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
Showing posts with label 15 TEU. Show all posts
Showing posts with label 15 TEU. Show all posts
Tuesday, 24 March 2009
Monday, 23 March 2009
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-à-vis the exterior and, at the same time, of building a consensus within the community. This implies someone from the heart of the current European integration process, that is from a member of the euro-zone and of the Schengen Agreement (CEPS, Eliamep, Notre Europe).”
***
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-à-vis the exterior and, at the same time, of building a consensus within the community. This implies someone from the heart of the current European integration process, that is from a member of the euro-zone and of the Schengen Agreement (CEPS, Eliamep, Notre Europe).”
***
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
Saturday, 21 March 2009
Lisbon Treaty & European Council: Unanimous decisions
As we have seen, the European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU), and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c)).
Further, we have looked at the decisions the European Council takes ‘by unanimity’, according to the wording of the Treaty of Lisbon.
Now we look at when the Lisbon Treaty employs the term ‘unanimous(ly)’ in conjunction with decisions by the European Council. This is not to imply any material differences between ‘by unanimity’ and ‘unanimous(ly)’, but purely as a matter of convenience.
We follow the consolidated Treaty of Lisbon, published OJEU 9.5.2008 C 115.
***
Number of Commissioners
Under the current Treaty of Nice, the number of Commissioners would have to be reduced, i.e. if the Lisbon Treaty does not enter into force.
The Treaty of Lisbon would directly alleviate one of the Irish concerns for the next term of the Commission. According to Article 17(4) of the amended Treaty on European Union (TEU), the Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
As from 1 November 2014 the number of Commissioners would fall, corresponding to two thirds of the number of Member States. Pursuant to Article 17(5) TEU, the European Council, acting unanimously, could decide to alter the number, which includes the Commission President and the High Representative of the Union for Foreign Affairs and Security Policy (Vice-President).
(The European Council 11 to 12 December 2008 agreed that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. ─ If the Lisbon Treaty enters into force, each member state is already guaranteed a Commissioner until the end of October 2014. Hence, the Presidency Conclusions can only mean that the member states have agreed with regard to 1 November 2014 and beyond. Technically this could be achieved by a unanimous decision by the European Council or by changing the treaty text or by adding a legally binding protocol.)
***
Equal rotation
If and when the numbers of the Commission were reduced, the Lisbon Treaty foresaw a system of strictly equal rotation, based on a unanimous decision by the European Council:
Article 17(5), TEU, second subparagraph
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
***
Commission: system of rotation
In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission
shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the principles laid down in Article 244 TFEU.
(The botched reform of the Commission would make Article 244 TFEU redundant.)
***
Strategic interests and objectives
The European Council shall act unanimously on a recommendation from the Council, when it sets out the strategic interests and objectives of the European Union with regard to its action on the international scene (Article 22 TEU).
***
CFSP
The common foreign and security policy (CFSP) is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded (Article 24 TEU).
This is repeated in Article 31 TEU.
***
Qualified majority in Council
The European Council may unanimously adopt a decision extending the use of qualified majority in the Council, but neither qualified majority nor extension of it applies to decisions having military or defence implications (Article 31 TEU).
***
CSDP
According to Article 42(2) TEU, the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
(Even if many of the decisions requiring unanimity in the European Council or the Council, are practically unattainable in practice, a common defence may become a reality if the mainstream EU member states embrace the twin concepts of a European defence and NATO membership. By reintegrating into the NATO structures, France has paved the way. The six EU members still outside NATO need not stand in the way, because according to the second subparagraph the CSDP does not prejudice the specific character of the security and defence policy of certain Member States. In addition, Ireland has been given specific assurances in connection with the Lisbon Treaty.)
***
Secession
If a member state decides to withdraw from the European Union, Article 50 TEU foresees notification and a period of negotiations. Due to the links between the member states and the EU, it is no easy task. It could be called reverse engineering of membership. The seceding state would probably want some sort of future relationship, which would have to be negotiated, within the European Economic Area (EEA) or outside.
