Brussels, 31 January 2003
Summary of the treaty of Nice
The purpose of this memorandum is to provide a brief summary of the Treaty of Nice, which enters into force on 1st February 2003. A list of provisions which change over to qualified-majority voting is attached.
Changes within the institutions during the enlargement process
The Treaty restricts itself to setting out the principles and methods for changing the institutional system as the Union grows. The number of seats in the European Parliament for the new Member States, the number of votes allocated to them within the Council, and particularly the qualified majority threshold applicable in the future, will be legally determined in the accession treaties.
The changes brought by the Treaty of Nice to the composition of the Commission and the weighting of votes will be applicable from 1 November 2004 onwards and the new composition of the European Parliament will apply as from the elections in 2004. For the applicant countries joining before these dates, the accession treaties must therefore also establish the number of MEPs, commissioners, votes within the Council which will be allocated to them, and the qualified majority threshold, up until the entry into force of the new rules. These temporary provisions will be based on the principles which have applied up until now in the accession negotiations, i.e. the extension of the current system, ensuring equal treatment with the Member States of equivalent size.
The IGC has introduced a new distribution of seats in the European Parliament looking ahead to a Union of 27 Member States, which will be applicable as from the next European elections in 2004. The maximum number of European Members of Parliament (currently set at 700) will rise to 732.
The number of seats allocated to the current Member States has been brought down by 91 (from the current 626 to 535). Only Germany and Luxembourg retain the same number of MEPs. However, this reduction will be applicable in full only for the assembly elected in 2009.
As the Union will undoubtedly not yet have 27 Member States in 2004, it has been decided for the 2004 European elections to increase on a pro rata basis the number of MEPs to be elected (in the current Member States and in the new Member States with which accession treaties will have been signed by 1 January 2004) to reach the total of 732 (although the number of MEPs to be elected in each Member State cannot be higher than the current number).
On the basis of Nice, the following table has been agreed for 25 Member States for inclusion in the accession Treaty.
See for source:
As the likelihood is that new Member States will enter the Union during the 2004-2009 term of office and that as a result additional MEPs will be elected in these countries it is anticipated that the maximum number of 732 seats in the European Parliament may be temporarily exceeded in order to accommodate MEPs from the countries which will have signed accession treaties after the 2004 European elections.
Article 191 of the EC Treaty has been supplemented by a legal base which allows the adoption via the codecision procedure of a statute of European level political parties and particularly of rules concerning their funding.
The regulations and general conditions governing the performance of the duties of members of the European Parliament will be approved by the Council by qualified majority, with the exception of the provisions relating to taxation (Article 190 of the EC Treaty).
The European Parliament will henceforth be able, in the same way as the Council, the Commission and the Member States, to institute proceedings to have acts of the institutions to be declared void without having to demonstrate specific concern (Article 230 of the EC Treaty) and to seek a prior opinion from the Court of Justice on the compatibility of an international agreement with the Treaty (Article 300 (6) of the EC Treaty).
As will be described in greater detail hereafter, the responsibilities of the European Parliament have been extended by expanding the scope of the codecision (cf. infra point II.A) and by the assent required to establish enhanced cooperation in an area covered by the codecision process (cf. infra point II.B). The European Parliament will also be called upon to state its opinion when the Council intends to declare that a clear danger exists of a serious breach of fundamental rights occurring (cf. infra point III.A).
Definition of qualified majority
The decision-making system by qualified majority will be changed as from 1 November 2004. In future, a qualified majority will be obtained if :
The number of votes allocated to each Member State has been changed. While the number of votes has been increased for all Member States, the increase is higher for the most populated Member States. The five biggest Member States' population-wise will in the 15-strong European Union have 60% of votes compared with 55% at present.
The qualified majority threshold was at the centre of debates during the closing stages of the IGC. The final compromise is complex. This notwithstanding, the qualified majority threshold will be fixed in the successive accession treaties on the basis of principles determined by the Treaty of Nice, particularly by the declaration on the qualified majority threshold.
On this basis and for the accession Treaty in view of enlargement with ten new countries, the following table has been agreed. This system would enter into force in November 2004. A qualified majority vote requires a minimum of 232 votes(1)
See for source:
The Treaty also provides for the possibility for a member of the Council to request verification that the qualified majority represents at least 62% of the total population of the European Union. If this condition is not met, the decision will not be adopted. However, this condition applies only if verification is requested.
The IGC has decided to defer imposing a ceiling on the number of members of the Commission.
