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The Union's decision-making procedures
Extension of qualified majority voting
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Introduction
Extension of qualified majority voting
Unanimity
List of Articles switching to qualified majority voting
Qualified majority with "emergency brake"
List of new Articles coming under qualified majority voting
Summary table
The extension of qualified majority voting is a central part of the institutional reform of the European Union (UE) associated with enlargement. Provided for in the founding treaties and extended to include new provisions at each reform of the treaties, extending qualified majority voting is vitally important in an enlarged Union where unanimity will become ever more difficult to attain.
Qualified majority voting will have important consequences for the nature of negotiations between the Member States in the Council. If a vote by qualified majority is possible, delegations are more open to compromise, knowing that it is no longer possible to simply veto a decision. Nevertheless, in practice, the Council always tries to achieve as great a consensus as possible, even if a vote by qualified majority is possible.
The Convention proposed widening the field of application of qualified majority voting . The Intergovernmental Conference agreed with the broad thrust of these proposals, although, in certain sensitive areas, unanimity will remain the rule. Moreover, the Constitutional Treaty creates a number of new Articles where qualified majority voting will be applied.
In three areas, specific clauses have been introduced to allow a Member State to refer a matter to the European Council (known as "emergency brake" clauses). This mechanism has allowed the application of qualified majority voting to these Articles.
Finally, a new bridging clause will allow a matter to be passed, after a final vote by unanimity in the European Council, to a qualified majority vote under Title III (Internal policies and actions) of Part III of the Constitutional Treaty. This clause is dealt with in the sheet on the final provisions.
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EXTENSION OF QUALIFIED MAJORITY VOTING
The Constitutional Treaty extends qualified majority voting to around twenty provisions. In many cases, this is accompanied by the application of the ordinary legislative procedure. ( List of Articles ).
In three specific cases, the Constitutional Treaty provides for a qualified majority, but includes an "emergency brake" clause: the field of free movement of workers and two fields associated with the area of freedom, security and justice. ( List of Articles )
This clause provides a Member State which considers that the fundamental principles of its social security or legal system are under threat with the possibility of appealing to the European Council, in which case the legislative procedure is suspended. The European Council must discuss the proposal in question, and, within three months:
- either send the draft back to the Council, which will continue with the procedure, taking into account the discussions within the European Council;
- or ask the Commission (or, in the field of justice and home affairs, the Member States that submitted the original proposal) to present a new draft, which means that the initial one is considered not to have been adopted.
In the field of justice and home affairs , if the proposal or amended draft remains blocked for a certain period, the Constitutional Treaty provides for the possibility of enhanced cooperation. This may be introduced between at least a third of the Member States, on the basis of the proposal in question.
The Constitutional Treaty also creates a number of new Articles where qualified majority voting will apply. Sometimes these are real innovations leading to a new European policy, for example space policy. In other cases, the Constitution merely creates a legal basis for measures that have already been adopted by qualified majority on another legal basis, e.g. the field of humanitarian aid. In these cases, the Constitutional Treaty clarifies existing practice and makes it more transparent. ( List of Articles )
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Nevertheless, certain Articles will remain subject to unanimity in whole or in part, as they are particularly important for the Union and its Member States. The Constitutional Treaty also creates certain new legal bases which, because of their importance, are subject to unanimity.
The following fields, amongst others, will remain subject to unanimity:
- taxation;
- harmonisation in the field of social security and social protection;
- certain provisions in the field of justice and home affairs (the European prosecutor, family law, operational police cooperation, etc.);
- the flexibility clause (Article I-18) allowing the Union to act to achieve one of its objectives in the absence of a specific legal basis in the Constitution;
- the common foreign and security policy, with the exception of certain clearly defined cases;
- the common security and defence policy, with the exception of the establishment of permanent structured cooperation;
- the finances of the Union (own resources, the multiannual financial framework);
- membership of the Union (opening of accession negotiations, association, serious violations of the Union's values, etc.);
- citizenship (the granting of new rights to European citizens, anti-discrimination measures);
- certain institutional issues (the electoral system and composition of the Parliament, certain appointments, the composition of the Committee of the Regions and the European Economic and Social Committee, the seats of the institutions, the language regime, the revision of the Constitution, including the bridging clauses, etc.).
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LIST OF ARTICLES SWITCHING TO QUALIFIED MAJORITY VOTING
Article I-24: Configurations of the Council of Ministers
The Constitution states in Article I-24.7 that the Presidency of Council configurations,
other than that of Foreign Affairs, will be held on the basis of equal rotation,
in accordance with the conditions established by a decision of the European Council,
acting by qualified majority.
