Keywords

We argue that an EU government led by a united presidency will serve to calm interinstitutional rivalries between the Council and Commission, which share residual executive functions, and to improve accountability between the Council and Parliament, which share legislative functions. It would also encourage the Council to work more by qualified majority vote.

Put as simply as possible, the Council takes decisions in one of four ways: (1) by strict unanimity between all twenty-seven national governments, often needing endorsement by national constitutional procedures; (2) by consensus, a form of relaxed unanimity, sometimes helped by the constructive abstention of the minority; (3) by a simple majority vote of its members; or (4) by qualified majority vote. There are two types of qualified majority voting (QMV): the first requires a threshold of 55 per cent of the member states comprising 65 per cent of the population; the second—‘super QMV’—needs 72 per cent of the states comprising 65 per cent of the population.Footnote 1

A blocking minority of at least four states can suspend QMV and push the matter up to the European Council, composed of heads of state or government, for further discussion. Nothing is said in the treaty about what should happen at that stage in the European Council, paralysis being the default. I propose that where it has to act as an arbiter of a stalemate dispute at the level of the Council of ministers, the European Council, within a four-month period, should be obliged to determine the issue by super QMV.

Each of the five revisions of the founding Treaty of Rome—Single European Act (signed in 1986), Maastricht (1992), Amsterdam (1997), Nice (2001), and Lisbon (2007)—extended the number of decisions that can be taken by QMV and reduced the scope of the national veto. This gradual process reflects the basic federal logic of the Union. But widening the scope of QMV has always been strongly resisted by eurosceptic governments which, although committed by treaty to the endeavour of an ever closer union, remain wedded to intergovernmental methods and suspicious of the extension of supranational authority. Conservative governments have assumed that keeping the national veto preserves a semblance of national sovereignty, although they rather overlook the fact that if they keep the veto, other states will do so too. Nonetheless, on the battleground between federalists and nationalists, QMV is totemic. QMV proved so unpalatable to the British that they left the Union altogether.

Reaching Consensus

The Lisbon Treaty allows the Council to act by QMV in the field of common foreign and security policy once the European Council has decided what the Union’s strategic interests and objectives are to be.Footnote 2 It also provides for the constructive abstention of a state which, while not being obliged to apply a decision, accepts that the decision commits the Union. Unfortunately, such consensual arrangements are rarely deployed.Footnote 3 Instead, the case for unanimity in foreign policy is made by Charles Michel:

In foreign policy unanimity is required [sic]. This issue of unanimity is, as everyone knows, regularly discussed. And my opinion on it is nuanced. It is true that requiring unanimity slows down and sometimes even prevents decision-making. But this requirement pushes us to work unremittingly to unite the Member States. And this European unity is also our strength. Unanimity promotes a lasting commitment by the 27 countries to the strategies which have been developed together. So I wonder: would abandoning unanimity really be such a good idea?Footnote 4

Michel believes that extending QMV in foreign policy will reduce the pressure on a member state to respect a decision it dislikes. He speaks as if taking a vote precludes debate. He prioritises unity over action. This is a pity.

Worse, however, is the Council’s reluctance to use QMV in legislative matters even when the treaty requires it to do so. The treaty lays down intricate decision-making procedures whose intention is to establish a delicate interinstitutional balance characteristic of federal structures. There are three outstanding examples of co-decision: the ordinary legislative procedure;Footnote 5 the rules for making the budget;Footnote 6 and the process for negotiating an international agreement.Footnote 7 Failure to observe these rules scrupulously unsettles the equilibrium of EU governance and sows distrust between the Brussels institutions and among the member states.

All these procedures rely on the full use of QMV. Abandoning QMV and retreating to unanimity only serves to protect and exaggerate special interests. In the world of diplomatic trade-offs, unanimity allows one dossier to be taken hostage by another. Even the shadow of an eventual Council veto can be enough to bury a file before the informal trilogue between the three institutions gets going. Under unanimity, EU law making is laborious—resulting too often in tardy, minimalistic, compromise legislation that has a slight impact in the real world. Perpetual quest for unanimity breeds frustration and dissent. The highest common factor achieved by unanimity is always less than the lowest common denominator readily available via QMV.

QMV speeds up decision taking in the Council. The practice of regular voting imbues a democratic climate and helps the institutions articulate the general interest of the Union as a whole. Constructive abstention in any Council vote is permitted and should be deployed regularly on items of business, as can be the case, of little account to one or two member states.Footnote 8 In some cases, however, it can be rather useful for a government to be outvoted in the Council, providing a defensive shield against a hostile national press or parliament back home. QMV tames bullying by bigger member states and prevents smaller states from holding the rest to ransom. The balance between more and less populous states is always a sensitive issue, of course, and we will return later to that question when we also discuss the reweighting of seats in the European Parliament.

