council will often confirm important changes in the institutional structure of the Community.
• The European Council can provide the focus for significant constitutional initiatives that affect the operation of the Community and Union.
• The European Council will frequently consider the state of the European economy as a whole.
• Conflict resolution is another issue addressed by the European Council.
• The European Council plays a role in the initiation or development of particular policy strategies.
• The European is also central in external relations.
• The European Council will also consider new accessions to the Community.

(Source: Paul Craig and Gráinne de Búrca: EU Law ─ Text, Cases, and Materials; pages 56 to 57; Fourth edition, Oxford University Press)


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Communication: Presidency Conclusions


The European Council communicates its political guidelines through Presidency Conclusions, issued at the end of each meeting.

The next ones are expected tomorrow, after the spring European Council.

The European Council does not have the Rules of Procedure necessary according to the Lisbon Treaty (one of the implementing tasks to prepare), but the General Secretariat of the Council has published Rules for the organisation of the European Council (January 2007):



Conclusions

12. The conclusions, which shall be as concise as possible, shall set out policy guidelines and decisions reached by the European Council, placing them briefly in their context and indicating the stages of the procedure to follow on from them.

13. An outline of the conclusions shall be distributed on the day of the European Council meeting in good time for the start of proceedings. The outline shall distinguish clearly between those parts of the text which have previously been approved and which are not in principle subject to discussion and those parts of the text which the European Council is to discuss with a view to reaching final conclusions at the meeting.


***

In addition, the European Council reports to the European Parliament.


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Comments

Naturally, being central to includes the limits and limitations imposed by the European Council and by its decision making mostly based on unanimity or consensus.

The European Council is essentially free to set its own agenda, when it acts outside the specific decisions mandated by the treaties. It chooses independently how it deals with the political (non-mandatory) input from the Community (Commission) and intergovernmental (Council) feeding mechanisms. Thereby it becomes the most intergovernmental body of the European Union, sometimes concluding intergovernmental agreements outside the institutional framework, but with direct bearing on it.

On the other hand, most of the formal decisions are still taken by the ‘Community’ institutions.

Since the formal description of the general tasks of the European Council remain almost unchanged under the Treaty of Lisbon, most reports and comments on the amending treaty have concentrated on the obvious changes (President, High Representative, Presidential relations), while the incremental rise of the body have gone almost without remarks.



Ralf Grahn

Lisbon Treaty & European Council: EP composition (until 2014)

The Treaty of Lisbon lays down the basic numbers and principles regarding representation in the European Parliament, as well as the procedure whereby the European Council makes the decision.

If the Lisbon Treaty enters into force after the European elections 2009, the European Council wants to see transitional measures in place until the end of the 2009 to 2014 parliamentary term.

Is the European Council meeting today and tomorrow going to bring any clarity as to how?

***

Under the Treaty of Lisbon, Article 14(2) of the Treaty on European Union, the European Council decides on the composition of the European Parliament.

The decision has to be:

1) unanimous
2) within the treaty limits
3) based on an initiative by the European Parliament
4) with the consent of the European Parliament

Article 14(2) TEU (OJEU 9.5.2008 C 115/22─23)

2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.


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Complications

Because the Lisbon Treaty has not entered into force, the European elections from 4 to 7 June 2009 will be arranged under the modified Treaty of Nice. Lisbon and Nice differ on both the total numbers and the allocation of seats between member states.

In other words, if the Lisbon Treaty enters into force, the numbers at treaty level would change during the parliamentary term.

There are two concrete complications:

The number of German MEPs would decrease from 99 to 96, after the election. Should three MEPs be expelled, perhaps only a few months into their mandate?

Twelve member states would gain a seat or two. This complicates matters both at national level (elections/by-elections) and at EU level.


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December 2008 European Council

The European Council on 11 and 12 December 2008 agreed politically on a way forward. In a declaration annexed to the Presidency conclusions (Council document 17271/1/08 REV 1) the European Council agreed on devising transitional measures for the rest of the 2009─2014 term.
The declaration acknowledged that legal procedures are necessary, but it failed to detail the means.

German surplus

The German surplus was treated by a masterstroke of oblique language, without mentioning the country: the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010.

Treaty level change is needed to modify the treaty, even transitionally. I have argued that it would be preferable to start the process as a separate exercise without delay, in order to enter into force if the Treaty of Lisbon does.

The European Council has indicated only that it would like the modification to enter into force during 2010, but has not explained how. It may have in mind to piggyback the following accession agreement (Croatia).

New MEPs

The additional representation for twelve member states (15 MEPs) is more of a complication at national level. How are the new MEPs going to be elected, as reserves in June 2009 or separately later? If later, this would thwart the character of proportional elections.
Have the member states in question came up with solutions?

Here is the text of the declaration:


Declaration of the European Council

Treaty of Lisbon – Transitional measures concerning the composition of the European Parliament

In the event that the Treaty of Lisbon enters into force after the European elections of June 2009, transitional measures will be adopted as soon as possible, in accordance with the necessary legal procedures, in order to increase, until the end of the 2009-2014 legislative period, in conformity with the numbers provided for in the framework of the IGC which approved the Treaty of Lisbon, the number of MEPs of the twelve Member States for which the number of MEPs was set to increase. Therefore, the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010.


***

Even a short passage is able to raise as many questions as it answers, but it shows that the implementation of the Treaty of Lisbon requires continuous public reporting on progress and proposals.

What can we expect from the Czech Council Presidency today and tomorrow?


Ralf Grahn

European Council: Nordic spoilers?

What future lies in store for cultures of official secrecy and judicious leaks to favoured journalists? Those Nordics have realised that most people yawn, when they hear the European Union mentioned.

This afternoon the EU committees of the Danish parliament (Folketinget) and the Swedish parliament (Riksdag) have discussed the agenda of the spring European Council with their prime ministers. The web-tv recordings are available for those who missed the live hearings.

In addition, in both countries the draft conclusions are available to the public.

I have two questions:

Is government (or European Union) business at risk through these revelations?

When and how is the public informed ahead of the EU summits in other member states?


Ralf Grahn

European Council & Lisbon Treaty: Representation

According to the Treaty of Lisbon, the functioning of the European Union is said to be founded on representative democracy. But the member states are more strongly represented than the EU citizens.

Strictly speaking, the EU citizens are represented only in the European Parliament.

The member states are represented in the European Council and the Council. The explanation given is that the members of the European Council and the Council are themselves democratically accountable either to their national Parliaments, or to their citizens (but not to EU citizens as a whole).

It is a case in point, when prime ministers or presidents endorse candidates for the top jobs within the European Union (or make deals in secret) without taking into account the results of the coming European elections.

If the political parties at European level (partly as a consequence) do not field alternative candidates for Commission President, they fail in their primary task: giving EU citizens true choice in the European elections.

How legitimate is the “double legitimacy” built around the European Council, an electoral college of 27?

***

European Council vs. EU citizens

In the consolidated Treaty of Lisbon, Article 10 of the Treaty on European Union (TEU) evokes the founding principles of representative democracy and citizens’ direct representation, before turning to the hard facts: a union based on member states, each represented by its head of state or government and its government.

After that it is easy to concede the right to participate in (what remains for) the democratic life of the union to its citizens, acknowledge the principle of decisions as openly and as closely as possible to the citizens, and to say a few reassuring words about the political parties at European level (OJEU 9.5.2008 C 115/20):

Article 10 TEU

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.


***

Questions

The official campaign to raise interest in the European elections 2009 is going to cost 18 million euros. The Europarties (officially, political parties at European level) and their foundations are financed to the tune of 18 million euros annually.

Add outside campaign contributions, campaign budgets of party organisations at all levels and individual campaigners.

The trappings of democracy are impressive.

Even take into account the evolving importance of the European Parliament.

Something is still missing: Real choice, real voice, real power for the European Union’s 375 million potential voters.

The intergovernmental European Union of heads of state or government is morally and politically bankrupt.

Their European Council is the main obstacle to real representative democracy at EU level.

European level challenges need European level solutions by legitimate and accountable EU level government, voted in (and out) by EU citizens.


Ralf Grahn

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.

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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).

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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

Will UK Labour return EU Conservatives to power?

A few days ago we read the following headline on EurActiv: Will UK Tories return EU Socialists to power?

In a great show of sportsmanship Gordon Brown has now evened the odds: Will UK Labour return EU Conservatives to power?

As far as I know, Brown is now the third PES (Party of European Socialists) affiliated prime minister to endorse a new five year term for José Manuel Barroso at the head of the Commission.

***

What can I say?

I feel really sorry for the PES activists who spent time and energy debating the 2009 election manifesto.

Why should nearly 400 million Europeans vote if totally ignored ─ in advance ─ by an electoral college of 27?

Why should European taxpayers finance political parties at European level and their foundations to the tune of 18 million euros a year, if the choice of candidates for the top spot is as abundant as in North Korea?

Ralf Grahn

European Council’s Progress Report (subsidiarity & proportionality)

According to Article 4 of the Treaty on European Union the European Council shall submit to the European Parliament a yearly written report on the progress achieved by the Union.

***

Commission’s obligation

Protocol (No 30) on the application of the principles of subsidiarity and proportionality (1997) places on the Commission an obligation to report annually on the application of Article 5 TEC:

…submit an annual report to the European Council, the European Parliament and the Council on the application of Article 5 of the Treaty. This annual report shall also be sent to the Committee of the Regions and to the Economic and Social Committee.



Better Lawmaking 2007

The Commission has indeed reported, in the Report from the Commission on subsidiarity and proportionality (15th report on Better Lawmaking, 2007); Brussels, 26.9.2008 COM(2008) 586 final.


***

European Council’s obligation

According to point 10 the same Protocol No 30:

10. The European Council shall take account of the Commission report referred to in the fourth indent of point 9 within the report on the progress achieved by the Union which it is required to submit to the European Parliament in accordance with Article 4 of the Treaty on European Union.


***

General Affairs Council

Yesterday the Council (General Affairs and External Relations) took note of the European Council’s Draft report on the progress achieved by the European Union in 2008 (Council document 6788/1/09 REV1).

(The provisional General Affairs conclusions are found in Council document 7564/09.)

***

Taking into account?

The Draft report is, as usual, meagre: 11 pages in all.

But how is the world going to know if or how the European Council takes into account the Commission’s report with regard to subsidiarity and proportionality?

The draft does not mention subsidiarity or proportionality or Article 5. The Commission’s report is not mentioned either.

***

Treaty level obligations


Earlier we came to the (provisional) conclusion that the European Parliament shows no interest in the treaty obligation to discuss the Commission’s Annual General Report.

Today we wonder if the European Council acknowledges the report on subsidiarity and proportionality by osmosis.

Nit-picking or not, but why agree on legally binding obligations without even formally bowing to their existence?


Ralf Grahn

European Council: Tasks

The current Article 4 of the Treaty on European Union (TEU) uses a sweeping formula to describe the tasks of the European Council (OJEU 29.12.2006 C 321 E/12):


Article 4 TEU

The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.


***

General tasks

Impetus and general political guidelines cover all areas crucial for the development of the European Union. Without being an institution in the formal sense, the European Council is arguably the most important body setting the course for the European Union.