But Article 50(3) TEU makes it clear that the European Union does not imprison states against their will. Secession enters into force two years after notification, even if the negotiations continue, unless the member state concerned agrees to extend the period. In that case the European Council (less the seceding member) decides unanimously to prolong the period:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
***
Extending powers of European Public Prosecutor
According to Article 86(4) TFEU, the European Council may extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
Multiannual financial framework
According to Article 312(2) TFEU, the Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The second subparagraph offers the European Council the possibility, unanimously, to adopt a decision authorising the Council to act by a qualified majority when adopting the regulation referred to in the first subparagraph.
***
Non-European territories
According to Article 355 TFEU, the provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349, and the special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to above. The European Council shall act unanimously after consulting the Commission.
***
Amending ESCB Statute
Article 10.2 the Statute of the European System of Central Banks and of the European Central Bank (Protocol No 4), on voting rights in the Governing Council, can be amended by a unanimous decision by the European Council in the following way:
Article 40.2.
Article 10.2 may be amended by a decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements.
***
Are we any wiser?
Perhaps we can draw the conclusion that the general rule on consensus applies primarily to the effort to find common ground with regard to political texts. Unanimity is regularly evoked in settings calling for concrete decisions, not only with regard to the European Council but in a multitude of questions where the unanimity requirement concerns the Council.
In both cases, less enthusiastic member states can refrain from active opposition (abstain), which means that the bottom line differences between consensus and unanimous decisions are small.
In a wider perspective, low grade compromises and the lack of unanimity hamper the development of the European Union and its action. In crucial areas, the EU remains a giant on clay feet.
Ralf Grahn
Further, we have looked at the decisions the European Council takes ‘by unanimity’, according to the wording of the Treaty of Lisbon.
Now we look at when the Lisbon Treaty employs the term ‘unanimous(ly)’ in conjunction with decisions by the European Council. This is not to imply any material differences between ‘by unanimity’ and ‘unanimous(ly)’, but purely as a matter of convenience.
We follow the consolidated Treaty of Lisbon, published OJEU 9.5.2008 C 115.
***
Number of Commissioners
Under the current Treaty of Nice, the number of Commissioners would have to be reduced, i.e. if the Lisbon Treaty does not enter into force.
The Treaty of Lisbon would directly alleviate one of the Irish concerns for the next term of the Commission. According to Article 17(4) of the amended Treaty on European Union (TEU), the Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
As from 1 November 2014 the number of Commissioners would fall, corresponding to two thirds of the number of Member States. Pursuant to Article 17(5) TEU, the European Council, acting unanimously, could decide to alter the number, which includes the Commission President and the High Representative of the Union for Foreign Affairs and Security Policy (Vice-President).
(The European Council 11 to 12 December 2008 agreed that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. ─ If the Lisbon Treaty enters into force, each member state is already guaranteed a Commissioner until the end of October 2014. Hence, the Presidency Conclusions can only mean that the member states have agreed with regard to 1 November 2014 and beyond. Technically this could be achieved by a unanimous decision by the European Council or by changing the treaty text or by adding a legally binding protocol.)
***
Equal rotation
If and when the numbers of the Commission were reduced, the Lisbon Treaty foresaw a system of strictly equal rotation, based on a unanimous decision by the European Council:
Article 17(5), TEU, second subparagraph
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
***
Commission: system of rotation
In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission
shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the principles laid down in Article 244 TFEU.
(The botched reform of the Commission would make Article 244 TFEU redundant.)
***
Strategic interests and objectives
The European Council shall act unanimously on a recommendation from the Council, when it sets out the strategic interests and objectives of the European Union with regard to its action on the international scene (Article 22 TEU).
***
CFSP
The common foreign and security policy (CFSP) is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded (Article 24 TEU).
This is repeated in Article 31 TEU.
