House of Lords - European Union

Select Committee on European Union Tenth Report

CHAPTER 4: THE IMPACT OF THE TREATY ON THE EUROPEAN INSTITUTIONS

What are the European Institutions?

4.1. Article 13 of the amended TEU states that the Union's institutions are:

the European Parliament

the European Council

the Council of Ministers

the European Commission

the Court of Justice of the European Union

the European Central Bank

the Court of Auditors.

4.2. Five of these are listed as institutions by the current TEU (Article 5). The Lisbon Treaty newly confers the status of institution on the European Central Bank and the European Council. These bodies will now be bound by all the Treaties' references to "the institutions", including the requirement to respect the principles of subsidiarity and proportionality (Article 5, amended TEU); to give equal attention to all citizens (Article 9, amended TEU); to give citizens and representative associations the opportunity to exchange their views on Union action (Article 11, amended TEU); to keep national parliaments informed (Article 12, amended TEU) and to practise mutual sincere cooperation (Article 13, amended TEU; see the analysis of the Treaty's impact on the European Court of Justice, below). The institutions are also bound to conduct their work as openly as possible (Article 15, TFEU), and to respect rules regarding the processing of personal data (Article 16, TFEU).

The Impact of the Treaty on the European Council

MEMBERSHIP AND FUNCTION

4.3. The European Council brings together the Heads of State or Government of the Member States and the President of the Commission. Under the Lisbon Treaty, the European Council will have the same composition, with the addition of the participation of the High Representative of the Union for Foreign Affairs and Security Policy (see Chapter 7) and a full-time European Council President (see below). Its purpose is stated in the current TEU as "provid[ing] the Union with the necessary impetus for its development and … defin[ing] the general political guidelines thereof", and this function remains unchanged (although "general political guidelines" becomes "general political directions and priorities"). It will continue to exercise no legislative function.[21] While the European Council is currently required to meet at least twice a year, in practice it meets four times a year, and the Lisbon Treaty makes this an instruction, codifying the current situation.

4.4. As it does presently, the European Council is to take decisions by consensus, "except where the Treaties provide otherwise" (Article 4 TEU; Article 15, amended TEU).[22] The European Council is recognised as a formal institution of the Union, bringing it under the supervision of the Court of Justice[23] (see below) (Article 13, amended TEU).

STATUS OF THE EUROPEAN COUNCIL

4.5. The European Council is given an enhanced status by its elevation to a formal Union institution (see Heathcoat-Amory, Q S68). However, whether this status amounts to a codification of existing practice or extends the European Council's powers is a matter of dispute. Brendan Donnelly argued that few would disagree that the European Council already had the right to define the "general political priorities and directions" of the Union (p S132).

4.6. However, the Campaign against Euro-federalism saw the elevation as an "important 'federalising' aspect" of the Union's new structure. According to CAEF, "[t]his would mean that in constitutional terms European Council meetings would no longer be 'intergovernmental' gatherings of Prime Ministers and Presidents outside supranational European structures. Those taking part, whether collectively or individually, would be legally bound to act in accordance with their obligations under the EU Constitution, which would have primacy over their responsibilities and duties as ministers of national governments in any case of conflict between the two … The European Council would thus become in effect the Cabinet Government of the new Federal European Union" (p S125).

4.7. The Commission called the change "very small" and did not see it having any major practical implication. The Commission told us that "there was a feeling [the European Council] had reached maturity [as] a body in its own right" and the Treaty change recognised this (Q S312).

SIMPLIFICATION OR COMPLICATION?

4.8. To Professor Wallace, "it probably makes good sense at this moment in the history of the Union for the role and purposes of the European Council to be laid down in a more specific way in the Treaty. It seems to me quite logical … for it to be embedded into the institutional system: it recognises practice" (Q S175). However, according to Professor Peers it would have been preferable had the European Council not been made a formal institution, with its own formal decision-making powers, because it "simply adds a new feature to the EU's institutional framework, which should instead have been simplified" (p S152).

A FULL-TIME PRESIDENT OF THE EUROPEAN COUNCIL

4.9. At present, the European Council is chaired by each Member State's Head of State or Government in turn, with each Presidency lasting six months.[24] Under the Lisbon Treaty, the European Council will be chaired by a full-time President, serving a term of two and a half years, renewable once. This President, who may not hold a national office, is to be elected by the European Council by qualified majority voting. The President is to chair the European Council "and drive forward its work", ensure the preparation and continuity of its work, "endeavour to facilitate cohesion and consensus within the European Council", and report to the European Parliament after every meeting (Article 15, amended TEU).

4.10. The full-time President will therefore fulfil the role currently expected of the Head of State or Government of the rotating Presidency State, which is not detailed in the current Treaties. There is an expectation that he or she will have the experience and time to fulfil this role more fully.

Is a full-time President necessary?

4.11. One of the major arguments made for a full-time President of the European Council is that such a post will add coherence to the preparation of European Council meetings and the strategies being defined in them. John Palmer told us that the appointment of a President of the European Council "should help with the preparation of the European Council [meetings], the identification of its priorities and—critically—with follow-up implementation of decisions by Heads of Government" (p S14). The European Parliamentary Labour Party agreed, and the National Farmers' Union considered that the "additional stability" provided by the President "will provide the continuity to the policy agenda necessary to tackle some of the challenges facing the EU" (p S140; p D15). Lord Brittan of Spennithorne[25] also thought that the greater continuity provided for by the creation of the full-time President would be a strength (Q S352). The Minister for Europe told us that the President would have "an important role primarily about maintaining continuity", which would be an "important step forward", especially in issues where the Union is looked to for momentum (Q S245).

4.12. It is also argued that the system of a rotating presidency of the European Council is no longer practicable. The Coalition for the Reform Treaty (CRT) and Business for New Europe (BNE, a member of the CRT) both argued that in a Union of 27 Member States, a rotating Presidency was "impractical", and that some Member States were "ill-equipped" for the "onerous" task of managing the Presidency (p S128; p S122). The Minister agreed that rotation was undesirable: "the European Union is the single biggest rules-based market in human history and yet we have tolerated a system where there is a rotating leadership every 26 weeks. You would not run a bowling club … on a rotating presidency of 26 weeks, so I do not see why you should do it in the European Union" (Q S241). The Minister told us that almost all ministers across Europe accept that "the status quo leads to a degree of inefficiency"; the rotation of the Presidency meant that of every 26-week term, it was possible for the Presidency to operate at full speed for only 16 or 18 weeks (Q S246).

