Council and the European Council
1. General characteristics
In spite of bearing similar names and being composed in a similar manner, the Council and the European Council are different organs, that prior to 2010 even pertained to different entities. Until then, the Council (or Council of Ministers) was one of the institutions of the European Community (Art 7 EC), while the European Council was the only organ of the European Union, as established by the Maastricht Treaty (Art 4 EU). Although the Treaty of Lisbon merged the EU and EC into a single body named the EU (Art 1(3) s 3 TEU), the distinction between the Council and the European Council continues to exist—a fact that must be considered slightly confusing. Upon the entry into force of the Lisbon Treaty, both entities became organs of the ‘new EU’. The European Union does not follow the traditional pattern of division of powers. Accordingly, there is no constitutional benchmark for the distribution of competences between the Council or the European Council and other organs.
2. The European Council
Only a modest number of provisions of the EC Treaty confer tasks upon the European Council (eg Arts 48, 68, 82(3), 86(1), (3), 87(3), (5), 121(2), (3), 148(1), 222(4), 235 ff TFEU/54, 99(2), (3), 128(1) EC). It is composed of the heads of state or government of the Member States plus the President of the European Commission (Art 15 TEU/4 EU). Pursuant to the Treaty of Lisbon, the European Council elects a President for a term of two and a half years (Art 15(2), (5), (6) TEU). The main function of the European Council is to provide the Union with the necessary impetus for its development, including the evolution of the Treaties, to determine goals and to set priorities (Art 15(1) TEU/4(1) EU). This includes conflict resolution and initiating intergovernmental conferences, eg on the accession of new members.
Additionally, the European Council assumes electoral functions. The Treaty of Lisbon, which abolishes the distinction between the EU and EC, declares the European Council competent to appoint the High Representative of the Union for Foreign Affairs and Security Policy (Art 18(1) TEU) as well as to elect the ECJ judges (Art 253 TFEU), which until 2009 was in the hands of the Council (Art 223(1) EC). The High Representative, also dubbed European Foreign Minister, has a more independent status than the former High Representative for the Common Foreign and Security Policy, who represented the Council as its Secretary-General. He or she bridges the gaps between the different organs of the EU, insofar as the High Representative will not only act as the chairperson of the foreign affairs council, but also as the vice-president of the Commission (Art 18(4) TEU). Among the new functions that enhance the status of the European Council is also its right to decide upon the composition of the European Parliament (Art 14(2) TEU).
Decision making by the European Council requires consensus, as stipulated by Art 15(4) TEU. This relates to the consensus procedure (ie the absence of a formal vote) and does not stand for the unanimity that is needed for most decisions of the European Council with respect to national sovereignty. The Lisbon Treaty introduces procedural rules applicable to the European Council for the first time (Arts 235 ff TFEU).
3. The Council
Composed of members of national governments, the Council is the organ that most reflects interests particular to member States. No other organ enjoys such a broad range of competences as the Council. As a rule, the competent cabinet members—and sometimes even (and independently of their relation to national cabinets) Secretaries of State (despite the wording of Art 16(2) TEU/9 EC)—act as representatives of their respective Member States within the Council. Where Member States have a federal structure and not the Federation but its Federal States have legislative competence for a particular matter, national constitutions may even reserve the right for the Federal States to send a representative to the Council on behalf of the Member State (see eg Art 23(6) of the German Constitution). Heads of state and government may also convene as the Council and, in fact, must do so where the treaty explicitly provides for it, eg concerning the introduction of the euro as the common European currency (Art 121(3) EC). In some cases, representatives of national governments are not considered to act as the Council but as ‘representatives of the governments of the Member States as united in the Council’ (im Rat vereinigte Regierungsvertreter der Mitgliedstaaten). This occurs, for example, upon the election of other organs or institutions (such as the ECB: Art 283 TFEU/112 EC; ECJ: Art 253 TFEU/Art 223(1) EC).
The Council is, unlike the European Commission or the European Parliament, a continuous organ without a determinate period of office. However, there is no continuity as to the individual acting persons, since the personal composition of the Council varies according to the issue to be decided upon. At present there are nine different configurations: General Affairs and External Relations; Agriculture and Fisheries; Competitiveness; Economic and Financial Affairs; Education, Youth and Culture; Employment, Environment; Justice and Home Affairs; Social Policy, Health and Consumer Affairs; Transport, Telecommunications and Energy. At least two of these configurations—the General Affairs Council and the Foreign Affairs Council—are declared official and mandatory by the Treaty of Lisbon (Art 16(6) TEU). Decisions on constellations other than these, including their introduction or abolition, may be adopted by a qualified majority of the European Council (Art 236 TFEU). While the Treaty of Lisbon provides for a fixed and relatively stable term of two and half years for the Presidency of the European Council, the Presidency of the Council continues to rotate, although the period, which until now has officially been six months (Art 203(2) EC), is no longer defined in the treaty (Art 16(9) TEU).