***
Qualified majority in Council
The European Council may unanimously adopt a decision extending the use of qualified majority in the Council, but neither qualified majority nor extension of it applies to decisions having military or defence implications (Article 31 TEU).
***
CSDP
According to Article 42(2) TEU, the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
(Even if many of the decisions requiring unanimity in the European Council or the Council, are practically unattainable in practice, a common defence may become a reality if the mainstream EU member states embrace the twin concepts of a European defence and NATO membership. By reintegrating into the NATO structures, France has paved the way. The six EU members still outside NATO need not stand in the way, because according to the second subparagraph the CSDP does not prejudice the specific character of the security and defence policy of certain Member States. In addition, Ireland has been given specific assurances in connection with the Lisbon Treaty.)
***
Secession
If a member state decides to withdraw from the European Union, Article 50 TEU foresees notification and a period of negotiations. Due to the links between the member states and the EU, it is no easy task. It could be called reverse engineering of membership. The seceding state would probably want some sort of future relationship, which would have to be negotiated, within the European Economic Area (EEA) or outside.
But Article 50(3) TEU makes it clear that the European Union does not imprison states against their will. Secession enters into force two years after notification, even if the negotiations continue, unless the member state concerned agrees to extend the period. In that case the European Council (less the seceding member) decides unanimously to prolong the period:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
***
Extending powers of European Public Prosecutor
According to Article 86(4) TFEU, the European Council may extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
Multiannual financial framework
According to Article 312(2) TFEU, the Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The second subparagraph offers the European Council the possibility, unanimously, to adopt a decision authorising the Council to act by a qualified majority when adopting the regulation referred to in the first subparagraph.
***
Non-European territories
According to Article 355 TFEU, the provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349, and the special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to above. The European Council shall act unanimously after consulting the Commission.
***
Amending ESCB Statute
Article 10.2 the Statute of the European System of Central Banks and of the European Central Bank (Protocol No 4), on voting rights in the Governing Council, can be amended by a unanimous decision by the European Council in the following way:
Article 40.2.
Article 10.2 may be amended by a decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements.
***
Are we any wiser?
Perhaps we can draw the conclusion that the general rule on consensus applies primarily to the effort to find common ground with regard to political texts. Unanimity is regularly evoked in settings calling for concrete decisions, not only with regard to the European Council but in a multitude of questions where the unanimity requirement concerns the Council.
In both cases, less enthusiastic member states can refrain from active opposition (abstain), which means that the bottom line differences between consensus and unanimous decisions are small.
In a wider perspective, low grade compromises and the lack of unanimity hamper the development of the European Union and its action. In crucial areas, the EU remains a giant on clay feet.
Ralf Grahn
Lisbon Treaty & European Council: Decisions by 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
Let us see where else the Lisbon Treaty employs the term consensus in conjunction with the European Council.
In Article 82 TFEU, when the European Council has become employed by the ‘emergency brake’ concerning mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Council after discussion, and in case of a consensus, within four months of the suspension, refers the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
The same procedure applies with regard to proposed directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 83 TFEU).
Likewise, if a group of at least nine member states wants to establish enhanced cooperation in order to establish a European Public Prosecutor's Office from Eurojust, with the task to combat crimes affecting the financial interests of the Union (Article 86 TFEU).
The same procedure applies to operational cooperation concerning police authorities (Article 87 TFEU).
With regard to qualified majorities and blocking minorities, Protocol (No 9) on the decision of the Council relating to the implementation of Article 16(4) of the Treaty of European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other, any amending or modifying act would be preceded by a preliminary deliberation by the European Council based on consensus.
Declaration (23).on the second paragraph of Article 48 of the Treaty on the Functioning of the European Union recalls that the European Council acts by consensus when it deals with a referral, where a member state has declared that a draft legislative act would affect important aspects of its social security system.
***
There seem to be two different situations mainly: The European Council sorts the situation out by reaching consensus needed for a Council decision. The referral is only temporary, and the willing press ahead with enhanced cooperation.
Next, we look at the terms unanimity and by unanimous decision.
