Eurasia Press & News
The war and Schengen enlargement have put unanimity voting in the Council of the EU to the test. But the opportunity to veto is an important guarantee of the rule of law, as it prevents the EU from turning into a federal state against the will of its members.
Whenever the EU is supposed to take difficult decisions within a short period of time, voices are often heard calling for the ending of unanimous voting in the Council of the European Union – the institution which represents the member states within the EU. That was certainly the case recently, when the Netherlands and Austria vetoed Romania and Bulgaria joining the Schengen free movement zone, and Hungary attempted to block EU decisions on aid for Ukraine and the global minimum corporation tax.
Hungary’s motivation was obviously in the hope of using its veto as leverage in efforts to water down the EU’s planned suspension of funds over concerns about the rule of law there. The strategy, as it turned out, was none too successful. According to the decision of the Council of the EU on December 12, the overwhelming part of the originally planned amount from Cohesion Policy funds, 6.3 billion euros instead of 7.5 billion euros, would remain suspended over corruption concerns related to the use of EU money. Moreover, payments to Hungary from the EU’s pandemic recovery fund to the tune of 5.8 billion euros would also be subject to strict criteria.
This was not the first time that the Hungarian government has tried to minimise financial sanctions on it by ‘blackmailing’ the EU with its veto. And again, many commentators in Hungary and abroad accused the Hungarian government of misusing the power of its veto and behaving immorally or in an anti-European way. The criticism that Austria and the Netherlands received for keeping Romania and Bulgaria out of the Schengen Area was more muted.
Yet whatever one thinks about Romania and Bulgaria’s Schengen Area aspirations or about common EU aid to Ukraine, one thing should be clear: the veto power in the Council of the EU is not a malign instrument, but a crucial guarantee for maintaining the rule of law at the EU level.
Far from a federal state
The EU is a unique supranational body. It is far more than a free trade zone or an economic bloc: it is also a political union regulating many policy fields. However, it is still not a federal state – and that’s not by accident.
Today, after several EU Treaty amendments, member states’ governments usually make decisions in the Council of the EU by qualified majority voting: for the adoption of a proposal, the support of 55 per cent of Council members is required, who must at the same time represent 65 per cent of the EU’s population. This means that basically there is no decision of ‘Brussels’ without the member states, which should not be forgotten whenever member state governments (like Hungary’s) blame ‘Brussels’ as if it were a separate centre of power that they cannot influence at all. Of course, generally, the majority can vote down the minority.
However, there are a few but important exceptions: member states intentionally reserved certain fields that they do not want to be voted down by others, but insist on unanimous decision-making. Such decisions include, for instance, the adoption of the EU’s seven-year budgets, increasing the EU’s own resources (for example to pay for aid to Ukraine), foreign policy (such as sanctions against Russia), and enlargement of the Schengen Area, which implies certifying certain countries as trustworthy enough to control the EU’s external borders.
From the above examples it is clear that the reason why the opportunity to veto still exists in the EU legal order is precisely to prevent the extension of EU competences into areas that member states want to keep under their own control. To secure that in those crucial fields, neither ‘Brussels’ nor other member states can impose anything undesirable above the heads of member states. In essence, to stop the EU from quietly becoming a federal state against the wishes of its member states.
Arguments that unanimity is difficult to reach and makes EU decision-making less efficient ignore the most important lesson European history has taught us: that difficult and lengthy procedures are still better than putting too much power in the hands of too few. This is what the often-echoed rule of law is about.
The meaning of politics
Other arguments against unanimity is that the veto is often used in the Council of the EU in a political way. Of course it is used in a political way, as the Council of the EU is a political body that consists of ministers of the member states. How should they act if not politically? Such an argument is rooted in the misunderstanding of the meaning of the word “political”. Even if since the COVID-19 pandemic, and especially since the war in Ukraine, politicians across Europe tend to give the impression that politics is about promoting the moral good, we should be aware of the fact that, in reality, politics remains all about interests, bargaining and pragmatism.
The real pragmatic face of EU politics is revealed behind the mask of moralising whenever some really important questions are at stake – such as whether certain member states should be allowed to join the Schengen Area. No doubt that in the future, when the decision will have to be made about the EU accession of Ukraine, member states will not care about their ‘moral duty’ but about the costs and benefits to them.
After Ukraine and many countries of the Western Balkans became EU candidate countries, it is becoming increasingly clear that the fate of voting unanimity in the Council of the EU is strongly connected to EU enlargement.
There’s really no need to state that decisions about accepting new member states in the EU must always be made unanimously. Rather, the question is how comfortable will current member states be with the thought that any new member state could veto some important decisions that older member states believe serve their interests. Such feelings of regret could already be discerned when Hungary insisted on some exemptions to the Russian sanctions.
Yet the sole solution for these concerns is not to end unanimity voting: the other option is to keep problematic countries as mere candidates for eternity, until they become apathetic about EU membership, as happened to Turkey, which has been an EU candidate country for the last 23 years.
The requirement of unanimity expresses a peculiar balance of distrust and trust between the member states. It is motivated by the distrust that others might look to extend the powers of the EU itself via qualified majority voting, but there is still a level of trust that member states can ultimately settle difficult questions in crucial areas by unanimous vote.
This balance, however, might not be sustainable indefinitely. Perhaps the time will come when member states put more trust in ‘Brussels’ than in the suspicious ‘new guys’ who have joined the club, and so agree to abolish the unanimity requirement in the remaining few fields. Though this will, obviously, require unanimity.