4.13. A third argument made for the full-time President is that he/she "will be able to devote his/her full energies to the job" (p S128; p S122). Sir Stephen Wall told us that "the job of being President of the European Council is now too big a job for one person who is also trying to run a government to do in a six-month period" (Q S209). The Commission considered that "it is such a workload to prepare a Europe Council meeting by consulting 26 other colleagues that it is virtually impossible to fulfil your national role as prime minister or president fully and satisfactorily in the weeks preceding the European Council" (Q S299). According to Sir Stephen, the Government felt that the Union needed a President of the European Council "who much more than a politician in office doing it for six months, could spend time going round the capitals of the European Union, working with heads of government, working with the Commission, to devise that strategy and then bring it to fruition in the European Council" (Q S202). The Minister for Europe confirmed this: "I think that is an important improvement, that someone, perhaps not in advance of taking up their post, but certainly in the period of carrying out their post, would be expected to visit the vast majority, if indeed not all, of the Member States" (Q S249).

4.14. However, Professor Peers thought that "[t]here seemed to be no particularly pressing need for the creation of a full-time post of President of the European Council … there does not seem to be enough work for the President to do" (p S152). Brendan Donnelly considered that a "quasi-permanent "Presidency may well be better able to "promote the cohesion and effectiveness of the European Council's work" than a rotating presidency, "[b]ut because the European Council stands somewhat aside from the day to day activities of the European Union's working institutions (sectoral Councils, Commission and Parliament) its capacity corporately to shape the work of these institutions is limited. General and occasional exhortations from the European Council become diluted in the complexities of the Union's institutional and negotiating structures" (p S132).

Benefits of a rotating Presidency

4.15. Other witnesses considered that there were benefits to the current rotation of the European Council Presidency, which would be lost through the Lisbon Treaty's reforms. Professor Wallace told us that the creation of a full-time President was something she had "always been against and always thought ill-conceived". She preferred "the risk of rotation in the hope that rotation would now and again bring a very good President of the European Council and that if it brought us less good Presidents of the European Council it would only be for six months" (Q S175).

4.16. David Heathcoat-Amory MP thought that continuity and cohesion might be brought to decision-making "at the expense of public involvement". He considered that "[a]t least when the presidency circulates amongst Member States, it does occasionally come back to home", bringing decision-making closer to the citizen and exercising the attention of the public and national media of the Member State concerned. He considered that "all that will go if the permanent European President becomes yet another full-time official in Brussels, rather remote, bigger and more powerful", creating "a bigger gap between the EU and its citizens" (Q S68).

4.17. According to Neil O'Brien, the creation of the full-time President replaces "a national leader with an obvious vested interest in the rights of Member States" with "yet another independent, free-floating Brussels institution interested in getting things done in Brussels" (Q S69).

Power of the President

4.18. The degree to which the President will wield significant power is also a subject of controversy, as is whether any strengthening of the European Council would mean strengthening intergovernmental forces within the Union, and therefore Member States' position, or strengthening "Brussels". Neil O'Brien called the full-time Presidency "quite a federalist idea". He thought that the Presidency "will gradually increase its powers and responsibilities", and mentioned the possibility of the President eventually becoming directly elected (Q S69). The Campaign against Euro-federalism thought that the creation of the full-time President "further emphasises the new federalist nature of the European Council", claiming that "[t]here is no gathering or meeting of Heads of State and Government in other international contexts which maintains the same chairman or president for several years while the individual national politicians come and go" (p S125). This was a concern expressed in submissions from members of the public: for example Sally DeBono thought that the creation of the President "further removes elected national governments from EU decision-making" (p S130).

4.19. However, others say that since the President will be elected by the heads of government gathered in the European Council, the change arguably enhances their power within the Union. The Coalition for the Reform Treaty stated that "the President will have no executive powers and is the mouthpiece of member states. One could argue that this measure actually constitutes a strengthening of the nation state, as it will improve the functioning of the Council of Ministers, the European institution in which national governments are represented" (p S129). Lord Brittan of Spennithorne told us that the full-time President would not have any more formal powers than the existing rotating President "but he is going to have them for longer", making the full-time President more effective (QQ S352, S354-5). Brendan Donnelly told us that "the new Presidential post was seen by its supporters and opponents as being likely to shift the institutional balance of the Union in a more 'intergovernmental' direction." In his opinion, however, "the powers of the new Presidency seem in the Reform Treaty to be limited to the point of marginality": his/her ability to make a substantial impact on the day-to-day workings of the Union was "more than questionable", and "[e]ven less plausible is the hypothesis that he or she will be able, even if willing, to alter in any significant manner the existing institutional balance of the European Union" (p S132).

What will be the President's role?

4.20. Sir Stephen Wall told us that "different people have different views about what the role of the European Council President should be" (Q S202). According to Mr Nymand Christensen, on behalf of the Commission, "[h]e or she will be responsible for preparing [the European Council], setting the agenda and monitoring the follow-up so far as it is within the remit of what the governments would do" (Q S299). However, "[t]he President will also have a role in the most high-level aspects of the EU's external relations"[26]. The amended TEU sets out that "the President of the European Council shall, at his or her 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" (Article 15, amended TEU; see Chapter 7). During Sir Stephen's time as head of the European Secretariat in the Cabinet Office, 2000-04, the Government saw the President's job "less in terms of the external role" but more in terms of "the setting of a strategy" (Q S202). The Minister told us that he thought "a relatively small part of the President of the European Council's job will be about foreign and security policy" (Q S248).

