Liberum veto curse

The union of the European Council, by the European Council, for the European Council, shall perish from the earth. 

The Future of Europe address: democratic government and sufficient powers instead of liberum veto 

 

What does European power mean? 

The necessity of a Constitution, at least equally energetic with the one proposed…It rests upon axioms as simple as they are universal: the means ought to be proportioned to the end… (Hamilton, The Federalist Papers XXIII)

Ralf Grahn

P.S. [Update 6 June 2021] Here is what I mean, the proposal to the Conference on the Future of Europe:

Stronger together: A democratic European Federation

Victor Hugo and Prague Castle

In ”Quatrevingt-Treize” [Ninety Three], Victor Hugo evokes the catastrophic run of a loose cannon on board The Claymore, a British corvette sent by William Pitt, the Younger, to bring succour to the 1793 royalist uprising in Brittany against republican France.

A “loose cannon” has since become a figure of speech.

Dramatis personae, 2009: David Cameron, William Hague, Vaclav Klaus.

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Prague Castle



Yesterday evening, we reported the latest move by Czech President Vaclav Klaus to derail the EU Treaty of Lisbon, democratically approved by 27 member states, the Czech Republic included, in “EU Lisbon Treaty: Erratic Presidents playing games” (8 October 2009).

By their total disregard for the democratic approval by the member states and the needs of the EU institutions, Klaus’ English friends have been supportive of any disruptive action he might invent. Participants at the Conservative Party Conference in Manchester collected signatures in support of continued obstruction by Klaus.

Let us look at some of the news and comment on Klaus’ actions.



Jean Quatremer advises the Czech citizens that they should never again allow their parlamentarians to elect an irascible and uncontrollable clown as head of state, in “Traité de Lisbonne: Kaczynski signe, Klaus tergiverse” (Coulisses de Bruxelles, 8 October 2009):

« ...Klaus donne une belle leçon à ses concitoyens : la prochaine fois, ils devront veiller à ce que leurs parlementaires n’élisent plus un clown irascible et incontrôlable à la tête de l’État. »



Daniel Antal says that Vaclav Klaus is a very-very selfish man, because his obstruction to the Treaty is not in the interest of the of the Czech people; in "Klaus’ Footnote in European History" (Central Europe Activ, 8 October 2009).



EUbusiness sums up the news on Klaus’ latest ambush, in “Poland to ratify EU reform treaty but Czechs set conditions” (8 October 2009).

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The tragicomedy of Lisbon Treaty ratification shows the utter weakness of an organisation built on the “liberum veto”.

If one individual manages to cause more damage than he already has, or if he wrecks the Lisbon Treaty as it is, the member states of the European Union must abandon the requirement for ratification by all member states.

As a first step, they should redesign the EU as a union between ratifying states, with the substantive provisions of the Lisbon Treaty.

The non-ratifying states would bear the onus of their constitutional and personal weaknesses.


Ralf Grahn

To Peter Davidson on the European Union

Peter Davidson wrote a thoughtful comment on the post ‘Government and consent’. It would have stayed ‘hidden’ there if I had responded in the comments section, but after a while I thought that I could draw attention to it by making my answer a separate post and request the readers to reflect on Davidson’s thoughts.

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Peter Davidson,

You offer such a rich source of reflections that it is hard to know where to begin. But I will try to comment on at least a few of them:

1) Actually, just a little while before reading your comment, I was contemplating on the vogue among European politicians to decry a European super-state, when our common interests seem to call for at least a European super-power. And a super-power without effective institutions does not work. In other words, they would have to be state-like (effective and democratic).

In my view, the brevity of the US Constitution is an ideal; actually it would be even shorter without some redundant stuff on slave trade and slave population.

But I imagine that the Federal Republic of Europe would be a parliamentary democracy, more in line with European traditions, not a presidential one. (Poland and the Czech Republic as well as ‘cohabitation’ offer some examples of why hydras with one head might be preferred.)

In today’s terms the Lisbon Treaty version of the Treaty on European Union, less the provisions on the common foreign and security policy (including the common security and defence policy), might be a suitable temporary basic law for the citizens of the European Union, provided that the member states pledged to institute a real parliamentary democracy and to eliminate the paralysing unanimity principle.

2) I agree that the EU seems to develop mainly through humiliating experiences. In essence, I support the modest Lisbon Treaty amendments as a step in the right direction, but I see the paternalistic European project heading for failure without the support of the citizens.

No amount of citizens’ forums and public relations exercises is going to bridge the gap between the EU leaders and the union’s citizens. Only real political rights will do.

Enhanced intergovernmental cooperation based on the Treaty of Nice offers fairly slim opportunities substantively, and it would only increase the legitimacy gap.

3) I am not on a sure footing with regard to the regions you mention. With common European rules covering cross-border trade and human contacts and a united Europe facing the world, I imagine that secession by regions would not be a catastrophe.

There is, however, one important aspect that would have to be rectified. Nowadays, the smallest EU member states are overrepresented. It would not be fair to aggravate this lack of balance further.

