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
Tuesday, 31 March 2009
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
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
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
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
Monday, 30 March 2009
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
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
Sunday, 29 March 2009
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
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
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
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
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
Saturday, 28 March 2009
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
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
Friday, 27 March 2009
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
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.
***
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
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
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
‘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).
***
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.
***
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.
***
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.
***
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.
***
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
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).
***
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.
***
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.
***
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.
***
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.
***
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
Thursday, 26 March 2009
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."
***
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
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."
***
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.
***
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.
***
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
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.
***
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.
***
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
Wednesday, 25 March 2009
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).
***
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 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.
***
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.
***
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
***
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 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.
***
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.
***
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.)
***
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.
***
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.
***
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.)
***
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
***
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.
***
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.
***
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.)
***
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
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
Tuesday, 24 March 2009
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
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.
***
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.
***
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.
***
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.
***
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. ---
***
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.
***
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.
***
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.
***
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].
***
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.
***
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.
***
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
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.
***
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.
***
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.
***
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.
***
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. ---
***
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.
***
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.
***
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.
***
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].
***
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.
***
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.
***
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
Monday, 23 March 2009
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”
***
Comments
I am grateful for the reply. A few comments about the substance of the information provided.
***
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.
***
Commission
The Commission does not deny discussing and reflecting, but it offers nothing of substance. Is it prudent to exclude public discussion?
***
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.
***
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.
***
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
“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”
***
Comments
I am grateful for the reply. A few comments about the substance of the information provided.
***
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.
***
Commission
The Commission does not deny discussing and reflecting, but it offers nothing of substance. Is it prudent to exclude public discussion?
***
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.
***
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.
***
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.
***
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.
***
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
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.
***
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.
***
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.
***
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.
***
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.
***
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.”
***
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.”
***
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).”
***
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-Ã -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).”
***
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;
***
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.”
***
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
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.
***
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.
***
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.
***
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.”
***
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.”
***
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).”
***
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-Ã -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).”
***
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;
***
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.”
***
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
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