7.2 The Council of the European Union & The European Council

7.2 The Council of the European Union & The European Council

Official Reference: Notice EPSO/AD/427/26 – Administrators (AD 5), Section 4.3.2(c): a 30-question EU knowledge test on "the EU, its institutions, procedures, and the main policies", taken in Language 2 in Part 2 of the testing phase.

A frequent source of confusion in European administrative testing is the distinction between the three separate entities sharing the word "Council":

1. The Council of the European Union (commonly known as the Council of Ministers or simply the Council): The primary legislative and decision-making body representing Member State governments at ministerial level (Article 16 TEU).
2. The European Council: The supreme political authority of the EU, comprising the Heads of State or Government, which defines general political priorities but exercises no legislative function (Article 15 TEU).
3. The Council of Europe: An entirely separate, 46-nation international human rights organization based in Strasbourg, completely outside the legal framework of the European Union (responsible for the European Convention on Human Rights and the European Court of Human Rights).

Understanding the precise composition, internal hierarchy, rotating and permanent presidencies, and intricate voting rules of the two EU Councils is essential for high performance in the EPSO AD5 competition.

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The Council of the European Union: Constitutional Foundations

Under Article 16(1) TEU, "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."

Composition at Ministerial Level (Article 16(2) TEU)

The Council consists of a representative of each Member State at ministerial level, who must be authorized to commit the government of that Member State and cast its vote.

• Federal Flexibility: The Treaty phrasing "at ministerial level" allows federal Member States (such as Germany, Belgium, or Austria) to send regional ministers (e.g., a minister from a German Bundesland or a Belgian region/community) to represent the entire Member State, provided that minister holds the constitutional authority to cast the national vote bindingly.
• Absence of Permanent Members: Unlike the Commission or the European Parliament, the Council does not have fixed individuals as permanent members. Instead, the specific ministers attending depend on the policy agenda being debated.

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The 10 Council Configurations

The list of Council configurations is adopted by the European Council (Article 236 TFEU) and set out in the Council's Rules of Procedure. The Council currently meets in 10 configurations:

Preparatory Machinery: COREPER & Working Parties

The ministerial meetings of the Council represent only the final, visible stage of negotiation. Under Article 240(1) TFEU, the Council is prepared by the Committee of Permanent Representatives of the Governments of the Member States (COREPER):

• COREPER II: Composed of the Member States' Permanent Representatives (Ambassadors). It prepares the most politically sensitive Council configurations: General Affairs, Foreign Affairs, ECOFIN, and Justice and Home Affairs.
• COREPER I: Composed of the Deputy Permanent Representatives. It handles more technical, socio-economic configurations: Competitiveness, TTE, Environment, EPSCO, and EYCS.
• Special Committee on Agriculture (SCA): Established in 1960, the SCA operates alongside COREPER, preparing the technical legislative work of the Agriculture and Fisheries Council.
• Working Parties: Over 150 specialized working parties composed of national civil servants examine draft Commission proposals line-by-line before forwarding them to COREPER.

The "A" Item vs. "B" Item Mechanism

When a legislative file reaches the Council agenda through COREPER:

• "A" Items: Files on which complete political agreement was already reached in COREPER. These are formally adopted by the Council ministers without any debate.
• "B" Items: Controversial files where outstanding political disputes remain unresolved. These require active debate, negotiation, and formal voting by the ministers.

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The Presidency of the Council & The Trio System

The Rotating Presidency (Article 16(9) TEU)

Under Article 16(9) TEU, the Presidency of Council configurations, other than that of Foreign Affairs, is held by Member State representatives in the Council on the basis of equal rotation every six months.

The Trio / Troika System

To ensure institutional memory and multi-annual continuity across rotating presidencies, the Council introduced the Trio Presidency system (laid down in European Council Decision 2009/881/EU on the exercise of the Council Presidency). Pre-established groups of three Member States work together closely over an 18-month cycle, drafting a joint 18-month programme divided into three consecutive 6-month national presidencies.

The Cardinal Exception: The Foreign Affairs Council (Article 18(3) TEU)

A vital EPSO exam distinction: The Foreign Affairs Council is NOT chaired by the rotating presidency. Under Article 18(3) TEU, the Foreign Affairs Council is permanently chaired by the High Representative of the Union for Foreign Affairs and Security Policy (HR/VP). This guarantees single, permanent external leadership and coordinates the EU's Common Foreign and Security Policy (CFSP) across summits.

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Voting Rules in the Council of the European Union

The Council adopts decisions under three distinct voting regimes:

                  COUNCIL OF THE EUROPEAN UNION: VOTING RULES
                  
  1. SIMPLE MAJORITY (Art. 238(1) TFEU)
     • 14 of 27 Member States (Each State has 1 vote)
     • Procedural decisions, Council Rules of Procedure, Art. 241 requests
     
  2. QUALIFIED MAJORITY VOTING - QMV (Art. 16(4) TEU & Art. 238(2) TFEU)
     • Standard (on Commission proposal): 
       >= 55% of Member States (15/27) representing >= 65% of EU Population
     • Blocking Minority: 
       Must include AT LEAST 4 Member States representing > 35% of Population
     • Reinforced QMV (not on Commission/HR proposal): 
       >= 72% of Member States (20/27) representing >= 65% of EU Population
       
  3. UNANIMITY (Art. 238(4) TFEU)
     • All voting members must agree (Taxation, CFSP, Enlargement, MFF, Art. 352)
     • CRITICAL RULE: Abstentions do NOT block unanimity!
     • Constructive Abstention in CFSP (Art. 31(1) TEU)

1. Qualified Majority Voting (QMV) — The Lisbon Double Majority

Since 1 November 2014, the Lisbon Treaty abolished the complex voting weight system of the Treaty of Nice and instituted the Double Majority Rule:

Standard QMV (Acting on a Commission Proposal)

• State Criterion: At least 55% of Member States must vote in favor (currently at least 15 out of 27 Member States).
• Population Criterion: Those Member States must represent at least 65% of the total population of the European Union.