Its conclusions have set treaty reforms and other major developments in motion, but it also sets the limits to what the EU can achieve, taking into account the severe restrictions caused by consensus (unanimous) decision making.

***



Specific tasks

Besides the general guidelines there are some provisions on specific tasks for the European Council.

***

Reporting

According to the third paragraph of Article 4 TEU the European Council reports to the European Parliament after each meeting and annually:

The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.


***

Meeting report

The Presidency Conclusions issued at the end of each European Council are the main instrument to communicate the results, but a livelier version is offered when the member state holding the Council Presidency reports to the European Parliament.

***

Annual report

Subsidiarity and proportionality

According to the Protocol (No 30) on the application of the principles of subsidiarity and proportionality (1997) the Commission has an obligation to report annually on the application of Article 5 TEC. According to point 10 the European Council shall take account of the Commission report within the report on the progress achieved by the Union which it is required to submit to the European Parliament in accordance with Article 4 of the Treaty on European Union.

***

CFSP and CSDP

The intergovernmental European Council makes the crucial decisions pertaining to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), according to Article 13(1) and (2) TEU:

1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.

2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.

***

European defence

If and when the progressive development of a common defence policy leads to a common (European) defence, the decision is taken by the European Council, according to Article 17(1) TEU:

1. The common foreign and security policy shall include all questions relating to the security of the Union, including the progressive framing of a common defence policy, which might lead to a common defence, should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

***

CFSP referral to the European Council

The decisions under Title V on the common foreign and security policy are basically taken unanimously by the Council, but with the possibility for a member state to abstain (Article 23(1) TEU).

Where the treaty foresees a decision by qualified majority, an opposing member state can use the so called emergency brake on grounds of important reasons of national policy. It must state its reasons and request that the matter be referred to the European Council for decision by unanimity (Article 23(2) TEU):

2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

— when adopting joint actions, common positions or taking any other decision on the basis of a common strategy,

— when adopting any decision implementing a joint action or a common position,

— when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for important 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 Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.

-----

***

Enhanced cooperation in criminal matters

A referral to the European Council is possible with regard to a decision to establish enhanced cooperation in an area of police and judicial cooperation in criminal matters (Title VI). The detour delays but does not stop the decision, if the requirements are fulfilled (Article 40a(2) TEU):

A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.


***

Enhanced cooperation generally

Enhanced cooperation between member states in an area referred to in the Treaty establishing the European Community can be referred to the European Council, but it does not stop the pioneering group from moving ahead after the discussion (Article 11(2) TEC):


A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.


***

Broad economic policy guidelines

The European Council formulates conclusions on the broad economic policy guidelines (BEPGs), according to Article 99(2) TEC.

The spring (March) European Council is traditionally the venue for economic policy and reform, including the BEPGs and the Lisbon Agenda for Growth and Jobs.

In a union with a (partly) common currency, but with national fiscal and economic policies, the European Council meeting starting tomorrow 18 March 2009 has its plate full in the middle of the serious financial crisis and economic recession.

This time the conclusions would have to be ground-breaking, if the European Council wants to turn the tide:

2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.

The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.

-----


***

ECB reporting

Article 113(3) TEC adds the European Council to the addressees of reporting by the European Central Bank (ECB), almost as an afterthought:

3. The ECB shall address an annual report on the activities of the ESCB and on the monetary policy of both the previous and current year to the European Parliament, the Council and the Commission, and also to the European Council. The President of the ECB shall present this report to the Council and to the European Parliament, which may hold a general debate on that basis.


***

Joint employment report

The European Council adopts conclusions (during its spring meeting) on the joint employment report by the Council and the Commission, according to Article 128(1) TEC:

1. The European Council shall each year consider the employment situation in the Community
and adopt conclusions thereon, on the basis of a joint annual report by the Council and the
Commission.


***

Conclusion

The European Council has set in motion the major developments of the European Union during the last decades, but the construction is plagued by inadequate rules, highlighted by the recession.

Given that, what can we expect from the next two days?


Ralf Grahn

European Council: Members and tasks

We turn to the composition and the tasks of the European Council as laid down in the existing treaties and the European Union’s Treaty of Lisbon.


***

Current treaty

Article 4 of the existing Treaty on European Union (TEU) lays down the tasks and the composition of the European Council (in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/12).

The words impetus and guidelines indicate the guiding role of the European Council. The public guidance is summed up in a consensus paper, the Presidency Conclusions formally issued by the member state holding the Council Presidency.

The results are reported to the European Parliament after each meeting by the Council Presidency.

In principle, there is one member from each member state, either the head of state (France and perhaps some other member states with a presidential system) or more commonly the head of government (prime minister).

In some countries the relations are ambiguous or at least contested. Thus, there have been public spats between the president and prime minister of Poland.

Finland is one example of an ambiguous relationship, where the president wants to hold on to a leadership role in foreign policy while the government is responsible for EU affairs. This has led to situations described as the problem of “two plates” (at the dinners). Meanwhile the foreign minister has been exiled from the meeting room.


Article 4 TEU

The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.

The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.

The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.


***

Lisbon Treaty

Article 13 of the Treaty on European Union (TEU), as amended by the Lisbon Treaty, would elevate the European Council to the role of an official EU institution, and Article 15 TEU builds on this to give more detailed provisions on this institution.

Still the European Council does not exercise legislative function, but it makes binding decisions on a number of issues.

The basic membership remains the same, although the President is added to the Commission President (both without votes). The second paragraph clarifies that the High Representative participates in the meetings.

Four regular meetings annually (twice every six months) codifies existing practice, where the current treaty says ‘twice a year’.

The real novelties are in paragraphs 5 and 6: the elected President of the European Council (not of the European Union). The office has been unanimously agreed, but the role of the future President is contested.

Here is the text of Article 15 TEU, as presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/23):


Article 15 TEU

1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.

2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.

3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.

4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.

5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.

6. The President of the European Council:

(a) shall chair it and drive forward its work;

(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;

(c) shall endeavour to facilitate cohesion and consensus within the European Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.

The President of the European Council shall not hold a national office.

***

Lisbon Treaty implementation

Preparatory work is needed in case the Treaty of Lisbon enters into force. The role and the perquisites of the President of the European Council need to be hammered out.

Progress reports and (alternative) draft proposals are eagerly awaited.


Ralf Grahn

European Council

Two days ahead of the customary spring European Council (in exceptional times) we begin our presentation of the provisions regulating these summits.

The European Council ─ the meetings of heads of state or government of the EEC (later EC and then EU) member states ─ began as an unofficial gathering, adopted the name and regularity in 1974, and was later enshrined in the treaties (1986) and evolved into the ‘de facto’ arbiter of European Union affairs.

The Treaty of Lisbon would take this development one step further. The European Council is listed among the official EU institutions, right after the directly elected European Parliament (Article 13 of the amended Treaty on European Union, OJEU 9.5.2008 C 115/22).


***

Institutional framework and institutions

Under Title III Provisions on the institutions, the consolidated Treaty of Lisbon lays down the institutional framework and lists the institutions like this:


TITLE III
PROVISIONS ON THE INSTITUTIONS


Article 13 TEU

1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.

The Union's institutions shall be:

— the European Parliament,

— the European Council,

— the Council,

— the European Commission (hereinafter referred to as ‘the Commission’),

— the Court of Justice of the European Union,

— the European Central Bank,

— the Court of Auditors.

2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.

3. The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

4. The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.


***

In other words, we have to look for the powers of the European Council in the treaties.


Ralf Grahn

The elites who wrote the Lisbon Treaty

The launch of Libertas has led to increased volumes of distortion about the EU’s Treaty of Lisbon.

How unelected were the elites who wrote the Lisbon Treaty?

The draft Treaty establishing a Constitution for Europe was written by the European Convention. In addition to the Chairman and two Vice-Chairmen appointed by the European Council (national leaders) there were:

• 15 representatives of the Heads of State or Government of the Member States (one from each Member State),
• 13 representatives of the Heads of State or Government of the candidate States (1 per candidate State),
• 30 representatives of the national parliaments of the Member States (two from each Member State),
• 26 representatives of the national parliaments of the candidate States (two from each candidate State),
• 16 members of the European Parliament,
• 2 representatives of the European Commission.

Out of 105 delegates, 38 represented the national governments, 56 the national parliaments and 16 the directly elected European Parliament.

The only ones who remotely resembled unelected Brussels bureaucrats were two who represented the European Commission, which is nominated by the heads of state or government and approved by the European Parliament.

***

During the intergovernmental conference 2003─2004 the national governments of the EU member states watered down the Convention’s proposal to reach agreement on the Constitutional Treaty.

Where were the supranational bureaucrats?

***

The bleaker Treaty of Lisbon resulted from a new round of negotiations between the governments of the member states.

Where were the “unaccountable” Brussels bureaucrats, who by the way are held to account by the member states’ governments in the Council and by the European Parliament?

***

How truthful and accountable is Libertas?


Ralf Grahn

European Parliament: Motion of censure (non-confidence)

The European Union has some of the trappings of a parliamentary system. The hurdle is high, but by a motion of censure the European Parliament can force the Commission to resign (and the EP plays a role in the process to appoint the President of the Commission and its members).


***

Current treaty

Article 201 of the Treaty establishing the European Community (TEC) regulates a motion of censure against the Commission (OJEU 29.12.2006 C 321 E/135):


Article 201 TEC

If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.

If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the Members of the European Parliament, the Members of the Commission shall resign as a body. They shall continue to deal with current business until they are replaced in accordance with Article 214. In this case, the term of office of the Members of the Commission appointed to replace them shall expire on the date on which the term of office of the Members of the Commission obliged to resign as a body would have expired.


***

Original Lisbon Treaty

Article 2, point 188 of the original Treaty of Lisbon amended Article 201 TEC (OJEU 17.12.2007 C 306/103):

188) In Article 201, the second paragraph shall be replaced by the following:

‘If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Article 9 D of the Treaty on European Union. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired.’.


***


Consolidated Lisbon Treaty


In the consolidated Lisbon Treaty the provision was renumbered Article 234 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/152:


Article 234 TFEU
(ex Article 201 TEC)

If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.

If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component Members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Article 17 of the Treaty on European Union. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired.


***

Lisbon Treaty changes

The substantial change by the Lisbon Treaty concerns the “double-hatted” High Representative of the Union for Foreign Affairs and Security Policy/Vice-President of the Commission, who loses his Commission hat if the Commission as a body is forced to resign. His tasks as (the Council’s) High Representative are not affected.


***

EP Rules of Procedure


The procedure within the European Parliament is laid down in its Rules of Procedure (16th edition, October 2008):


Rule 100 Motion of censure on the Commission

1. A motion of censure on the Commission may be submitted to the President by one tenth of the component Members of Parliament.

2. The motion shall be called 'motion of censure' and supported by reasons. It shall be forwarded to the Commission.

3. The President shall announce to Members that a motion of censure has been tabled immediately after having received it.

4. The debate on censure shall not take place until at least twenty-four hours after the receipt of a motion of censure is announced to Members.

5. The vote on the motion shall be by roll call and shall not be taken until at least forty-eight hours after the beginning of the debate.

6. The debate and the vote shall take place, at the latest, during the partsession following the submission of the motion.

