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Five Years of Transitional Provisions according to Protocol No 36

Transformation, Transition, Reincarnation, or as You may wish. Source: Google images

Transformation, Transition, Re in c a r n ation, or as You may wish. Source: Google images

Protocol (no 36) on transitional provisions has been added to the TEU, to the TFEU and to the Treaty establishing the European Atomic Energy Community (Published in OJ 115, 2008, pp. 322-326), containing Provisions concerning the European Parliament (Title 1), Provisions concerning the qualified majority (Title 2), Provisions concerning the configurations of the Council (Title 3), Provisions concerning the Commission, including the High Representative of the Union for Foreign Affairs and Security Policy (Title 4), Provisions concerning the Secretary-General of the Council, High Representative for the Common Foreign and Security Policy, and the deputy Secretary-General of the Council (Title 5), Provisions concerning advisory bodies (Title 6), Transitional provisions concerning acts adopted on the basis of Titles V and VI of the TEU prior to the entry into force of the Lisbon Treaty (Title 7).

What does one exactly get to know from the Protocol?

• First, from Article 6 one reads that the legal effects of the acts of the institutions, bodies, offices and agencies of the EU adopted on the basis of the TEU prior to the entry into force of the Lisbon Treaty are preserved until those acts are repealed, annulled or amended in implementation of the treaties. The same applies towards the agreements that are concluded between the member states on the basis of the TEU.

• Concerning state infringements – no longer than until five years after the date of entry into force of the Lisbon Treaty, the powers of the European Commission under Article 258 of the TFEU are not applicable in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Lisbon Treaty.

• From Article 3 (1) one may read that the provisions of Article 16 (4) of the TEU and of Article 238 (2) of the TFEU on the definition of the qualified majority in the European Council and the Council of the EU take effect on 1 November 2014.

• From Article 3 (2) one may read that between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined here in paragraph 3, and if this is the case, paragraphs 3 and 4 shall apply.

• From Article 3 (3) one may read that until 31 October 2014, for acts of the European Council and of the Council of EU requiring a qualified majority, members’ votes shall be weighted as follows:

• Germany; France; Italy; United Kingdom – 29

• Spain; Poland – 27

• Romania – 14

• Netherlands – 13

• Belgium; Czech Republic; Greece; Hungary; Portugal – 12

• Bulgaria; Austria; Sweden – 10

• Denmark; Ireland; Lithuania; Slovakia; Finland – 7

• Latvia; Estonia; Cyprus; Luxembourg; Slovenia – 4

• Malta – 3

Acts shall be adopted if there are at least 255 votes in favour representing a majority of the members where, under the treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 255 votes in favour representing at least two thirds of the members.

A member of the European Council or the Council of the EU may request that, where an act is adopted by the European Council or the Council of the EU by a qualified majority, a check is made to ensure that the member states comprising the qualified majority represent at least 62 % of the total population of the EU. If this is not the case, the act shall not be adopted.

Until 31 October 2014, the qualified majority is, in cases where, under the treaties, not all the members of the Council participate in voting (under QMV as understood in Article 238 (3) TFEU) is defined as the same proportion of the weighted votes and the same proportion of the number of the Council of the EU members and, if appropriate, the same percentage of the population of the member states concerned as set in Article 3 (3) of the Protocol.

From Article 7 of the Protocol one may read that until the entry into force of the decision referred to in Article 301 of the TFEU, the allocation of members of the Economic and Social Committee is as follows:

• Germany; France; Italy; United Kingdom – 24

• Spain; Poland – 21

• Romania – 15

• Belgium; Bulgaria; Czech Republic; Greece; Hungary; Netherlands; Austria; Portugal; Sweden – 12

• Denmark; Ireland; Lithuania; Slovakia; Finland – 9

• Estonia: Latvia; Slovenia – 7

• Cyprus; Luxembourg – 6

• Malta – 5 

From Article 8 of the Protocol one may read that until the entry into force of the decision referred to in Article 305 of the TFEU, the allocation of members of the Committee of the Regions is as follows:

• Germany; France; Italy; United Kingdom – 24

• Spain; Poland – 21

• Romania – 15

• Belgium; Bulgaria; Czech Republic; Greece; Hungary; Netherlands; Austria; Portugal; Sweden – 12

• Denmark; Ireland; Slovakia; Finland; Lithuania – 9

•Estonia; Latvia; Slovenia – 7

• Cyprus; Luxembourg – 6

• Malta – 5

Also other important protocols are added to the treaties that I am trying to reflect here in due course.



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