RELATIONSHIPS BETWEEN THE SENIOR POSITIONS IN THE UNION

4.21. The President of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (see Chapter 7) will both, along with the President of the European Council, have roles in the Union's external representation. Timothy Kirkhope MEP told us that there was "a very clear conflict" between the President of the European Council and the High Representative, which was "going to be a real problem" (Q S346). Professor Wallace was also concerned about the "coordination issues" between the European Council President and the High Representative (Q S175). She said that "[i]f one of the things that we will probably all value is that the European Union should be better at coordinating the right hand and the left hand in whatever policy areas it might be in relation to whatever external interlocutors it might be, we are not doing better in that direction" (Q S178). John Palmer did not think there would be a particular problem, but he admitted that "there could be some significant overlapping" (Q S17). Brendan Donnelly found that the post of European Council President was "subject to an unhelpful sharing of responsibility with the High Representative". He was concerned that the European Council President might enjoy a greater personal prestige than the High Representative, without exercising more real influence (p S132). Lord Brittan of Spennithorne, generally favourable towards the Treaty, told us that the post of High Representative was the part of the Treaty which troubled him the most (Q S355).

4.22. The distribution of international roles between the President of the European Council, the President of the Commission and the High Representative may create confusion for the rest of the world in trying to understand who speaks for the European Union. But some witnesses felt that the High Representative's new roles as Vice-President of the Commission and Chairman of the Foreign Affairs Council (replacing the present rotation among national foreign ministers) would reduce such confusion (see Chapter 7). Graham Avery[27] cautioned that the Treaty would thereby create a new "foreign affairs triangle" (Q C7). Charles Grant[28] thought that this triangular relationship was "a very real worry and concern", although even if it did not work perfectly "it cannot be worse than the current system" (Q C57). In Professor Wallace's opinion, "the relationship of the [Commission] President and the High Representative is going to be quite testing" (Q S183).

4.23. The Commission did not see a problem. According to Jens Nymand Christensen, "it is clear that the texts foresee that the President of the European Council will represent the EU at Heads of State and Government level when we speak about foreign, security and defence matters" (Q S299). The statement that the President of the European Council will represent the Union only "at his or her level" reassures some that there will be no turf-war between the European Council President and the High Representative. Jens Nymand Christensen continued: "In all other matters of EU competence it is the President of the European Commission who represents the EU as it is today. In a way, it is not moving the roles around fundamentally from what the President of the European Commission has today vis-à-vis a rotating President and a more permanent President of the European Council … there will develop a spirit of mutual interest and common understanding and preparations". He told us that "the President of the European Commission is accustomed to working with the Presidents of the European Council, some of them with large personalities, who also play out exactly the role that the future President of the European Council will play, in other words represent next to him the EU in a number of international fora." He said that this system "works amazingly well". Sir Stephen Wall was optimistic that the various personalities could work together, stressing, for example, that the role of the President of the European Council would be to supplement the role of the High Representative in external affairs, not substitute for it or compete with it (Q S206).

4.24. The creation of a full-time European Council President and a High Representative results in a European Union with no fewer than five prominent senior leaders: the President of the European Council, the Head of State or Government of the rotating Presidency of the Council of Ministers, the President of the European Commission, the President of the European Parliament, and the High Representative. Jens Nymand Christensen told us: "I do not subscribe to the idea that the new Treaty in any way leads to further overcrowding or overlapping compared to what we know today". He saw the President of the European Council not as "a supplementary President which did not exist before and who will suddenly be shuffling around trying to get his or her space", but as replacing the rotating six-month European Council presidencies held by the Head of State or Government of the Member State holding the Presidency of the Council of Ministers (QQ S306-7).

4.25. "As far as the relationship between the Commission President and the [European] Council President, in principle as far as the legal requirements and the provisions of the Treaty are concerned, it will be no different from what it is at present", according to Lord Brittan of Spennithorne (Q S355). However, Professor Wallace thought that "the relationship [of the Commission President] with the full-time President of the European Council is also going to be tricky" (Q S183). She said: "If I were President of the Commission I would say—indeed I heard him say it the day before yesterday—that it would take a great deal of talented effort by those involved to overcome the coordination question between the President of the European Council and the President of the European Commission" (Q S175). Professor Simon Hix[29] considered that the full-time European Council President "may undermine the authority of, and most likely conflict with, the Commission President." While the former may have higher prestige than the Commission President, the latter will have considerably more formal policy-making power, in terms of the right to initiate legislation and influence the EU's policy agenda. According to Professor Hix, this means that in a situation of conflict between a European Council President and a Commission President, "the Commission President will invariably win out". Meanwhile, any conflict "will be exacerbated by the fact that the European Council President will be accountable to the governments while the Commission President will increasingly be accountable to the European Parliament". These competing sources of authority mean that "the EU will be in a situation of permanent 'co-habitation'." Professor Hix felt that "[a] potential solution, in the medium-term, would be to fuse the office of the Commission President and the European Council President" (Hix written). Neil O'Brien was alarmed by this prospect, and expressed concern at the failure of the UK Government to rule it out (Q S69). The Commission told us that this proposal was "not a current issue" although "it could return" (QQ S310-1).

4.26. Brendan Donnelly considered that "[t]he new [European Council] President's relationship with the proposed 'team presidencies' will be another source of uncertainty and diffusion of his or her potential influence on the Union's overall decision-making" (p S132). Professor Wallace and John Palmer agreed that this relationship would create a set of coordination issues that needed clarifying (QQ S17, S175). Professor Hix was concerned that the President of the European Council would not have the same political authority as the directly elected Heads of State or Government of the Member States, including the Head of State or Government of the State holding the rotating Presidency of the Council of Ministers, and "is likely to be beholden to the governments of the larger member states or a particular coalition of governments" (p S144). The Minister responded to this point by saying that as the President of the European Council will be elected by the Heads of State or Government, "ultimately that will be the source of [his/her] authority". The Minister thought that the President would not be beholden to the larger Member States because "there is a breakdown of that system whereby one or two States can call all the shots" (Q S252). Professor Peers considered that there was no need to alter the current balance of roles between the European Council and Council chairs, stating that "the European Council President should concentrate on his or her relationship with the Member States' leaders, and his or her external relations role, rather than spend time 'chasing up' the Council Presidencies, which after all are held by elected governments with rather more legitimacy (and, as regards the sectoral Council formations, with greater understanding of detailed issues)" (p S152).

4.27. Elmar Brok MEP made the point that the order in which these appointments were made in 2009 (following ratification of the Treaty and elections to the European Parliament) would be important (Q S346).

Ambiguity about relations between the senior leaders?

