The Bucharest University of Economic Studies

International Business and Economics Faculty

The Importance of the EU Council

in the Decision-making Process

Year II, group 942

Ana Maria-Irina
Galic Dariana
Moraru Oana Andreea

Bucharest,
2012

The Council of the EU appeared in a conventional way through founding treaties. It first
appeared in the European Coal and Steel Community (ECSC) as the "Special Council of
Ministers". The two institutions merged through the Brussels Treaty into the Council of
the EEC which would act as a single Council of the European Communities. The Council
adopted the name Council of the European Union, following the establishment of the
European Union by the Maastricht Treaty. The Treaty of Lisbon declared the European
Council a separate institution from the Council of the EU, which was from now on also
simply called Council.
The Council represents all the member states and as a intergovernmental institution, it
expresses the state legitimacy of the EU. Since 1st January 2007 the Council consists out
of 27 members.
According to Art. 16 paragraph 2 from The Treaty on European Union, The Council
shall consist of a representative of each Member State at ministerial level, who may
commit the government of the Member State in question and cast its vote. 1 The
component of the Council varies depending on the agenda. The most frequent are the
debates on the General Affairs, agriculture and economic-financial matters.
According to Art. 16 par. 8 from The Treaty on European Union, The Council shall
meet in public when it deliberates and votes on a draft legislative act. To this end, each
Council meeting shall be divided into two parts, dealing respectively with deliberations
on Union legislative acts and non-legislative activities. 2 The Council's first deliberation
on important non-legislative proposals are also public. In addition, the Council regularly
holds public debates on important issues affecting the interests of the Union and of its
citizens.The debate on the General Affairs Council's 18 month programme, as well as the
priorities of the other Council's configurations, and the debate on the Commission's fiveyears programme, are public.
The number of votes each Member State has is set by the Treaties. Also, the Treaties
define the three ways of voting:
a) Simple Majority - implies that fifty percent plus one vote (50% + 1) of the
Council must vote in favour of the matter to pass. If the vote is a tie, the matter
will be considered to have failed. It is only used in limit cases such as adoption of
internal regulation, request of studies and proposals from the Comission, and
others.
b) Qualified Majority the most frequent and Art. 16 Par. 3 from TEU says: The
Council shall act by a qualified majority except where the Treaties provide
otherwise.3
This majority will be reached if the following conditions are met:
If a majority of Member States approve. In some cases a 2/3 majority
1

Treaty on European Union Source: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?

uri=OJ:C:2010:083:0013:0046:en:PDF, accessed on October 30th, 2012
2

Idem
Treaty on European Union Source: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:C:2010:083:0013:0046:en:PDF, accessed on October 30th, 2012
3

 If a minimium of 255 votes out of a total of 345 votes is cast in favour

In addition, a Member State may ask for confirmation that the votes in favour
represent at least 62 % of the total population of the Union. If this is found not to
be the case, the decision will not be adopted.
Figure 1 shows the distribution of votes for each member States.
Figure 1 (own conception)
Distribution of votes for each Member States:
Germany, France, Italy, United Kingdom
Spain, Poland
Romania
Netherlands
Belgium, Czech Republic, Greece, Hungary, Portugal
Austria, Bulgaria, Sweden
Denmark, Ireland, Lithuania, Slovakia, Finland
Cyprus, Estonia, Latvia, Luxembourg, Slovenia
Malta
TOTAL

29
27
14
13
12
10
7
4
3
345

c) Unanimity Art. 238 Par. 4 from TFEU sustains: Abstentions by Members

present in person or represented shall not prevent the adoption by the Council of
acts which require unanimity. 4
Certain policy fields remain subject to unanimity in whole or in part, such as5:

membership of the Union (opening of accession negotiations, association,

serious violations of the Union's values, etc.);

change the status of an overseas country or territory (OCT) to

an outermost region (OMR) or vice versa.

taxation;
the finances of the Union (own resources, the multiannual financial
framework);
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 allowing the Union to act to achieve one of its
objectives in the absence of a specific legal basis in the treaties;
the common foreign and security policy, with the exception of certain
clearly defined cases;

Treaty on the Functioning of the European Union Source: :http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:en:PDF, accessed October 30th,
2012.
5
Unanimity Source: http://en.wikipedia.org/wiki/Voting_in_the_Council_of_the_European_Union,
accessed October 30th, 2012.

the common security and defence policy, with the exception of the
establishment of permanent structured cooperation;
citizenship (the granting of new rights to European citizens, antidiscrimination 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 treaties, including
the bridging clauses, etc.).