With effect from 1 November 2004, the Commission will comprise one national per Member State(2). The biggest Member States thus lose at that time the opportunity of proposing a second member of the Commission, irrespective of how many Member States the European Union has at that date.
As from the first Commission which will be appointed once the Union reaches 27 Member States, there will be fewer Commissioners than there are Member States. The Commissioners will be selected by a system of rotation that will be fair to all countries.
In concrete terms, once the accession treaty for the twenty-seventh Member State has been signed, the Council will have to take a unanimous decision:
The IGC has decided to change the procedure for nominating the Commission (Art. 214 of the EC Treaty).
Henceforth, the nomination of the President is a matter for the European Council acting by qualified majority. This appointment must be approved by the European Parliament.
Thereafter, the Council, acting by qualified majority and in agreement with the appointed president, will adopt the list of the other persons it intends to appoint as members of the Commission, drawn up in accordance with the proposals made by each Member State. The purpose of this is solely to ensure that the Council cannot designate as a member of the Commission a person not proposed by the government of the Member State of which he/she is a national. It has no effect on the procedure whereby the president appointed, before he gives his/her agreement to this list, undertakes political contacts with each government to ensure that the new Commission is composed in a harmonious and balanced manner.
Lastly, the president and the members of the Commission will be appointed by the Council acting by qualified majority after approval of the body of Commissioners by the European Parliament.
Increased powers for the president
The new wording of Article 217 of the EC Treaty increases the president's powers, who will decide as to the internal organisation of the Commission; will allocate portfolios to the Commissioners and if necessary reassign responsibilities during his term of office; will appoint, after the collective approval of the body, the vice-presidents, whose number is no longer established in the Treaty; may demand a commissioner's resignation, subject to the Commission's approval.
The Union's legal system
The IGC has made major reforms to the Union's legal system. These reforms are meant to tackle the case overload that confronts the Court of Justice currently. As a result, there are long delays in obtaining judgments, which is detrimental to the working of the EU and unsatisfactory for the parties concerned.
The main provisions concerning the Court of First Instance, and particularly its responsibilities, are henceforth to be found in the Treaty. In addition, the Treaty provides for the possibility to set up internal chambers to deal at first instance with certain proceedings.
The Treaty has introduced greater flexibility in order to prepare the legal system for the future, settling certain issues in the Court's statute, which can henceforth be amended by the Council acting unanimously at the request of the Court or of the Commission. The approval of the rules of procedure of the Court of Justice and of the Court of First Instance will henceforth be by qualified majority.
While the Court of Justice will, as before, be composed of one judge from each Member State, steps have been taken to maintain the effectiveness of the jurisdiction and coherence of its jurisprudence. The "grand chamber", comprising eleven judges (including the president of the Court and the presidents of the five-judge chambers), will generally deal with cases today handled by plenary session. The presidents of the five-judge chambers will be elected for a three-year term of office which will be renewable once.
The Court of First Instance will have at least one judge from each Member State (the number is determined in the statute, which currently makes provision for fifteen judges). As before, the number of judges in the Court of First Instance (stipulated up to now in the Decision establishing the CFI) can be changed.
Distribution of responsibilities between the Court of Justice and the Court of First Instance
The Treaty sets out the distribution of responsibilities between the Court of Justice and the Court of First Instance but it will be possible to make adjustments through the statute.
The Court of First Instance becomes the common law judge for all direct actions (particularly proceedings against a decision (Article 230 of the EC Treaty), action for failure to act (Article 232 of the EC Treaty), action for damages (Article 235 of the EC Treaty), with the exception of those which will be attributed to a specialised chamber and those the statute reserves for the Court itself.
The Court of Justice retains responsibility for other proceedings (particularly action for failure to fulfil obligations, Art. 226 of the EC Treaty), but the statute can entrust to the Court of First Instance categories of proceedings other than those listed in Art. 225 of the EC Treaty.
The idea is to maintain within the Court, as the jurisdictional supreme body of the European Union, disputes concerning essential issues. The IGC has accordingly asked the Court and the Commission to review the distribution of responsibilities as soon as possible so that appropriate proposals can be examined as soon as the Treaty of Nice comes into force.
The Court of Justice, which is responsible for ensuring uniform application of EU law within the European Union, in principle retains competence for investigating questions referred for a preliminary ruling; however, pursuant to Art. 225 of the EC Treaty, the statute may entrust to the Court of First Instance the responsibility for preliminary rulings in certain specific matters.
The Council can set up specialised chambers to examine at first instance certain categories of actions in specific matters (e.g. in the area of intellectual property). The IGC through a declaration asks that a draft decision be prepared to set up such chambers in order to settle disputes between the EU and its civil servants (Article 236 of the EC Treaty).
