E.U. Law_Course 8_ E.U.

Law
The Council is one of EUs decision-making body together with the Parliament. Like the European
Parliament, the Council was set up by the founding treaties in the 1950s. It represents the
governments of the member states, and its meetings are attended by one minister from each of the
EUs national governments.
Which ministers attend which meeting depends on what subjects are on the agenda. If, for example,
the Council is to discuss environmental issues, the meeting will be attended by the Environment
Minister from each EU country and it will be known as the Environment Council.
The EC Treaty refers to the Council; many commentators refer to the Council of Ministers.
However, in November 1993, the Council chose to rename itself the Council of the European
Union.
Due to the entering into force of the Treaty of Lisbon, the role of the Council remains mostly
unchanged. It continues to share legislative and budgetary prerogatives with the Parliament and
maintains the central role regarding comon foreign and security policy (CFSP) and coordination of the
economic policies.
The essential change brought by the Lisbon Treaty refers to the decisional process. Firstly,
the decisions of the Council are now taken by qualified majority vote, except the cases in
which the treaties provide another procedure, like the unanimous vote. In practice, this means that
the qualified majority vote has been extended to numerous fields of action (for example, immigration
and culture).
In 2014, a new voting method will be introduced: double majority vote. The legislative propositions
will be adopted by the Council by a vote expressing not only the majority of the EU member states
(55%), but the one of the EU population also (65%). This type of vote will reflect the double
legitimacy of the EU a union of people and nations, at the same time and will lead to consolidating
the transparency and efficiency of the law-making. It will be completed by a new mechanism, similar
to the Ioannina compromise, which will allow a small number of member states (close to the
blocking majority) to manifest their opposition towards a decision. In this kind of situation, the Council
will have to do all it possibly can to obtain, in a reasonable time range, a satisfying solution for both
parts
The EUs relations with the rest of the world are dealt with by the General Affairs and External
Relations Council. But this Council configuration also has wider responsibility for general
policy issues, so its meetings are attended by whichever Minister or State Secretary each
government chooses.
Altogether there are nine different Council configurations:

General Affairs and External Relations

Economic and Financial Affairs (ECOFIN)
Justice and Home Affairs
Employment, Social Policy, Health and Consumer Affairs
Competitiveness (Internal Market, Industry and Research)
Transport, Telecommunications and Energy
Agriculture and Fisheries
Environment
Education, Youth and Culture

Nevertheless, the Council remains one single institution.

Each minister in the Council is empowered to commit his or her government. In other words, the
ministers signature is the signature of the whole government. Moreover, each minister in the Council
is answerable to his or her national parliament and to the citizens that parliament represents. This
ensures thedemocratic legitimacy of the Councils decisions.
Composition
The Council consists of members of the governments of the Member States authorised to
commit the government of that Member State. The Council is therefore made up of
politicians from the Member States who are authorised to bind the Member State they
represent.
The membership will vary according to the matter under discussion and specialised Council
meetings may have special titles:
The

General

Affairs

Council,

in

which

the

foreign

ministers

participate,

deals

with institutional andpolicy issues.

The Council of Economic and Finance Ministers (ECOFIN) meets monthly, and covers
the abolition of fiscal barriers and the coordination of the economic policies of the Member
States.
Agriculture ministers, transport ministers, and so forth, meet to consider policy and
legislation in their areas of responsibility.
The President of the European Commission, although not a member of the Council and not
entitled to vote, will, in practice, attend these meetings, or another Commissioner may
attend on his behalf.
Although Member States are normally represented by the senior minister in each
department, this may not always be possible and there are occasions when Council
meetings comprise ministers of different levels of seniority.
President of the Council
The office of President has to be held in turn by each Member State for a period of six
months in the order decided by the Council acting unanimously.
The President is responsible for preparing the agenda for Council meetings, so that holding
the presidency provides an opportunity for Member States to ensure that issues that are of
importance to them are placed at the top of the agenda.

There is also an element of competition between Member States, so that success or failure
of a presidency will, to some extent, be judged by the volume of legislation passed during
that six-month period.
Council of European Union meetings are normally convened by the country holding the
presidency. In some cases, however, the Commission, or another Member State, may take
the initiative in convening a meeting.
The government of the Member State holding the presidency is primarily responsible for
arranging and chairing ministerial meetings of the Council and of its subcommittees.
It also has to attempt to gain support among the other Member States for new initiatives,
formaintaining their momentum once they are launched and for representing the Councils
views to the other institutions.
The presidencys control of the agenda allows it considerable scope to change and affect the
pace of policy changes in the European Union. Achievement of the policy goals set by the
presidency will depend to a large extent on its ability to persuade the other Member States
to go along with new initiatives, often by a process of trade-offs and mutual concessions in
other, sometimes quite unrelated, policy areas.
The General Secretariat
The Presidency is assisted by the General Secretariat, which prepares and ensures the smooth
functioning of the Councils work at all levels.
The General Secretariat is also High Representative for the Common Foreign and Security
Policy (CFSP), and in this capacity it helps the Council to draft and implement political
decisions.
It also engages in political dialogue, on the Councils behalf, with non-EU countries.
The Secretary-General is assisted by a Deputy Secretary-General in charge of managing the
General Secretariat.
Functions
According to the Treaties, the main powers of the Council are the following:
1. it exercises the legislative power, together with the European Parliament, by adopting normative
acts which are compulsory;
2. it ensures the coordination of the general economic policies of Member States in order to
accomplish the proper functioning of the economic and monetary union;
3. it exercises the budgetary power, sharing it with the European Parliament;
4. it concludes, in behalf of the European Union, the international agreements with other States or
international organizations;