In my view, the future EU should be closer to the principle of one man, one vote (with the second chamber of the European Parliament the notable exception).

4) Instead of the Lisbon Treaty withering away, I would say that its modest reforms are welcome, but that I hope for the reform to succeed only with the add-ons of democratic reform and a scrapping of the liberum veto.

5) Without the CFSP and the CSDP the Lisbon Treaty is not structurally that far from the ‘brief statement’ you call for.

6) I think that there are some genuinely European politicians among the European level parties, and I imagine that at least you and I are among the citizens who try to discuss in the terms of common interests.

Appeal is another matter, but we shall see. Although many Europeans seem to long for national level politics to save them from both globalisation and the EU, I think that great enough numbers would be mature enough to embrace European level democracy if offered and explained to them.


Ralf Grahn

EU enlargement and liberum veto

Article 48 of the Treaty on European Union has found much favour among anti-Europeans lately. Amendments to the treaties have to be made by common accord and they have to be ratified by all the member states in accordance with their respective constitutional requirements.

Team spirit and team play are essential if such a rickety organisation is to function even half decently.

If the road of political blackmail, divisiveness and disruption is chosen, the treaties offer plenty of opportunities to exercise the liberum veto, the blocking potential of the unanimity rule.

One of these is enlargement. The European Union has by far outgrown its institutional set-up, if the aim is an EU able to defend the interests of its citizens in a globalising world.

Adding to the membership would aggravate the problem. If institutional reform is blocked, it is hardly illogical to scrutinise the provisions on enlargement.

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This is what Article 49 of the Treaty on European Union (TEU) has to say on the matter (latest consolidated version of the treaties, published in the Official Journal of the European Union 29.12.2006 C 321 E/34–35):


Article 49 TEU

Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

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Any European state which respects the fundamental aims of the European Union (as subsequently elaborated by the so called Copenhagen criteria) can apply for EU membership.

Nowhere is there any mention of a subjective right for an applicant to be admitted.

On the contrary, the hurdles abound:

a) The Commission has to give its opinion, which can be unfavourable.

b) The Council shall act unanimously, giving each member state government a veto.

c) The European Parliament has to give its prior assent, meaning a majority can refuse.

d) The conditions of accession have to be agreed, in great detail, by all the member states and the applicant, offering a basket of items to wreck the deal.

e) Each member state has to ratify the accession treaty according to its constitutional requirements, giving each member state parliament an opportunity to prevent membership.

f) Some member states’ constitutions may be flawed enough to enable a president to postpone or refuse signing the ratification bill or act, despite parliamentary approval.

g) Some member states might have or institute a national referendum on accession, offering the local electorate a chance to vent any frustrations it may feel at the moment.

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Legally, further enlargement of the European Union may be possible with the necessary adjustments to the treaties.

But legally, it does not matter how pigheaded and egoistic any potential refusal is. It may result from total lack of cooperative will and solidarity, from corruption or from outside influences. Any rejection is legally binding, according to the rule of liberum veto, this great Polish export product.

In fact, accession is almost the exact mirror image of treaty amendment.

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The consequences are political. In a system as dependent on trust and team-play as the European Union, the standing of an unreasonable partner may suffer and its chances of coalition-building diminish as a result of its disruptive behaviour.

Liberum veto is an effective tool, with headline-grabbing potential, but exceedingly blunt. On the other hand, the daily working of the European Union requires daily decisions and alliances on literally thousands of details annually, with potential for death by a thousand cuts for members with the ambition to become outcasts.

The prospects for a refusenik presidency (such as the Czech might turn out to be) are worrying, not only for the EU as a whole.

Even if the French referendum on the Constitutional Treaty concerned treaty amendment, not accession, it should be remembered that France became more or less a zombie in the European Union as a result, until the new president Nicolas Sarkozy was able to re-engage his country.

The European Union and its predecessors have usually been able to clear hurdles only after humiliating experiences. Perhaps the obstructionists have precipitated the next move towards an effective and democratic (new) European Union(?)


Ralf Grahn

Kaczynski: Liberum veto

Without the ’liberum veto’ Poland would have a much happier history to remember, so Polish president Lech Kaczynski has offered final proof why the same rule of minority terror must be scrapped if the European Union wants to survive and prosper.

See BBC News item ‘Poland in new blow to EU treaty’:

http://news.bbc.co.uk/2/hi/europe/7482660.stm

Those bent on destroying the EU can perhaps find democratic merit in Kaczynski overriding his country’s parliament (at least temporarily deferring signature; legal authority unclear) and Czech president Vaclav Klaus openly agitating against the political commitments of the Czech government.

But for the vast majority of European Union member states and for thinking EU citizens Kaczynski must have driven the final nail into the coffin of the unanimity rule. The same Kaczynski who is personally to blame for many of the worst features of the Lisbon Treaty.

With or without Ireland, the Czech Republic, Poland and possibly some others, the willing member states must save the European Union by scrapping the ‘liberum veto’, even if they have to establish a new union to do so.

The added bonus would be that without Kaczynski important reforms could take effect much earlier than 2014 and 2017.


