Documents considered by the Committee on 17 October 2018 Contents

13Common Foreign & Security Policy: decision-making by Qualified Majority Voting

Committee’s assessment

Politically important

Committee’s decision

Cleared from scrutiny; further information requested; drawn to the attention of the Defence and Foreign Affairs Committees

Document details

Communication from the Commission: A stronger global actor—a more efficient decision-making for EU Common Foreign and Security Policy

Legal base

Article 31(3) TEU

Department

Foreign and Commonwealth Office

Document Number

(40085), 12425/18, COM(2018) 647

Summary and Committee’s conclusions

13.1The EU’s Common & Foreign Security Policy (CFSP) covers a wide range of foreign policy measures, such sanctions against third countries and the launch of advisory or executive military missions in other countries. The legal basis for such actions is Chapter 2, Title V of the Treaty on European Union (TEU), which normally gives each EU country in the Council a veto over decisions relating to the CFSP.61

13.2Because of the inflexibility inherent in the unanimity requirement, the 2009 Lisbon Treaty provided for the possibility to introduce voting by Qualified Majority for measures under the CFSP without the need for another formal Treaty amendment. This so-called ‘passerelle’ clause62 is contained in Article 31(3) of the Treaty on European Union. It allows the European Council, that is to say the EU’s Heads of State and Government, to unanimously adopt a legal decision extending the use of QMV to other areas of the CFSP. However, the passerelle cannot be used to remove the unanimity rule for any “decisions having military or defence implications”.

13.3In September 2018, the European Commission recommended that the passerelle should be used to introduce QMV in specific areas of the EU’s foreign policy. Its reasoning for recommending such a change is that the unanimity rule “slows down progress and in some cases prevents the EU from adjusting to changing realities”,63 while removing the national veto would “opens up more space for discussion and pragmatic outcomes that reflect the interests of all” Member States.

13.4In particular, the Commission suggested QMV should be used for the imposition of sanctions like arms embargoes; the launch of civilian64 Common Security & Defence Policy missions, like the EU’s current advisory missions in Niger and Mali; and the EU’s common positions in international human rights fora. This would remove each Member State’s veto over such decisions (see ‘Background’ for more information). It has also called on EU countries to make greater use of QMV where this is already possible, but where current practice is to act by consensus.65 Under Article 31(2) TEU, Member States would retain a statutory “emergency brake”: the option of referring any foreign policy proposal subject to QMV to the European Council for a decision by unanimity, if the EU country in question is opposed “for vital and stated reasons of national policy”.

13.5The Commission’s recommendations are non-binding, and it is not yet clear if the European Council will eventually formally make use of the passerelle under Article 31. Commission President Jean-Claude Juncker has asked the EU’s leaders to discuss whether to do so at the informal European Council on 9 May 2019 in Sibiu, Romania.66 The UK, as a departing Member State, will in any event lose its power to block use of the passerelle clause on 29 March 2019.

13.6The Government’s position, as articulated in an Explanatory Memorandum submitted by the Minister for Europe (Sir Alan Duncan) on 5 October, is to exercise caution: it states that the UK “recognise some of the frustrations highlighted by the Commission” but believes that “EU foreign policy decisions made by consensus carry considerable weight because all Member States agree them”. The Minister also commits to “update the [Scrutiny] Committees following further discussions with the Commission and other Member States”.

Our assessment

13.7It is clear that the Commission’s decision to move forward with its recommendation on greater use of QMV in the Common Foreign & Security Policy is not unrelated to the UK’s exit from the EU. Given the UK’s long-standing concerns about the Union’s encroachment on its sovereignty—especially in foreign affairs and defence matters—it is inconceivable that the proposals it has put forward would be viable had the UK remained a Member State.

13.8As things stand, the implications of the initiative for both the EU-27 and the UK are unclear.

