Saturday 21 March 2009

Lisbon Treaty & European Council: Decisions by consensus

The European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU) and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c).

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

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

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

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

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

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

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


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

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

Ralf Grahn

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