Year LXIII, 2021, Single Issue, Pre-print
ABOLISHING THE POWER OF VETO
VOTING SYSTEM REFORM IN THE
COUNCIL AND EUROPEAN COUNCIL*
There is no doubt that the need to overcome the power of veto held by Europe’s single member states, and extend majority voting to all the areas in which the EU has competence, is a key issue at the heart of debate on the future of European integration. Abandoning the unanimity method, in those areas where it is still used, and replacing it with qualified majority decision making is, in fact, one of the essential reforms for freeing the EU from the hold that member states still have over its functioning, and thus for allowing it to be turned into a federation. However, it is important to be clear that reform of the voting systems used in the bodies that directly represent the member states is not enough, by itself, to result in the creation of a federal union, as there are further steps that need to accompany this reform.
Unanimity: the Decision-Making Method Used in the Areas at the Heart of State Sovereignty.
Unanimous decisions continue to be required in some areas crucial to the running of the EU. Indeed, even though recourse to such decisions in the Council has certainly declined considerably since the birth of the European Economic Community (in favour of the qualified majority method), it should be noted that in the two areas representing the hard core of sovereignty, unanimous agreement of the member states is still required for decisions within both this body and the European Council. These two areas are: i) taxation and ii) foreign policy and defence. With regard to the first of these, the Council members decide, unanimously, the size of the EU budget and the nature and extent of the various resources that will finance it, and these decisions are then ratified by the member states; similarly, the Multiannual Financial Framework (MFF) is decided unanimously, and all foreign policy and defence decisions taken by the Council or the European Council require the unanimous consent of the member states. Furthermore, the need for unanimous decisions in these two areas by the European bodies representing the national governments is reinforced by several provisions that further underline the member states’ determination to continue controlling the competences that define state sovereignty.
First of all, in both of the above fields, not only must Council and European Council decisions be unanimous, the European Parliament is almost entirely excluded from the decision-making process. Indeed, when it comes to deciding on own resources, and also common foreign and security policy (CFSP), the Parliament is merely consulted. Moreover, with regard to CFSP, art. 31 TEU specifies that “the adoption of legislative acts shall be excluded”, thereby ruling out the possibility of adopting decisions through a procedure (the ordinary legislative one) that places the European Parliament and the Council on an equal footing.
Furthermore, while it is true that the Treaties (through specific provisions or, more generally, the terms of art. 48 TEU) include so-called passerelle clauses that give the European Council (or in specific cases the Council), acting unanimously, the possibility, within a given area, to “modify the decision-making rules that affect acts of the Council, by allowing a shift from unanimity to qualified majority voting or from a special legislative procedure to the ordinary legislative procedure”, it is important to note that the Treaty expressly prohibits their application both in the case of “decisions with military implications or those in the area of defence”, and in the situations outlined in art. 311, paragraphs 3 and 4, and art. 312, paragraph 1, par. 2, TFEU, which concern decisions on own resources and MFF adoption, respectively.
Leaving aside the fact that these clauses have never been used, even in the areas where their application is envisaged, the explicit prohibition of their use in the two areas that form the core of state sovereignty is no accident; rather, it perfectly reflects the logic of the Community method and of the process of European integration in the basic form it has assumed since the creation of the EEC.
The Community Method: Successes, in Relation to the Single Market, and Limits.
Ever since the EEC came into being, the process of European integration has continued to rest on the idea of creating increasingly close forms of cooperation between sovereign states, as well as ways of jointly exercising the functions of state (as opposed to transferring some of these to European level). Although the evolution of the integration process in terms of the strengthening of ties and interdependence between member states has probably exceeded the expectations the Founding Fathers may have had, the European Union has retained the EEC’s basic characteristics, which, after all, are expressions of the founding pact underlying the development of the entire integration process. Structurally, the EU, having been expressly conceived as an entity with no government (i.e., no supra-state power capable of making political decisions), can be likened to a headless body. It is an entity based exclusively on forms of governance, meaning joint exercise of state sovereignty.
This was a mechanism ideally suited to the creation of a common market, given the technical and administrative nature of the interventions required. Indeed, in this setting, even though Europe has no administrative apparatus of its own in place at the level of the member states, and EU provisions must ultimately be implemented by the member states’ own administrations, the Community method was able to express its full potential, producing: a European Parliament that co-legislates with the Council (an arrangement that limits the scope for unanimous decision making); legal acts, such as regulations directly applicable in the member states; and provision for full judicial review by the European Court of Justice. Since, in these cases, state sovereignty was squeezed but not endangered, the member states were willing to accept that EU law, through its own regulatory instruments, should be imposed on them even without their unanimous consent.