13.9Firstly, it is far from certain that the remaining Member States are amenable to the substance of what the Commission has suggested. There is some political impetus behind the idea: the joint Franco-German ‘Meseberg Declaration’67 of 19 June 2018 included a commitment to explore ways of “increasing the speed and effectiveness of the EU’s decision making in our Common Foreign and Security Policy”, including by “using majority voting in the field of the Common Foreign and Security Policy”. However, given that each of the other Member States also has a veto over the expansion of QMV, the outcome of this process is unpredictable.

13.10The impact any move towards expanded QMV voting in EU foreign policy could have for the UK is equally ambiguous. During the proposed post-Brexit transitional period, due to end on 31 December 2020, the UK would have no voting rights over CFSP measures. It would, however, in principle remain bound by any such decisions—like the imposition of new sanctions—adopted by the remaining Member States during that period (whether by QMV or consensus). The Government would also contribute financially to the CFSP via its continued payments into the EU budget, and via the ‘Athena’ mechanism which funds EU foreign policy operations with “military or defence implications”.68

13.11However, with respect to individual measures, Article 124(6) of the draft Withdrawal Agreement would allow the UK to “make a formal declaration […] indicating that, for vital and stated reasons of national policy, […] it will not apply” a decision taken under chapter 2, Title V TEU. As such, even if the new Qualified Majority voting rules were to take effect during the transitional period, the UK can opt-out of applying any measures adopted under the new rules. In addition, as is the case now, the UK could not be obliged to provide staff or equipment for EU military or security missions during the transitional period.

13.12Nevertheless, we consider this Commission document politically important because it may, in the future, lead to an increased level of CFSP decision-making by Qualified Majority. That would likely have implications for the direction and speed of EU foreign policy—which is, after all, the reason the Commission is proposing invoking the passerelle clause—by making it quicker to act where the EU could currently be held back by the concerns of a single Member State. By extension, any changes to the scope or direction of the CFSP would have implications for the UK’s cooperation as a non-Member State, especially if there was a notable divergence in foreign policy priorities, objectives or approach.

13.13We also note that, under section 6 of the European Union Act 2011, the UK Government was prohibited from authorising any use of the passerelle clause in Article 31(3) TEU—either by voting in favour of its use, or by allowing unanimity to be reached by abstaining from the vote—without having received the approval of both Parliament (by Act) and the electorate (by referendum).69 That requirement was abolished by regulations under the European Union (Withdrawal) Act 2018 in July this year. As a result, from a legal perspective, it is possible for the Government to support a Decision to authorise the use of Qualified Majority Voting in new areas of the Common Foreign & Security Policy if it came to a vote in the European Council before the UK ceases to be a Member State. This is, however, extremely unlikely.

13.14We are grateful for the Minister’s commitment to keep us informed of discussions between Member States on the Commission’s proposals and, if appropriate, about the drafting of any formal European Council Decision formally invoking the passerelle. We also ask him to write by 2 November 2018 to clarify if the UK, under the terms of the draft Withdrawal Agreement, would still have to contribute financially to the costs of CFSP measures charged to the EU budget or covered by the ‘Athena’ mechanism, even where it exercised its opt-out from a specific measure under Article 124 of the Agreement.

13.15In light of the potential impact that the proposed changes could have for the conduct of the EU’s foreign policy, and by extension for UK cooperation with the Union in this area after Brexit, we also draw these developments to the attention of the Foreign Affairs and Defence Committees.

13.16The European Commission is expected to make similar recommendations about the extension of the use of QMV in other areas where unanimity voting is currently applied, including taxation—where it could affect EU law on VAT, excise duty and corporation tax—and employment law. Those recommendations will be subject to scrutiny by the Committee in their own right following their publication, which is scheduled for early 2019. We have included an overview of the different passerelle clauses contained in the EU Treaties in the Annex to this Report.

Full details of the documents:

Communication from the Commission: A stronger global actor—a more efficient decision-making for EU Common Foreign and Security Policy: (40085), 12425/18, COM(2018) 647.