Comitology

We discussed earlier how many of the Council’s residuary executive functions, such as the setting of farm prices under the Common Agricultural Policy, should be transferred to the Commission.Footnote 9 An elegant way of doing this would be to allow the Council to block or amend a proposal of the Commission by a qualified majority vote. In cases where the dissenting threshold is not reached in the Council, the Commission’s original proposal will stand. ‘Reverse QMV’ shifts the balance of advantage from the Council to the Commission. Its practice is becoming steadily more common, as we see in certain economic policy decisions and in procedures known as ‘comitology’ through which the legislature delegates executive functions to the Commission.

In an attempt to rationalise the heap of expert and advisory groups of national civil servants which make up comitology, the Convention and then the Lisbon treaty installed two types of delegated power on the Commission. The first type comprises ‘delegated acts’ that empower the Commission to amend certain non-essential elements of an original directive or regulation subject to there being no objection from the Council (acting by QMV) or Parliament (acting by an absolute majority of its deputies) within a specified deadline.Footnote 10 Delegated acts are akin to tertiary legislation of general application. The second method of delegation consists of acts that confer on the Commission powers to implement a regulation uniformly within the member states under national supervisory control.Footnote 11 Examination of the delivery by the Commission of its ‘implementing acts’ is farmed out to a variety of comitology committees composed of representatives of the member states. Parliament has no co-decision over implementing acts. Naturally, Parliament prefers the use of delegated acts, and the Council of implementing acts.

Although an acquired taste, drawing the distinction between delegated and implementing acts goes to the heart of the matter of defining the Union’s executive. How to choose is elaborated in an Interinstitutional Agreement on better law making of 2016.Footnote 12 But all is not so simple. The choice between the two turns on whether the executive act amends or supplements the primary law or whether it does not—a matter that can often only be tested once the executive action is underway [Craig and de Burca 2020, pp. 151–159]. However, the precise purpose, scope and duration of a delegated act have to be explicitly defined in the original law enacted according to the ordinary legislative procedure. Likewise, in an implementing act, the original regulation must lay down in advance the rules concerning the control mechanism to be used by the member states. How controversial the implementation of EU law can be is vividly demonstrated by the row on the taxonomy regulation on gas and nuclear energy where the route of the delegated act was chosen.Footnote 13 As soon as some members of the Council woke up to the far-reaching nature of the Commission’s green taxonomy proposal, a fierce reaction set in.

The Passerelles

At the last general revision of the treaties, the time was not ripe for a wholesale move from unanimity to QMV. That is why the Lisbon Treaty introduced a transitional device to permit future advances in the federal direction to be made as and when political will coalesces behind such change. The passerelle or bridging clauses allow the European Council to decide, by unanimity, and subject to a veto by any single national parliament, to shift a decision-making procedure from unanimity to QMV or to replace a special law of the Council (where the European Parliament is only consulted or given the right of passive consent) by an ordinary law co-decided by Council and Parliament. To date, none of these passerelles has been crossed.

Furthermore, in the retrograde step back from the Constitutional Treaty of 2004 to the Lisbon Treaty of 2007, an extra clause was added that expressly proscribes the use of the passerelle to modify four key articles:Footnote 14

  • the decision on the system of revenue (‘own resources’);Footnote 15

  • the decision on the multi-annual financial framework (MFF) of the Union;Footnote 16

  • the decision to use the ‘flexibility clause’ (which allows special measures to be introduced to achieve treaty objectives where the treaty does not provide the necessary powers to do so);Footnote 17

  • the decisions necessary to suspend the voting rights of a member state found in breach of the rule of law.Footnote 18

On these issues, therefore, the Council continues to be encumbered by unanimity, with the Parliament playing a subsidiary role. If the Union is to escape from its confederal entanglement, all these prohibitions on the scope of the passerelle should now be dropped. Operation of the important general passerelle clause should itself be shifted from unanimity to super QMV.Footnote 19 And the unilateral veto of any one national parliament on the use of the passerelle should be replaced by the threshold of one-third of all national parliaments (that is, nine) in conformity with the EU’s normal subsidiarity procedures (by which national parliaments can question the passage of a draft EU law on the grounds of a breach of the subsidiarity principle).Footnote 20

Organic Laws

As the Union modifies its decision-making procedures in a federal direction, it would be well advised to institute a new class of organic law applicable for certain specified and sensitive cases. Organic laws would be subject to the passing of higher qualified majority thresholds in both Council and Parliament.Footnote 21