7. The motion of censure shall be adopted if it secures a two-thirds majority of the votes cast, representing a majority of the component Members of Parliament. The result of the vote shall be notified to the President of the Council and the President of the Commission.


***

New Commission

If the motion of censure is carried, the Commission resigns but continues to deal with current business until replaced by a new Commission. The new Commission stays in office only for the rest of the original term of the old Commission.


The appointment takes place under the current Article 214 TEC, but according to the Lisbon Treaty the relevant provision would be Article 17 TEU.

First the President and then the President and the Commission as a body need the approval of the European Parliament. The Treaty of Lisbon would add the requirement for the European Council to take the results of the European elections into account when proposing the Commission President.



***

Lack of confidence

The motion of censure concerns the Commission as a body, but through point 3 of the interinstitutional agreement between the European Parliament and the Commission the EP has extended its possibilities to express its lack of confidence in an individual member of the Commission (Annex XIII to the Rules of Procedure, Framework Agreement on relations between the European Parliament and the Commission; published officially OJEU 18.5.2006 C 117 E/123, with point 3 on page 126):



3. If Parliament decides to express lack of confidence in a Member of the Commission, the President of the Commission, having given serious consideration to that decision, shall either request that Member to resign, or explain his or her decisions to Parliament.



Ralf Grahn

European Parliament: Annual General Report

The Commission’s Annual General Report is clearly set out at treaty level: both the obligation to publish for the Commission and the task to discuss for the European Parliament.

But looking for the European Parliament’s follow-up makes me wonder if my search techniques are sub-standard or if the EP does not care about its obligation.

Regardless, for others the Annual General Report is a valuable tool.



***

Current treaty
European Parliament

The European Parliament has an obligation to discuss the Annual General Report according to Article 200 of the Treaty establishing the European Community (TEC) concerns EP scrutiny (OJEU OJEU 29.12.2006 C 321 E/135):


Article 200 TEC

The European Parliament shall discuss in open session the annual general report submitted to it by the Commission.


***

Lisbon Treaty

The corresponding provision in the consolidated Treaty of Lisbon is Article 233 TFEU (OJEU OJEU 9.5.2008 C 115/152).


***

Obligation of the Commission

The Commission is required to publish a number of (annual) reports, among which the General Report is the centerpiece, based on Article 212 of the Treaty establishing the European Community (TEC); in the consolidated version of the treaties, OJEU 29.12.2006 C 321 E/139:


Article 212 TEC

The Commission shall publish annually, not later than one month before the opening of the session of the European Parliament, a general report on the activities of the Community.


***


Lisbon Treaty

In the consolidated Treaty of Lisbon the corresponding provision on the obligation for the Commission to publish is Article 249(2) of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/157.


***


EP discussing the Annual General Report

EP Rules of Procedure


The main rules on procedures within the European Parliament are found in the Rules of Procedure (16th edition, October 2008).

Rule 112(1) would seem to require a committee report to the plenary, if we understand the mandatory discussion would lead to an opinion by the Parliament:


CHAPTER 4 REPORTS OF OTHER INSTITUTIONS

Rule 112 Annual reports and other reports of other institutions

1. Annual reports and other reports of other institutions, in respect of which the Treaties provide for consultation of the European Parliament or where other legal provisions require an opinion by the European Parliament, shall be dealt with by means of a report submitted to the plenary.

2. Annual reports and other reports of other institutions not falling within the scope of paragraph 1 shall be referred to the appropriate committee which may propose drawing up a report pursuant to Rule 45.


***

EP practice

I failed to find any follow-up on the European Parliament’s web pages of the Annual General Report for 2007, published in 2008 as Commission document SEC(2007) 1000 final.

According to literature, the European Parliament has combined the forward looking debate on the Commission’s legislative and work programme for the following year with the (boring?) discussion on the Annual General Report, but I failed to find the Annual General Report even formally mentioned in the European Parliament resolution P6_TA(2007)0613of 12 December 2007 on the Commission legislative and work programme for 2008.

If this result is correct, it goes beyond what I consider to be a correct application of the treaty, but I am more than happy if someone is willing to make the relevant references known.
(Cf. Rule 33.)

***

General Report 2008

On 4 March 2009 the Commission published the General Report on the Activities of the European Union in 2008, SEC(2008) 1000 final. .

On the about 260 pages the Commission describes the main developments during 2008 under seven Chapter headings:

General political and economic framework
Prosperity
Solidarity
Security and freedom
Europe in the world
Life of the institutions, other bodies and agencies
Budget and financial activities

The General Report is available at:

http://europa.eu/generalreport/en/rg2008en.pdf

***

Useful resource

Perhaps the political groups and the MEPs find the Annual General Report uninteresting and even boring, but for journalists, researchers, teachers, lobbyists and students it is a valuable resource.

Published in 22 languages, the General Report is a useful tool to get an overview of developments within each policy area of the European Union. The references to sources are helpful in the search for documents.

The General Report is complemented by the monthly Bulletin (provisional and final).


Ralf Grahn

European Parliament: Publishing proceedings (accessibility & accountability)

Public parliamentary proceedings and records are important. At treaty level the European Parliament is given the duty to publish its proceedings officially.

Internet publication and press services cater to immediate and practical needs.

It is a huge task for the European Parliament to serve nearly 500 million EU residents and more than 700 MEPs (more or less equally) in 23 official languages.

The internal bodies of the EP could make their materials more accessible to EU citizens, but in accessibility and accountability the European Parliament beats the Council fair and square.



***

Current treaty

Article 199 of the Treaty establishing the European Community (TEC), as published in the consolidated version of the treaties in force in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/135, concerns two aspects of the European Parliament:

1) adopting the Rules of Procedure, and
2) publishing the proceedings.


Article 199 TEC

The European Parliament shall adopt its Rules of Procedure, acting by a majority of its Members.

The proceedings of the European Parliament shall be published in the manner laid down in its Rules of Procedure.


***

Original Lisbon Treaty

Article 2, point 187 of the original Treaty of Lisbon amended the second paragraph of Article 197 TEC (OJEU 17.12.2007 C 306/103):


187) In the second paragraph of Article 199, the words ‘manner laid down in its Rules of Procedure’ shall be replaced by ‘manner laid down in the Treaties and in its Rules of Procedure’.


***

Consolidated Lisbon Treaty

In the consolidated (readable) Treaty of Lisbon the slightly amended provision became Article 232 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/152:


Article 232 TFEU
(ex Article 199 TEC)

The European Parliament shall adopt its Rules of Procedure, acting by a majority of its Members.

The proceedings of the European Parliament shall be published in the manner laid down in the Treaties and in its Rules of Procedure.


***

EP Rules of Procedure

Minutes

The main provisions on publishing are found in the Rules of Procedure of the European Parliament (16th edition, October 2008).

The minutes of the proceedings, containing the decisions and the names of speakers, are produced and approved quickly.

They are published in the Official Journal of the European Union (OJEU). Actual publication of the minutes lags far behind the month mentioned.

The 257 page minutes of the sittings from 15 to 18 December 2008 were published in OJEU 12.3.2009 C 58E, almost three months later. They were available in the official languages, including Maltese and the newest ones Bulgarian and Romanian, but not in Gaelic (Irish).

The lag means that the minutes officially published are of interest to researchers, but for more immediate purposes Internet publishing in general and the Press service of the EP are more suitable:



CHAPTER 7 PUBLIC RECORD OF PROCEEDINGS

Rule 172 Minutes

1. The minutes of each sitting, containing the decisions of Parliament and the names of speakers, shall be distributed at least half an hour before the beginning of the afternoon period of the next sitting.

[Official explanation: In the context of legislative proceedings, any amendments adopted by Parliament are also deemed to be decisions within the meaning of this paragraph, even if the relevant Commission proposal or the Council's common position is ultimately rejected, pursuant to Rule 52(1) or Rule 61(3) respectively.]

The texts adopted by Parliament shall be distributed separately. Where legislative texts adopted by Parliament contain amendments, they shall be published in a consolidated version.

2. At the beginning of the afternoon period of each sitting the President shall place before Parliament, for its approval, the minutes of the previous sitting.

3. If any objections are raised to the minutes Parliament shall, if necessary, decide whether the changes requested should be considered. No Member may speak on the minutes for more than one minute.

4. The minutes shall be signed by the President and the Secretary-General and preserved in the records of Parliament. They shall be published within one month in the Official Journal of the European Union.


***

Verbatim reports

Written records of the proceedings are produced, but published in a little known annex to the Official Journal at a more leisurely pace:


Rule 173 Verbatim reports

1. A verbatim report of the proceedings of each sitting shall be drawn up in all official languages.

2. Speakers shall be required to return corrections to typescripts of their speeches to the Secretariat within one week.

3. The verbatim report shall be published as an annex to the Official Journal of the European Union.

4. Members may request extracts of the verbatim report to be translated at short notice.


***

Audiovisual record

There is more immediacy to the posting of the proceedings of the plenary on the Internet, officially immediately after the sitting.

In practice it is quicker than that, because you can follow the proceedings live (Séance en direct), either listening to the speakers in the original language or with (almost) simultaneous interpretation depending on if there is a bridging language between the source language and your language (target language):


Rule 173 a Audiovisual record of proceedings

Immediately after the sitting, an audiovisual record of the proceedings, including the soundtrack from all interpretation booths, shall be produced and made available on the Internet.


***

Press service and information on the web

Accountability and accessibility

The Press service of the European Parliament produces material ahead of the sessions and of the sittings on a daily basis. The press releases often contain links to the committee reports or the approved texts (resolutions).

In addition, the web pages of the European Parliament offer general information about the EP and MEPs and links to the political groups, as well as possibilities to find meeting documents, draft reports and reports of committees.

The Legislative Observatory offers search opportunities (not always easy to master) and possibilities to follow individual procedures.

Ahead of the European elections in June 2009, the European Parliament has launched informative election pages.

All in all, the proceedings of the European Parliament leave a fairly clear paper trail (although the reasons given may be opaque) and the materials on the political work are relatively accessible for citizens. Compare with the Council’s web pages, and you see the difference.


Although relatively few EU citizens are interested in the inner workings of the European Parliament, it would enhance visibility and accountability to make the meeting documents of the internal bodies (Bureau, Conference of Presidents) readily available on the Internet.


Ralf Grahn

Implementing the Lisbon Treaty: European Parliament

The Committee on Constitutional Affairs of the European Parliament (AFCO) voted Monday 9 March 2009 on three reports we have written about in earlier blog posts, namely the Dehaene report on institutional balance, the Leinen report on the EP’s new role implementing the Lisbon Treaty and the Brok report on relations between the European Parliament and the national parliaments.

Fortunately at least the European Parliament is showing interest in the Lisbon Treaty issues requiring implementation, if the amending treaty enters into force.

At this moment we have no comparable indications on preparatory work from the Commission or the Council.


Ralf Grahn

European Parliament’s Rules of Procedure: Amendments under way

After looking at completed procedures to amend or interpret the European Parliament’s Rules of Procedure, we turn procedures still unfinished shortly before the June 2009 European elections.


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MEPs maternity or paternity leave


Procedure REG/2006/2025 has led to a draft report drafted by Iñigo Méndez de Vigo: PE374.264. The draft was tabled on 12 July 2006 and the subject matter is the rules applying to Members in the event of maternity or paternity.

