More EU Decisions by Qualified Majority Voting – but How?

New momentum for decisions by qualified majority voting

Currently, the debate on the extension of QMV is receiving a new impetus from three directions. First, the Conference on the Future of Europe in May 2022 presented its final report. Overshadowed by the Covid pandemic and the Russian war of aggression, the conference was unable to gain much political traction. However, its final report – with the recommendations of the representative European Citizens’ Panels – contains relevant proposals on how the EU could be further developed (see SWP Com­ment 49/2022). One of the few institutional recommendations concerns the transition to QMV for almost all Council decisions. On this basis, the European Parliament (EP), in a June 2022 resolution, calls for treaty changes and a far-reaching transition to QMV. However, many member states in the Council are critical of treaty changes.

Second, the debate on decisions by quali­fied majority voting in CFSP has gained a new dynamic due to the publicly disputed use of veto options. Two examples: The Repub­lic of Cyprus vetoed EU sanctions against Belarus in autumn 2020 – not because the Cypriot government opposed the measures per se or saw their national interests affected, but because it wanted to use the veto to force tougher EU action against Turkey. Only after weeks of nego­tiations was the EU able to enact the sanc­tions, even though there was no disagreement on the matter itself.

After Russia invaded Ukraine, the EU was initially quick to demonstrate its ability to act by adopting far reaching and unprecedented sanctions together with its allies in the G7. The longer the war lasts, however, the more difficult it has proven to be to main­tain this unity. The sixth sanctions package in particular was negotiated for about a month, with difficult negotiations on an embargo of Russian oil. Compared to regular EU decision-making processes, this was relatively brief, but still not ad­equate in view of the war situation; the first five sanctions packages had been launched much faster. In the end, the negotiations on the sixth package were concluded, but with major opt-outs for Hungary in particular. But even after a principal agreement, Hun­gary still threatened its veto against the package due to the sanctioning of the head of the Russian Orthodox Church. To get the package through, the other EU member states passed on this particular sanction. For advocates of decisions by QMV, this example proves the need to largely abolish national vetoes.

The third reason is the return of enlarge­ment as a realistic option. In the wake of the war, Ukraine and the Republic of Mol­dova were officially designated EU acces­sion candidates in June 2022. At the same time, the accession process for the states of the Western Balkans is being revived. In perspective, the vision of an EU with more than 30 members has thus returned. The number of veto players involved in deci­sions that require unanimity would in­crease further. In addition, with the excep­tion of Ukraine (and Turkey), the accession candidates are mainly small to very small states, so that the discrepancy between veto power and population size or economic power would increase further. A new round of enlargement therefore also requires that decisions by QMV be extended; otherwise, the EU’s ability to absorb new members and to act could be jeopardised.

Legal possibilities

A transition to QMV in the Council can be achieved in several ways (see table): Apart from traditional treaty reforms, this can be achieved mainly through the use of pas­serelle clauses or enhanced cooperation. As in any other case, treaty reform implies complex requirements at the EU level, which usually means a convention, at least unanimity among all member states in an intergovernmental conference, as well as high hurdles for ratification at the national level.

Since the Lisbon Treaty, the general passerelle clause has provided a simpler procedure at the European level to intro­duce QMV, requiring only the unanimous consent of the European Council and the absolute majority of the EP. However, cru­cial hurdles to activating the clause exist in some member states and are often similar to those of treaty reform, even if no ratifi­cation by national parliaments is required.

For example, in order for the German representative in the European Council to be allowed to agree or abstain on a decision to apply the passerelle clause, a law within the meaning of Article 23 (1) of the Basic Law is required according to the Integration Responsibility Act (“Integrationsverantwortungsgesetz”), which the Bundestag and Bun­desrat must each approve by a two-thirds majority. Accordingly, the requirements are similar to those for treaty amend­ments. In Austria, the approval of both chambers of parliament with a two-thirds majority is also required, with at least half of the MPs present. In Denmark, a simple parliamentary majority with more than half of the MPs present is sufficient. How­ever, if the activation of the clause results in “ceding sovereignty to international authorities”, a five-sixths majority must be obtained in parliament, the same as for the ratification of treaty reforms.