Ralf Grahn
Lisbon Treaty & European Council: Consensus or unanimity?
The European Council primarily takes decisions which are politically (not legally) binding, such as Presidency Conclusions, declarations and guidelines. Its mode of operation can be seen as consensus seeking. Basically, the political texts can be watered down until consensus is reached.
One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.
***
Consensus
In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:
Article 15(4) (Lisbon Treaty)
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
(OJEU 9.5.2008 C 115/23)
***
Consensus or unanimity?
Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).
Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.
The Lisbon Treaty employs both terms in conjunction with the European Council.
My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.
People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.
In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?
Ralf Grahn
One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.
***
Consensus
In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:
Article 15(4) (Lisbon Treaty)
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
(OJEU 9.5.2008 C 115/23)
***
Consensus or unanimity?
Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).
Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.
The Lisbon Treaty employs both terms in conjunction with the European Council.
My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.
People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.
In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?
Ralf Grahn
Friday, 20 March 2009
Lisbon Treaty & European Council: Composition
The composition of the European Council would undergo one change under the Treaty of Lisbon. The President of the European Council would become a member, according to Article 15(2) of the amended Treaty on European Union (TEU).
The head of state or government of each member state would still be a member, as would the President of the Commission, as under the current Article 4 TEU.
Article 15(2) TEU (Lisbon)
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
(OJEU 9.5.2008 C 115/23)
***
Members first class
The heads of state or government would vote, if and when the European Council makes a decision by voting.
***
Members second class
The President of the European Council (chairman) and the President of the Commission do not have the vote, according to Article 235(1) of the Treaty on the Functioning of the European Union (TFEU).
***
High Representative
The High Representative of the Union for Foreign Affairs and Security Policy would take part in the work of the European Council.
The Council meets in different configurations, of which the existing General Affairs and External Relations Council (GAERC) mentioned in Article 2 of the Council’s Rules of Procedure is most closely linked to the European Council through its coordinating functions and its subject matter, external relations.
The Treaty of Lisbon splits the GAERC into two different Council configurations: the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) (Article 16(6) TEU Lisbon).
(Preparatory work is needed for the implementation of the Lisbon Treaty.)
The High Representative chairs the Foreign Affairs Council (FAC), which means that it would be represented at the meetings of the European Council without the Foreign Ministers of the member states (Article 27(1) TEU Lisbon).
As we will see, this has immediate consequences, but it may have interesting long term implications as well.
Ralf Grahn
The head of state or government of each member state would still be a member, as would the President of the Commission, as under the current Article 4 TEU.
Article 15(2) TEU (Lisbon)
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
(OJEU 9.5.2008 C 115/23)
***
Members first class
The heads of state or government would vote, if and when the European Council makes a decision by voting.
***
Members second class
The President of the European Council (chairman) and the President of the Commission do not have the vote, according to Article 235(1) of the Treaty on the Functioning of the European Union (TFEU).
***
High Representative
The High Representative of the Union for Foreign Affairs and Security Policy would take part in the work of the European Council.
The Council meets in different configurations, of which the existing General Affairs and External Relations Council (GAERC) mentioned in Article 2 of the Council’s Rules of Procedure is most closely linked to the European Council through its coordinating functions and its subject matter, external relations.
The Treaty of Lisbon splits the GAERC into two different Council configurations: the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) (Article 16(6) TEU Lisbon).
(Preparatory work is needed for the implementation of the Lisbon Treaty.)
The High Representative chairs the Foreign Affairs Council (FAC), which means that it would be represented at the meetings of the European Council without the Foreign Ministers of the member states (Article 27(1) TEU Lisbon).
As we will see, this has immediate consequences, but it may have interesting long term implications as well.
Ralf Grahn
Thursday, 19 March 2009
Lisbon Treaty & European Council: Tasks and powers
Arguably the European Council already is the politically most powerful (influential) body of the European Union. Formally the Lisbon Treaty would retain the description of the European Council’s general tasks almost as they are, but the heads of state or government have increasingly taken over the leading role from the Community institutions. The Treaty of Lisbon would see the European Council among the EU institutions in a formal sense as well (Article 13 TEU).
