The Council of the European Union
Together with Parliament, the Council of the European Union is the institution that adopts EU legislation through regulations and directives and prepares decisions and non-binding recommendations. In its areas of competence, it takes its decisions by a simple majority, a qualified majority or unanimously, according to the legal basis of the act requiring its approval.
Legal basis
In the EU’s single institutional framework, the Council of the European Union (the Council) exercises the powers conferred on it under Article 16 of the Treaty on European Union (TEU) and Articles 237 to 243 of the Treaty on the Functioning of the European Union (TFEU). The Council’s functioning is further governed by its Rules of Procedure (Council Decision 2009/937/EU, as last amended in 2022), adopted on the basis of Article 240(3) TFEU. Additional legal references include Article 15 TEU, clarifying the distinction between the Council and the European Council, and Article 289 TFEU, which defines legislative acts.
Role
A. Legislation
On the basis of proposals submitted by the Commission, the Council adopts EU legislation in the form of regulations and directives, either jointly with Parliament in accordance with Article 294 TFEU (ordinary legislative procedure) or alone, following consultation of Parliament (1.2.3). The Council also adopts individual decisions and non-binding recommendations (Article 288 TFEU) and issues resolutions. The Council and Parliament establish the general rules governing the exercise of the implementing powers conferred on the Commission or reserved for the Council itself (Article 291(3) TFEU).
B. Budget
The Council is one of the two arms of the budgetary authority, the other being Parliament. Together they adopt the European Union’s budget (1.2.5). The Council also adopts, pursuant to a special legislative procedure and acting unanimously, decisions laying down the provisions applying to the EU’s own resources system and the multiannual financial framework (Articles 311 and 312 TFEU). In the latter case, Parliament must give its consent by a majority of its Members. The most recent multiannual financial framework (2021–2027) was adopted by Parliament in November 2020. The Council shares Section II of the European Union’s budget with the European Council (1.3.6) (Article 46(b) of the EU Financial Regulation), although they are separate institutions.
C. Other powers
1. International agreements
The Council concludes the European Union’s international agreements, which are negotiated by the Commission and usually require Parliament’s consent (Article 218 TFEU).
2. Appointments
The Council, acting by qualified majority (since the Treaty of Nice 1.1.4), appoints the members of the Court of Auditors, the European Economic and Social Committee and the European Committee of the Regions.
3. Economic policy
The Council coordinates the economic policies of the Member States (Article 121 TFEU) and, without prejudice to the powers of the European Central Bank, takes political decisions in the monetary field.
Special rules apply to the members of the Eurogroup (Article 137 TFEU and Protocol (No 14) to the TFEU). The finance ministers of the Eurogroup usually meet informally one day before the meeting of the Economic and Financial Affairs Council. The Commission takes part in the meetings and the European Central Bank is also invited. According to Article 2 of the Protocol on the Eurogroup, ‘[t]he Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States’.
The Council also performs a number of economic governance functions in the context of the European Semester. At the start of the cycle, in autumn, it considers the specific recommendations for the euro area on the basis of the annual growth survey, and then in June and July, it adopts the country-specific recommendations after they have been endorsed by the European Council.
Article 136 TFEU was amended by European Council Decision 2011/199/EU and entered into force on 1 May 2013, following ratification by all the Member States. It provides the legal basis for stability mechanisms such as the European Stability Mechanism (2.5.8).
4. Common foreign and security policy (5.1.1) and (5.1.2)
The Treaty of Lisbon gave legal personality to the European Union, which replaced the European Community. The new Treaty also abolished the three-pillar structure. Justice and home affairs became a fully integrated EU policy area, in which the ordinary legislative procedure applies in almost all cases. However, in foreign and security policy the Council still acts under special rules when it adopts common positions and joint actions or draws up conventions.
The former troika arrangement has been replaced by a new system: chaired on a permanent basis by the High Representative of the Union for Foreign Affairs and Security Policy, the Foreign Affairs Council now collaborates closely with the Commission. It is assisted by the Council’s General Secretariat and by the European External Action Service.
Organisation
A. Membership
1. Members
The Council consists of a representative of each Member State at ministerial level, who ‘may commit the government of the Member State in question’ (Article 16(2) TEU).