The report is still awaiting the blessing of the Committee on Constitutional Affairs (AFCO) and debate by the full Parliament.


***

Petitions process


In procedure REG/2006/2209 the rapporteur Gérard Onesta drafted a report on revision of the Rules of Procedure with regard to the petitions process. The report A6-0027/2009 was adopted by AFCO 27 January 2009, and is awaiting debate in the chamber.

The proposal is described as fine-tuning the petitions procedure, but a number of Rules would be affected.


***

General review of Rules of Procedure


A general review of the EP’s Rules of Procedure is under way. We have presented the areas of interest in the Corbett draft report in an earlier blog post, so here our intention is mainly a quick update.

The procedure file REG/2007/2124 is still waiting for a future AFCO vote. The report comprises questions related to the implementation of the Treaty of Lisbon as well as amendments to the Rules of Procedure intended to take effect at the beginning of the new parliamentary term.



Ralf Grahn

European Parliament: Amendments Rules of Procedure

The European Parliament’s Rules of Procedure regulate the proceedings in the EP. They build on parliamentary traditions and their aim is the orderly conduct of parliamentary business. But ‘objective’ rules may or may not favour larger groups at the expense of smaller ones or non-attached members. In other words, they can have political consequences.

With a view to serve MEP candidates and campaign groups, journalists, researchers, students and interested citizens, we take a look at some procedures (2008 and 2009) to amend or interpret the Rules of Procedure of the European Parliament.

This overview shows that refining and interpreting the Rules of Procedure is an ongoing work.


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Interpretations appended


On 2 September 2008 the European Parliament decided to append the following interpretation to Rule 182.
1. Decides to append the following interpretation to Rule 182:"
Rule 182(1) does not preclude the chair of the main committee from involving the chairs of the subcommittees in the work of the bureau or from permitting them to chair debates on issues specifically dealt with by the subcommittees in question – indeed, it allows this – provided that this way of proceeding is submitted to the bureau in its entirety for its consideration and that it receives the bureau's agreement.

Source: Resolution P6_TA-PROV(2008)0388 ; procedure REG/2008/2075.

***

On 19 February 2009 the European Parliament approved two interpretations, which were appended to the Rules in question:

1. Decides to append the following interpretation to Rule 47:"

For the purposes of examining international agreements under Rule 83, the procedure with associated committees set out in Rule 47 may not be applied in relation to the assent procedure under Rule 75.
"
2. Decides to append the following interpretation to Rule 149(4):"

Members who have asked for the quorum to be established must be present in the Chamber when the request is made.

Source: Resolution P6_TA-PROV(2009)0080 ; Procedures REG/2009/2017 and REG/2008/2327.

***

AFCO interpretation

The Committee on Constitutional Affairs, which had been consulted on the application of Rule 179(3), provided the following interpretation on that provision:
'If Parliament, acting pursuant to Rule 175 of the Rules of Procedure, has conferred a task on a temporary committee, no committees shall be asked for their opinions, unless determined otherwise on the basis of the mandate approved by Parliament or of decisions taken by the temporary committee in the light of that mandate.'

Source: Procedure REG/2008/2076.

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Amendment of Rule 81 on implementing measures

On 8 May 2008 the European Parliament amended rule 81(4)(a) on implementing measures, by Resolution P6_TA(2008)0190:

(a) the time for scrutiny shall start to run when the draft of measures has been submitted to Parliament in all official languages. Where shorter time-limits apply (Article 5a(5)(b) of Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission) and in cases of urgency (Article 5a(6) of Decision 1999/468/EC), the time for scrutiny shall, unless the Chair of the committee responsible objects, start to run from the date of receipt by Parliament of the final draft implementing measures in the language versions submitted to the members of the committee established in accordance with Decision 1999/468/EC. Rule 138 shall not apply in this case ;

Sources: Procedure REG/2008/2027; AFCO Report A6-0108/2008 included the justification (explanation), which concerns implementing powers delegated to the Commission.


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Duties of the EP President

On 31 January 2008 the European Parliament adopted a Resolution interpreting the duties of the President, with the aim to curb the use of procedural means (for minority groups) to prolong the sittings of Parliament. The wording gives its blessing to the decisions already taken by the EP President to refuse demands for time-consuming procedures by “fringe” groups:

1. Adopts the following interpretation of Rule 19:"
'Rule 19(1) can be interpreted as meaning that the powers conferred by that Rule include the power to call an end to the excessive use of motions such as points of order, procedural motions, explanations of vote and requests for separate, split or roll-call votes where the President is convinced that these are manifestly intended to cause and will result in a prolonged and serious obstruction of the procedures of the House or the rights of other Members';

Sources: Resolution P6_TA(2008)0024; procedure REG/2008/2016.


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Transitional language rules

On 11 March 2009 the European Parliament adopted a resolution to prolong the provisional derogations with regard to the use of especially Irish and Maltese until the end of the parliamentary term from 2009 to 2014.

Because the Resolution is fresh and requires attentive reading, but may be of interest to some of the visitors to this blog, we present the explanatory text as well:


The European Parliament ,
– having regard to Article 290 of the EC Treaty,
– having regard to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community(1) , as last amended by Council Regulation (EC) No 920/2005(2) ,
– having regard to the Code of Conduct on Multilingualism adopted by the Bureau on 17 November 2008,
– having regard to the Bureau's decision of 13 December 2006 on a derogation from Rule 138 and its subsequent decisions extending that derogation until the end of the current parliamentary term,
– having regard to Rules 138 and 139 of its Rules of Procedure,
A. whereas, pursuant to Rule 138, all Parliament's documents are to be drawn up in the official languages, and all Members have the right to speak in Parliament in the official language of their choice, with interpretation into the other official languages,
B. whereas, under Rule 139, derogations from Rule 138 are permissible until the end of the sixth parliamentary term if, and to the extent that, despite adequate precautions, the linguists required for an official language are not available in sufficient numbers; whereas with respect to each official language for which a derogation is considered necessary, the Bureau, on a proposal from the Secretary-General, shall ascertain whether the conditions are fulfilled, and the Bureau shall review its decision every six months,
C. whereas, on 13 December 2006, the Bureau accepted that the difficulties of providing sufficient language cover for Maltese, Romanian, Bulgarian and Irish were such that the conditions were fulfilled for a derogation from Rule 138 in respect of each of those languages; whereas by subsequent Bureau decisions those derogations have been extended such that, from 1 January 2009 until the end of the parliamentary term, a derogation applies in respect of Bulgarian and Romanian (interpretation), Czech (interpretation during the Czech Council Presidency), Maltese (interpretation and translation) and Irish (interpretation, translation and legal-linguistic verification),
D. whereas Council Regulation (EC) No 920/2005 provides for temporary (renewable) derogation measures for a five-year period in respect of Irish,
E. whereas, despite all adequate precautions, the capacity in Irish and Maltese is not expected to be such as to allow a full interpretation service in those languages from the beginning of the seventh parliamentary term; whereas, for certain other languages, although there will be sufficient capacity to cover the needs arising from the usual activities of Parliament, the number of interpreters may not be sufficient to allow full coverage of all the extra needs expected during the Council Presidencies of the Member States concerned during the seventh parliamentary term,
F. whereas, despite sustained and continuous interinstitutional efforts, the number of qualified translators and lawyer-linguists is still expected to be so limited as regards Irish that, for the foreseeable future, only a reduced coverage of that language can be assured; whereas Council Regulation (EC) No 920/2005 does not require legislation of the European Union adopted before 1 January 2007 ('the Acquis ') to be translated into Irish; whereas, as a result of the derogation measures laid down in that Regulation, only Commission proposals for codecision regulations are currently being presented in Irish and, as long as this situation persists, it will not be possible for Parliament's services to prepare Irish versions of other types of legal act,
G. whereas, during the seventh parliamentary term, other European States may become members of the European Union; whereas, for the new languages concerned, linguists may not be available in sufficient numbers from the day of accession, which will require transitional measures,
H. whereas Rule 139(4) provides that, on a reasoned recommendation from the Bureau, Parliament may decide, at the end of the parliamentary term, to extend that Rule,
I. whereas, in the light of the foregoing, the Bureau has recommended that Rule 139 be extended until the end of the seventh parliamentary term,
1. Decides to extend the applicability of Rule 139 of Parliament's Rules of Procedure until the end of the seventh parliamentary term;
2. Instructs its President to forward this decision to the Council and the Commission for information.

Source: Procedure RSO/2009/2563; Resolution P6_TA-PROV(2009)0116.


***

Earlier procedures

Earlier procedures were omitted, but here are some from 2007 in short form:

REG/2007/2272 plenary proceedings; Corbett
REG/2007/2266 Rule 121 on ECJ proceedings; Botopoulos
REG/2007/2240 symbols of the Union; Carnero González
REG/2007/2170 interprettion Rule 116; Corbett
REG/2007/2137 Rule 173 verbatim reports; Corbett



Ralf Grahn

UK FCO and Gibraltar: Responsive government?

Good governance, Government 2.0 and responsiveness may appear in politicians’ speeches, but how are things on the ground?

My two latest test cases concern the EU Treaty of Lisbon and the position of Gibraltar.

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GIBRALTAR

Way back, I sent an e-mail to the Gibraltar government’s office in London asking if the Lisbon Treaty needs approval by Gibraltar (as indicated by the Wikipedia article on the treaty) and on the plans to deal with the question.

After a while I received a response telling me that the question had been referred to someone in the Gibraltar government, who would get back to me with an answer as soon as possible.

A few more weeks went by, so I decided to make a new enquiry. The only suitable contact address I found on the net was the Citizens’ Advice Bureau.

Three more weeks passed. I wrote a reminder to the Bureau, and this time I received a reply wondering how I hadn’t received their answer of 27 February 2009. Anyway, they gave me the advice to contact the local Ministry of Justice (something beyond their capacity?).

Well, I e-mailed my query to the Ministry of Justice of Gibraltar, but this time I decided to publish my observations after only one and a half working days:

Nada.

***

UK Foreign and Commonwealth Office (FCO)

On 18 February 2009 I sent the following question to the UK Foreign and Commonwealth Office (FCO) in London to the e-mail address specifically mentioned for questions Gibraltarian:

enquiry.gibraltar@fco.gov.uk


Sir / Madam,

I present the contents of the EU Treaty of Lisbon on my blog and I have followed the ratification procedures. The geographical scope - Article 355(3) and (4) TFEU - includes the Aland Islands and Gibraltar (additionally Declaration 55), but the Wikipedia article on the Lisbon Treaty reports that these territories with self-rule are to decide on the applicability in their territories.

The Wikipedia information is correct as to Aland, but I have failed to find information to confirm or deny that Gibraltar would need to approve the Lisbon Treaty.

Could you kindly fill me in on that?

In case Gibraltar will make a decision, I would be grateful for exact information, such as possible proposals, acts or memos on the matter, as well as an estimate of when a decision might be taken.
I thank you in acvance for your time and trouble.

Sincerely,

Ralf Grahn

***

Three weeks later, having received no answer I sent a reminder to the FCO at the same address, telling them that I would publish my findings.

Admittedly somewhat impatient by now, only one and a half working days later, this is it:

No reply.