***
General tasks
In the consolidated Treaty of Lisbon, Article 15(1) of the Treaty on European Union (TEU), replaces the first paragraph of the current Article 4 TEU. In the amending treaty, the general political guidelines become the general political directions and priorities. The clarification is added that the European Council does not exercise legislative functions (but it comes awfully close) (OJEU 9.5.2008 C 115/23):
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
Role of European Council
Paul Craig and Gráinne de Búrca describe the role of the European Council in a few well chosen sentences (with added explanations and examples):
• The European Council is central to the very development of the Community and Union itself.
• The European Council will often confirm important changes in the institutional structure of the Community.
• The European Council can provide the focus for significant constitutional initiatives that affect the operation of the Community and Union.
• The European Council will frequently consider the state of the European economy as a whole.
• Conflict resolution is another issue addressed by the European Council.
• The European Council plays a role in the initiation or development of particular policy strategies.
• The European is also central in external relations.
• The European Council will also consider new accessions to the Community.
(Source: Paul Craig and Gráinne de Búrca: EU Law ─ Text, Cases, and Materials; pages 56 to 57; Fourth edition, Oxford University Press)
***
Communication: Presidency Conclusions
The European Council communicates its political guidelines through Presidency Conclusions, issued at the end of each meeting.
The next ones are expected tomorrow, after the spring European Council.
The European Council does not have the Rules of Procedure necessary according to the Lisbon Treaty (one of the implementing tasks to prepare), but the General Secretariat of the Council has published Rules for the organisation of the European Council (January 2007):
Conclusions
12. The conclusions, which shall be as concise as possible, shall set out policy guidelines and decisions reached by the European Council, placing them briefly in their context and indicating the stages of the procedure to follow on from them.
13. An outline of the conclusions shall be distributed on the day of the European Council meeting in good time for the start of proceedings. The outline shall distinguish clearly between those parts of the text which have previously been approved and which are not in principle subject to discussion and those parts of the text which the European Council is to discuss with a view to reaching final conclusions at the meeting.
***
In addition, the European Council reports to the European Parliament.
***
Comments
Naturally, being central to includes the limits and limitations imposed by the European Council and by its decision making mostly based on unanimity or consensus.
The European Council is essentially free to set its own agenda, when it acts outside the specific decisions mandated by the treaties. It chooses independently how it deals with the political (non-mandatory) input from the Community (Commission) and intergovernmental (Council) feeding mechanisms. Thereby it becomes the most intergovernmental body of the European Union, sometimes concluding intergovernmental agreements outside the institutional framework, but with direct bearing on it.
On the other hand, most of the formal decisions are still taken by the ‘Community’ institutions.
Since the formal description of the general tasks of the European Council remain almost unchanged under the Treaty of Lisbon, most reports and comments on the amending treaty have concentrated on the obvious changes (President, High Representative, Presidential relations), while the incremental rise of the body have gone almost without remarks.
Ralf Grahn
***
General tasks
In the consolidated Treaty of Lisbon, Article 15(1) of the Treaty on European Union (TEU), replaces the first paragraph of the current Article 4 TEU. In the amending treaty, the general political guidelines become the general political directions and priorities. The clarification is added that the European Council does not exercise legislative functions (but it comes awfully close) (OJEU 9.5.2008 C 115/23):
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
Role of European Council
Paul Craig and Gráinne de Búrca describe the role of the European Council in a few well chosen sentences (with added explanations and examples):
• The European Council is central to the very development of the Community and Union itself.
• The European Council will often confirm important changes in the institutional structure of the Community.
• The European Council can provide the focus for significant constitutional initiatives that affect the operation of the Community and Union.
• The European Council will frequently consider the state of the European economy as a whole.
• Conflict resolution is another issue addressed by the European Council.
