21 März 2023

More democracy with more majority decisions: Why the abolition of national veto rights increases the legitimacy of the EU

By Julian Plottka
Meeting of the European Council
“When national vetoes lead to deadlock, the EU can no longer respond to citizens’ concerns.”

The question of the European Union’s ability to act has been at the centre of its reform debate not only since Ukraine and Moldova were given the prospect of EU candidacy in 2022. How can a “geopolitical Europe” and the necessary internal transformation be achieved in an EU with 27 or more member states and growing decision-making complexity?

For a long time, flexible or differentiated integration was considered the method of choice to further develop a Union which not all member states want to deepen. Minilateralisation of European policy initiatives has also been considered. Since the Conference on the Future of Europe, however, increased attention has been paid to the transition to qualified majority voting, i. e. the renunciation of member states’ veto rights.

Trade-off between democracy and efficiency?

This transition to majority decisions in the EU Council is often discussed as a trade-off between democracy and efficiency of European politics. The intergovernmental, second pillar of the EU’s democratic legitimacy is considered the stronger one, since the national veto ensures that decisions that are made democratically at the national level can be asserted.

Meanwhile, the transition to majority decisions is considered efficient in two ways: on the one hand, because it can be introduced through the passerelle clause without a major treaty reform; on the other hand, because the shadow of a majority decision makes it much easier to find compromises in the Council. Decisions do not always have to be the lowest common denominator if states with divergent positions run the risk of being outvoted. From this point of view, thus, abolishing veto rights means that more efficiency is achieved at the cost of weakening the democratic legitimacy of the EU.

However, this perspective overlooks to which extent majority decisions can also strengthen the democratic legitimacy of the EU. In this regard, four arguments come to mind: First, majority decisions strengthen the output legitimacy of the EU. Second, majority voting curbs the EU’s “other democratic deficit” caused caused by defects in political systems at the national level. Third, majority voting makes the Council more transparent. Fourth, the idea that the veto can effectively be used to assert national interests is a self-deception of small and medium-sized member states. In the following, these four arguments are analysed more closely.

1. A political system that is incapable to act cannot be responsive

The thesis of a substantial democratic deficit of the EU is based on the core assumption that the EU’s political system cannot be democratised because the EU lacks a demos, i. e. a constitutive people. According to this thesis, demoi only exist at the national level, which is why – also in the view of the German Constitutional Court – national parliaments continue to be the main source of democratic legitimacy for European politics. Every transfer of competences to the EU increases the democratic deficit because decision-making rights of national political institutions are replaced by mere participatory rights at the European level. From this point of view, the national veto is something like an emergency brake to prevent decisions that run against the national interest.

This perspective, however, is misguided in its formalistic view of the order of competences in the European multi-level system. It is not only the level at which a decision-making power is formally vested that is important, but also whether the level in question is substantially able (in terms of the subsidiarity principle) to exercise that power. A formal decision that has no practical effect may formally have been adopted according to democratic rules. However, it is still not responsive to the voters, because it is unable to meet their needs and concerns.

A deadlocked EU doesn’t meet citizens’ concerns

If the continued existence of national veto rights leads to decision-making blockades at the European level and the EU becomes incapable of acting, this problem of substantive power is shifted to the supranational level. In principle, the EU would be more capable of taking substantive action than its member states. But the very instrument that is supposed to safeguard the rights of national democratic institutions to participate in EU decision making prevents the EU from responding to the concerns of its citizens.

This is particularly evident for foreign, security and defence policy, which is still strongly intergovernmental. The fact that the Russian attack on Ukraine forced the EU to show an unexpected capacity to act is not a proof to the contrary yet, since a political system must also be effective and responsive outside of existential crises.

2. The “other democratic deficit” delegitimises Council decisions

Another premise of the thesis of the EU’s substantial democratic deficit is that all EU member states are functioning democracies. However, autocratisation tendencies that can be observed worldwide have also led to an “authoritarian equilibrium” in the EU, in which authoritarian parties have entered government in several member states.

As measured by the index of the Varieties of Democracy (V-Dem) Institute, Hungary has already been classified as an electoral autocracy and no longer as a democracy since 2018. Other indices classify Hungary as a “defective democracy” or “hybrid regime”. In the 2022 V-Dem Democracy Report, Hungary, Poland and Slovenia are among the states that are autocratising the most rapidly, and in the 2023 report Greece has been ‘relegated’ to this group.

For the 2022 Hungarian parliamentary elections, the OSCE Election Observation Mission concluded that the elections were free but not fair due to a strong bias in favour of the ruling Fidesz party. The government had a clear advantage in the electoral campaigns, campaign financing was not transparent and insufficiently controlled, and election reporting was biased in favour of the government, so that voters were unable to make an informed choice.

Forcing concessions through veto threats

The presence of authoritarian national governments in European institutions is discussed as the EU’s “other democratic deficit”. So far, the debate about it has focused primarily on the causes of authoritarianism and the EU’s inability to resolve national democratic deficits. However, the effects of non-democratically elected governments on the legitimacy of European politics are increasingly concerning, too. A good example for this is the agreement on Regulation 2020/2092 on a general conditionality arrangement to protect the Union’s budget.