4.28. The impact of the Treaty on the relations between the Union's senior leaders is, for some, hard to predict. Timothy Kirkhope MEP told us that "no-one has a complete answer as to how [the relationship between the European Council President and the High Representative] is going to work" (Q S346). According to John Palmer, "there are no clear answers at present to how [the European Council President's relations with the other senior leaders] will function in practice." He told us that this was "something one would expect to be the subject of a subsequent decision by the Council of Ministers" (p S14). Professor Wallace agreed that there remained "a very large number of coordination issues" which needed to be addressed (Q S175). Sir Stephen Wall told us that because the role of the European Council President was "controversial, it has not been possible to define it quite as closely as, I think, the British Government would have liked" (Q S202). Charles Grant thought it "very important that the governments do work out rough job descriptions of the Council President and the High Representative" (Q C57). The Minister agreed that a number of issues still needed to be addressed (Q S252), but he stressed that any decisions would need to be taken by unanimity. He recognised an urgency, saying that "it is absolutely essential [that] before this starts … the exact roles, responsibilities and relationships have to be ironed out in precise detail … we cannot allow the enactment of the Treaty across the European Union and then work out the detail; it has to be nailed down in advance of the commencement of the operation of the Treaty" (Q S252). He told us that "[w]e have agreed, as 27 Member States in the European Union, that this has to be worked through before commencement" (Q S253).

4.29. However, other witnesses suggested that the Treaty included deliberate ambiguity. John Palmer's understanding was that "the heads of government deliberately did not seek to address some of the mechanics of how the institutions will relate to each other … because it is always open to an act of the Council to define a clearer functional answer to the question" (Q S17). Brendan Donnelly considered that many of the institutional provisions were "perhaps deliberately" permissive or tentative, so that their impact would depend on how they are implemented, which would be influenced by personalities and politics (p S131).

4.30. Other witnesses thought that more precision in the Lisbon Treaty about the relations of the senior leaders could not have been achieved. Sir Stephen Wall did not think that it would have been "feasible to define the roles so clearly that [the European Council President and the Commission President] were bound to get on" (Q S204). Lord Brittan of Spennithorne said: "I think all this has to be worked out and that it is complex I do not deny. That it is potentially problematic I do not deny. Is there a better way of doing it than that which is in the Treaty? I cannot think of one" (Q S356). While he was troubled by the role of the High Representative, he considered that "everything depends on the personalities. It can be made to work" (Q S355). He told us: "If I had carte blanche to write the Treaty, I do not think I would have wanted to write into it more provisions which would make it more likely to work than there are at the moment. The extent to which it works is dependent on personalities and working practices rather than any further or different treaty language" (Q S353).

4.31. Graham Avery said that good relations between the Presidents of the European Council and the Commission and the High Representative would be "absolutely essential", adding, "[f]rankly, it depends on the personalities" (Q C7). Charles Grant thought that "a lot depends on the people involved … If the people do not get on well it is not going to work well, however clever the institutional provisions" (Q C53). Elmar Brok MEP also felt that "people set realities", and Sir Stephen Wall considered that "the structures will not deliver the result, the result does depend critically on choosing the right men or women to do those key jobs" (QQ S346, S202). In particular, the choice of President of the European Council would be "critical", because "you could get a situation in which that person saw their role as being principally a role on the international stage, which risks the potential of them competing for space with the High Representative" (Q S205). Professor Wallace put it to us that the result would depend not so much on the written rules, as on evolving practice (Q S160).

4.32. There is another point of view that considers that the Treaty is actually more precise about the roles of the Union's senior leaders than previous Treaties have been. Jens Nymand Christensen, for the Commission, told us that "the texts have been drafted in such a manner as to make it as clear as possible how each of those people will function. … The texts have clearly been drafted with a view to limit any kind of confusion or turf battle" (Q S299).

CONCLUSIONS

4.33. The Lisbon Treaty makes highly significant changes to the European Council, the purpose of which is to make the European Council work better. It will become part of the EU's formal institutional framework and expressly subject, for the first time, to the jurisdiction of the ECJ. It will be given a more explicit leadership role in the EU.

4.34. 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.

4.35. The European Council President will have two broad roles: the primary one of leading the European Council, and also ensuring the external representation of the Union on issues concerning the CFSP at his or her level and without prejudice to the High Representative.

4.36. Concerns have been raised about the relationship between the European Council President and the other senior leaders of the Union, particularly the High Representative, the rotating presidency of the Council of Ministers, and the President of the Commission. There is little in the Lisbon Treaty itself to indicate how these relationships will work; only experience will show. While some progress towards clarifying this may be made before the Treaty's provisions come into operation, much will depend on practice.

The impact of the Treaty on the Council of Ministers

MEMBERSHIP AND FUNCTION

4.37. The composition of the Council of Ministers—ministers of each Member State meeting in different configurations according to the subject matter—is unchanged by the Lisbon Treaty. Its simplified remit is to "exercise legislative and budgetary functions" jointly with the Parliament, and "carry out policy-making and coordinating functions as laid down in the Treaties" (Article 16, amended TEU)[30].

THE ROTATING COUNCIL OF MINISTERS PRESIDENCY

4.38. Meetings of the Council of Ministers will continue to be presided over by the ministers of each Member State in turn—the rotating Council of Ministers Presidency (new Article 16, TEU). The exception is the Foreign Affairs Council, which will be chaired by the new High Representative of the Union for Foreign Affairs and Security Policy (see Chapter 7). The current informal arrangement whereby Member States work in team Presidencies, cooperating in groups of three successive six-month presidencies to set Council priorities, is reasserted in a Declaration of the IGC (Declaration on Article 9c(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council), but not in the Treaties themselves. This cooperation is meant to encourage continuity and strategic planning across the six-month Presidencies.

