The Case for Ending Unanimity in EU External Policy
By Valentin Deleniv, Policy Brief Coordinator
Lately, the EU has found itself paralysed due to unanimity requirements which allow individual Member States to veto official initiatives. In recent memory, this has touched on policy areas ranging from the activation of Article 7 TEU against Hungary to the introduction of a minimum corporate tax rate and imposition of an oil embargo on Russia.
Although a compromise was reached at the end of May in the latter case, the experience has left a bad taste in policymakers’ mouths and has revived calls to replace unanimity with qualified majority voting (QMV), at least when it comes to sanctions.
So what is at stake with unanimity voting? What opposition is there to its abolition? Can this resistance be overcome and if so, how?
Unanimity is required only when deciding on what are seen as matters of vital national importance, namely foreign policy, taxation, and enlargement. It is therefore used for less than 10% of EU legislation.
But the past few months and years have shown that these policy areas are among the most vital to the EU’s effective functioning. In the case of attempts to activate Article 7 against Hungary and Poland (which would remove their voting rights), unanimity has frustrated the EU’s efforts to prevent Budapest and Warsaw’s democratic and rule-of-law backsliding. This poses a threat to the entire European legal order and creates free-rider problems as Member States can no longer be sure that the EU’s laws will be applied equally and fairly.
From a foreign policy perspective, the compromise on a partial oil embargo against Moscow is also demonstrative of how unanimity threatens the EU’s ability to act effectively abroad. After all, if unanimity is needed to pass sanctions or to welcome new member countries, then foreign powers need only sway one Member State in order to sabotage the entire collective decision-making process.
The most obvious way to get rid of unanimity would be to change the EU’s treaties. The problem, however, is that this would require … unanimity. One alternative would be to use the passarelle clause in Article 31 TEU, which would allow the European Council to make decisions by QMV without changing treaties, but (surprise surprise) this also requires unanimity.
One idea that has been floated is that of using the EU Common Foreign and Security Policy’s (CFSP) ’enabling clauses’, which allow for the implementation of the EU’s ”strategic interests and objectives” (defined by the European Council via unanimity) using QMV. A more radical approach would be to create a new organisational structure outside the EU (a ’Political Compact’) whereby interested parties would commit themselves to deeper integration via supermajority.
But in addition to institutional obstacles, there are also strong interests among the Member States militating against scrapping unanimity. Because QMV requires agreement among 55% of Member States and 65% of the EU population, smaller Member States worry that larger ones will disregard their interests. Meanwhile, Eurosceptic governments will oppose further intrusion on their countries’ sovereignty and challenges to their attacks on democracy and the rule of law. Ultimately, these contentions are rooted in questions regarding the fundamental nature of the EU and the extent to which it will be organised along supranational versus intergovernmental lines.
Thus, while the EU has the opportunity to make greater use of existing tools such as the CFSP’s ’enabling clauses’, opposition from Member States means that in many cases it will have to continue relying on unpleasant compromises.
Yet, the EU’s history can in many ways be described as one of lurching from crisis to crisis, solving problems through incomplete integration (due to Member States’ reluctance to part with their sovereignty), which in its turn creates new problems that have to be resolved through further (and imperfect) integration. In this sense, the current moment of crisis presents a unique opportunity to forge consensus on a closer union.
But waiting around for things to get bad isn’t exactly actionable advice; there are already several things Member States can do to lay the groundwork for a broadly-legitimate QMV. Firstly, larger Member States (I’m looking at you, Olaf and Manu) need to do more to accommodate the interests of smaller ones. Germany’s ridiculous Nord Stream 2 policy and its waffling over Russia’s invasion of Ukraine has decimated Central and Eastern European states’ trust in it. It will need to do much better if it’s going to persuade others to support a closer union.
Meanwhile, introducing greater democratic accountability would help legitimate QMV in the eyes of the EU’s citizens (not to mention address the Union’s long-standing democratic deficit). In this light, Jürgen Habermas’ 2015 suggestion of creating a ’double sovereign’ EU rooted in an empowered European Parliament (that is nonetheless co-equals with the Council of Ministers) is a sound one.
One final thing to consider (and it really will have to be the final thing because this subject is a bit of a rabbit-hole) is that if QMV is introduced for sanctions-related decisions, EU-level enforcement powers will have to be strengthened. In the past, unanimity voting meant that — by definition — Member States were willing to implement sanctions. By contrast, QMV creates the possibility of being outvoted and therefore of non-compliance. This is a tricky matter in its own right as there’s no clear legal basis in the treaties for creating something akin to the U.S. Office of Foreign Assets Control; one option is to extend sanctions competency onto existing institutions, such as the European Banking Authority.
In sum, growing internal and external challenges mean that the EU cannot afford to be paralysed. Although it’s likely that some policy areas such as military action will always remain subject to unanimity (and rightly so), there is scope to extend qualified majority voting to areas like sanctions (other issues like Article 7 or taxation deserve a brief of their own). Institutional obstacles and opposition from Member States mean that this is unlikely to happen anytime soon. External pressure may prove to be the decisive factor, but the best thing European leaders can do to create support for such a move is to work towards a better union — one that is more mindful of its smaller members’ interests and more democratic.
What we’re following …
Something I’ll be keeping my eye on in the coming weeks is how the arrival of American HIMARS (a light multiple rocket launcher) systems in Ukraine will turn the tide of the war. This Twitter thread by Franz-Stefan Gady of IISS makes an interesting point about why this will matter, namely that if Ukraine fails to make significant gains soon, it will play into the hands of naysayers in the West who say military aid is in vain, while success might open the door for even more weapons deliveries.
What we’re reading …
I’m now on the final chapter of Kiran Klaus Patel’s Project Europe: A History, which explores the history of the European Community/European Union, focusing mostly on the pre-1990s. The book goes into all kinds of nitty-gritty details which we might otherwise think quite dry, but which actually provide colourful illustrations of how we got to where we are now (such as how a legal dispute between Germany’s competition regulator and a retail company that wanted to import French blackcurrant liqueur established an important precedent for greater market integration). The book also dispels some of the prevailing teleologies regarding the EU’s development and its role in the continent’s history (especially with regard to the creation/maintenance of peace post-WWII). I highly recommend it for the Euro-nerds out there.
James: Anthea Roberts and Nicolas Lamp’s Six Faces of Globalization: Who Wins, Who Loses, and Why it Matters assesses the role of human psychology and the collective narratives that shape our worldviews in the field of geopolitics. Rather than simply reiterate the typical discourses of globalisation, it appraises the ‘why’ and ‘how’ for six distinct worldviews that define contemporary globalisation. ‘Why’ do these narratives of globalisation influence human psychology, and ‘how’ have external events led to these worldviews?
Meanwhile, Francis Fukuyama’s Political Order and Political Decay makes the reader appreciate the role of strong and accountable public institutions in the management of a country. It assesses successful examples of public administration, both historic and contemporary, but also failed examples of such. Importantly, it highlights why public institutions are successes or failures, identifying common factors that determine the fate of these institutions.