Legislative functions are shared among the European Parliament, the European Commission and the Council, but it may be said that the Council still dominates this function. While usually acting on equal footing, that is, as a co-legislator with the European Parliament (‘co-decision’/‘ordinary legislative procedure’ (Arts 289, 294 TFEU/ 251 EC), the treaty provides for ‘special legislative procedures’ that limit the Parliament to a mere right of consent or only just consultation (European Parliament). Likewise, the conclusion of international agreements in the name of the EU is for the most part in the hands of the Council, although the opening of negotiations formally remains with the Commission (Art 218 TFEU/300 EC). Neither the Council nor the European Parliament is endowed with law-making power in the realm of Art 106(3) TFEU/86(3) EC, which is unique insofar as it gives the Commission an exclusive competence for adopting directives concerning services of general economic interest and in those cases where the Commission has been empowered to adopt non-legislative acts pursuant to Art 290 TFEU or implementing acts in accordance with Art 291 TFEU, provided that these powers have not been conferred on the Council in the respective legislative acts. Prior to the Lisbon Treaty, delegated law-making was governed by Art 202 dash 3, Art 211 dash 4 EC). Insofar, the Commission had to interact with the Council and also ‘Comitology Committees’, where Member States’ diplomats are represented (European Commission).
The pattern of co-decision is also apparent in the proceedings leading to the adoption of the EU budget. On the basis of a preliminary draft budget submitted by the Commission, the Council establishes the draft budget of the Union and submits it to the European Parliament for approval, along with, where this is deemed necessary, amendments. The latter require the acceptance of the Council, just as the European Parliament must decide on modifications that the Council has made to its amendments (for details, see Art 314 TFEU/272 EC). The Treaty of Lisbon brings about an even more sophisticated mechanism of budget-making, which involves potential action taken by the Conciliation Committee (not unlike the one in Art 294 TFEU).
Other functions attributed to the Council include electoral rights and control. The Council elects (or in the words of the treaty, ‘adopts the list’ of proposals for) the members of the Court of Auditors (Art 286(2) TFEU/247(3) EC), the Economic and Social Council (Art 302(1) TFEU/259 (1) EC) as well as the Committee of the Regions (Art 305(2) TFEU/263(4) EC). The Council is entitled to submit recommendations on the members of the Executive Board of the European Central Bank (ECB), while the right to appoint them remains with the Member States (Art 283(2) TFEU/112(1) EC). Whereas most types of sanction fall within the competence of the Commission, the Council is entitled to impose sanctions in the circumstances provided for by Art 126 TFEU (Art 104 EC), as a last resort against excessive public deficits of Member States. Likewise, in the event of grave violations of fundamental principles of the Union by a Member State, the Council can eventually suspend the membership rights of the state in question (Art 7(3) TEU/7(3) EU).
c) Decision making procedure
The provisions on decision making by the Council are fairly complex. The Council being the mouthpiece of the national interests and the weight assigned to every single Member State directly reflecting its political influence, adequate representation is of the utmost importance to EU members. Considering their broad range in size and the diversity of their interests, a balanced formula has proven hard to find. Allocation of voting rights within the Council was one of the most disputed elements of the (failed) treaty on a Constitution for Europe (European Constitution). Likewise, when the Treaty of Lisbon was negotiated, some Member States were unwilling to deviate from the formula set up by the Nice Treaty (and considered by them as adequate or possibly favourable), while others considered ‘Nice’ as unbalanced, with ‘repairs’ highly desirable.