In the first case, organic laws would replace all the current special laws of the Council that oblige ministers to act unanimously while they avoid co-decision with the Parliament. The persistence of special laws of the Council is particularly deleterious in the making of a common policy in the field of indirect taxation and over the approximation of national laws and regulations affecting the functioning of the internal market.Footnote 22 Organic laws should also replace those special laws of the Council where differences between national practice are abnormally large, for example, concerning harmonisation of family law with cross-border implications;Footnote 23 some aspects of social security and worker protection;Footnote 24 and the choice and structure of energy supply.Footnote 25

Furthermore, organic laws should be introduced for issues of particular delicacy that tread directly on to the formerly sovereign territory of the states and/or have serious budgetary, security or constitutional implications. These would include the following:

  • Article 7(2) TEU on a serious and persistent breach of the rule of law by a member state

  • Article 14(2) TEU on seat apportionment in the European Parliament

  • Article 19 TFEU on measures to combat discrimination

  • Article 22 TFEU creating new citizenship rights

  • Article 77(3) TFEU on the policing of national border controls

  • Article 89 TFEU on cross-border police operations

  • Article 126(14) TFEU on the terms of the stability and growth pact

  • Article 223 TFEU on the electoral law of the European Parliament

  • Article 311 TFEU on the own resources decision

  • Article 312 TFEU on the multi-annual financial framework

  • Article 329(2) TFEU on enhanced cooperation in foreign and security policy

  • Article 341 TFEU on the location of the seats of the institutions

  • Article 342 TFEU on the rules governing the languages of the institutions

  • Article 352(1) TFEU governing the use of the ‘flexibility clause’.

The introduction of quasi-constitutional organic laws to the hierarchy of norms will enhance the simplicity and transparency of law making while ensuring important political guarantees for certain states’ rights whose radical alteration would affect the balance of power within the Union.

Enhanced Cooperation

Over the years, as the number of states steadily increased, it became fashionable to countenance a more differentiated approach to integration [Piris 2012]. Constructive provisions were installed in the treaties to allow for ‘enhanced cooperation’ between member states wishing to go forward further and faster in areas of non-exclusive competence, maximising the use of QMV, while leaving the rest to catch up later.Footnote 26 However, the integrationist group (of at least nine states) can advance only “as a last resort” when consensus in the wider Council is unachievable, and where the essentials of the internal market are not to be distorted.Footnote 27 In the area of judicial cooperation in criminal law, and in police cooperation, enhanced cooperation is propelled forward automatically if blockage persists in the Council as a whole.Footnote 28 The establishment of the office of the European Public Prosecutor was accelerated in this way (by twenty-two states).Footnote 29

In practice, however, there has been strong resistance to using these enhanced cooperation rules elsewhere, and to date they have only been deployed to advance the matter of a patents’ court, to cater for divorce law and to smooth property rights for international couples. The Union seems to have lost the political will to develop internal differentiation much beyond the Schengen area and eurozone. Whenever the Commission proposes the wider use of enhanced cooperation, as in the harmonisation of taxation policy, there is a procedural row. The Council has clung to unanimity and one-size-fits-all proposals even when it has been unreasonable to do so. Coalitions of willing states have been slow to form. Therefore, to encourage enhanced cooperation among the more progressive member states, the “last resort” condition should now be dropped. And the Commission should be less finickity in its assessment of when the formation of a core group affects adversely the operation of the internal market.

In the field of common foreign and security policy, too, there has been a reluctance to mandate (by unanimity) a small group of states to act on behalf of the Union as a whole.Footnote 30 This has led to the formation of ad hoc groups outside the Union framework, lacking the kudos and cost-efficiency involved in utilising EU methods and reducing the incentive for more cautious member states to participate. The so-called Normandy format, where France and Germany freelanced without an EU mandate in talks with Russia and Ukraine, allowed President Putin ample scope to sow the seeds of division among the EU partners. In the area of security and defence policy, a tentative beginning has been made to deepen military integration in the form of permanent, structured cooperation in defence (PESCO), but the original intention to make the defence core group an exclusive club of those states able and willing to fight has been diluted in practice.Footnote 31 We return to PESCO in Chap. 8.

