The treaty reform process started in December 2000 in Nice, but the voting rules of the Council of the European Union are going to take full effect only in April 2017 – if the Treaty of Lisbon enters into force.
It is hardly the overpowering strength of the European Union we as EU citizens have to fear, but its impotence.
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Current treaty
The member states have been accorded votes in the Council roughly in line with their population numbers. Article 205 of the Treaty establishing the European Community (TEC) is found in the latest consolidated version of the treaties, published in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/136-137.
A few days later, on 1 January 2007, Bulgaria and Romania joined the European Union. But the amendment of Article 205 TEC by the 2003 Act of Accession, and the situation after the entry of Bulgaria and Romania is indicated only by a footnote and presented in an Appendix to the consolidated treaty (starting on page 325).
By inserting the changes, we present Article 205 TEC as it is in force since 1 January 2007:
Article 205 TEC
1. Save as otherwise provided in this Treaty, the Council shall act by a majority of its Members.
2. Where the Council is required to act by a qualified majority, the votes of its Members shall be weighted as follows:
Belgium 12‘
Bulgaria 10
Czech Republic 12
Denmark 7
Germany 29
Estonia 4
Greece 12
Spain 27
France 29
Ireland 7
Italy 29
Cyprus 4
Latvia 4
Lithuania 7
Luxembourg 4
Hungary 12
Malta 3
Netherlands 13
Austria 10
Poland 27
Portugal 12
Romania 14’.
Slovenia 4
Slovakia 7
Finland 7
Sweden 10
United Kingdom 29
Acts of the Council shall require for their adoption at least 255 votes in favour cast by a majority of the members where this Treaty requires them to be adopted on a proposal from the Commission.
In other cases, for their adoption acts of the Council shall require at least 255 votes in favour, cast by at least two thirds of the members.
3. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.
4. When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.
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Original Lisbon Treaty
The original Treaty of Lisbon was signed by the heads of state or government on 13 December 2007. It contains horizontal (general) amendments, i.e. terms used throughout the treaties, and amendments specific to each Article. The Lisbon Treaty was published in the OJEU 17.12.2007 C 306.
The specific amendments to Article 205 TEC, to become the Treaty on the Functioning of the European Union (TFEU) were (OJEU 17.12.2007 C 306/104-105):
:
191) Article 205 shall be amended as follows:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. Where it is required to act by a simple majority, the Council shall act by a majority of its component members.
2. By way of derogation from Article 9 C(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union.
3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained;
(b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.’.
(b) paragraph 4 shall be deleted and paragraph 3 shall be renumbered 4.
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Comment
We have to wait until 1 November 2014 for the new rules on qualified majority voting to take effect. Even then they are subject to further delays under the Protocol on transitional provisions.
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Consolidated Lisbon Treaty
After a few months and the publication of a number of “private” consolidations, the Council graciously published a readable (consolidated) version of the Lisbon Treaty, first on its web pages in April and then in the Official Journal, on Europe Day 2008. In part, the amended Article 205 TEC became Article 238 of the Treaty on the Functioning of the European Union (TFEU) (OJEU 9.5.2008 C 115/153-154):
Article 238 TFEU
(ex Article 205(1) and (2), TEC)
1. Where it is required to act by a simple majority, the Council shall act by a majority of its component members.
2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union.
3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained;
(b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
4. Abstentions by Members present in person or represented shall not prevent the adoption by the
Council of acts which require unanimity.
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Article 16(4) and (5) TEU
The basic provisions on voting in the Council are paragraphs 4 and 5 of Article 16 of the Treaty on European Union (TEU), presented here as a reminder (OJEU 9.5.2008 C 115/24):
Article 16(4) and (5) TEU
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
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Protocol on transitional provisions
Protocol (No 36) on transitional provisions is an illustration of treaty reform, which requires unanimous agreement between the member states and ratification by every member state. Three different stages are distinguished.
1) From the entry into force of the Treaty of Lisbon until 31 October 2014 the current rules on voting remain in force.
2) In principle, the Lisbon Treaty rules on qualified majority voting (QMV) are in effect between 1 November 2014 and 31 March 2017, subject to a request by a member of the Council to apply the old rules.
3) From 1 April 2017 the intended rules of the Lisbon Treaty become operational.
Protocol (No 36) on transitional provisions (excerpt; OJEU 9.5.2008 C 115/322-323):
PROTOCOL (No 36)
ON TRANSITIONAL PROVISIONS
THE HIGH CONTRACTING PARTIES,
WHEREAS, in order to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty, it is necessary to lay down transitional provisions,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community:
Article 1
In this Protocol, the words ‘the Treaties’ shall mean the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community.
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TITLE II
PROVISIONS CONCERNING THE QUALIFIED MAJORITY
Article 3
1. In accordance with Article 16(4) of the Treaty on European Union, the provisions of that paragraph and of Article 238(2) of the Treaty on the Functioning of the European Union relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014.
2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply.
3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) of the Treaty on the Functioning of the European Union.
For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows:
Belgium 12
Bulgaria 10
Czech Republic 12
Denmark 7
Germany 29
Estonia 4
Ireland 7
Greece 12
Spain 27
France 29
Italy 29
Cyprus 4
Latvia 4
Lithuania 7
Luxembourg 4
Hungary 12
Malta 3
Netherlands 13
Austria 10
Poland 27
Portugal 12
Romania 14
Slovenia 4
Slovakia 7
Finland 7
Sweden 10
United Kingdom 29
Acts shall be adopted if there are at least 255 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 255 votes in favour representing at least two thirds of the members.
A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62 % of the total population of the Union. If that proves not to be the case, the act shall not be adopted.
4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) of the Treaty on the Functioning of the European Union, be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.
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Greg Lance - Watkins (Greg_L-W)
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