An appeal in cassation can be made before the Court of First Instance against a decision by the specialised chambers.
Lastly, the new Article 229a of the EC Treaty will allow the Council, acting unanimously, to attribute to the Court of Justice the responsibility for settling disputes related to intellectual property rights. This provision is aimed essentially at disputes between private parties in which the future European patent is involved. This Council decision will enter into force only after it has been adopted by the Member States (i.e. after ratification).
Court of Auditors
The Treaty henceforth stipulates explicitly that the Court of Auditors will consist of one national from each Member State. The Court of Auditors may establish internal chambers to adopt certain categories of reports or opinions.
European Central Bank and European Investment Bank
The Treaty of Nice does not change the composition of the Governing Council of the European Central Bank (comprising the members of the executive board and the governors of the national central banks) but allows for changes to the rules on decision-making (at present, decisions are generally adopted by simple majority of the members, each having one vote Article 10 of the statute of the European Central Bank). This change requires a unanimous European Council decision which must then be ratified by the Member States. The IGC has stated that it expects the Governing Council to submit as quickly as possible a recommendation for amending the voting rules.
As far as the EIB is concerned, the Treaty of Nice allows for the possibility of altering the composition of the board of directors and the rules on decision-making by a unanimous Council decision.
Economic and Social Committee and Committee of the Regions
The IGC has not altered the number and distribution per Member State of the seats of the ESC and the COR. The Treaty henceforth stipulates that the number of members of these committees cannot exceed 350 (Art. 258 and 263 of the EC Treaty), but this ceiling is not reached with the seats envisaged for the new Member States.
The description of the members of the ESC has been changed and the Treaty states that the Committee is to consist of "representatives of the various economic and social components of organised civil society" (Article 257 of the EC Treaty). For the COR, the Treaty of Nice henceforth explicitly stipulates that the members must hold a regional or local electoral mandate or be politically accountable to an elected assembly.
The decision-making process
Extension of the qualified majority vote
The Treaty of Nice to some extent widens the scope of decision-making by qualified majority. A list of the 27 provisions which change over completely or partly from unanimity to qualified-majority voting is attached.
The most important provisions which do so as soon as the Treaty of Nice enters into force are:
It should be noted that the appointment of members of certain institutions or bodies will henceforth be done by qualified majority (President and members of the Commission, of the Court of Auditors, of the Economic and Social Committee and of the Committee of the Regions; the High Representative/Secretary General and the Deputy Secretary General of the Council; the CFSP special envoys).
The changeover to qualified majority voting has been deferred until 2007 for the Structural Funds and the Cohesion Funds (Article 161 of the EC Treaty), and for the adoption of the financial regulations (Article 279 of the EC Treaty).
Lastly, for the provisions of Title IV of the EC Treaty (visas, asylum, immigration and other policies linked to the free movement of persons), the IGC has agreed on a partial and deferred switch to qualified majority voting by means of different instruments (amendment of Article 67 of the EC Treaty, protocol or political declaration) and subject to different conditions (either from 1 May 2004, or after the adoption of EU legislation setting out the common rules and essential principles).
The picture is somewhat mixed for the five areas the Commission had identified as key areas:
The Treaty of Nice has extended the scope of codecision. This procedure will be applicable for seven provisions which change over from unanimity to qualified majority voting (Articles 13, 62, 63, 65, 157, 159 and 191 of the EC Treaty; this concerns respectively incentive measures to combat discrimination; a number of issues related to Justice and Home Affairs such as border controls and measures concerning asylum, refugees and immigration policy; issues related to industrial policy; regulations governing political parties at European level; for Article 161 of the EC Treaty which concerns cohesion policy, the Treaty stipulates assent by the EP). Accordingly, most of the legislative measures which, after the Treaty of Nice, require a decision from the Council acting by qualified majority will be decided via the codecision procedure. The IGC has not, however, extended the codecision procedure to legislative measures which already come under the qualified majority rule (e.g. in agricultural policy or trade policy).
The IGC has comprehensively overhauled the provisions on enhanced cooperation, particularly by listing in a single provision the ten conditions necessary to establish enhanced cooperation. While the essential characteristics of this instrument are largely unchanged (such as the principles whereby enhanced cooperation can be undertaken only as a last resort and must be open to all Member States), substantial changes have nevertheless been agreed.