• The European Council plays a role in the initiation or development of particular policy strategies.
• The European is also central in external relations.
• The European Council will also consider new accessions to the Community.
(Source: Paul Craig and Gráinne de Búrca: EU Law ─ Text, Cases, and Materials; pages 56 to 57; Fourth edition, Oxford University Press)
***
Communication: Presidency Conclusions
The European Council communicates its political guidelines through Presidency Conclusions, issued at the end of each meeting.
The next ones are expected tomorrow, after the spring European Council.
The European Council does not have the Rules of Procedure necessary according to the Lisbon Treaty (one of the implementing tasks to prepare), but the General Secretariat of the Council has published Rules for the organisation of the European Council (January 2007):
Conclusions
12. The conclusions, which shall be as concise as possible, shall set out policy guidelines and decisions reached by the European Council, placing them briefly in their context and indicating the stages of the procedure to follow on from them.
13. An outline of the conclusions shall be distributed on the day of the European Council meeting in good time for the start of proceedings. The outline shall distinguish clearly between those parts of the text which have previously been approved and which are not in principle subject to discussion and those parts of the text which the European Council is to discuss with a view to reaching final conclusions at the meeting.
***
In addition, the European Council reports to the European Parliament.
***
Comments
Naturally, being central to includes the limits and limitations imposed by the European Council and by its decision making mostly based on unanimity or consensus.
The European Council is essentially free to set its own agenda, when it acts outside the specific decisions mandated by the treaties. It chooses independently how it deals with the political (non-mandatory) input from the Community (Commission) and intergovernmental (Council) feeding mechanisms. Thereby it becomes the most intergovernmental body of the European Union, sometimes concluding intergovernmental agreements outside the institutional framework, but with direct bearing on it.
On the other hand, most of the formal decisions are still taken by the ‘Community’ institutions.
Since the formal description of the general tasks of the European Council remain almost unchanged under the Treaty of Lisbon, most reports and comments on the amending treaty have concentrated on the obvious changes (President, High Representative, Presidential relations), while the incremental rise of the body have gone almost without remarks.
Ralf Grahn
Monday, 16 March 2009
European Council: Members and tasks
We turn to the composition and the tasks of the European Council as laid down in the existing treaties and the European Union’s Treaty of Lisbon.
***
Current treaty
Article 4 of the existing Treaty on European Union (TEU) lays down the tasks and the composition of the European Council (in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/12).
The words impetus and guidelines indicate the guiding role of the European Council. The public guidance is summed up in a consensus paper, the Presidency Conclusions formally issued by the member state holding the Council Presidency.
The results are reported to the European Parliament after each meeting by the Council Presidency.
In principle, there is one member from each member state, either the head of state (France and perhaps some other member states with a presidential system) or more commonly the head of government (prime minister).
In some countries the relations are ambiguous or at least contested. Thus, there have been public spats between the president and prime minister of Poland.
Finland is one example of an ambiguous relationship, where the president wants to hold on to a leadership role in foreign policy while the government is responsible for EU affairs. This has led to situations described as the problem of “two plates” (at the dinners). Meanwhile the foreign minister has been exiled from the meeting room.
Article 4 TEU
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.
***
Lisbon Treaty
Article 13 of the Treaty on European Union (TEU), as amended by the Lisbon Treaty, would elevate the European Council to the role of an official EU institution, and Article 15 TEU builds on this to give more detailed provisions on this institution.
Still the European Council does not exercise legislative function, but it makes binding decisions on a number of issues.
The basic membership remains the same, although the President is added to the Commission President (both without votes). The second paragraph clarifies that the High Representative participates in the meetings.
Four regular meetings annually (twice every six months) codifies existing practice, where the current treaty says ‘twice a year’.
The real novelties are in paragraphs 5 and 6: the elected President of the European Council (not of the European Union). The office has been unanimously agreed, but the role of the future President is contested.