VOTING IN THE COUNCIL OF MINISTERS—EXTENSION OF QUALIFIED MAJORITY VOTING

4.39. Qualified majority voting (QMV) becomes the default voting method[31] in the Council of Ministers (Article 16 TEU). The current default voting method is simple majority. Sensitive areas like tax and social security remain decided by unanimity, but significantly, a number of areas move from decision in the Council of Ministers by unanimity to decision by QMV. These include policy areas such as justice and home affairs, a number of matters relating to foreign and defence policy, plus certain internal matters including the rules governing the nature and composition of the Committee of the Regions and the Economic and Social Committee (Article 300 TFEU). The number of extensions is somewhere between 40 and 60 depending on interpretation.[32] A number of moves to QMV in policy-making, such as decisions on EU cultural programmes, EU funding of humanitarian aid and most of police and judicial cooperation in criminal matters (subject to opt-outs and emergency brakes), are discussed in the other portions of this Report (see Chapters 8, 7 and 6 respectively).

4.40. The movement of policy areas from unanimity in the Council of Ministers to QMV is often discussed in terms of the loss of national vetoes and the ability of other Member States to out-vote the UK. Such views were expressed in much of the evidence we received from the general public: for example Margaret Boardman wrote that "there is more chance of EU laws being imposed on Britain regardless of whether our Government, Parliament and the people all oppose them" (p S120) (see also D. Adams p S119, Sally DeBono p S130).

4.41. Others took a different view. Brendan Donnelly said that, as a result of the Lisbon Treaty reforms, "some streamlining of decision-making (with its consequent risk that the United Kingdom or other countries may be outvoted) may be expected within the Council." He stressed, however, that "even in matters theoretically susceptible of majority voting the Council normally tries to proceed by consensus, particularly to meet the wishes of a large country such as the United Kingdom", meaning that the UK "is more likely to be the beneficiary of streamlined decision-making over time than its victim" (p S132).

4.42. Other witnesses also believed that the importance of the moves to QMV should not be overstated. Professor Chalmers told us that the extension of QMV "is largely in single market areas and some trade policy", and that "the UK has largely reserved the right to opt into [or out of] the bits which are significant" (Q S2; on the area of freedom, security and justice see Chapter 6). The European Parliamentary Labour Party agreed, saying that "of the 50 extensions of majority voting, most are in areas that are either technical or where Britain has an opt-in/out" (p S141). "There will not be a revolutionary change", according to John Palmer, because the most important impact of QMV has been to assist the process of reaching consensus in Council, and "[t]he actual occasions where people have been voted or out-voted have been precious few". The extension of QMV, therefore, would continue to add "a significant pressure to achieve a flexible consensus" (Q S18).

4.43. Business for New Europe and the Coalition for the Reform Treaty noted that "majority voting is sometimes perceived in the UK as something to be feared" (p S129; p S122). Sir Stephen Wall told us that, with the extension of QMV, "occasionally you might lose a vote, but actually the British interest [is] better served by having more majority voting", and that "insofar as majority voting is extended, it seems to me it is extended in areas where it is in our interest" (Q S213). The European Parliamentary Labour Party noted that "the veto is a double edged sword: if you have one, so does everybody else". It thought that "[t]he handful [of extensions of QMV] that are politically important such as urgent humanitarian aid operations, aspects of energy policy and cooperation in the event of natural disasters are all where it is in Britain's interests not to be blocked by the vetoes of others" (p S141). The ability of the UK to overcome obstructions from other Member States and "to push its political agenda" was also highlighted by Business for New Europe (p S122; see also p S129). The Government, in its White Paper on its approach to the IGC, stated that "[t]he Government supports QMV to unlock decision-making in the right areas where it is in Britain's interest".[33]

VOTING IN THE COUNCIL OF MINISTERS—REFORM OF QUALIFIED MAJORITY VOTING

4.44. The Lisbon Treaty makes significant changes to the rules for calculating a qualified majority. However, the current rules will continue to apply exclusively until 31 October 2014, and between 1 November 2014 and 31 March 2017 any member of the Council of Ministers can request that a vote revert to these rules, meaning that the new rules only take full effect from 1 April 2017. Table 2 shows the new arrangements (detailed in Article 205, TEC; Article 16, amended TEU; Article 238, TFEU; Protocol on transitional provisions).

TABLE 2

Changes to qualified majority voting

Current Treaties—used exclusively until 31 October 2014	The double majority QMV system—used from 1 November 2014 and exclusively from 1 April 2017
For a proposal from the Commission to pass:
at least 255 votes (out of 345, meaning 73.9%),
representing a majority of Council members (one member one vote) (i.e. at least 14 Member States, currently),
and representing at least 62% of the Union population	For a proposal from the Commission or High Representative to pass:
votes from at least 55% of Council members (one member one vote) (i.e. at least 15 Member States, currently),
and representing at least 65% of the Union population
For other proposals to pass:
at least 255 votes (out of 345, meaning 73.9%),
representing two-thirds of Council members (one member one vote) (i.e. at least 18 Member States, currently),
and representing at least 62% of the Union population	For other proposals to pass:
votes from at least 72% of Council members (one member one vote) (i.e. at least 20 Member States, currently),
and representing at least 65% of the Union population
Where not all members take part[34], for a proposal to pass it needs the same proportion of weighted votes (73.9%) and the same proportion of the number of Council members (majority/two thirds) and the same percentage of the population of the Member States concerned (62%) of the members taking part	Where not all members take part, for a proposal to pass it needs the same proportion of votes (55%/72%) and the same percentage of the population of the Member States concerned (65%) of the members taking part

The blocking minority

4.45. A blocking minority is simply a group of Member States whose votes prevent other Member States from finding the majority necessary to pass a proposal.

4.46. Under the current Treaties, there are no formal rules regarding blocking minorities. If all the Member States were participating, a group of Member States would require to include one of the following to prevent a proposal from passing: (i) 91 of the Council's 345 votes, (ii) a majority of Council of Ministers members (i.e. 14 Member States, currently) or for non-Commission proposals over one third of Council of Ministers members (i.e. 10 Member States, currently), or (iii) Member States representing more than 38 per cent of the population of the Union. At present, this means that the minimum number of Member States that can block a measure is three, on the basis of their population[35].

4.47. The Lisbon Treaty includes rules regarding the formation of a blocking minority (Article 16(4), amended TEU; Article 238(3), TFEU). Under the new system, if all Member States are participating, a blocking minority must include "at least four Council Members" representing more than 35 per cent of the population of the Union. This is to prevent any three of the UK, Germany, France and Italy being able to block a proposal (any three of these States would represent more than 35 per cent of the Union's population); a fourth State would be needed, without which "the qualified majority shall be deemed attained", even if the population requirement (65 per cent) were not met. The requirement for at least four Member States would remain regardless of future demographic shifts in Member States.