The conditionality mechanism was already proposed by the Commission in May 2018 in an ordinary legislative procedure. Even though Hungary and Poland vehemently opposed the mechanism, it could have been adopted by qualified majority. However, in the summer of 2020, the “frugal four” (later five) states insisted on linking the rule of law conditionality to the new multiannual financial framework, which can only be decided unanimously.

This linkage gave Poland and Hungary a chance to use veto threats to force concessions on the conditionality mechanism. As a result, the European Commission delayed the application of the regulation after its entry into force on 1 January 2021 and ended up being sued by the European Parliament for inaction.

Protecting European democracy

In this case, thus, a non-democratically elected government succeeded in using the unanimity requirement to force concessions that were contrary to both the pan-European interest and the national interests of the other member states. From the perspective of European taxpayers, the Hungarian government’s right of veto in the Council of the EU and the European Council represents an unacceptable democratic deficit.

Consequently, the purpose of the Article 7 procedure should be re-evaluated: Suspending the voting rights of an undemocratic member state is not only a punitive measure to force the government in question to reform, but also a necessary protection for the democratic representation of the citizens of all democratic member states. However, since the Article 7 procedure is de facto unavailable (again because of the unanimity requirement), the transition to qualified majority voting is an easier means of protecting democracy at the European level.

3. Secret negotiations contradict democratic standards

The democratic deficit created by the participation of non-democratically elected governments is further exacerbated by the construction of the Council system. To date, the Council of the EU doesn’t work like a second chamber of the European legislature, but rather like a permanent international conference of member states. In the Council’s currently more than 150 preparatory working groups and committees, politically non-responsible officials of the national governments meet in camera. As national diplomats, members of Council working groups and committees are not subject to any obligations under the European Transparency Register, even under the new Inter-institutional Agreement.

This prevents citizens from holding their national governments accountable for decisions taken in the Council. In fact, governments sometimes take different positions in public than in Council negotiations, as has been proven, for example, for the Portuguese government in the debate on the so-called country-by-country reporting by multinational companies.

A lack of accountability and transparency

The decision-making procedures in these bodies therefore do not meet the procedural standards of democratic decision-making processes: The decision makers are not politically accountable in the sense that they are not required to explain the reasons behind their decisions to the public. The decisions are not transparent, as the public learns little or nothing about ongoing negotiations. The decision-making procedures are not open because citizens and stakeholders don’t have access to the decision makers. As a consequence, the processes are also not inclusive, as the limited accessibility to the officials in the Council working groups doesn’t allow for a representative inclusion of different interests.

The main argument used to justify this structure of European decision-making procedures is the need to increase decision-making efficiency. If the officials involved had to account for their decisions on behalf of the national governments, the scope for negotiation would be reduced and compromises would become more difficult.

The problem of the consensus culture

But it is precisely this efficiency problem that would be solved by the introduction and consistent application of qualified majority voting in all areas. The problem is caused by the persistent consensus culture in the Council (which in 2021 even decided by unanimity on 87.6 per cent of all decisions that could have been taken by qualified majority), which puts pressure on governments to agree to compromises in the Council that they publicly oppose.

Beyond a reform of the Council system with its committees and working groups, a consistent application and expansion of qualified majority voting would strengthen the Council’s democratic legitimacy in terms of transparency and accountability.

4. Small states’ self-deception: The veto doesn’t secure influence

One group of member states that is particularly sceptical about the extension of qualified majority voting is the small and medium-sized countries, which see their right of veto as a protection against a feared Franco-German directorate in European politics. As shown in the example of the conditionality mechanism, it is true that the veto can sometimes be used to force compromises.

However, as in most decision-making procedures, the general rule in the Council is that the earlier a country feeds its positions into the process, the better chances its chances to exert influence. By contrast, the use of veto threats to force compromises at a late stage of the procedure requires considerable political weight and, above all, a credible veto position. The blocking state must be better off in the case of a non-decision than in the case of a decision – otherwise its veto threat will come to nothing.

A political irony

It is doubtful whether these characteristics apply precisely to the small and medium-sized member states. On the contrary, it is rather the large member states that can more likely exert influence at a late stage of the procedure through their political and economic power.

In the face of this, it is ironic how member states have recently been positioning themselves on the transition to qualified majority voting: Germany and France, the member states that can use veto threats most effectively, are in favour of extending qualified majority voting – while the states whose threat potential is lowest are most clearly opposed to reforms.

But perhaps the current foreign policy situation will offer a window of opportunity. At present, the Northern and Central European states are particularly interested in ensuring that neither Germany nor Hungary can block decisions on the Common Foreign and Security Policy. Should this constellation result in momentum for a general expansion of qualified majority voting, this would be a gain not only for the EU’s ability to act, but also for European democracy.

Julian Plottka is a research associate at the University of Passau and at the University of Bonn.

This contribution is part of the thematic forum “Supranational governance between diplomacy and democracy – current debates on EU reform”, published in cooperation with the online magazine Regierungsforschung.de.

Translation: Yannik Uhlenkotte.
Pictures: European Council: Krystian Maj / KPRM [Public Domain], via Flickr; Portrait Julian Plottka: private [all rights reserved]; EU flag: Arno Mikkor (EU2017EE) [CC BY 2.0], via Flickr.

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