Article I-37: Implementing acts
Article I-37.3 of the Constitutional Treaty provides that European laws lay down
in advance the rules and general principles concerning mechanisms for control by
Member States of the Commission's exercise of implementing powers ("comitology"),
acting by qualified majority.
Article III-141: Taking up and pursuing activities as self-employed persons
The Constitution provides that the ordinary legislative procedure will apply
to questions regarding the liberty to establish oneself and pursue activities as
a self-employed person, acting by qualified majority.
Article III-179: Coordination of economic policies
The Constitutional Treaty provides in Article III-179.4 that the Council may
address recommendations to a Member State whose economic policies are not consistent
with the broad economic policy guidelines or which could jeopardise the proper functioning
of Economic and Monetary Union. In such cases, qualified majority voting applies,
without taking into account the vote of the Member State concerned. The current treaties
provide for a special qualified majority, required if an act is not adopted on a
proposal of the Commission.
Article III-184: Excessive deficits
The Constitution describes, in Article III-184, the procedure concerning the
development of an excessive deficit in a Member State. In paragraphs 6, 9, 10 and
11, the Constitutional Treaty provides that qualified majority voting applies without
taking into account the vote of the Member State concerned. The current treaties
provide for a special qualified majority (two-thirds of the Member States rather
than a simple majority) if an act is not adopted on a proposal of the Commission.
Decision-making is thus made easier.
Article III-187: European System of Central Banks (ESCB)
The Constitution provides, in Article III-187.3, that certain provisions of the
ESCB may be amended by a European law. Qualified majority voting is therefore applicable.
Article III-223: Tasks, objectives and organisation of the Structural Funds
and Cohesion Fund
With regard to cohesion policy, the Constitution provides that European laws
shall define the tasks, the objectives and the organisation of the Structural Funds
and the Cohesion Fund. This Article will switch to qualified majority voting from
1 January 2007. This means that the next programming period, from 2007 to 2013, will
again be adopted by unanimity.
Article III-236: Common Transport Policy
The Constitutional Treaty provides that the common transport policy be implemented
by European laws, which implies adoption by qualified majority.
Article III-263: Justice and home affairs: Administrative cooperation
The Constitution provides that the Council adopt European regulations to ensure
administrative cooperation between the relevant departments of the Member States
as well as between those departments and the Commission. The Council of Ministers
votes by qualified majority.
Article III-265: Border checks
The Constitutional Treaty provides that the Union will develop a policy on border
controls. A law or a framework law will lay down specific measures, which implies
a qualified majority vote.
Article III-266: Asylum
For the common asylum policy, European laws or framework laws will lay down measures
for a common European asylum system, implying a qualified majority vote.
Article III-267: Immigration
The Constitution states that European laws or framework laws shall establish
measures to develop a common immigration policy. This implies qualified majority
voting, with one exception: Member States will keep their right of veto for setting
the number of third country nationals entering their territory to search for employment.
Article III-272: Crime prevention
The Constitutional Treaty states that European laws or framework laws may establish
measures to promote crime prevention, implying a qualified majority vote in the Council.
Article III-273: Eurojust
With regard to Eurojust, the Constitution states that European laws determine
its structure, operation, field of action and tasks, which implies a qualified majority
vote.
Article III-275: Non-operational police cooperation
With regard to non-operational police cooperation, Article III-275.2 provides
that European laws or framework laws may establish measures, with the Council voting
by qualified majority.
Article III-276: Europol
According to the Constitutional Treaty, European laws will determine Europol's
structure, operation, field of action and tasks, which implies a qualified majority
vote.
Article III-280: Culture
In the field of culture, the Constitutional Treaty provides that European laws
or framework laws will establish incentive measures, excluding any harmonisation,
which implies qualified majority voting.
Article III-300: Initiatives of the Minister for Foreign Affairs
In general, the principle of unanimity is retained in the field of the CFSP.
However, the Constitution does provide for certain exceptions: the Council acts by
qualified majority when adopting decisions on:
- the actions and positions of the Union;
- decisions taken on the initiative of the Minister for Foreign Affairs following a specific request from the European Council;
- decisions implementing a Union action or position;
- decisions on the appointment of a special representative.
A bridging clause creates the possibility of extending qualified majority voting to other cases, if the Council so decides unanimously.
Article III-311: European Defence Agency
The Constitution provides for the creation of a European Defence Agency. The
Council, acting by qualified majority, will adopt a European decision defining the
Agency's statute, seat and operational rules.