The UK's position under the new QMV rules

4.48. Voting weight is not everything. Many observers consider the UK's influence greater than its technical voting weight. Professor Wallace told us that "the numerical notion of voting" was "really not as important … as the public debate would suggest" (Q S175).

4.49. Appendix 5 shows how the UK's share of the overall voting weight and the UK's share of a blocking minority will change under the Lisbon Treaty's new QMV rules. These calculations are based on Eurostat data as of 1 January 2006 for the purpose of illustration. The Lisbon Treaty is silent as to the data to be used in assessing the population of the Union for the purposes of future voting in the Council of Ministers, or the frequency with which such data are to be updated. This question may be contentious, as different data sets will apply different standards as to who should be counted (the issue of migration may prove controversial here).

4.50. As is explained in Appendix 6, arguably the most important term for calculating the UK's share of the voting weight under the current voting rules is the share of the votes that each Member State holds—in the UK's case, 8.4 per cent. Under the Lisbon Treaty, the important term will be the share of the population that each Member State represents—in the UK's case (according to Eurostat data), 12.3 per cent. In practice, therefore, the UK's voting power will increase from 8.4 per cent (UK share of current allocation among Member States) to 12.3 per cent (UK share of population).

4.51. The UK's share of the minimum blocking minority (i.e. the blocking minority including the smallest number of Member States required to back up the UK) will increase from 31.9 per cent (in terms of weighted votes) or 32.3 per cent (in terms of population) under the current Treaties to 35 per cent (in terms of population) under the Lisbon Treaty. The minimum blocking minority will include four Member States rather than three.

4.52. Under the Lisbon Treaty, there will be one further complication to Council of Ministers voting: a procedure which is the successor to the "Ioannina mechanism", which allowed a minority of countries smaller than that needed for a blocking minority to suspend a decision to allow the Council of Ministers further time to find an acceptable solution. Declaration 4 of the IGC sets out the agreement of the Member States to adopt an amended version of this mechanism[36].

4.53. The double majority system allows for simpler decision-making, and means that a larger number of combinations of Member States can constitute a qualified majority than currently. If more countries join the Union, there will be no need to renegotiate voting weights. Furthermore, the double majority system takes account of the double nature of the Union: a Union of Member States and of European peoples.

THE IMPACT OF THE REFORMS TO QUALIFIED MAJORITY VOTING

Passing legislation more easily

4.54. Whether the change in the method of calculating a qualified majority to double majority voting is interpreted as a positive or negative change depends to a significant extent on one's opinion of European legislation. In the words of Neil O'Brien, "[i]f you want … more EU legislation, then this Treaty is a good idea. If you are cautious about that, then this Treaty is perhaps not such a good idea" (Q S72). Andrew Duff MEP told us that "[t]he new Treaty will much enhance the Union's capacity to act by increasing the efficiency and effectiveness of the institutions and decision-making mechanisms. Armed with the Treaty, the EU will be able to face its new global challenges and address the issues which matter most to citizens—such as climate change, energy security, international terrorism, cross-border crime, asylum and immigration" (p S135). Neil O'Brien agreed that the new voting system "makes it considerably easier to pass legislation" (Q S71), and asked "do we think that the EU needs to pass even more legislation than it does at the moment?" Lord Leach of Fairford[37] thought it was a question of "how you deal with this flood of legislation" (Q S75).

Is the change in rules significant?

4.55. Professor Peers thought that the new voting system would only "modestly" increase the ease of adopting legislation, and thought that "[t]here did not seem any pressing reason for this change … but neither would the new system appear to constitute a massive change in the nature of decision-making by qualified majority" (p S152). The difference between the old QMV system and the new QMV system is "not very significant" according to Professor Chalmers (Q S18); Lord Brittan of Spennithorne agreed (Q S374). Professor Hix wrote that "the difference between the two sets of rules is relatively minor because over 90 per cent of coalitions that commanded a majority under the Nice [current QMV] rules would also command a majority under the Reform Treaty rules" (p S144). Professor Wallace told us that the Council of Ministers prefers to take decisions by consensus, so explicit voting occurs on only a minority of issues, and does not tell us much about how QMV currently operates in practice. In her opinion, "[t]o the extent that it really bites, it bites in a much more implicit way, long before decisions are formally adopted … If that is right, then the shift to the different majority voting would probably have a very small impact on the way things happen" (Q S175).

Is the new system an improvement?

4.56. The majority of evidence that we heard favoured the new QMV rules. Lord Leach of Fairford told us that "it is hard to object to the principle of recognising population in the voting system" (Q S75), and Business for New Europe and the Coalition for the Reform Treaty called the move to make voting proportionate with population a "much needed reform" (p S122; p S129)[38]. Lord Brittan of Spennithorne's instinct was "wholly…that the change in the arrangements is a beneficial one" (Q S380). Sir Stephen Wall thought the new system was better than the old QMV: "This is a logical, balanced and fair system" (Q S213). The double majority system represented an improvement in comprehensibility in comparison to the current triple majority QMV (at least to specialists, if not to the general public) (p S132). According to the European Parliamentary Labour Party (EPLP), the new system "will deliver fairer and more efficient decision making" (p S140). The National Farmers' Union welcomed it as "simpler … fairer and more transparent" (p D15). The fact that the change would mean the Union could enlarge "without a further Treaty and institutional horse-trading on the weight each new member will have in the Council of Ministers" was an added benefit (p S122). While some have criticised the new voting method for being inequitable (see Professor Hix, p S145), Lord Brittan of Spennithorne told us that "the change in the voting arrangements, which frankly give more power to the larger countries and less to the smaller ones, makes it more difficult for [new Member States] to be trouble makers" (Q S361).

4.57. The EPLP added that "basing votes in Council on population will increase Britain's share of the votes from 8.5% to 12%" (p S140) (see Appendix 6). This was reinforced by the Minister who told us that the Government is "really pretty content with the new system of moving away from qualified majority voting to double majority voting" (Q S260). In his view, "the UK will be one of the main beneficiaries because … we are going to a situation where our population of 60.6 million means that, instead of having an eight per cent share of the vote in the Council, we go to a 12 per cent share" (Q S260). The National Farmers' Union thought that the move "will give more clout to [populous] countries such as Germany and the UK" (p D15). Lord Brittan of Spennithorne told us that the slight difference in the voting system would be "wholly to Britain's advantage because we will have a higher proportion of the votes" (p S14; Q S374).