Ralf Grahn



Update 1 July 2008: According to the Wikepedia article on the Treaty of Lisbon, the Polish House of Representatives voted 384 for, 56 against (with 12 abstentions) and the Senate 74 for, 17 against (with 6 abstentions) to ratify the Lisbon Treaty. Friends of parliamentary sovereignty take note.

Achilles’ heels of Europe

The aftermath of the Irish referendum is potentially a fertile moment for Europe.

The Irish government seems to be clueless about how to proceed, reduced to pleading for extra time even beyond October 2008. But the referendum Catch 22 is set to remain, and nothing indicates that the ‘pro-European’ voters are going to become pro EU reform.

The vast majority of the EU member states is set to ratify the Treaty of Lisbon, which can be seen as a political statement on the necessity of reform.

But if the Irish want themselves and the rest of the EU stuck with the Treaty of Nice, as the crowning achievement of European integration, there is very little the other European leaders can do, presuming that they stick to the ‘liberum veto’.

We have an Irish Catch 22 and a European Catch 22.

What can be fertile about stalemate?

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If political leaders have let their rules paint them into a corner with no or only limited room for manoeuvre, there are still people free to think and to speak.

Researchers, students, editorialists, columnists, bloggers and concerned EU citizens can discuss the challenges of European integration and the needed remedies against irrelevance, without pussyfooting.

Even if there seems to be little hope for effective cures in the short term, those interested in Europe’s place in the world can use the deep flaws exposed by the Irish referendum as a starting point for serious thought and discussion.

Here are some suggestions for further discussion:

1) National referendums on European level questions, and more generally the merits of representative vs. direct democracy.

2) The effects of EU’s treaty base and unanimous ratification.

3) Unanimous decision-making and the consequences of ‘liberum veto’.

4) The lack of democratic foundations and democratic legitimacy of the EU.

5) American and European experiences compared.

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I wouldn’t go as far as to say that a weak European Union is in nobody’s interest. But it is not in the interest of us EU citizens.

One important reminder of that is James Rogers on Global Power Europe:

http://www.globalpowereurope.eu/

Read and reflect.


Ralf Grahn

Continental vision vs liberum veto

The Philadelphia Convention had continental vision and it acted accordingly.

The European powers have been able to patch together a European Union of sorts, but as yet they have effectively restricted its potential for international action and internal reform by imitating the Polish-Lithuanian Commonwealth.

Here is an excerpt of what the Wikipedia article Liberum veto tells us about the effects of the unanimity rule:

“In the first half of the 18th century, it became increasingly common for Sejm sessions to be broken up by liberum veto, as the Commonwealth's neighbours — chiefly Russia and Prussia — found this a useful tool to frustrate attempts at reforming and strengthening the Commonwealth. The latter deteriorated from a European power into a state of anarchy.”

The Wikipedia article is available at:

http://en.wikipedia.org/wiki/Liberum_Veto

Is this the way we want it to be? Is this how we should want it to be?


Ralf Grahn

EU Treaty of Lisbon: Foreign policy strategies

When the Heads of State or Government convene in the European Council, they have the option to make strategic decisions for the citizens of the European Union, but every one of the leaders bears a lock which can lead to paralysis: veto power.

The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).

In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.

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The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:

“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.

Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.

3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.

The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.

The Council shall ensure the unity, consistency and effectiveness of action of the Union.”

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The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).

The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.

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A few remarks by your glossator:

Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.

Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).

They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.

The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.

Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.

The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.

According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.

Article 10b

1. On the basis of the principles and objectives set out in Article 10 A, the European Council shall identify the strategic interests and objectives of the Union.

Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.

The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.

2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.

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Next, we are going to look at the specific provisions on the common foreign and security policy.


Ralf Grahn

EU Treaty of Lisbon: External action

The external action of the European Union and the European Community aims to strengthen the security and to enhance the prosperity of the citizens of the EU. The Reform Treaty merges the European Union into the European Union, abolishing the pillar structure but not the intergovernmental decision making procedures specific to the common foreign and security policy or the common security and defence policy.

In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.

The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.

Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.

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The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.

The present Article 11 TEU says:

“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council shall ensure that these principles are complied with.”

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The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)

This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:

“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).

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(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.

(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”

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Your glossator’s remarks:

The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.

Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.

The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.


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In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.

Article 10a

1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.

2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;

(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;

(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;

(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

(g) assist populations, countries and regions confronting natural or man-made disasters; and

(h) promote an international system based on stronger multilateral cooperation and good global governance.

3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.

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.

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Next time we turn to the strategic role of the European Council.


Ralf Grahn

EU Treaty of Lisbon: Council

In a European Union of citizens and states, the latter have the upper hand. Not only is the EU based on international Treaties between the Member States, but the states are represented in the European Council and in the Council (of Ministers), the two most important institutions of the Union.

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The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).

The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.

In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.

The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.

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A few comments on the end result:

Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.

If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.

The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.

Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.

The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.

The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.

The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.

Article 9c
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 205(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 201b 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 201b of the Treaty on the Functioning of the European Union.

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An overview of the Commission will follow.


Ralf Grahn