Gergely DOBOZI: Mind the Preamble, Friends!
They say the road to hell is paved with good intentions. Particularly during the peak of summer, this well-known cliché looks like a good opportunity to set the stage for an opinion piece concerning some aspects of the future of unanimity decision-making within the European Union. Perhaps, it’s not merely an exaggeration though.
As thick as thieves, on May 4th, nine EU Member States—Belgium, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Slovenia, and Spain—united to take charge of the continent’s destiny. In a joint statement, they addressed bypassing unanimous decision-making, which has traditionally played a crucial role in the EU’s Common Foreign and Security Policy. In light of this, it might not come as a surprise that this initiative is referred to as the “Group of Friends on Qualified Majority Voting in EU Common Foreign and Security Policy.” The naming, however, certainly raises pertinent questions and calls for thoughtful consideration.
This is because the intention of the above-mentioned member states is also evident from the joint declaration on this matter; the goal is not to comply with legal principles governing the EU, but to bend the law: “The group aims to reach progress in improved decision-making in CFSP in a pragmatic way, focussing on concrete practical steps and building on provisions already provided for in the Treaty on European Union.” (Desperate times call for desperate measures?)
I think three statements follow from this: the initiative of the nine EU member states is
- aimless; and
Inefficient, because EU CFSP, due to its intergovernmental nature, is the area of EU policy- and strategy-making that can be classified as one of the most isolated in terms of the transfer of sovereignty by the Treaties. Let’s not even broach the topic of whether these countries would have the chance to reach a decision with a qualified majority in the EU, as the answer is a definitive “no”, based on the rules of QMV, the number of the “pioneers”, and the population statistics of the respective countries.
On the other hand, the number of Member States classified under the umbrella of the Group of Friends says a lot in this regard. This is the minimum that is needed in order for a specific group of member states to bridge the decision-making mechanism around the indeed conflictual unanimous voting, within the framework of so-called “enhanced cooperation”.
However, particularly in the realm of foreign and security policy, there are rules in place to confine such endeavors to a narrow path. Article 329 TFEU succinctly articulates these rules:
“The request of the Member States which wish to establish enhanced cooperation between themselves within the framework of the common foreign and security policy shall be addressed to the Council . . . Authorisation to proceed with enhanced cooperation shall be granted by a decision of the Council acting unanimously”. This means that unanimity in this domain is inevitable, and any attempt to manipulate the law in this regard could be deemed fraudulent—bona fide attitude or not.
This particular domain is evidently governed by a conservative regulatory intention, which makes any endeavor conflicting with the principle of equality among Member States untenable. Simply put, unanimous decision-making, as Star Wars’ very own Obi-Wan Kenobi would describe it, is still ”an elegant weapon for a more civilized age”.
However, let’s clarify further: only the above-mentioned nine Member States seem to view unanimous decision-making as a weapon. In this regard, I rather share the sentiments expressed by John S. Dryzek and Simon Niemeyer.
Unanimity is “the gold standard of political justification”‘, since “it is the only rule of preference concentration that grants pareto optimality”. In other words, unanimous decision-making establishes a civilized environment where, upon reaching a decision, the actor successfully utilizing the inherent bargaining mechanism of unanimity experiences an increase in its “well-being” without significantly compromising the interests of others.
All of this sounds like peace to me even though, certainly, here, I am referring to the so-called “veto powers” demonized by the European mainstream media. Although the legal documents of the EU do not explicitly use such terminology, politically speaking, the right of veto is afforded to all Member States through the requirement of unanimous voting.
In the case of Europe, the primary purpose behind any kind of union on the continent is to safeguard peace. The Preamble of the Treaty on European Union contains several solemn and symbolic statements made by the contracting parties, including the one “RECALLING the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe.”
Preambles are often neglected as unimportant narratives or negligible interpretive tools. However, considering what is at stake, any inefficient statement or attempt that goes against the purpose mentioned above is perilous. As the saying goes, “a friend in need is a friend indeed”—and given the geopolitical realities, Europe requires friends more than ever today. In light of this, it is advisable to carefully reconsider the initiative of the nine Member States.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.