In Poland, Ireland, and the Czech Republic, both chambers of parliament must agree to allow the respective representative in the European Council to give their con­sent or abstain. In Malta, the activation of the clause is treated like a treaty reform and also requires parliamentary approval. These examples show that, compared to the hurdles for ordinary treaty changes, those for the application of the passerelle clause are often only marginally lower – in no country is a referendum obligatory – but politically neither significantly easier nor faster to overcome.

For a few policy areas, the EU Treaty contains special passerelle clauses for the transition to QMV. The procedures foreseen at the European and national levels to acti­vate them are sometimes somewhat simpler than for the general clause. For instance, in Germany the use of special passerelle clauses requires only a Bundestag vote by majority rather than the two-thirds major­ity for the general clause. In the case of the special passerelle clause on CFSP, the scope of application overlaps with that of the gen­eral clause. However, the dominant view is that the special one takes precedence over the general one. It is argued that in this policy area, scrutiny by national par­lia­ments is less compelling and the influ­ence of the EP is more limited, since CFSP is a mechanism for coordinating national foreign policy measures.

The enhanced cooperation method, although less applicable as a general tran­sition to decision-making by qualified majority voting, could be used to switch to QMV in a limited area for a group of mem­ber states. Politically, this could be used as a means of exerting pressure on member states that often block joint decisions while rejecting a transition to more QMV.

Decisions by qualified majority voting in practice

The fact that legal possibilities exist to extend QMV has not led to this happening in practice so far. Since the entry into force of the Lisbon Treaty, neither the general nor a specific passerelle clause has been used. For the discussion about the extension of QMV, it is helpful to look at how the use of the qualified majority voting pro­cedure is impacting the Council’s decision-making in other policy areas.

A look at the voting protocols published since 2010 shows that, on average, the mem­ber states still strive for consensus as far as possible, even when decisions by qualified majority voting are possible. In fact, there has been unanimous agreement in more than 60 per cent of the votes where a decision by QMV would have been pos­sible. If one adds the votes in which there are only abstentions but no votes against the respective proposal, the Council achieves a “consensus rate” of just under 82 per cent on average; in 2021 it was even 87.6 per cent (own calculation). So even under major­ity conditions, the member states usually seek a compromise that (almost) everyone can agree to in the end. Decisions by QMV in which entire groups of states are outvoted have remained a rarity, even in an EU with 27 members.

However, this does not mean that majority rule does not change the dynamics of decision-making in the EU – indeed, it forces more intra-European diplomacy and compromise. Under the unanimity rule, a member that rejects an EU proposal can just rely on its right of veto. It does not have to seek allies or compromise until its demands are met. Especially in crisis situa­tions that require a quick response, nation­al governments saying “no” have the greater leverage, and the “price” of convincing them to lift their veto increases.

This is different with QMV: If a national government rejects a proposal from the EU Commission here, it must organise a block­ing minority of at least four member states representing at least 35 per cent of the EU population in order to then negotiate a compromise with the majority. This nego­tiating dynamic means that, in more than 80 per cent of the Council’s public voting results, there are no votes against, because at the end of the negotiations everyone agrees (or abstains) on the compromise.

Nevertheless, decisions by QMV alone are no guarantee for compromise or a greater ability of the EU to act. They are an institu­tional means to find compromises more easily, especially when it is just one mem­ber state rejecting a proposal. If the division cuts right across the Union, even decisions by QMV do not enable a solution. The best example is the reform of the Common Euro­pean Asylum System, which has been de facto blocked since 2015. Although the Lisbon Treaty introduced qualified majority voting in this area, the member states are divided into at least three larger blocs, which has prevented agreement on the overall package for seven years now. Most recently, under the French Council Presi­dency, there has been little progress, build­ing on years of negotiations and breaking down the overall package into individual legal acts, but the major reform remains blocked. For the EU to be able to act, it needs more than just decisions by QMV.