The minimum number of Member States required to establish enhanced cooperation is now set at eight, whereas the Treaty currently stipulates that the majority of Member States is needed. Thus the minimum number of States needed to establish enhanced cooperation will fall, with the successive enlargements, to under one-third of the members of the Union (as had been proposed by the Commission).
In the Treaty establishing the European Community (first pillar) the possibility of opposing enhanced cooperation (the "veto") has been removed. It has been replaced by the possibility for a Member State to take the matter up with the European Council. In such an event, the Council may nevertheless act by qualified majority on any proposal for enhanced cooperation. Furthermore, when enhanced cooperation concerns an area which comes under the codecision process, the assent of the European Parliament is required.
The Treaty of Nice has introduced the possibility of establishing enhanced cooperation in the area of common foreign and security policy (second pillar), for the implementation of joint action or a common position. Enhanced cooperation of this kind cannot be used for issues which have military implications or which affect defence matters. The authorisation for enhanced cooperation is given by the Council after receiving the opinion of the Commission, particularly on the consistency of this enhanced cooperation with the Union's policies. The Council will decide by qualified majority but each Member State may ask that the matter be referred to the European Council for the purposes of a unanimous decision ("emergency brake").
For police and judicial cooperation in criminal matters (third pillar), the possibility of the "veto" has been removed in line with what is envisaged for enhanced cooperation for the first pillar.
The Treaty of Nice brings other changes to the treaties. The most significant are:
Pursuant to Article 7 of the Treaty on European Union, the European Council can declare the existence of a serious and persistent breach of fundamental rights. If this occurs, the Council may suspend certain of the rights of the country concerned. The Treaty of Nice has supplemented this procedure with a preventive instrument. Upon a proposal of one-third of the Member States, the Parliament or the Commission, the Council, acting by a four-fifths majority of its members and with the assent of the European Parliament, can declare that a clear danger exists of a Member State committing a serious breach of fundamental rights and address to that Member Statre appropriate recommendations. The Court of Justice will be competent (Article 46 of the Treaty on European Union) only for disputes concerning procedural provisions under Article 7, and not for the appreciation of the justification or the appropriateness of the decisions taken pursuant to this provision.
Security and defence
The Nice European Council adopted the Presidency's report on the European security and defence policy which inter alia provides for the development of the Union's military capacity, the creation of permanent political and military structures and the incorporation into the Union of the crisis management functions of the WEU.
While this is not a precondition for making the security and defence policy quickly operational on the basis of the current provisions of the Treaty, the Nice Treaty amends Article 17 of the Treaty on European Union by removing the provisions defining the relations between the Union and the WEU.
In addition, the political and security committee ("PSC", a new designation of the political committee in the Treaty) may be authorised by the Council, in order to manage a crisis and for the duration of that crisis, to itself take the appropriate decisions under the second pillar in order to ensure the political control and strategic leadership of the crisis management operation.
Judicial cooperation in criminal matters
The IGC has not added, as the Commission proposed, a provision which would have made it possible to create a European prosecutor to protect the financial interests of the EU. However, the Nice Treaty does supplement Article 31 of the Treaty on European Union with reference to and the description of the tasks of "Eurojust", a unit of seconded magistrates whose task it will be, within the framework of judicial cooperation in criminal matters, to contribute to proper coordination of the national authorities responsible for criminal proceedings.
The IGC adopted a declaration attached to the Treaty of Nice on interinstitutional agreements. This declaration states that relations between the European institutions are governed by the duty to cooperate sincerely and that when necessary to facilitate the application of the provisions of the Treaty, the Parliament, the Council and the Commission can conclude interinstitutional agreements. These agreements can neither change nor supplement the provisions of the Treaty and can be concluded only with the agreement of these three institutions.
Social Protection Committee
Through a new Article 144 of the EC Treaty, the Treaty of Nice incorporates within the Treaty the Social Protection Committee which had been established by the Council pursuant to the conclusions of the Lisbon European Council.
Name of the Official Journal
The name of the Official Journal of the European Communities will be changed to "Official Journal of the European Union" (Article 254 of the EC Treaty).
Venue for European Council meetings
The IGC adopted a declaration annexed to the Treaty of Nice stipulating that "as from 2002, one European Council meeting per presidency will be held in Brussels. When the Union comprises 18 members, all European Council meetings will be held in Brussels". It should be noted that this declaration relates only to the formal European Council meetings, and the presidencies are free to organise the informal European Council meetings wherever they like (or even not to organise any), in line with the informal Council meetings which can be organised in places other than those stipulated in the protocol on the seat of the institutions.