The Blocking Minority (Minorité de Blocage)

To prevent a small number of heavily populated Member States from unilaterally paralyzing legislation, Article 16(4) TEU establishes a strict structural requirement:

• A blocking minority must comprise at least four Member States representing more than 35% of the EU population.
• The EPSO Trap: If only three Member States vote against a proposal—even if those three states (e.g. Germany, France, and Italy) represent well over 35% or even 45% of the EU population—the qualified majority is deemed attained. A blocking minority cannot be formed by three states alone under any circumstances.

Reinforced QMV (Article 238(2) TFEU)

When the Council does not act on a proposal from the Commission or from the High Representative (for example, in police cooperation, appointments, excessive deficit sanctions, or certain intergovernmental measures), the threshold increases to:

• At least 72% of Member States (currently at least 20 out of 27 states);
• Representing at least 65% of the EU population.

2. Unanimity

Unanimity is required in sensitive policy domains:

• Harmonisation of indirect taxation (Article 113 TFEU) and direct corporate tax;
• Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP);
• Anti-discrimination measures (Article 19(1) TFEU) and social security and social protection of workers (Article 153(1)(c) with 153(2) TFEU);
• Accession of new Member States (Article 49 TEU);
• The Own Resources Decision (Article 311 TFEU) and the Multiannual Financial Framework (Article 312 TFEU);
• The Flexibility Clause (Article 352 TFEU).

Abstention Rule (Article 238(4) TFEU): Under primary treaty law, abstentions by members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity. Only an active negative vote prevents adoption.

Constructive Abstention in CFSP (Article 31(1) TEU): In CFSP, any Member State may accompany its abstention with a formal declaration. The state is then not obliged to apply the decision, but accepts that the decision commits the Union. However, if members representing at least one-third of the Member States comprising at least one-third of the population make such a declaration, the decision is not adopted.

3. Simple Majority (Article 238(1) TFEU)

Requires 14 out of 27 Member States (one state, one vote). It is used exclusively for procedural questions, adoption of the Council's internal Rules of Procedure, and formal requests to the Commission for studies under Article 241 TFEU.

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The European Council: Constitutional Mandate & Mechanics

Elevated to the status of a full European institution by the Treaty of Lisbon (Article 13(1) TEU), the European Council is the apex political steering body of the European Union.

Constitutional Mandate (Article 15(1) TEU)

Article 15(1) TEU defines its fundamental mission: "The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions."

Absolute Prohibition on Legislation: The European Council cannot adopt regulations, directives, or decisions having legislative character. Its output consists of Conclusions adopted at the end of each summit, which mandate future work for the Commission and the Council.

Composition (Article 15(2) TEU)

The European Council brings together:

1. The Heads of State or Government of the 27 Member States (e.g. the French President, the German Federal Chancellor);
2. The President of the European Council;
3. The President of the European Commission.

Institutional Note: The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work, but is not a formal constituent member of the European Council.

The President of the European Council (Article 15(5) & 15(6) TEU)

The Treaty of Lisbon replaced the old rotating six-month summit chair with a full-time, permanent President:

• Election & Term: Elected by the European Council by Qualified Majority for a term of two and a half years, renewable once (maximum 5 years).
• Incompatibility Rule: The President of the European Council shall not hold a national office (Article 15(6) TEU).
• Responsibilities: Chairs and drives forward the work of the European Council; ensures preparation and continuity of meetings in cooperation with the Commission President; facilitates cohesion and consensus; reports to the European Parliament after each summit; and ensures external representation of the Union on CFSP issues at Head of State or Government level, without prejudice to the powers of the High Representative.

Decision-Making in the European Council

• Consensus (Article 15(4) TEU): Except where the Treaties provide otherwise, the European Council adopts its decisions by consensus (no member present objects).
• Specific Exceptions for Formal Voting:
  • Qualified Majority: Electing its President (Art. 15(5) TEU), proposing the Commission President (Art. 17(7) TEU), appointing the High Representative with the agreement of the Commission President (Art. 18(1) TEU), adopting Council configurations and rotating presidency schedules (Art. 236 TFEU).
  • Unanimity: Determining the existence of a serious and persistent breach of Article 2 values under Article 7(2) TEU; triggering treaty revision passerelle clauses (Art. 48(7) TEU).
  • Simple Majority: Procedural matters and adopting its own Rules of Procedure.
• Voting Rule for Non-State Members (Article 235(1) TFEU): When the European Council takes a vote, the President of the European Council and the President of the Commission do not take part in the vote.