2. Presidency
With the exception of the Foreign Affairs Council, the Council is chaired by the representative of the Member State that holds the European Union’s presidency: this changes every six months, in the order decided by the Council acting unanimously (Article 16(9) TEU). The presidency of all Council formations except foreign affairs is held by pre-established groups of three Member States for periods of 18 months, with each member chairing the Council for six months.
The order of presidencies until 2030 is as follows: Poland and Denmark in 2025, Cyprus and Ireland in 2026, Lithuania and Greece in 2027, Italy and Latvia in 2028, Luxembourg and the Netherlands in 2029 and Slovakia and Malta in 2030. The European Council can change the order (Article 236(b) TFEU).
3. Preparatory bodies
A committee consisting of the permanent representatives of the Member States prepares the Council’s work and carries out the tasks which the Council assigns to it (Article 240 TFEU). This committee, known as Coreper, is chaired by a representative of the Member State chairing the General Affairs Council, i.e. the rotating presidency. However, the Political and Security Committee, which monitors the international situation in areas covered by the common foreign and security policy, is chaired by a representative of the High Representative of the Union for Foreign Affairs and Security Policy.
Coreper meets every week to prepare the work of the Council and coordinate activities relating to codecision with Parliament. It is divided into two groups: Coreper I, comprising the deputy permanent representatives, prepares work in the more technical areas, including agriculture, employment, education and the environment; Coreper II addresses matters falling more within the field of ‘high politics’, in particular foreign, economic and monetary affairs and justice and home affairs. Coreper is assisted in its preparatory work by some 10 committees and more than 100 specialised working parties.
B. Operation
Depending on the area concerned, the Council takes its decisions by a simple majority, a qualified majority or unanimously (1.2.3) and (1.2.4). When the Council acts in a legislative capacity, its meetings are open to the public (Article 16(8) TEU). The Secretary-General of the Council is appointed by the Council pursuant to Article 240 TFEU. Council meetings are mainly held in Brussels, with some meetings in Luxembourg (sessions in April, June and October). At present there are 10 Council configurations, three of which meet regularly (General Affairs, Foreign Affairs, and Economic and Financial Affairs (Ecofin)).
1. Simple majority
According to Article 238(1) TFEU ‘[w]here it is required to act by a simple majority, the Council shall act by a majority of its component members’. Each member of the Council has one vote, so a simple majority is reached if 14 Council members vote in favour (the remaining 13 voting against or abstaining). However, this type of decision-making applies only in a limited number of cases: internal Council rules, the organisation of the Council’s General Secretariat, and rules governing committees provided for in the Treaty.
2. Qualified majority
a. Mechanism
Article 16(3) TEU establishes that qualified majority voting is the Council’s default decision-making process, so it is used except when the Treaties specify otherwise. Under Article 16(4) TEU, a favourable vote is required from at least 55% of the members of the Council representing at least 65% of the EU’s population. In practice, this means at least 15 Member States out of 27. In cases where the proposal does not come from the Commission or the High Representative, the so-called ‘reinforced qualified majority’ rule applies, under which the required percentage of Council members voting in favour is 72% (i.e. at least 20 Member States out of 27), again representing at least 65% of the EU’s population.
b. Scope
The Treaty of Lisbon again extended the scope of decision-making by qualified majority voting (QMV). For 68 legal bases it either introduced or extended QMV, mostly in conjunction with the introduction of the ordinary legislative procedure (including many former third-pillar areas, i.e. police and judicial cooperation in criminal matters). QMV also applies to the appointment of the President and Members of the Commission and the members of the Court of Auditors, the European Economic and Social Committee and the European Committee of the Regions (1.2.3 and 1.2.4).
3. Unanimity
Unanimity is required by the Treaties for decisions in a limited number of areas, such as taxation, social security or social protection, certain aspects of environmental policy (e.g. provisions primarily of a fiscal nature), accession of new EU Member States, suspension of a Member State’s voting rights under Article 7 TEU, Common Foreign and Security Policy (CFSP), including Common Security and Defence Policy (CSDP), operational police cooperation between Member States, EU finances (including the Multiannual Financial Framework), treaty revision (requiring subsequent ratification by all Member States), and measures against certain forms of discrimination.