Financial consequences of the expiry of the ECSC Treaty
The European Coal and Steel Community Treaty expired on 23 July 2002. At the request of the Council, the Commission in September 2000 put forward a draft decision on the transfer of ECSC funds to the European Community to be used for research in sectors related to the coal and steel industry. For reasons of legal certainty, it has been deemed preferable to settle this matter through a protocol annexed to the Treaty of Nice.
Declaration on the future of the Union
In December 2000, the Intergovernmental Conference adopted a declaration concerning the future of the Union whereby it calls for a deeper and wider debate about the future of the European Union. This has eventually led to the Laeken declaration, adopted at the Laeken European Council in December 2001. Herein, the European Council has established a Convention on the Future of the Union, which is likely to finish its work in June 2003. A new IGC will be convened afterwards with a view to adopting a Constitution for the European Union. In the view of the Commission, the Treaty of Nice will be useful to manage the first stage of an enlarged Union; it has, however, not given a fully adequate answer to make a Union of 25 and more Member States work effectively and democratically.
List of provisions to which the qualified majority rule will apply
Qualified majority as from the entry into force of the Treaty of Nice
Article 23, paragraph 1, of the EC Treaty: appointment of special representatives
Article 24, paragraphs 2 and 3, of the EC Treaty: international agreement implementing joint action or a common position (but with a clause providing for appeal to the European Council)
Article 13 of the EC Treaty: countering discrimination (applies only to incentive measures) (codecision)
Article 18 of the EC Treaty: facilitating freedom of movement for the citizens of the EU (but limitation of the field of application) (already the subject of codecision since the Amsterdam Treaty)
Article 65 of the EC Treaty: judicial cooperation in civil proceedings (with the exception of aspects relating to family law) (codecision)
Article 100 of the EC Treaty: financial assistance in the event of serious difficulties
Article 111, paragraph 4, of the EC Treaty: representation of the European Community at international level as regards issues of particular relevance to EMU
Article 123, paragraph 4, of the EC Treaty: measures necessary for the introduction of the Euro
Article 133 of the EC Treaty: for the negotiation and conclusion of international agreements on services and the commercial aspects of intellectual property (with exceptions)
Article 157, paragraph 3, of the EC Treaty: specific support measures in the industrial field (codecision)
Article 159, indent 3, of the EC Treaty: specific actions outside the Structural Funds (codecision)
Article 181a (new) of the EC Treaty: economic, financial and technical cooperation with third countries (consultation)
Article 190 of the EC Treaty: regulations and general conditions governing the performance of the duties of members of the European Parliament (with the exception of aspects relating to taxation) (approval of the decision of the Parliament)
Article 191 of the EC Treaty: statute and financial regulations governing political parties at European level (codecision)
Article 207 of the EC Treaty: appointment of the HR/SG and Deputy-SG of the Council
Article 214 of the EC Treaty: appointment of the President and the members of the Commission
Article 223 of the EC Treaty: approval of the rules of procedure of the Court of Justice
Article 224 of the EC Treaty: approval of the rules of procedure of the Court of First Instance
Article 247 of the EC Treaty: appointment of the members of the Court of Auditors
Article 248 of the EC Treaty: approval of the internal rules of the Court of Auditors
Article 259 of the EC Treaty: appointment of the members of the Economic and Social Committee
Article 263 of the EC Treaty: appointment of the members of the Committee of the Regions.
Deferred quality majority:
Article 62, paragraph 2(a), of the EC Treaty: (checks at external borders): after agreement on the field of application of these measures (Conference declaration) (codecision)
Article 62, paragraph 3, of the EC Treaty: (movement of nationals of third countries in possession of a visa): in 2004 (Conference declaration) (codecision)
Article 63, paragraph 1, of the EC Treaty: (policy on asylum): after adoption of a Community framework (codecision)
Article 63, paragraph 2(a), of the EC Treaty: (persons under temporary protection): after adoption of a Community framework (codecision)
Article 63, paragraph 3(b), of the EC Treaty: (clandestine immigration): in 2004 (Conference declaration) (codecision)
Article 66 of the EC Treaty: (administrative cooperation in areas under Title IV): in 2004 (protocol) (consultation)
Article 161 of the EC Treaty: (cohesion ): as from 2007 (assent)
Article 279, paragraph 1, of the EC Treaty: (financial regulations and rules on the responsibility of financial controllers, authorising officers and accounting officers): as from 2007 (consultation).
(1)In between 1 May 2004 (date of enlargement) and 1 November 2004, a transitory system will apply based on the current one.
(2)From 1 May 2004 onwards, a national for each new Member State will join the current Commission.