"The Reverse Majority Rule": The end of QMV?

Bimbling, as I do through the undergrowth of EU stuff, I came across a phrase that I hadn't seen before. It stuck out like a truffle on a Commissioner's salad.

The Reverse Majority Rule

Eh? Wassat?

A little more research shows it cropping up in a Rueters report from 5pm on Monday, which carried the text of Herman Van Rompuy's speech on the Task force on Economic Governance.

Whenever possible, decision-making rules on sanctions should be more automatic and based on a reverse majority rule. (my italics)

OK, so it is quite important as major economic decisions, economic sanctions against nation states, are to be made by this rule. But at this point we have no idea what this mysterious new rule is.

The next day the formal text of Mr van Rompuys's statement is released and can be found here, we get some clarification.

Whenever possible, decision-making rules on sanctions should be more automatic and based on a reverse majority rule, implying a Commission proposal is adopted unless rejected by the Council.

The BBC picked it up yesterday, and flesh the idea out a little,

They would be based on a "reverse majority rule, implying a Commission proposal is adopted unless rejected by the Council".

Under the current rules, sanctions can only be imposed if a qualified majority of member states agree to do so. The change would mean sanctions could only be blocked if a majority voted to block them.

So I had a look at the TEU (Lisbon Treaty) and could I find this innovation hidden there in the thickets of articles and so on?

Well, there are no references to "reverse majority". OK how about "Simple majority". A couple of references in Article 48 about the revision procedure on amending the Treaties, and to do so is quite a big deal as you can see, involving conventions and conferences and all that carry on,

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the
proposed amendments, the President of the European Council shall convene a
Convention composed of representatives of the national Parliaments, of the Heads
of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of
institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a
conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

Another simple majority in the Council is proposed in Article 150, but again irrelevant here,

The Council, acting by a simple majority after consulting the European Parliament, shall establish an Employment Committee with advisory status to promote coordination between Member States on employment and labour market policies.

Similarly we have Article 160

The Council, acting by a simple majority after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission.

Another Simple majority comes up in article 235, this also occurs at 31, 5,

3. The European Council shall act by a simple majority for procedural questions
and for the adoption of its Rules of Procedure.

That cannot be it. This is hardly a question of procedure now is it?

In article 240 we have another Council simple Majority, but I would contend not helpful here,

The Council shall decide on the organisation of the General Secretariat by a simple majority.

The same article repeats the procedural point. 241 talks about a simple majority needed to ask the Parliament to set up a study and 242 about the same when it comes to creating Committees. 245 states that a simple majority ofthe Council is required to sack an errant Commissioner as does 247. 337 allows the Council to grant permission to the Commission to Commission studies in the furtherance of its work.

There are of course dozens of references to "Qualified Majority", after all half the institutional battles of the past 40 years have been about a shift from unanimity to qualified majority, the slow removal of the veto and national soveriegnty. But still nothing that could qualify as a precursor to this innovation.

The workings of this intractable and arcane system can be found, for those who wish to read them at Protocol 36, Title III, Article 3 on Transitional provisions.

But the Treaty is pretty clear about the meaning of the QMV system,

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 may request that, where an act is adopted by the European Council or the Council 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 Union. If that proves not to be the case, the act shall not be adopted. (my italics)

You get the point. Nowhere but nowhere in the Lisbon Treaty is there anything even approximating the 'Reverse Majority rule". It is a consitutional neologism. From what I can work out from the explanations given it means that the nation states need to get 51% of the votes to block a proposal from the Commission rather than the Commission requiring a majority of 62% to get something passed. If so this is of enormous importance to the balance of power in the European Union and indeed would, under Mr Cameron's Referendum lock precipitate a referendum, as it is a clear transfer of powers to the EU away from the nation states. It looks like Mr van Rompuy is in "Quiet assasin" mode this week.

Now I am no constitutional lawyer, but there are a couple who deign to read this blog who are. Can you help?

Is there a legal base for this new rule? Where the devil does it come from, is it not errr... illegal under the Treaties?