***

I am still interested in the position of Gibraltar and its self-rule with regard to the Lisbon Treaty, so if someone is able to give me useful information, I am grateful.

But I am fascinated by the responsiveness of Her Majesty’s government (known for mislaying sensitive information which should be kept secret), but seemingly incapable of delivering timely answers to simple questions.

My special thanks go to the FCO and the government of Gibraltar for bringing this home.

The next time I hear some minister utter good governance, Government 2.0 or responsive, guess what my reaction is going to be?

I am going to check if we live on the same planet.


Ralf Grahn

European Union: Activity reports 2008

The Commission of the European Communities and the Swedish government have published their annual reports on the activities of the European Union. They are important sources for journalists, researchers, teachers, students, businesses, politicians, public officials, NGOs and interested citizens.

Has the Swedish example caught on in other EU member states?

***

COMMISSION

General Report

On 4 March 2009 the Commission published the General Report on the Activities of the European Union in 2008.

On the about 260 pages of its annual report the Commission describes the main developments during 2008 under seven Chapter headings:

General political and economic framework
Prosperity
Solidarity
Security and freedom
Europe in the world
Life of the institutions, other bodies and agencies
Budget and financial activities

The General Report is available at:
http://europa.eu/generalreport/en/rg2008en.pdf

***

Useful

Published in 22 languages, the General Report is a useful tool to get an overview of developments within each policy area of the European Union. The references to sources are helpful in the search for documents.

The General Report is complemented by the monthly Bulletin (provisional and final).


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Treaty basis

The Commission is required to publish a number of (annual) reports, among which the General Report is the centerpiece, based on Article 212 of the Treaty establishing the European Community (TEC); in the consolidated version of the treaties, OJEU 29.12.2006 C 321 E/139:


Article 212 TEC

The Commission shall publish annually, not later than one month before the opening of the session of the European Parliament, a general report on the activities of the Community.


***


Lisbon Treaty

In the consolidated Treaty of Lisbon the corresponding provision is Article 249(2) of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/157.


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European Parliament

The General Report is addressed to the European Parliament, and Article 200 TEC concerns EP scrutiny (OJEU page 135):


Article 200 TEC

The European Parliament shall discuss in open session the annual general report submitted to it by the Commission.


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Lisbon Treaty

The corresponding provision in the consolidated Treaty of Lisbon is Article 233 TFEU (OJEU page 152).


***

SWEDEN

The Swedish government publishes an annual report to the Parliament (Riksdagen) on activities in the European Union (as well as useful reports on the Council of Europe and the OSCE) .

For those who are able to read Swedish the latest EU report (Regeringens skrivelse 2008/09:85 Berättelse on verksamheten i Europeiska unionen) is a valuable resource.

Like the previous reports, the 2008 version published 5 March 2009 offers at least the quantity (374 pages) and quality of the Commission’s General Report.

The Swedish report is available at:

http://www.regeringen.se/content/1/c6/12/25/08/6109a562.pdf


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Duty to publish


The Swedish government’s duty to publish the report is based on the Riksdag Act (1974:153, as amended on 1 July 2007):


Chapter 10. Conduct of European Union business
Government’s obligation to inform the Riksdag of EU work
Art. 1. In accordance with Chapter 10, Article 6 of the Instrument of Government, the Government shall keep the Riksdag continuously informed concerning developments within the framework of European Union cooperation.

The Government shall account to the Riksdag concerning its actions at the European Union and shall submit a written communication annually to the Riksdag reporting activities at the European Union.






***

Other national reports?

Dear Reader, do you know how your government reports on EU activities to its parliament and citizens?



Ralf Grahn

EU Council: Abandon all hope?

Abandon all hope, you who enter Justus Lipsius? The EU Council is better known for its adherence to opaque old style diplomacy than for embracing new school open governance, but even there you can find a glimmer of hope for the future.

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Seven ministers

This call by seven ministers for the EU to make good its commitment to transparency was published by the European Voice 5 March 2009:

The EU's current rules on public access to documents held by EU institutions are based on the principles of openness and transparency, a crucial component of efforts to increase EU citizens' confidence in its institutions.

Under those rules, citizens can be denied access only if this can be justified based on a document's actual content. The experience of the past eight years has shown that this was a wise solution that was compatible with the objective of the regulation: to guarantee the "widest possible openness".

The Commission declared that it wanted to increase transparency even more when, in April 2008, it proposed revising that regulation. However, we and like-minded colleagues in the Council of Ministers are concerned that the proposal would have the opposite effect.

In many areas, the proposed reform seems aimed mainly at changing the current openness-oriented interpretation.

In negotiations within the Council, we have found ourselves defending the current level of access in many key areas, instead of discussing improvements to it. The risk we are facing is that entire categories of documents will be excluded from the scope of EU access rules. A good example of this is the idea of denying the public access to any documents relating to investigations run by the Commission - one of its core tasks. There are better ways of guaranteeing the smooth conduct of such investigations than by categorically excluding any possibility of public access.

We have also been surprised that the idea of reconstituting member states' absolute veto power over documents originating from them has gained some support not only in the Council, but also in the European Parliament. What would the EU's citizens have to gain from such reforms?

We are therefore glad to see that the Parliament's committee on civil liberties, justice and home affairs adopted a report on 17 February that shares our vision of a more transparent Union. We also welcome the statement made by Margot Wallström, the Commission's vice-president, that the Commission is willing to reconsider those elements of its proposal that would constitute a step backward in terms of openness.
Some worries remain, including the proposed bloc exemptions of whole categories of documents. We need new ways of guaranteeing the Union's openness. This reform process should be about moving forward, not backward, in the process of opening up the EU - a Union "in which decisions are taken as openly as possible", as the EU treaty proudly declares. There are ways of responding to legitimate concerns that would be compatible with this principle of transparency - as the current regulation demonstrates, with its excellent balance between openness and the need for confidentiality.

From:

Beatrice Ask
Minister of justice, Sweden

Tuija Brax
Minister of justice, Finland

Irma Pavlini Krebs
Minister of public administration, Slovenia

Rein Lang
Minister of justice, Estonia

Cecilia Malmström
Minister of EU affairs, Sweden

Per Stig Møller
Minister of foreign affairs, Denmark

Astrid Thors
Minister of migration and European affairs, Finland


Source: http://www.regeringen.se/sb/d/11683/a/122296


Ralf Grahn

European Parliament: Rules of Procedure

Within the treaty framework, the European Parliament adopts and amends its Rules of Procedure, without binding the other institutions or third parties.

The Rules of Procedure regulate the main part of decision-making and procedures within the European Parliament.

Clearer references to the version in force and amendments, as well as when they enter into force and possibly lapse, could be recommended with a view to making life easier for researchers and students of EU law and politics, if no such needs are felt within the EP.





***

Current treaty

Article 199 of the Treaty establishing the European Community (TEC), as published in the consolidated version of the treaties in force in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/135, concerns two aspects of the European Parliament:

1) adopting the Rules of Procedure, and
2) publishing the proceedings.


Article 199 TEC

The European Parliament shall adopt its Rules of Procedure, acting by a majority of its Members.

The proceedings of the European Parliament shall be published in the manner laid down in its Rules of Procedure.


***

Original Lisbon Treaty

Article 2, point 187 of the original Treaty of Lisbon amended the second paragraph of Article 197 TEC (OJEU 17.12.2007 C 306/103):


187) In the second paragraph of Article 199, the words ‘manner laid down in its Rules of Procedure’ shall be replaced by ‘manner laid down in the Treaties and in its Rules of Procedure’.


***

Consolidated Lisbon Treaty

In the consolidated (readable) Treaty of Lisbon the slightly amended provision became Article 232 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/152:


Article 232 TFEU
(ex Article 199 TEC)

The European Parliament shall adopt its Rules of Procedure, acting by a majority of its Members.

The proceedings of the European Parliament shall be published in the manner laid down in the Treaties and in its Rules of Procedure.


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Autonomy and Rules of Procedure

The adoption of the Rules of Procedure is based on the internal autonomy of the European Parliament, but naturally only within the limits set by the treaties. The Rules of Procedure can only express the EP’s views with regard to interinstitutional relations, but they are not legally binding on the other institutions. (The institutions can bind themselves politically and legally by so called interinstitutional agreements.)


The decision requires a majority of the EP’s members, which is higher than the ordinary rule of a majority of the votes cast (Article 198 TEC; 231 TFEU).


***

Rules of Procedure in force


The Rules of Procedure of the European Parliament, 16th edition, have been published in the OJEU 15.2.2005 L 44/1.

The following amendments have been published in the Official Journal:

OJEU 16.12.2006 C 308 E/88-90 Rules 3 and 4

OJEU 23.12.2006 C 317 E/747-748 Rule 81

OJEU 23.12.2006 C 317 E/749 Rules 15 and 182(1), transitional amendments

OJEU 22.12.2006 C 316 E/115-116 Rule 139, transitional amendment


I found no newer consolidated version through Eur-Lex or the Official Journal than the 16th edition mentioned above.


The latest version found through the European Parliament’s web pages is also described as the 16th edition, but dated October 2008:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN


Supposedly, this is the version in force, but the amendments are not necessarily clearly indicated.


***

Amending the EP’s Rules of Procedure


Adopting the Rules of Procedures is not mentioned, since they already exist, but amendments are regulated by Rule 202


Rule 202 Amendment of the Rules of Procedure

1. Any Member may propose amendments to these Rules and to the annexes thereto accompanied, if appropriate, by short justifications.

Such proposed amendments shall be translated, printed, distributed and referred to the committee responsible, which shall examine them and decide whether to submit them to Parliament.

For the purpose of applying Rules 150, 151 and 155 to consideration of such proposed amendments in Parliament, references made in those Rules to the 'original text' or the 'Commission proposal' shall be considered as referring to the provision in force at the time.

2. Amendments to these Rules shall be adopted only if they secure the votes of a majority of the component Members of Parliament.

3. Unless otherwise specified when the vote is taken, amendments to these Rules and to the annexes thereto shall enter into force on the first day of the partsession following their adoption.


***

Applying the Rules of Procedure

Rule 201 lays down the formal rules for application and interpretation of the Rules of Procedure if doubts arise. In most organisations advice is sought and given on an informal basis, so formal procedures are more the exception than the norm:


Rule 201 Application of the Rules of Procedure

1. Should doubt arise over the application or interpretation of these Rules of Procedure, the President may refer the matter to the committee responsible for examination.

Committee chairs may do so where such a doubt arises in the course of the committee's work and is related to it.

2. The committee shall decide whether it is necessary to propose an amendment to the Rules of Procedure. In this case it shall proceed in accordance with Rule 202.

3. Should the committee decide that an interpretation of the existing Rules is sufficient, it shall forward its interpretation to the President who shall inform Parliament at its next part-session.

4. Should a political group or at least forty Members contest the committee's interpretation, the matter shall be put to the vote in Parliament. Adoption of the text shall be by a majority of the votes cast provided that at least one-third of Parliament's component Members are present. In the event of rejection, the matter shall be referred back to the committee.

5. Uncontested interpretations and interpretations adopted by Parliament shall be appended in italic print as explanatory notes to the appropriate Rule or Rules.