The Council is assisted by the General Secretariat which according to Art 23 Par 3 from
Rules of Procedure of the Council: It shall be closely and continually involved in
organising, coordinating and ensuring the coherence of the Council's work and
implementation of its 18-month programme. Under the responsibility and guidance of the
Presidency, it shall assist the latter in seeking solutions.6
Also, all the work of the Council is prepared by Permanent Representatives Committee
(COREPER), made up of the permanent representatives of the Member States working in
Brussels and their assistants. The work of this Committee is itself prepared by more than
150 committees and working groups consisting of delegates from the Member States.
Art. 19 Par. 1 from Rules of Procedure of the Council sustains: Coreper shall be
responsible for preparing the work of all the meetings of the Council and for carrying out
the tasks assigned to it by the Council. It shall in any case ensure consistency of the
European Union's policies and actions and see to it that the following principles and rules
are observed:
(a) the principles of legality, subsidiarity, proportionality and providing reasons for
acts;
(b) rules establishing the powers of Union institutions, bodies, offices and agencies;
(c) budgetary provisions;
(d) rules on procedure, transparency and the quality of drafting.7
The Council is formed by the ministers of the Member States and it meets in ten different
configurations depending on the subjects under discussion. For example, the Foreign
Affairs configuration is made up of foreign affairs ministers, the Justice and Home
Affairs configuration of justice and home affairs ministers, etc.
The configurations deal each one the following matters8:
1.

General Affairs negotiations on EU enlargement, preparation of the Union's

multi-annual budgetary perspective or institutional and administrative issues.

Rules of Procedure of the Council, Source: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?

uri=CELEX:32009Q1211(01):EN:HTML, accessed October 30th, 2012.
7
Idem
8
Council Configurations, Source: http://consilium.europa.eu/council/council-configurations?lang=en,
accessed October 30th, 2012.

Also, is makes sure that the other configurations are working with each other and
makes the preparations for European Council meetings.
2.

Foreign Affairs common foreign and security policy, foreign trade policy and
development cooperation.

3.

Economic and Financial Affairs (ECOFIN) economic policy coordination,

economic surveillance, monitoring of Member States' budgetary policy and public
finances, the euro (legal, practical and international aspects), financial markets
and capital movements, economic relations with third countries, prepares and
adopts the EU budget which is about 100 billion euros.

4.

Justice and Home Affairs (JHA) the development and implementation of

cooperation and common policies in this sector, most issues relating to criminal
law. Also, it helped the creation of the Schengen Area.

5.

Employment, Social Policy, Health and Consumer Affairs (EPSCO) raise

the standard of living and quality of life of its citizens, notably through highquality jobs and high levels of social protection, health protection and protection
of consumers' interests, while at the same time guaranteeing equal opportunities
for all its citizens.

6.

Competitiveness Internal Market (public procurement, free provision of

services and establishment, free movement of goods, intellectual and industrial
property rights, competition and company law), Industry ( speeding up the
adjustment of industry to structural changes, encouraging an environment
favourable to initiative and encouraging an environment favourable to
cooperation between enterprises) and Research (Scientific Research and
Technological Development (RTD)) => Economic Development

7.

Transport, Telecommunications and Energy (TTE) contribution to the free

movement of persons and goods, the establishment of a Europe-wide integrated
network, the introduction of the information society, the opening up of national
markets, the elimination of the regulatory disparities between Member States with
regard to prices, standards, market-access conditions, public procurement and
energy policies.

8.