Article III-382: Appointment of the Executive Board of the European Central
Bank (ECB)
The Constitution provides that the President, Vice-President and other members
of the ECB's Executive Board will be appointed by the European Council, acting by
qualified majority.
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QUALIFIED MAJORITY WITH EMERGENCY BRAKE
Article III-136: Free movement of workers/Social security
The Constitution provides that the ordinary legislative procedure will apply
to the coordination of social security systems for migrant workers, implying qualified
majority voting. However, if a Member State considers that a draft European law or
framework law would affect fundamental aspects of its social security system, including
its scope, cost or financial structure, it may request that the matter be referred
to the European Council.
Article III-270: Judicial cooperation in criminal matters
The Constitutional Treaty provides that, for judicial cooperation in criminal
matters, European laws or framework laws may establish measures to ensure the mutual
recognition of judgments and judicial decisions, and police and legal cooperation
in criminal matters with a cross-border dimension. This implies qualified majority
voting. However, if a Member State considers that a law or framework law would affect
fundamental aspects of its legal system, it may request that it be referred to the
European Council.
Article III-271: Approximation of definitions of criminal offences
The Constitutional Treaty provides that laws or framework laws may establish
minimum rules concerning the definition of criminal offences and sanctions in the
areas of particularly serious crime with a cross-border dimension (terrorism, trafficking
in human beings and sexual exploitation of women and children, etc.). A framework
law can also establish minimum rules to approximate the definitions of criminal offences.
In both cases, the Council acts by qualified majority. However, where a Member State
considers that a draft law or framework law would affect fundamental aspects of its
legal system, it may request that it be referred to the European Council.
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LIST OF NEW ARTICLES COMING UNDER QUALIFIED MAJORITY VOTING
Article I-9: Accession to the European Convention for the Protection of Human
Rights
Article I-9.2 states that the Union will accede to the European Convention for
the Protection of Human Rights and Fundamental Freedoms. Article III-325 specifies
that the Council acts by qualified majority.
Article I-24: Configurations of the Council of Ministers
Article I-24.4 provides that the European Council will adopt by qualified majority
a European decision establishing the list of other Council configurations.
Article I-32: The Union's advisory bodies
The Constitution provides in Article I-32.5 that the Council will regularly review
the nature and composition of the Union's advisory bodies, acting by qualified majority.
Article I-47: Citizens' initiatives
The citizens of the Union may, via a citizens' initiative, call on the Commission
to submit a proposal. European laws will determine the procedures and conditions
required for such a citizens' initiative, with the Council acting by qualified majority.
Article I-54: The Union's own resources
The Constitutional Treaty provides in Article I-54.4 that a European law of the
Council will lay down implementing measures for the Union's own resources system.
However, the Union's own resources system will remain subject to unanimity.
Article I-60: Voluntary withdrawal from the Union
The Constitution provides that any agreement on the voluntary withdrawal of a
Member State of the Union is concluded by the Council, acting by qualified majority.
Article III-122: Services of general economic interest
A European law may establish principles and conditions for the operation of services
of general economic interest. The Council acts by qualified majority.
Article III-127: Diplomatic and consular protection
The Constitution provides that the Member States may take the necessary provisions
to ensure the diplomatic and consular protection of citizens of the Union in third
countries. A European law of the Council may establish the measures necessary to
facilitate such protection, with the Council acting by qualified majority.
Article III- 176: Intellectual property
The Constitution provides that European laws or framework laws will establish
measures to provide uniform intellectual property rights protection throughout the
Union and for the setting up of centralised Union-wide authorisation, coordination
and supervision arrangements. The Council will act by qualified majority.
Article III-196: The euro's place in the international monetary system
Article 196 states that the Council can make decisions on common positions and
the uniform representation of the Member States in the euro zone, acting by qualified
majority (specific calculation, as only the Member States of the euro zone will participate
in the vote).
Article III-254: Space policy
The Constitutional Treaty creates a new legal basis for a European space policy.
European laws or framework laws establish the necessary measures, with the Council
acting by qualified majority.
Article III-256: Energy
The Constitution creates a legal basis for the European energy policy. European
laws or framework laws establish the necessary measures, with the Council acting
by qualified majority. It should be noted that most EU measures in the energy field
have already been adopted by qualified majority, on a different legal basis.
Article III-281: Tourism
The Constitutional Treaty creates a new legal basis for complementary EU measures
in the tourism sector. European laws or framework laws will establish specific measures
to complement actions within the Member States, excluding any harmonisation.