6. Interpretations shall constitute precedents for the future application and interpretation of the Rules concerned.

7. The Rules of Procedure and interpretations shall be reviewed regularly by the committee responsible.

8. Where these Rules confer rights on a specific number of Members, that number shall be automatically adjusted to the nearest whole number representing the same percentage of Parliament's membership whenever the total size of Parliament is increased, notably following enlargements of the European Union.


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Committee responsible

According to Annex VI.XVIII, point 8, the Committee on Constitutional Affairs is responsible for the interpretation and application of the Rules of Procedure and proposals for amendments thereto.


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Interinstitutional agreements

According to Rule 120 interinstitutional agreements may be annexed to the Rules of Procedure, and they may lead to modifications of these rules.


***

Points of order

Rule 166 concerns points of order, when a member alleges failure to respect the Parliament’s Rules of Procedure.


***


Possible improvements

For instance when amending the Rules of Procedure, clearer references could be made to the version in force and later amendments, as well as when they enter into force and possibly lapse, with a view to making life easier for researchers and students of EU law and politics, if no such needs are felt within the European Parliament.



Ralf Grahn

EU budget published officially

Nothing dramatic about this, since the contents of the 2009 budget of the European Union (and preparatory documents) have been available for a long time.

For students, teachers, researchers and others who prefer exact and official references the publication of the general budget of the European Union for the financial year 2009 in the Official Journal of the European Union (OJEU) offers exactly that.

Look for OJEU 13.3.2009 L 69.


Ralf Grahn

Democracy in the EU

Ahead of the European elections, a collaborative effort between European think-tanks has produced ‘Democracy in the EU and the role of the European Parliament’ (edited by Gianni Bonvicini).

The 76 page publication is available at least from Notre Europe:

http://www.notre-europe.eu/uploads/tx_publication/Quaderni_E_14_external1__2_.pdf


The articles try to answer the question how to make European integration more legitimate.



Ralf Grahn

European Parliament: Majority and quorum

The antechamber of European level democracy, the directly elected European Parliament, needs rules on majority and quorum.



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Current treaty

Article 198 of the Treaty establishing the European Community (TEC) lays down the basic rules on two different questions for the European Parliament:

1) the main rule on majority, and

2) quorum.


Article 198 TEC

Save as otherwise provided in this Treaty, the European Parliament shall act by an absolute majority of the votes cast.

The Rules of Procedure shall determine the quorum.


Source: the consolidated version of the treaties, published in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/134.


***

Original Lisbon Treaty

Article 2, point 186 of the original Treaty of Lisbon (ToL) modified Article 197 TEC (OJEU 17.12.2007 C 306/102):


186) In the first paragraph of Article 198, the word ‘absolute’ shall be deleted.


***

Consolidated Lisbon Treaty

After renumbering the slightly amended provision appears in the consolidated Lisbon Treaty as Article 231 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/152:

Article 231TFEU
(ex Article 198 TEC)

Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast.

The Rules of Procedure shall determine the quorum.


***

Majority


Treaty provisions

As far as I know, the terms have the following meaning:

Majority and absolute majority should mean the same, so the Lisbon Treaty makes no substantial amendment.

The votes cast include the ‘yes’ votes and ‘no’ votes, but not the abstentions.

***

For each act where the European Parliament participates, you have to look at the relevant legal base to find out if there is a special requirement regarding the majority.

If high (qualified) majorities are required, it means that at least the largest political groups have to agree, which is a factor in preventing parliamentary ‘government’ and ‘opposition’ roles from developing, although the main reason for that is that the members and the policies of Commission are not based on the results of the European elections.


***


EP Rules of Procedure

The main provisions are found in Chapter 5 Quorum and voting of the Rules of Procedure (16th edition, October 2008), but for more detailed studies cf. Index, page 217 to 218, on Majorities (qualified) and minimum numbers of Members required.


***

Quorum

Rule 149 is the provision on quorum (the varying necessary numbers of MEPs to be present, but primarily for votes on substance):


Rule 149 Quorum

1. Parliament may deliberate, settle its agenda and approve the minutes, whatever the number of Members present.

2. A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.

3. All votes shall be valid whatever the number of voters unless the President, on a request made before voting has begun by at least forty Members, establishes at the moment of voting that the quorum is not present. If the vote shows that the quorum is not present, the vote shall be placed on the agenda of the next sitting.


[Official explanation: A request for the quorum to be established must be made by at least forty Members. A request on behalf of a political group is not admissible.

When establishing the result of the vote, account must be taken, pursuant to paragraph 2, of all the Members present in the Chamber and, pursuant to paragraph 4, of all the Members who asked for the quorum to be established. The electronic voting system cannot be used for this purpose. The doors of the Chamber may not be closed.

If the number of Members required to make up the quorum is not present, the President shall not announce the result of the vote but shall declare that the quorum is not present.

Paragraph 3 last sentence shall not apply to votes on procedural motions but only to votes on the subject matter itself.]


4. Members who have asked for the quorum to be established shall be counted as being present within the meaning of paragraph 2, even if they are no longer in the Chamber.

5. If fewer than forty Members are present, the President may rule that there is no quorum.


***


Why did I call the European Parliament the antechamber of European level democracy?


Ralf Grahn

Tories: Self-banishment from Europe

The British Conservative party has drawn the conclusions from its continuing trajectory towards the fringes of European politics by announcing its divorce from the European People’s Party – European Democrats (EPP-ED) group in the European Parliament.

The BBC reports ‘Tories leaving Europe’s EPP group’ (11 March 2009):

http://news.bbc.co.uk/2/hi/uk_news/politics/7938482.stm

Self-expulsion is the easy part, but what are the Tories going to do in European politics?

According to the amended Rule 29(2) of the Rules of Procedure of the European Parliament, which enters into force after the European elections in June 2009, the minimum requirements for a political group are:

2. A political group shall comprise Members elected in at least one-quarter of the Member States. The minimum number of Members required to form a political group shall be twenty-five.

***

The Tories would have to find soul-mates from six other member states in order to form a political group, which is the prerequisite for effective work within the EP. By the looks of it, the ‘talent pool’ outside the constructive groups will be fairly unpalatable for people with some standards on political content and governance.

The alternative is to join the splinter groups and individual MEPs who are content to arrange dress-up charades and other silly pranks to demonstrate against the institution they have been elected to.


***

At a time when concerted European action is needed more than ever, what can we expect from a future Tory government?

They are absolutely not working for the interests of the citizens of the European Union, but can they even begin to explain how their self-ostracism serves the interests of British nationals?


Ralf Grahn

European Union: Access to documents

Do you think that the citizens of the European Union should be kept in the dark, to allow the member states undisturbed freedom to deal behind closed doors in the Council? Do you think that the existing provisions on access to documents should be judiciously restricted? Should the media be spared unnecessary expense doing investigative work?

If your answer is yes, you have nothing to worry about.

The Commission and a Council majority are at work to keep ‘harmful’ content out of your reach and the media reporting on the EU soporific.

If, on the other hand, you believe in a European Union ‘in which decisions are taken as openly as possible and as closely as possible to the citizen’, you may want to take a look at the Statewatch Observatory: the Regulation on access to EU documents: 2008-2009, where Professor Steve Peers analyses the positions of the EU institutions step by step and Article by Article (latest update 11 March 2009):

http://www.statewatch.org/foi/observatory-access-reg-2008-2009.htm

***

Cashman report

Yesterday 11 March 2009 the European Parliament voted on the Cashman report, but referred the matter back to the committee according to Rule 53(2) of the EP’s Rules of Procedure, meaning that the Commission has indicated that it is not going to accept all the amendments. The provisional version of the resolutions can be found here (with the resolution on the Cashman report starting on page 49):

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090311+TOC+DOC+XML+V0//EN&language=EN

The heading of the resolution:

P6_TA-PROV(2009)0114 Public access to European Parliament, Council and Commission documents (recast) ***I
Proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
(Codecision procedure - recast)


***

Watching the watchmen?

Although the EP has generally come out on the side of openness, there is as usual a disconcerting detail about its attitude with regard to its own members.
In The Telegraph, Bruno Waterfield reports ‘Euro-MPs keep their expenses secret’ (11 March 2009):

http://blogs.telegraph.co.uk/bruno_waterfield


***

About time for the editorialists of European media to wake up, don’t you think?


Ralf Grahn

European Parliament: Hearing the European Council

The Treaty of Lisbon would formally make the European Council into one of the institutions of the European Union. Article 13 of the amended Treaty on European Union (TEU) mentions the European Council right after the European Parliament, and Article 15 TEU contains the main provisions on its tasks, membership and President.


This leads to other changes at treaty level and below.


***


Current treaty


The fourth paragraph of Article 197 of the Treaty establishing the European Community (TEC) lays down the principle that the European Parliament can hear the Council (which has both legislative and executive powers), but it does not mention the European Council:


“The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.”


***


Lisbon Treaty


The corresponding provision of the Treaty of Lisbon is the third paragraph of Article 230 of the Treaty on the Functioning of the European Union (TFEU). The Council and its Rules of Procedure remain as before, but the European Council and its Rules of Procedure are added:

“The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.”


***


New Rules of Procedure


In practice, the head of government (or state) of and incoming Council Presidency presents the work programme before the European Parliament and then lauds the achievements during the six months at the helm before handing over the Presidency to the next member state.

Article 230 TFEU means that the European Council needs its own Rules of Procedure. Reporting from the meetings will become the task of the semi-permanent President, according to Article 15(6) TEU.

Preparatory work is needed to implement the Lisbon Treaty, should it enter into force.


***

Council information

The only more or less comprehensive public EU report emanating from the Council on preparatory work seems to be almost nine months old.

It is the ‘Progress report from the Presidency to the European Council ─ Preparatory work in view of the entry into force of the Lisbon Treaty’ from the Slovenian Council Presidency to the European Council 19 and 20 June 2008 (Council document 10650/08, 13 June 2008):

http://register.consilium.europa.eu/pdf/en/08/st10/st10650.en08.pdf


The Progress Report, which sampled a number of questions from Slovenia’s earlier and unpublished list, noted that a number of issues related to the entry into force of the Lisbon Treaty will require some form of agreement with the European Parliament (point 4).

Point 11 summarised the work undertaken on the Council’s and the European Council’s Rules of Procedure:


11. Rules of Procedure of European Council and Council (Articles 235 and 240 TFEU)

On the basis that the Council's Rules of Procedure should only be modified to the extent that this was needed as a result of the entry into force of the Lisbon Treaty, Permanent Representatives examined possible amendments to the existing Rules. Broad consensus was reached, subject to the inclusion of several provisions related to the division of labour between the GAC and the FAC and the preparation of European Council meetings, which it was agreed would be examined at a later stage.

Considerable progress was made on technical aspects of the European Council's Rules of Procedure; some other issues, related in particular to the preparation of European Council meetings, will require further work. A preliminary exchange of views focussed on the respective roles of those involved in the preparation of European Council meetings. There was broad support for the need for all of them to work closely together. A significant number of delegations underlined the need to ensure an adequate role in European Council meetings for the Head of State or Government of the Member State holding the Council presidency. These issues will require further work.


***


Preparatory work, progress reports and draft proposals are needed.