The ordinary means of making decisions used to be by acting with a majority of the members of the Council (Art 205(1) EC); as a consequence, there was a possibility of individual Member States being outvoted. Under the Reform Treaty, however, the qualified majority vote has been declared the regular procedure (Art 16(3) TEU; see also Art 238(1) TFEU). The treaty therefore acknowledges that in legal practice, the number of acts to be adopted by a (double) qualified majority prevails by far over those requiring a simple majority. This means that the treaty need not explicitly provide for a qualified majority any more where it is meant to apply. Before the Lisbon Treaty became effective, a qualified majority only applied where the treaty explicitly provided for it. Unanimous decisions, typical for international organizations, are prescribed for certain sensitive subjects that have an impact on national sovereignty (eg Art 113 TFEU/93 EC; Art 352 TFEU/308 EC). Correspondingly, the European Parliament may not in these cases act as a fully fledged co-legislator. However, a considerable number of earlier legal acts were in fact adopted unanimously in that they were based on Art 308 EC, which allowed the EU to go beyond its set of explicitly attributed competences (while not empowering it to create new ones) but which required the Council to decide unanimously. As the successor to Art 308 EC—Art 352 TFEU, also known as the ‘flexibility clause’—abides by this requirement, it is unlikely that unanimous Council decisions will become a rarity. The treaties provide for weighted voting in the Council, although in practice the vast majority of its decisions are taken by consensus. The former law (see Art 205(2) EC) distinguished the ‘simple’ qualified majority (225 votes including the majority of members), which applies where a proposal by the Commission precedes decision making by the Council, from a ‘double’ qualified majority, to be achieved in other cases. The latter required the consent of two-thirds of the Council’s members in addition to the aforementioned standards. Even so, a decision could not be validly adopted where a verification carried out upon a request submitted by a Member State revealed that the qualified majority represented less than 62 per cent of the Union’s total population (Art 205(4) EC). This provision applied to the ‘simple’ qualified majority as well.
Now that the Treaty of Lisbon has become effective, the framework described above will, for the most part, only continue to apply until 31 October 2014; some of its elements, however, could even survive until 31 March 2017 upon the request of a Member State (see Title II, Art 3 Protocol no 36 on Transitional Provisions; Art 16(5) TEU). By the end of this period, weighted voting will be replaced with a scheme that makes voting conditional upon the number of representatives assenting as well as the represented population. As from April 2014, four criteria must be met for a majority to constitute a qualified one (Art 16(4) TFEU (for diverging criteria in the event that not all Member States participate in voting, see Art 238(3) TFEU)). It must comprise:
–at least 55 per cent of the members of the Council (72 per cent in the case that the Council does not act upon a proposal submitted by the Commission or the High Representative for Foreign Policy and Security Policy; Art 238(2) TFEU);
–15 Member States or more;
–at least 65 per cent of the population of the Union; and
–the absence of a blocking minority, ie at least four Council members rejecting the act.
In 1994, the EU Foreign Affairs Ministers agreed on what became known as the Ioannina Compromise. If members of the Council representing 26 votes (the new blocking minority threshold, which had previously been set at 23) expressed their intention to oppose the taking of a decision by the Council that required a qualified majority, the Council would do all within its power, within a reasonable space of time, to reach a satisfactory solution that could be adopted by at least 68 votes out of 87. In other words, the compromise, which has never become legally binding, allowed a group of states to (temporarily) veto a decision although they did not completely achieve the necessary minority. The Lisbon Treaty does not explicitly incorporate the Ioannina formula, but its abrogation in a particular case or abolition must be approved unanimously by the European Council (Protocol on the Decision of the Council Relating to the Implementation of Art 9C(4) of the Treaty on European Union and Art 205(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). Whereas the Luxembourg Compromise of 1966 ended up being ignored, the ‘semi-binding’ Ioannina Compromise will not be left to the same fate.
4. Institutions and bodies attached to the council
The Council is equipped with a General Secretariat under the leadership of a Secretary General (Art 240(2) TFEU/207(2) EC), who acted as High Representative of the Common Foreign and Security Policy until 2009. The Treaty of Lisbon has abolished this dual capacity (see Art 18 TEU).
A Committee of Permanent Representa- tives (Comité des Représentants Permanents (COREPER); Art 240(1) TFEU/207(1) EC) is charged with preparing the sessions of the Council, coordinating the work of the civil servants and acting as an interface between the Union and its Member States. There is a subdivision into COREPER I and II, the latter uniting the heads of the Member States’ Permanent Representations (ranking as ambassadors) and dealing, inter alia, with political, commercial, economic or institutional matters, while COREPER I, consisting of the Deputy Permanent Representatives, deals with technical issues. Numerous working groups formed by the Council are subjugated to COREPER.
Koen Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’  CMLR 11; Koen Lenaerts, ‘Regulating the Regulatory Process: Delegation of Powers in the European Community’  E L Rev 23; Martin Westlake and David Galloway, The Council of the European Union (2004); Fiona Hayes-Renshaw and Helen Wallace, The Council of Ministers (2006); Heide Wedemeyer, Mehrheitsbeschlussfassung im Rat der Europäischen Union: rechtliche Grundlagen, praktische Umsetzung und ihre Folgen für die Vertretung nationaler Interessen (2008).