Background

13.17The EU’s Common & Foreign Security Policy (CFSP) covers a wide range of foreign policy measures, including the imposition of EU-wide sanctions against third countries; the establishment of both executive and non-executive security missions; and the adoption of common positions on foreign affairs issues to be taken in international organisations, like joint statements on human rights violations to be issued at the United Nations.

13.18Since its formal inception under the 1991 Maastricht Treaty, CFSP decision-making has remained firmly in the hands of the Member States. Notably, its current legal base– Chapter 2, Title V of the Treaty on European Union (TEU), as amended by the 2009 Lisbon Treaty—unanimity voting remains the rule.70 This normally gives each EU country in the Council a veto, for example over the deployment of the Union’s anti-piracy mission off the Horn of Africa or the imposition of sanctions on Russia over its annexation of Crimea.

13.19Abstention by a Member State does not prevent the adoption of a CFSP measure requiring unanimity.71 However, under Article 31(1) TEU, a Member State can issue a ‘qualified abstention’: a formal declaration which means that the country in question does not have to apply the measure on which it has abstained, while accepting that it binds the EU and the other Member States. This procedure has only been used once, in relation to the EU’s 2008 decision to set up a Civilian Common Security and Defence Policy mission for Kosovo (Eulex Kosovo).72

13.20Moreover, in some strictly limited circumstances, decisions relating to the CFSP can be taken by Qualified Majority voting (QMV) rather than unanimity. This is notably the case for the appointment of EU Special Representatives, and when the Council adopts implementing decisions relating to an earlier CFSP measure that has already been approved unanimously.73 In addition, QMV is the rule for other areas of the EU’s external action (such as trade and development policy), which are not governed by Title 5 TEU, but instead have their legal basis in the Treaty on the Functioning of the European Union (TFEU).

13.21In recognition of the procedural hurdle that the unanimity requirement could pose for flexible decision-making, the 2009 Lisbon Treaty provided for the possibility to introduce voting by Qualified Majority for measures under the CFSP without the need for another formal Treaty amendment. This so-called ‘passerelle’ clause74—one of several in the EU Treaties75—is contained in Article 31(3) of the Treaty on European Union. It allows the European Council, that is to say the EU’s Heads of State and Government, to unanimously adopt a legal decision extending the use of QMV to other areas of the CFSP. However, the passerelle cannot be used to remove the unanimity rule for any “decisions having military or defence implications”. Under Article 31 TEU, there is no requirement for the use of this passerelle to be submitted to the Member States’ national parliaments for approval (although individual EU countries can do so, as the UK previously did under the European Union Act 2011).76

The Commission proposal to invoke the passerelle clause

13.22In his September 2017 ‘State of the Union’ speech, European Commission President Jean-Claude Juncker announced that he wanted the Member State to take more foreign policy decisions by Qualified Majority.77 This was fleshed out further in a formal Communication78 published in September 2018, in which the Commission asked the European Council to take a formal decision under Article 31(2) TEU to move to QMV for the adoption of:

13.23The Commission’s reasoning for recommending a shift to QMV in these areas is that, given the Member States’ “level of ambition” for the Common Foreign & Security Policy, the unanimity rule “slows down progress and in some cases prevents the EU from adjusting to changing realities”, while removing the national veto would “opens up more space for discussion and pragmatic outcomes that reflect the interests of all”. The national veto, it argues, ‘discourages’ Member States from seeking a “constructive compromise”.