Article III-282: Sport
The Constitutional Treaty creates a new legal basis for incentive measures in
the field of sport, excluding any harmonisation. European laws or framework laws
establish these incentive measures, with the Council acting by qualified majority.
Article III-284: Civil protection
The Constitutional Treaty creates an explicit legal basis for the Union to promote
cooperation between the Member States in order to strengthen the effectiveness of
systems to prevent natural or man-made disasters and to protect against them. European
laws or framework laws will establish the measures necessary, excluding any harmonisation.
It should be noted that measures in this field are currently adopted by qualified
majority, but on a different legal basis.
Article III-285: Administrative cooperation
The Constitution provides that the Union will take measures to facilitate administrative
cooperation, e.g. by the exchange of information and civil servants. European laws
will establish the necessary measures to this end, excluding any harmonisation.
Article III-312: Defence: Permanent structured cooperation
The Constitution provides for the possibility of permanent structured cooperation
in defence. Decisions on the establishment of such cooperation, the admission of
a Member State to the cooperation and any suspension are submitted for a qualified
majority vote. However, decisions in the context of this permanent structured cooperation
must still be made by unanimity of the participating Member States.
Article III- 321: Humanitarian aid
The Constitutional Treaty creates an explicit legal basis for humanitarian aid.
European laws or framework laws will establish the measures defining the framework
within which the Union's humanitarian aid operations are implemented. A European
Voluntary Humanitarian Aid Corps will also be set up, with European laws determining
the rules and procedures for its operation. It should be noted that measures in this
field are currently adopted by qualified majority, but on a different legal basis.
Article III-398: Administration of the European Union
The Constitutional Treaty creates a new legal basis for the administration of
the European Union. In carrying out their missions, the institutions, bodies, offices
and agencies of the Union have the support of an open, efficient and independent
European administration. European law sets out the provisions in this area, with
the Council voting by qualified majority. It should be noted that measures in this
field are currently adopted by qualified majority, but on a different legal basis.
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| Articles | Subject | Comments |
|---|---|---|
| I-9 | Accession to the European Human Rights Convention | New rules |
| I-18 | Flexibility clause | - |
| I-24 | Configurations of the Council | New rules |
| I-32 | The Union's advisory bodies | New rules |
| I-37 | The Commission's implementing powers | Major changes |
| I-47 | Citizens' initiatives | New rules |
| I-54 | Own resources | New rules |
| I-60 | Voluntary withdrawal from the Union | New rules |
| III-122 | Services of general economic interest | New rules |
| III-127 | Diplomatic and consular protection | New rules |
| III-136 | Social security of migrant workers | Major changes |
| III-141 | Taking up and pursuing activities as a self-employed person | Major changes |
| III-176 | Intellectual property | New rules |
| III-179 | Coordination of economic policies | Major changes |
| III-184 | Excessive deficits | Major changes |
| III-187 | Modifications to the Statute of the European System of Central Banks | Major changes |
| III-196 | The euro's place in the international monetary system | New rules |
| III-223 | Structural Funds and Cohesion Fund | Major changes |
| III-236 | Transport | Major changes |
| III-254 | Space policy | New rules |
| III-256 | Energy | New rules |
| III-263 | Justice and home affairs - administrative cooperation | Major changes |
| III-265 | Border checks | Major changes |
| III-266 | Asylum | Major changes |
| III-267 | Immigration | Major changes |
| III-270 | Judicial cooperation in criminal matters | Major changes |
| III-271 | Approximation of definitions of criminal offences | Major changes |
| III-272 | Crime prevention | Major changes |
| III-273 | Eurojust | Major changes |
| III-275 | Non-operational police cooperation | Major changes |
| III-276 | Europol | Major changes |
| III-280 | Culture | Major changes |
| III-281 | Tourism | New rules |
| III-282 | Sport | New rules |
| III-284 | Civil protection | New rules |
| III-285 | Administrative cooperation | New rules |
| III-300 | CFSP - Initiatives of the Minister for Foreign Affairs | Major changes |
| III-311 | European Defence Agency | Major changes |
| III-312 | Defence - Permanent structured cooperation | New rules |
| III-321 | Humanitarian aid | New rules |
| III-382 | Appointment of the Executive Board of the European Central Bank (ECB) | Major changes |
| III-398 | Administration of the European Union | New rules |
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The European Commission accepts no legal responsibility. The fact sheets make no claim to be exhaustive and cannot be regarded as an official interpretation of the Treaty text.