However, as mentioned above, it is an entirely different story when it comes to the sectors that represent the heart of state sovereignty and involve political decisions, in particular the aforementioned fields of taxation (EU financing) and foreign and defence policy. In these areas, in fact, decision-making power has been kept in the hands of the Council or the European Council, and decisions must be reached unanimously, thereby making it impossible for the European Parliament to act as co-legislator or to legislate on these matters through acts directly applicable in the member states.
This is a formula perfectly consistent with the premises of the integration process: in the absence of a democratically legitimised executive power, decisions are taken jointly by national executives that, while recognising the need to cooperate in order to rise to challenges of continental dimensions, are not willing to create a superior European sovereignty.
Ultimately, as already noted, the Community method facilitates cooperation between states, but does not involve transfer of certain political powers to a higher level of government that is independent of the states themselves. Since this is the model on which the founding Treaties were based, it follows that as long as we remain within the mechanisms they envisaged, cooperation between states can possibly be improved, but not overcome in favour of a model — one founded on true integration, the federal model — that rests on completely different assumptions.
Taxation as an Example.
To return to the issue of majority versus unanimity decision making, this time in relation to taxation (one of the pillars of state sovereignty), even were it possible for the Council to decide by qualified majority, rather than unanimously, the amount and type of resources available to the Union (a hypothesis expressly prohibited by the Treaties), there would still be no escaping the intergovernmental logic that guides the Treaties in this particular field. First, because art. 311 TFEU establishes that such a decision “shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements”. Second, because the European Parliament, i.e., the body representing the European citizens, would still have no meaningful role. And third, because the issue of EU resources would not be put to the citizens, but to the member states, given that the power of taxation would remain exclusively in their hands. In short, the member states would continue to hold decision-making power and thus the power to decide on whether and how the EU might be funded and thus permitted to function.
The Need to Move from a Cooperation-Based Model to One Founded on the Creation of a Supranational Power.
That switching from unanimity to majority voting can offer no solution in a setting like the one defined by the current Treaties is clearly confirmed by the experience of the United States of America. Article IX of the Articles of Confederation in effect established — contrary to what the founding Treaties of the European Union do — that even in matters of federal funding and foreign and defence policy, the Congress (made up of representatives of the member states) would decide by majority. However, as pointed out by Hamilton in Federalist No. 15, the fact that such decisions, by Congress, did not have to be taken unanimously was uninfluential, since they were directed at the states, which, asked to provide the money to finance the Confederation and the men to form its army, could still choose to refuse to do so.
Therefore, not only is the switch from unanimity to qualified majority voting in the sectors at the heart of state sovereignty impossible under Europe’s Treaties as they stand, such a reform, by itself, still would not allow the EU to self-determine its conduct independently of the states, and would therefore leave it open to threats and blackmail by the latter.
Clearly, then, abolition of unanimity voting and of the power of veto, in those sectors in which these mechanisms are envisaged under the Treaties, needs to be accompanied by a structural change that abandons the logic of cooperation between sovereign states, and replaces it with the creation of a democratically legitimised supranational power, capable of acting, in its sphere of competence, independently of the member states.
In the case of EU funding, which once again provides a useful case study, this change will come only when the body representing the citizens, the European Parliament, is finally granted one of the essential prerogatives of any parliament, namely fiscal power. There are therefore two necessary conditions for the birth of a federal fiscal union: the European Parliament must assume the role of co-legislator in this field, too, and the Council and member states must lose their monopoly on the power to determine the resources available to the Union.
To summarise, given that decisions within the key areas of sovereignty require direct democratic control by the body that represents the citizens, namely the European Parliament, the effective overcoming of the unanimity rule and, consequently, of the power of veto, must also correspond to a structural change in the decision-making system of the European Union. This will mean assigning the European Parliament direct power in the sectors in question, so as to allow the birth of an effective European government, accountable to and controlled by the European citizens, and capable of replacing the current forms of coordination between the national governments.
[*] A reflection paper supporting the MFE campaign in view of the Conference on the future of Europe.
 European Parliamentary Research Service, Passerelle clauses in the EU Treaties: Opportunities for more flexible supranational decision-making, https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2020)659420.
 “The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine states assent to the same; nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of a majority of the united states in congress assembled”. [italics added].
 “The great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. […] Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the coercition of the magistracy, or by the coercition of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it”.