Agriculuture and Fisheries the Common Agricultural Policy (CAP),

internal market rules, forestry, organic production, quality of production and food
and feed safety, veterinary matters, animal welfare, plant health, animal feed,
seeds and pesticides, the Common Fisheries Policy (CFP) - protect and conserve
living aquatic resources and to provide for their sustainable exploitation, have an
economically viable and competitive fisheries and aquaculture industry, provide a
fair standard of living for those who depend on fishing activities, take into
account the interests of consumers.

9.

Environment preserve the quality of the environment, human health, the

prudent and rational utilisation of natural resources and promote measures at
international level to deal with regional or worldwide environmental problems.

10.

Education, Youth, Culture and Sport development of quality education, the

implementation of a vocational training policy and the flowering of Member
States' cultures.

The Council is the sole legislative institution in many important policy fields and in this
regard, the decision-making process in the Council has received more and more attention,
at least theoretically. A lot of systematic analyses of this process made from an empirical
point of view are missing and the absence of research on the internal decision-making
process is not due to a lack of importance, interest or relevance. The Council was more
like a secret organisation until recently, and the information from insiders was the only
feasible option to gain some insights into this area of interest.
The work of ministers is supported by more than 250 Council parties and committees,
whose members are diplomats and national officials. According to the EU treaties, only
the ministers have the right to make decisions related to legislative acts, but, in practice, a
lot of decisions are made by committees. Estimations say that 85-90% of the decisions
are the committees work (Hayes-Renshaw & Wallace 1997).
The EU treaties clearly specify the decision-rules applicable in certain area9 and the two
main procedures for adopting legislation on internal EU policies are the consultation
and the co-decision procedure. The greatest difference between them is related to the
decision-making rights of the Parliament.
In the case of the consultation procedure, the EP gives a non-binding opinion, where the
Council is the sole legislator. In contrast, when we speak about the co-decision procedure,
the EP and the Council have equal rights. However, in both procedures, the Commission
the executive institution of the EU- has the exclusive right of initiative and can
withdraw and amend its proposal during the procedure. Some exceptions still exist in the
field of Justice and Home Affairs, where the Commission shares its right of initiative
with the Member States.
The one who initiates both procedures, either the co-decision one or the consultation by
transmitting a proposal to the Council, the Parliament and, if necessary, to the
Committee of the Regions (CoR) and the Economic and Social Committee (ESC) is
the Commission. The latter three institutions from above can suggest amendments to the
draft legislation and the EP adopts its opinion by a major number of votes. Even if
amendments are made, the Commission is not obliged to add any of them to its text, but
in the case of the consultation procedure, the EP has the power of delay, meaning that
the EP can pressure the Commission to amend its proposal by delaying the formal
adoption of the EP opinion. This happens because in 1980, the European Court of Justice
said that no legislation can be passed until Parliament has given its opinion. In contrast,
the Council or the Commission itself can impose a time schedule for the delivery of the
opinions for the ESC and the CoR. However, not delivering the opinion is not an obstacle
for the legislative process to proceed.
9

Consolidated Version of the Treaty Establishing the European Community. 24 December 2002, OJ
C325, pp. 33-159; and Consolidated Version of Treaty on European Union. 24 December 2002, OJ
C325, pp. 5-32.

While the EP, the CoR and the ESC prepare their opinions, the Council starts negotiating
on the dossier. The Councils decision is only formal, named de facto decisions, often
taken before the EP adopts its amendments, but with the restriction that they are still
uncertain and subject to the Parliaments opinion. Before ministers discuss a proposal,
some subordinate committees of national officials are thinking about it. 10
Figure 2 illustrates the internal decision-making process in the Council
Figure 2

The internal decision-making process of the Council

Note: The term Council refers to the Council as an organisation, not to the Council as a legal institution
as described in the Treaties. The Council as a legal institution refers only to meetings of ministers. The
possibility that a proposal fails completely is not considered in the figure. In general, a proposal can fail at
all levels of the Council hierarchy. Source: Figure 2.1 in Hge (2008).