The timetable for transition to full use of double majority voting

4.58. The possibility for Member States to request that the old QMV rules be used for votes before 1 April 2017 means that the new rules will not apply exclusively for almost a decade after the Treaty's ratification. John Palmer thought that this delay was "greatly to be regretted", and Professor Chalmers thought that the timetable was "significant", and suggested that the new rules might be overtaken by events (p S14, Q S18).

The blocking minority

4.59. Different interpretations of the figures are possible. A report by Open Europe states that "The UK stands to lose nearly 30 per cent of its ability to block EU legislation in the Council" (Open Europe: A guide to the constitutional treaty, second edition, February 2008). According to Neil O'Brien (Director of Open Europe), where the UK Government wishes to assemble a blocking minority, its position "is going to be jeopardised under the new voting system because it will be much harder for us to block legislation" (Q S71). Professor Peers agreed, arguing that the new blocking minority rule "constrains the ability of the UK to participate in blocking minorities (although of course the rule will work to the UK's favour when it is participating on the side of the majority)" (p S152).

4.60. On the other hand, Business for New Europe, the Coalition for the Reform Treaty and the Minister told us that the UK's share of a blocking minority will increase from 32 per cent to 35 per cent (p S122; p S129; Q S260). Sir Stephen Wall told us that the current minimum of three Member States to form a blocking minority was "a mistake" because "it is not very often that we are in league with two other large Member States in wanting to block something" so he did not think the change in the minimum to four Member States "is going to be significant in terms of undermining British interest to block" (Q S213). It was the Government's view that "this new system will give us a greater opportunity, where we so wish, to gather a blocking minority" (Q S261). The Minister regretted that "sometimes the conversation about Europe is trapped in a dialogue about a double negative, that, 'Europe is a real threat, but don't worry, we're protecting you from it'" (Q S263).

The "Ioannina-II" mechanism

4.61. Professor Chalmers thought the use of the "Ioannina-II" mechanism from 2017 would be significant. He told us that it would mean that "states representing 19.25 per cent of the population can block legislation and, if one thinks that a lot of the time we will want to be deregulating legislation, that is a very small blocking minority…It does not actually help the UK" (Q S18).

4.62. However, Professor Wallace told us that "the Ioannina decision is useless in practice" and in practice "not very interesting … I would guess the same is likely to be true with the version that we now have there … So it has a symbolic importance, but is probably … not very important" (Q S175).

4.63. Sir Stephen Wall told us that the mechanism was only rarely and briefly invoked (Q S213). He thought that the new mechanism "serves a political purpose here and now, and will not actually be invoked very much in practice" (Q S214). He pointed out that the Treaty does not specify how much time has to be allowed to try and reach agreement after the invocation of the Ioannina mechanism.

4.64. The Minister described the Ioannina mechanism as "a protection" (Q S264).

TRANSPARENCY IN THE COUNCIL OF MINISTERS

4.65. The Lisbon Treaty includes a transparency clause (new Article 16(8) of the amended TEU): "The Council shall meet in public when it deliberates and votes on a draft legislative act." Each meeting of the Council of Ministers will be divided into two parts, dealing separately with legislative acts and non-legislative activities, the first half only being public.

4.66. The European Parliamentary Labour Party called this change a "long overdue reform that was driven by the 2005 UK Presidency" (p S139). Federal Union considered that the provision could, if applied properly, "make a great deal of difference to the way in which the European Union functions." It could enable national parliaments to hold their governments to account more effectively for their actions in the Council of Ministers; could oblige national governments to explain and justify their actions more completely, contributing to public understanding; and might make national governments less willing to support proposals that they could not justify to their voters (pp S142-143).

4.67. Professor Peers said that the move was "welcome" and "should be implemented by the publication of the proceedings of the Council's public meetings in a form of Hansard (which could be online only)" (p S152). Federal Union felt that not just a final vote but "every stage of the legislative procedure should be open to scrutiny", especially all amendments to legislative proposals (p S142).

4.68. However, Lord Brittan of Spennithorne regretted the move, considering that "the position in which there was haggling and negotiation rather than the necessity to take up public positions was on the whole a good arrangement" (Q S376).

CONCLUSIONS

4.69. The extension of the use of qualified majority voting (QMV) to more than 40 new areas is a significant change. Qualified majority voting becomes the default voting method in the Council of Ministers. Where there is a move from unanimity to QMV, if the UK wishes to block legislation it will have to construct a blocking minority rather than use a veto; the UK's share of a blocking minority goes from 32 per cent to 35 per cent. Equally, the extended use of QMV may help to advance UK interests in some cases. The extension of QMV, because it does not depend on consensus, may result in faster decision-making.

4.70. The new system for calculating a qualified majority is more equitable and takes more account of population than the current QMV rules, and the revision is significant. The UK's voting weight increases from 8 per cent to 12 per cent.

4.71. The provision requiring the Council of Ministers to meet in public when it legislates is important. The Council of Ministers will continue to meet in private when it is discussing and voting on non-legislative matters. We believe that the proceedings of the public meetings of the Council of Ministers should be recorded and published for public consumption.

The impact of the Treaty on the European Commission

FUNCTION OF THE COMMISSION

4.72. Under the current Treaty provisions, the European Commission's task is to "ensure the proper functioning and development of the common market", by ensuring that the Treaties are applied, formulating recommendations and delivering opinions, participating in the shaping of measures taken by the Council and European Parliament, and exercising the powers conferred on it by the Council for the implementation of the rules the Council lays down. Under the TFEU, the Commission "shall promote the general interest of the Union and take appropriate initiatives to that end". It shall ensure the application of the Treaties, oversee the application of the law of the Union under the supervision of the Court of Justice, execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down the in the Treaties, and ensure the external representation of the Union in cases not otherwise provided for in the Treaties. The Commission will continue not to represent the Union's Common Foreign and Security Policy, which will be in the hands of the High Representative of the Union for Foreign Affairs and Security Policy (Article 17 of the amended TEU) (see below).