Ralf Grahn

European Parliament: Questions to the Council

The previous blog post looked at the rules when the Council is heard by the European Parliament. The “silence procedure” laid down in Article 12(2) of the Council’s Rules of Procedure was also presented.

This post adds a few remarks on questions by MEPs to the Council. (The internal EP rules have been discussed earlier.)


A fresh practical example (in French) is Council document 7290/09 from the Council Secretariat to Coreper with references to draft answers by the Council to written questions by MEPs:



http://register.consilium.europa.eu/pdf/fr/09/st07/st07290.fr09.pdf


***

Questions and answers


For a view of various types of questions by members of the European Parliament to the Council (and the Commission) you can go to the European Parliament’s web page Parliamentary questions:

http://www.europarl.europa.eu/QP-WEB/home.jsp?language=en



If you choose Written questions – Questions with answers, you gain an insight into how the Council replies, but first and foremost how much more popular questions to the Commission are. I encountered the first question with answer from the Council on page 18:

http://www.europarl.europa.eu/sidesSearch/sipadeMapUrl.do?PROG=WQ&L=EN&SORT_ORDER=D&REF_WQ=2009-*&F_REF_WQ=*/2009&WITH_ANSWER=Y



Ralf Grahn

European Parliament: Hearing the Council

The rotating EU Council Presidency still in force is crucial for how the European Union is represented externally and the Council internally, six months at a time. The Treaty of Lisbon would preserve the rotating Presidency generally, but give the European Council a more permanent President and the double-hatted High Representative/Vice-President would chair the Foreign Affairs Council.

Under the Treaty of Lisbon the European Council would become an official institution. This has been noted in the provision on hearing by the European Parliament, but we lack public information about how the member states intend to implement the Lisbon Treaty.

In this post we look at the rules on hearing the Council by the European Parliament.




***

Current treaty


The fourth paragraph of Article 197 of the Treaty establishing the European Community (TEC) lays down the principle that the European Parliament can hear the Council (which has both legislative and executive powers):


“The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.”


***

Lisbon Treaty


The corresponding provision of the Treaty of Lisbon is the third paragraph of Article 230 of the Treaty on the Functioning of the European Union (TFEU). The Council and its Rules of Procedure remain as before. (The European Council and its Rules of Procedure are added.)

“The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.”


***

Council’s Rules of Procedure

It is not for a “sovereign” European Parliament to dictate how the Council is to be heard, but for the Council to decide in its Rules of Procedure (based on various treaty provisions drafted by the representatives of the member states).

As in many other instances, working relationships require cooperation between the EU institutions.


Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council's Rules of Procedure was originally published in the Official Journal of the European Union (OJEU) 16.10.2006 L 285/47.

Each year the Council has to approve the population figures relevant for voting in the Council (Annex 3), and since there is a consolidated version of the Council’s Rules of Procedure (of 1 January 2009) it is the one we use:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2006D0683:20090101:EN:PDF



***


Representation before the European Parliament

The general rule concerns the acting Council Presidency, the main responsible to be heard by the European Parliament or to delegate the tasks.

Usually the head of government (or state) of the Presidency member state presents its programme at the beginning of the six month turn in office and sums up its achievements at the end.

Article 26 of the Council’s Rules of Procedure assigns this task primarily to the acting Presidency, although there are other options, such as the following Presidency.

The role of the Secretary-General includes the task of High Representative, so keeping the European Parliament informed about CFSP and CSDP developments can be delegated to him (instead of the Foreign Minister of the country holding the Presidency).

At committee level Council officials can also be instructed to appear (instead of the relevant Ministers of the Presidency government). This includes the Deputy Secretary-General, practically unknown to the general public, but with the High Representative/Secretary-General more than occupied by foreign policy, one of the real powers within the EU:



Article 26
Representation before the European Parliament

The Council may be represented before the European Parliament or its committees by the Presidency or, with the latter's agreement, by the following Presidency or by the Secretary-General. The Council may also be represented before those committees by its Deputy Secretary- General or senior officials of the General Secretariat, acting on instructions from the Presidency.

The Council may also present its views to the European Parliament by means of a written statement.


***

Parliamentary questions and silence procedure

The number of questions for written answer (written questions) from members of the European Parliament is great. Preparing draft replies to them is largely routine work for the Council Secretariat, so facilitated procedures have been adopted to ease the work load of Coreper (the Committee of Permanent Representatives) and especially of the Council.

Article 12(2) of the Council’s Rules of Procedure mentions a simplified written procedure called “silence procedure”, applicable to (written) questions and some other matters. If none of the member states react within a time limit (normally three working days), the text is considered adopted:


2. On the initiative of the Presidency, the Council may act by means of a simplified written procedure called “silence procedure”:

(a) for the purpose of adopting the text of a reply to a written question or, as appropriate, to an oral question submitted to the Council by a Member of the European Parliament, after the draft reply has been examined by Coreper [the time limit is normally three working days];

-----

(c) for the purpose of deciding to consult other institutions or bodies wherever such consultation is required by the Treaties;

-----

In that case, the relevant text shall be deemed to be adopted at the end of the period laid down by the Presidency depending on the urgency of the matter, except where a member of the Council objects.

3. The General Secretariat shall establish that the written procedures have been completed.



***

Lisbon Treaty

With regard to hearing the Council Article 230 TFEU does not alter the text of Article 197 TEC. It only adds the European Council and its Rules of Procedure.

The procedures in the European Parliament are regulated in its Rules of Procedure, which the EP plans to amend (Corbett Report). In addition, Lisbon Treaty implementation and interinstitutional relations are dealt with in the Leinen, Brok and Dehaene reports, and they have been covered in a number of blog posts.

But the Council’s Rules of Procedure have to be adapted to the amending Treaty of Lisbon. I have found no public proposal concerning the needed changes.


Ralf Grahn

EU Lisbon Treaty implementation and institutional relations

Preparatory work is needed to implement the Treaty of Lisbon, should it enter into force, but the previous blog post left us wondering what the French Council Presidency did during the latter half of 2008 and what the Czech Council Presidency is doing during the first six months of 2009.

What we see is our leaders’ steadily decreasing level of commitment to open dialogue.


***

Initial plan

The European Council on 14 December 2007, just after signing the Treaty of Lisbon, the European Council gave the go-ahead for preparatory work, underlining its comprehensive nature and the need for a single framework, agreeing that it:

"will take stock of progress on necessary preparatory work when appropriate so as to ensure the full functioning of the Treaty as soon as it enters into force. It underlines the comprehensive nature of this exercise and the consequent need for a single framework as well as political guidance at the highest level. Technical work will start in Brussels in January on the basis of a work programme which will be presented under the authority of the incoming President of the European Council."


***

Slovenian Council Presidency: Almost comprehensive

The Slovenian Council Presidency began by preparing a memorandum on the outstanding implementation issues. The memo was not published voluntarily or on my request, but leaked. The Finnish Government followed the preparatory work in public documents it forwarded to the Parliament of Finland.

The last more or less comprehensive EU report on preparatory work seems to be the ‘Progress report from the Presidency to the European Council ─ Preparatory work in view of the entry into force of the Lisbon Treaty’ from the Slovenian Council Presidency to the European Council 19 and 20 June 2008 (Council document 10650/08, 13 June 2008):

http://register.consilium.europa.eu/pdf/en/08/st10/st10650.en08.pdf

In this report a selection of unfinished items was presented with fairly bland comments.


***

French Council Presidency: Far from comprehensive

As far as I have been able to ascertain, the French Council Presidency produced no comprehensive report on preparatory work to implement the Lisbon Treaty.

The way forward after the Irish referendum result was a recurring question. In the Presidency Conclusions of the Brussels European Council 11 and 12 December 2008 (Council document 17271/1/08 REV 1) the heads of government and state agreed to give the assurances required by the Irish Government in case the Lisbon Treaty enters into force:

http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/104692.pdf


This path forward was based on the concerns expressed by the Irish Prime Minister and annexed to the Conclusions:


Statement of the Concerns of the Irish People on the Treaty of Lisbon as set out by the Taoiseach

a) Ensuring that Ireland's requirements regarding maintenance of its traditional policy of neutrality are met;

b) Ensuring that the terms of the Treaty of Lisbon will not affect the continued application of the provisions of the Irish Constitution in relation to the right to life, education and the family;

c) Ensuring that in the area of taxation the Treaty of Lisbon makes no change of any kind to the extent or operation of the Union's competences;

d) Confirming that the Union attaches high importance to:

• social progress and the protection of workers' rights;

• public services, as an indispensable instrument of social and regional cohesion;

• the responsibility of Member States for the delivery of education and health services;

• the essential role and wide discretion of national, regional and local Governments in providing, commissioning and organising non-economic services of general interest which is not affected by any provision of the Treaty of Lisbon, including those relating to the common commercial policy.


***

Neutrality and defence

Parenthetically we can remark that the leaders of the EU member states were willing to ensure that Ireland's requirements regarding maintenance of its traditional policy of neutrality are met (as they already are under the Lisbon Treaty), but the longer and deeper Ireland remains attached to this historical legacy, the further the conceptual and practical its distance becomes to the quasi-totality of the European Union, which moves towards common security and defence policies.


Point 30 of the Presidency Conclusions remarked:

“The European Council states its determination to give, by means of the attached declaration [Annex 2], a fresh impetus to the European Security and Defence Policy. Compliant with the principles of the United Nations Charter and the decisions of the United Nations Security Council, this policy will continue to develop in full complementarity with NATO in the agreed framework of the strategic partnership between the EU and NATO and in compliance with the decision-making autonomy and procedures of each. To this end, the European Council shares the analysis of the report on the implementation of the European Security Strategy of 2003 and endorses the declarations adopted by the Council [references in Annex 6], which agree on new goals for strengthening and optimising European capabilities in the years ahead and emphasise the EU's desire to work for the cause of international peace and security, while making a tangible contribution to the security of its citizens.”


***


Interinstitutional matters



In addition, the December 2008 European Council issued three Declarations closer to the interinstitutional relations. Three questions felt to be urgent, but without public debate and far from a comprehensive framework for the implementation of the Treaty of Lisbon:




Declaration of the European Council

Treaty of Lisbon – Transitional measures concerning the Presidency of the European Council and the Presidency of the Foreign Affairs Council

In the event that the Treaty of Lisbon enters into force at a date when a six-monthly Presidency of the Council has already begun, the European Council agrees that, as a matter of transition, in order to take into account the preparatory work and ensure harmonious continuity of work:

− the competent authorities of the Member State holding the six-monthly Presidency of the Council at that time will continue to chair all the remaining meetings of the Council and the European Council, as well as third-country meetings, until the end of the period of office;

− the following six-monthly Presidency of the Council will be in charge of taking the necessary specific measures relating to the organisational and material aspects of the Presidency of the European Council and of the Foreign Affairs Council during its period of office, in conformity with the Treaty. On these issues, close consultation will be established between this Presidency and the President (elect) of the European Council and the High Representative (designate) of the Union for Foreign Affairs and Security Policy.


