Packaging Regulation: QMV and the Ordinary Legislative Procedure
During a trilogue on a proposed regulation on packaging and packaging waste, the Council presidency reports that 14 Member States, representing 62% of the EU population, support the compromise text; 12 Member States, representing 36% of the population, oppose it; one Member State abstains. The Commission proposal is the basis of the talks. The European Parliament's first-reading position contains 340 amendments, including a ban on certain single-use formats from 2030. The Council legal service warns that the compromise should change the legal basis from Article 114 TFEU to Article 192 TFEU. The EP rapporteur says the committee will reject any text that weakens the 2030 date. The presidency wants to put the compromise to a Council vote next week, then send it to Parliament for a second reading. A Council official asks whether the presidency can secure adoption and what happens if the EP does not accept the Council position within three months.
1. Can the Council presidency adopt the compromise as the Council's position? Set out the qualified-majority calculation, including the abstention and the blocking minority.
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Under Article 16(3) TEU and the QMV rules, where the act is proposed by the Commission, the Council acts by 55% of Member States (at least 16) representing at least 65% of the EU population. Fourteen supporting states are below the 16-state threshold, so the presidency cannot adopt the position on this count, even though 62% of the population is represented. The 12 opposing states represent 36% of the population, which exceeds the 35% blocking-minority threshold and comprises more than four states; a blocking minority therefore exists. The abstention is not a vote in favour and does not count toward the 55% or 65% thresholds. The presidency should not put the text to a vote unless it can shift at least two more states into support or reduce the opposition below the blocking threshold. If the act were not Commission-proposed, the thresholds would be 72% of states and 65% of population, making adoption even harder.
2. What legal and procedural consequences follow from the Council legal service's advice that the legal basis should change from Article 114 to Article 192 TFEU?
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The legal basis must reflect the objective centre of gravity of the measure, not the institutions' preference. Article 114 supports internal-market measures and requires the ordinary legislative procedure; Article 192(1) is the environmental legal basis, also ordinary legislative, but Article 192(2) reserves certain matters to unanimous Council voting. A shift is not a technicality: it changes the decision-making rules and the scope of the EU's competence. If the Council changes the legal basis after the EP's first reading, the EP must be reconsulted, because the change affects the framework of the act and may alter the amendments' legal effect. The Commission must also be involved; it can amend its proposal or withdraw it. The presidency should obtain a fresh Commission proposal or legal opinion and not rush the vote. Trilogue agreement cannot cure a wrong legal basis.
3. If the Council position is sent to the EP and the EP does not act within three months, what happens? What majorities would the EP need to reject or amend the Council position?
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Under Article 294(7) TFEU, the EP has three months from communication of the Council position, extendable by one month at the EP's request, to approve, reject, or amend it. If the EP does not take a decision within that period, the act is deemed adopted in the wording of the Council position. Approval requires a majority of votes cast. Rejection requires an absolute majority of the EP's component members, not merely a majority of those voting; the same absolute-majority threshold applies to amendments. If the EP rejects the text, the act is not adopted and the procedure ends; there is no conciliation after a second-reading rejection. If the EP adopts amendments, conciliation may follow. The presidency's plan therefore depends on the EP acting within the deadline; silence favours the Council text, but the political legitimacy of that outcome is fragile.