Quo vadis, Consilium?

The story of the European Union (EU) throughout the past decade is that of a project overwhelmed by repeated crises and by its own institutional rigidity. The disagreements over the deepening of the monetary union have, once again, exposed its Achilles’ heel: how is the EU to lead a new global order if it is incapable reaching internal agreements? The answer to this conundrum lies with its main structural deficiency: the Council’s unanimity requirement.

The Treaties’ rigidity dates back to the European Economic Community (EEC)’s very origins. When, in the early 1960s, the six founding Member States – France, Germany, Italy, Belgium, the Netherlands and Luxembourg – considered abandoning the unanimity rule to make the Council’s decision-making process more flexible, French President Charles de Gaulle, firmly opposed to a supranational Union, refused to partake in any future votes. The so-called ‘empty chair crisis’ culminated in the Luxembourg Compromise of 1966, which increased the weight of Member States against those who advocated for more European federalism, enabling them to veto any agreement in which ‘vital national interests’ – a concept which was never defined – were at stake.

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54 years later, the Luxembourg Compromise’s long shadow can help explain the slowness and inaction of a European Union faced with existential challenges – the fight against climate change, the migration crisis, the defence of the rule of law or the post-Covid-19 economic recovery.

The magnitude of the Council’s problem began to emerge during the 2015 migration crisis, which exposed the profound divisions within a Council increasingly populated by the Eurosceptic right. The uncompromising approach adopted by the ‘Visegrad Group’, made up by the governments of Poland, Hungary, the Czech Republic and Slovakia, and opposed to any refugee resettlement system, succeeded in boycotting the EU’s refugee policy: it buried the ambitious agreement sought by Angela Merkel, Matteo Renzi or Manuel Valls; it forced the Council to settle for a ‘lowest common denominator’ approach; and it refused to honour even those obligations, drawing the EU into a legislative paralysis which it has not yet emerged from.

Article 7 of the Treaty on the Functioning of the European Union (TFEU), the mechanism which enables Member States to be sanctioned for repeated violations of the Union’s ‘fundamental values’, has also repeatedly proved to be inefficient: its unanimity requirement has allowed an express alliance between the national-catholic Polish government and its ‘illiberal’ Hungarian counterpart to empty it of any legal force. The cases of Poland and Hungary illustrate the paradox at the heart of the EU: two governments which would fail to satisfy the Copenhagen Criteria – the EU’s accession requirements – are preventing the Union from upholding its values, leaving unprotected, as the European Parliament has repeatedly denounced, a combined 50 million EU citizens. The Commission’s efforts, on the other hand, have been met with fierce retaliation: Frans Timmermans, who led the Juncker Commission’s fight against Poland’s judiciary reform, lost the Commission presidency in 2019 – vetoed, precisely, by Poland and Hungary.

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In this context, an ambitious Green New Deal, which Ursula von der Leyen’s Commission has called for and the European Parliament has widely endorsed, seems more than unlikely. Article 191 TFEU, for example, allows the Union to adopt ‘harmonisation measures’ to deal ‘with regional or worldwide environmental problems, and in particular combating climate change’. Once again, however, the reticence shown by the Visegrad Group, which fears being left behind by more prosperous countries, and the skepticism espoused by the Polish government, which obtained a last-minute opt-out, came close to blocking the historic European Council summit which agreed on carbon neutrality by 2050. Once again, this institutional rigidity will hamper the EU’s capacity to live up to its own environmental expectations: a Council with 27 potential vetos is slower, less agile, and thus less ambitious.

The consequences are particularly concerning when it comes to the Common Foreign and Security Policy (CFSP). The past few years, writes Max Bergman for Foreign Policy, have shown that a Union which speaks with one voice is more effective at setting the global agenda, as evidenced by Macron’s threat to block the Mercosur-EU trade deal if Bolsonaro ignored the Amazon fires. On the other hand, note Orenstein and Kelemen, the need for 27 Member States to agree on ‘all areas’ of foreign policy and security, as required by Article 24 of the Treaty on European Union (TEU), is not only conducive to slow stances and timid compromises: it has also facilitated Russian and Chinese interference. After all, a single ‘Trojan Horse’ is all it takes to block sanctions, decisions, or declarations. A Union which wishes to adapt to a ‘neo-Westphalian’ global order, concludes Salvador Llaudes, has to bury the misconception that unanimity is essential in the field of foreign policy.

Is it conceivable that Member States will give up sovereignty in matters as sensitive as foreign policy, climate change or the fiscal union? Is a two-speed Europe – one with a federal ‘core’ and peripheries which transfer sovereignty à la carte – inevitable? The Council’s realpolitik is hardly conducive to optimism: smaller Member States fear a decline into irrelevance, and are thus reluctant to give up their main way of exerting political pressure; Eurosceptic governments adamantly oppose any measure which will accelerate European integration; and Germany refuses to cede power to the emerging Paris-Rome-Madrid axis, which has consolidated itself throughout the past months and which advocates for ‘imaginative solutions’ which help overcome the Treaties’ rigidity. The European Council, in other words, has fallen victim to the prisoner’s dilemma: whereas transferring competences would benefit everyone, paving the way for more ambitious policy-making, mutual distrust means Member States are acting against their own interest, hanging on to a ‘sovereignty’ of dubious practical worth.

The coronavirus crisis, coupled with the end of the Merkel era, has opened a window of opportunity which France, Italy, Spain and Portugal must seize. Leading a serious debate on institutional reform would not only pave the way towards a new hegemony: it would also ensure a Union fit for the 21st century. For that very reason, the Conference on the Future of Europe must do the impossible to overcome Member States’ reticence, and to ensure the Union adapts to an increasingly isolationist geopolitical context – even within the European Council itself.

Establishing more flexible decision-making processes, and reducing the veto capacity of individual Member States, will not weaken the Union, as has been repeatedly argued. Instead, it will ensure it functions at its most effective, facilitating political agreements, upholding its fundamental values and playing a more relevant role on the global stage.

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