***


Declaration of the European Council

Treaty of Lisbon – Transitional measures concerning the composition of the European Parliament

In the event that the Treaty of Lisbon enters into force after the European elections of June 2009, transitional measures will be adopted as soon as possible, in accordance with the necessary legal procedures, in order to increase, until the end of the 2009-2014 legislative period, in conformity with the numbers provided for in the framework of the IGC which approved the Treaty of Lisbon, the number of MEPs of the twelve Member States for which the number of MEPs was set to increase. Therefore, the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010.



***


Declaration of the European Council

Treaty of Lisbon – Appointment of the future Commission

The European Council agrees that the process of appointment of the future Commission, in particular the designation of its President, will be initiated without delay after the European Parliament elections of June 2009.



[Ironically, French President Nicolas Sarkozy was the first to air doubts about these principles agreed under the French Council Presidency.]


***


Czech Council Presidency: No comprehension?


The Czech Republic took over the rotating EU Council Presidency at the beginning of 2009. Afraid that I have missed important developments in spite of reading and searches, I made an additional search on the Czech web pages for “Lisbon Treaty” and Treaty of Lisbon”. The result in both cases was “No matches found”.

Not only does the Czech Senate excel in inventing new pretexts to postpone the ratification vote on the Treaty of Lisbon (ad calendas graecas?), but the Government seems to have done nothing to provide the necessary impetus to the preparatory work needed to put the Lisbon Treaty into practice.


***

Ever closer union among the peoples of Europe?


The reporting was not that great to begin with, but it has steadily degenerated.

Is this really the view of our national political leaders (European Council, Council) on how to create an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen?

Dear Leaders, give the citizens of the European Union ownership or accept their rejection of your union.

If you want the European project and the Treaty of Lisbon to be accepted and even adopted with some enthusiasm by the citizens of the European Union, implementation and the new relations between the institutions need to be discussed openly and interactively.

Start now!


Ralf Grahn

European Parliament: Relations with Council and European Council

The existing treaties of the European Union and the EU Treaty of Lisbon contain basic provisions on the European Parliament’s relations with the other institutions: the Commission and the Council.


In this blog post we present the current and amending treaties before we embark upon the relations between the institutions in more detail.


We notice that the Treaty of Lisbon requires preparatory work in order to be implemented, should it enter into force.




***

Current treaty

Article 197 of the Treaty establishing the European Community (TEC) contains bare bones provisions on two areas concerning the European Parliament:

a) internal organisation, and
b) relations with the Commission and the Council.

The text of Article 197 TEC is from the latest consolidated version of the treaties, published in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/134. Having covered the first three paragraphs in some detail in preceding blog posts, we are going to turn our main attention to the fourth one, which concerns the relations with the EU Council:


Article 197 TEC

The European Parliament shall elect its President and its officers from among its Members.

Members of the Commission may attend all meetings and shall, at their request, be heard on behalf of the Commission.

The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.

The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.


***

Original Lisbon Treaty (ToL)

Article 2, point 185 of the original Treaty of Lisbon formally deleted the first paragraph of Article 197 TEC on the internal organisation of the European Parliament and replaced two of the three other paragraphs. Notice the wording of the new fourth paragraph (OJEU 17.12.2007 C 306/102):


185) Article 197 shall be amended as follows:

(a) the first paragraph shall be deleted;

(b) the second paragraph shall be replaced by the following:

‘The Commission may attend all the meetings and shall, at its request, be heard.’;

(c) the fourth paragraph shall be replaced by the following:

‘The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.’.


***




Consolidated Lisbon Treaty


The European Parliament’s relations with the Commission and the Council remained in slightly amended form in Article 197 (ToL), which was renumbered Article 230 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated Lisbon Treaty (OJEU OJEU 9.5.2008 C 115/151).

Because the first paragraph of Article 197 TEC had been formally deleted, but in practice moved to Article 14(4) of the Treaty on European Union (TEU), the replacement for the fourth paragraph of Article 197 TEC became the third paragraph of Article 230 TFUE, with the new wording:


Article 230 TFEU
(ex Article 197, second, third and fourth paragraph, TEC)

The Commission may attend all the meetings and shall, at its request, be heard.

The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.

The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.


***

Lisbon Treaty changes

The third paragraph of Article 230 TFEU makes the treaty level addition that the European Council is heard by the EP. This is a codification of existing practice, but it does not exclude further developments.

If the Lisbon Treaty enters into force, the European Council becomes an official institution and it needs its own Rules of Procedure, replacing the meagre Rules for the organisation of the proceedings of the European Council.

***

We take note that the Lisbon Treaty requires a number of complementary rules and decisions, if it enters into force. Some of these are only technical, but necessary. Others are political in nature. All require preparatory work.

Two documents are crucial, either as instruments of change or in order to adapt to separate decisions:

The Rules of Procedure of the EU Council would have to be adapted to the amending treaty.

The European Council needs its own Rules of Procedure.

We are left wondering what the French Council Presidency did during the latter half of 2008 and what the Czech Council Presidency is doing during the first six months of 2009.


Ralf Grahn

Swedish non-alignment and EU?

Fellow blogger The European Citizen discussed ’Neutrality and Europe’ in a blog post 9 March 2009, primarily from an Irish perspective:

http://theeuropeancitizen.blogspot.com/2009/03/neutrality-and-europe.html

The post concluded that the existence of the internal market and membership of the EU has changed the political context for neutral European states. This doesn't automatically mean that military integration should be adopted, but a range of options should be discussed.

***

I have nothing to object to the conclusion that rational discussion is needed in the countries outside the security policy mainstream of the European Union.

What caught my eye was a detail, the opening sentence where The European Citizen described Ireland, Sweden and Austria as both neutral and EU member states, and asked but can you really be both.

In a comment on an earlier blog post, I had noted that Finland has narrowed down its definition to “military non-alignment”, because the country sees itself as politically aligned through EU membership, including the CFSP and the CSDP.

I also commented that I was unsure of how Sweden defines itself nowadays, although it continued to use both “non-alignment” and “neutrality” when Finland had ceased to utilise these defining terms.

For this comment off the cuff, I did not take the trouble to research the Swedish position. But when Swedish neutrality cropped up in the new post, I decided to take a look.


***

Sweden

Traditional Swedish non-alignment aiming at neutrality in war seems to be in a flux. In the Foreign Policy Declaration of the Government of Sweden 18 February 2009 (Regeringens deklaration vid 2009 års utrikespolitiska debatt i Riksdagen onsdagen den 18 februari 2009), Foreign Minister Carl Bildt mentioned neither non-alignment nor neutrality.

Bildt mentioned the successful foreign, security and defence policies of the European Union and the good cooperation between Sweden and NATO in crisis management. He went on to declare that the Government is going to present a position paper on NATO relations during the spring.

Bildt mentioned Swedish security policy as firm, but in addition he mentioned the proposals for improved Nordic defence cooperation made by Thorvald Stoltenberg. The Swedish Government will consider them in a positive spirit and it promises a Bill on defence policy this spring.


***

In other words, by deliberate omission Sweden is neither “non-aligned” nor “neutral”, but two Government papers will further define NATO relations and (Nordic) defence policy.

I don’t expect any sudden shifts, but Swedish foreign, security and defence policy is changing, although at glacier-like speed.


Ralf Grahn

European Parliament: Questions for written answer

Question Time and Questions for oral answer with debate may be more “media sexy”, but Questions for written answer offer individual members of the European Parliament more freedom to query the Commission or the Council.

The number of “written questions” is high, but with patience you may find valuable nuggets of information about interesting details not readily available elsewhere.

***

Treaty provisions

“The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.”

This is the text of the third paragraph of Article 197 of the current Treaty establishing the European Community (TEC), published in the consolidated version of the treaties OJEU 29.12.2006 C 321 E/134.

Its substance would not be affected by Article 2, point 185 of the original Treaty of Lisbon (OJEU 17.12.2007 C 306/102).

Article 197 (ToL) appears renumbered as Article 230 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated Lisbon Treaty, with the same wording of the second paragraph (OJEU 9.5.2008/151).


***

EP Rules of Procedure

Naturally, more detailed rules are needed to complement or implement treaty provisions. The general resource concerning procedures in the European Parliament is the Rules of Procedure (16th edition, October 2008).

Rule 110 concerns questions for written answer to the Council or the Commission. Each member can table one priority question each month, to be answered within three weeks. Non-priority questions should be answered within six weeks, but the Rule does not limit their number. The questions and answers are published:

Rule 110 Questions for written answer to the Council or the Commission

1. Any Member may put questions for written answer to the Council or the Commission in accordance with guidelines laid down in an annex to these Rules of Procedure. The content of questions shall be the sole responsibility of their authors.

2. Questions shall be submitted in writing to the President who shall forward them to the institution concerned. Doubts concerning the admissibility of a question shall be settled by the President. His decision shall be notified to the questioner.

3. If a question cannot be answered within the time limit set it shall, at the request of the author, be placed on the agenda of the next meeting of the committee responsible. Rule 109 shall apply mutatis mutandis.

4. Questions which require an immediate answer but not detailed research (priority questions) shall be answered within three weeks of being forwarded to the institution concerned. Each Member may table one priority question each month.

Other questions (non-priority questions) shall be answered within six weeks of being forwarded to the institution concerned.

Members shall indicate which type of question they are submitting. The final decision shall be taken by the President.

5. Questions and answers shall be published in the Official Journal of the European Union.


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Guidelines: Annex IIa

More detailed rules are laid down in Annex IIa. While Rule 110 concerns questions to the Council or the Commission, the reference to Rule 111 is with regard to questions to the European Central Bank.

The guidelines set fairly basic norms for the relevance and language of an admissible question, if need be with advice on drafting. In addition, the guidelines try to avoid burdening the Commission and the Council with repetitive answers to essentially the same question or when the information is readily available. The Commission or Council can bundle answers on related matters:

ANNEX II a Guidelines for questions for written answer under Rules 110 and 111

1. Questions for written answer shall:

- fall within the competence and sphere of responsibility of the institution concerned and be of general interest;

- be concise and contain an understandable interrogation;

- not contain offensive language;

- not relate to strictly personal matters.

2. [In effect after the 2009 European elections] If a question does not comply with these guidelines, the Secretariat shall provide the author with advice on how the question may be drafted in order to be admissible.

3. [In effect after the 2009 European elections] If an identical or similar question has been put and answered during the preceding six months, the Secretariat shall transmit a copy of the previous question and answer to the author. The renewed question shall not be forwarded to the institution concerned unless the author invokes new significant developments or is seeking further information.

4. If a question seeks factual or statistical information that is already available to Parliament's library, the latter shall inform the Member, who may withdraw the question.

5. Questions concerning related matters may be answered together.


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Written questions

Just as questions for oral answers with debate become “oral questions” in everyday parlance, questions for written answer turn into “written questions” colloquially. In other words, search for “Answers to written question(s)” if you want to know more.

But the search and search options did not feel especially intuitive, so try the European Parliament’s web page Parliamentary questions:

http://www.europarl.europa.eu/QP-WEB/home.jsp?language=en


A cottage industry opens up. The latest written question this year was numbered P-1583/09 and we are little more than two months into 2009 (an election year).

You can access the most recent questions or all the questions for the year. The headlines give an indication of what the questions are about.

You can find the most recent questions with answer, which might give you valuable information about a certain topic. Because of the number of questions and topics you might want to try the search option on the page.



Ralf Grahn