How to Break the EU's Foreign Policy Deadlock

“Europe’s voice must be heard. All too often in recent times, Europe has failed to speak out”, acknowledged Ursula von der Leyen, President of the European Commission, on 19 April at the 80th anniversary celebrations of the German weekly Die Zeit.

To break this deadlock, the Commission President intends to challenge the unanimity rule within the EU on foreign and security policy. The ideal solution would be to amend the treaties, but the current treaty provides opportunities to overcome these deadlocks which are not being sufficiently used.

A Deadlock that Threatens the Future of the European Union

Between the deadlock (now lifted) over sanctions against Russia caused by Viktor Orbán, the EU’s inability to pressure Benjamin Netanyahu’s government to prevent violations of international law, and difficulties responding to Donald Trump’s threats, it is impossible to disagree with von der Leyen.

The unanimity rule prevents the EU from defending its values and interests on an increasingly volatile geopolitical stage. Such deadlock threatens the very survival of the Union.

Many European leaders have long called for this rule to be reconsidered, but does such a change not require treaty modification?

This would be the most direct solution but having been scarred by the failure of the European Constitutional Treaty in 2005, no leading European figure is willing to advocate this path. Furthermore, scrapping unanimity would require agreement from all Member States, which seems impossible for now.

The Current Treaty Offers Scope for Maneuver

The current Treaties offer scope for maneuver that has not been fully used. Title 5 of the Treaty on European Union sets out rules for foreign and security policy.

Article 24 provides a broad definition of the Union’s role:

“The Union’s competence in matters of foreign and security policy covers all areas of foreign policy as well as all matters relating to the Union’s security, including the progressive framing of a common defence policy that may lead to a common defence”.

Article 31 confirms that “Decisions under this Chapter shall be taken by the European Council and by the Council acting unanimously”. But it then defines a procedure limiting this rule:

“Any member of the Council which abstains from voting may accompany its abstention with a formal statement. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union.”

In other words, a decision does not need to be approved unanimously, it is sufficient for disagreeing Member States to abstain.

Super-Qualified Majority

Article 31 also defines a super-qualified majority:

“If the members of the Council who abstain represent at least one third of the Member States comprising at least one third of the Union’s population, the decision shall not be adopted”.

Thus, a decision can bind the Union if approved by two-thirds of Member States (18 currently) representing two-thirds of the population. Greater use should be made of these provisions.

The second subparagraph of Article 31 goes further.

“By way of derogation, the Council shall act by a qualified majority: when adopting a decision defining a Union action or position based on a European Council decision on the Union’s strategic interests and objectives; when adopting a decision on a proposal from the High Representative following a specific request from the European Council; when adopting any decision implementing a decision defining a Union action or position; when appointing a Special Representative.”

This article offers broad scope for the Foreign Affairs Council (at the Council of the EU) to take decisions by qualified majority, particularly regarding sanctions. This could not, however, be used on defense issues. It was to this article that von der Leyen was referring.

Possibilities Known but Which Member States Refused to Use

These provisions have long been known but most Member States opposed their use, fearing loss of veto power and concerned about gridlocking the European Council if qualified majority voting becomes the norm.

However, where threats facing the Union are considerable and double-dealing by a few Member States could destroy it, it is high time to use all the room for maneuver offered by the current Treaty to equip the Union with a genuine capacity to act in foreign and security policy.