4.73. The Commission continues to have control of annual and multiannual programming, and maintains its near-monopoly on the right of initiative in Union legislation (Article 17 of the amended TEU)[39].

4.74. Professor Chalmers noted that the Commission "has acquired a monopoly of initiative in new areas, notably what were previously Third Pillar areas", and David Heathcoat-Amory MP also saw the expansion of the Commission's role into areas which are currently intergovernmental as significant (QQ S28, S88). The Commission also noted that its "right of initiative on most areas of policy in the EU" was preserved in the Treaty (Q S298). Mr Heathcoat-Amory regretted this. He considered that "any self-respecting, democratic institution, as the EU sometimes holds itself out as, should not tolerate a situation whereby a group of non-elected people meeting in private have a sole right to initiate legislation or the repeal of legislation" , and that this situation ought to have been changed in the Treaty (QQ S88, S90)[40].

MEMBERSHIP OF THE COLLEGE OF COMMISSIONERS

4.75. Currently, the European Commission is run by a College of Commissioners, made up of one Commissioner nominated by each Member State, including a President of the Commission. There will be one more five-year College with this membership, in post from 2009 to 2014. The only change to the membership of this College will be that the High Representative of the Union for Foreign Affairs and Security Policy will be a Commissioner and one of the Commission Vice-Presidents (Article 17 of the amended TEU).

4.76. From 1 November 2014, the number of Commissioners will reduce to two-thirds of the number of Union members (so, in an EU of 27 Member States, to a College of 18). The Commissioners will be allocated to Member States on a system of rotation, meaning that each Member State will not be represented in the College in one Commission out of every three (five years out of every 15). The effect of enlargement to a number not divisible by three is not spelled out. However, the Treaty specifies that the European Council can decide at any time (by unanimity) to change the number of Commissioners (Article 17 of the amended TEU).

4.77. This rotation rule means that the choice of person for the post of High Representative will be limited by their nationality. An effective High Representative may have to step down after one term because his or her nationality is due to be rotated out. The same will apply to the Commission President.

4.78. An IGC declaration (Declaration on Article 9d of the Treaty on European Union) states that when the College no longer includes representatives of each Member State, "the Commission should pay particular attention to the need to ensure full transparency in relations with all Member States", by liaising, sharing information and consulting with all Member States. Furthermore, "the Commission should take all the necessary measures to ensure that political, social and economic realities in all Member States … are fully taken into account."

A more executive Commission

4.79. The current arrangement of one Commissioner per Member State is, according to the Government, "unwieldy" and "unnecessary" because "[t]here are not 27 jobs to do" (Q S240). The Minister for Europe told us that the College may gain significantly increased influence "by being smaller and more effective" (Q S240). John Palmer and the European Parliamentary Labour Party both thought the reduction in the College's size should improve its cohesion (p S15; p S141), while the Coalition for the Reform Treaty and Business for New Europe called the reduction "welcome" because "the college of Commissioners has to be a reasonable size to function" (p S130; p S122). The National Farmers' Union thought the reduction would contribute to the coherence of Commission policies (p D15). Lord Brittan of Spennithorne considered that a smaller College would be more efficient (Q S350). David Heathcoat-Amory MP agreed that "small Commissions probably mean more powerful Commissions because they will be less influenced by national influences, which are supposed not to exist but we know that they do". He thought that "a smaller, more executive body with wider powers is envisaged" (Q S88).

The loss of the UK Commissioner—some of the time

4.80. The United Kingdom will not have a Commissioner in the College for five out of every 15 years, under the rotation rules of the Lisbon Treaty. Neil O'Brien felt that national interests would be less strongly represented "because it will be more difficult for [the UK] in times that it does not have a Commissioner to find out what is going on in the Commission". He did not accept that the proposal would reduce bureaucracy in the European Union, saying that "[t]here are 65,000 people working for the EU and its agencies now. Removing nine of them will not make a significant dent in that bureaucracy. All it will do is reduce our input over the process" (Q S90). Professor Chalmers considered that the lack of a UK Commissioner "will affect perceptions of the Commission very strongly" (Q S39), while Professor Peers agreed that the reduction of Commissioners "will create a perception that the Member States without a Commissioner are not 'represented' on the Commission at any given point and that therefore the Commission (further) lacks legitimacy, even though the Commissioners are supposed to be independent of Member States and the Member States' governments and electorates will still be represented fully in the Council and the EP" (p S153).

4.81. Lord Brittan of Spennithorne, the UK Commissioner 1989-1999, told us that "there will be a loss". A Commissioner was expected to inform the College if a proposal would be particularly disastrous or beneficial for his or her Member State, and to explain to the country what the Commission and EU were up to. "If there is not a Commissioner there will not be a single figure of the same authority to do that in that way". According to Lord Brittan, "it would be ridiculous to pretend that there will not be a genuine loss to this country, as to every other country, when we do not have a Commissioner" (Q S366). He added that it would be helpful if the UK were not the first big Member State to be without a Commissioner, and that he did not think the advantages of a smaller Commission would be outweighed by the disadvantage of being without a Commissioner at times (Q S368).

4.82. Sir Stephen Wall thought that having a Commissioner from each Member State created a "danger of those commissioners being seen to be the national representative in Brussels", which was "not what the system is designed to be" (Q S222). He thought that "a smaller Commission will have greater regard for their duties as Commissioners with responsibility for the interests of the Union as a whole". He conceded that there was a "potential cost" of not having a UK Commissioner at certain points, but equally he considered that "successive British Commissioners have actually taken their responsibilities to the Commission, as opposed to the Government from which they came, rather seriously". He told us: "I do not myself see that there is a significant British interest that will be lost if on occasion there is not a British Commissioner". The European Parliamentary Labour Party felt that "[b]eing without a commissioner for one term in three is better than always having a member of an oversized and unwieldy Commission" (p S141).

4.83. Professor Wallace thought the Lisbon Treaty's provisions regarding the eventual membership of the College "a kind of fudge"; they were "not clear" and it was possible for them to be rescinded. She told us that "[w]e are not out of the woods on the membership of the college" (Q S183).