International Treaties

Another source of tension between the vote and the veto concerns the decision-making procedures to conclude and ratify the EU’s international treaties. In principle, those procedures accord with those laid down for the internal order of the Union. So a simple trade agreement—EU exclusive competence—can be agreed by QMV and ratified by the European Parliament without recourse to national parliaments.Footnote 32 But an international agreement that includes provisions, for example, on labour or environmental standards—EU shared competence—may be ordained by the Council to be a ‘mixed agreement’ and therefore subject to more onerous decision-making involving unanimity and national ratification. Similarly, broad association agreements and those containing an element of cooperation in common foreign and security policy are also subject to the heavier procedure.Footnote 33 Some member states police the mixity boundaries with rigour—and none more so than France which has a strongly protectionist stance when it comes to cultural and language issues. For such matters, unanimity is required in Council.Footnote 34

This leads to trouble. After six years of negotiation, the (fairly simple) Comprehensive Economic and Trade Agreement (CETA) with Canada was concluded in 2014 and entered into force on a provisional basis in 2017 pending its full ratification by the twenty-seven member states. In federal Belgium, the constitutional processes included the assent of the regional parliament of Wallonia based in Namur which was, for reasons of its own, hostile to the agreement. In 2019 the Court of Justice delivered a favourable opinion on CETA’s investor-state dispute resolution—but not all EU states have yet ratified the treaty. In the light of experience, the Commission and European Parliament, helped along by the Court of Justice, have tried to limit the scope of mixed agreements so as to avoid such paralysis. As comprehensive, portmanteau, mixed agreements are taking years and years to negotiate and ratify, they are going out of fashion. If adopted, our proposal to use the passerelle to switch decision-making to QMV should in any case ease the problem for the future.

Unloosing the Treaty Straitjacket

The Union has not only tied itself up in knots with respect to secondary legislation but to primary law also. Unlike other federal states, notably the US, or international organisations, such as the United Nations, the World Health Organization or the International Labour Organisation, the EU’s constitutional treaties cannot be changed one jot or tittle without rigid unanimity between governments, followed by ratification in every member state—which may involve the cost and trauma of a national referendum.Footnote 35 Lisbon introduced a slightly simplified revision procedure for those parts of the treaties which deal with the internal policies of the Union (but do not confer new competences on the Union), but the European Council still has to act only by unanimity and national ratification by all still applies.Footnote 36

These improbable conditions placed on treaty revision, even of a minor kind, turn any decision to embark on reform into a drama. By continuing to insist on unanimity to change the treaties, the EU has tied itself into a straitjacket. It has fallen victim to historical fallacy. Thus, trapped in confederate mode, the bloc looks increasingly antiquated.

The good news is that, under the Lisbon Treaty, future treaty amendment now involves the calling of a Convention (at the insistence of the Parliament) before the usual intergovernmental conference (IGC) takes place.Footnote 37 The Convention introduces an important new dynamic to the constitutive process. Whereas the IGC needs unanimity among the national governments, the Convention works by achieving consensus among all its component parts—member states, the Commission, MEPs and MPs. In the Convention, governments cannot just say no: good ideas surface by force of argument; bad ideas sink. The innovation of the Convention suggests that the treaty revision process is not quite as immutable as the nationalists would like.

The Conference on the Future of Europe is agreed on the need to amend the treaties. It is a pity therefore that it has not also been able to suggest a modification of the procedure on how to change the treaties in the future. I suggest that future treaty amendments with respect to the internal policies of the Union should be adopted, after referral for an opinion to the European Court of Justice, by a vote of three-quarters of the states and two-thirds of members of the European Parliament. For the nostalgic, this would effectively resurrect the flexibility displayed in the first and most federal of the EU treaties, the Treaty of Paris, which established the European Coal and Steel Community in 1952.Footnote 38

As far as the revision of the more ‘constitutional’ articles of the treaties is concerned, the states will prefer to continue acting by common accord. But the drafting process can be made more open, fluent and democratic by enhancing the role of the Convention. A citizens’ assembly, learning from the experiment of the Conference on the Future of Europe, could usefully accompany the Convention process. I would also recommend that formal proposals sent from the Convention to the IGC should be allowed to stand unless they are reversed at the IGC with the heads of government acting by QMV.Footnote 39

Moreover, and in any case, all future treaty amendments should enter into force as soon as they are agreed by the European Parliament and ratified by, say, four-fifths of the member states. This important reform would bring the Union more into line with all other federal states or international organisations.Footnote 40 It would relieve the Union of the threat of a unilateral veto by one or two nationalistic national parliaments or disjointed, stray referendums. The pitfall of national referendums might also be disadvised by the inclusion in the treaty of rules laying down the conditions for an occasional pan-EU referendum, to be deployed from time to time to sanction major constitutional change [Vibert].

In a federal union, voting is normal and vetoing rare. The recommendations made here give effect to the wishes of those in the Conference on the Future of Europe who want a more fair, modern and democratic Union. Those who would resist them may have to live with the consequences of a paralysed Union when the next political crisis confounds its institutions and divides its member states.