The Debate on Unanimity: Need to Reform EU from Inside
Legal - September 2, 2023by Ulderico de Laurentiis
The issue of unanimity within the European Union has become increasingly central especially in the aftermath of the Russian-Ukrainian war, which has made the European states even more united with each other and especially brought forward the need to integrate other nations, including Ukraine, into the big EU family.
And hence the discussion regarding the well-known principle of unanimity, which has so far governed major decisions in the EU.
According to this principle, the EU Council votes unanimously on certain matters that are considered particularly sensitive and are detailed in the treaties. These matters include those of common foreign and security policy, those related to EU membership, and European finances.
In addition to this, the Council votes unanimously to depart from the Commission’s proposal when the Commission is unable to accept the changes to its proposal. However, in the case of a unanimous vote, even if there is an abstention, this does not prevent a decision from being adopted. In addition, each state also has a veto right that can be used to block collective actions, wrest concessions and reshape agreements according to the priorities of individual governments.
Theoretically, this principle would not seem to create problems within the EU. But then why is it talked about so much?
Because in the reality of the facts, not all decisions that had to be made through unanimity were straightforward, including those concerning, for example, military support for the Kiev government.
As a result, the unanimity system has led to some obstacles in arriving smoothly at key decisions for the European Union.
And precisely for this reason some time ago nine member states founded the so-called ‘Group of Friends’. This group is composed of Belgium, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Slovenia and Spain, which have joined together to give a more pragmatic slant to European foreign policy, with the intention of wanting to gradually move away from the unanimity system. Underlying this orientation is also the fact that according to the Group of friends and others, continuing with the principle of unanimity makes it easy for decision-making to be hindered in some way, for the influence of foreign powers to be fostered, and consequently for the European Union to be prevented from fully realizing itself on the world stage.
Proponents of overcoming unanimity refer to other options in the treaties.
In fact, the 2007 Lisbon Treaty provides for the qualified majority criterion (i.e., at least 55 percent of the EU countries, with at least 65 percent of the total population) for the majority of policy areas. However, some important subjects, such as foreign policy, fiscal rules, the EU budget and enlargement to new members, remain excluded and remain under the unanimity principle.
In particular, unanimous voting could be legally overcome by taking into consideration that in foreign policy, qualified majority approval of certain decisions can be made as long as there are no military or defense implications. Specifically, there are three possibilities for doing so. The first concerns so-called constructive abstention, under which a member state may abstain rather than veto. In this way, the decision is adopted without its approval. The second option concerns the special derogation, whereby member states may adopt by qualified majority a decision resulting from a mandate from the European Council or a proposal submitted by the EU High Representative for Foreign Affairs. Finally, the third option, and the most discussed, is that of so-called passerelle clauses. With such clauses, the European Council can be given the power, acting unanimously, to decide, after consulting the European Parliament, to make the ordinary legislative procedure applicable to specific issues, namely family law having cross-border implications, social policy, and environmental policy. In addition, passerelle clauses also give the European Council the power to decide to act by qualified majority.
Attention as already mentioned should be paid especially to the last option. Theoretically, this option should work rather simply, that is, the European Council takes a decision that member states should vote by qualified majority in specific foreign and security policy cases. In short, national leaders tell their ministers to avoid the unanimity rule in certain circumstances.
But even this option has a not-so-subtle flaw. Namely, that to introduce a passerelle clause, and thus to circumvent unanimity, one paradoxically needs to resort to the very principle of unanimity.
It is thus that a vicious circle is set in motion, for which in reality the only solution appears to be to amend the treaties themselves. This is certainly not an easy procedure and one that, should it be considered, is not likely to be an unimpeded path for the very life of the European Union.
The issue on unanimity is thus at the center of the public debate, mainly because according to supporters of overcoming it, it is an issue that prevents Europe from producing tangible and solid results. Overcoming it, on the other hand, especially in the areas of security and foreign policy, could give us the chance to operate better in the future, starting with the Ukrainian dossier itself.
According to those who want to overcome unanimity, moreover, such a change would also make it possible to improve the effectiveness and speed of EU foreign policy decision-making.
Among those who support unanimity instead are Hungary and Poland, which have always supported the unanimity voting rule in EU foreign and security policy. But these countries also want to innovate certain aspects of the Eu, so much so that they intend to set up a common front of like-minded eu countries. This move was made last May to counter the countries of the so-called group of friends.
According to what the Ecr group argued, unanimity to date is still a safety valve in European decision-making. In fact, in this regard, it proposed an amendment in this regard last July 5. In this document, regarding the amendments regarding the ‘Implementation of ‘passerelle’ clauses in the EU Treaties’, Jacek Saryusz-Wolski, on behalf of the ECR Group, we can read that “in the Council continues to be one of the biggest security valves guaranteeing the sovereignty of the Member States; whereas the majority of the Member States use the veto right to safeguard their vital national interests” and that “effectively ensure unanimity in specific policy areas that are vital to Member States’ interests, as stipulated in the Treaties, so that no Member State is forced to take decisions against its will; further believes that unanimity is an indispensable means of building trust and respect between all the sovereign Member States willing to cooperate in the Union”.
The issue of unanimity well highlights how the reform of the European Union is increasingly central and becoming crucial in the public and institutional debate, especially in light of the historical changes that more or less directly involve the Eu. Regardless of whether or not we support the principle of unanimity, however, it should be emphasized that reforming political Europe is necessary, even and especially in view of its enlargement and the inclusion of new and different countries. Therefore, this is the central issue on which to reason, regardless of the treaties and current rules, namely, how to make the European Union more ready to respond to the needs of this complex time and able to accommodate new members, making them active participants in decision-making in an institution capable of responding to crises on the most sensitive issues quickly and more effectively, capable of synthesizing the feelings of each member belonging to the European Union.