In the European Council decision making lacks transparency article, Pamela

Bartlett talks about the dispute over whether or not the public has the right to know what
their government is proposing in negotiations between member states and the European
Council.
A non-governmental organization contested the fact that UK and Greece wanted to forbid
the access to public for different information about the Council. The case went to General
Court and it ruled that: "If citizens are to be able to exercise their democratic rights, they
must be in a position to follow in detail the decision-making process" and "to have access
to all relevant information." The council has appealed and Czech Republic and Spain
joined Greece and UK in order to support the council.

10

Frank Michael Hge - Decision-Making in the Council of the European Union: The Role of
Committees, Optima Grafische Communicatie, Rotterdam, 2008. Source:
https://openaccess.leidenuniv.nl/bitstream/handle/1887/13222/Fulltext.pdf?sequence=22, accessed on
October 30th, 2012.

It is well known that 50 per cent of national legislation originates from Brussels - with the
figure rising to 70 per cent in matters of economic policy. This case goes to the heart of
the British public's concerns about Brussels being unaccountable and a haven for policy
laundering. By staying involved in this case, the UK is, in effect, trying to keep it that
way.

Source: http://www.guardian.co.uk/news/datablog/2011/apr/08/euro-guardian-readers-poll

The Councils chairman is taken by every state-member for 6 months and must not
only organize and lead the reunions, but also supervise the coherence and the continuity

of the decision-making process. The Council is reunited whenever its president wants, if a
member asks it or at the Commisions request, because it has the right to take part in the
debates in order to defend its opinion. 11
Beside the legislative duties, the Councils competences are: elaborating the budget,
closing international agreements, coordinating economic policies. In the foreign
policy and security domains, as well as in the cooperation, justice and home affairs ones,
the Council adopts a specific intergovernmental operation type. Moreover, the Council is
the one who appoints members for the Court of Auditors, the Economic and Social
Committee and also for the Committee of the Regions. 12
When it comes to treaties approved by the EU, the Council authorizes the Commission to
negotiate and decide whether to sign the treaty or not. After the Treaty of Lisbon came
into force, concluding a treaty requires not only the Councils approval, but also the
EPs consent if the subject specified in the treaty is in the EPs area of consent. Is wellknown that most treaties meet this criterion, so almost all of them are subject to the
Parliaments consent power. 13

Art. 16 par.1 from the Treaty on European Union: The Council shall, jointly
with the European Parliament, exercise legislative and budgetary functions. It
shall carry out policy-making and coordinating functions as laid down in the
Treaties.14
Art. 243 from The Treaty on the Functioning of the European Union: The
Council shall determine the salaries, allowances and pensions of the President of
the European Council, the President of the Commission, the High Representative
of the Union for Foreign Affairs and Security Policy, the Members of the
Commission, the Presidents, Members and Registrars of the Court of Justice of
the European Union, and the Secretary-General of the Council. It shall also
determine any payment to be made instead of remuneration.15

11

Mirela Diaconescu - Economie european, fundamente i etape ale construciei europene, Ediia a II-a
revzut i adugit, Editura Uranus, Bucureti, 2009, p 31. Source:
http://ro.scribd.com/doc/38678316/Economia-Integrarii-Europene, accessed on October 31st, 2012.
12

Mirela Diaconescu - Economie european, fundamente i etape ale construciei europene, Ediia a II-a
revzut i adugit, Editura Uranus, Bucureti, 2009, p 32. Source:
http://ro.scribd.com/doc/38678316/Economia-Integrarii-Europene, accessed on October 31st, 2012.
13
Steve Peers with additional material by Tony Bunyan - Guide to EU decision-making and justice and
home affairs after the Treaty of Lisbon, a Statewatch publication, December, 2010, p 4. Source:
http://www.statewatch.org/analyses/no-115-lisbon-treaty-decision-making.pdf, accessed on October 31st,
2012.
14
Idem
15
Treaty on the Functioning of the European Union Source: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:en:PDF, accessed October 30th,
2012.