5. it ensures the coordination of the actions of Member States and it takes the necessary measures in
the field of judicial and police cooperation in criminal matters;
6. it defines and implements the Common Foreign and Security Policy, in the light of the guidelines laid
down by the European Council.
Finally, it should be made the difference between the Council of the European Union or the European
Council, which are two institutions of the European Union, and the Council of Europe.
Thus, the Council of Europe is an international political organization outside the European Union, which
deals with education, culture and above all the protection of human rights. It had been created in
1949 by the London Treaty on the Statute of the Council of Europe. It now has 47 Members which are
European countries that have agreed to respect and protect the human rights and the fundamental
freedoms. All the Member States of the European Union are also members of the Council of Europe.
In 1950, the European Convention on Human Rights and Fundamental Freedoms had been adopted
within the Council of Europe. According to the provisions of the Lisbon Treaty, the European Union
itself will accede to the European Convention on Human Rights and Fundamental Freedoms.
The main bodies of the Council of Europe are as follows:
- the Committee of Ministers, which is the decision-making body of the organization, composed of the
47 Foreign Ministers of Member countries;
- the Parliamentary Assembly, composed of 636 members, namely 318 representatives and 318
substitutes, from the national parliaments of Member countries.
The function of the Council is set out in TFEU in very broad terms:
a) to ensure coordination of the general economic policies of the Member States;
b) to have power to take decisions.
The Council has six key responsibilities:
1.

To pass European laws. In many fields it legislates jointly with the European Parliament.

2.

To co-ordinate the broad economic policies of the member states.

3.

To conclude international agreements between the EU and one or more states or international

organisations.
4.

To approve the EUs budget, jointly with the European Parliament.

5.

To develop the EUs Common Foreign and Security Policy, based on guidelines set by the

European Council.
6.

To co-ordinate co-operation between the national courts and police forces in criminal matters.

1. Legislation
Much EU legislation is adopted jointly by the Council and Parliament (Treaties decision-making). As a
rule, the Council only acts on a proposal from the Commission, and the Commission normally has
responsibility for ensuring that EU legislation, once adopted, is correctly applied.
2. Co-ordinating the economic policies of member states
The EU countries have decided that they want an overall economic policy based on close co-ordination
between their national economic policies.
This co-ordination is carried out by the economics and finance ministers, who collectively form
the Economic and Financial Affairs (ECOFIN) Council.
3. Concluding international agreements
The Council concludes, on behalf of the Community and the Union, international agreements
between the EU and one or more states or international organisations.
Each year the Council concludes (i.e. officially signs) a number of agreements between the European
Union and non-EU countries, as well as with international organisations.
These agreements may cover broad areas such as trade, co-operation and development or they may
deal with specific subjects such as textiles, fisheries, science and technology, transport.
In addition, the Council may conclude conventions between the EU member states in fields such as
taxation, company law or consular protection. Conventions can also deal with co-operation in the field
of Justice and Home Affairs
4. Approving the EU budget
The EUs annual budget is decided jointly by the Council and the European Parliament.
5. Common Foreign and Security Policy
The Council defines and implements the EUs common foreign and security policy, based on
guidelines set by the European Council.
The member states are working to develop a Common Foreign and Security Policy (CFSP). But foreign
policy, security and defence are matters over which the individual EU member states retain
independent control. They have not pooled their national sovereignty in these areas, so Parliament

and the European Commission play only a limited role here. However, the EU countries have much to
gain by working together on these issues, and the Council is the main forum in which this intergovernmental co-operation takes place.
To enable the EU to respond more effectively to international crises, the European Council (at the
Helsinki summit meeting in December 1999) decided that the EU would create a Rapid Reaction
Force of up to 60 000 military personnel that could be deployed within 60 days and kept in operation
for at least a year.
This will not be a European army. The personnel will remain members of their national armed forces
and under national command, and their role will be limited to carrying out humanitarian, rescue,
peacekeeping and other crisis management tasks.
To provide political control and strategic direction in a crisis, the European Council (Nice, December
2000) decided to establish new permanent political and military structures within the Council of
the European Union. These new structures are:

the Political and Security Committee (PSC)

the European Union Military Committee (EUMC) and

the European Union Military Staff (EUMS), composed of military experts seconded to the
Council Secretariat by the member states.
The European Union Military Staff is under the military direction of the EUMC, which it assists.
In 2002, two agencies were set up to carry out specific technical and scientific tasks for the Common
Foreign and Security Policy. They are:

the European Institute for Security Studies (www.iss-eu.org), based in Paris, France;

the European Union Satellite Centre (www.eusc.org), based in Torrejn de Ardoz, Spain.
6. Justice and Home Affairs (JHA)
Drugs, terrorism, international fraud, trafficking in human beings and the sexual exploitation of
children are all problems of great concern to European citizens. They are cross-border criminal
activities, and only cross-border co-operation can tackle them effectively. If Europe is to do so, and to
give all its citizens equal access to civil justice throughout the EU, then the national courts, police
forces, customs officers and immigration services of all EU countries have to work together.
They have to ensure, for example,

that a court judgement delivered in one EU country in a divorce or child custody case is

recognised in all other EU countries;

that the EUs external borders are effectively policed;
that customs officers and police exchange information on the movements of suspected drugs

traffickers or people smugglers;

that asylum seekers are assessed and treated in the same way throughout the EU, so as to
prevent asylum shopping.

The Council co-ordinates the actions of member states and adopts measures in the area of
police andjudicial co-operation in criminal matters.
THE LUXEMBOURG ACCORDS
The Accords, or the Luxembourg Compromise, were the result of an impasse between France and the
other Member States in relation to farm prices in 1965. The decision had to be determined, under the
Treaty, by a qualified majority vote. The French insisted on the right to secure a unanimous decision in
cases such as this, where a vital national interest was at stake. The other Member States could not
agree. France then remained absent from all but technical meetings of the Council for seven months,
and important decision-making in the virtually drew to a halt. The Accords were negotiated in a
reconvened meeting of the Council in January 1966. The three points that emerged from this meeting,
as far as voting procedures are concerned, were as follows:
1. where, in the case of decisions which may be taken by majority vote on a proposal of the
Commission, very important interests of one or more partners are at stake, the members of Council
will endeavour, within a reasonable time, to reach solutions which can be adopted by all the members
of the Council while respecting their mutual interests and those of the Community, in accordance with
Art 2 of the Treaty.
2 with regard to the preceding paragraph, the French delegation considers that where very important
interests are at stake the discussion must be continued until unanimous agreement is reached.
3 the six delegates note that there is a divergence of views on what should be done in the event of a
failure to reach complete agreement.
The six delegations concluded by observing that the divergence noted in point 3 did not prevent the
Communitys work from being resumed in accordance with the normal procedure. There are a number
of things to be said about the Accords. In the first place, the title Accord is inappropriate. There was,
in fact, no agreement, only an agreement to disagree. Secondly, the Accords have no standing in law.
Insofar as they purport to amend the voting procedure laid down by the Treaty in certain
circumstances, they cannot be effective. Changes to the text and substance of the EC Treaty have to
be carried out in the appropriate form, after consultation with the Parliament and the Commission.
This was not done in the case of the Accords. The Commission has never accepted that the Accords
had any validity, and has disassociated itself from them.
The Accords have undoubtedly encouraged Member States to reach a compromise wherever possible.
The formal invocation of the Accords has been rare, and has not always achieved the desired result. In
1982, for example, when the UK sought to block the adoption of an agricultural price package in order
to put pressure on the other Member States to agree to a reduction of the UKs contributions, its
purported veto was ignored and a vote was taken.

However, in 1985, Germany invoked the Accords to forestall an increase in cereal prices, and was
successful. It is significant that no State which has been overridden, following an appeal to the
Accords, has ever taken the decision to the Court of Justice. The trend in voting procedures in recent
Treaty changes has been, as we shall see, to more qualified majority voting and less unanimous
decision taking, and it is likely that appeals to vital national interests under the Accords will become
even rarer than at present.
THE IOANNINA DECLARATION
Some recognition of the continuing need to take into account the genuine difficulties of some Member
States when a qualified majority vote is to be taken was shown early in 1994. Under a declaration
made in March 1994 at the loannina Summit, if members of the Council representing a total of
between 23 and 26 votes indicate their intention to oppose the adoption by the Council of a decision
by a qualified majority vote, the Council is committed to do all in its power to reach, within a
reasonable time, and without infringing the obligatory time limits in Arts 251 and 252 EC Treaty
procedures (see below), a satisfactory solution that could be adopted by at least 65 votes (Bull EU
31994 p. 65: OJ 1994 C 105/1 as amended by Council Decision of 1 January 1995).
This does no more than provide an opportunity to delay a qualified majority vote, but cannot prevent
one from being held, because the new Treaty time limits are still to be respected. The Declaration
does, unlike the Luxembourg Accords, have the force of law. It was intended to continue to apply until
the amendments to the Treaties following the Inter-Governmental Conference of 1996 came into
effect, but it was continued by the Treaty of Amsterdam until the next enlargement of the Community
(Declaration 50, ToA). Although the Declaration was given legal effect by a Decision of the Council of
Ministers, its vagueness must mean that it is most unlikely to be the subject of litigation before the
Court of Justice.