Time for a package solution

Even if more and more voices are calling for an expansion of QMV, this review of the potentials and limits of the treaty as well as the use of decisions by QMV so far clearly shows why the debate has always come to nothing so far. Whether it be ordinary treaty revision or a general or special pas­serelle clause – a change to (more) deci­sions by majority must be supported by all EU states. Moreover, the hurdles for national approval procedures are not in­significant, even when applying the general passerelle clause. Despite – or precisely because of – the demands from Germany, France, and Italy, for example, other EU states are very wary of giving up their na­tional vetoes. These include countries that fear being regularly outvoted, such as Poland and Hungary, but also “pro-integra­tionist” ones such as Ireland, which do not want to be outvoted in individual areas such as tax policy. Other states such as Den­mark are sceptical about treaty changes and institutional deepening.

The more that the call for QMV is justified by the fact that, in case of doubt, the EU heavyweights can outvote “inconvenient partners” such as Poland and Hungary, the more resolute their resistance becomes. A look at the voting results proves them right: France is hardly ever outvoted, Germany only rarely in recent years, but small Cen­tral and Eastern European member states are outvoted more often. In the case of extensive treaty changes, it would be pos­sible to “negotiate away” their concerns by means of a major package solution, but such a major treaty reform is not yet in the offing.

Instead of relying only on political pres­sure, the German government should sug­gest linking the demand for more QMV with the potential new eastward enlargement to form a package solution. If the EU wants to accept new members, it must itself – accord­ing to the Copenhagen criteria of ensuring absorption capacity – be able to integrate them successfully without en­dangering its own ability to act. An acces­sion of at least Ukraine and some countries of the Western Balkans within a time hori­zon of seven to ten years has now become conceivable. An EU with 30 or more mem­bers – including several new ones with populations of less than 10 million – can only remain capable of action if the major­ity principle is introduced across the board, with the exception of a few constitutional matters. Not as a brake, but in parallel with the accession process, the EU should there­fore initiate the expansion of decision-making by QMV in the time horizon of the next legislative period (2024–29).

Some of the Nordic, Central, and Eastern European member states that are committed to Ukraine’s speedy accession to the EU reject the extension of QMV. In order to address the legitimate concerns of these states, a balance should be struck between greater capacity to act, democratic legiti­macy, and the protection of national inter­ests. After all, the policy areas in which unanimous decisions are still required, such as tax policy or foreign and security policy, are among the core areas of national sovereignty. A step-by-step approach, as is currently being discussed again in the Coun­cil, would have the advantage that the general passerelle clause could be used and QMV could gradually be introduced in new policy fields. It would not, however, solve the fundamental challenges to the EU’s ability to act, since even supposedly “smaller areas”, such as sanctions policy, can be highly controversial.

It would therefore be better to combine the transition to QMV in critical areas with an “emergency brake”. We suggest the fol­lowing form: A small number of member states (to be politically defined; our sugges­tions is 10 per cent, that is, three states in the case of an EU30+) could ensure that a decision taken by qualified majority voting that affects their vital national interests is submitted to the European Council. The heads of state and government should then be given a deadline within which the mem­ber states concerned could articulate their interests at the highest level and reach an agreement by consensus. In case of non-agreement, a decision by QMV can be taken after the deadline. Until then, the decision-making procedure in the Council of Minis­ters should be suspended. Comparable “emergency brakes” exist, for example in judicial cooperation in criminal matters (Art. 82/83 TFEU), which ensures the EU’s ability to act and the protection of core national interests.

In the past, such “emergency brakes” addressed the concerns of the respective states, but were then hardly ever applied in practice. If a similar instrument were to be introduced with regard to QMV, the EU’s capacity to act would be strengthened and a protective mechanism for core interests would still be available for exceptional cases. Although such a reform could not be implemented via the general passerelle clause, it would have a greater chance of finding unanimity among the member states in preparation for the next enlargement.