The EU has the tools to move from unanimity to qualified majority. But it’s a classic Catch-22

Vladimir Putin’s decision to launch the full-scale invasion of Ukraine is often credited with forging an unprecedented degree of political unity among the bloc’s 27 member states.

But while the unity has persevered and helped deliver previously unthinkable decisions, it has not escaped unscathed. Cracks have appeared in full public view, causing the frustration of Kyiv and the embarrassment of Brussels.

One of the main – if not the main – reasons behind these occasional episodes of malfunction are the unanimity voting rules that govern the EU’s common and security policy, which effectively grant governments the unique power to veto.

This prerogative has been conveniently invoked to block collective action, extract concessions and reshape agreements according to the priorities of one single capital. Hungary, in particular, has treated the power with exceptional acuity, stretching its veto to the very limits of the politically feasible.

It was therefore unsurprising, although remarkable nevertheless, to see nine member states, including Germany and France, form a “group of friends” to promote a gradual shift from unanimity to qualified majority voting in the field of foreign policy.

In other words, ditch the veto once and for all.

In a short statement released in early May, the group stressed that future changes would build upon the provisions “already provided” in the EU treaties, a clarification that appeared deliberately inserted to attract governments that wish for practical change but loathe the scenario of constitutional reform.

But where in the bloc’s labyrinthine legal body are these provisions to be found?

Three unused options

The debate of “unanimity vs qualified majority” is far from new and its intensity has gone through various ups and downs according to the state of world affairs.

Defenders of unanimity claim the rule encourages harder negotiations, enhances democratic legitimacy, strengthens unity, improves implementation and offers small states a shield against the demands pushed by the largest countries.

Detractors, like the group of friends and the European Commission, argue the opposite: unanimity hinders decision-making, fosters a lowest-common-denominator mindset, invites Trojan horses with malicious intentions and prevents the EU from achieving its full potential on the global stage.

The closest the EU has been to providing a definite answer to the dilemma was in December 2007, when leaders signed up to the Treaty of Lisbon and remodelled – yet again – the balance of power between the states and the institutions.

Lisbon established qualified majority – at least 55% of countries representing at least 65% of the bloc’s population – for the vast majority of policy areas but reinforced the unanimity rules in certain spheres deemed politically sensitive, such as foreign policy, taxation, the common budget and enlargement.

In foreign policy, however, the treaty timidly paved the way for certain decisions to be approved by a qualified majority as long as they do not entail “military or defence implications.” Article 31 lays out three main possibilities:

• Constructive abstention. When a member state does not agree with a collective action, it chooses to abstain rather than veto. The action is then approved and the member state, following a “spirit of mutual solidarity,” commits not to interfere.
• Special derogation. Member states can vote by qualified majority to adopt a decision that defines a common action or position but only if the decision stems from a mandate given by the European Council or a proposal tabled by the High Representative (presently, Josep Borell).
• Passerelle clause. The European Council adopts a decision that enables member states to act by a qualified majority in specific cases of foreign policy.

While the three workarounds represent a valuable addition to the EU’s way of working, their implementation has ranged from extremely limited to non-existent.

Austria, Ireland and Malta – the only three EU countries that pursue a policy of neutrality – invoked a constructive abstention last year when Brussels proposed to use the European Peace Facility, an off-budget instrument, to supply military equipment to the Ukrainian Armed Forces.

The opt-out has allowed the bloc to green-light several tranches of military assistance for Kyiv despite the reservations of the three neutral countries, which contribute to the facility by providing non-lethal material.

Still, an abstention can go only so far.

It is implausible to think a government would sit quietly and abstain from a decision that has broad implications for the European economy, such as the sweeping price cap on Russian seaborne oil, or for diplomatic relations, like the sanctions imposed on four Chinese officials for their alleged participation in the repression of the Uyghurs.

“Constructive abstention allows the abstaining member states to adhere to national specificities without blocking the way for others,” Nicole Koenig, head of policy at the Munich Security Conference, told Euronews.

“But it is not helpful when member states explicitly use their veto to protect national strategic or economic interests, as seen with the recent Hungarian veto threat regarding the European Peace Facility.”

This takes us to the special derogation of Article 31, which relates to collective actions or positions that derive from a mandate issued by the European Council or a proposal tabled by the High Representative.

At first sight, this provision seems to have a rather wide scope: after all, conclusions from the European Council deal with a variety of foreign policy issues, going from the Indo-Pacific to the West Balkans on the same page.

But the treaty is quick to slap a safeguard: if a vote changes from unanimity to qualified majority, a member state can appeal to “vital and stated reasons of national policy” to stop the whole process. This emergency brake is vaguely worded and free from any additional criteria, making it inherently prone to exploitation.

“Using this legal option with a sort of sledgehammer would, of course, have political implications,” Robert Böttner, an assistant professor of international law at the University of Erfurt, Germany, said in an interview.

“Member states could deploy this provision but probably with some sort of bargaining attached. There’s always a price tag that comes with this kind of decision.”

Burning bridges

The last option standing on the EU’s tableau is the so-called “passerelle clause,” which in part existed prior to the Lisbon Treaty. 

On paper, it is a fairly straightforward shortcut: the European Council adopts a decision stipulating that member states “shall act by a qualified majority” in specific cases of foreign and security policy.

According to analysts, EU leaders would have ample discretion to design the clause’s thematic scope and duration in time. For example, it could be used exclusively for imposing EU sanctions against Russia in the context of the Ukraine war. Other sanctions against other countries would go through the usual unanimous procedure.

“There is a lot of flexibility as regards the activation and the implementation of this clause,” Böttner told Euronews, noting the uncertainty caused by lack of precedent.

“I think member states are not quite aware of the possibilities that these passerelle clauses entail,” he went on. “Raising awareness that this clause could be limited to a narrow field of application may enhance the chances of its being activated.”

Once again, though, there is a catch. A big one.

The European Council approves its joint conclusions by consensus, a sort of euphemistic term for unanimity. This means that in order to introduce a passerelle clause to ditch unanimity, the EU would need, well, unanimity.

This contradiction, a textbook example of a Catch-22, poses a formidable obstacle to the ambitions held by the group of friends, whose transformative agenda ultimately depends on the goodwill of those it wishes to neutralise.

Would a country like Hungary, whose veto power has become a fundamental tool to defend its national interests, ever consent to any type of passerelle clause that has been specifically designed to hollow that very veto power?

In case of any lingering doubt, Budapest has already answered: it would not.

The perennial debate is poised to continue until the next round of enlargement, Nicole Koenig predicts, when countries like Albania, North Macedonia, Moldova and Ukraine could join the 27-member bloc. The analyst suggests a “super-qualified majority” with higher voting thresholds as a possible middle ground between the two sides.

“The many other policy areas that passed to qualified majority show that the EU will always remain a compromise-making machine,” Koening said.

“But qualified majority voting accelerates the process. In my view, this is key for a more agile and, in the future, larger EU.”