However, the Treaties envisage passerelle clauses that allow a switch from voting by unanimity to QMV in a given policy area. Article 48(7) TEU provides a general passerelle clause applicable to all EU policies that allows the European Council to adopt, by unanimity, a decision allowing the Council to subsequently act by QMV in areas where unanimity is normally required. The European Parliament must consent, and national parliaments have a right of opposition within six months. In some areas where unanimity is currently required, specific passerelle clauses allow a switch to QMV with a less elaborate procedure, e.g. Article 31(3) TEU.
In his 2018 State of the Union speech, President Juncker announced a comprehensive review of passerelle clauses. As a result, the Commission has to date published four communications, on common foreign and security policy (September 2018), taxation (January 2019), energy and climate (April 2019) and social policy (2019).
In general, the Council tends to seek unanimity even when it is not required to do so. This preference dates back to the 1966 Luxembourg Compromise, which ended a dispute between France and the other Member States in which France had refused to move from unanimity to QMV in certain areas. The text of the compromise reads: ‘Where, in the case of decisions which may be taken by a majority vote on a proposal from the Commission, very important interests of one or more partners are at stake, the Members of the 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’.
A similar solution was found in 1994 when the Ioannina Compromise was reached to protect Member States which were close to constituting a blocking minority. Under this arrangement, if the countries in question stated their intention to oppose the taking of a decision by the Council by qualified majority, the Council would do everything in its power to reach a solution acceptable to a large majority of Member States within a reasonable period of time.
According to Article 48 TEU, any revision of the founding treaties requires unanimity, which has been considered a major constraint in reforming the Union of 27 Member States. To overcome the unanimity requirement, Member States have concluded international agreements outside the EU’s legal order. This happened for the first time as a result of the euro crisis, with the adoption, in 2012, of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (the fiscal compact) and the Treaty establishing the European Stability Mechanism (ESM), as well as, in 2014, the Intergovernmental Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund (SRF Agreement). According to Article 14(3) of the fiscal compact, it applied as from the date of its entry into force only to those Member States which had ratified it. Requiring ratification by just 12 euro area countries, it set approval by a minority of Member States as a condition for its entry into force.
In the context of the Conference on the Future of Europe and the COVID-19 pandemic, Parliament, in its resolution on EU coordinated action to combat the COVID-19 pandemic and its consequences, proposed ‘greater powers for the Union to act in the case of cross-border health threats’ and called for the activation of ‘the general passerelle clause to ease the decision-making process in all matters which could help to cope with the challenges of the current health crisis’. In its resolution of 9 June 2022 on the call for a Convention for the revision of the Treaties, Parliament submitted proposals for treaty amendments to the Council under the ordinary revision procedure laid down in Article 48 TEU. The suggested amendments would allow decisions in the Council to be made by qualified majority voting instead of unanimity in relevant areas, such as the adoption of sanctions and in the event of an emergency.
In her speech at the closing event of the Conference on the Future of Europe on 9 May 2022, the Commission President, Ursula von der Leyen, reaffirmed the Commission’s willingness to implement the adopted citizens’ proposals on overcoming the deadlock of unanimity voting. According to the Commission, ‘it is now up to us to take the most direct way there, either by using the full limits of what we can do within the Treaties, or, yes, by changing the Treaties if need be’. On 11 July 2023, Parliament adopted a resolution on the implementation of the passerelle clauses in the EU Treaties, proposing that passerelle clauses be activated in some priority policy areas, in particular the common foreign and security policy, energy policy and taxation matters with an environmental dimension.
In December 2023, the Commission President reiterated her Cabinet’s commitment to reforming the Treaties. However, in a communication from 20 March 2024, the Commission softened this position by stating that the EU’s governance could be ‘swiftly improved by using to the full the potential of the current Treaties’, referencing the hurdles to treaty change posed by the requirement of unanimity.
On 20 March 2024, the Commission adopted its Communication on pre-enlargement reforms and policy reviews (COM(2024)0146), highlighting the scope for institutional reform within the existing legal framework and encouraging the Council to activate passerelle clauses in priority areas.
This fact sheet was prepared by the Policy Department for Justice, Civil Liberties and Institutional Affairs.
Joanna APAP