13.24In support of this contention, it cites a number of recent occasions where the unanimity rule led to “EU decisions on important Common Foreign and Security Policy issues, in particular on human rights, EU sanctions or key regions of EU interest, [being] blocked, taken too slowly or diluted”.80 These included, for example, the removal of certain human rights priorities from the EU-Egypt ‘Partnership Priorities’;81 the insertion of a specific derogation from the EU’s arms embargo on Belarus;82 and a delay in the adoption of the sanctions regime against Venezuela in 2017.83

13.25In addition to the use of the passerelle clause, the Commission is urging the Member States to be more flexible using the ‘tools’ already available under the Treaties to ensure a more responsive EU foreign policy by:

13.26The Commission Communication calling for the use of the passerelle provision in Article 31 TEU is not a formal proposal, and there is no requirement for the European Council to consider it. The European Commission has asked for its proposals to be put on the agenda at the informal European Council in Sibiu, Romania, on 9 May 2019 (at which point the UK will have ceased to be an EU Member State).

Previous Committee Reports

None.

Annex: Passerelle clauses in the EU Treaties

13.27The table below shows the different passerelle clauses contained in the EU Treaties following the entry into force of the Lisbon Treaty in 2009, including the one in Article 31 TEU described in this Report. All such clauses require the unanimous agreement of all Member States in either the European Council or the Council.

Article

Area

Scope

National parliament veto

European Parliament veto

Article 48(7) TEU

General

Can be used to move from unanimity to QMV for any instance where the TFEU or the Common Foreign & Security Policy requires the former, except those ‘with military implications or those in the area of defence’.85

Yes

Yes

Article 333 TFEU

General

Allows Member States participating in an instance of “enhanced cooperation” to move from unanimity to QMV for any instance where Treaties require the former, except those ‘defence or military implications’.

No

No

Article 31 TEU

Foreign policy

To apply QMV decision-making to CFSP measures, except those ‘decisions having military or defence implications’.

No

No

Article 81 TFEU

Family law

Allows the Council to authorise the adoption of EU legislation on family law 86 to be adopted by QMV under the ordinary legislative procedure. 87

Yes

No

Article 153 TFEU

Employment law

Allows the Council to move to QMV in the few areas of employment policy still subject to unanimity. 88

No

No

Article 192 TFEU

Environment policy

Allows the Council to move to QMV in the few areas of environment policy still subject to unanimity. 89

No

No

Article 312 TFEU

Allows the European Council to authorise the Council to adopt the Multiannual Financial Framework, the EU’s long-term budget, by QMV

No

No


61 Article 24 TEU reads: “The common foreign and security policy […] shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise”. In certain circumstances, decisions relating to the CFSP are taken by Qualified Majority voting (QMV) (see ‘Background’).

62 In EU jargon, ‘passerelle’—French for ‘little bridge’—refers specifically to a change in the decision-making procedure that must be used for the EU to take action in a certain policy area without the need for a formal Treaty amendment (i.e. one that requires full ratification by the Member States’ national parliaments).

63 In support of this contention, it cites a number of recent occasions where the unanimity rule led to “EU decisions on important Common Foreign and Security Policy issues, in particular on human rights, EU sanctions or key regions of EU interest, [being] blocked, taken too slowly or diluted”. See the ‘Background’ section of this chapter for more information.

64 As noted, the passerelle cannot be used to impose QMV on “decisions having defence or military implications”. This prevents its use in relation to the EU’s military missions overseas, like those in Bosnia & Herzegovina (EUFOR Althea) or the anti-piracy mission off the Somali coast (Operation Atalanta).

65 See the ‘Background’ section for more information on the Commission’s recommendations for greater use of QMV in the CFSP that do not involve use of the passerelle.

66 The informal European Council in Sibiu in May 2019 coincides with Europe Day and will have as theme ‘the future of Europe’.

68 The Athena Mechanism is based on Council Decision (CFSP) 2015/528, which will remain binding on the UK during the transitional period. The UK contribution is approximately 10–15 per cent of common EU expenditure for operations covered by the Mechanism. EU military operations are excluded from the passerelle and must always be decided by unanimity.

69 See sub-section 5(a) of section 6 of the European Union Act 2011.

70 Article 24 TEU reads: “The common foreign and security policy […] shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise”.