We have talked about at least 3 powers in the European Union, but in the end, can you
say who has the power? This is a tricky question even for scholars and practitioners of
EU affairs, so it is subject to many scientific articles and researches.
In Who Has Power in the EU? The Commission, Council and Parliament in Legislative
Decision-making, Robert Thomson and Madeleine Hosli tried to figure out the answer,
but the results of a survey among a select group of practitioners of EU affairs complicate
stuff even more.
The findings reported in the article16 have four implications. The first one refers to
understanding the balance of power between the three institutions within the period of
time the authors considered. The practitioners responses indicated that the Councilcentric view on the balance of power is the more accurate description of recent
legislative decision-making processes. However, many analyses of the EUs formal
decision-making process suggest that the European Parliament is as equal as the Council
under co-decision procedures. The co-decision covers areas such as internal market
aspects of agriculture, culture, development, energy, general affairs, health and social
affairs. The Commission and Parliament, but also some domestic and transnational
interest groups may affect the policy positions especially by exerting indirect influence
on decision outcomes.
The second implication relates to the formal procedures and their impact on the three
institutions power. Here we have great differences in the balance of power, depending on
the legislative procedure subject to the discussion. When it comes to controversial issues
which must be solved by the consultation procedure and need unanimity voting in the
Council, the EPs and the Commissions preferences are of limited relevance in
determining the outcome. The issues under consideration regard areas such as justice,
home affairs, taxation and foreign policy. The EPs and the Commissions weakness in
this regard may be explained by the fact that the European policies in the areas mentioned
are still in their infancy.
The third implication is related to the different levels of power the three institutions
have across various issues and different sources confirm that EP has more influence on
regulatory issues.
Last, but not least, the fourth implication focuses on the suggestion that the
Commission, the EP and the Council should consider and integrate in the decisionmaking process both formal and informal institutions. Some of the practitioners
interviewed in Robert Thomsons article pointed out that most of the Parliaments power
under consultation comes from the receptivity of the Commission to its beliefs, while the
Councils power is derived in part from its ability to create an united front when it deals
with the EP. If informal institutions are embraced, the balance of power may shift to the
EP. Informal institutions have unwritten rules, consist of norms of behavior, enforced by
16

Robert Thomson and Madeleine Hosli Who Has Power in the EU? The Commission, Council and
Parliament in Legislative Decision-making, Journal compilation , Blackwell Publishing Ltd, 2006.
Source: http://www.robertthomson.info/wp-content/uploads/2010/10/thomson_hosli_06JCMS_power.pdf,
accessed on October 31st, 2012.

10

the parties themselves. Moreover, informal institutions are shaped by actors distinct time
horizons, levels of resources and sensitiveness to failure. The Councils 6 months
presidencies create an advantage for the longer EPs time horizon when we talk about
negotiations. Another advantage for the Parliament is related to their resources, since
parliamentary committees focus on specific areas of policy, unlike the officials from
COREPER (Committee of Permanent Representatives) in the Council who tend to be
more generalists.
All these being mentioned, who has the power in the EU in your opinion? How important
is the European Council in the decision-making process?

11

References:
Books:
1. Augustin Fuerea - Manualul Uniunii Europene , editura Universul Juridic,
Bucuresti, 2011;
2. Mirela Diaconescu - Economie european, fundamente i etape ale
construciei europene, Ediia a II-a revzut i adugit, Editura Uranus,
Bucureti, 2009;
3. Frank Michael Hge - Decision-Making in the Council of the European
Union: The Role of Committees, Optima Grafische Communicatie, Rotterdam,
2008.

Articles:
1. Steve Peers with additional material by Tony Bunyan - Guide to EU
decision-making and justice and home affairs after the Treaty of Lisbon, a Statewatch
publication, December, 2010;
2. Robert Thomson and Madeleine Hosli Who Has Power in the EU? The
Commission, Council and Parliament in Legislative Decision-making, Journal
compilation , Blackwell Publishing Ltd, 2006
3. Pamela Bartlett - European Council decision making lacks transparency
from 11 October 2011

Internet Sources:
www.http://consilium.europa.eu
http://en.wikipedia.org/wiki/Voting_in_the_Council_of_the_European_Union
http://eur-lex.europa.eu/
http://europa.eu
http://www.publicserviceeurope.com

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