Here is the text of Article 15 TEU, as presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/23):
Article 15 TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
Lisbon Treaty implementation
Preparatory work is needed in case the Treaty of Lisbon enters into force. The role and the perquisites of the President of the European Council need to be hammered out.
Progress reports and (alternative) draft proposals are eagerly awaited.
Ralf Grahn
***
Current treaty
Article 4 of the existing Treaty on European Union (TEU) lays down the tasks and the composition of the European Council (in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/12).
The words impetus and guidelines indicate the guiding role of the European Council. The public guidance is summed up in a consensus paper, the Presidency Conclusions formally issued by the member state holding the Council Presidency.
The results are reported to the European Parliament after each meeting by the Council Presidency.
In principle, there is one member from each member state, either the head of state (France and perhaps some other member states with a presidential system) or more commonly the head of government (prime minister).
In some countries the relations are ambiguous or at least contested. Thus, there have been public spats between the president and prime minister of Poland.
Finland is one example of an ambiguous relationship, where the president wants to hold on to a leadership role in foreign policy while the government is responsible for EU affairs. This has led to situations described as the problem of “two plates” (at the dinners). Meanwhile the foreign minister has been exiled from the meeting room.
Article 4 TEU
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.
***
Lisbon Treaty
Article 13 of the Treaty on European Union (TEU), as amended by the Lisbon Treaty, would elevate the European Council to the role of an official EU institution, and Article 15 TEU builds on this to give more detailed provisions on this institution.
Still the European Council does not exercise legislative function, but it makes binding decisions on a number of issues.
The basic membership remains the same, although the President is added to the Commission President (both without votes). The second paragraph clarifies that the High Representative participates in the meetings.
Four regular meetings annually (twice every six months) codifies existing practice, where the current treaty says ‘twice a year’.
The real novelties are in paragraphs 5 and 6: the elected President of the European Council (not of the European Union). The office has been unanimously agreed, but the role of the future President is contested.
Here is the text of Article 15 TEU, as presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/23):
Article 15 TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
Lisbon Treaty implementation
Preparatory work is needed in case the Treaty of Lisbon enters into force. The role and the perquisites of the President of the European Council need to be hammered out.
Progress reports and (alternative) draft proposals are eagerly awaited.
Ralf Grahn
Wednesday, 11 March 2009
European Parliament: Hearing the European Council
The Treaty of Lisbon would formally make the European Council into one of the institutions of the European Union. Article 13 of the amended Treaty on European Union (TEU) mentions the European Council right after the European Parliament, and Article 15 TEU contains the main provisions on its tasks, membership and President.
This leads to other changes at treaty level and below.
***
Current treaty
The fourth paragraph of Article 197 of the Treaty establishing the European Community (TEC) lays down the principle that the European Parliament can hear the Council (which has both legislative and executive powers), but it does not mention the European Council:
“The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.”
***
Lisbon Treaty
The corresponding provision of the Treaty of Lisbon is the third paragraph of Article 230 of the Treaty on the Functioning of the European Union (TFEU). The Council and its Rules of Procedure remain as before, but the European Council and its Rules of Procedure are added:
“The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.”
***
New Rules of Procedure
In practice, the head of government (or state) of and incoming Council Presidency presents the work programme before the European Parliament and then lauds the achievements during the six months at the helm before handing over the Presidency to the next member state.
Article 230 TFEU means that the European Council needs its own Rules of Procedure. Reporting from the meetings will become the task of the semi-permanent President, according to Article 15(6) TEU.
Preparatory work is needed to implement the Lisbon Treaty, should it enter into force.
***
Council information
The only more or less comprehensive public EU report emanating from the Council on preparatory work seems to be almost nine months old.
It is the ‘Progress report from the Presidency to the European Council ─ Preparatory work in view of the entry into force of the Lisbon Treaty’ from the Slovenian Council Presidency to the European Council 19 and 20 June 2008 (Council document 10650/08, 13 June 2008):
http://register.consilium.europa.eu/pdf/en/08/st10/st10650.en08.pdf
The Progress Report, which sampled a number of questions from Slovenia’s earlier and unpublished list, noted that a number of issues related to the entry into force of the Lisbon Treaty will require some form of agreement with the European Parliament (point 4).