71 Given the need for unanimity, CFSP measures are not brought forward for formal adoption unless there is the necessary support for Member States. As CFSP measures are ‘non-legislative acts’ for the purposes of the Treaty, the outcome of the vote—i.e. which Member States have abstained—is not normally made public.

72 The ‘qualified abstention’ in the case of Eulex Kosovo was made by Cyprus.

73 For example, the Member States decided unanimously to adopt Decision 2015/1333 establishing an EU sanctions regime against certain Libyan officials under Article 29 TEU. As a result, Implementing Decision 2018/1086 amending the list of persons and entities subject to the sanctions could be adopted by QMV under Article 31(2) TEU. The decision to use QMCV in these cases is essentially one for the Council, and its use is not consistent.

74 In EU jargon, ‘passerelle’—French for ‘little bridge’—refers specifically to a change in the decision-making procedure that must be used for the EU to take action in a certain policy area without the need for a formal Treaty amendment (i.e. on that requires full ratification by the Member States’ national parliaments).

75 Article 48 TEU contains a general passerelle clause to move away from unanimity in the EU’s decision-making procedures, which can be vetoed by any national parliament or by the European Parliament.

76 See paragraph 0.13 for more information on the legal constraints placed on the UK Government in relation to Article 31(3) TEU under the European Union Act 2011.

77 In his speech, Mr. Juncker said: “In order to have more weight in the world, we must be able to take foreign policy decisions quicker. This is why I want Member States to look at which foreign policy decisions could be moved from unanimity to qualified majority voting. The Treaty already provides for this, if all Member States agree to do it. We need qualified majority decisions in foreign policy if we are to work efficiently.” (European Commission, SPEECH 17/3165).

78 Commission document COM(2018) 647.

79 As noted, the passerelle cannot be used to impose QMV on “decisions having defence or military implications”. This prevents its use in relation to the EU’s military missions overseas, like Operation Atalanta off the Horn of Africa or the EU Training Mission in the Central African Republic.

80 See Commission document COM(18) 647, p. 5–6.

81 See for more information the Foreign Office’s Explanatory Memorandum on the EU-Egypt Partnership Priorities (7 July 2017).

82 See Council Decision (CFSP) 2017/331 for the amendment to the EU’s arms embargo against Belarus. The derogation relates to the supply of rifles used in biathlons.

83 See for more information on the EU’s sanctions against Venezuela the Committee’s Report of 6 December 2017.

84 Article 31(2), as explained by the European Commission, “offers the European Council the possibility to adopt a unanimous Decision, setting out the EU’s strategic interests and objectives in one or more specific area of Common Foreign and Security Policy. Once the European Council sets the strategic objectives and principles of the envisaged action or position, the Council would then adopt by qualified majority all decisions implementing the European Council’s strategic decisions”.

85 Article 48 TEU also allows the European Council to move from a ‘special legislative procedure’—typically the consultation procedure, where the European Parliament can only issue a non-binding opinion or the consent procedure, where it can reject a proposal but has no right to make amendments—to the ‘ordinary legislative procedure’ (where the Council and the Parliament are co-legislators with equal rights). For example, the consent procedure applies to the conclusion of the UK’s Withdrawal Agreement under Article 50 TEU.

86 Existing examples of EU legislation on family law include the Regulation on matrimonial property regimes.

87 At present, under Article 81 TFEU, legislation on family law must be adopted by the Council unanimously with only a consultative role for the European Parliament.

88 Under Article 153, the unanimity requirement still applies to EU legislation on social security and social protection of workers; protection of workers where their employment contract is terminated; representation and collective defence of the interests of workers and employers; and the conditions of employment for third-country nationals legally residing in within the EU.

89 Under Article 192, the unanimity requirement still applies to EU environmental proposals “primarily of a fiscal nature”; measures affecting town and country planning, quantitative management of water resources, and land use (except waste management); and measures that would ‘significantly affect’ a Member State’s choice between “different energy sources and the general structure of its energy supply”.




Published: 23 October 2018