Point 11 summarised the work undertaken on the Council’s and the European Council’s Rules of Procedure:
11. Rules of Procedure of European Council and Council (Articles 235 and 240 TFEU)
On the basis that the Council's Rules of Procedure should only be modified to the extent that this was needed as a result of the entry into force of the Lisbon Treaty, Permanent Representatives examined possible amendments to the existing Rules. Broad consensus was reached, subject to the inclusion of several provisions related to the division of labour between the GAC and the FAC and the preparation of European Council meetings, which it was agreed would be examined at a later stage.
Considerable progress was made on technical aspects of the European Council's Rules of Procedure; some other issues, related in particular to the preparation of European Council meetings, will require further work. A preliminary exchange of views focussed on the respective roles of those involved in the preparation of European Council meetings. There was broad support for the need for all of them to work closely together. A significant number of delegations underlined the need to ensure an adequate role in European Council meetings for the Head of State or Government of the Member State holding the Council presidency. These issues will require further work.
***
Preparatory work, progress reports and draft proposals are needed.
Ralf Grahn
This leads to other changes at treaty level and below.
***
Current treaty
The fourth paragraph of Article 197 of the Treaty establishing the European Community (TEC) lays down the principle that the European Parliament can hear the Council (which has both legislative and executive powers), but it does not mention the European Council:
“The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.”
***
Lisbon Treaty
The corresponding provision of the Treaty of Lisbon is the third paragraph of Article 230 of the Treaty on the Functioning of the European Union (TFEU). The Council and its Rules of Procedure remain as before, but the European Council and its Rules of Procedure are added:
“The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.”
***
New Rules of Procedure
In practice, the head of government (or state) of and incoming Council Presidency presents the work programme before the European Parliament and then lauds the achievements during the six months at the helm before handing over the Presidency to the next member state.
Article 230 TFEU means that the European Council needs its own Rules of Procedure. Reporting from the meetings will become the task of the semi-permanent President, according to Article 15(6) TEU.
Preparatory work is needed to implement the Lisbon Treaty, should it enter into force.
***
Council information
The only more or less comprehensive public EU report emanating from the Council on preparatory work seems to be almost nine months old.
It is the ‘Progress report from the Presidency to the European Council ─ Preparatory work in view of the entry into force of the Lisbon Treaty’ from the Slovenian Council Presidency to the European Council 19 and 20 June 2008 (Council document 10650/08, 13 June 2008):
http://register.consilium.europa.eu/pdf/en/08/st10/st10650.en08.pdf
The Progress Report, which sampled a number of questions from Slovenia’s earlier and unpublished list, noted that a number of issues related to the entry into force of the Lisbon Treaty will require some form of agreement with the European Parliament (point 4).
Point 11 summarised the work undertaken on the Council’s and the European Council’s Rules of Procedure:
11. Rules of Procedure of European Council and Council (Articles 235 and 240 TFEU)
On the basis that the Council's Rules of Procedure should only be modified to the extent that this was needed as a result of the entry into force of the Lisbon Treaty, Permanent Representatives examined possible amendments to the existing Rules. Broad consensus was reached, subject to the inclusion of several provisions related to the division of labour between the GAC and the FAC and the preparation of European Council meetings, which it was agreed would be examined at a later stage.
Considerable progress was made on technical aspects of the European Council's Rules of Procedure; some other issues, related in particular to the preparation of European Council meetings, will require further work. A preliminary exchange of views focussed on the respective roles of those involved in the preparation of European Council meetings. There was broad support for the need for all of them to work closely together. A significant number of delegations underlined the need to ensure an adequate role in European Council meetings for the Head of State or Government of the Member State holding the Council presidency. These issues will require further work.
***
Preparatory work, progress reports and draft proposals are needed.
Ralf Grahn
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